text:
    Auguste Wende, Administratrix, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 20,307.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Kick-ham Scanlan, Judge, presiding. Heard in this court at the March term, 1914.
    Affirmed.
    Opinion filed March 29, 1915.
    Statement of tlie Case.
    Action by Auguste Wende, administratrix of the estate of Ella Wende, deceased, against Chicago City Railway Company, a corporation, defendant.
    The action was brought under the “Campbell Act” of the State of Illinois by the administratrix of Ella Wende for the benefit of her next of kin. The original declaration in four counts was filed August 10, 1911. A demurrer to this declaration and each count thereof having been sustained,' an amended declaration in four counts was filed November 10, 1911. In each of the counts of this amended declaration it was charged that the defendant, the Chicago City Railway Company, on May 14, 1911, by its negligence caused the death of Ella Wende, a girl of the age of nine years, while she was attempting to cross the tracks of the defendant at or near the intersection of Sixty-Ninth and Justine streets in the city of Chicago.
    The first count charged that the defendant “by its servants so carelessly, negligently and improperly . drove,, managed and propelled a certain trolley car that it ran down and killed Ella Wende.
    The second count specified the alleged negligence in managing the car to be “that the servants in charge of said car in approaching the said crossing known as' Justine street failed to ring the gong or give any warning of the approach of said car at or near the said crossing”; that the motorman of said car “failed to give warning of the approach of said car to those who were then and there about to cross said tracks at or near Justine street.”
    The third count alleged “that the said defendant by its servants were then and there driving in an easterly direction a certain trolley car along the said West 69th street * * * and while the said deceased, Ella Wende * * * with the due care and diligence of a child of nine years of age was * * * attempting to cross the tracks of the said defendant, said Ella Wende fell directly in front of the fender in front of the said car,” and “that at the time aforesaid there was a valid existing ordinance of the said City of Chicago which made it the duty of the defendant to provide a useful and efficient and serviceable fender, and that at the said time and place there were valid existing city ordinances, which ordinances are in the words as follows:
    “Sec. 1963. Fenders. Every person or corporation controlling, operating or owning any street railway in the City shall equip and provide each and every car used on such street railway with fenders of steel and of the basket kind, which said fenders shall be substantially attached to the front end of such car so as to guard passengers or pedestrians from being’ injured or thrown under the wheels of the car in case of a collision or other accident, provided, however, that where such cars are operated in trains or where such car is attached to a grip car or other car such fender need only be provided upon the grip car or front car of such train. ’ ’
    Also:
    “An Ordinance Authorizing the Chicago City Railway Co. to construct, maintain and operate a system of Street Railways in Streets and Public Ways of the City of Chicago. (Passed by the City Council of The City of Chicago Feb. 11,1907.)
    Sec. 10. All cars shall be equipped with efficient and serviceable fender devices, headlights and sandboxes;” and that “it hecame and was the duty of the defendant to observe and conform to the said City ordinances and to have upon its said car a proper, useful and serviceable and efficient fender;” that “if the said defendant had complied with the ordinances aforesaid and had had such a fender upon the car, Ella Wende would not have been killed or seriously injured; that on the contrary such a fender would have protected and saved the deceased;” but that the defendant “failed to comply with the terms of the said city ordinances and had then and there upon the said car an old, defective, useless and non-efficient fender,” and “the said fender when the deceased struck it failed to work properly, whereby the body of plaintiff’s intestate was permitted to get under the trucks and other parts of the car and thereby the plaintiff’s intestate was killed.”
    The fourth count, which alleged defects in the roadbed of the defendant, was, during the trial, withdrawn by an order of discontinuance as to the same, made at the instance of the plaintiff.
    On April 2, 1913, leave was given to the plaintiff “to amend the third amended count in the declaration filed in said cause” and a paper was filed entitled in the cause and headed: “Amendment to 3rd Amended Count.” It proceeded:
    ‘ On page 8, last paragraph extending on page 9 of Amended Declaration strike out the following:
    Sec. 1963. Fenders.” (Then follows the Section as we have before given it) “and insert in its place the following:
    Section 2165. Fenders : Every person or corporation controlling, operating or owning any street railway in the city shall equip and provide each and every car used on such'street railway with fenders, which shall be of a type and design satisfactory to the Commissioner of Public Works and which shall be securely attached to the front end of such car so as to guard passengers or pedestrians from being injured or thrown under the wheels of such car in case of a collision or other accident.”
    Defendant filed a plea of the statute of limitations to “the third count of the amended declaration as amended, ’ ’ to which plea plaintiff filed a demurrer.
    An order overruling plaintiff’s demurrer to defendant’s plea of the statute of limitations was entered September 15, 1913, before the beginning of the trial, as follows:
    “On motion for defendant it is ordered that the demurrer of the plaintiff to the Plea of the Statute of Limitations filed by the defendant April 4 is overruled. Plaintiff objects and excepts to ruling of Court and elects to stand by demurrer. On motion of attorney for defendamt suit dismissed as to the amendment to the third amended count filed by plaintiff on April 2, 1913, and issues being joined herein it is ordered that a jury come, etc.”
    During the trial objections to evidence concerning fenders were made by the defendant’s counsel on the ground that the third count of the amended declaration was no longer in the case, but they were overruled by the trial judge. On the hearing of the motion for a new trial, counsel for the defendant insisted on the point, but the Court replied to him that the “plaintiff tried to amend the third count but did not amend it. The plea of the statute was sustained as to that amendment. * * * The plaintiff did not attempt to draw an amended third count. He simply attempted to file an amendment to the third amended count. You already had a plea of the general issue to the third amended count.” After an extended discussion the Court said:
    “There is no question that the Court held the third amended count of that date was still in the case. The case was tried on that theory. * * * It was assumed all through the case that the third amended count was in the case. ’ ’
    After full consideration of the matter by the trial judge he entered the following order October 18, 1913:

      “On motion of the attorney for plaintiff the order made and entered September 15,' 1913, by the Court is hereby amended and corrected so as to read as follows :
    On motion of defendant it is ordered that the demurrer of the plaintiff filed May 12, 1913, to the plea of the statute of limitation filed April 4, 1913, is overruled, to which ruling the plaintiff excepts and elects to stand by his demurrer.
    Defendant asks for judgment on the plea of the Statute of Limitation filed April 4, 1913, and that the suit be dismissed as to the third amended count filed November 10, 1911, as amended April 2, 1913, and the Court denies the motion of the defendant to dismiss the suit as to third amended count filed November 10, 1911, as amended April 2, 1913, to which ruling defendant excepts and the Court dismissed the suit as to the amendment to the third amended count filed April 2, 1913; and the Court further orders that the third amended count filed November 10, 1911, and the plea of the general issue of defendant thereto and the replication of the plaintiff thereto stand, to which the defendant excepts and thereupon the defendant moves the Court to vacate the foregoing order, which motion is by the Court continued.”
    November 28, 1913, the motion last referred to was denied in a “judgment order” entered on that day, which reads in the transcript of record before us as follows:
    “Augmste Wende, Administratrix of the Estate of Ella Wende, deceased,
    vs. Case No. 306672.
    Chicago City Eailway.
    On motion of attorney for plaintiff motion of deft, to vacate order of Oct. 18, 1913, denied. Exception by deft. Motion of plff. to file additional count to conform to proof denied. Exception by plff.
    Motion for a new trial denied. Exception by defendant. Motion in arrest of judgment by deft, denied. Exception by deft. Judgment on verdict $3000. Three Thousand Dollars and costs of suit. Exception by deft. Appeal prayed by defendant and allowed to Appellate Court, first district, bond $3500.00 thirty days and bill of exceptions in thirty days. $3000.”
    The plaintiff did not offer the ordinance set forth in the count under the heading “See. 1963,” but did offer that portion of section 10 of the Franchise Ordinance, so-called, which was also set forth in that count; and although the counsel for the defendant objected to its introduction on the ground that 11 count three ’ ’ was “out of the pleadings,” yet when the trial judge promptly signified, not only that he considered the third.count of the declaration of November 10, 1911, in the cause, but as presenting a very important issue therein, the counsel for the defendant as promptly met that position with contentions centering on fenders and the rights and duties of the Company under the ordinances in relation thereto.
    The counsel for defendant during the trial offered in evidence parts of the “franchise ordinance,” or asked counsel to stipulate that parts of the same ordinance should go in the record for the benefit of the defendant, and cross-examined the witnesses of plaintiff on the fender question,” and argued the matter to the jury.
    The evidence showed that the body of the child was found under the fender of the car. The evidence concerning the fender was that it was of the approved and required style. Plaintiff contended that if it did not work properly it was the fault of that particular fender which rendered it “unserviceable and inefficient;” that the car was just coming from the barn and should have been properly equipped.
    Defendant contended that the fender was in order, and it introduced evidence to the effect that this automatically working fender had actually worked as it was intended to when it had struck the body of the child; that the “apron,” that part which strikes the object on the tracks, had been thrown back and had caused the basket part of the fender, designed to pick the object from the tracks before the wheels could pass over it, to be thrown down and to lie upon the rails. It contended also that the probable reason that the girl’s body went under it was that her hand or foot had fallen into a depression between the tracks.
    Abstract of the Decision.
    1. Street railroads, § 131

      —when evidence insufficient to show negligence in operation. Where, in. an action for the death of a child, alleged to have been caused by defendant’s negligence in operating its car, in running it at an improper rate of speed and not .ringing its gong, the weight of the evidence shows that the motorman was attending properly to his duties; that the car was not running at an improper rate of speed; that, even if the gong was not sounded, the circumstances were not such as to make the omission to ring it negligence; that when the child’s danger was known to the motorman, the motorman tried to warn her and made every possible effort to stop the car, defendant cannot be held negligent

      The evidence was conflicting concerning the fender and its situation immediately after the accident. Witnesses for the plaintiff testified that the fender was ‘/up,’,’ not “down,” after the accident, which amounted in effect to saying that it “had failed to work,” which indeed was the definite statement of one witness,.which statement, however, was stricken out by the court as a conclusion and incompetent. The same witness testified that he saw an employee of the defendant put the fender down after the accident.
    To reverse a judgment for plaintiff for three thousand dollars, defendant prosecutes this appeal.
    Busby, Weber, Miller & Robinson, John E. Kehoe and Arthur J. Donovan, for appellant; Leonard A. Busby and J. B. Guilliams, of counsel.
    Alexander H. Heyman, 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. Presiding Justice Brown

delivered the opinion of the court.

2. Appeal and error, § 1571 -—when irregularity in entry of judgment not ground for reversal. Even though the form in which a judgment is entered is deficient and irregular, such deficiency and irregularity is not ground for reversal.

3. Pleading, § 223*—what effect of overruling of demurrer to count of amended declaration. Where a plea of the statute of limitations filed to the count of a declaration as amended is demurred to and the demurrer is overruled and plaintiff elects to stand by the demurrer, there is, under the strict rules of pleading, no issue of fact left on that count or any part of it for the jury to try.

4. Appeal and ebbob, § 1590*—when error in procedure not ground for reversal. Where a demurrer is filed to a count of. the original declaration and the plaintiff amends and issue is joined, after which plaintiff files an amendment to the amended count, whereupon defendant pleads the statute of limitations to the “count of the amended declaration as amended,” to which plaintiff demurs and,' upon the demurrer being overruled, elects to stand by it, and in the course of the trial both parties and the court treat the ruling of the court on the demurrer as applying only to the final amendment and not to the count as it originally stood in the amended declaration, such error and irregularity in procedure is not ground for reversal.

5. Stkeet baxlboads, § 133*—when insufficiency of fender question for jury. In an action to recover for the death of a child run over by a street car, alleged to have been caused by defendant street car company’s failure to provide a sufficient fender, where there is evidence from which the jury might, as reasonable men, have concluded that defendant had failed to have an efficient and serviceable fender at that time, and that this was negligence which resulted in the death, a verdict for plaintiff’s intestate will not be disturbed.

6. Negligence, § 191*—when question for jury. In an action to recover for death by wrongful act, negligence and contributory negligence are peculiarly questions for the jury.

7. Negligence, § 106*—when negligence cannot he imputed to parent. In an action to recover for the death of a nine-year-old child run over by a street car in crossing the track on an errand for her mother, negligence cannot be imputed to the father who had no part in sending the child upon the errand.

8. Negligence, § 202*—when not imputed to parent as matter of law. It cannot be held negligence, as a matter of law, for a mother to send a normal child nine years of age a few blocks through uncrowded streets on a necessary household errand.

9. Negligence, § 230*—what instruction proper as to degree of care required of infant. In an action to recover for the death of a nine-year-old girl run over by a street car, an instruction that the due care and caution required of the child was “that which might reasonably be expected under the same or like circumstances of a girl of” a given “age, experience and capacity to comprehend and avoid the danger,” is proper.

10. Negligence, § 95*—what degree of care required of child. In an action to recover for the death of a nine-year-old girl run over by a street car in crossing the track, the risk taken by her in allowing herself insufficient time to escape and in crossing the track elsewhere than at a street intersection cannot be judged as in the case of an adult, but there must be taken into account her “age, experience, intelligence and capacity.”

11. Negligence, § 201*—when negligence of child a question for jury. In an action to recover for the death of a nine-year-old child run over by a street car, where the evidence is conflicting as to whether or not the accident was due to the negligence of deceased, the question is for the jury.


source: Caselaw Access Project

author: Mr. Presiding Justice Brown

license: Public Domain

text:
    Benjamin R. Cahn, Appellee, v. Northwestern Mutual life Insurance Company, Appellant.
    Gen. No. 20,353.
    1. Appeal and error, § 269

      —when judgment for portion of amount claimed final. A judgment on an affidavit of merits of the defendant for a portion of the amount claimed by the plaintiff taken under section 55 of the Practice Act of 1907 (J. & A. ¶ 8592) is a final judgment and appealable.
    2. Pleading, § 232*—when permission to file amended affidavit of merits in discretion of court. It rests within the discretion of the trial court to allow a second amended affidavit of merits to be filed after the original affidavit and an amended affidavit have been stricken on motion of plaintiff.

      3. Appeal and error, § 966

      —when proceedings after appeal perfected not reviewed. Where an appeal has been perfected from a judgment on an affidavit of merits of the defendant, the Appellate Court will not consider an order of the trial court made thereafter overruling a demurrer to counts of the declaration.
    Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding. Heard in this court at the March term, 1914.
    Reversed and remanded.
    Opinion filed March 29, 1915.
    George H. Noyes and Herrick, Allen & Martin, for appellant.
    Silber, Isaacs, Silber & Woley, for appellee; Frederick D. Silber, of counsel.
    Statement by the Court. November 15, 1913, the plaintiff, Cahn, sued the defendant, the Northwestern Life Insurance Company, in an action of assumpsit in the Circuit Court of Cook county. November 21, 1913, he filed a declaration in four counts. The first three were special counts setting up an alleged liability on a certain policy of life insurance. The fourth was “indebitatus assumpsit” on the consolidated common money counts. With his declaration he filed an affidavit of claim in which he swore .that the defendant was indebted to him “in the sum of $6245.50, together with interest thereon at the rate of five (5) per cent, per annum from December 11, 1911, to the date of judgment herein upon a policy of life insurance” attached to the declaration as an exhibit. Such an exhibit was attached.
    December 16, 1913, a general and special demurrer was filed by the defendant to the first, second and third counts of the declaration, with an affidavit of an agent of the defendant that the demurrer was not interposed for delay, and a certificate of counsel that in their opinion it was well founded in law. At the same time a plea of nonassumpsit was filed by the defendant to the fourth count of the declaration, together with an affidavit of an agent of the defendant that he verily believed that the defendant had “a good defense upon the merits to the whole of the plaintiff’s demand set out in the fourth count of the plaintiff’s declaration.”
    December 23, 1913, the court on the motion of the plaintiff entered an order striking the said affidavit of merits from the files and ruling the defendant to file a new affidavit of merits within seven days.
    December 29, 1913, the defendant filed an amended affidavit of merits made by its agent, in which he supplemented the statement set forth in his affidavit of December 16th with the statement that “the nature of such defense is that the claim of said plaintiff as shown by his affidavit of claim is upon a policy of life insurance, that no recovery can be had upon such policy under said fourth count and that defendant is not indebted to said plaintiff as to said fourth count, nor was said defendant at the time of the commencement of this suit or at any other time so indebted. ’ ’
    January 3,1914, on motion of the plaintiff, the court struck this amended affidavit of merits from the files and granted leave to the defendant to file a new affidavit of merits within ten days.
    Seven days thereafter, on January 10, 1914, the plaintiff moved the court “to enter judgment in his favor and against the defendant upon the plaintiff’s affidavit of claim * * * for the sum of $6245.50, together with interest on said sum at five per cent per annum from December 11, 1911, to the date of the entry of such judgment; said judgment to be entered by default for want of a legal and sufficient affidavit of merits,” etc. The motion was denied. To the denial the plaintiff excepted.

      January 12, 1914, the defendant filed an affidavit by its same agent, the material parts of which are as follows :
    “FIRST: That affiant verily believes that the defendant has a good defense upon the merits to the whole of the plaintiff’s demand set out in the fourth count of the plaintiff’s declaration herein; that the nature of such defense is, that the claim of the plaintiff is as shown by his affidavit of claim upon a policy of life insurance, a copy of which is attached to the declaration herein; that said policy cannot be introduced in evidence by the plaintiff under said fourth count; that no recovery by the plaintiff can be had upon such policy under said fourth count, and that the defendant is not indebted to the plaintiff under said fourth count, nor was the defendant at the time of the commencement of this suit or at any other time so indebted.
    SECOND: Affiant further says that even if said policy may be introduced in evidence by the plaintiff under said fourth count and any recovery thereon by the plaintiff had under said fourth count, affiant verily believes that the defendant has a good defense to this suit upon the merits to all of said plaintiff’s demand except the sum of Two Thousand Three Hundred Ninety-six and 98/100 Dollars ($2,396.98) and that the nature of such defense is as follows:
    That pursuant to the terms of said policy, the plaintiff on or about the eleventh (11th) day of December, 1911, elected, as between certain options given to the plaintiff by paragraph ten (10) of said policy to withdraw in cash the accumulated surplus apportioned by the defendant to said policy, leaving said policy full paid for its face; that the accumulated surplus was as provided in said policy duly apportioned by the defendant to said policy and that the amount so apportioned by the defendant thereto was the sum of Two Thousand Three Hundred Ninety-six and 98/100 Dollars ($2,396.98); that under the provisions of said policy the amount and the only amount which the plaintiff would in any view be entitled to recover on said policy would be said amount of Two Thousand Three Hundred Ninety-six and 98/100 Dollars ($2,396.98), so apportioned to said policy; that said amount of Two Thousand Three Hundred Ninety-six and 98/100 Dollars ($2,396.98) was prior to the commencement of this suit duly tendered by'the defendant to the plaintiff, and that said amount so tendered to the plaintiff he refused to receive.
    Affiant further says that the defendant never at any time stated or represented to the plaintiff or promised the,plaintiff, either in writing or otherwise, that the defendant would pay to the plaintiff the tentine surplus accruing under said policy in the sum of ¡Six Thousand Two Hundred Forty-five and 50/100 Dollars ($6,245.50), or any other amount except the amount apportioned by the defendant to said policy, which said amount so apportioned was, as hereinbefore stated, the said sum of Two Thousand Three Hundred Ninety-six and 98/100 Dollars ($2,396.98); and that the defendant never made any promise or guaranty to the plaintiff to pay any other sum or perform any obligation other than as stated in said policy.”
    January 16, 1914, on motion of the plaintiff, the pleadings standing as before stated, and without offer of evidence from either party, the court entered the following order:
    “This cause coming on to be heard this day upon the motion of the plaintiff for judgment against the defendant upon the amended affidavit of merits filed by the defendant on January 12, 1914:
    And it appearing to the Court that the defendant in and by said amended" affidavit of merits admits that there is due to the plaintiff the sum of $2,396.98, and that said indebtedness arose on December 11,1911, and is now due and owing to the plaintiff;
    And the Court having heard argument of counsel and being fully advised in the premises;
    It is ordered that the plaintiff, Benjamin R. Cabo, do have and recover of and from the defendant, Northwestern Mutual Life Insurance Company, a corporation, the sum of $2,396.98, together with interest tipon said sum at five per cent, per annum from December 11, 1911, to this date, amounting to the further sum of $249.70, making a total of $2,646.68, for which sum last aforesaid the Court does here and now enter judg*ment in favor of plaintiff and against the defendant under Section 55, Chapter 110, of the Revised Statutes.
    And it is further ordered that the plaintiff shall have execution for the said sum of $2,646.68 damages.
    It is further ordered that this cause shall proceed as to that portion of the demand of the plaintiff in dispute as if this suit had been brought therefor.”
    From this judgment the defendant appealed to this court. The appeal was perfected by the filing of an appeal bond and the approval of the same February 7, 1914.
    On February 28, 1914, the Circuit Court overruled the demurrer that had been filed to the first three counts of the declaration and ordered the defendant to plead to said declaration within twenty days.
    March 4, 1914, the appellant filed a transcript of record in this court, showing only the proceedings in said cause up to the time of perfecting its appeal. On this transcript the appellant assigned as error the rendering the judgment, the allowance of interest, the allowance of the motion for judgment on the amended affidavit of merits filed January 12, 1914, and the findings that said amended affidavit of merits admitted that $2,396.98 was due to the plaintiff or that said indebtedness or any indebtedness arose on December 11, 1911.
    The appellee assigned as cross-error on the same transcript that the Circuit Court erred in denying the motion of appellee on January 10, 1914, for judgment on the appellee’s affidavit of claim, that it erred in granting leave to file a second amended affidavit of merits after striking the original affidavit and the first amended one from the files for insufficiency, and that it erred in entering judgment for $2,396.98 and interest instead of for $6,245.50, the amount alleged to be due appellee by his affidavit of claim.
    The appellee suggested a diminution of the record and on March 9, 1914, filed a supplemental record, which contained the order of the Circuit Court of February 28,1914, overruling the demurrer to the declaration.
    March 11,1914, the appellee filed in this court a motion to dismiss the appeal on the ground that the judgment appealed from rendered under section 55 of the Practice Act of June 3,1907, for a portion of the plaintiffs demand only, was an interlocutory and not a final and appealable one. This motion was reserved by the court to the hearing.

      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 Brown

delivered the opinion of the court.

Although this appeal has been somewhat elaborately argued on both sides, the prefixed statement shows that the questions involved are few and simple.

The motion made by the appellee to dismiss the appeal is denied. We have before had occasion to consider the final character of a judgment like the one at bar, taken under section 55 of the Practice Act of 1907, in Madden v. Ferguson, 182 Ill. App. 210, and the conclusion then reached remains our opinion. A judgment on an affidavit of merits of the defendant for a portion of the amount claimed by the plaintiff is a final judgment. It is an absolute and unconditional order for the payment of money, on which final process may issue. It involves the merits of the case. It dis-joins the portion of the claim from which the judgment is rendered from the rest as finally as though separate suits had been brought. There is no doubt that such judgments, and, indeed, judgments much less final in essence, have been held “final” and appealable by our courts. For example, see Blake v. Blake, 80 Ill. 523, and Lester v. People, 150 Ill. 408.

We see no merit in the contention made to support plaintiff’s assigned cross-errors, that the Circuit Court erred in not rendering judgment at the plaintiff’s request on January 10, 1914. It was entirely within the discretion of the court to allow a second amended affidavit as it did. The answer of the appellant to the' appellee in this particular is irrefragable. The argument of appellee, as it is said, amounts at most to the position that the court might without error have denied leave to file another amended affidavit if the original affidavit and the first amended one were justifiably stricken. “Assuming this to be true, it has no tendency to show that it was error for the Court to exercise its discretion in favor of allowing the affidavit to be filed.”

The argument made by the appellee that the order of the Circuit Court of February 28, 1914, overruling the demurrer to the first three counts of the declaration is of any importance in this appeal, or can indeed be considered, is manifestly unsound. We can consider the matter only as it stood on February 7, 1914, when the appeal was perfected. The “Supplemental transcript of record” is useless to us.

The question before us therefore is whether the court was in error in entering on January 16, 1914, over the objection of the defendant, a judgment against it in favor of the plaintiff for $2,396.98, with interest on said sum from December 11, 1911.

The judgment was justified, if at all, only by the application of section 55 of the Practice Act to the affidavit of merits filed by the defendant on January 12, 1914.

Were there no other objection to the judgment, the addition of the interest from December 11,1911, would vitiate it. Even if the affidavit were to be considered an admission of any sum due to the plaintiff from the defendant, it could only be of $2,396.98 without interest. It says indeed that it was on or about December 11,1911, that the plaintiff elected “to withdraw in cash the accumulated surplus apportioned by the defendant to said policy,” but it says nothing about the time when the accumulated surplus was “apportioned.” Nor do we think that there is any presumption that the apportionment was made on the day the election was made or before. It was the apportionment and not the election which fixed the indebtedness.

But there was a more fundamental objection not only to the rendering of á judgment for the amount for which it was rendered, but for any amount, as the pleadings and record of the cause stood on January 16, 1914.

The declaration was in' four counts. To three of them a general and special demurrer was pending, presenting issues of law and rendering it improper and unjustifiable to take them into account in considering whether a judgment should be rendered under section 55 of the Practice Act.

To the fourth count a plea of the general issue was on file. The judgment, if justified at all, must be justified under these pleadings and the affidavit of merits of the defendant and section 55 of the Practice Act as applied to them. The Practice Act says:

“If the affidavit of defense is to only a portion of the ■plaintiff’s demand, the plaintiff shall be entitled to a judgment for the balance of his demand, and the suit shall thereafter proceed as to the portion of the plaintiff’s demand in dispute,” etc.

But the affidavit on which the judgment in this case was rendered begins first of all by stating that the affiant “verily believes that the defendant has a good defense to the whole of the plaintiff’s demand set out in the fourth count of the plaintiff’s declaration,” and it proceeds to say that no recovery ban be had under the fourth count on the claim of the defendant, because in effect the claim made in the affidavit of claim is not one that can come under the statements of the fourth count. That is what the position amounts to, that a claim on a policy of insurance of this kind cannot be introduced under the consolidated money counts.

The position is moreover rightly taken. Heffron v. Rochester German Ins. Co., 220 Ill. 514. But because the defendant, after saying in his affidavit that it is not indebted to the plaintiff under the fourth count, goes on in effect to say, as an alternative position, that even if said policy might be introduced in-evidence under the fourth count (which he has before denied that it could), it could not be held liable for more than $2,396.98, and gives its reasons therefor,-—-it is insisted by appellee that' the court could, with the plea of the general issue and this affidavit still on file, treat the affidavit of defense as one “to only a portion of the plaintiff’s demand,” and the amount of $2,396.98 as not “in dispute. ” We do not think this was a correct construction of the statute. It is tantamount, as counsel for appellant say, to construing it as doing away with all requirements, that a judgment must be responsive to the pleadings and issues in the case in which it is entered. We think that the clause above quoted was an amendment designed only to abolish the common-law rule that there could be but one final judgment in common-law action of assumpsit.

It never was meant to allow judgment on the consideration of affidavits by the court irrespective of the state of the pleadings, or to turn a denial of indebtedness under the pleadings into an “admission” or “confession” of judgment.

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

Reversed and remanded.


text:
    Charles S. Cook, Defendant in Error, v. Jacob O. Curry and Harlan B. Curry, Conservator, Plaintiffs in Error.
    Gen. No. 20,435.
    (Not to be reported in full.)
    Error to the'Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding. Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed March 29, 1915.
    Statement of the Case.
    Action by Charles S. Cook against Jacob O. Curry for $564 alleged to be due for rent on a written lease. February 5, 1914, Jacob O. Curry was adjudged by the Probate Court of Cook county to be a feeble-minded person, and Harlan B. Curry was duly appointed to be his conservator, “authorized and required to have the care of his person and estate.” Harlan B. Curry duly qualified under the appointment and on February 11th appeared in the cause under an order of court that he should so appear and defend the cause as conservator.
    The evidence shows that on May 11th Jacob O. Curry at Allston, Massachusetts, signed a document presented to him by a firm of renting agents at Allston consisting of George F. Taft and Norman S. Waite. The document was headed “Bental Application and Agreement.” The essential parts of the face of the document, which was signed at the foot of said face, as follows:
    “Signature of applicant, J. O. Curry, Lessee (Seal)
    Accepted by, Taft & Waite, Agents for the Owners, ’ ’ are, after the date—
    Name, Jacob O. Curry as Lessee. * * * Family consists of 4 adults, 2 children * * * Applied for
    ■—Suite 1—36 Linden St., Allston. Owner, Charles S. Cook, as Lessor. Bent $564 per annum payable $47 monthly. Bent to begin June 1,1909. * * *
    Rental Agreement.
    In making the foregoing application I hereby agree that upon its acceptance by the owner (or Taft and Waite, Agents) I am to hold said premises for the time and upon the conditions specified upon the back hereof, the latter being hereby made a part of this agreement.”
    The back of the paper was headed:
    ‘6Terms and Conditions oe Bental Agreement.”
    Beneath this heading, besides conditions usual in a lease of an apartment, were the following provisions:
    “Lessee agrees to pay rent to Sept. 1, 1910. In the event that Lessee desires to vacate premises at that date, written notice must be given to the Lessor on or before Aug. 1, 1910. Failing so to do, lessee is holden for rent until Sept. 1,1911. If Lessee desires to vacate premises at last mentioned date, written notice must be given to Lessor on or before August. 1, 1911. Failing so to do, Lessee is holden for rent until thirty days notice is given as above outlined, to take effect on September 1, in any year, but this lease shall terminate in any event in twenty years from the date when rent commences.
    The Lessor may terminate this agreement upon 30 days written notice, to take effect on September 1, in any year at or after Sept. 1, 1910, but without waiving any right of the Lessor to terminate for a breach of any of the other terms and conditions specified herein. ’ ’
    The evidence further shows that after the execution of this document, Jacob O. Curry, whose family at the time consisted of himself, his wife, his son, Oakley Curry, his daughter, Elsie Curry, and a widowed daughter, Mrs. Blair, and her two children, moved into the premises. He lived there with the family before described until April 6,1911, when he, and his wife and daughter Elsie Curry left the premises and came to Chicago, bringing their household goods with them. He left in the premises his son Oakley and his daughter Mrs. Blair with her children.
    Jacob O. Curry when about to leave told Mr. Taft that business called him to Chicago and he and his wife were going there; that he might be gone one month and he might be gone six months, and that the rent in the meantime would be paid by his son, and if it was not, he (Jacob O. Curry) was perfectly good for it.
    Jacob O. Curry did not return to the premises, but his son and Mrs. Blair and her children continued to occupy the apartments until September 1, 1913. Up to September 1, 1912, the rent was paid by the son or daughter. Monthly bills were sent each month to Jacob O. Curry, suite 1—36 Linden Street, Allston, and the son, Mr. Taft testified, “used to drop in occasionally and either say he was short or else he would pay.” From September 1, 1912, to September 1, 1913, at which last mentioned date Oakl.ey Curry and Mrs. Blair and family moved out, no rent was paid.
    In answer to the question put to Mr. Taft: “Will you state the circumstances under which tlie occupation of the premises ceased on September 1, 1913, by Mr. Curry’s children?” he answered, “They simply moved.”
    Jacob O. Curry never at any time gave a notice of his election to terminate the lease in accordance with its provisions, and no arrangement was made by the plaintiff or by any one for him with anybody but Jacob O. Curry regarding the tenancy in question.
    To reverse a judgment for plaintiff for $564, defendants prosecute this writ of error.
    James L. Clark, for plaintiffs in error.
    Adams, Crews, Bobb & Wescott, for defendant in error. .

      Abstract of the Decision.
    1. Insane persons, § 7

      —when order to conservator to appear and defend action against ward proper. Where a conservator has been duly appointed by the Probate Court of Cook county to be the conservator of a person adjudged to be feeble-minded and “authorized and required to have the care of his person and estate” and has duly qualified under the appointment, an. order of the court that he appear and defend as conservator, an action brought against his incompetent in the Municipal Court of Chicago before his appointment, is sufficient, even though it does not in terms make the conservator “a party defendant.” •
    2. Principal and agent, § 189*—when lease by agent ratified by owner. Where the owner of the property allows one entering into a lease with the owner’s agents, which the tenant signs, to take possession under the lease and recognizes his tenancy, there is a sufficient ratification of the agents’ act, even though the lease is signed not by the owner, but in the name of the agents, followed by the words “agents for the owners.”
    3. Frauds, Statute of, § 77*—when signature of tenant sufficient. To comply with the Statute of Frauds, it is not necessary that a lease be signed by both landlord and tenant, but the tenant’s signature is sufficient.
    4. Landlord and tenant, § 449*—when liability of tenant continued. . A tenancy from month to month is not terminated by the departure of the tenant where members of his family left there by him continue to occupy the premises.
    5. Witnesses, § 116*—when disqualification not applicable to plaintiff's agents in action against defendant as conservator. Where an action for rent is brought against one who is thereafter adjudged feeble-minded and for whom a conservator appears and defends, the agents who negotiated the lease for plaintiff and who signed it as his agents are not incompetent as witnesses as being “directly interested.”

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

   Mr. Presiding Justice Brown

delivered the opinion of the court.


text:
    Ella L. Fisk, Plaintiff in Error, v. L. M. Smith et al., trading as L. M. Smith & Brother, Defendants in Error.
    Gen. No. 20,460.
    Vendor and purchaser, § 298

      —when vendor not entitled to earnest money on default of purchaser. A contract for the sale of real estate recited that the purchaser had paid $100 as earnest money and provided that should the purchaser fail to perform, the earnest money should, at the vendor’s option, he retained as liquidated damages; that it should he held by her agents for the mutual benefit of the parties and. that in the event of the retention of the money, it should be such agents’ duty to apply it, first, to the payment of any expenses incurred for the vendor by her agents and second, to the payment to the vendor’s broker of a commission of “..........per cent on the selling price” for his services in pro-
    curing the contract, rendering the overplus to the vendor. At the same time the vendor’s agents and the purchaser by her agent executed a joint escrow agreement which recited that “the accompanying contract & $100 are deposited” with a trust company “to be delivered by it only upon the joint order of the undersigned or their respective legal representatives or assigns.” On the same paper was a direction to the trust company, signed in the same manner as the escrow agreement, that if the balance of the purchase price was not deposited by a day named, the trust company was authorized and directed to pay $50 to the vendor’s agents and $50 to the purchaser’s agent. The purchaser having defaulted and the sale not having been made, the trust company, on demand, paid $50 to the vendor’s agents and $50 to the purchaser’s agent. In an action by the vendor against her agents to recover the $100 earnest money, it was held that a judgment for defendants was proper.
    Error to the Municipal Court of Chicago; the Hon. Joseph S. LaBuy, Judge, presiding. Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed March 29, 1915.
    Brode B. Davis, for plaintiff in error.
    P. H. Bishop, for defendants in error.

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

   Mr. Presiding Justice Brown

delivered the opinion of the court.

This is a writ of error brought to reverse a judgment of nil capiat and for costs rendered by the Municipal Court of Chicago against Ella L. Fisk, the plaintiff in that court and plaintiff in error here, who brought suit against L. M. Smith, F. M. Smith and F. C. Otis, who are partners doing business as L. M. Smith & Bro. L. M. Smith & Bro. are real estate agents. In April, 1913, they were acting as agents for the plaintiff, Ella L. Fisk, in collecting the rents of some real estate owned by her, described as Lot 1 in the Subdivision of Lot 29 and the north 25 feet of Lot 30 in Grigg’s Subdivision, etc., and known as 3721 Prairie avenue, Chicago. She had requested the defendants to sell this property for the best price that they could obtain for it. On April 24, 1913, therefore, they negotiated a sale of it and received a written memorandum of agreement signed “Marvine Canty By Jesse Binga,” which was produced in evidence. According to a letter of L. M. Smith & Bro., also put in evidence, Jesse Binga acted as the agent of Marvine Canty, who was his sister.

The agreement or “real estate contract” (which was signed as above stated and by no one else) provided that Marvine Canty agreed to purchase at the price of $2,700 the described real estate, and Ella L. Fisk agreed to sell at said price and to convey, etc. It recited that the purchaser had paid $100 “as earnest money to be applied on such purchase when consummated, and agrees to pay within five days after the title has been examined and found good or accepted * * * the further sum of $2,600.” It also contained these provisions:

‘ ‘ Should said purchaser fail to perform this contract promptly on his part at the time and in the manner herein specified, the earnest money paid as above shall at the option of the vendor be retained by the vendor as liquidated damages, and this contract shall thereupon become null and void. * * *

This contract and the said earnest money shall be held by L. M. Smith & Bro. for the mutual benefit of the parties concerned, and after the consummation of the sale they shall be at liberty to retain the cancelled contract permanently; and it shall be the duty of said L. M. Smith & Bro., in case said earnest money be retained as herein provided to apply the same, first, to the payment of any expenses incurred for the vendor by his agent in said matter, and second, to the payment to vendor’s broker of a commission of......per cent on the selling price herein mentioned, for his services in procuring this, contract, rendering the over-plus to the vendor.”

At the same time, however, a paper headed “Joint Order Escrow No. 1” was signed by “L. M. Smith & Brother By E. B. Evans” (Evans was a salesman and agent of L. M. Smith & Brother) and by “Marvine Canty By Jesse Binga,” which contained this recital: “The accompanying contract & $100 are deposited with the Chicago Title & Trust Company to be delivered by it only upon the joint order of the undersigned or their respective legal representatives or assigns.” On the same paper was the following direction to the Chicago Title & Trust Company, also signed by “L. M. Smith & Brother By E. B. Evans” and by “Mar-vine Canty By Jesse Binga: ’ ’

“If balance of purchase price is not deposited by 10 a. m. May 24, 1913, you are authorized and directed to pay the sum of $50 to L. M. Smith & Bro. and $50 to Jesse Binga.”

The contract, the $100 and this document, “Joint Order Escrow No. 1” were deposited with the Chicago Title & Trust Company. The purchaser “failed to materialize,” to quote the testimony of Mr. Evans in this case. The sale and conveyance were not made. This was solely owing to the default of the purchaser. Thereupon, on demand of the parties, the Chicago Title ' & Trust Company paid over $50 to L. M. Smith & Bro. and $50 to Jesse Binga, in acordance with the order be-for@ T6cit6cl.

The plaintiff, Ella L. Fisk, thought the $100 should come to her and demanded it from the defendants, and failing to get it brought suit.

The trial judge in the Municipal Court, sitting without a jury, found for the defendants and this writ of error, as stated, is brought to reverse that judgment.

We think the judgment was correct. Whatever remedy, if any, for breach of contract against Marvine Canty the plaintiff may have had, she had, no right to treat the $100 deposited as “liquidated damages” and retain it, except the right given to her by the “real estate contract” and by the “Joint Order Escrow No. 1,” executed at the same time and in the same matter by the same party and also by L. M. Smith & Bro., which must be considered a part of and be construed with it. Taking the two documents and their various provisions above recited together, it is apparent that the agreement made by Marvine Canty through Jesse Binga was that if she did not complete the purchase the $100 should be divided between her broker or agent and Mrs. Fisk’s broker or agent for commissions and services; and this was the contract that Mrs. Fisk, who only acted through L. M. Smith & Bro., must be presumed to have accepted if she accepted any.

We think the judgment is in accordance with justice and the rights of the parties, and it is affirmed.

Affirmed.


text:
    Charles H. Gersch, Plaintiff in Error, v. City of Chicago, Defendant in Error.
    Gen. No. 20,508.
    1. Municipal corporations, § 135

      —when pay not recoverable by police officer during period in which discharged. An officer of the police force of the City of Chicago who is wrongfully discharged, cannot recover pay for the period during which he stands discharged, but must first secure his reinstatement by appropriate litigation or otherwise.
    2. Municipal corporations, § 135*-yioZiero officer not entitled to pay. The decisions in Bullis v. City of Chicago, 235 Ill. 472, and 138 Ill. App. 297, and in Gersch v. City of Chicago, 250 Ill. 551 (sustained in People of Illinois ex rel. Gersch v. City of Chicago, 226 U. S. 451), in Preston v. City of Chicago, 246 Ill. 26, and in City of Chicago v. Condell, 224 Ill. 595, held to be controlling against plaintiff’s claim in this case for salary as a police officer of the City of Chicago.
    Error to the Municipal Court of Chicago; the Hon. John R. Caverly, Judge, presiding. Heard in this court at the April term, 1914.
    Affirmed.
    Opinion filed March 29, 1915.
    Rehearing denied April 12, 1915.
    A. B. Chilcoat, for plaintiff in error.
    William H. Sexton, for defendant in error; Joseph F. Grossman and John E. Foster, of counsel.

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

   Mr. Presiding Justice Brown

delivered the opinion of the court.

This writ of error is brought to reverse a judgment of nil capiat and for costs rendered by the Municipal Court of Chicago January 28, 1914, against Charles H. Gersch, the plaintiff below, who sued the City of Chicago in that court for $3,000, which his statement of claim alleged was due to him as “salary already accrued, accruing and due to him” as a policeman from the 2nd day of December, 1910, up to the time of beginning the suit, March 6, 1913.

It is conceded—indeed it is stated in the statement of claim—that on December 2, 1910, the plaintiff was discharged from the service of the City of Chicago.

The claim of the plaintiff in this suit is based on the position that he was wrongfully and illegally discharged, and by reason of that deprived of his salary and of vested rights under certain relief and pension fund acts for the benefit of policemen of the City of Chicago.

The statement of claim asserts that the City is estopped from denying that the plaintiff is such a policeman, and also asserts that he has been ready and willing to perform his duties as such policeman, but has been prevented from doing so by the action of the Superintendent of Police and the Civil Service Trial Board in discharging him. His salary is due to him as attached to his office, the plaintiff contends.

The City filed an affidavit of merits, asserting:

First : That the plaintiff has never been reinstated in the service of the City of Chicago, and therefore cannot sue for his salary during the period since the date of his discharge.

Second : That he was never appointed in accordance with law an officer of the City of Chicago.

Third : That at the time of the plaintiff’s discharge there was no such office as “police patrolman”- of the City of Chicago. By this is meant, we take it, such an office as carries with it a “salary” as a right attached to it, independently of actual employment.

Fourth : That plaintiff was guilty of laches in bringing this suit.

Fifth and finally, it is said that the contentions of the plaintiff have been already negatived in prior suits and that the matter is res adjudicata.

A motion for a judgment for the plaintiff on the “pleading’s,” meaning the statement of claim and the affidavit of merits, was denied and the cause was submitted to a jury. Some evidence was introduced by the plaintiff, including certain ordinances relating to the organization of the Police Department in Chicago and the record of the oath of office taken by the plaintiff as a “Police Patrolman” on August 17, 1876; at the conclusion of which (the defendant introducing no evidence, but having on cross-examination established the identity of the plaintiff with the Charles H. Gersch who was plaintiff in two suits for mandamus in the Circuit and Superior Courts of Cook County), the plaintiff moved for a peremptory instruction in his behalf. This motion was denied. The defendant moved for a peremptory instruction in its favor, and the motion was allowed. A verdict in favor of the defendant was accordingly rendered and the judgment before described followed.

The instruction and the judgment were without error.

Each of the defendant’s grounds of defense set out in the affidavit of merits filed by one .of its attorneys stated a good defense under the law as it has been laid down by the Supreme Court of this State, and by the record or evidence it was developed that each position was well taken in fact and in law.

That an officer of the police force wrongfully discharged cannot recover his pay accruing, as he claims, after his discharge, while he “stands discharged,” but must first secure his reinstalment by appropriate litigation or otherwise, is a proposition directly laid down by our Supreme Court in City of Chicago v. People ex rel. Gray, 210 Ill. 84.

The same doctrine as to policemen and other officers has been laid down in cases in other States: Van Sant v. Atlantic City, 68 N. J. Law 449; Lee v. City of Wilmington, 1 Marvel (Del.) 65 Nicholas v. MacLean, 101 N. Y. 527; Gorley v. City of Louisville, 104 Ky. 372.

To the second and third points of the City’s defense may well be cited the opinion of the Supreme Court in Bullis v. City of Chicago, 235 Ill. 472.

It is not necessary or desirable, in view of the opinion we have already expressed on the first point made by the defendant, to enter upon a discussion of the applicability of the opinion of the Supreme Court in the Bullis case, supra, to the present litigation further than to say that when the opinion of the Supreme Court is read in connection with that of this court in the same case (138 Ill. App. 297), and again with the opinions of the Supreme Court in Gersch v. City of Chicago, 250 Ill. 551, and Preston v. City of Chicago, 246 Ill. 26, it will be seen how definitely the Supreme Court has held the defendant’s contention in this regard well founded. As to the fourth point, it is sufficient to refer to the reasoning of the Supreme Court in City of Chicago v. Condell, 224 Ill. 595.

And finally the right of the plaintiff to be reinstated and a fortiori his right to a salary since his discharge has been negatived by the decision of the Supreme Court in Gersch v. City of Chicago, 250 Ill. 551, an unsuccessful attempt to overthrow which was made in People of Illinois ex rel. Gersch v. City of Chicago, 226 U. S. 451.

The judgment of the Municipal Court of Chicago is affirmed.

Affirmed.


text:
    J. A. Mathews, Defendant in Error, v. Mattie Jackson, Plaintiff in Error.
    Gen. No. 20,551.
    (Not to be reported in full.)
    Error to the Municipal Court oí Chicago; the Hon. Edwabd T. Wade, Judge, presiding. Heard in this court at the October term, 1914.
    Reversed and remanded.
    Opinion filed March 29, 1915.
    Statement of the Case.
    Forcible entry and detainer by J. A. Mathews, plaintiff against Mattie Jackson, defendant.
    Although no written appearance, pleading or affidavit of or for the defendant appears in the transcript of record there was no default taken. The judgment order, finding the defendant guilty of unlawfully withholding possession of the premises and giving judgment for possession and costs, recites that “now come the parties to the cause and thereupon this cause comes on in regular course for trial.” It is certified in the bill of exceptions that the defendant “was not present at the trial of this cause,” and that “there was no evidence offered in behalf of her defense, if any existed, at said trial.” It also certifies that to the “finding of the Court against the defendant and to the entry of judgment on said finding,” the defendant duly objected and excepted, and recited that the defendant moved the court that said finding and judgment be vacated and the defendant granted a new trial, and excepted to the overruling of said motions.
    The bill of exceptions states that it contains all the evidence offered by either of the parties to the cause or heard or considered by the court.
    The evidence, as shown by the bill, consists of a warranty deed of the premises from one Gustaf Swanson and Marie Swanson, dated September 26, 1912, to the plaintiff, Mathews, and a five-day statutory notice from Mathews to Jackson demanding twenty dollars rent said to be due, and notifying Jackson that unless it was paid in five days her lease would be terminated.
    Abstract of the Decision.
    Forcible entry and detainer, § 71

      —when evidence insufficient. On forcible entry and detainer, where there is no evidence of possession on the part of the plaintiff or of the defendant or of the grantor of plaintiff, who holds under a warranty deed, nothing to prove the plaintiff or his grantor a lessor of defendant or any other, nor to prove defendant a lessee of plaintiff or of his grantor or of any one else, and no evidence of rent due nor of any demand for rent except a recital in the bill of the five days’ notice provided by statute, the evidence is insufficient to support a judgment for plaintiff.
    To reverse a judgment for plaintiff, defendant prosecutes this writ of error.
    William Slack, for plaintiff in error.
    Benjamin F. J. Odell, for defendant in error.

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

   Mr. Presiding Justice Brown

delivered the opinion of the court.


text:
    J. A. Mathews, Defendant in Error, v. John Moran, Plaintiff in Error.
    Gen. No. 20,556.
    Abstract of the Decision.
    Forcibke entry and detainer, § 84

      —when evidence insufficient. The decision in Mathews v. Jackson, ante, p. 194, held to he controlling and adhered to.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Edward T. Wade, Judge, presiding. Heárd in this court at the October term, 1914.
    Reversed and remanded.
    Opinion filed March 29, 1915.
    Statement of the Case.
    Forcible entry and detainer by J. A. Mathews, plaintiff, against John Moran, defendant.
    The facts herein are the same as those in Mathews v. Jackson, ante, p. 194, except that the premises involved are the basement of 5309 South Dearborn street and that ten dollars is recited in the notice to be due.
    William Slack, for plaintiff in error.
    Benjamin F. J. Odell, for defendant in error.

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

   Mr. Presiding Justice Brown

delivered the opinion of the court.


author: Mr. Justice Baker

text:
    Ernest A. Schmidt et al., Appellees, v. J. F. Schmidt Brothers Company et al., on appeal of John F. Schmidt, Appellant. Ernest A. Schmidt et al., Plaintiffs in Error, v. John F. Schmidt et al., Defendants in Error.
    Gen. No. 19,851.
    Gen. No. 20,602.
    Corporations, § 173

      -—when majority stockholder cannot transfer rights and property of corporation. Where the property and good will of a business has been transferred by the owner to a corporation, he receiving therefor a majority of the stock in the corporation, an agreement between him and the other stockholders, as individuals, to wind up the corporation and transfer the corporate property and good will to the minority stockholders is invalid, when not ratified by the corporation, and a bill by the minority stockholders for specific performance and an injunction cannot be maintained.
    McSurely, J., dissenting.
    Appeal from the Circuit Court of Cook county; in case No. 19,851. Error to the Circuit Court of Cook county in case No. 20,602; the Hon. Adelor J. Petit, Judge, presiding. Heard in this court at the October term, 1913.
    Reversed and remanded with directions.
    Opinion filed March 29, 1915.
    Statement by the Court. This was a bill for an injunction and specific performance brought by Ernest A., Henry W., Otto E. and August T. Schmidt against their brother, John F. Schmidt, the J. F. Schmidt Brothers Company, H. E. Littler, G. W. Gronberg and F. A. McKee. The canse proceeded to a hearing on the pleadings and proofs and the court entered a decree dismissing the bill as to the J. F. Schmidt Brothers Company and granting relief against John F. Schmidt. From this decree John F. Schmidt appealed. The J. F. Schmidt Brothers Company has assigned cross-errors questioning the dismissal of the bill as to it. Complainants in the bill have sued out a writ of error and assigned for error the dismissal of the bill as to the J. F. Schmidt Brothers Company.
    From the proofs it appears that John F. Schmidt began business as a builder and contractor in 1891; that in 1898 or 1899 he employed in his business Henry W. and Ernest A. Schmidt, two of his younger brothers; that in 1902 the J. F. Schmidt Brothers Company was organized with a capital stock of fifteen thousand dollars in one hundred and fifty shares of one' hundred dollars each, which was fully paid by transferring to the corporation the property and good will of the business theretofore carried on by John F. Schmidt. The corporation issued to John F. Schmidt one hundred and thirty shares of the capital stock and to Henry W. and Ernest A. each ten shares, for which they paid either the corporation or John F. Schmidt. Henry W., Ernest A. and Otto E. Schmidt were employed by the corporation from the time it was organized, and a few months later, August T., the remaining brother, was also employed by the corporation. In 1904 Henry W. severed his connection with the corporation and removed from Chicago. After the organization of the corporation its business seems to have been satisfactory and the brothers of John F. Schmidt, with the exception of Henry W., were employed by the corporation and paid wages according to their experience. In March, 1907, it was agreed between John F. Schmidt and his brothers, Otto E., August T. and Ernest A., that the latter should receive for the ensuing year twenty per cent, of the profit made by the corporation. March 7, 1908, an accounting was had between the parties to the agreement of 1907, and a memorandum prepared showing the profit for the preceding year. The contention of John F. Schmidt was and is that in the making of ibis settlement he was overreached by his brothers. At the time of the settlement of March 7, 1908, an understanding was reached as to the division of profits for the ensuing year, and the brothers continued to work for the corporation and on March 1, 1909, asked for a settlement for the preceding year, but no settlement was agreed on. Propositions to purchase John F. Schmidt stock were submitted but not accepted. Finally on September 3, 1909, an agreement in writing was prepared and signed by the complainants and John F. Schmidt, which constitutes the basis of this suit and is as follows:
    “Agreement by the undersigned Henry John Otto August and Ernest Schmidt for the purchase-of tools now at Gary, Indiana, belonging to J. F. Schmidt Bros. Co., including also jack screws now at 1705 Fairfield Ave. and 20 wheelbarrows now at 1673 N. Rockwell St., for the sum of $1,000 cash paid to J. F. Schmidt by Otto August and Ernest for the said tools.
    J. F. Schmidt agrees to and with said O. A. & E. & H. to wind up the corporation of the said J. F. Schmidt Bros. Co. in a lawful manner within three months and O. A. & E. Schmidt agree to aid in the settlement of all former and present accounts and bills which shall be credited to and charged to J. F. Schmidt until completely disposed of.
    J. F. Schmidt is not to use the name of J. F. Schmidt Bros. Co. for any new work and in consideration of this agreement each of the said mentioned A. T. Schmidt, Otto E. Schmidt, E. A. Schmidt, J. F. Schmidt and H. W. Schmidt waive all claims of every kind and description against the other and all the said parties hereto absolutely release the other from each and every charge ever made, by any or either of them, and to work in harmony toward this end.
    Signed:
    A. T. Schmidt,
    Otto E. Schmidt,
    J. F. Schmidt,
    Witness: H. W. Schmidt,
    Henry C. Bach. E. A. Schmidt.”

      Fred H. Atwood, Frank B. Pease, Charles O. Loucks and Vernon R. Loucks, for John F. Schmidt, appellant and J. F. Schmidt Bros. Co., H. E. Littler, G. W. Gronberg and F. A. McKee, appellees.
    Alden, Latham & Young, for defendants in error; T. A. Sheehan, of counsel.

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

   Mr. Justice Baker

delivered the opinion of the court.

The parties in making the above contract acted in their own names and on their own behalf and did not purport to bind the Company, whose right to the property mentioned in the contract they assumed to ignore. The subject-matter of the contract was the property of a corporation and not of either of the parties to the contract. The fact that the J. F. Schmidt Company was a “one man corporation,” the stock of which was owned and the corporation controlled by John F. Schmidt, does not affect the question of the right of the stockholders by a contract between themselves to make a valid contract for the sale or disposal of the corporate property.

We regard the case of Sellers v. Greer, 172 Ill. 549, as decisive of "the questions in this case. In that case the 1,000 shares of the capital stock were held by Sellers and Greer equally except two shares held in the names of the" respective sons of the parties, and it was held that the sons were mere nominal shareholders, but that a contract by appellant Sellers to sell to Greer certain patents and other property belonging to the corporation had no binding effect; that a court of equity cannot enforce specific performance of a contract by a stockholder to dispose of the corporate property, made without the authority of the corporation and not afterwards ratified; that a bill for the specific performance of an agreement to sell property will not be retained to assess damages for a breach of the contract, when the complainant knew when he filed his bill that the vendor had parted with the title to the property. In this case, the complainants knew when they filed their bill that John F. Schmidt had transferred the property and good will of the contracting business in which he was engaged to the corporation and that he had therefore parted with the title to the property which he agreed to transfer to them. Knowing these facts the complainants could not maintain a bill for specific performance, nor for an injunction of the character here sought and decreed. The dismissal of the bill against the corporation was right, but the bill should have been dismissed against all the defendants for want of equity.

The decree of the Circuit Court is reversed and the cause remanded with directions to dismiss the bill for want of equity.

Reversed and remanded with directions.

Mr. Justice McSurely dissents.


text:
    Albert Erickson, Plaintiff in Error, v. W. Scott Matthews et al., Defendants in Error.
    Gen. No. 20,626.
    Mandamus, § 51

      —when petition to compel restoration to public office insufficient. A petition for a writ of mandamus to compel the restoration of the petitioner to a public office, based on the provisions of the Civil Service Act effective July 1, 1911 (J. & A. ¶ 10629), is defective where it does not allege that he had taken the oath of office before the act went into effect.

      Error to the Circuit Court of Cook county; the Hon. Oscar E. Heard, Judge, presiding. Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed March 29, 1915.
    V. S. Lumley, for plaintiff in error.
    John J. Poulton and John J. Mahoney, for defendants in error.

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

   Mr. Justice Baker

delivered the opinion of the court.

This is a writ of error prosecuted to reverse a judgment of the Circuit Court of Cook, county sustaining the demurrer of the defendants to a petition for a writ of mandamus requiring, the defendants to restore the relator, Albert Erickson, to the office of Chief Clerk of the State Pood Department of the State of Illinois and dismissing the petition. The relator relies for his right to the writ on the following provision of the Civil Service Act, which took effect July 1, 1911: “All persons who when this Act takes effect shall hold offices or places of employment other than those exempted in section 11 of this Act shall be classified under the provisions of this Act and shall become members of the classified State Civil Service without original examination.” (J. & A. ¶ 10629.) The demurrer of the defendants to the petition was sustained upon the theory that the petition did not allege facts showing that the relator was a de jure officeholder at the time the amendment above quoted took effect. The petitioner avers that the relator was appointed Chief Clerk June 30, 1911; “that he afterwards took the oath of office and entered upon such duties as the Chief Clerk of the Pood Department.” It is not stated in the petition when the relator took the oath of office. The Chief Clerk of the State Food Department is a State officer and is required by the Constitution to take an oath of office before entering on the duties of his office. The statute provides that, “All persons who when this Act takes effect shall hold office” shall become members of the Classified State Civil Service without original examination. There is a distinction between the appointment to an office and the holding of such office. One appointed to an office cannot be said to hold such office until he accepts the appointment and qualifies in the manner the law requires him to qualify before entering on the duties of the office. Up to the time that the relator took the oath of office he was merely a de facto officer and a de facto officer is not entitled to a writ of mandamus in a proceeding of this kind. He must show a clear legal right to the office to which he seeks to be restored by the writ and must allege such facts in his petition as will enable the court to determine as a matter of law that he is entitled to the writ.

We think the Circuit Court did not err in sustaining the demurrer to the petition and dismissing the same, and the judgment is affirmed.

Affirmed.


text:
    William H. Durant, Plaintiff in Error, v. W. Scott Matthews et al., Defendants in Error.
    Gen. No. 20,796.
    (Not to be reported in full.)
    Error to the Circuit Court of Cook county; the Hon. Oscab E. Heabd, Judge, presiding. Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed March 29, 1915.
    Statement of the Case.
    William H. Durant, plaintiff, against W. Scott Matthews and others, defendants.
    The facts are the same as those in Erickson v. Matthews, ante, p. 201.

      Abstract of the Decision.
    Mandamus, § 51

      —when writ will not lie for restoration to public office. The decision in Erickson v. Matthews, ante, p. 201, held to be controlling in this case and adhered to.
    V. S. Lumley, for plaintiff in error.
    John J. Poulton and John J. Mahoney, for defendants in error.

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

   Mr. Justice Baker

delivered the opinion of the court.


text:
    The Rock River Conference et al., Plaintiffs in Error, v. Trinity Methodist Episcopal Church of Chicago, Defendant in Error.
    Gen. No. 20,761.
    Religious societies, § 30*—when use of property not interfered with. A bill to restrain the Trinity Methodist Episcopal Church of Chicago from interfering with W., one of the complainants, in occupying as a parsonage and conducting religious worship in M. Chapel in accordance with the discipline and laws of the Methodist Episcopal Church, alleged that the defendant was a religious corporation in the boundaries of the R. Conference of the Methodist Church; that M. Chapel was erected by the Trustees of Trinity Church on property which had been conveyed to them and was dedicated according to the discipline of the Methodist Church; that thereafter M. Chapel was incorporated as a religious corporation; that the latter corporation was situated in the boundaries of the R. Conference; that the Presiding Bishop, at a session of the R. Conference, appointed complainant W. pastor of M. Church and said

      W. thereafter used the building for a parsonage and for religious worship according to the Methodist discipline until he was evicted by defendants, and prevented from entering. Held, that the title to the real estate on which M. Chapel was situated was in the Trustees of Trinity Church and that no facts are alleged from which a constructive or resulting trust arises in favor of M. Church, and that the manner in which the trustees devoted the property to religious uses could not be controlled by the R. Conference nor by the Presiding Bishop, even though the property had been conveyed to the trustees for religious purposes.
    Error to the Superior Court of Cook county; the Hon. John M. O’Connor, Judge, presiding. Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed March 29, 1915.
    Brundage, Landon & Holt, for plaintiffs in error.
    Eddy, Wetter & Pegler and Jasper F. Rommel, for defendant in error.
   Mr. Justice Baker

delivered the opinion of the court.

The bill in this case was filed by the Rock River Conference, a corporation, William F. McDowell, James M. Wheaton and Harry M. Dunn against the Trinity Methodist Episcopal Church of Chicago, a corporation, to restrain the defendants from interfering with complainant Wheaton in occupying as a parsonage a portion of the second floor of the building known as the Marie Chapel, and from conducting religious worship in the auditorium of said building in accordance with the discipline and laws of the Methodist Episcopal Church. A demurrer to the bill as amended was sustained, the bill dismissed for want of equity and complainants appealed.

The bill alleges that Trinity Methodist Episcopal Church is a religious corporation organized under the laws of Hlinois, and is one of the Methodist churches within the boundaries of the Bock Biver Conference; that there was conveyed in 1885 to the Trustees of the Trinity Church a certain lot in Chicago; that in 1885 there was erected under the supervision of the Trustees of Trinity Church a building on said lot; that a mission was conducted in said building for a time; that in October, 1885, an auditorium in said building was dedicated in accordance with the discipline of the Methodist Episcopal Church; that in 1901 said Marie Methodist Chapel was incorporated as a religious corporation under the laws of Illinois; that said Marie Church is within the boundaries of the Bock Biver Conference, and that in October, 1913, complainant McDowell, the Presiding Bishop at a session of the Bock Biver Conference, appointed complainantWheaton pastor of the Marie Methodist Episcopal Church for the ensuing year; that Wheaton took possession of certain living rooms in said building and occupied them as a parsonage, and conducted religious services in another portion of said building until November 5, 1913, when he was evicted by the defendants from the rooms occupied by him as a parsonage, and the auditorium closed and locked against him.

The real estate in question was, as has been said, conveyed to the Trustees of Trinity Church. The bill does not allege that there was any conveyance of the real estate to the Marie Church, and alleges no facts from which a constructive or resulting trust arises in favor of that Church. Marie M. E. Church v. Trinity M. E. Church, 253 Ill. 21; Marie Church v. Trinity Church, 205 Ill. 601.

The distinction between a Methodist church and a Methodist church building is to be kept in mind. In the words of the Methodist discipline; “The visible Church of Christ is a Congregation of faithful Men in which the pure Word of Grod is preached and the sacraments duly administered according to Christ’s ordinance in all those things that are of necessity requisite to the same.” The church edifice is a place of worship for the members of the “visible church.” It was the Marie Church, the congregation or society, that was incorporated, and it was to the Marie congregation or society that Bishop McDowell sent Mr. Wheaton as their preacher. It was for the trustees or the proper officers of the congregation or society to provide a meeting place for the congregation or society and a parsonage for the preacher, if one was to be provided. The Marie congregation or society had no property right, legal or equitable, in the portion of the building which the preacher had theretofore occupied as a parsonage, nor in the auditorium in which he had conducted religious worship. Admitting that the property was to be held by the Trustees of Trinity Church for religious purposes, it was for the trustees, not for the Bock Biver Conference, Bishop McDowell, Mr. Wheaton or the Marie congregation or society to determine in what manner the property or its income should be devoted to a religious use.

In Brunnenmeyer v. Buhre, 32 Ill. 183, the title to the church building was vested in the trustees of the society for the use of the society.

In Whitecar v. Michenor, 37 N. J. Eq. 6, the defendant trustees held the church building in trust for the use of the congregation or society, a Methodist congregation, and it was held that the Bishop had the right to appoint a preacher for the society and the trustees were bound to open the building to the preacher and the church.

In Fuchs v. Meisel, 102 Mich. 357, the trustees held the church building in trust for the congregation or society, and an injunction was issued in that case to prevent the trustees from closing the church building against the regularly appointed pastor.. In each of the cases above cited, which are relied upon by plaintiff in error, the title to the church building was vested in the trustees of the society for the use of the society. In this case the title was vested in the Trustees of Trinity Church to be held by them for religious purposes.

Our conclusion is that the facts stated in the bill as amended do not show that the complainants are entitled to the relief or any part of the relief demanded by the bill, and that the demurrer to the bill was properly sustained and the bill dismissed for want of equity.

The decree of the Superior Court is affirmed.

Affirmed.


text:
    Great Western Oil Refining & Pipe Line Company, Defendant in Error, v. Chicago, Milwaukee & St. Paul Railway Company, Plaintiff in Error.
    Gen. No. 20,770.
    Municipal Court of Chicago, § 6

      —when without jurisdiction on question of interstate commerce. The Municipal Court of Chicago has no jurisdiction of a controversy as to whether or not a carrier charged on an interstate shipment a greater sum than it was authorized to charge by its schedule of rates posted and filed with the Interstate Commerce Commission.,
    Error to the Municipal Court of Chicago; the Hon. Robert H. Scott, Judge, presiding. Heard in this court at the October term, 1914.
    Reversed.
    Opinion filed March 29, 1915.
    Rehearing denied April 17, 1915.
    J. N. Davis and C. S. Jefferson, for plaintiff in error; H. H. Field, of counsel.

      Ossian Cameron, for defendant in error.

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

   Mr. Justice Baker

delivered the opinion of the court.

This writ of error brings in review a judgment recovered by the Great Western Oil Befining and Pipe Line Company against the defendant Bailway Company for alleged overcharges on one carload of petroleum tailings shipped from Erie, Kansas, to Bacine, Wisconsin, and two carloads of the same commodity shipped from Erie, Kansas, to Deerfield, Illinois. The published tariff rate on petroleum tailings at the time of the shipment was 18 cents per one hundred pounds. The tariff rate on fuel oil was 27 cents per one hundred pounds. The contention of the defendant was that the commodity transported was fuel oil and that it properly collected freight at the rate of 27 cents per one hundred pounds. The excess of the amount collected on a basis of 27 cents per one hundred pounds over the amount of the freight at 18 cents per one hundred pounds amounted to $174.66, and for that amount plaintiff sued and recovered judgment.

The question in the case is whether the defendant collected a greater sum than it was authorized to charge by its schedule of rates posted and filed with the Interstate Commerce Commission. This turns upon the question whether the terms “petroleum tailings” and “petroleum fuel oil” are interchangeable and cover but one commodity, or refer to and cover two distinct and separate commodities.

In Texas & P. Ry. Co. v. American Tie & Timber Co., Ltd., 234 U. S. 138, the joint through rate on lumber from points in Louisiana and Texas was 24 cents per one hundred pounds, and there was no tariff on crossties. The railway company refused to transport ties from Arkansas to Linwood, Kansas, on the ground that it had no rate on cross-ties. The plaintiff contended that the ties were lumber and the rate for lumher applied to the transportation of cross-ties. It was held by the Supreme Court, Mr. Chief Justice White delivering the opinion, that:

“Whether a class tariff includes a particular commodity is a controversy primarily to be determined by the Interstate Commerce Commission in the exercise of its power concerning tariffs and the authority to regulate conferred upon it by the Act to Regulate Commerce.

The courts may not, as an original question, • exert authority over subjects which primarily come within the jurisdiction of the Interstate Commerce Commission.

Whether cross-ties are or are not lumber and therefore within the tariffs filed for the latter is a question on which there is a great diversity of opinion even among experts upon the subject, and one that should be determined in the first instance by the Interstate Commerce Commission.”

We regard the decision in the case cited as conclusive on the question presented in this case. Whether the terms “petroleum tailings” and “fuel oil” are but different names for the same commodity and cover but one commodity, and the commodity is therefore within the tariff for petroleum tailings, or the terms refer to and cover two distinct and separate commodities, is a question on which the evidence in the record is conflicting, and one that should, under the decision of the Supreme Court, be decided in the first instance by the Interstate Commerce Commission. It follows that in our opinion the Municipal Court was without jurisdiction of the subject-matter, and the judgment will therefore he reversed.

Reversed.


text:
    Hartford Deposit Company, Appellee, v. Robert Rosenthal et al., Appellants.
    Gen. No. 21,230.
    1. Landlord and tenant, § 402

      —when condition against subletting not terminated. Under a lease containing a restriction as to the use of the premises and prohibiting assignment or subletting without the consent of the lessor, which conditions were expressly made binding upon the parties to the lease, their heirs, successors and assigns, the fact that the lessor’s written consent to a sublease did not contain any further restrictions against subletting or assigning did not operate as a termination of the conditions in the original lease, so as to render a lease by the subtenant, without the consent of the original lessor, valid.
    2. Landlord and tenant, § 429*—what are rights of landlord against subtenant. The assignee or subtenant is bound by any restrictions in the chain of title above him relating to assignments or subleasing, and the landlord has the same remedy in equity against the subtenant as ¿gainst any other tenant with notice.
    Appeal from the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding. Heard in this court at the October term, 1914.
    Affirmed and motion to dismiss appeal denied.
    Opinion filed March 29, 1915.
    Stein, Mayer & Stein, for appellants.
    Oscar M. Wolef, A. W. Gage and Charles Leviton, for appellee; Oscar M. Wolff, of counsel.

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

   Mr. Justice Baker

delivered the opinion of the court.

December 1, 1914, complainant, appellee here, filed its bill of complaint in the Circuit Court against the defendants, appellants here, to enjoin the defendants from conducting a jewelry business in the premises 61 West Madison street, and to restrain the defendant Block from occupying or using said premises for any purpose. An interlocutory order of injunction was entered in accordance with the prayer of the bill, and the defendants appealed. Sixty-one West Madison street was formerly 104 Madison street and 59 was 102. February 8,1911, complainant leased said premises to Stillson and Sebree for .ten years from March 1, 1911. The lease provided that the demised premises were, “to be used and occupied by the lessees for restaurant and liquor business and for no other purpose whatsoever.” The second clause of the lease provided that: “Neither the lessees nor others having the lessees’ estate in the premises, will assign said term or this lease or allow the same to be assigned by operation of law or otherwise, or let or underlet said premises, or any part thereof, or use the same or permit the same to be used for any purpose other than as above specified, and will not make any alterations therein or additions thereto, without the written consent of the lessor first had and obtained.” The last paragraph of the lease provided that: “It is mutually covenanted and agreed that each and every one of the covenants and agreements herein contained shall extend to and be binding upon the respective successors, heirs, executors, administrators and assigns of the parties hereto.” On the same day Stillson and Sebree assigned the lease to Stillson’s Company and the complainant executed a consent to said assignment on condition that the assignor and assignee should both be bound by the lease, and that there should be no further assignment or subletting without the written consent of the complainant. On the same day Still-son’s Company demised by written lease to Robert Rosenthal, Sol Rosenthal and B. B. Dale the stores 102 and 104 West Madison street for a term of ten years from April 1, 1911. The stores “to be used and occupied by the lessees for men’s clothing business and for no other purpose whatsoever.” The second paragraph of this lease and the first sentence of the last paragraph are identical with the above quotations from the second and last paragraphs of the lease to Stillson and Sebree. On the same day complainant executed and delivered to Stillson’s Company the following instrument :

“February 8, 1911.

Stillson’s Restaurant and Buffet Company,

Dear Sirs: We hereby consent to the subletting by you of portions of premises held by you of us in Hartford Building, in Chicago, Illinois, to Robert Rosenthal, Sol. Rosenthal and B. B. Dale, for Men’s Clothing Business.

Hartford Deposit Company,

By D. M. Hillis, President.

Attest:

E. C. Wentworth,

Secretary.”

February 27,1911, Sol. Rosenthal and B. B. Dale assigned their interest in the lease from the Stillson Company to Robert Rosenthal. November 25, 1914, Robert Rosenthal leased 61 West Madison street for a term of two months from December 1, 1914, to Ernest Block, “to be used and occupied by the lessee'as and for mercantile purposes and for no other purpose whatsoever. ’ ’

The contention of the appellants is that when the complainant consented in writing to a sublease by the Stillson Company to the Rosenthals and Dale of the stores 59 and 61 West Madison street for men’s clothing business, without in the written consent creating any further restriction, the restriction in the head lease was forever removed and a subsequent lease by the subtenants of a portion of the premises without the original lessor’s consent is valid. In support of this contention counsel rely on Dumpor’s case, 44 Coke, 119 B.; 1 Smith’s Leading Cases (9th Amer. Ed.) 107.

We do not think that this case is within the rule in Dumpor’s case. In that case the provision of the lease was that the lessee or his assigns should not alien the premises to any person or persons without the special license of the lessors. During the term the lessors by deed licensed the lessee “to alien or demise the land, or any part of it, to any 'person or persons whatsoever.” Afterwards the lessee assigned his lease to Tubbe, and it was held that the alienation to Tubbe had determined the condition against alienation, and no alienation which Tubbe might thereafter make could break the condition. In Dumpor’s case the condition was single and not susceptible of more than one breach. The proviso was that the lessee or his assigns should not alien to any person or persons without the special license of the lessors, and the lessors after-wards licensed the lessee to alien the land to any person or persons. Here the license was expressly limited . to Stillson’s Restaurant and Buffet Company and on the condition that, “no further assignment of said lease and no sub-letting of the premises or any part thereof shall be made without the written consent of said Hartford Deposit Company.” Kew v. Trainor, 150 Ill. 150; Kales’ Future Interests, sec. 63, p. 81. The second clause of the head lease contains a definite agreement that neither “lessees nor others having the lessees’ estate in the premises” shall assign, sublet or use or permit the premises to be used for any purpose than as specified in the lease without the written consent of the lessor. An assignee or subtenant is bound by any restrictions in the chain of title above him relating to assignments or subleasing, and the landlord has the same remedy in equity against the subtenant as against any other purchaser with notice. 1 Tiffany, Landlord and Tenant, pp. 810-921; Peer v. Wadsworth, 67 N. J. Eq. 191.

We think the order for an injunction appealed from was proper on the pleadings arid proofs in this case, and the order is affirmed.

The motion of appellee to dismiss the appeal is denied.

Order that an injunction issue. Affirmed. Motion to dismiss the appeal denied.