author: Mr. Presiding Justice Barnes

text:
    Marie Waller, Defendant in Error, v. W. J. Richter, Plaintiff in Error.
    Gen. No. 22,172.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Landlord and tenant, § 479*—what notice of termination of tenancy necessary t>y tenant from month to month. A landlord is entitled to thirty days’ notice from a tenant from month to month, when the latter desires to terminate his tenancy.
    2. Municipal Court of Chicago, § 13

      —when affidavit of merits is properly stricken. In an action in the Municipal Court for one month’s rent due from the defendant as a tenant from month to month, where plaintiff claimed that the tenant vacated on August 30th without giving the necessary notice, and in the affidavit of merits it was stated that notice was given during such month that the defendant would vacate the premises at the expiration of said month, held that thirty days’ notice was required on the part of such tenant to terminate his tenancy, and that the affidavit of merits was properly stricken.

      Error to the Municipal Court of Chicago; the Hon. Jambs C. Martin, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Affirmed.
    Opinion filed May 1, 1917.
    Statement of the Case.
    Action by Marie Waller, plaintiff, against W. J. Richter, defendant, to recover rent for premises rented by defendant as tenant from month to month. From a judgment for plaintiff, defendant brings error.
    Henry Knaus, for plaintiff in error.
    No appearance for defendant in error.

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

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.

3. Municipal Court op Chicago, § 13 —when statement of claim in action for rent is sufficient. Where, in an action in the Municipal Court for rent due from the defendant, it was alleged that the claim was for rent due and unpaid for September, 1915, for premises occupied by the defendant as a tenant from month to month, and that the tenant vacated the premises on August 30, 1915, without giving the plaintiff, the landlord, necessary notice to terminate such tenancy, held that such statement of claim was sufficient to state the general nature of the cause of action and to meet the requirements of the Municipal Court Act.


source: Caselaw Access Project

license: Public Domain

text:
    Michele Consiglio, Defendant in Error, v. Emilio Longhi, trading as Italian & Greek Product Company, Plaintiff in Error.
    Gen. No. 22,193.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Edward T. Wade, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Reversed and remanded.
    Opinion filed May 1, 1917.
    Statement of the Case.
    Action by Michele Consiglio, plaintiff, against Emilio Longhi, trading as the Italian & Greek Product Company, defendant, to recover on a demand promissory note for four hundred dollars, of which defendant was maker. From a judgment for plaintiff, defendant brings error.
    Brown & Navigato, for plaintiff in error.
    Morgan & McFarland, for defendant in error.

      Abstract of the Decision.
    1. Bills and notes, § 87*—rohen note is payable on demand. A note which expresses no time for payment is payable on demand.
    2. Bills and notes, § 420

      —what evidence is properly excluded in action on demand note. In an action on a promissory note payable on demand, where the defense was that the note was given for. a deposit made by the payee with the defendant, to secure the latter against loss on certain accounts of merchandise sold for defendant by the payee on credit, that such accounts were guaranteed by the payee and proved worthless, that the loss exceeded the amount of the note, that plaintiff did not become the owner of the note until long after maturity, and the offer of the defendant to prove that when the note was offered to h'im. for payment fifteen months afterwards by the plaintiff it had not been indorsed by the payee, and that he then informed plaintiff that the payee was indebted to him in excess of the amount of the note, that he would not pay it and that the indorsements on the note were made subsequent to that time, held that in view of sections 53, 58, 59 of article IV of the Negotiable Instruments Act (J. & A. 1f1f 7692,,7697, 7698), such evidence was improperly excluded.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    Catherine Cronin, Defendant in Error, v. Court of Honor, Plaintiff in Error.
    Gen. No. 22,223.
    (Not to he reported in full.)
    Abstract of the Decision.
    1. Municipal Coubt op Chicago, § 24

      —when assignments of error will not he reviewed. On an appeal from the Municipal Court where the stenographic report had been stricken, and the court had thus nothing before it but the common-law record, held that none of the original assignments of error was open for consideration as they related to that part of the record so stricken. *'
    2. Municipal Coubt op Chicago, § 24*—when record will not he examined for omission in abstract. On an appeal from the Municipal Court where the stenographic report had been stricken, and the original assignments of error were therefore not open for consideration, and where appellee was permitted to assign as an additional error that the statement of claim did not state a cause of action, but such statement of claim was not abstracted, held that the court would not go to the record to ascertain what such statement oí claim contained.
    Error to the Municipal Court of Chicago; the Hon. Habby P. Dolan, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Affirmed.
    Opinion filed May 1, 1917.
    Statement of the Case.
    Action by Catherine Cronin, plaintiff, against ‘ the Court of Honor, defendant, on a fraternal insurance policy. From a judgment for plaintiff, defendant brings error.
    Francis J. Sullivan, for plaintiff in error; William B. Risse, of counsel.
    P. F. Murray, for defendant in error.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    National Produce Bank of Chicago, Plaintiff in Error, v. R. J. Dodds and Mary Paddock Dodds, Defendants in Error.
    Gen. No. 22,266.
    1. Bills and notes, § 32*—what does not constitute an acceptance of check. Where a notice printed in a pass book provides that checks on the bank will be credited conditionally to a depositor and such is the custom in all the banks in the city in which the bank is located, the fact that a check on the bank is entered in a pass book and stamped as payable through a clearing house and is put through the usual bookkeeping methods of the bank for the tracing of the check until the status of the account on which it was drawn may be ascertained does not constitute an acceptance of such check within sections 131, 184, 186, 188 of the Negotiable Instruments Act (J. & A. UV 7771, 7824, 7826, 7828).
    2. Banks and banking, § 100

      —what are rights of bank as to crediting deposit on debt of depositor. A bank has the right, as against the holder of a check drawn by a depositor, to apply its credit balance to a debt due from such depositor to itself.
    3. Banks and banking, § 142*—when bank is not obliged to accept checks against deposited check. Where a check is deposited with a bank, the latter is not obliged to accept checks against it, until it can be determined in the regular course whether such check will be paid.
    Error to the Municipal Court of Chicago; the Hon. Edward T. Wade, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Reversed with judgment here and finding of fact.
    Opinion filed May 1, 1917.
    Statement by the Court. Plaintiff in error brought a suit to recover the balance of $165.99 with interest due on defendants’ promissory note for $300 dated October 27, 1914, and due three months thereafter. After the note fell due defendants claimed that they were entitled to have a check for $166.10 that had been deposited to their account in plaintiff’s bank on July 17, 1913, credited on the note, and the court, before which the ease was tried without a jury, so found.
    The check was drawn on plaintiff’s bank by another of its depositors, the Tomlinson-Humes, Incorporated (herein referred to as the Humes Co.). At the opening of business on July 16th, the Humes Co. had on deposit to its credit $567.75. During the day two other deposits to its account were made, one for $270, the other a check for $1,652.32 drawn on a party in Boston, Massachusetts, which was credited to said Humes Co.’s account and forwarded for collection, malting a total book credit of $2,490.07, and checks aggregating $2,119.64 were charged to the account, leaving a book balance of $370.43 at the close of day. During the day said company was reported to be on the verge of bankruptcy. If the Boston check was not good its account was thus overdrawn over $1,000. The bank immediately stopped paying any credit balances on any funds against the uncollected Boston check. • That day or the next morning a petition in bankruptcy was filed against said company, and it being indebted to the bank in excess of its balance of $370.43, the account was closed out by applying the balance to the indebtedness of the bank on the morning of July 17th. No other sum was paid out of the Humes Co.’s account on July 17th. On that morning the check in question for $166.10 was taken by defendants’ clerk to the bank with the request that it be certified. The bank refused to certify it, the receiving teller saying that it would go through in the regular course of business. It was then left for deposit. On that day checks on the Humes Co. account that were found not good were charged back and returned to the depositors, and defendants were notified that the check in question was charged back to them because drawn against uncollected funds. Later in the day one of the defendants requested the cashier “to get him the money represented by the check, if possible,” and left the check with the cashier, taking a receipt therefor "stating that it was “received for collection July 17th.” On the inside of the front cover of defendants’ pass book used in making their deposits was the following printed notice which is printed in all pass books of all the Chicago banks, to wit:
    “Checks on this bank will be credited conditionally. If not found good at close of business, they will be charged back to depositor’s account and the latter notified of the fact. Checks on other city banks will be carried over for presentation on the following day.
    ‘ ‘ This bank, in receiving checks or drafts on deposit or for collection, acts only as your agent, and beyond carefulness in selecting agents at other points, and forwarding to them, assumes no responsibility.”
    It was shown to be the custom among all the Chicago banks, including plaintiff’s, that when checks drawn on a bank by one of its depositors are presented to that bank by another depositor for deposit they are, in accordance with said notice, credited conditionally to the account of the depositor, and if not found good at the close of the day’s business are charged back to his account. In plaintiff’s bank all checks were stamped by the receiving teller when received and were then charged by the teller to the bookkeeper, who advises as to the condition of the accounts. The check in question was so stamped and treated. It was also shown to be the custom among Chicago banks to stamp the words “Payable through the Chicago Clearing House” on all checks that are certified and then have them signed and accepted by the authorized representatives of the bank delegated to attend to certifications.
    Fred H. Atwood, Charles O. Loucks and Vernon R. Loucks, for plaintiff in error; Harold L. Reeve, of counsel.

      Edwin L. Waugh, for defendants in error.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.

The question is whether under the foregoing state of facts there was an acceptance or payment of the check in question by the bank.

Except as otherwise therein provided, the provisions of the Negotiable Instruments Act applicable to a bill of exchange payable on demand apply to a check (section 184, J. & A. ft 7824), and the acceptance of the bill must be in writing and signed by the drawee (section 131, J. & A. ft 7771). The act also provides that the certification of a check is made equivalent to an acceptance (section 186, J. & A. ft 7826), and that the bank is not liable to the holder of the check “unless and until it accepts or certifies the check” (section 188, J. So A. ff 7828). In view of these several provisions, we are of the opinion that neither the entry of the check in defendants’ pass book, nor the stamping ofzit as paid, nor the subsequent bookkeeping methods for tracing the check until the status of the account on which it was drawn might at the close of day be determined, constituted an acceptance of the check within the meaning of the act. These several steps taken after the check was presented for deposit were the usual, if not necessary, methods em.ploved by the bank before it could conveniently determine whether the check could be paid. They were in accordance with the custom of all the Chicago banks, and the depositors having printed notice thereof 'presumably contracted as such with reference thereto. The very fact that the bank thus gave notice of its method of doing business negatives the interntion of an unqualified acceptance on its part. The Negotiable Instruments Act imposes no impediment to the adoption of such methods or to a conditional acceptance of checks. It would greatly impede the conduct of its business if a bank were obliged in effect to strike a ledger balance as checks are presented before it could safely take another for deposit. It would practically involve an immediate transfer on the bank’s books from one account to another, an impracticable, if not an impossible, method of conducting business in large banks with numerous depositors.

While our attention is directed to the case of American Exch. Nat. Bank v. Gregg, 138 Ill. 596, as authority on the question as to what constitutes payment of a check, yet that decision was rendered before the enactment of the Negotiable Instruments Act of 1907, and, where inconsistent therewith, is, of course, not controlling. There are features here, too, that were not present in that case. No question arose there relative to a custom or to an implied agreement between the bank and its depositors for a conditional credit of checks given by one depositor to another. On the contrary, the decision recognized the bank’s right to reject a check or receive it conditionally.

It was also there said that when the check involved was presented the question was whether the drawer had funds in the bank sufficient to pay it. When the check here in question was presented for deposit there were no funds to the credit of the Humes Co., the bank having already applied its credit balance to a debt due from Humes Co. to itself, which it unquestionably had a right to do. (Morse on Banks and Banking, 3rd Ed., secs. 324, 328; Sachs v. Sachs, 181 Ill. App. 342.) At that time the Boston check had been credited to such account only conditionally, and it could not then be determined whether it would be paid. Until that could be determined in the regular course, the bank was not obliged to accept checks against it. Hence, when the check in question was presented for deposit, not only did the bank refuse to certify it, thereby indicating its intention not to accept it otherwise than conditionally, according to notice contained in the pass hook and the custom of the Chicago banks, but there were no funds to the Humes Co.’s credit out of which it could be paid. With knowledge of such conditions it would be strange indeed if the bank should be held to have accepted and paid the check it expressly refused to certify simply because it employed the convenient methods of mere bookkeeping as above referred to. Even defendants in error recognized the bank’s right to hold the check until the close of day, for, when notified that the check was not good, they left it with the bank for collection and do not seem to have assumed a different attitude until the time came for the payment of their note subsequently given for borrowed money. As was stated in a very similar case, Ocean Park Bank v. Rogers, 6 Cal. App. 678, 92 Pac. 879: “The fact that the amount of the check * * * was entered upon a deposit slip, that the check was stamped ‘Paid’ and impaled upon a check file, are mere memoranda adopted in aid of the convenient dispatch of business.” It was there said that such methods did not raise the presumption that the check was received as cash or otherwise than for collection, and that “the bank has until the close of banking hours on the day of deposit to ascertain whether the account of the drawer will permit of a transfer of the amount of the check to the depositor’s account.” We concur in that expression of the law, especially as it seems to comport with the provisions of our present Negotiable Instruments Act. Accordingly we think the bank was not liable for the amount of the check and that the judgment of the court should have been for the amount sued for, $165.99, with interest at seven per cent, from January 27,1915, and a judgment therefor amounting to $190.12 will be entered here.

Reversed until judgment here and finding of fact.

Finding of fact. We find that the plaintiff in error, the National Produce Bank of Chicago, did not accept or pay the check drawn on it by the Tomlinson-Humes, Incorporated, to the order of Paddock & Dodds for $166.10.


author: Mr.. Presiding Justice Barnes

text:
    Northern Trust Company, Administrator, Appellee, v. Lewis W. Parker, Appellant.
    Gen. No. 22,366.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Mortgages, § 503

      —when evidence is insufficient to show want of consideration for notes. In a suit to foreclose a trust deed, which was continued by the administrator of the deceased holder of the notes after the latter’s death, held on the conflicting evidence of defendant and deceased, who was an aged man, that defendant had not established the defense of want of consideration and that the stock for which the notes were given had been promised by deceased to defendant in consideration of his subscribing for other stock of a corporation.

      Appeal from the Circuit Court of Cook county; the Hon. Frederick A. Smith, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Reversed and remanded.
    Opinion filed May 1, 1917.
    Statement of the Case.
    Bill by Northern Trust Company, as administrator to collect of the estate of William, Henry McDoel, complainant, against Lewis W. Parker, defendant, and cross-bill by Margaret Garvin and Jennie Kelly. From a judgment for complainant, defendant appeals.
    George C. King, for appellant.
    Henry M. Hagan, for appellee McDoel’s Estate.

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

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

   Mr.. Presiding Justice Barnes

delivered the opinion of the court.

2. Evidence, § 475 —what does not constitute a preponderance of evidence. A party holding the affirmative of a proposition is required to maintain it by a preponderance of the evidence, which can never be the case when one of two parties, both equally credible, makes an assertion which is denied by the other.

3. Costs, § 20*—when taxation against defendant is improper on cross-bill by other parties. Where, on a bill to foreclose a trust deed, it appeared that four of the notes secured had been paid, that the deed provided that upon payment of any one of the notes the trustee might release a lot, that accordingly four lots were released, two of which the defendant sold, and such release was pleaded in the answer, and a cross-bill was filed by the owners of such lots, upon which an issue was formed and decided against the complainant, and that defendant in the original bill was taxed with the entire master’s fee, which included the testimony on the issues formed on the cross-bill, held that the taxation of the costs on the cross-bill was improper.

4. Costs, § 20*—when defendant not liable for on cross-bill. Where a trust deed provides for solicitor’s fees incurred in any suit or proceeding in connection with the foreclosure to which the holder of the notes might be a party, the unsuccessful defendant is not liable for solicitor’s fees for defending a cross-bill by other persons to which defendant is not a party.


text:
    Emily J. Cronin and John F. Kelly, Appellees, v. Gustavus J. Tatge, Appellant.
    Gen. No. 22,409.
    (Not to foe reported in full.)
    Abstract of the Decision.
    Mechanics’ liens, § 18

      —when lien lies for work in street. Under section 1 of the Mechanics’ Liens Act of 1903 (J. & A. If 7139), providing that “any person who shall by any contract * * * with the owner of a lot * * * furnish material * * * for the purpose of, or in the building, altering, * * * any house or * * * . sidewalk, whether such walk or sidewalk be on the land or bordering thereon, * * * or improvement, or appurtenance thereto on such lot * * * or connected therewith, and upon, over or under a sidewalk, street or alley adjoining; * * * shall have a lien,” etc., a lien is given for work done in the performance of a contract for paving a street adjoining a lot, or building a sidewalk bordering thereon, or laying gas mains or sewers connected with the use of the lot or a building thereon, as the conjunction “and” beginning the clause “and upon or under a sidewalk” should he construed as “or” and the clause as modifying the words “improvement or appurtenance.”
    Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Affirmed.
    Opinion filed May 1, 1917.
    Statement of the Case.
    Bill by Emily J. Cronin and John F. Kelly, complainants, against Grustavns J. Tatge, defendant, for enforcement of a mechanic’s lien. From a decree for complainants, defendant appeals.
    Robert F. Kolb and Paul W. Tatge, for appellant.
    James J. Kelly, for appellee.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    Emma Van Zandt, Appellee, v. Metropolitan West Side Elevated Railway Company, Appellant.
    Gen. No. 22,429.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Cabbiebs, § 459

      —when burden of proving negligence in making inspection of equipment of car is upon plaintiff. In an action by a passenger to recover for injuries received by a falling object in the car, which she charged was the result of failure to use ordinary care in inspecting the equipment and appliances of the car, held that the burden of proving such claim rested with the plaintiff.
    2. Cabbiebs, § 476*—when evidence is insufficient to sustain verdict for plaintiff for injury alleged to be due to falling object. In an action by a passenger against a carrier for injuries sustained as the result of being struck by a falling object while plaintiff sat in a car,' where plaintiff’s theory was that the object was part of the metal fixture or firm to one of the ventilators inside and near the top of the side of the car, and the defendant’s theory was that it came from outside the car, and the object was never found, plaintiff’s witness claiming that one of the arms that stuck out of the ventilator was gone and that she saw it on the seat right after it fell, and the conductor claiming that he failed to find the object in his search made immediately afterwards, and but one witness testified on each side to seeing the object, .while defendant’s witness stated that it passed swiftly by his face from an open window and towards plaintiff, and plaintjff’s witness testified that she saw the object pass the man’s- head and that it came from a distance, and plaintiff’s witness had testified at a former trial that she could not tell jpst what it was that struck plaintiff and did not know where it came from, held that the verdict in favor of plaintiff was not only manifestly against the weight of the evidence, but that the preponderance was in .favor of the defendant.

      Appeal from the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Reversed and remanded.
    Opinion filed May 1, 1917.
    Statement of the Case.
    Action by Emma Van Zandt, plaintiff, against the Metropolitan West Side Elevated Railway Company, defendant, to recover for injuries alleged to be due to a part of the metal fixture to one of the ventilators in a ear falling on plaintiff while riding as a passenger in such car. From a judgment for plaintiff, defendant appeals.
    Addison L. Gardner and Erwin W. Roemer, for appellant.
    Earl J. Walker, for appellee.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.


author: Mr. Justice McDonald

text:
    Bass Foundry & Machine Company, Appellee, v. Sulzberger & Sons Company, Appellant.
    Gen. No. 22,315.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Wíiaiam N. Gemmill, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Reversed and remanded.
    Opinion filed May 1, 1917.
    Rehearing denied May 10, 1917.
    Statement of the Case.
    Action by the Bass Foundry & Machine Company, plaintiff, against Sulzberger & Sons Company, defendant, to recover the contract price of two water heaters. From a judgment for plaintiff, defendant appeals.

      Abstract of the Decision.
    1. Sales, § 264*—when warranty covers sufficiency of specifications. In an action to recover the contract price of two water heaters, where the contract provided that the heaters must be guaranteed to contain sufficient square feet of heating surface to heat a required amount of water, and such heaters were operated in connection with the defendant’s boilers for the utilization of exhaust steam to raise the temperature of the water before it was taken into the boilers, thereby effecting a saving of fuel, and, on the heaters being tested, it was discovered that they failed to meet the warranty, held that such warranty covered not only the workmanship and materials, but the sufficiency of the specifications as well, and the heaters having failed to fulfil the warranty, the trial court erred in excluding the defendant’s evidence of recoupment.
    2. Sales, § 404

      —what is measure of damages for breach of warranty as to heating efficiency of water heaters. In an action to recover the contract price of two water heaters, where the defendant claimed in recoupment because of the breach of a warranty as to heating efficiency, and the warranty was not fulfilled, held that the measure of the defendant’s damages was the difference between the value of the heaters furnished by plaintiff and the cost of altering the defect to make them conform to the warranty, plus a reasonable compensation for their use for the period of time necessary to make the alterations; but that if the cost of installing an auxiliary heater would be less than the damages as outlined, that method should be adopted in order to minimize the damages.
    3. Sai.es—ivhat is effect of change in specifications prior to execution of contract on warranty. In an action to recover the contract price of water heaters, where the defendant contended that such heaters failed to meet the warranty as to heating, held that the mere fact that certain changes were made in the specifications at the request of the defendant, prior to the execution of the contract, did not relieve plaintiff from liability under the warranty.
    Adams, Crews, Bobb & Westcott, for appellant.
    Musgrave, Oppenheim & Lee, for appellee.

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

   Mr. Justice McDonald

delivered the opinion of the court.


text:
    Anna Krecun, Appellee, v. Samuel J. Rosenthal, Appellant.
    Gen. No. 22,334.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Assumpsit, Action of, § 89*—when evidence is sufficient to sustain verdict for plaintiff in action to recover money. In an action to recover money, where plaintiff claimed that the amount in question had been deposited with the defendant for safe keeping while her husband was going through bankruptcy, and the defendant claimed that it was paid to him. in payment of a debt owing to him from plaintiff’s husband, evidence held sufficient to sustain a verdict for plaintiff.
    2. Assumpsit, Action of, § 44

      —when ownership of money is immaterial. In an action for money had and received, the question of the ownership of the money is immaterial, as such question can he raised only by the equitable owner.
    Appeal from the Municipal Court of Chicago; the Hon. Joseph E. Ryan, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Affirmed.
    Opinion filed May 1, 1917.
    Rehearing denied May 14, 1917.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Action by Anna Krecun, plaintiff, against Samuél J. Rosenthal, defendant, for money had and received. From a judgment for plaintiff, defendant appeals.
    Alexander Woloshen and Zoline & Levinson, for appellant; Morris K. Levinson, of counsel.
    William Reeda and Levin & Krinsky, for appellee; Harry H. Krinsky, of counsel.

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

   Mr. Justice McDonald

delivered the opinion of the court.


text:
    Albaugh-Dover Company, Appellee, v. Stephen J. Napieralski, and Dr. Emmanuel F. Napieralski, Appellants.
    Gen. No. 23,343.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Bills and notes, § 440

      —when evidence is sufficient to sustain findings that notes were given as accommodation paper. In an action on two notes against two defendants, where the defense on the part of both was that the notes were given for accommodation, and where one defendant claimed that there was due to him from plaintiff a sum in excess of the amount of the notes for commissions, and the other defendant claimed that he signed as surety, evidence held sufficient to sustain findings in favor of plaintiff that no specific amount was due from plaintiff to said one defendant for commissions, and that the notes were not given as accommodation paper.
    Appeal from the Municipal Court of Chicago; the Hon. Samuel H. Trude. Judge, presiding. Heard in the Branch Appellate Court at the October term, 1916,
    Affirmed.
    Opinion filed May 1, 1917.
    Rehearing denied May 14, 1917.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Action by Albaugh-Dover Company, plaintiff, against Stephen J. Napieralski and Dr. Emmanuel F. Napieralski, defendants, to recover on two promissory .notes, of which defendants were alleged to be Joint makers. From a judgment for plaintiff for $2,114.20, defendants appeal.
    L. D. Condee and M. H. Gladstone, for appellants.
    Foster, Paine, Reynolds & Bryant, for appellee.

      See Illinois Notes Digest, Yois. XI to Xy. and Cumulative Quarterly, same topic and section number,

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

   Mr. Justice McDonald

delivered the opinion of the court.

2. Bills and notes, § 270*—what is effect of failure to give notice of dishonor to joint maker. Even though an indorser of notes is a joint maker, his liability is not affected by the failure to give notice of dishonor.

3. Bills and notes, § 274*—what is effect of failure to give notice of dishonor to surety. Even though an indorser of notes is a surety, he is not released from liability by the failure to give notice of dishonor.

4. Principal and surety, § 14 —when contention that surety was released from liability by extension of notes is untenable. In an action on two notes against two defendants, where one of the defendants claimed that he signed the notes as surety and that he was released from liability because payment was extended without his knowledge or consent, held that, as the record was barren of any evidence tending to show that any binding agreement of extension had been entered into, such position was untenable.


text:
    Millie Reets Layden, Appellant, v. George P. Miller, Appellee.
    Gen. No. 22,390.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Charles M. Foell, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Affirmed.
    Opinion filed May 1, 1917.
    Statement of the Case.
    Bill by Millie Beets Layden, complainant, against George P. Miller, defendant, to enjoin the collection of a judgment in favor of defendant and against complainant. From a decree dissolving a temporary injunction and dismissing the bill for want of equity, complainant appeals.
    Alanson C. Noble, for appellant.
    No appearance for appellee.

      Abstract of the Decision.
    1. Judgment, § 343

      —when dismissal of hill to enjoin collection of on ground of fraudulent procurement is proper. On a bill to enjoin collection of a judgment entered in an action at law brought originally against complainant and her husband to recover a certain balance for medical services, and affidavits denying liability, but alleging that the services were worth not exceeding a certain lesser sum, and judgment was entered for such sum, and the case continued as to the remainder, and, pending the reaching of the case for trial, the husband died and the suit was dismissed as to him without the death being suggested of record, and judgment for the balance was entered against complainant alone, arid the bill charged that the latter judgment was entered through fraud and collusion between counsel for the respective parties, that complainant’s counsel had no authority to consent to the entry thereof, and that it was entered without her knowledge, held that as the bill charged fraud and collusion without reciting facts or circumstances from which fraud could be inferred, a court of equity had no jurisdiction to set aside the judgment, and that the dismissal of the bill for want of equity was proper.
    2. Judgment, § 389*—how defects in are to he taken advantage of. Defects in a judgment by reason of irregularities are to be taken advantage of on appeal or writ of error, and not by a bill in equity.

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

   Mr. Justice McDonald

delivered the opinion of the court.


text:
    Gypsum Fireproofing Company, Appellee, v. Nelson & Lewin, Appellant.
    Gen. No. 22,412.
    Municipal Coubt op Chicago, § 13

      —when additional affidavit in support of statement of claim is necessary. In an action in the Municipal Court of Chicago to recover the value of goods, where the action was originally brought by the United States Gypsum Company, a corporation, and a statement of claim was supported by the affidavit of a person described as the agent of the plaintiff, and an affidavit of merits was filed denying all liability, and subsequently the “Gypsum Fireproofing Company,” a corporation, was substituted as plaintiff and no additional affidavit in support of the claim of the substituted plaintiff was filed, and defendant was ruled to file another affidavit of merits, and, upon failing to file such affidavit, a default judgment was entered, held that presumably the substituted plaintiff was a corporation distinct from the plaintiff; and as it did not appear that the agent whose affidavit supported the statement of claim was also the agent for the substituted corporation, proof of plaintiff’s claim was indispensable, as the affidavit to the original statement of claim was not amended by such substitution of parties, and a default judgment was accordingly improperly entered.
    Appeal from the Municipal Court of Chicago; the Hon. James C. Mabtin, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Reversed and remanded.
    Opinion filed May 1, 1917.
    Ben M. Smith, for appellant.
    Eastman, White & Hawxhurst, for appellee.

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

   Mr. Justice McDonald

delivered the opinion of the court.

By this appeal it is sought to review and reverse a judgment entered in favor of appellee (plaintiff below) against appellant, for - the value of certain goods, wares and merchandise alleged to have been sold by the former to the latter:

The action was originally brought by the United States Gypsum Company, a corporation. The statement of claim was supported by the affidavit of one H. C. Dawson, who was therein designated as the “agent of the plaintiff.” To this statement of claim the defendant filed an affidavit of merits denying any and all liability to the said United States Gypsum Company.

Subsequently, upon motion, the cause was amended by substituting as plaintiff the Gypsum Fireproofing-Company, another corporation. No additional affidavit was filed in support of the claim of the substituted plaintiff. Defendant was then ruled to file another affidavit of merits within ten days, which it failed to do, whereupon a default judgment was entered against it in the sum of $1,302.52.

The controlling question here presented for determination is, whether or not there is any evidence in' the record to support the judgment complained of.

Presumably the United States Gypsum Company and the Gypsum Fireproofing Company are separate and distinct corporations, there being nothing in the record to indicate the contrary. Nor does it appear that the said Dawson was also the agent for the latter corporation. While the original affidavit made by the said Dawson stated that he was the agent of the plaintiff, yet from such recital it does not follow that he was also agent for the Gypsum Fireproofing Company; and although the pleadings were amended by the substitution of parties plaintiff, the affidavit could not be amended in this manner. (Campbell v. Whetstone, 4 Ill. (3 Scam.) 361; Moorehead v. Briggs, 152 Ill. App. 361.) Under such circumstances, proof of plaintiff’s claim was indispensable, in the absence of which the court erred in entering a default judgment against the defendant. Accordingly the judgment must be reversed and the cause remanded.

Reversed, and remanded.


text:
    Falls City Tannery, Appellee, v. W. D. Allen Manufacturing Company, Appellant.
    Gen. No. 22,421.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Sales, § 330

      —when instruction is erroneous as assuming proof of case 6y preponderance of evidence and as directing vendiet. In an action for money due upon a shipment of hides, where it was claimed in defense that the goods had been fraudulently treated so as to increase their weight, and the court charged the jury that the burden of proving fraud was on the defendant, and that unless such charge was proven by the clear preponderance of the evidence the jury should find for the plaintiff, held that such instruction was erroneous in assuming that plaintiff had proved his case by a preponderance of the evidence, and in directing a verdict for the plaintiff in the event that the defendant failed to show fraud on the part of the plaintiff.
    Appeal from the Municipal Court of Chicago; the Hon. John R. Newcomer, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Reversed and remanded.
    Opinion filed May 1, 1917.
    Rehearing denied May 22, 1917.
    Statement of the Case.
    Action by Falls City Tannery, a corporation, plaintiff, agáinst W. D. Allen Manufacturing Company, a corporation, defendant, to recover a balance alleged to be due on a shipment of hides. From a judgment for plaintiff for $2,377.25, defendant appeals.
    Underwood & Smyser, for appellant; Arthur A. Basse and Charles R. Young, of counsel.
    Woodbury & Woodbury, for appellee.

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

      See Illinois Notes Digest, Yols. XI to XY, and Cumulative Quarterly, same topic and section number.

   Mr. Justice McDonald

delivered the opinion of the court.

2. Sales, § 325*—when plaintiff must establish case by preponderance of evidence. In an action for money due upon a shipment of hides, where it was claimed in defense that the goods had been fraudulently treated so as to increase their weight, and the court charged the jury that the burden of proving fraud was on the defendant, and that unless such charge was proven by a clear preponderance of the evidence the jury should find for the plaintiff, held that the plaintiff was required to establish his case by a preponderance of the evidence regardless of whether or not the defendant succeeded in establishing its charge of fraud.

3. Instructions, § 87 —when instruction on preponderance of evidence is misleading. In an action for money due upon a shipment of hides, where it was claimed in defense that the goods had been fraudulently treated so as to increase their weight, and the court charged the jury that the burden of proving fraud was on the defendant, and that unless such charge was proven by a clear preponderance of the evidence the jury should find for the plaintiff, held that such charge was misleading in requiring the defendant to prove fraud by a clear preponderance of evidence, as thus the burden was placed upon the defendant of establishing its defense of fraud by a higher degree of proof than required by the law, a mere preponderance being sufficient.

4. Instructions, § 87*—when instruction on amount .of proof to show fraud by seller of goods is erroneous. In an action for money due upon a shipment of hides, where it was claimed in defense that the goods had been fraudulently treated so as to increase their weight, and where the court charged the jury that unless they were satisfied from the evidence that the plaintiff dried certain so-called belt butts for the purpose of intentionally deceiving the defendant they should find for the plaintiff, held that the instruction was prejudicially erroneous, as it was not necessary for the defendant to submit evidence that would satisfy the jury.

5. Municipal Court of Chicago, § 29*—when judicial notice not taken of rules of. In an action in the Municipal Court to recover upon a shipment of goods, where the defendant complained of the charge to the jury, and where the plaintiff contended that the defendant was precluded from assailing the instruction of the court because no objection was made at the close of the charge before the jury retired, as required by the rules of the Municipal Court, and where such rules were not introduced in evidence, held that such point was untenable as the court could not take judicial notice of such rules.


text:
    Nicholas J. Rauen, Appellee, v. Chicago Railways Company, Appellant.
    Gen. No. 22,441.
    1. Street railroads, § 144*—when instruction on anticipation of negligence by automobile driver is not reversibly erroneous. In an action to recover for damages to an automobile caused by a collision with a street car, where an instruction was given stating that individuals were not obliged to anticipate negligence in others and govern their movements by such rule, that plaintiff had the right to assume that in propelling the cars the defendant would act with reasonable care and that action by the plaintiff upon that assumption was not a failure to exercise due care on his part, and defendant contended that plaintiff had no right to rely upon any such assumption in view of his admission that he proceeded into a position of danger after becoming aware of the proximity of the car, held that, as the evidence tended to show that when plaintiff first saw the car he endeavored to avoid a collision, and in view of all the circumstances, it could not be said that he negligently proceeded into a position of danger with full knowledge of its existence relying upon such presumption, and that, although the instruction was somewhat inaccurate, its giving constituted only harmless error.
    2. Damages, § 236

      —who may take advantage of compromise of verdict. In an action for damages to an automobile caused by a collision with a street car, where the defendant claimed that the jury compromised the question of damages by reducing them from $556.21, as shown by the undisputed evidence, to $390, held that such discrepancy could be taken advantage of only by the injured party.
    3. Street railroads, § 131*—when evidence is sufficient to sitstain verdict for plaintiff in action for damage to automobile by collision. In an action to recover for damage to an automobile, sustained in a collision with defendant’s car at a street crossing, where the car was proceeding north and the automobile west, and both east corners were occupied by buildings which came out to the building line, and plaintiff claimed that he reduced his speed to about twelve miles an hour, and as he approached the tracks he was on the alert for cars, that as he cleared the building line he saw a northbound car about one hundred and fifty to two hundred feet to the south of the intersection, approaching at an estimated speed of about twenty-five to forty miles an hour, and then applied his brakes and, realizing that he could not “make it,” suddenly turned his automobile north, which caused it to skid into the path of the street car, and the testimony as to the speed of the car was contradictory, held that the verdict in favor of plaintiff was not manifestly against the weight of the evidence.
    4. Street railroads, § 113

      —when evidence as to ringing of bell is competent as bearing on contributory negligence of automobile driver. In an action to recover for damage to an automobile sustained in a collision with defendant’s car at a street crossing, where the car was proceeding north and the automobile west, both east corners were occupied by buildings which came out to the building line, and plaintiff claimed that he reduced the speed to about twelve miles an hour, and as he approached the tracks he was on the alert for cars, and as he cleared the building line he saw a northbound car about one hundred and fifty to two hundred feet to the south of the intersection approaching at an estimated speed of about twenty-five to forty miles an hour, then applied his brakes, and, realizing that he could not “make it,” suddenly turned his automobile north, which caused it to skid into the path of the street car, and defendant claimed that the evidence as to the ringing of the bell was immaterial for the reason that plaintiff was aware of the approach of the car, held that such testimony was competent as bearing on the question whether plaintiff, having failed to hear any. warning as he approached the crossing, was negligent in increasing his speed preparatory to crossing the tracks.
    Appeal from the County Court of Cook county; the Hon. H. B. Baton, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Affirmed.
    Opinion filed May 1, 1917.
    Edward C. Stearns and Frank L. Kriete, for appellant; W. W. Gurley and J. R. Guilliams, of counsel.
    Mechem, Bangs & Harper, for appellee.

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

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

   Mr. Justice McDonald

delivered the opinion of the court.

By this appeal it is sought to reverse a judgment entered in favor of appellee for damages to his automobile received in a collision with one of appellant’s cars. The negligence charged is that appellant operated its car in a negligent manner. Hereinafter we shall designate appellee and appellant as plaintiff and defendant, respectively.

The mishap complained of occurred on the evening of January 28, 1913, after dark, at the intersection of Ashland and Wabansia avenues, in the city of Chicago.

Ashland avenue runs north and south. Defendant’s tracks occupy the center of the thoroughfare, its northbound cars being operated on the east track, and the southbound on the west track. Wabansia avenue runs east and west, crossing Ashland avenue at right angles. Both corners on the east side of Ashland avenue, as well as the adjoining lots to the north and south thereof, are occupied by buildings fronting on Ashland avenue, which extend to the building or lot line.

Plaintiff’s automobile was moving in a westerly direction on Wabansia avenue. His testimony tends to show that as he neared Ashland avenue he reduced the speed of his automobile to about eight or nine miles per hour; that, hearing no warning of an approaching street car, he increased his speed to about twelve miles per hour; that as he approached nearer the tracks he was constantly on the alert, looking both to the north and south; that as he cleared the building line, he looked to the left and observed a northbound car about one hundred and fifty to two hundred feet south . of the intersection, approaching at a speed estimated by him at about forty miles per hour; that he applied his brakes, which appeared to be working properly, and realizing that he could not “make it” he suddenly turned his automobile north in Ashland avenue, which caused it to swerve or skid into the path of defendant’s par.

Four witnesses testified as to the probable speed of defendant’s car just prior to the collision. According to the version of defendant’s witnesses—the motorman and conductor in charge of the car in question— it was proceeding at the rate of from eight to ten miles per hour, while the testimony given on behalf of plaintiff would tend to show that it was going at the rate of from twenty-five to forty miles per hour.

Defendant contends that the court erred in admitting evidence on the question whether or not, just prior to the impact, a bell was sounded on defendant’s car. It is argued that plaintiff having testified that he saw the car when it was one hundred and fifty to two hundred feet south of the intersection, he was evidently aware of its approach,, and hence it was immaterial whether the bell was rung or not.

It will be noted from plaintiff’s testimony that when he neared Ashland avenue and slackened the speed of his automobile, his view, of Ashland avenue was obstructed by buildings, so he listened for the sound of an approaching car. If, as testified, he failed to hear such warning, it was for the jury to determine whether he was negligent in increasing his speed preparatory to crossing the tracks. Clearly, therefore, the evidence complained of was competent as bearing on this question.

It is also urged that the court erred in giving the following instruction on behalf of the plaintiff:

“The jury are instructed that individuals are not obliged to anticipate negligence in others and govern their movements by such rule. Applying the law to this case the plaintiff had a right to assume that in propelling its cars the defendant would act with reasonable care and it was not a failure on the part of the plaintiff to exercise due care, for him to act upon that assumption.” .

In support thereof, defendant argues that plaintiff, by his own testimony, admitted having proceeded into a position of danger after becoming aware of the proximity of this rapidly-moving car, and hence he had no right to rely upon the foregoing presumption. Particular stress is laid upon the -following testimony given by plaintiff.

“Q. If you were running that machine with those new tires, and all, your brakes in good condition and with your experience, the number of years in running a car, suppose you were going ten or twelve miles an hour; with all this experience you have had, what is the shortest distance you could stop that car, applying your emergency? A. I would be able to stop it in five or six feet.”

This testimony does not purport to have any reference to the time and place in question, or the then condition of the street, nor was plaintiff required to stop his car within the shortest possible distance. The evidence tends to show that when plaintiff first saw defendant’s car he' applied his brakes; that, realizing the futility of attempting to either stop his automobile or to cross the track ahead of defendant’s car, he turned north into Ashland avenue to avert a disaster which seemed imminent. Under such circumstances, it cannot be said that plaintiff negligently proceeded into a position of danger with full knowledge of its existence, relying upon the foregoing presumption. Although the instruction complained of was somewhat inaccurately drawn, yet in view of the evidence we are of the opinion that the giving thereof constituted only harmless error.

The jury may reasonably have concluded that defendant was operating its car at a negligent rate of speed; that defendant’s motorman failed to sound the bell, which omission caused plaintiff to accelerate his automobile after he had retarded its speed and listened for the sound of an approaching car; that when he saw defendant’s car moving along at a high rate of speed, it was too late to stop his automobile; and that he made a sharp turn into Ashland avenue to avert a collision.

After a most careful examination of the record and due consideration of all the evidence contained therein, we cannot say that the verdict was clearly and manifestly against the weight of the evidence.

Finally it is complained that in arriving at their verdict the jury compromised the question of damages by reducing them from $566.21, as shown by the undisputed evidence, to $390. Such discrepancy can be taken advantage of only by the injured party. 38 Cyc. 1904.

Finding no error in the record which justifies a reversal, the judgment will be affirmed.

Affirmed.


author: Mr. Justice McGoorty

text:
    Jacob Bass, Defendant in Error, v. William T. Woodley, Plaintiff in Error.
    Gen. No. 22,106.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Edmunb K. Jabecki, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1917.
    Affirmed.
    Opinion filed May 1, 1917.
    Rehearing denied May 14, 1917.
    Statement of the Case.
    Action by Jacob Bass, plaintiff, against William T. Woodley, defendant, to recover for rent on a written guaranty of a lease. From a judgment for plaintiff for nine hundred dollars, defendant brings error.
    Blum, Wolfsohn & Blum, for plaintiff in error.

      Abstract of the Decision.
    1. Guaranty, § 7

      —when of lease is supported by consideration. In an action to recover for rent on a written guaranty (not under seal) of a lease, where it appeared that plaintiff purchased the premises from the defendant subject to existing leases, including the one in question, and it was contended by plaintiff that such purchase was conditioned upon a guaranty of the rents by the defendant and that such guaranty was agreed to prior to the execution of the contract of purchase, and it appeared that such guaranty was contained in the same instrument which assigned the lease in question and was delivered to plaintiff with the deed, and where the real question was whether there was a consideration for the guaranty, held that the execution and delivery of the said documents constituted one transaction and were supported by the same consideration.
    2. Deeds, § 196*—when parol evidence is admissible to show consideration. While parol evidence is not admissible to vary or contradict the terms of a deed, yet such evidence may be introduced ' to show the true consideration recited in the deed.
    Darrow & Sissman, for defendant in error.

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

   Mr. Justice McGoorty

delivered the opinion of the court.


text:
    Samuel H. Thompson, Plaintiff in Error, v. Chicago City Railway Company, Defendant in Error.
    Gen. No. 22,142.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Appeal and ebbob,- § 1751

      —when judgment will be affirmed because of lack; of bill of exceptions. Where on an’ appeal there was no hill of exceptions in the record, and the points relied upon were predicated upon recitals in the clerk’s transcript of a motion for a new trial and affidavits in support thereof, which upon motion had been stricken from the record because such recitals were not properly a part thereof, held that there being nothing before the court for determination, the judgment of the lower court would be affirmed.
    2. Appeal and ebbob, § 800*—what must be preserved by bill of exceptions. A motion for new trial and the rulings of the court thereon can only be preserved in the record by a bill of exceptions.
    Error to the Circuit Court of Cook county; the Hon. William B. Scholfield, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Affirmed.
    Opinion filed May 1, 1917.
    Statement of the Case.
    Action by Samuel H. Thompson, plaintiff, against the Chicago City Railway Company, defendant. From a judgment for defendant, plaintiff brings error.
    Dillard B. Baker, for plaintiff in error.
    J. R. Guilliams and Frank L. Kriete, for defendant in error.

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

   Mr. Justice McGoorty

delivered the opinion of the court.

3. Appeal and error, § 760*—when affidavits are part of record. Affidavits are a part of the record only when they are brought into it by a bill of exceptions, and they are not made a part of the record merely by being copied into the record by the clerk and certified by him.


text:
    W. S. Wilber and O. H. Inness, trading as Wilber & Inness, Defendants in Error, v. Giuseppe and Filippo Mirabella, trading as G. Mirabella & Company, Plaintiffs in Error.
    Gen. No. 22,153.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Sales, § 329

      —when evidence is sufficient to sustain verdict for plaintiff in action for purchase price of produce. In an action to recover the contract price for two carloads of potatoes, where the only questions were whether the sale was unconditional or dependent upon quality, and whether the sale was by invoice weight or scale weight, held that the verdict in favor of plaintiff was not against the manifest weight of the evidence.

      Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Affirmed.
    Opinion filed May 1, 1917.
    Statement of the Case.
    Action by W. S. Wilber and O. H. Inness, trading as Wilber & Inness, plaintiffs, against Giuseppe and Filippo Mirabella, trading as G. Mirabella & Company, defendants. From a judgment for plaintiffs for $611.56, defendants bring error.
    De Stefano & Mirabella and Charles Hughes, for plaintiffs in error.
    Lambert Kaspers, for defendants in error.

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

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

   Mr. Justice McGoorty

delivered the opinion of the court.

2. Sales, § 142 —when purchaser is bound by inspection made. In an action to recover the contract price for two carloads of pota-' toes, where the question of acceptance was in controversy, and it appeared that the potatoes, which were in open sacks, had been in part examined by the defendants, held that the question was not whether there actually was a thorough inspection, but whether there was a reasonable opportunity for such inspection before acceptance, and as the defendant had such opportunity and did in part inspect, the judgment in favor of plaintiff would be affirmed.


text:
    Albert M. Wolf, Defendant in Error, v. Railway List Company, Plaintiff in Error.
    Gen. No. 22,297.
    Assignments fob benefit of obeditobs, § 130*—who is not laborer or servant entitled to preference. A civil engineer by profession, who is employed to prepare scientific articles for publication after study and sometimes to inspect the subjects concerning which the articles are written, writes the articles in long hand, reads the proofs after they had been set in type, cuts up the galley sheets and pastes them in a "dummy," is not a laborer or servant within chapter 38a, Hurd’s Rev. St. 1915 (J. & A. If 7193 et seq.), giving priority to claims of laborers, in case of suspension of business by action of creditors or as the result of a debtor’s business being put in the hands of a receiver or trustee.
    Error to the Municipal Court of Chicago; the Hon. John J. Sullivan, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Reversed and judgment here.
    Opinion filed May 1, 1917.
    Charles F. McKinley, for plaintiff in error.
    Henry M. Hagan, for defendant in error.
   Mr. Justice McGoorty

delivered the opinion of the court.

In this action a judgment for $224 was recovered by plaintiff for wages due as a laborer. Defendant was the publisher of a periodical known as “Railway Engineering” and plaintiff was in its employ as associate editor prior to March, 1915, at which time defendant ceased to do business and transferred all of its assets to trustees for the benefit of its creditors.

Plaintiff was a civil engineer by profession, and his duties as associate editor for defendant were to prepare scientific articles for publication after study and sometimes inspection of the subjects concerning which the articles were written. He wrote such articles in long hand, and, after same were set in type, read the proof, cut up the gálley sheets and pasted them in the “dummy.” Plaintiff further testified that before writing a special article for defendant on track elevation, which is included in the services for which recovery is sought, he examined said track elevation and made certain measurements in relation thereto.

The only question presented for our determination is, was plaintiff entitled to a judgment for wages as a laborer or servant, thereby giving him a preference in the payment of his claim against defendant?

It is defendant’s contention that, under the evi-. dence presented, plaintiff was not a laborer or servant within the meaning of chapter 38a, Hurd’s Rev. St. 1915 (J. & A. ft 7193 et seq.), which, so far as applicable, is as follows:

“That hereafter, when the business of any person, corporation, company or firm shall be suspended by the action of creditors, or be put into the hands of a receiver or trustee, then in all such cases the debts owing to laborers or servants which have accrued by reason of their labor or employment shall be considered and treated as preferred claims, and such laborers or employes shalf be preferred creditors, and shall be first paid in full, and if there be not sufficient to pay them in full the same shall be paid from the proceeds of the sale of the property seized.”

The Supreme Court in Heckman v. Tammen, 184 Ill. 144, said :

“* * * we are disposed to hold that the statute must be confined to these who perform manual services, * * *. P. & D. R. R. Co. v. Leuffer, 84 Pa. St. 168; Stryker v. Cassidy, 76 N. Y. 50; Palmer v. VanSantvoord, 153 N. Y. 612.” In Weymouth v. Sanborn, 43 N. H. 171, the court, in discussing a similar statute, defines a laborer as one who subsists by physical toil, in distinction from one who subsists by professional skill.

We are clearly of the opinion that plaintiff was not a laborer or servant in the sense contemplated by the statute and that the judgment to that extent is erroneous. The judgment of the Municipal Court will be reversed, and judgment entered here for $224, the plaintiff (defendant in error here) to pay the costs here.

Judgment reversed and judgment here.


author: Mr. Presiding Justice O’Connor

text:
    Estella M. Coster, Executrix, Appellee, v. Henry Ullrich, Appellant.
    Gen. No. 21,969.
    (Not to he reported in full.)
    Abstract of the Decision.
    Assumpsit, Action oe—when recovery may not he had under common counts. In an action of assumpsit to recover money alleged to be due, where it appeared that plaintiff’s testator and the defendant, who was engaged in the real estate business, had had various transactions together resulting eventually in an agreement to exchange the equity in a farm owned by the deceased, for certain lots, for the purchase of which the defendant held a contract, and where plaintiff filed special counts alleging that the money in question was due from the sale of a farm and that the defendant refused to account for the same, and there was no evidence to support such counts, and plaintiff then relied upon the common counts, held that, as plaintiff was seeking to recover purchase money paid on account of the farm and at the same time was retaining the contract for the purchase of the lots, there could be no recovery under the common counts.
    Appeal from the Superior Court of Cook county; the Hon. M. L. McKinley, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Reversed and remanded.
    Opinion filed May 9, 1917.
    Statement of the Case.
    Action in assumpsit "by Estella M. Coster, executrix of the estate of Henry P. Coster, deceased, plaintiff, against Henry Ullrich, defendant. From a judgment for $2,230 in favor of plaintiff, defendant appeals.
    Morton T. Culver, for appellant.
    Benjamin F. Bartel, for appellee.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.


text:
    Mary Louise King et al., Appellees, v. Fred J. Bush and Emma B. Shirley, Appellants.
    Gen. No. 22,007.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Appeal and error, § 1271

      —when presumed that evidence justified decree. On a bill of interpleader to determine which of several claimants was entitled to the proceeds of a benefit certificate, where the insured surrendered the certificate several times, and where the defendants contended that the decree was erroneous in failing to find the mental condition of the insured at* the time the certificate in which they were named as beneficiaries was surrendered, and that both the decree and the master’s report were silent upon such point, and that such error was not cured by a finding that the insured was of sound mind at a later date, and the record disclosed that the testimony before the master was made a part of his report and filed, but that it was not contained in the record on appeal, held that every intendment was in favor of the correctness of the decree, and that it must be assumed, in the state of the record, that if any finding such as was contended for had been necessary, the evidence justified a finding that the decedent was of sound mind at the time in question.

      Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Wíindes, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Affirmed.
    Opinion filed May 9, 1917.
    Statement of the Case.
    Bill of interpleader by the Boyal Arcanum, complainant, against Mary Louise King, Fred J. Bush and Emma B. Shirley, defendants, to determine title to the proceeds of a policy of insurance. From a decree in favor of defendant Mary Louise King, defendants Fred J. Bush and Emma B. Shirley appeal.
    Douglas C. Gregg, for appellants.
    Caswell & Healy and Thomas J. Healy, for appellees.

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

   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

2. Equity, § 515*—when specific findings of fact are unnecessary. Specific findings of fact in a decree are unnecessary where the evidence is preserved.


author: Mr. Presiding Justice O’Connor Mr. Justice Goodwin

text:
    United States Brewing Company, Appellee, v. Dolese & Shepard Company, Appellant.
    Gen. No. 22,015.
    1. . Impbovements, § 6*—what considered in determining value of improvements and cost. The rule that the reasonable value of improvements on real estate is to be determined by the enhanced value of the real estate on which the improvements are made has no application where such improvements are made at the special instance and request of the owner. In such case the proper method of valuation was to arrive at the value of the improvements and the cost at the time they were made, and the depreciation from the time of construction to the date in question.
    2. Assumpsit, Action oe, § 44*—when lies. An action of assumpsit to recover the reasonable value of improvements is equitable " in its nature, and lies whenever a defendant has obtained money or property of the plaintiff which, in equity and good conscience, he has no right to retain.
    3. Appeal and e¡brob, § 1725

      —when decision on former appeal is binding. The decision of the Supreme Court on a former appeal that an action lies to recover the reasonable value of improvements by a tenant is binding on a subsequent trial.
    4. Impbovements, § 6*—when owner of land liable for - reasonable value of. In an action of assumpsit by the erector and tenant of a building to recover the value thereof from the owner of the land, where the Supreme Court had on a former appeal decided that plaintiff was entitled to recover the reasonable value of such building as of a certain date, and where it appeared that the building had been erected at the defendant’s instance, and where the contract had been held ultra vires by the Supreme Court, but not malum in se nor malum prohibitum, and the building had been erected for use as a boarding house by the defendant without expense to it, and where the agreement of the parties contemplated payment to the plaintiff, held that, as the action being for the recovery of reasonable improvements was equitable in its nature, every principle of equity and fair dealing required that the defendant should pay the reasonable value, based upon the value and cost of the improvements when they were made and the depreciation from the time of construction to the date in question.
    5. Interest, § 20

      —when allowed, to person advancing money. Where, in an action of assumpsit by the erector and tenant of a building to recover the value thereof as of a certain date, plaintiff had tendered the improvements to the defendant on such date, and the money of the plaintiff had been advanced in the erection of the improvements for the use of the defendant, and defendant contended that the damages were unliquidated and that there had been no vexatious delay in payment, and that therefore plaintiff was not entitled to interest, held that under the circumstances and for the reason that the action was equitable in its nature, interest was properly allowed.
    Goodwin, J., dissenting.
    Appeal from the Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Affirmed.
    Opinion filed May 9, 1917.
    Rehearing denied May 24, 1917.
    William J. Pringle and Edwin Terwilliger, Jr., for appellant.
    Winston, Payne, Strawn & Shaw, for appellee; Walter H. Jacobs, of counsel.

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

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

   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

The United States Brewing Company, a corporation, brought suit against Dolese & Shepard Company, a corporation, in the Municipal Court of Chicago, and obtained a judgment for $11,103.07, to reverse which defendant prosecutes this appeal.

The evidence disclosed that plaintiff is a corporation chartered to manufacture and sell beer, ale and porter, and carry on a general brewer’s business; that the defendant is a corporation organized to quarry stone, and owns and operates quarries which are located in the country about fifteen miles from the business district of Chicago, not near any centers of population. In 1905, defendant employed at its quarries about one hundred or one hundred and fifty men who were housed in a boarding house erected by the defendant near its quarries. The building was old and out of repair, and it became necessary that a new and larger boarding house be erected, and the defendant thereupon employed an architect to prepare plans and specifications for such building. The defendant also prepared a contract with specifications and asked for and received bids from contractors on the proposed improvements. Shortly afterwards, and before any work was done on the building, defendant explained the location of defendant’s quarry and the necessity for a new boarding house, and suggested that plaintiff, at its own expense, construct the boarding house on defendant’s property, and use a part of the building as a saloon and thereby secure a market for its products. After-wards a written lease was entered into between the parties substantially embodying defendant’s proposition. The lease covered a period of about twenty-four years. It provided, among other things, that plaintiff would erect at its own expense, and maintain for the entire term, unless the lease was sooner terminated, the boarding house, at an estimated cost of $6,700; that if the building was damaged or destroyed by fire, plaintiff would rebuild and keep the same in good condition. The lease further provided that the defendant had the option at any time to cancel the lease upon five days’ notice in writing; that if such notice were given, appraisers should be appointed who should examine the premises, fixtures and contents of the building and arrive at a fair, just and reasonable valuation of the improvements, as of the time such examination was made; that upon the payment of the amount of the appraisal by defendant, plaintiff should surrender possession of the building, and it should thereafter belong to the defendant. There was a further provision that if the defendant elected to terminate the lease, within three years from the date, or if the district where the building was located should become prohibition or local option territory within such period, so that a saloon could not be operated in the building, “then no such appraisement shall be made but said first party shall pay to said second party the cost price of the building and improvements on said premises, such cost price not to exceed, however, the sum of $10,000. Said second party shall deliver, immediately upon payment, all receipts or copies thereof for all expenditures which might be a part of the above mentioned cost price. And failure to so deliver any such receipts or copies shall preclude said second party from including the amounts of any such receipts in said cost price.”

•In accordance with the provisions of the lease, the plaintiff constructed the improvements at its own expense, and thereafter the building was conducted as a boarding house and saloon. Within three years after the execution of the lease, at an election held Apri] 7,1908, the township of Lyons, within which the building was located, became prohibition or anti-saloon territory, and two days thereafter, plaintiff notified the defendant to that effect and demanded payment of $10,000, the cost price of the building and improvements, and offered to surrender the building upon such payment being made. Defendant asked plaintiff to produce the vouchers showing the expenditures made in the construction of the improvements, and they were sent to the defendant. Defendant failed to make the payment and this suit was broug’ht.

The declaration consisted of a special count on the lease, and the common counts. One of the defenses interposed was that the lease was ultra vires the plaintiff. The trial court sustained this contention, but held that plaintiff was entitled to recover the cost price under the common counts, and there was a judgment in favor of the plaintiff, from which the defendant prosecuted an appeal to this court, where the judgment of the Municipal Court was reversed, but the cause was not remanded (174 Ill. App. 394). A writ of certiorari was allowed by the Supreme Court, and the judgments of the Appellate and Municipal Courts were reversed and the cause remanded to the Municipal Court for a new trial (259 Ill. 274). The Supreme Court held that the lease or contract entered into between the parties was void, as it exceeded the charter powers of the plaintiff, but that plaintiff was entitled to recover the reasonable value of the building as of the time of the termination of the contract, May 7, 1908. Upon being redocketed in the Municipal Court, plaintiff withdrew the special count and the cause went to trial on the common counts. The trial was before the court without a jury, who found that the reasonable value of the building and improvements on May 7, 1908, was $8,250; that plaintiff was entitled to recover this sum, together with interest thereon at five per cent, per annum from that date.

Counsel for defendant have advanced numerous reasons why the judgment should be reversed, all of which we have carefully considered. All of the questions raised by the defendant, except one, are settled by the decision of the Supreme Court in this case, adversely to defendant’s contentions, and of course are not open for further discussion or argument.

The Supreme Court held that plaintiff was entitled to recover the reasonable value of certain improvements as of May 7, 1908. Counsel for defendant, however, contend that on this question the trial court adopted a wrong method in arriving at such reasonable value. Defendant’s position as stated by its counsel is: “If there can be any recovery at all, it is only for the enhanced value of the real estate due to the erection of the improvements thereon, on the theory that it has become a part of the real estate and title thereto has become vested in the defendant. All decisions uniformly hold that such recovery cannot be had by the erector of the improvements in an action brought by him, but that he is entitled to the enhanced value when suit is brought against him to deprive him of his possession of the real estate, and then the recovery is limited to the enhanced value.” In support of this contention counsel cite, among other cases, Williams v. Vanderbilt, 145 Ill. 238, where it is said (p. 251):

“There was here no express contract between appellant and appellee, nor do we think there is any implied contract to pay for the repairs or improvements. As a general rule, improvements of a permanent character, made upon real estate and attached thereto, without the consent of the owner of the fee, by one having no title or interest, become a part of the realty and vest in the owner of the fee. (Mathes v. Dobschuetz, 72 Ill. 438.) In equity, where one makes improvements innocently, or through mistake, upon the land of another, he will not ordinarily be allowed to enforce a claim for reimbursement as an actor; but when the true owner seeks relief in equity, as, for instance, to set aside a sale of the land on which the improvements have been made, or to obtain an accounting for rents and profits, he may be required to make compensation for the improvements upon the principle that he who seeks equity must do equity. (Ebelmesser v. Ebelmesser, 99 Ill. 541; 3 Pom. Eq. Jur. sec. 1241 and note.) Even in such case, compensation will only be allowed for the increased value caused by the improvements.”

Counsel’s position, as stated by him, is undoubtedly the law, but manifestly has no application to the facts in the case at bar. His position is that where a person erects improvements on the land of another without the owner’s consent he cannot maintain an action to recover for the improvements—he cannot become an actor. In the case at bar, the improvements were erected by plaintiff not without defendant’s- consent, but at defendant’s special instance and request, and our Supreme Court in this very case has specifically held that plaintiff can maintain his action—can become an actor to recover the reasonable value of the improvements so made. It is clear, therefore, that defendant’s contention that the reasonable value of the improvements is to be determined by the enhanced value of the real estate is not applicable to this case.

Witnesses testified on behalf of plaintiff to the value of the improvements and the cost thereof at the time they were made, and also the depreciation from the time of the construction to May 7, 1908, which testimony tended to establish the value of the building on the latter date. This, in our opinion is the proper method, under the facts in this case, of determining the reasonable value of the improvements. Substantially the same method was followed in the case of Pullman’s Palace Car Co. v. Central Transp. Co., 171 U. S. 138, cited by the Supreme Court in its opinion in this case.

The instant case is an action of assumpsit to recover the reasonable value of the improvements. Such an action is equitable in its nature, and lies whenever defendant has obtained money or property of the plaintiff, which, in equity and-good conscience, he has no right to retain. Trumbull v. Campbell, 8 Ill. (3 Gilm.) 502; Board Sup’rs Stephenson Co. v. Manny, 56 Ill. 160; Crawford v. Schmitz, 139 Ill. 564; Fay v. Slaughter, 194 Ill. 157.

In the Crawford case, supra, it was held that the action of assumpsit was of an equitable nature, in which plaintiff may recover from the defendant what in equity and good conscience he ought not to retain; and in the Fay case, supra (p. 163), the court said:

“This is an action upon the common counts for money had and received. It is in the nature of an equitable proceeding at law. ‘ The principle governing in such case is, that the possession of money has been obtained which cannot conscientiously be withheld. Such an action is designed for the advancement of justice, and it is applicable where a person receives money which in equity and good conscience he ought to refund.’ ”

Applying the rule as announced by the Supreme Court to the facts in the case at bar, we find that the defendant found it necessary to construct a new and larger boarding house to house its men near its quarries; that it had employed an architect who prepared plans and specifications; that it solicited and received bids for the construction of the boarding house; that at its own instance and request plaintiff was induced to enter into the invalid contract, which the Supreme Court held was not malum in se nor malum prohibitum, but was only beyond the charter powers of plaintiff; that the boarding house was constructed and paid for without expense to the defendant. Under these circumstances every principle of equity and fair dealing requires that the defendant should pay the reasonable value thereof, to the plaintiff, according to the method adopted by the trial court.

Defendant next contends that the court erred in allowing interest, on the ground that interest is never allowable except by statute; that the damages were unliquidated, and there was no unreasonable or vexatious delay in payment. Plaintiff tendered the improve-merits to the defendant May 7, 1908; the reasonable value of them was fixed as of that date, and plaintiff having advanced the money for the use of the defendant, and this action being equitable in character, plaintiff was entitled to interest. Leigh v. American Brake-Beam Co., 205 Ill. 147; Brennan v. Gallagher, 199 Ill. 207; St. Patrick’s Catholic Church of Sterling v. Daly, 116 Ill. 76; Cease v. Cockle, 76 Ill. 484; Perin v. Parker, 126 Ill. 201.

The judgment of the Municipal Court of Chicago is affirmed.

Affirmed.

Mr. Justice Goodwin

dissenting:

I am unable to concur in the conclusions reached by the majority of the court. As the building in question was put upon the premises by appellee under an ultra vires contract, it cannot resort to the terms of that contract in determining the amount which it is entitled to recover. It would seem to be clear that as the contract was ultra vires it must, so far as the matter of a recovery is concerned, be treated as a nullity. Appellant and appellee entered into an illegal agreement, the result of which was that on a certain day appellant came into possession of a building constructed by appellee. The Supreme Court has decided that in the circumstances appellant is obligated to pay appellee the value of the building; this, as the Supreme Court pointed out, does not necessarily mean its cost, since obviously the building, at the time it came into possession of appellant, might be entirely useless, or worth even more than its original cost. The Supreme Court, it seems to me, has placed appellant in the same situation as any party to an illegal contract, who has, under its terms, come in the possession of money or property for which the other party has received no compensation. In such a case, no resort can be had to the terms of the contract, but the party unjustly enriched must restore the money in the one case, or pay the reasonable value of the property in the other. The reasonable value of property, real or personal, is, of course, what it is worth when it is put to its highest and best use. Presumably, a building is worth most as an improvement to the real estate upon which it is placed, although this, of course, is subject to exceptions. Appellee offered evidence of the cost of the building less depreciation, while appellant offered proof of the extent to which they increased the value of the premises. Appellant’s testimony, although uncontradicted, was disregarded, and a judgment entered for the cost of the improvement less depreciation, although there was no evidence that the property had any value except as an improvement to the realty upon which it was placed.

For the reasons already indicated, I am of the opinion that this action of the court was erroneous. I am also of the opinion that the recovery in this case is not for “money lent or advanced for the use of another,” and that the case in no way comes within the terms of the statute in regard to interest, and that, in consequence, the inclusion of interest was also erroneous.


text:
    David Levi et al., Appellees, v. Charles R. Beadles and Robert D. Beadles, Appellants.
    Gen. No. 22,023.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Mortgages, § 532

      —when decree of foreclosure affirmed in part. On a bill to foreclose a trust deed where such foreclosure was denied on the ground that the trust deed had not been purchased by the complainant but that he had obtained possession thereof by subterfuge, and foreclosure of a mortgage in the nature of a warranty deed given as security was decreed in favor of complainant; allowances being made in the decree to various parties for moneys due in connection with the carrying on of the various transactions and the erection of a building on the premises, and both parties being dissatisfied an appeal was perfected by one and cross-errors assigned by the other, held that the decree should be affirmed excepting as to a certain allowance for master’s fees.

      Appeal from the Circuit Court of Cook county; the Hon. Adecor J. Petit, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Affirmed in part, reversed in part and remanded with directions.
    Opinion filed May 9, 1917.
    Rehearing, denied May 22, 1917.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Bill by David Levi and others, complainants, against Charles B. Beadles and Robert D. Beadles, defendants, to foreclose a trust deed. From a decree awarding a foreclosure in the form of a warranty'deed given as security, defendants appeal and complainant Levi assigns cross-errors.
    Henry W. Leman and Frank H. Culver, for appellants.
    Grossberg & Haffenberg, for appellee Levi.

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

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

   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

2. Equity, § 401*—when taxing of master’s fees as costs is improper. On a bill to foreclose a trust deed where such foreclosure was denied, but foreclosure of a mortgage in the form of a warranty deed given as security was decreed and claims of various parties for moneys due in connection with the carrying on of the various transactions and the erection of a building on the premises were determined, and it appeared that the master who took the testimony and made his report died prior to the entry of the decree, and the court requested another master to draft the same, and there appeared to have been no order of reference to the latter master, held that the taxing of an allowance of $250 for the drafting and redrafting of such decree as costs was improper.

3. Equity, § 396 —when increase in allowance of fees to master is proper. On a bill to foreclose a trust deed where such foreclosure was denied, but a foreclosure of a mortgage in the form of a warranty deed given as security was decreed, and claims of various parties for moneys due in connection with the making of the various transactions and the erection of a building on the premises were determined, and defendant claimed that it was error to allow $2,500 to a master who had only requested $2,000, and it appeared that before such master had prepared his report and before he had made up an estimate of charges he died, and his successor filed a supplemental report itemizing the services rendered by the deceased master and stating that in his opinion such services were reasonably worth $2,000, held that the amount of fees to be allowed to a master as stated in his report was not conclusive on the chancellor, and that he might decrease or increase them, and as the record was in six parts and was certified as having been prepared per prcecipe, the court was unable to say whether the record was complete, and that it could not say that the allowance was not authorized.

4. Costs, § 8*—when assessment against complainant is proper. Where foreclosure of a trust deed was denied to the complainant but foreclosure of a mortgage in the nature of a warranty deed given as security was awarded to him, and such complainant objected to the assessment to him of $1,500 of the costs incurred before the master, held that as it appeared that such complainant had obtained possession of the trust deed which he sought to foreclose by subterfuge, and that a large part of such expense' was incurred by reason of the attempt to uphold the pretended sale of such trust deed to the complainant, such objection was untenable.


text:
    Peter Prevenas, Appellee, v. Kalodimos Brothers Ice Cream & Candy Company, Appellant.
    Gen. No. 22,030.
    (Not to he reported in full.)
    Abstract of the Decision.
    1. Judgment, § 277

      —when motion to set aside decree is properly denied. A motion to set aside a decree, held properly denied as within the discretion of the court where it was based on the affidavit of an officer of defendant corporation that the attorney who had charge of the case died and the files were lost or destroyed and certain legal matters were turned over to its present counsel; that he supposed the interests of defendant were being looked after 'and he did not learn of the decree until about one month thereafter, and defendant’s counsel made affidavit that defendant turned over to him several cases; that employees of the former attorney turned over to him all files except those in the case in question; that he did not fully 'understand the ease was on the calendar, and it appeared that a copy of notice to reinstate was served on the defendant; that the transactions involved the purchase of a store and that payments had been made under the contract and possession taken.

      Appeal from the Circuit Court of Cook county; the Hon. Thomas ' G-. Windes, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Affirmed.
    Opinion filed May 9, 1917.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Bill by Peter Prevenas, complainant, against Kalodimos Brothers Ice Cream & Candy Company and Peter Kaperonis, defendants, to enjoin the sale, assigning or incumbering of a fruit and candy store sold by defendant Kalodimos Brothers Ice Cream & Candy Company to complainant and taken possession of under a chattel mortgage. From an order overruling a motion to vacate a final decree for complainant, defendant Kalodimos Brothers Ice Cream & Candy Company appeals.
    Thompson, Tyrrell & Chambers, for appellant.
    Louis Brandes, for appellee.

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

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

   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

2. Account, § 40 —when accounting properly heard hy chancellor. Where an accounting consists of but two items, it may be heard before the chancellor without a reference to a master.


author: Mr. Justice Goodwin

text:
    J. F. Dougherty, Appellee, v. Frederick Becklenberg, Appellant.
    Gen. No. 21,916.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Joseph E. Ryan, Judge, presiding. Heard in the Branch Appellate Cdurt at the October term, 1915.
    Affirmed.
    Opinion filed May 9, 1917.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Action by J. F. Dougherty, plaintiff, against Frederick Becklenberg, defendant, to recover a real estate commission. From a judgment for plaintiff for $3,125, defendant appeals.
    Sonnenschein, Berkson & Fishell and Edward H. Morris, for appellant.
    William McKinley, for appellee; A. A. McKinley and Luther F. Binkley, of counsel.

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

   Mr. Justice Goodwin

delivered the opinion of the court.

Abstract of the Decision.

1. Brokers, § 88 —what constitutes prima facie case in action for commissions. In an action to recover a commission on a certain real estate deal, where defendant agreed to pay plaintiff a certain commission upon consummation of the deal, a prima facie case held to be made out when plaintiff showed a contract for the sale of the land formally executed by the parties and accepted by the defendant, notwithstanding the defendant later refused to carry out the contract.

2. Corporations, § 431*—when word in signature is deseriptio persona. The word “treasurer” after the name of an officer of a corporation is deseriptio persona.

3. Corporations, § 430*—what is sufficient signature to agreement. The name of a certain company to a certain agreement, held to be sufficient if placed there by a person authorized to act for the company, even though the signature of the person acting as the company’s agent did not itself appear.


text:
    American Metal Company, Appellee, v. U. S. Reduction Company, Appellant.
    Gen. No. 21,925.
    (Not to be reported in full.)
    Appeal from the County Court of Cook county; the Hon. J. J. Cooke, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Affirmed.
    Opinion filed May 9, 1917.
    Rehearing denied May 22, 1917.
    Statement of the Case.
    Action by the American Metal Company, plaintiff, .against the U. S. Reduction Company, defendant, to recover for the breach by defendant of a contract for the purchase of 150 tons of antimonial lead. From a judgment for plaintiff for $807.67, defendant appeals.

      Abstract of the Decision.
    1. Sales, § 114

      —when refusal to accept shipments constitutes breach of contract. Where defendant contracted to purchase of plaintiff certain “Newark antimonial lead, running approximately from 15% to 18% antimony and not above 1% arsenic,” and accepted a certain quantity shipped but refused to accept further shipments unless they were found to be absolutely free from copper, and defendant’s witnesses testified no antimonial lead is produced “absolutely free of copper,” and there was no evidence that the amount of copper supposed to be in the antimonial lead was sufficient to impair its value or render it unsuitable to defendant’s purposes, held that defendant’s refusal to accept shipments unless found to be absolutely free from copper constituted a breach of the contract for, which plaintiff would be entitled to recover.
    2. Sales, § 65*—what is effect of provision in contract as to prohibition of given substance in ore. The expression in a contract of a prohibition against the presence of a given substance in ore sold would, under ordinary canons of construction, exclude any implied exclusion of any other substance.
    Silber, Isaacs, Silber & Woley, for appellant.
    Felsenthal & Wilson, for appellee.

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

   Mr. Justice Goodwin

delivered the opinion of the court.