author: Mr. Presiding Justice Gridley

text:
    Ella S. Leonard for use of W. T. Alden, Appellee, v. Warren Springer, Appellant.
    Gen. No. 17,119.
    1. Fraud—action survives. By the express terms of R. S., c. 3, § 123, an action of fraud and deceit survives.
    2. Assignments—actions that survive are assignable. Causes of action which under the law survive are assignable.
    3. Fraud—action is assignable. Where a person fraudulently induced to buy a worthless note secured by a trust deed of a leasehold interest sues a former owner of such interest in fraud and deceit, the action may be assigned. ,
    4. Bankruptcy—preference is only voidable. Where an assignment of a cause of action constitutes an unlawful preference in bankruptcy under the Bankruptcy Act of 1898, § 60, the assignment is voidable only.

      5. Bankruptcy—preference not subject to collateral attack. Where an assignment of a cause of action constitutes an unlawful preference in bankruptcy and no steps are taken in the bankruptcy court to set it aside, it is not subject to collateral attack by a defendant in an action of fraud by the assignor to the use of the assignee.
    6. Fraud—action need not be prosecuted in the name of the assignee. On an assignment of an action for fraud and deceit the action may be prosecuted in the name of the assignor for the use of the assignee.
    7. Fraud—defendant need not have received value. Where a person induced by fraud to purchase notes secured by a deed of trust of a leasehold interest -sues a former owner of such interest in fraud and deceit, recovery may be had without showing that the defendant received anything of value from plaintiff for the notes purchased.
    8. Fraud—evidence to show fraud where security of notes is worthless. In an action of deceit it appeared that the defendant sold a worthless leasehold interest to his brother-in-law for an express consideration, but no consideration was paid. The property was sold to another for an express consideration of $100,000, who executed certain promissory notes secured by a deed of trust of the interest, setting out a consideration of $75,000, but no consideration was paid. In none of the instruments did it appear that only a leasehold interest was conveyed. The grantor of the deed of trust was- insolvent and never intended to pay the notes. The notes, purchased from another party by plaintiff, had indorsements extending the time of payment in consideration of interest paid and to be paid. The defendant claimed the notes had been stolen from him. Held, a verdict for the plaintiff should be sustained.
    9. Biles and notes—when purchased before maturity. Through a series of conveyances without consideration and tainted with fraud, a plaintiff purchased notes after the date of maturity secured by a worthless leasehold, and sued the owner of such interest in fraud and deceit. The notes bore indorsements extending the time of payment in consideration of interest paid and to be paid. The defendant and the person signing the indorsement testified they did not make or authorize it. Held, under the facts and circumstances, plaintiff was a purchaser of the notes before maturity.
    10. Appeals and errors—when judgment may be entered nunc pro tunc. Where an appellant dies subsequently to the time that a cause was ¡taken under advisement by the appellate court, a judgment of affirmance may be entered nunc pro tunc as of a date prior to the death. Certiorari denied by Supreme Court (making opinion final).
    Appeal from the Superior Court of Cook county; the Hon. Paul McWilliams, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed November 14, 1912.

      Stedman & Soelke, for appellant.
    Alden, Latham & Young, for appellee; T. A. Sheehan, of counsel.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.

This is an appeal from a judgment of the Superior Court of Cook county for $6,208.33, rendered against Warren Springer in an action on the case for fraud and deceit. The action was originally commenced, April 6, 1899, by Ella S. Leonard, plaintiff, against said Springer and Charles Z. Miller. Springer demurred to the original declaration and Miller filed a plea of general issue. Plaintiff was given leave to file an amended declaration, consisting of one count, which she did, to which Springer again demurred. On June 4, 1900, the cause was dismissed as to Miller, the demurrer of Springer (hereinafter called defendant) to said amended declaration was sustained, and, plaintiff electing to stand by the same, judgment was rendered against her for costs. An appeal was taken to this court, where the judgment of the trial court sustaining said demurrer was affirmed. Leonard v. Springer, 98 Ill. App. 530. Thereupon plaintiff appealed to the Supreme Court, where the judgments of this court and the Superior Court were reversed and the cause remanded with directions to the Superior Court to overrule said demurrer. Leonard v. Springer, 197 Ill. 532. After the cause was redocketed in the Superior Court, leave was given plaintiff “to amend the record * * * by adding the name of W. T. Alden as usee, so that the name of plaintiff shall be Ella S. Leonard for use of W. T. Alden,” and to file a second amended declaration, consisting of one count, which was filed on May 1, 1906. To this declaration defendant filed a plea of general issue and a further plea to the effect that the cause of action in said declaration was distinct and different from the cause of action in the original and first amended declarations, and that the same did not accrue to the plaintiff within five years immediately prior to the filing thereof. A demurrer to this further plea was sustained by the court and no complaint is here made as to that ruling. In September, 1906, the cause was tried before a jury, resulting in a verdict in favor of plaintiff for $5,832.66, but this verdict was set aside and a new trial granted. In December, 1909, the cause was again tried before a jury, during which trial plaintiff was given leave to amend said declaration by increasing the ad damnum to $8,000. The jury assessed plaintiff’s damages at $6,208.33, upon which verdict the court, on March 16, 1910, entered the judgment from which this appeal is taken.

The second amended declaration, on which the case was tried, contained some. minor changes from the first amended declaration which is quite fully set forth in the opinion of the Supreme Court, Leonard v. Springer, 197 111. 533-535, and hence the allegations of the same need not be here set forth, except to mention that where in the former declaration she averred that 11 she applied to a broker to secure for her an investment,” in the latter declaration she averred that being “desirous of exchanging certain * * # building stone of the value of $4,000 for good real estate securities, * * * for that purpose she inserted an advertisement in a Chicago newspaper and thereafter she was offered” the four $1,000 notes mentioned; that where in the former declaration she averred that relying on the truth of the statements, etc., “she purchased four of the notes, paying therefor $4,000,” in the latter declaration she averred that “she exchanged her * * * building stone of a value of $4,000 for said four notes;” that in both declarations the four notes, each dated August 6, 1897, and each payable fifteen months after date (viz.: November 6, 1898) were set out in full, together with the trustee’s certificate accompanying each; that in both declarations it was averred that the endorsements on the back of the first and third notes, above the signature “Charles Z. Miller,” were as follows: “For and in consideration of the interest being paid in full, the time is extended to May 1, A. D. 1899; ’ ’ that in both declarations it was averred that the endorsement on the second $1,000 note, above said signature, was, “The interest having been paid I hereby extend this note for six months for value received,” and the endorsement on the fourth note, above said signature was, “For and in consideration of the interest being paid in full I extend the principal to the 6th day of Feby. 1899.”

The fraud complained of in plaintiff’s declaration grew out of the purchase by plaintiff of said four $1,000 promissory notes. The circumstances under which these notes were executed were as follows: On November 24, 1888, Calvin DeWolf and wife executed to William E. Slosson, a lease of “Sub-lot four (4) in Ogden’s subdivision of lot one (1) in block ninety-six (96) in School Section Addition to Chicago, in the County of Cook and State of Illinois,” and otherwise known as No. 188 E. Monroe street, Chicago, for a term of ninety-nine years from January 1, 1889, for an annual rental of $3,000, payable quarterly. This lease was recorded November 27, 1888. On April 4, 1889, the lessee, Slosson, conveyed and quitclaimed all his interest in said lease and to the building on said premises to the defendant for the expressed consideration of one dollar. This instrument was recorded April 5, 1889. On July 29, 1897, the defendant and his wife quitclaimed to John Maginness “of the City of Boston, County of Suffolk and State of Massachusetts” all interest in said premises for the expressed consideration of $25,000. This instrument was recorded August 26, 1897. No mention was made in the instrument that the interest in the premises conveyed by defendant and wife was merely a leasehold interest. It appears from the evidence that no consideration was given by Maginness for the deed; that he was a brother-in-law of the defendant and, at the time of the execution of the deed, instead of being a resident of Boston as stated, was connected with the LeMar Shoe Company, a concern engaged in the retail shoe business on the ground floor of No. 188 E. Monroe street, Chicago; that at this time the lease was of little value; that defendant was in arrears in the-payment of ground rent in a large amount; that many of the offices in the building were untenanted, and that the expenses of running the building greatly exceeded the income therefrom. On August 6, 1897, Maginness executed what purported to be a warranty deed, in which he was described as “a bachelor, of the city of Boston,” etc., and in which it was stated that Maginness “for and in consideration of $100,000 # * * conveys and warrants to Charles Z. Miller, of the City of Chicago” said premises, “the grantor hereby conveying and warranting all his right, title and interest in the above described real estate.” No mention is made in this deed that that interest was but a leasehold interest in the premises. This deed was recorded September 3, 1897. It further appears from the evidence that no consideration whatsoever passed from Miller to Maginness or to any other person for the deed; that Miller never at any time took over the management of the building, and that he never collected any rents. On the same day Miller, at the instigation of defendant, executed to the Chicago Title & Trust Company, a trust deed by which

“Charles Z. Miller, of Cook County, Illinois, for and in consideration of the sum of $75,000' in hand paid, conveys and warrants to Chicago Title & Trust Company, * * * trustee, the following described real estate with the improvements thereon, including all heating, gas and plumbing apparatus, and all other fixtures attached to said premises and everything appurtenant thereto, * * * to-wit: Sub-lot four (4) in Ogden’s subdivision of lot one (1) in block ninety-six (96), * * * otherwise known as No. 188 East Monroe street, with the 7 story and basement building thereon. * * * In trust, nevertheless, for the purpose of securing performance of the covenants and agreements herein.”

This trust deed was given to secure the payment of certain notes aggregating $75,000 in amount, referred to in the deed as follows:

“Whereas, the grantor, Charles Z. Miller, is justly indebted upon his 83 principal promissory notes, bearing even date herewith, payable to the order of himself and by him duly endorsed and delivered, eleven for $500 each, and ten for $750 each, due one year after date, and sixty-two for $1,000 each due fifteen (15) months after date. All of said notes bearing interest at six (6) per cent per annum. The notes hereby secured being given for part of the purchase money on the above described premises.”

This trust deed made no reference to any lease or leasehold interest, but by its terms gave the impression that the same conveyed the land and the building thereon as security for said notes. Inasmuch as the consideration mentioned in the deed from Maginness to Miller was $100,000, the placing of the consideration for the trust deed at $75,000 tended to create the impression that $25,000 of the purchase price of $100,000 for the property mentioned had been paid. This trust deed was recorded September 11,1897. All of the notes mentioned in said trust deed, including the four purchased by' plaintiff, were payable at the office of the Chicago Title & Trust Company, Chicago, and contained the clause:

“This note is secured by a trust deed to Chicago Title & Trust Company, trustee, of even date herewith, on'7 story and basement building, No. 188 East Monroe street, city of Chicago, county of Cook, and state of Illinois,”

and on the back thereof contained the following printed indorsement:

“Trustee’s certificate. This is to certify that this note is one of the following eighty-three notes, for the aggregate amount .of seventy-five thousand dollars. Eleven notes for five hundred dollars each, ten notes for seven hundred and fifty dollars each, and sixty-two notes for one thousand dollars each; secured by trust deed to Chicago Title & Trust Company, trustee; recorded in the Recorder’s Office of Cook County, Ill., as doc. No. 2586840.
Chicago Title & Trust Company,
By Vm. C. Niblack, Secretary.”

On September 28, 1897, an application was made to the Chicago Title & Trust Company for a guaranty policy of $20,000 on said leasehold estate by said LeMar Shoe Company, the company with which Maginness was then connected. The defendant Springer signed the application for said policy and the policy was afterwards issued and delivered to him. On two of the four notes which were subsequently purchased by plaintiff there was an indorsement on the back, as follows:

“This is one of the twenty notes referred to in our policy of title insurance No. 7767.
Chicago Title & Trust Company,
By Wm. C. Niblack, Secretary. ’ ’

It further appears from the evidence that at the time of the execution of said series of notes and trust de.ed Miller was insolvent; that he never at any time possessed property that could be reached by execution; that after signing said notes he delivered them all to the defendant and never had them in his possession afterwards; that he never paid anything on any of them, and that when he signed the trust deed he did not know whether it conveyed a leasehold estate or a fee.

The circumstances under which plaintiff acquired said four $1,000 notes, as disclosed from her testimony, were substantially as follows: During the middle and latter part of the year 1898, plaintiff was connected with the advertising department of a Chicago newspaper. She resided at the home of Charles R. Over-man, who was in the stone business, trading under the name of the Graham Stone Company (incorporated). Overman was indebted to plaintiff in a sum in excess of $4,000. He claimed to be the owner- of about 10,000 feet of plain and ornamented cement building stone, located in the yards of the Lake Shore and Michigan Southern Railway Company at Forty-third and State streets, Chicago, and having a value, as claimed, considerably in excess of $4,000. In July or August he gave plaintiff a bill of sale of this stone in consideration of the cancellation of his indebtedness to plaintiff. In November, 1898, plaintiff inserted a blind advertisement in certain Chicago newspapers, offering said stone for sale. A man giving his name as C. W. Comstock answered the advertisement and plaintiff wrote him to call on her. He did so, and showed her a $1,000 note which he said he would like to exchange for some of the stone. A day or two after-wards he again called on plaintiff and showed her four $1,000 notes, which he said he might exchange for the stone. He gave plaintiff a memorandum of the deed from Maginness to Miller and the trust deed from Miller to the Chicago Title & Trust Co., told plaintiff to investigate the security back of the notes, and left one of the notes with her, taking a receipt therefor. Plaintiff, in turn, gave him an inventory of the stone and told him where it was located. Plaintiff testified that she subsequently made an investigation as to the security back of the notes; that she showed the note to the cashier of the Corn Exchange bank; that she called at the office of the Chicago Title & Trust Co. to see Mr. Niblack, but did not find him in; that she went to the recorder’s office and ascertained that the deeds, of which Comstock had given her a memorandum, had been recorded; that she went to Comstock’s office and saw his name on the door; that she looked at the building at No. 188 E. Monroe street, saw that the building itself “was not of much account,” but that she supposed that the trust deed covered the land as well as the building. Within two or three days Comstock again called on plaintiff in company with a man named Bauer. The result of this call was that plaintiff during the latter part of November, 1898, (that is, subsequent to the maturity of said four $1,000 notes as originally written but prior to the maturity thereof as extended by indorsement thereon) traded the stone for said notes and $300 in cash, giving Bauer an inventory and bill of sale of the-stone, since which time plaintiff never again saw either Comstock or Bauer. Neither one of them was a witness at the trial. Plaintiff further testified that at the time Comstock first showed her the four $1,000 notes, as well as at the time of the consummation of the trade, said notes had indorsed on the back thereof the respective indorsements (as charged in the declaration and as above set forth) relative to the extension of time of payment of said notes in consideration of the interest having been paid in full; that at one of the interviews she had with Comstock “it was pointed out to me that one reason why the notes ought to be a good investment was that the interest had been kept paid up.” The evidence does not disclose who made the indorsements extending the time of payment of said notes. Both Miller and defendant testified they never paid any interest on the notes and did not make or authorize said indorsements. Plaintiff further testified that in January, 1899, she called on Miller and asked him if he intended to pay said notes when they became due; that he replied that “he never intended to pay them and that when they were made he did not expect to pay them,” and that at this interview she for the first time learned that said trust deed was only on said leasehold estate.

On January 13,1902, plaintiff by written instrument assigned all her right, title and interest in and to the present action (then pending) against the defendant to W. T. Alden, “a member of the law firm of Alden, Latham & Young,” and also assigned to said Alden said four notes, and in said instrument of assignment directed said Alden out of the proceeds of said litigation on said notes “to pay all court costs * * *; second, to pay said Alden, Latham & Young any and all attorney’s fees that may be due them by me; third, to pay any and all balance arising from said litigation to one Caroline L. Overman, wife of Charles E. Over-man.” On April 5, 1902, plaintiff filed a petition in bankruptcy in the district court of the United States for the district of New Jersey; she was duly adjudicated a bankrupt and the order of her discharge was entered June 9, 1902. Her cause of action against defendant was not scheduled in the bankruptcy court, and for the reason, as she testified, that the same was not an asset of hers as she had previously assigned the same to Alden and had no interest therein.

The defendant Springer testified that the four notes in question were never negotiated by him; that they were in his possession at one time together with a number of others of the same series; that the four notes together with other notes, aggregating in amount $40,000, were stolen from his desk by a man named Curry; and that when the four notes were in his possession there was no indorsement on the back of any of them to the effect that the interest had been paid.

Counsel for defendant, in urging á reversal of the judgment, contend that an action of fraud and deceit cannot be assigned, and that it is not such an action as survives under the statutes of this state. By the express terms of section 122 of chapter 3 of our statutes (Hurd’s 1909) it is provided that “all actions for fraud and deceit” survive. In Selden v. Illinois Trust & Savings Bank, 239 Ill. 67, 78, it is said: “As a general rule, assignability and survivability of causes of action are convertible terms. ’ ’ And the rule seems to be quite general, leaving out of view questions of public policy, that causes of action, which under the. law survive, are assignable. 2 Am. & Eng. Ency. Law (2nd Ed.), p. 1017. We see no reason why, under the facts of this case, the general rule as to the assignability of causes of action is not here applicable, and we, therefore, cannot agree with the contention of counsel. Neither can we agree with counsel that when plaintiff filed her petition in bankruptcy on April 5, 1902, her right of action against defendant passed to her trustee in bankruptcy. Plaintiff’s assignment to Alden is dated January 13, 1902, and, conceding for the sake of the argument that this constituted an unlawful preference, the most that can be said in favor of counsel’s position is that such assignment was only voidable under section 60 of the Bankruptcy Act of 1898. It does not appear that any steps were taken in the Bankruptcy court to set aside the assignment as being a preferential one, and it is not subject to such a collateral attack in this action. See also the cases of Sawtelle v. Rollins, 23 Me. 196, and Hayes v. Pike, 17 N. H. 564.

It is also contended that after the date of said assignment to Alden the action should have been prosecuted in ,the name of Alden, and not in the name of plaintiff for the use of Alden. The contention is without merit. City of Carlyle v. Carlyle Water, Light & Power Co., 140 Ill. 445, 452; North Chicago St. R. Co. v. Ackley, 171 Ill. 100, 120; Foreman Shoe Co. v. F. M. Lewis & Co., 191 Ill. 155, 157; Mutual Life Ins. Co. v. Allen, 212 Ill. 134, 139.

It is further contended that it was not shown by a preponderance of the evidence that plaintiff was the owner of the stone, which as she testified she sold to Comstock for said notes, or that she gave anything of value for the notes, and that, therefore, she was not damaged because the notes proved to be worthless. No good purpose would be served in here setting forth in detail the testimony of the various witnesses on these questions. They were questions for the jury to pass upon, and we cannot say that the entire record shows that plaintiff was not an innocent purchaser of the notes for value. Neither can we say that the entire record shows that the notes in question were stolen from the defendant and that plaintiff had notice of that fact before she purchased them, as contended for by counsel. These, also, were questions for the jury under all the evidence.

It is further contended that plaintiff was not a purchaser of the notes before the maturity thereof, and for the reasons that, according to plaintiff’s testimony, she did not purchase them of Comstock until the latter part of November, 1898, that the notes, according to their face, were due fifteen months after August 6, 1897, or on November 6, 1898, and that both Springer and Miller testified that they did not make or authorize the indorsement above mentioned extending the time of payment. Plaintiff testified that when she purchased the notes of Comstock said indorsements were on the back of the notes, and there was no evidence to the contrary. We think that under all the facts and circumstances of this case plaintiff must be regarded as a purchaser of said notes before maturity.

Counsel contend that the trial court erred in refusing to admit certain offered testimony and in giving and refusing to give certain instructions. We do not think any error was committed in these particulars prejudicial to defendant.

After a careful examination of the voluminous record we have reached the conclusion that the judgment of the trial court should be affirmed. While the evidence did not show that the defendant received anything of value from plaintiff for the notes purchased by her, this was not necessary to be proved to- entitle plaintiff to recover. Leonard v. Springer, 197 Ill. 532, 539. After this cause was taken under advisement by this court (February 24, 1911), the appellant, Warren Springer, departed this life on February 8, 1912, and on October 3, 1912, his death was suggested of record in this court. On that day, on motion of the attorneys for appellee, it was ordered that the judgment of this court, when entered, be entered nunc pro tuno as of a date prior to February 8, 1912. Danforth v. Danforth, 111 Ill. 236; Seymour v. O. S. Richardson Fueling Co., 205 Ill. 77, 86. Accordingly the judgment of the Superior Court of Cook county will be affirmed, nunc pro iunc, as of February 1, 1912.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Robert W. George, Defendant in Error, v. William E. Milligan, Plaintiff in Error.
    Gen. No. 17,357.
    1. Landlord and tenant—what receipt for deposit as guaranty as to restoration of building does not vary lease relating thereto. Where a lease under seal provides that a sum deposited shall be as a guaranty that the building will be restored as received, and an assignee of the lease by a writing under seal assumes all its covenants and conditions and deposits a like sum, and an agent of the real estate dealers acting as the landlord’s agents signs a receipt providing that such deposit is to be held, till the expiration of the lease, “to replace the front of the store,” such receipt cannot vary the terms of the agreement under seal as to the restoration of building as received.
    2. Appeals and errors—when defendant cannot object to verdict. Defendant cannot complain of a verdict for plaintiff for $150 on the ground that any verdict rendered should have been for $200, where plaintiff does not object.
    Error to the Municipal Court of Chicago; the Hon. James Ct Martin, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Affirmed.
    Opinion filed November 29, 1912.
    Lavern W. Thompson, for plaintiff in error.
    P. H. Bishop, for defendant in error.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.

This writ is prosecuted to reverse a judgment for $150, entered in the Municipal Court of Chicago, January 28, 1911, in favor of defendant in error (hereinafter called plaintiff) and against plaintiff in error (hereinafter called defendant). The judgment was entered on the verdict of a jury assessing plaintiff’s damages at $150:

Plaintiff’s action was brought to recover from defendant rent for a store in the city of Chicago, at the rate of $80 per month, for one-half of the month of February and all of the months of March and April, 1910, or a total sum of $200: On November 11, 1907, plaintiff, by written lease, rented the store, “to be occupied for a five cent theatre,” to S. Van Ronkle and Charles R. Landsberg, for the period ending April 30, 1909, which period was, by proper indorsement, extended to April 30, 1910. The lease was signed and sealed by the parties on a printed form, commonly in use, and contained the usual covenants. The following provision was written in typewriting in the body of the lease:

“Parties of the second part (lessees) to place $200 in escrow with McKey & Poague as a guarantee that store will be put back in same condition at the expiration of the lease as when taken by them.”

After the lease was signed, the lessees deposited $200 with McKey & Poague, who were plaintiff’s agents, took possession of the store and made extensive alterations, not only in the front of the store but in the interior. After these alterations were completed, the lessees conducted a five cent theater on the premises. On March 16,1909, said lease was assigned by said lessees to defendant, plaintiff as landlord consenting in writing to the assignment, and defendant signed an acceptance of said assignment under seal on the back of the lease as follows:

“In consideration of the above assignment and the written consent of the party of the first part thereto, I hereby assume and agree to make all the payments and perform all the covenants and conditions of the within lease, by said party of the second part to be made and performed.”

It appears from the evidence that a day or two before the assignment was executed, Van Eonkle and defendant met at the office of McKey & Poague. Van Eonkle wanted to get back the $200 so put in escrow with McKey & Poague, and defendant objected to putting up $200 in its place. Mr. Gates, renting manager for McKey & Poague, was appealed to, and he told them that he did not care what arrangements were made between Van Eonkle and defendant, but that he, Gates, insisted upon the money remaining in escrow, and that, if defendant wished to accept an assignment of the lease from Van Eonkle, defendant would have to accept all the conditions of the lease. Defendant subsequently sent Gates $200, for which Gates gave defendant a receipt and Gates paid $200 to Van Eonkle. This left $200 still on deposit with McKey & Poague. The said receipt is dated the same day as the assignment and defendant’s said written acceptance thereof, and is as follows:

“Beceived of W. E. Milligan $200 as escrow deposit on 466 E. 63rd St., to be held until the expiration of lease to replace the front of store. '
McKey & Poague,
Gates.”

It will be noticed that by the provision in the original lease, (which provision defendant by his acceptance of the assignment of said lease agreed to perform) the $200 in escrow was to guarantee that “store will be put back in same condition at the expiration of the lease as when taken,” but that the language of said receipt suggests that the restorations required should be limited to “the front of store.” A few days before the period of the lease, as extended, had expired, viz.: April 30, 1910, the amount of rent due and unpaid was $270, and defendant called on Gates and informed him that he had arranged with one- Sexton to .restore the front of the store, paid Gates $70 on account of rent and requested the latter to apply the $200 on deposit in payment of the balance of the rent due. Gates declined to do this until the premises were restored to the condition they were in at the time the lease was originally signed. Defendant then advanced the argument, and now contends in this court as the main reason why the judgment should be reversed, that the provision in the lease as to the restorations to be made was modified as to him by said receipt and that if defendant restored “the front of the store” he was entitled to have the $200, so deposited, applied on the balance of the rent due. The evidence tends to show that subsequently to defendant’s call on Gates, defendant did certain work towards restoring the front of the store as it was at the time the lease was originally signed, but that defendant made no attempt to so restore the balance of the store; that Gates refused to accept the work done on the front of the store, and proceeded to make the repairs necessary to put the store in the condition it was in when the lease was originally signed; that the cost of this work exceeded $200; and that defendant refused to pay the balance of the rent due, $200, whereupon this suit was commenced. We are of the opinion that defendant’s contention is without merit. The receipt was not signed by the plaintiff, as landlord, does not purport to be the act of the landlord by his agents, and such receipt cannot vary the terms of an instrument under seal signed by defendant. If it was the intention of both the landlord and the new tenant that only the front of the store should be restored at the end of defendant’s tenancy, that intention should have appeared in appropriate language in the acceptance of the lease which defendant signed. Furthermore, it appears from the testimony of Gates that the particular wording of the receipt, different from said provision in the lease, was a mistake on his part.

Complaint is also made that the trial court erred in refusing to admit certain evidence offered by defendant, in admitting certain evidence offered by plaintiff, in denying the request of defendant’s counsel to be allowed the opening and closing arguments to the jury, and in giving certain oral instructions to the jury, but in our opinion the complaints are not well founded. Counsel also makes the point that any verdict rendered in favor of plaintiff should have been in the sum of $200. The defendant cannot complain of this and plaintiff does not. The judgment of the Municipal Court is accordingly affirmed.

Affirmed.


text:
    Louis Douer, Appellee, v. E. L. Knapp, Appellant.
    Gen. No. 17,391.

      Evidence—admissibility of alleged pieces of splintered jaw. In an action against a dentist for malpractice, where it is alleged that plaintiff’s jaw was splintered when a tooth was extracted, it is not error to admit envelopes containing pieces of hone which plaintiff testified worked out through his gums.
    Appeal from the Superior Court of Cook county; the Hon. Albert C. Barnes, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Affirmed.
    Opinion filed November 29, 1912.
    Rehearing denied December 12, 1912.
    Lowes & Richards, for appellant.
    Harry M. Fisher, for appellee.
   Mr. Presiding Justice Gridley

delivered the opinion of the -court.

This is an action in case commenced in the Superior Court of Cook County, April 5, 1906, by Louis Douer, appellee and hereinafter called plaintiff, against E. L. Knapp, a. dentist, appellant and hereinafter called defendant, to recover damages for alleged malpractice. The case has been tried twice. On the first trial, April 27,. 1908, the jury disagreed. On the second trial, September 23, 1910, the jury found the defendant guilty and assessed plaintiff’s damages at the sum of $750, upon which verdict judgment was entered for that amount and costs and defendant has appealed to this court.

Plaintiff’s declaration charged, in substance, that while defendant was exercising the profession of a dentist, plaintiff, on August 12, 1905, retained and employed defendant as such dentist for a reward to attend, treat and extract one of the teeth of plaintiff, with which plaintiff was then and there suffering, and defendant accepted said retainer and employment; that defendant, not regarding his duty as such dentist, so unskilfully and negligently conducted himself, by and through his want of skill and care in treating and extracting said tooth and by reason of his negligence, splintered, broke and lacerated the jaw bone and the surrounding muscles and tissues of the plaintiff, and then and there caused plaintiff great and unnecessary anguish and distress, etc., to the damage of plaintiff, etc.

It appears from the evidence that on August 12, 1905, plaintiff, suffering from a toothache, went to the office of defendant to have the tooth extracted; that defendant extracted the tooth; that in so doing he pulled the tooth very hard and forcibly; that plaintiff claimed that defendant at the time of extracting the tooth cracked and splintered the lower jaw of plaintiff ; that defendant denied that at that time he cracked and splintered plaintiff’s jaw, but he testified that after extracting the tooth he made no examination of plaintiff’s mouth or jaw, and did not manipulate it so as to ascertain if anything had happened to the jaw; that after plaintiff went home he suffered severe pain, which increased in severity, and after the lapse of several days he discovered that a piece of bone was working out through the gum, and he again called on defendant for further treatment; that a day'or two after this plaintiff called on another dentist, Dr. Cork, for treatment; that in February, 1906, plaintiff was taken to a hospital, where he was operated upon and a portion of his jaw bone taken out; that plaintiff testified that, between the time of his second visit to the office of defendant and the time of such operation, twenty-two or twenty-three pieces of his jaw bone worked out through the gums, which plaintiff .removed.

The witnesses called on behalf of plaintiff were plaintiff, and a Dr. Halprin as an expert. The witnesses called on behalf of defendant were defendant, said Dr. Cork, and a Dr. Beam as an expert.

Counsel for defendant contend that the trial court erred in refusing to direct a verdict for the defendant, and that the verdict is against the weight of the evidence. After an examination of the record we cannot say that the court erred in submitting the case to the jury or that the verdict is manifestly against the weight of the evidence. The case was one for a jury to pass upon and, in our opinion, the verdict should not be disturbed.

Counsel for defendant also urge that the trial court erred in admitting in evidence certain envelopes and their contents, (which contents were pieces of bone that plaintiff, as he testified, removed from his jaw), and in modifying and giving as modified three instructions to the jury offered by defendant. We are of the opinion that no error was committed in these particulars. The judgment of the Superior Court is affirmed. •

Affirmed.


text:
    C. M. Moderwell & Company, Plaintiff in Error, v. Farmers Grain & Feed Company, Defendant in Error.
    Gen. No. 17,393.

      Sales—where freight charges on goods refused are deducted from selling price of goods accepted. Where defendants ordered two cars of coal from plaintiff, accepted one car and paid the freight on both, a judgment for the selling price of car accepted less freight charges on both cars is sustained, where plaintiff appeals, since it does not appear that it was shown by a preponderance of the evidence that the coal was the kind ordered, or that the verdict is against the weight of evidence.
    Error to the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Affirmed.
    Opinion filed November 29, 1912.
    Rehearing denied December 12,1912.
    Ullmann, Hoag & Davidson, for plaintiff in error.
    No appearance for defendant in error.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.

Plaintiff in error, hereinafter called plaintiff, recovered a judgment in the Municipal Court of Chicago against defendant in error, hereinafter called defendant, for $52.97 and costs. Plaintiff prosecutes this writ to reverse the judgment on the ground that the same should have been for a larger amount. The case was tried before the court without a jury. Defendant did not enter its appearance in this court, and we have not been favored with a brief and argument in its behalf.

Briefly stated, the facts are that defendant placed an order with plaintiff for three cars of Indiana Lower Vein Block coal, at $2.80' per ton, delivered; that defendant was entitled to deduct from the invoice price the freight on each car, which the railroad company required should be paid before it would make delivery; that plaintiff accepted the order and shipped two cars ; that one of these cars was accepted—the invoice price of which was $119.13, and the freight thereon $30.28, mailing the net amount due on this car $88.85; that the other car was rejected by defendant after receipt and examination, and that the invoice price of this rejected car was $143.50, and the freight thereon .$35.88’. When defendant rejected this latter car it claimed the right to deduct the freight paid on said car from the amount it owed plaintiff for the first car, viz.: $88.85, and as the court found from the evidence that defendant had a right to reject this car, the court assessed the plaintiff’s damages for said amount, less the freight paid by defendant on the rejected car, amounting to the net sum of $52.97, upon which finding the judgment was entered.

As stated by counsel for plaintiff, the only question involved in this record is whether or not the- defendant had a right to reject said latter car. Counsel claim that under the evidence it had no such right, and that defendant owes plaintiff the sum of $88.85 for the accepted car and for the net sum due on the rejected car, viz.: $107.62, making a total sum of $196.47, for which sum judgment should have been entered. Counsel argues that the evidence shows that Indiana Lower Vein Block coal was ordered and that such coal was delivered, and that, therefore, plaintiff was entitled to recover for the rejected ear, notwithstanding that the coal in that car was not merchantable, or of good quality, as claimed by defendant, and that this is so because there is no implied warranty as to the fitness of coal for any particular purpose where the same is sold under a trade name, citing, Peoria Grape-Sugar Co. v. Turney, 175 Ill. 631. After careful examination of the transcript' of the record, we cannot say that it is shown by a preponderance of the evidence that Indiana Lower Vein Block coal was in fact delivered to defendant, or that the verdict and judgment are manifestly against the weight of the evidence, and we are not disposed to disturb the judgment, which is accordingly affirmed.

Affirmed.

Mr. Justice MeSurely took no part in the decision of the case.


text:
    Patrick Crowley, Appellee, v. Frank M. Stresenreuter, Appellant.
    Gen. No. 17,414.
    1. Pleading—what general issue admits in effect. Where it is alleged that plaintiff received personal injuries while working for a partnership engaged in erecting a certain building, and one member thereof is served, a plea of the general issue in effect admits that defendant is a partner and that the firm is constructing a building.
    2. Continuance—amendment of pleadings. Where, in a personal injury action' against four persons as a partnership, only one was served and the court allowed a discontinuance as to the three not served and an amendment of the pleadings by striking out the word “partnership” and by inserting the name of an alleged corporation to which such persons belonged, if it was the intention to discontinue as to the individual defendant and to have the cause proceed against such corporation, defendant’s motion for continuance and for service on the corporation and return, etc., should have been allowed.
    3. Practice—what order justifies defendant in assuming he is not defending as partner. In an action against an alleged partnership for personal injuries, where one member thereof is served and an order allows the proceeding to be amended by discontinuing as to the three not served, by striking out the word “partnership,” and by inserting the name of an alleged corporation to which all belong, if the one served is ordered to put in his evidence, he has a right to assume that he is not making his defense as a member of a partnership.
    4. Judgment—when error to enter judgment on verdict. Action for personal injuries was brought against an alleged partnership and one member was served. An order was entered allowing discontinuance as to the others and amendment of proceedings by striking out the word “partnership” and inserting the name of an alleged corporation to which the partners belonged. Defendant’s motion for continuance and for service on the corporation and return was denied. The person served was ordered to put in his evidence. The order allowing discontinuance and amendment was set aside on motion.made in the presence of the jury and an order was entered allowing the issue to stand against the person served individually and as a partner. Verdict was rendered for plaintiff and judgment entered. Held, the court erred in entering judgment against defendant.
    5. Jury—examination of jurors. In a personal injury action against an alleged partnership, prejudicial error is committed where objections are overruled to questions in the examination of jurymen which tend to give the impression that defendant is insured against such accidents and is being defended by a casualty company, and a motion for a new panel is denied.
    Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. H. Sterling Pomeroy, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Reversed and remanded.
    Opinion filed November 29, 1912.
    H. L. Howard, for appellant.
    No appearance for appellee.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.

This is an appeal from a judgment of the circuit court of Cook county for $2,500 rendered upon a verdict of a jury in favor of appellee (hereinafter called plaintiff) against appellant (hereinafter called defendant) in an action for damages for personal injuries. No appearance of appellee has been entered in this court.

The action was commenced on July 31, 1909, against A. L., Charles H., and Henry L. Stresenreuter and defendant, as partners doing business as Stresenreuter Brothers. The defendant alone was served. Plaintiff’s declaration, which consisted of one count, charged that on February 15, 1909, said four persons were engaged in constructing a building at the intersection of Carroll avenue and Ada street in Chicago, that plaintiff was their employee for hire on said work and subject to their order, that they negligently ordered plaintiff to lay a certain heavy joist across a span of about fifteen feet, that the sill or timber on which it was to be placed was icy and slippery, making said work especially dangerous, that there should have been two men to do said work, that plaintiff objected to doing said work alone but believed that by exercising great care he could obey said negligent order, whereby, because of said negligent order and while exercising due care for his own safety, one end of said joist fell off the sill while plaintiff was placing the same and caused him to fall to the floor below and thereby he was injured, etc. To this declaration defendant pleaded the general issue. This plea in effect admitted the capacity in which the defendant was sued, viz.: as a partner in the business of Stresenreuter Brothers, a partnership, and that said partnership firm was engaged in the construction of said building. McNulta v. Lockridge, 137 Ill. 270; Morris v. Williams, 143 Ill. App. 140. No attempt seems to have been made by alias summons to bring the other codefendants into court. The case was called for trial before a jury on July 11, 1910. Plaintiff doubtless proceeded on the theory that “partners are jointly and severally liable for torts committed in the course of the partnership business,” Wisconsin Cent. R. Co. v. Ross, 142 Ill. 9, 15, and to prove the case as laid in his declaration called six witnesses who were examined and cross-examined. The testimony showed that the order, claimed to have been a negligent one and relied on by plaintiff, was given by Charles H. Stresenreuter, who was acting as foreman on the job. At the conclusion of plaintiff’s case, July 12, 1910, plaintiff’s attorney asked leave to file an additional count to the declaration, which motion was allowed and said additional count against said four codefendants filed. This count left out the two allegations as to the icy and slippery condition of said sill or timber and as to the objection of plaintiff to doing the work alone, and charged that “the defendants * * * negligently ordered the plaintiff to alone lay certain heavy joists in piles across a- span of about fifteen feet, and the said work was especially dangerous and unsafe and there should have been two men to do said work, yet the plaintiff believed that by exercising great care and'caution he could obey said negligent order, whereby,” etc. Defendant’s attorney then moved for a directed verdict for defendant, which motion was denied and the court adjourned for the noon recess. The bill of exceptions discloses that when the court reconvened, and “after discussion on motions,” plaintiff’s attorney dismissed the action as to all the defendants except Frank M. Stresenreuter, defendant, and the court entered a rule on him to plead to the additional count instanter, and asked defendant’s attorney if he desired to demur thereto, to which said attorney replied that he did not. No plea was filed to said additional count, but evidence on behalf of the defendant was introduced. We are uncertain, from the transcript of the record before us, who the “defendant” then was. It appears from said transcript that on said day, July 12, 1910, the court entered an order of record in which it appears that

“On motion of plaintiff’s attorney leave * * * is hereby given the plaintiff to file an additional count instanter, and * * * defendants * * * are required to plead to said additional count instanter, and on motion of plaintiff’s attorney it is ordered that all papers and proceedings herein * * # are hereby amended by discontinuing as to A. L., Charles H., and Henry L. Stresenreuter, and leave is hereby given the plaintiff to amend all papers on file by striking out the tvord partnership and inserting the words Stresenreuter Brothers, a corporation. Thereupon the defendant enters his motion for a continuance of said cause for time to plead to service and return of service which motion is denied. ’ ’

If it was the intention of the court on plaintiff’s motion, as disclosed from the latter part of said order, to discontinue the case at this stage of the proceedings as to the individual defendant, Frank M. Stresenreuter, and have the cause proceed against Stresenreuter Brothers, a corporation, we think the motion of defendant for a continuance of the cause and for service on the corporation, return of service, etc., should have been allowed. If the intention was that the cause should proceed against Frank M. Stresenreuter, as a member of said corporation instead of as a member of a partnership, no individual liability of said defendant, Frank M. Stresenreuter, had been shown. In any event, when defendant was directed by the court to proceed and put in his evidence, he had a right to assume that he was not making his defense as a member of a partnership-. The defendant’s evidence disclosed, among other things, that Stresenreuter Brothers was an Illinois corporation, incorporated in January, 1908, prior to the time of the injury to plaintiff, and its charter was introduced in evidence by defendant without objection. The taking of the entire evidence of the case, including plaintiff’s rebuttal testimony, was completed during the afternoon of July 12, 1910-, and the court adjourned until July 14, 1910. On that morning, after the court had reconvened, the bill of exceptions discloses that, in the presence of the jury, plaintiff’s attorney moved that all testimony as to the incorporation of Stresenreuter Brothers, including the charter, be stricken from the record, that the order theretofore entered, amending all papers by striking out the word “partnership” and inserting the word “corporation,” be set aside, and that the issue stand as against Frank M. Stresenreuter, individually and alone, as a member- of said partnership firm. The motion was allowed by the court, an order entered of record to that effect and defendant excepted. Defendant also renewed his motion made at the close of plaintiff’s case for a directed verdict in favor- of defendant, which motion was denied and an exception taken. The jury were then instructed by the court and retired, and later returned a verdict finding the defendant guilty and assessed plaintiff’s damages at $2,500, upon which .verdict the judgment appealed from was entered.

In view of the foregoing we are of the opinion that the trial court erred in entering the judgment against defendant.

We are also of the opinion that error, prejudicial to the defendant, was committed at the very commence-ment of the proceedings on the trial, in that the court overruled defendant’s objections to certain questions asked by plaintiff’s attorney of several jurymen and denied defendant’s motion that a new panel of jurymen be called. It appears from the bill of exceptions that plaintiff’s attorney, in his preliminary examination of the jurymen as to their qualifications, etc., asked certain questions of several of them which tended to give the impression that the defendant was insured against liability for accidents of the character of the one in question in a casualty company, and that the defendant was being defended by such a company. George A. Fuller Co. v. Darragh, 101 Ill. App. 664; Wiersema v. Lockwood & S. Co., 147 Ill. App. 33; McCarthy v. Spring Valley Coal Co., 232 Ill. 473.

We express no opinion as to the substantial merits of plaintiff’s case, but for the errors indicated the judgment of the Circuit Court is reversed and the cause remanded

Reversed cmd remanded.


text:
    Chicago & West Suburban Express Company, Appellee, v. City of Berwyn, Appellant.
    Gen. No. 17,438.
    1. Municipal cobpobations—liability for injuries from defeats in streets. A municipal corporation may be liable for personal injuries caused by a defect in a street, though the defect was not open and notorious, if it was the natural and ordinary result of use or climatic influences and such corporation failed to make sufficiently frequent examinations.
    2. Municipal cobpobations—when question of anticipation of danger for jury. Whether a municipal corporation should have anticipated the accident is for the jury, where the evidence shows that a rusty and worn wire, unused and not examined for six years, which crossed a street over live trolley wires, broke during a wind and fell across such trolley wires and against plaintiff’s mule, injuring him.
    Appeal from the Superior Court of Cook county; the Hon. Thomas C. Clark, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Affirmed.
    Opinion filed November 29, 1912.

      Arthur R. Wolfe, for appellant.
    Brady, Barnum & Rutledge, for appellee.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.

This is an appeal from a judgment of the Superior Court of Cook County for $200, entered December 31, 1910, against City of Berwyn, appellant and hereinafter called defendant, in favor of Chicago & West Suburban Express Company, a corporation, appellee and hereinafter called plaintiff. The action was for damages for injuries to a mule and was originally brought against defendant and the Town of Cicero, but during the trial, on motion of plaintiff, the Town of Cicero was dismissed out of the case. At the conclusion of plaintiff’s evidence, counsel for defendant moved the court to instruct the jury to find the defendant not guilty, which motion was denied, whereupon, the defendant electing not to submit any evidence in its behalf, the jury returned a verdict finding the defendant guilty and assessing plaintiff’s damages at the sum of $200, upon which verdict the judgment appealed from was entered.

The facts are, substantially, that on April 15, 1908, a servant of plaintiff was seated on a wagon driving plaintiff’s mule on Bidgeland avenue, near where it intersects Thirty-first street, in the City of Berwyn, Cook County, Illinois, when a wire attached to a pole at the corner of the intersection of said streets broke and fell over the live electric wires of a street car company which were strung along said Bidgeland avenue; that the wire hit the mule “back of the ear along the side and a little on the belly and the mule fell down;” that one ear of the mule was almost severed and hung by a fragment; that because of the injuries sustained by the mule it had to be subsequently killed ; that it had been driven by said servant of plaintiff every other day for about three years prior to the accident over the same route, and was of a value of from $200 to $250; that the wire “must have broke” just as said wagon got under it and when it struck the mule “flashes of electricity” were seen “coming out;” that it was a windy day and that the wind “knocked” the wire down; that the pole to which the wire had been attached was within the corporate limits of the City of Berwyn; that the wire had formerly been used for fire alarm purposes, viz.:—when a fire occurred in the Town of Cicero, which used water supplied by the water works of the defendant, a call was sent over the wire to put on more pressure; that about six years prior to the accident, the Town of Cicero got its own pumping station and such use of the wire was then discontinued and thereafter the wire was not used for any purpose; that the wire had been put up about ten years prior to the accident, and for about six years prior to the accident had not been inspected by the city engineer or other proper officials of defendant, or any attention paid to it, and that after the wire broke and fell down, it was found upon examination to be of a “rusty color” and “old and worn.”

The main contention of counsel for defendant is that there is no evidence in the record showing any actual or constructive notice to the defendant of the defective or dangerous condition of the wire which broke and fell upon the live wires of the street car company. Counsel concedes it to be the law that it is the duty of a municipal corporation to keep its streets in a reasonably safe condition so that people and teams may pass along the same without being exposed to dangers from obstructions, either on the surface of the street or overhead, and argues that before such a corporation can be held liable it must appear that the corporation had actual notice of the dangerous obstruction or of its existence for such a length of time that, notice may be inferred, that in this case a sudden wind caused the wire to break and fall, that defendant was under no obligation to inspect or examine the condition of the wire previous to the accident, and that, therefore, prior to the moment of the accident the defendant had neither actual nor constructive notice of its dangerous condition. We are of the opinion that under the evidence in this case it was for the jury to say whether or not the defendant knew or should have known of the dangerous condition of the wire. City of Decatur v. Hamilton, 89 Ill. App. 561, 568. The duty of a municipal corporation to use ordinary care in keeping its streets in a safe condition for public travel sometimes involves the anticipation of defects or dangers that are the natural or ordinary result of use or climatic influences, and a failure on the part of the proper officials of such corporation to make sufficiently frequent examinations may render that corporation liable, although the defect or danger may not be open and notorious. City of La Salle v. Porterfield, 138 Ill. 114, 119. In this case the evidence discloses that the wire crossed one of the streets of the defendant at the intersection of another street and over the wires of a street car company which wires were sufficiently charged with electricity to run the cars of that company, that the wire had been strung for about ten years, and that for about six years prior to the accident it had been out of use and had not been examined during that period or any attention given it by the proper officials of defendant. We think it was for the jury to say whether the defendant should not have anticipated that, because of lapse of time and the action of the elements, the wire would become “old and worn” and “rusty” and liable at sometime by the force of the wind to break and fall upon the live wires of the street car company, thereby endangering passers by, and we cannot say that the verdict is manifestly against the weight of the evidence.

The other contentions advanced by counsel,—that it was not sufficiently proved that the mule was owned by plaintiff, or that defendant either owned or controlled the wire and poles to which it was attached—we deem —to be without merit. The judgment of the Circuit Court is accordingly affirmed.

Affirmed.


author: Mr. Presiding Justice Gridley Mr. Justice McSurely

text:
    Casper L. Redfield, Appellee, v. Lorimer-Lundquist Company et al., Defendants. On appeal of James D. Lynch, Appellant.
    Gen. No. 18,682.
    1. Injunction—when proper to temporarily restrain prosecution of suit. A stockholder of a corporation transferring its patent rights to another corporation in exchange for a portion of its stock received the stock as trustee. The purchasing corporation sold the patent rights and declared a dividend, hut payment on the dividend check to the trustee was refused owing to the absence of an official signature claimed to have been omitted by collusion in order that a claim of an alleged stockholder of the original corporation might be enforced. Such stockholder filed a bill in equity to determine his rights, the purchasing corporation filed a bill of interpleader and the trustee instituted an action at law against such corporation for the amount of the dividend check. Held, it was proper at the instance of the claimant stockholder to issue a temporary injunction restraining the trustee from prosecuting his action at law.
    2. Injunction—when bond should be required. An alleged stockholder of a corporation transferring its patent rights to another corporation in exchange for a portion of its stock, which was received by a stockholder of the selling company as trustee, filed a bill to determine his rights in a dividend of the purchasing company owing to the trustee. The purchasing corporation filed a bill of inter-pleader and the trustee instituted an action at law against such corporation for the amount of the dividend. A large sum was involved, the chancery proceedings were complicated, and if the claimant was defeated the trustee would be damaged by loss of interest and otherwise. Held, it was a wrongful exercise of discretion to temporarily restrain the prosecution of the action at law at the instance of the claimant without requiring a bond to be filed.
    3. Appeals and errors—when order is interlocutory and appeal-able. An in junctional order reciting that, a cause having been heard upon the pleadings, a certain person be restrained from further prosecuting an action until further order of the court, is such an interlocutory order as is appealable under R. S., c. 110, § 123. Certiorari denied by Supreme Court (making opinion final).
    McSurelv, J., dissenting.
    Appeal from the Superior Court of Cook county; the Hon. Theodore Brentano, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.
    Reversed and remanded with directions.
    Opinion filed November 29, 1912.
    Rehearing denied December 12, 1912, and opinion modified and refiled.

      Newman, Levinson, Becker & Cleveland, for appellant ; Jacob Newman, Hiram T. Gilbert, W. P. Thompson and Chester E. Cleveland, of counsel.
    Chytraus, Healy & Frost, Carl V. Wisner, Edwin White Moore and Barton & Folk, for appellee.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.

This is the appeal of James D. Lynch, by virtue of section 123 of chapter 110 of the Revised Statutes of Illinois, from an interlocutory injunctional order of the Superior Court of Cook County, restraining him from prosecuting an action at law, brought by him as trustee, in the Municipal Court of Chicago against the Lorimer-Lundquist Company. The injunctional order was issued without bond, May 28, 1912, and is as follows :

“This cause coming on this day upon the reading of the petition of Casper L. Redfield, praying for an order restraining James D. Lynch from prosecuting a certain suit at law, instituted by him in the Municipal Court of Chicago, or from taking any step or proceeding therein until the further order of this court, and upon the reading of the original bill of complaint, the cross-bill of complaint of John J. Brownrigg, the cross-bill of complaint of the Lorimer-Lundquist Company, and all answers of James D. Lynch, Prank A. Lundquist, A. L. Craig, John E. Norling, the Globe Automatic Telephone Company of New Jersey, and the Globe Automatic Telephone Company of Illinois, to the said original bill and said two cross-bills, and to the said petition of the said Redfield, and the court having heard arguments of counsel and being fully advised in the premises, It is ordered that the said James D. Lynch, his attorneys, solicitors, agents and representatives, be restrained, and that he refrain from further prosecuting the said action at law now pending in the Municipal Court of Chicago, entitled James D. Lynch, trustee, vs. Lorimer-Lundquist Company, a corporation, No. 205676 upon the docket of said Municipal Court, until the further order of this court.”

It appears from the certificate of evidence, signed and sealed by the chancellor, that Redfield’s bill, his petition for an injunction, and the cross-bills of Brownrigg and of the Lorimer-Lundquist Company were sworn to; that the various answers of the defendants, mentioned in said injunctional order, to said bill and cross-bills were also sworn to, including the answer of Lynch to said petition of Redfield, with the exception of the answer of the Globe Automatic Telephone Company of Illinois to Redfield’s bill; and that all of said pleadings, together with a certain amendment to the cross-bill of the Lorimer-Lundquist Company and the disclaimer of John K. Norstrom “were all the matters read to or considered by the court and all the evidence introduced on the hearing of the motion for an injunction.”

The praecipe transcript of the record is very voluminous. There is an additional praecipe transcript consisting of the answer of the Continental & Commercial National Bank to Redfield’s bill, the formal replications of Redfield to the answers of Lynch, Lorimer-Lundquist Company, Craig, Norling and Lundquist to Redfield’s bill, and the answer of Brownrigg to the petition of one Walter H. Lee. Brownrigg’s answer to said petition is not sworn to and the petition of Lee is not in said transcript.

The appellant, Lynch, assigns as error that (1), the court erred in entering the interlocutory decree appealed from, and (2), the court erred in entering said order “without requiring from Casper L. Redfield any bond or security.” The same errors are assigned by Frank A. Lundquist. It is contended by counsel for Redfield that the order appealed from is not such an interlocutory order as is appealable under said section 123 of chapter 110, and that, therefore, the appeal should be dismissed. After careful consideration we are of the opinion that the order appealed from is within the purview of the statute and that the appeal is properly before us.

Some of the prominent facts of this case, as disclosed from the sworn pleadings, are: The Globe Automatic Telephone Company, of New Jersey (hereinafter called the Globe Co.) had dealings with the Lorimer-Lundquist Company (hereinafter called the Lorimer Co.), the result of which was that the Globe Co. transferred the major part of its assets, consisting of patent rights, to the Lorimer Co. in exchange for one-half of the issued stock of the Lorimer Co. The portion of stock to which the persons interested in the Globe Co. became entitled was put in the name of James D. Lynch, as trustee. Redfield claims a certain interest (more than one-fifth) in said stock so in the hands of Lynch. Lynch, Norling, Lundquist and Craig deny he has any interest. About May 20, 1911, the Lorimer Co. made an agreement with the Western Electric Company (hereinafter called the Electric Co.) by which it gave to the latter company an option to purchase the United States patent rights of the Lorimer Co. for $650,000. This option was consummated on September 2, 1911, and on that date the Electric Co. paid the Lorimer Co. the sum of $424,850, in cash, which was deposited in said Continental & Commercial National Bank to the credit of the Lorimer Co., and further agreed to pay the Lorimer Co. the sum of $125,000 on or about December 11, 1912, and $100,000 on or about December 11, 1913, provided certain terms and conditions were carried out by the Lorimer. Co., the said $225,000 being retained by the Electric Co. as security for the performance of the undertakings of the Lorimer Co. Prior to the payment of this large sum of money to the Lorimer Co., certain dissensions existing among the stockholders of the Lorimer Co. were settled, and Harrison B. Riley, president of the Chicago Title & Trust Co. was selected as one of the seven directors and as treasurer of the company, and, as the holder in trust of 2,000 shares of the 11,000 shares of issued stock, held the balance of the power between the contending factions. The other directors of the company were E. A. Shedd, N. D. Neill, and C. B. Shedd, representing the so-called “Lorimer” interests, and James D. Lynch, A. L. Craig and J. E. Nor-ling, representing the so-called “Globe” interests. James D. Lynch was president, E. A. Shedd, vice-president, and E. J. Shedd, secretary. Three days after said sum of $424,850 had been paid to the Lorimer Co., viz.: on December 5, 1911, all of the seven directors met at the company’s office in the Monadnock building, Chicago, and a dividend of thirty per cent, on the 11,000 issued shares was declared. It was required that checks be signed by Lynch as president and E. J. Shedd as secretary, and that they be counter-signed by Riley as treasurer. At the meeting several checks were drawn to pay certain debts of the company, and then the dividend checks were drawn, all bearing the required signatures, except one check amounting to $134,940, payable to Lynch as trustee, and being for the said dividend on 4498 shares of stock held by said Lynch as trustee. This check was signed by Lynch, as president, and also by Riley, but it was not signed by E. J. Shedd, as secretary, and this omission was, it is said, overlooked by Lynch and Riley at the time. It is alleged in Lynch’s sworn answer to Redfield’s bill that said check

“was purposely and intentionally not signed by E. J. Shedd, pursuant to a collusive and fraudulent conspiracy, * * * so that this defendant would not be able to collect said check, and in that way, E. J. Shedd, A. O. Wisner and Casper L. Redfield hoped to enable Redfield to hold up payment of said $134,940 and thereby force this defendant to pay Redfield his unconscionable, dishonest and corrupt demand, set forth in his bill of complaint; that said check was, by this defendant, presented to the Continental & Commercial National Bank of Chicago for payment, and the same was refused because it did not bear the signature of the secretary; that E. J. Shedd, Casper L. Redfield and A. C. Wisner admit that they were parties to said conspiracy, and knew that E. J. Shedd had not signed, and would not sign, the check, and that it was understood between them and Casper L. Redfield, that E. J. Shedd should pretend to sign, but in fact should not sign the check.”

It is further alleged in the answer of Lynch that, prior to the time the Globe Co. transferred its assets to the Lorimer. Co. and virtually became consolidated with it, he advanced from time to time to the Globe Co. the total sum of $55,788.53, on which interest amounting to nearly $10,000 has accrued; that Craig also loaned moneys to the Globe Co., as did Norling; that shortly prior to said sale to the Electric Co. it became necessary, in order to consummate said transfer, to obtain a certain release from Frank A. Lundquist, which he finally executed on condition that he should be paid the sum of $25,000 out of the first moneys received from said sale by Lynch, as trustee; that in equity and good conscience this $25,000 due to Lundquist, together with the moneys advanced by Lynch, Craig and Norling, together with interest thereon, should be first paid out of this dividend check of $134,940 before Redfield should receive anything therefrom, even though the latter should be able to establish “the fraudulent claims or some of them set forth in his original bill.”

Shortly after said meeting of December 5, 1911, Lynch presented said dividend check, payable to himself as trustee, to the bank for payment, but payment was refused because the check did not bear the signature of said secretary.

On December 11, 1911, Redfield filed his sworn bill, setting forth his interest in the stock so held by Lynch as trustee and his right to certain moneys out of said dividend check, and alleging that Lynch was conspiring with Craig, Norling, Lundquist, Riley and others to deprive him and other stockholders of said Globe Co. of their rights, and that Lynch held said stock both upon an express and upon an implied, resulting or constructive trust in his favor. The bill prayed that the court determine what moneys should be paid Bed-field out of said check and what portion of said stock belonged to him, which when ascertained should be transferred to him; that Lynch be enjoined from receiving and the Lorimer Co. from paying to Lynch any dividend wherein Bedfield had an interest; that the Lorimer Co. account to Bedfield; that the bank be enjoined from paying to anyone other than Bedfield any moneys of the Lorimer Co., wherein Bedfield is interested; that Bedfield’s interest in the foreign patents and other assets of the Lorimer Co. be ascertained, and that the Electric Co. discover the terms upon which the $225,000 to be paid the Lorimer Co. is held.

On January 29, 1912, John J. Brownrigg filed a cross-bill by the same solicitors as represented Bed-field. He adopted the allegations of Bedfield’s bill, and alleged that he owned 141 shares of stock of the G-lobe Co., and that he disapproved and disaffirmed the sale by the Lorimer Co. to the Electric Co. He prayed that the consolidation of the Globe Co. with the Lorimer Co. be declared void as a fraud on his rights and be set aside, that the sale to the Electric Co. be set aside, that his rights be protected, and that the bank and the Electric Co. be enjoined from paying out any of the moneys in their possession.

On February 5, 1912, the Lorimer Co. filed a cross-bill. Lynch was still the president of the company but the cross-bill was sworn to by H. J. Tansley, who said he was then the secretary. It was alleged that the Lorimer Co. had no interest in the controversy between Bedfield, Lynch and others; that it has in its possession money for distribution which it is ready and willing to pay to the persons entitled to it; and that as to the fund represented by said unpaid dividend check of $134,940 it cannot safely pay any portion thereof to Lynch except at the peril of being obliged to pay the same again to some claimant now a party to the litigation. The prayer was that Red-field and the other defendants, including Lynch, may be compelled to interplead and determine the ownership of said fund, that the Lorimer Co. may be permitted to pay into court the said sum of $134,940 in full satisfaction of its obligations to distribute the same to the persons entitled thereto, that Redfield, Lynch and others claiming said fund may be restrained from bringing suit against the Lorimer Co. after said payment into court, and that E. J. Shedd, or any other secretary of the company, be restrained from affixing his signature to said- check. Lynch in his sworn answer to this cross-bill alleged that the same was filed in the interest of Redfield and to carry out Redfield’s scheme to preyent Lynch from obtaining the money on said check, without Redfield’s being compelled to give any proper bond to answer in damages for tying up said money. The said $134,940 was not paid into court.

Neither Redfield nor said cross-complainants seemingly made any application to obtain temporary injunctions as respectively prayed for until Redfield filed his petition hereinafter mentioned. After Lynch had filed his sworn answer to the cross-bill of the Lorimer Co., and on the day before he filed his separate sworn answers to the bill of Redfield and the cross-bill of Brownrigg, Lynch, as trustee, commenced a suit in the Municipal Court of Chicago, March 6, 1912, against the Lorimer Co. to recover the amount of said dividend check, together with interest thereon from December 5, 1911.

On March 15, 1912, Redfield filed a sworn petition in this cause praying for ah order restraining Lynch from prosecuting said Municipal Court suit until the further order of the court. He alleged that “the cause of action set up by Lynch in said suit at law is based upon the same facts and has relation to the same fund and is based upon the same claim as is set up in petitioner’s bill of complaint; that the purpose of said suit is to withdraw from this court and transfer to the Municipal Court the jurisdiction of said claim and the right to determine the same issues as are set forth in petitioner’s bill and the answers, cross-bills, etc., thereto, and is in derogation of the right, dignity and jurisdiction of this court, and said parties in so doing are in contempt thereof.” On March 18, 1912, Lynch filed his sworn answer to this petition in which he denied that any interest in the fund was claimed by any parties adversely to him, except by Redfield and Brownrigg, and alleged that Brownrigg, on March 15, 1912, in consideration of $1,500 to him paid, assigned to Walter H. Lee all his right and interest in and to every matter involved in this cause and that Lee was endeavoring to have the cross-bill of Brownrigg dismissed. He admitted the bringing of said suit at law, denied that that suit was based upon the same facts or the same claim as was set forth in Redfield’s bill, alleged that the only issue involved in said suit at law was the indebtedness of the Lorimer Co. to Lynch as trustee, which indebtedness was not disputed by Redfield, and that Lynch was solvent and amply responsible financially to respond to any judgment or decree which might be obtained against him by Redfield, and denied that because of the prosecution of said suit at law he was in contempt of court. The facts alleged in Lynch’s answers to the bill of Redfield and the cross-bills of the Lorimer Co. and Brownrigg were made a part of his answer to said petition. In one of said answers Lynch tendered to Redfield a bond, with such sureties as the court might name, to indemnify Redfield from any loss that might arise to him, should the Lorimer Co. pay said sum of $134,940 to Lynch. After a protracted hearing on said petition' for an injunction, the chancellor granted the in junetion, from which this appeal is taken.

After careful consideration of the record before us we have reached the conclusion that the chancellor would have been justified in granting an injunctional order, under proper bond, restraining Lynch from prosecuting said suit at law until the further order of the court. By virtue of the filing of said bill, cross-bills, and the several answers thereto, the Superior Court, as a court of equity, had first obtained jurisdiction of the subject matters involved. It was proper for the court to retain that jurisdiction, in order to render full and complete equity to all the parties concerned, and to that end prevent any part of the litigation from being removed to another tribunal. But we are of the opinion that the court, in view of all the facts disclosed from the sworn pleadings, erred in granting said in junctional order without bond. Section 9 of chapter 69 of the Illinois Statutes requires an injunction bond except where, “for good cause shown,” the court be of the opinion that the injunction ought to be granted without bond. We think that the chancellor’s discretion in granting the injunctional order in this case without bond is a proper subject for review by this court. By the order Lynch, as trustee, is prevented from collecting, by the usual legal procedure, a large sum of money from the Lorimer Co., apparently until a complicated chancery litigation is concluded. He is so prevented at the instance of a party who claims but a fractional portion of said sum, and who, at the conclusion of said litigation, may or may not be decreed to be entitled to that portion. In the meantime, if Lynch should establish his contention that Bedfield is entitled to no part of said sum, the rightful owners of the same will suffer considerable damage in loss of interest and otherwise. The interest on said sum at the legal rate amounts to more then $6,700 per year, and it is charged that Bedfield is financially irresponsible. Because of the possible failure' of Bedfield after a full hearing on the merits satisfactorily to establish his claim to a portion of the fund, and a portion of the stock so held by Lynch as trustee, it seems to us equitable that provision be made for the payment of all damages resulting to the owners of said fund occasioned by the wrongful tying up of the money pendente lite. For the reasons indicated, the order of the Superior Court will be reversed and the cause remanded with directions to enter an interlocutory injunctional order as prayed in the petition of Casper L. Bedfield upon his filing an injunction bond in the usual form, in the penal sum of $25,000, conditioned for the payment to said James D. Lynch, trustee, of all costs and damages occasioned by the wrongful suing out of said injunctional order in case the same shall hereafter be held to have been wrongfully sued out and be dissolved. Each party to pay his own costs in this court.

Reversed and remanded with directions.

Mr. Justice McSurely

dissenting:—In my opinion the discretion vested in the chancellor was properly exercised in granting the injunction without bond.


author: Per Curiam.

text:
    Clarence O. Pauley, Defendant in Error, v. The King-Richardson Company, Plaintiff in Error.
    Gen. No. 18,536.
    1. Municipal court—stenographic report not filed in time will he stricken. Where no stenographic report or statement of facts in a fourth class case in the Municipal Court of Chicago is presented to the trial court, or filed within thirty days from the date judgment was entered, and no order is entered within said time extending the time to present the same, a so-called bill of exceptions or stenographic report will be stricken from the record on appeal.
    2. Municipal court—effect of striking stenographic report from record. Where a stenographic report of a fourth class case in the Municipal Court of Chicago is stricken from the record, and the errors assigned do not involve matters contained in the common-law record, the Appellate Court cannot consider any other error assigned, and the judgment will be affirmed.
    Error to the Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed December 5, 1912.
    Boyle, Mott & Haight, for plaintiff in error.
    Auden, Latham & Young, for defendant in error.
   Per Curiam.

This is a case of the fourth class in the Municipal Court, in which appellant suffered a judgment upon trial by a jury for $159.89, on the 16th. day of March, 1912. No stenographic report or statement of facts was presented to the court or filed within thirty days from the date judgment was entered, nor was any order entered within said time extending the time to present the same. A document called a bill of exceptions was filed May 2, 1912.

The defendant in error has moved this court to strike the so-called bill of exceptions or stenographic report from the record, which motion will be allowed.

The errors assigned do not involve matters contained in the common law record, and as we are not at liberty to consider any other errors assigned, the judgment of the Municipal Court is affirmed, following Devine v. Prudential Ins. Co., 156 Ill. App. 477.

Affirmed.


text:
    Peter H. Haffman for use of Chicago Gravel Company, Plaintiff in Error, v. Jennie S. Paradis and Bankers Surety Company, Defendants in Error.
    Gen. No. 18,693.
    Municipal courts—when writ of error must he sued out. A writ "of error not sued out in a fourth class case in a municipal court of Chicago within thirty days after entry of the final order, as provided by the Municipal Court Act, § 33, will be dismissed.
    Error to the Municipal Court of Chicago; the Hon. Oscar M. Tobrison, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.
    Writ of error dismissed.
    Opinion filed December 12, 1912.
    Ullman, Hoag & Davidson, for plaintiff in error.
    Rinaker & Beerly and E. C. Mapledoram, for defendant in error.
   Per Curiam.

This is a case of the fourth class in

the Municipal Court, and the defendant in error moves to dismiss the writ of error for failure to sue out the same within thirty days after the entry of the final order, as provided by section 23 of the Municipal Court Act.

The judgment of the Municipal Court which is sought to be reviewed was entered on January 10, 1912, and the writ of error herein was sued out on July 8, 1912, which was considerably more than thirty days thereafter.

Following the decision of this court in Novelty Tufting Mach. Co. v. Peters & Roberts Furn. Co., 170 Ill. App. 134, the motion to dismiss is allowed.

Writ of error dismissed.


author: Mr. Justice Fitch

text:
    Mills Novelty Company, Appellee, v. Patrick J. King, Appellant.
    Gen. Nos. 17,359-17360.
    1. Contracts—illegal consideration. Where slot machines are constructed so that they may be used for money and permit of gambling if the purchaser so chooses to use them, they are gambling devices and are not valid consideration for a promise to pay their purchase price.
    2. Contracts—evidence of knowledge of intended unlawful use. Where slot machines capable of a lawful and of unlawful use are sold to one known by the seller to be a gambler, he will be charged with knowledge that the buyer does not intend to use them for the lawful purpose of selling gum.
    Appeal from the Circuit Court of Cook county; the Hon. H. Sterling Pomeroy, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Reversed with finding of facts.
    Opinion filed November 29, 1912.
    Rehearing denied December 12, 1912.
    Cameron & Matson, for appellant.
    Robert E. Cantwell, for appellee.
   Mr. Justice Fitch

delivered the opinion of the court.

These two cases were consolidated and tried together in the circuit court and also in this court. In one,'plaintiff sued upon four promissory notes signed by defendant and one Skidmore, and in the other, upon an open account for goods sold and delivered to defendant and one Gfazzolo. King only was served in each case. The defense in both cases was that the consideration for the notes and for the account was illegal. Upon a trial before the court without a-jury plaintiff recovered a judgment in each case for $200. Defendant appeals.

No propositions of law were submitted to the trial court to be marked “held” or “refused.” The only questions of law, therefore, which are before this court are whether the trial court erred in its rulings on the admission or exclusion of evidence, and whether the evidence is sufficient to sustain the judgments. Counsel for appellee also urge that the abstract does not show any exception to the judgments; but while this is true, we find that the record does show that such exceptions were taken.

We deem it unnecessary to discuss the alleged errors in the admission or exclusion of evidence, for the reason that we have reached the conclusion that the court erred in finding the issues for the plaintiff upon the evidence contained in this record. It appears that the plaintiff is a corporation engaged in the manufacture of slot machines. Mills, the president of the corporation, testified that he sold dertain slot machines to Skidmore and certain machines to Gfazzolo; that in each case appellant, King, guaranteed the payment of the purchase price; that the notes in question were given by King and Skidmore for part of the purchase price of the machines sold to Skidmore, and that the open account upon which suit was brought was for the price of the machines sold to G-azzolo. On cross-examination Mills testified that all of the machines thus sold were practically alike in their operation; that they all had “slots for dropping coins in;” that they “can be used for different purposes, the same machine,” depending on whether money or something else, such as gum, is “deposited in the cylinders;” that they are “sometimes used for the reception of money, where you pull back a rod or weight and it passes you a certain amount of money or nothing;” that they can also be used thus: “If you want to play black you drop your nickel in the slot above and push down the lever, turn the handle, and when the dial stops in black, ten cents will come out of the little pockets at the side;” and that they could also be used for vending machines.. The defendant testified that he was.a gambler and that the machines were gambling machines, having no attachments except “money attachments;” that they were operated thus: “There were five pockets; you could put a nickel in any one you wanted to and play for a dime, a quarter, fifty cents or a dollar.”

In Frost v. People, 193 Ill. 635, it is said, (p. 640): “The legislature have determined that gambling implements and apparatus are pernicious and dangerous to the public welfare, and the keeping of them is an offense prohibited by law. They are, therefore, not lawful subjects of property which the law protects, but have ceased to be regarded or treated as property, and are liable to seizure, forfeiture and destruction without violating any constitutional provision.”

In Bobel v. People, 173 Ill. 19, the court had under consideration the constitutionality and effect of the Act of June 21, 1895, entitled “An act to prohibit the use of clock, tape, slot or other machines or devices for gambling purposes,” (Hurd’s Rev. Stats. Ill., Chap. 38, sees. 137f, 137g and 137h) and the court there said, page 28: “We are of the opinion that it was the purpose of the legislature in enacting this statute, not only to suppress the use of these gambling devices or the keeping of them for gambling purposes, but also to prohibit the ownership or the keeping of them, whether for gambling purposes or not,—otherwise, why make it a criminal offense to own or keep'them, without qualification as to the purpose of such ownership or keeping, and why provide for their seizure and destruction?”

Following the same reasoning, apparently, but without mentioning either of these decisions, the Appellate Court of this district, in Price v. Burns, 101 Ill. App. 418, held that under the statute above mentioned, as well as under a similar city ordinance of Chicago (which ordinance was also introduced in evidence in these cases), the sale of a slot machine music box, with a gambling attachment, was unlawful and that no recovery could be had upon a contract for the purchase price thereof.

In the absence of any propositions of law marked by the court below, we must assume that the court found the law to be as above stated. Hence, to justify a finding for the plaintiff, the court must have found that the preponderance of the evidence was against the defendant’s claim that the machines were, in fact, gambling devices. In this we think the court erred. Such a finding is manifestly contrary to the evidence. The evidence of the witness Mills, above recited, shows that he admitted that the construction of the machines permitted gambling if the purchaser chose to use them for that purpose. The fact that they could also be used for selling gum, and that Mills testified that he did not know for which of such uses they were in fact purchased, does not, we think, even tend to prove that the machines sold were not gambling devices. If the seller’s knowledge of the purchaser’s intention to use the machines for gambling purposes was material, we think the plaintiff is chargeable, under the evidence, with such knowledge, for it appears that Mills knew King very well, and it can hardly be contended that when he sold such machines to King, a gambler, he could reasonably expect that the purchaser intended to use them for selling gum.

For the reasons indicated, the judgments of the Circuit Court will be reversed with a finding of facts in each case.

Reversed with finding of facts.

Finding of facts to be incorporated in each judgment: The court finds from the evidence that there was no valid consideration for the defendant’s promise to pay, and therefore finds the issues in favor of the defendant.


text:
    Charles Elkins, Plaintiff in Error, v. Daniel McCaskill and O. L. McCaskill, partners as McCaskill & Son, Defendants in Error.
    Gen. No. 17,365.
    1. Attobnet and client—agreement to pay judgment not within scope of partnership. Where one member of a firm of lawyers agrees to pay any judgment for costs that may be entered against the adverse party in a pending suit in consideration that the opposing attorneys will stipulate to waive the time limit for filing briefs, such an agreement is not within the general scope of the partnership, and in the absence of consent or ratification is not binding on the firm although it received the benefit.
    2. Attobnet and client—agreement by attorney to pay any judgment client may obtain is illegal. An agreement by an attorney with opposing counsel to pay any judgment his clients may obtain is illegal and void.
    Error to the Municipal Court of Chicago; the Hon. Abnold Heat, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Affirmed.
    Opinion filed November 29, 1912.

      Percival Steele, for plaintiff in error.
    McCaskill & McCaskill, defendants in error, pro se.

   Mr. Justice Fitch

delivered the opinion of the court.

By this writ of error, plaintiff seeks to reverse a judgment for defendants, entered upon a directed verdict. Defendants are lawyers and were employed as such hy one Schillinger and others to represent them in a suit brought against them by Elkins. The latter recovered a judgment and defendants, on behalf of their clients, sued out a writ of error in the Appellate Court. Through some mistake or misunderstanding, the MeCasldlls neglected to file their briefs and abstracts in apt time. Steele and Thompson, attorneys for Elkins, served notice that-they would ask the court to dismiss the writ of error for that reason. Thereupon O. L. McCaskill, the son, asked Steele and Thompson to enter into a stipulation waiving the time limit and permitting the briefs and abstracts to be filed. They refused at first, but afterwards consented upon his paying them, for the use of Elkins, the full amount of the judgment recovered, with interest and costs, and upon his agreement to pay the amount of any judgment for costs that might be rendered against Elkins by the Appellate Court in case the judgment of the lower court should be reversed. The stipulation was signed and filed, the desired extension obtained, and the briefs and abstracts filed. Having received in this manner, the amount of the judgment, Steele and Thompson filed no briefs on behalf of Elkins. The judgment was reversed and a judgment for costs entered against Elkins, which he was obliged to pay. He brought suit against the McCaskills to recover the amount thus paid. At the close of all the evidence the trial court instructed the jury to find for the defendants.

We think the judgment must be affirmed. There was no evidence beyond the mere fact that the defendants wore partners, tending to prove that the elder McCaskill had any knowledge of his son’s agreement with Steele and Thompson or that he ever consented to, or ratified, the agreement. Such an agreement is not within the general scope of a partnership formed for the practice of law, and therefore no authority on the part of the younger McCaskill to hind his father can he implied merely from the fact of partnership. McNair v. Platt, 46 Ill. 211; Marsh v. Gold, 2 Pick. (Mass.) 285. Nor does the fact that the firm received the benefit of the agreement change the usual rule in this respect. Wittram v. Van Wormer, 44 Ill. 525; Watt v. Kirby, 15 Ill. 200; Funk v. Babbitt, 156 Ill. 408, The elder McCaskill filed a sworn plea denying any joint liability. The burden therefore, was on the plaintiff to establish a joint liability. In the absence of any evidence as to such liability on the part of Daniel McCaskill, any judgment against him and his son jointly would have been erroneous.

Furthermore, such a contract is clearly illegal. By its terms, according to the evidence of Steele and Thompson, the younger McCaskill agreed to assume a liability to his own clients for the amount of any judgment his clients might obtain against Elkins in a pending suit. They could obtain such a judgment only through the efforts of McCaskill & Son. If no sucli efforts were.made, obviously no judgment would be obtained against Elkins. Manifest.lv such a contract, if enforceable, put the younger McCaskill in a false position, a position where there was a continual conflict between his personal interests and his duty to his clients. In effect, the contract required him to prosecute a suit against himself. If his clients succeeded through his efforts, he would be the loser. If his clients lost the suit, he would gain thereby. The relation of attorney and client is one of trust and confidence. Any agreement, the tendency of which is to cause a breach of trust or duty on the part of one who stands in a fiduciary or confidential relation, is illegal and void, (9 Cyc. 470) not necessarily because it is against public policy, but because it is, in effect, an agreement to wrong or defraud the person whose interests the fiduciary has in charge. 9 Cyc. 474. Precedents are not wanting, however, to.the effect that such agreements are contrary to public policy, and void for that reason. Adye v. Hanna, 47 Iowa 264; Spinks v. Davis, 32 Miss. 152.

The judgment will be affirmed.

'Affirmed.