author: Mr. Presiding Justice Smith

text:
    Fannie J. Willard, Administratrix, Plaintiff in Error, v. The Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company, Defendant in Error.
    Gen. No. 15,345.
    1. Assumpsit—when implied does not arise. Held, under the evidence in this ease, that an attorney employed by a railroad company upon a regular salary is not entitled to extra compensation for extraordinary services performed if they come within the line of his prescribed duties.
    2. Evidence—when reference in letter cannot he explained. A reference in a letter which has been written by a witness cannot be explained by him where there is no ambiguity as to what was referred to.

      Assumpsit. Error to the Municipal Court of Chicago; the Hon. Stephen A. Foster, Judge, presiding. Heard in the Branch Appellate Court at' the October term, 1909.
    Affirmed.
    Opinion filed June 16, 1911.
    Pliny B. Smith, for plaintiff in error.
    Loesch, Scofield & Loesch, for defendant in error.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

George Willard, deceased, brought assumpsit against the defendant in error in the Municipal Court of Chicago and declared upon a quantum meruit for certain services rendered by him as an attorney at law in the preparation for trial and the trial of a certain lawsuit which the defendant in error brought in 1895 against the city of Chicago to recover three-quarters of the value of a large amount of property which had been destroyed in the riots of 1894 in the city of Chicago. In December, 1904, the suit, on motion of the de; fendant in error, was transferred from the Circuit Court of Cook county to the Circuit Court of Du Page county, Illinois, and trial was had in that court resulting in a verdict and judgment against the city of Chicago in favor of the defendant in error for $100,000.

The suit brought by George Willard, deceased, was tried in the court below and resulted in an instructed verdict, finding the issues for the defendant, on which a judgment was entered in the trial court.

The question involved in the case was whether the services sued for were covered by Willard’s salary as counsel or solicitor for the defendant in error, or were services for which he was entitled to extra compensation.

The record shows the following material facts. In 1904, and for many years previous, the plaintiff in error was in general practice as a lawyer in Cook county, Illinois, and was doing legal work for the defendant in error on a monthly salary. He was known as the company’s district solicitor for the district of Cook county.

In June, 1904, George Willard, deceased, was instructed by the defendant’s general counsel, J. J. Brooks, to take steps to secure a speedy trial of the defendant in error’s suit against the city of Chicago. In response to that letter Mr. Willard wrote Mr. Brooks that in view of existing conditions the defendant in error ought to take a change of venue to some other county, and, after some consideration, Mr. Willard was directed to proceed to make the necessary application for a change of venue. That application was accordingly made and resulted in the case being transferred to the Circuit Court of Du Page county, sitting at Wheaton, Illinois. Additional counsel was employed to assist Mr. Willard, at his request, and the case was tried at Wheaton, with the result above stated, Mr. Willard participating in the preparation and trial of the cause. For this service he claimed extra compensation in the trial court, and the questions there presented are by this proceeding brought before this court for review.

. The record shows that Mr. Willard had been solicitor for the Pennsylvania Company and its underlying companies, of which defendant in error is one, for upwards of twenty-five years. The defendant in error paid Mr. Willard a salary of $225 per month for his services to that company, and the Pennsylvania Company paid Mr. Willard a salary of $225 per month for services rendered that company, making a total compensation paid by the Pennsylvania Company and the Pittsburgh Company of $450 per month. In 1892 these monthly salaries were increased respectively from $225 to $262.50, or a total of $525 per month. It appears that the duties of the solicitors, of whom Mr. Willard was one, were fixed by the by-laws of these companies respectively. The by-laws of the defendant in error were introduced in evidence and are as follows:

“First. The General Counsel shall have charge under the direction of the First Vice-President of the law business of the company and shall be located at the general office of the company in Pittsburgh.
Second. He shall be aided by two Assistant Counsel and Solicitors, who shall be nominated by the General Counsel with the approval of the First Vice-President for confirmation by the Board.
Third. He shall keep himself advised of the character and progress of legal proceedings and claims by and against the company.or in which it is interested. * * *
Sixth. All bills for expenditures incident to the management of the business of the Law Department and all bills involving the payment of money in connection with litigation in which the company is interested shall be certified by the proper solicitor and sent to the General Counsel for examination and approval before being paid.
Seventh. Ho suits shall be instituted by or in the name of the company, nor shall any suit wherein the company is a party to be compromised or settled, otherwise than in pursuance of the direction of the General Counsel and subject to the approval of the President, one of the Vice-Presidents or the Board.
Eighth. The General Counsel and Solicitors may at all times be consulted by the officers of the company and by the chairman of committees appointed by the Board, on all business requiring professional advice and when written opinions are given by solicitors the original or a copy of the same shall be forwarded to the General Counsel.
Tenth. The Solicitors shall keep in their respective offices a docket in which they shall record all proceedings connected with any action in which the Company is interested, and shall also keep such other records as may be necessary to preserve a complete history of the business of the Company intrusted to their charge; which docket and other records shall be the property of the Company, and shall, at all times, be subject to the inspection and control of the General Counsel. The Solicitors shall promptly notify the General Counsel of all suits that may be brought against the Company, and report in full to him all proceedings subsequently connected therewith. They shall represent the Company in all suits, and in other proceedings wherein their professional services may be required in their respective districts, wherein the Company is a party, or its rights or interests are involved. The salaries of the Solicitors shall be fixed, from time to time, by the Board, and shall cover all services necessary or rendered to the Company, and necessary or rendered to all other companies owned or'controlled by or in which, by reason of stock ownership, this Company is interested, or whose roads may be leased to or operated by it within their respective districts, as may be, from time to time, required of them by the Board, the President, the Vice-Presidents or the General Counsel.
Eleventh. They shall, whenever requested by an officer of the Company, take immediate measures to investigate the facts and ascertain the legal position of the Company concerning any accident, claim or liability, and they shall, in such case, promptly do what may be required for the protection of the interests of the Company; but they shall conclude no contract otherwise than in consequence of the direction or subject to the approval of the President, one of the Vice-Presidents, the General Manager, or the General Counsel.
Twelfth. The lines of railway controlled or operated by the Company shall, for the transaction of its law business, be divided into the districts hereinafter named, and the Solicitors of the respective districts shall be charged with the legal business thereof, and of such additional lines as may be from time to time assigned to them by the Board, the President, the Vice-President or the General Counsel.”

As solicitor for the defendant in error, Mr. Willard had charge of its legal work in Cook county. During the months of June and July, 1894, certain property in the custody of the defendant in error as a common carrier was destroyed by rioters in its yards in Chicago, Illinois. Action was brought by Mr. Willard on behalf of the defendant in error as its district solicitor in the Circuit Court of Cook county to recover damages for the destruction of the property. He continued to be the regular solicitor for the defendant in error until the 15th day of June, 1906, when his services were dispensed with as such solicitor. During his solicitorship he made no claim against the defendant in error for extra compensation in connection with the trial of the above mentioned case. After his discharge he made the claim involved in this case for special fees for services performed in the preparation and trial of the riot case. This claim was rejected by defendant in error, and the action now being reviewed was commenced.

It is urged on behalf of the plaintiff in error, who was appointed administratrix of the estate of George Willard upon his decease, that the evidence in this case tends to show that from the beginning of Mr. Willard’s relation as solicitor for the defendant in error, it was the mutual understanding between the parties that the salary was not to cover all legal services which the plaintiff might be called by the defendant to perform. By the by-laws above quoted it appears that the salaries of the solicitors were made to cover only such services on behalf of the company as were required of them within their respective districts, and such services as the company might require on behalf of other roads owned, leased, operated or controlled by the defendant in error within their respective districts, and it is claimed that certain eases are shown in the record wherein .substantial services were performed by Mr. Willard and others which were paid for in addition to the salary paid to Mr. Willard, upon the theory and understanding that the work was outside of the district in which the solicitors were employed, or of unusual importance within the district, and that such work was not covered by the fixed salary.

It is also urged that the by-laws of the defendant in error, even if binding upon the plaintiff in error’s intestate, do not preclude the plaintiff from recovering in the action under review, as they provided for solicitors representing the company only in suits and in other proceedings wherein their, professional services may be required in their respective districts.

We have reviewed the by-laws carefully, and the evidence in the case, and upon careful consideration of the evidence, we are of the opinion that it fails to show that Mr. Willard was entitled to any extra compensation for the services sued for. It is undisputed that the litigation arose in the county of Cook, within the district which, under his general employment as solicitor, Mr. Willard was bound by his contract to represent the company and conduct its legal business. In our opinion the mere fact that while the cause of action arose in the county of Cook and the action was originally brought in the county of Cook, its subsequent transfer on application of the defendant in error and under the advice of Mr. Willard to Du Page county for trial, forms no basis for the claim for extra services. While it is true that it was more inconvenient for Mr. Willard to prosecute the suit in Du Page county than in the city of Chicago, that inconvenience alone does not take the case out of the contract existing between Mr. Willard and defendant in error, and does not afford any basis for a claim for extra compensation. It appears that in addition to extra counsel employed and paid by the Pittsburg Company to assist Mr. Willard in trying the riot case, extra counsel were likewise employed and paid by that company to try cases in Cook county during the absence of Mr. Willard at Wheaton.

The evidence shows certain cases in which the defendant in error allowed special compensation for special services, but we do not regard those cases as simliar to the case under review, either in facts or principle, and we cannot regard them as facts or precedents which form any basis for an implied promise or undertaking on the part of defendant in error to pay special compensation for the services in question. We think the evidence explains the circumstances under which such extra compensation was paid, and the reasons why such cases were regarded as exceptional and special, and additional compensation was allowed therefor. We do not find in this record any reason or basis for holding that a contract existed, either express or implied, between Mr. Willard and the defendant in error to pay him an additional compensation for the services rendered in the riot case. The evidence shows that there was not at any time any promise or agreement to pay Mr. Willard additional or extra compensation for the services sued for. His expenses in going to and from Wheaton, Illinois, where the case was tried, were paid by the defendant in error; and the fact that Mr. Willard never made any claim or demand for extra compensation for trying the riot case indicates to our minds that he did not at that time interpret the contract or arrangement between him and the company as forming the basis of any claim for extra compensation, but, on the other hand, that the contract between him and the company covered the trial of the riot case at Wheaton, for the very good reason that it arose in Mr. Willard’s district and the suit was commenced in Mr. Willard’s district and it was transferred to another county for trial solely as a means of securing a fair trial of a case which otherwise would have been tried in the county of Cook where the cause of action arose and the suit thereon was commenced.

It is urged that the court erred in sustaining an objection to a question asked of Mr. Willard, as follows:

“Q. In your letter of June 16, 1906, to Mr. Brooks, Exhibit 43, you state you were ready to go on and complete your contract with the Pennsylvania Company and the Panhandle Company, what contract do you refer to?”

We think the court did not err in sustaining the objection,' for the reason that the letter of Mr. Willard to Mr. Brooks as general counsel explicitly states what contract it refers to, and leaves no question or doubt upon that subject.

We do not think the court erred in excluding the evidence produced and directing a verdict for the reason that the evidence did not show a cause of action in favor of Willard’s administratrix and against the defendant in error.

Finding no reversible error in the record, the judgment will be affirmed.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
      J. Bradbury, Plaintiff in Error, v. H. B. Humphrey, Defendant in Error.
    Gen. No. 15,542.
    Res judicata—what judgment is. In an action by a father to recover for medical expenses, etc., incurred by him in seeking to effect a cure of his infant child -who has sustained personal injuries, a judgment rendered in an action by such child against the same defendant is res judicata so far as there is identity of issue.
    Error to the Municipal Court of Chicago; the Hon. Judson E. Going, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Reversed and remanded.
    Opinion filed June 16, 1911.
    Rehearing denied June 27, 1911.
    Dwight D. Root, for plaintiff in error.
    J. F. Dammann, Jr., for defendant in error.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

Thomas Bradbury was injured by the negligence of H. B. Humphrey, the defendant in error. He brought action by his father, J. Bradbury, as his next friend, in the Municipal Court of the city of Chicago for such injuries and obtained judgment thereon. .In that action the element of the liability incurred for, or the moneys paid to the physician for attending upon his injuries was excluded, and it was held by the trial court that Thomas Bradbury had no right to recover for the medical services rendered to him. Thereupon J. Bradbury, the plaintiff in error, brought this action in the Municipal Court to recover against H. B. Humphrey, the defendant and appellee here, for such medical services, claiming that inasmuch as the son did not recover for those services in the action brought by him, the plaintiff, and appellant in this action, had the right to sue the defendant for the value of the doctor’s services.

On the trial of this case in the court below, the plaintiff sought to introduce the judgment in favor of his son and against the defendant in error in evidence on the ground that that judgment was res adjudicada, of the negligence of the defendant, and want of contributory negligence on the part of Thomas Bradbury. The trial court held that the record was not admissible and was not res adjudicada as to any of the issues in the present case, and excluded the proffered evidence. The plaintiff below did not attempt to make any other proof of the liability of the defendant for the services rendered, except that plaintiff was not with the boy when he was injured, and judgment was accordingly entered in the court below for the defendant. The case is brought here by appeal, and it is urged that the court below erred in excluding the judgment record in favor of the son in this action; that it was res adjudicaba as to all matters tried in that case, namely, the negligence of the defendant, and the want of contributory negligence on the part of the hoy.

The issues in the two actions are not identical. In the boy’s case there was an issue of the negligence of the defendant and an issue of contributory negligence on the part of the hoy. In the case now before us, there are three issues, namely, the negligence of the defendant, the issue of the contributory negligence of the hoy, and the lack of contributory negligence of the father. Chicago City Ry. Co. v. Wilcox, 138 Ill. 370. The parties are not the same in the two cases, but the issues as to the negligence of the defendant, and the lack of contributory negligence of the son were the same. We are of the opinion that the record in the case of Thomas Bradbury v. H. B. Humphrey was competent evidence on those issues on the authority of Hanna v. Read, 102 Ill. 596. The evidence was erroneously excluded, and the judgment is therefore reversed and the cause remanded.

Reversed and remanded.


text:
    William J. Walsh, Defendant in Error, v. John Hancock Mutual Life Insurance Company, Plaintiff in Error.
    Gen. No. 15,566.
    Insurance—effect of false representations. Representations made in obtaining a policy, if false and known to be false when made, constitute a good defense to an action upon the policy where such representations are material to the risk.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Reversed with finding of facts.
    Opinion filed June 16, 1911.
    Thurmanh, Stafford, Hume & Burras, for plaintiff in error.
    Richard E. Burke, for defendant in error.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

The plaintiff below, William J. Walsh, sued the defendant below, John Hancock Mutual Life Insurance Company, plaintiff in error, in the Municipal Court on a policy issued by the defendant on the life of Mary A. Walsh, wife of William J. Walsh. The defense to the action is that the applicant for the insurance, Mary A. Walsh, made such false statements in her written application for insurance as to render the policy void.

The assured stated in her application that the time when she had consulted a physician was five years prior to the making of her application, and that the consultation was for confinement ; and that within five years prior to the date of the application she had no sickness, ailment, disease, injury or surgical operation, and had not received or applied for treatment at or in any hospital.

The policy lapsed, and the assured made a written application for a reinstatement. In this she made the same statements as in the original application. In these applications she warranted the statements to be complete, correct and true, and declared that they should form the basis of and become a part of the contract of insurance. The original application was incorporated into and made a part of the policy.

The undisputed evidence in the record shows that within less than five months prior to the original application, Mary Walsh, the assured, had consulted two physicians; that they had made a thorough physical examination of her, and found that she had a cancer of the womb, and that within less than five months before the original application was made, she went to the Lakeside Hospital to have an operation for that disease, but that the operation was not had for the reason that an operation would have meant death within a few days, and that she finally died of that disease.

The trial resulted in a judgment against the defendant, which prosecutes this writ of error to reverse it, claiming that the representations made were material and false, and were known by the assured at the time they were' made to be false, and that therefore the verdict and judgment are contrary to the law and the evidence.

In our opinion the representations made by the assured, as set forth above, are shown by the evidence to have been made by her. We are also >f the opinion from the evidence that they were false and were known to be false by the assured when they were made. All fair and reasonable minds must come to this conclusion, we think, from the undisputed evidence in the record.

In our opinion the representations were material and being false and known at the time they were made to be false, it follows that the policy sued on was void. The judgment is therefore reversed with a finding of facts.

Reversed with finding of facts.


text:
    Mary Fortier, Defendant in Error, v. Kazimir Ulatowski, Plaintiff in Error.
    Gen. No. 15,569.
    Municipal Court—when judgment not disturbed. The Appellate Court will not reverse a judgment of the Municipal Court if it is satisfied that substantial justice is done thereby.
    Action in case for personal injuries. Error to the Municipal Court of Chicago; the Hon. John C. Scovel, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed June 16, 1911,

      Stephen Janowicz, for plaintiff in error.
    George E. Gorman, for defendant in error.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

Plaintiff in error, Kazimir Ulatowski, defendant below, hereinafter called the defendant, on July 9, 1909, the time of the injury complained of, was the owner of a six flat building known as Ko. 8833 Exchange avenue, Chicago. Defendant in error, plaintiff below, was the wife of a tenant who occupied one of the rear flats. Three of the flats were in the rear part of the building, and three in the front. Ingress to and egress from some of the flats were through a door which did not front or abut on a public street. Extending along the south side of the building in which this door was situated was a board walk three feet wide, and three feet from the ground, supported by posts and stringers.

The plaintiff while passing along this board walk, stepped upon one of the boards which broke causing her to fall, and she received the injuries for which she brought the action. The trial resulted in a judgment for $3500 against the defendant.

It is urged as a ground for reversal of the judgment that the plaintiff is not entitled to recover on the statement of claim filed. The statement is not set out in the abstract of record, and under the rules we might ignore the point for that reason. The statement of claim, however, as set out in defendant’s brief, is admitted to be correct by plaintiff’s counsel. As quoted we think it is sufficient to sustain the judgment.

It is urged that the plaintiff was guilty of contributory negligence. This was a question for the jury under the evidence and we see no reason for disturbing the verdict on that ground.

Upon an examination of the evidence we cannot say the verdict is excessive. The evidence tends to show that the defendant was negligent in not maintaining the sidewalk in a proper condition.

The judgment is affirmed.

Affirmed.


text:
    William Hindley, Plaintiff in Error, v. Boston Store, Defendant in Error.
    Gen. No. 15,580.
    Municipal Court—when judgment not disturbed. The Appellate Court will not reverse a judgment of the Municipal Court if it is satisfied that substantial justice is done thereby.
    Error to the Municipal Court of Chicago; the Hon. Max Eberhardt, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed June 16, 1911.
    William Hindley, plaintiff in error, pro se.

    Hoses, Rosenthal & Kennedy, for defendant in error; Harry H. Krinsky, of counsel.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

This cause has had two trials in the Municipal Court, both trials resulting in verdicts for the defendant. The case involves twenty-two cents and a large amount of indignation. We find no error in the record for which the judgment should be reversed. It is therefore affirmed.

Affirmed.


text:
    Chicago Undertakers’ Association, Defendant in Error, v. Richard A. Allen et al., Plaintiffs in Error.
    Gen. No. 15,613.

      Injunctions—when recovery upon bond mil not be sustained. A recovery upon a bond given in the Appellate Court upon the continuance in force of an injunction will not be sustained unless there is a showing that services were occasioned by the continuance in force of the injunction which were separate and apart from the services required and rendered in sustaining the decree appealed from.
    Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Reversed with finding of facts.
    Opinion filed June 16, 1911.
    James R. Ward, for plaintiff in error.
    No appearance entered by defendant in error.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

This proceeding in error brings before us for review the record and judgment of the Hunicipal Court of Chicago in an action brought by defendant in error, Chicago Undertakers’ Association of the State of Illinois, against plaintiffs in error, Eichard A. Allen and James E. Ward, to recover damages on an injunction bond given in this court, for the continuance in force of an injunction which had been issued by the Superior Court of Cook county.

It appears from the record that Eichard A. Allen filed a bill in the Superior Court against defendant in error in this proceeding, the main purpose of which was to test the validity of section 8 of the constitution of defendant in error. Incidental to the relief prayed by the bill a temporary injunction was prayed for and issued upon the complaint giving an injunction bond. On the hearing the court entered a final decree dissolving the injunction and dismissing' the hill for Avant of equity. An appeal from the decree Avas taken to this court, and the bond on Avhich the judgment was entered iioav before us for review was given in this court.

The record shows that a judgment was recovered on the injunction bond given in the Superior Court when the temporary injunction was issued, and that judgment has been paid and satisfied.

The plaintiff’s evidence on which the judgment now before us is based consists of the bond, the order of this court taking the case in which it was given under advisement, and the judgment of this court affirming the decree of the Superior Court the bill of complaint and the decree of the Superior Court; and the admission in open court that the sendees of the solicitor of defendant in error in this court on the appeal in preparing the brief filed were reasonably worth $100 and that the reasonable cost for printing briefs in this court was $12.75.

No motion appears to have been made in this court to vacate or dissolve the order continuing the injunction in force, and no services of solicitor rendered in this court with the specific purpose of vacating the order continuing the injunction in force is shown. The evidence offered tends to show that the services were rendered in the presentation of the main case upon the decree of the Superior Court. The evidence offered by the defendants below shows that the briefs filed in that case were wholly devoted to the presentation of the main case, and in support of the contention that the decree of the Superior Court was correct and should be affirmed.

We are unable to find from the record that any services were rendered or any money expended which would not have been rendered or expended in the defense of the decree of the Superior Court, had there been no order in this court continuing the injunction in force and no bond given. The record contains no evidence of any services or expenses rendered or incurred because of such order. There is therefore no foundation in the evidence for the judgment for damages on the bond.

The judgment is reversed with a finding of facts.

Reversed with a finding of facts.


author: Mr. Justice Baldwin

text:
    Mathias Freres, Defendant in Error, v. Fred Santware et al., Plaintiffs in Error.
    Gen. No. 15,375.

      Decrees—when not disturbed. A decree in chancery which is supported by the evidence will not be disturbed on review.
    Bill in chancery. Error to the Superior Court of Cook county; the Hon. Farlin Q. Ball, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed June 16, 1911.
    Harris F. Williams, for plaintiff in error; Eldon M. Votaw, of counsel.
    William W. Case, for defendant in error.
   Mr. Justice Baldwin

delivered the opinion of the court.

On July 27, 1906, complainant filed a bill in the Superior Court of Cook county, asking an injunction to restrain defendants from selling, upon an alias writ of execution, certain real estate situated in Cook county and which he claimed to own, and to remove said judgment as an apparent cloud upon his title.

The court below granted a temporary injunction. After defendants had demurred to the bill, and the demurrer had been overruled, answers were filed. The cause was referred to a master, who, after hearing, found in favor of complainant, and the court approved the master’s report, and entered a decree perpetually restraining the sale of the property on the judgment mentioned and declaring said judgment not a cloud or lien upon complainant’s title. Defendants bring the case here for review upon a writ of error.

From the evidence it appears that on December 11, 1893, Henry Lumpp acquired the lots in controversy by warranty deed from one Peter Daleiden, the consideration named in the deed being $1,600. Becoming of age, the following month, he was married, and proceeded to build a house upon the premises, into which he moved on March 14, 1894. In 1899, desiring to borrow money from the firm of A. Holinger & Co. with which to pay off a prior indebtedness on the property to one Weber, he and his wife executed a trust deed to A. Holinger, on November 2nd of that year, to secure a contemplated loan of $3,000. After this trust deed was executed, the loan company, from which the money was to be secured, decided that it did not wish to loan to Henry Lumpp, but it agreed to make the loan to his father, Lucas Lumpp, provided the property was conveyed to him. Thereupon Henry Lumpp" and wife conveyed the premises by warranty deed on December 9, 1899, to Lucas Lumpp, the father, no consideration passing between them for such conveyance. It was orally agreed between Henry Lumpp and his father, Lucas, that the latter should advance sufficient money to the loan company to pay for certain sums in addition to the amount of the Weber indebtedness, and Henry Lumpp agreed to repay his father in monthly installments the amount so advanced, after which the father was to reconvey the property to him.

The trust deed made by Henry Lumpp and wife to Holinger was subsequently, on December 28, 1899, released, and the release was recorded January 8, 1900.

After the conveyance of December 9, 1899, from Henry Lumpp and wife to his father, Lucas Lumpp, the latter, with his wife, executed a trust deed to A. Holinger, which trust deed was dated back to November 1, 1899, in consideration of which Holinger & Co. paid off the prior indebtedness to Weber. No money passed from Holinger & Co. to Lucas Lumpp on account of this transaction, but Lucas Lumpp advanced to Holinger & Co. sufficient money which, with the proceeds of the loan from Holinger <& Co., paid up the indebtedness to Weber. Upon this sum, thus advanced by Lucas Lumpp, payments were made from time to time by Henry Lumpp, so that the total amount was repaid within a year.

On ¡November 5, 1902, being then about to leave for California, Lucas Lumpp and wife executed a power of attorney to Joseph G-. Schroer, making him their attorney in fact to convey real estate. This power of attorney was recorded January 3, 1903. On December 30, 1902, Lucas Lumpp and wife, by their said attorney in fact, conveyed the property back to Henry Lumpp by a warranty deed, no consideration passing between the parties.

The evidence seems to support the contention that Henry Lumpp, after building his house upon the premises in question, went into possession and occupation thereof in March, 1894, and continued in open and notorious possession and occupation thereof until the time of his conveyance to the complainant, Mathias Freres.

On ¡November 24, 1902, Fred Santware, one of the defendants in this action, being then a creditor of Lucas Lumpp, recovered a judgment against him in the Superior Court of Cook county for $350 and costs. Upon this judgment execution was issued but was returned January 12, 1903, wholly unsatisfied.

Upon the application of his creditors, Lucas Lumpp was adjudged a bankrupt on February 20, 1903.

The notes to secure which the trust deed of ¡November 1, 1899, was executed by Lucas Lumpp and wife to Arnold Holinger, came into possession of one Barbara Wickersheim. On June 27, 1905, default having been made in the payment of the principal note, she filed her bill in the Superior Court to foreclose the trust deed, and joined as defendants therein, Lucas Lumpp, Emma Lumpp, Henry Lumpp, Arnold Holinger, trustee, Fred Santware and others. In this proceeding Santware was personally served with process. The cause proceeded to a decree for $3,658, and directing the sale of said premises unless that amount were paid within three days. On December 15, 1905, the property was sold by Granville W. Browning, master in chancery, to the complainant, Barbara Wickersheim, for $3,700, and the certificate of sale to her was recorded on December 20, 1905.

On January 30, 1906, Henry Lumpp and wife, conveyed by quit-claim to Mathias Freres, the complainant in this suit, for an alleged consideration of $4,200, and it was agreed that complainant should apply so much of the purchase price as was necessary, in making redemption from said foreclosure sale. This quit-claim deed was recorded on the day of its date. On January 31, 1906, complainant made redemption from the foreclosure sale by depositing with the master the sum of $3,728.37, and secured from the master a certificate of redemption, which was recorded on February 5, 1906.

On July 6, 1906, Fred Santware sued out an alias writ of execution upon the judgment obtained by him against Lucas Lumpp, and placed the writ in the hands of the defendant, Pease, Sheriff, with instructions to levy upon the premises in question for the purpose of having them sold in satisfaction of the judgment. Hpon the levy being made, the sheriff duly advertised the property for sale.

When the cause was at issue, it was referred to John F. Holland,.Esq., one of the masters in chancery of the Superior Court, with instructions to take evidence and report thereon, with his conclusion. In his report, the master states that he took the testimony of Henry Lumpp, Eugene Hildebrand, Mathias Freres, Charles H. Bowles, Fred Santware, Joseph G. Schroer and Kate S. Holmes as witnesses, and also admitted certain documentary evidence. From this oral and documentary evidence the master found the facts as stated above in this opinion, and concluded from such facts that the judgment in favor of Fred Santware did not become, and was not at any time, a lien upon the premises in question, and he recommended a decree in conformity with such report.

To this report the defendant filed objections which were allowed to stand as exceptions, and were duly heard by the trial judge. After being heard, such exceptions were overruled, the master’s report confirmed, and a decree entered in conformity with the prayer of the bill.

In the consideration of this case we are reminded hy counsel for plaintiff in error, that the decree cannot stand unless there is sufficient competent evidence in the record upon which to base it, and, in reaching our conclusions, we have not overlooked this elementary proposition.

Plaintiff in error practically concedes that, if the master and the court below were right in their finding that Lucas Lumpp held the mere legal title as trustee for his son, Henry Lumpp, the court did nor err in holding that the Santware judgment did not become a lien upon the property.

The contention of plaintiff in error is, however, that Henry Lumpp was not the owner of the property during the time the title was in his father’s name, but, on the contrary, that the father actually owned the property and actually required the son Henry to pay rent to him for its use and occupancy. He also contends that the reconveyance to Henry was not in good faith, but was in fraud of the creditors of Lucas Lumpp, upon whose petition he was adjudged an involuntary bankrupt, as stated above.

He further contends that when Freres accepted the conveyance from Henry Lumpp he knew of the Santware judgment, and also knew that it was a lien against the property, and had stood as an undisputed lien for more than four years, and that, probably, the transfer of the title to Freres was not in good faith.

Plaintiff in error further contends that the court should have sustained the lien of the Santware judgment, and, at most, only allowed the complainant the difference between the amount of the judgment and the value of the property.

We have carefully gone over all the testimony shown by the record to have been heard by the master, and, while, in some respects, it is not entirely satisfactory, nevertheless, the master appears to have given both parties wide latitude in the hearing before him, and he was clearly in a better position to judge of the credibility of the witnesses than we can possibly be. Ho substantial purpose would be subserved by setting out at length the testimony heard by the master. It is sufficient to say that, after having carefully considered it all, we think the fair weight of the evidence was in favor of the complainant, and that the master in so finding, and the court in entering a decree in conformity therewith, were fully justified.

The decree will, therefore, be affirmed.

Affirmed.


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    A. M. Forbes Cartage Company, Defendant in Error, v. Grand Trunk Western Railway Company, Plaintiff in Error.
    Gen. No. 15,558.
    1. Municipal Court—what essential to reviw. A judgment of the Municipal Court in a cause tried without a jury is reviewable in cases of the fourth class as to questions of law in the absence of propositions of law having been submitted.
    2. Common carriers-—when shipper hound by restrictions. If the plaintiff shipper offer the contract of shipment in evidence in support of his claim for damages he becomes estopped to deny his assent to the provisions of such contract.
    Tort. Error to the Municipal Court of Chicago; the Hon. A. J. Cowing, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Reversed and remanded.
    Opinion filed June 16, 1911.
    L. L. Smith, for plaintiff in error.
    Mather & Hutson, for defendant in error.
   Mr. Justice Baldwin

delivered the opinion of the court.

Defendant in error brought an action of the fourth class in the Municipal Court of Chicago against plaintiff in error to recover damages to a carload of horses shipped from Chicago to Augusta, Maine, in December, 1907. The cause was tried before the court, who found against defendant and entered judgment for $268. It is here contended that the -finding and judgment are contrary to the law and evidence.

Counsel for defendant in error contends that, where no exception to the judgment of the trial court is preserved, and where the record contains no propositions of law, the Appellate Court will affirm the judgment of the court below as a matter of course, and in support of this proposition they cite Farris v. B. & O. S. W. Ry., 143 Ill. App. 208. It is sufficient answer to this contention to say that it expressly appears upon page 51 of the Becord, that the defendant did enter its exception to the judgment herein. And, further, we do not understand that it is necessary to submit propositions of law in cases of the fourth class in the Municipal Court to enable this court to review its judgments. See paragraph 6, section 23 of the Municipal Court Act- of 1907.

Counsel for defendant in error also contend that the assignments of error made by plaintiff in error are so much lacking in particularity that this court might properly refuse to consider them. We do not think this contention well founded.

From the record, it appears that on the 7th day of December, 1907, defendant in error, being then engaged in heavy trucking business in Chicago, by its agent, Mr. Fred Hayward, arranged with the Chicago agent for plaintiff in error for the shipment of a carload of twenty horses, over its line, to the order of said Hayward, at Augusta, Maine. When the stock was loaded upon the car, a written contract was entered into between the parties, dated on that date, which acknowledged the receipt by the carrier of the horses in question, and. stated that the stock was received for transportation upon the terms in said contract mentioned, which were therein agreed to by the shipper as just and reasonable. The first of these conditions in the contract provided that the rate fixed for the transportation of these animals was the lower published tariff rate, based upon the express condition that the carrier assumed liability on the live-stock 1o the extent only of a certain agreed valuation, upon which valuation the rate charged is based, and beyond which valuation neither the carrier nor any connecting carrier should be liable in any event, and it limited the value of horses or mules shipped therein to not exceeding $100 each.

Certain clauses of the contract read as follows:

“Third. That the said shipper is, at his own sole risk and expense, to load and take care of, and to feed and water said stock whilst being transported, whether delayed in transit or otherwise, and to unload same, and neither said carrier nor any connecting carrier, is to be under any liability or duty with reference thereto, except in the actual transportation of the same.
“Fourth. That the said shipper is to inspect the body of the car or cars in which said stock is to be transported and satisfy himself that they are sufficient and sáfe and in proper order and condition, and said carrier or any connecting carrier shall not be liable, on account of any loss of or injury to said stock happening by reason of any alleged insufficiency in or defective condition of the body of said car or cars.
“Fifth. That said shipper shall see that all doors and openings in said car or cars are at all times so closed and fastened as to prevent the escape therefrom of any of the said stock, and said carrier or any connecting carrier shall not be liable on account of the escape of any of the said stock from said car or cars.
“Seventh. That in the event of any unusual delay.or detention of said live stock, caused by the negligence of said carrier, or its employees, or its connecting carriers, or their employees, or otherwise, the said shipper agrees to accept as full compensation for all loss or damage sustained thereby the amount actually expended by said shipper, in the purchase of food and water for the said stock, while so detained. That no claim for damages which may accrue to the said shipper under this contract shall be allowed or paid by the said carrier, or sued for in any court by the said shipper, unless a claim for such loss or damage shall be made in writing verified by the affidavit of the said shipper or his agent, and delivered to the Maine Central Agent of the said carrier at his office in Augusta, Me., within five days from the time said stock is removed from said car or cars; and that if any loss or damage occurs upon the line of a connecting carrier, then such carrier shall not he liable unless a claim shall be made in like manner, and delivered in like time, to some proper officer or agent of the carrier on whose line the loss or injury occurs.
“Eighth. That whenever the person or persons accompanying said stock under this contract, to take care of the same, shall leave the caboose and pass over or along the cars or track of said carrier, or of connecting carriers, they shall do so at their own sole risk of personal injury, from whatever cause.”

The tenth clause of the contract was to the effect that the shipper thereby acknowledged that it had the option of shipping the therein described live stock at a higher freight rate and thereby receiving the security of the liability of the carrier and the connecting transportation companies as common carriers, but that the shipper had voluntarily decided to ship its stock under this contract at the reduced rate of freight therein mentioned.

This contract was signed by the carrier and by the shipper, per Hayward, who was designated as “shipper’s agent.”

When the car reached its destination at Augusta, Maine, one horse from the number was missing, which the shipper claimed was worth approximately $175, and there was also said to be missing eighteen halters, which were said to be worth about $1 each. Hayward testified that when the horses were loaded in Chicago, their feed was put in the car, and halters on the horses, and that when the car arrived at Augusta, he was notified by an agent of the Maine Central Eailroad, and he unloaded the horses. He says the horses were “gaunted up,” and that some of them had colds and were “off their feed.” He thinks they were, eight days on the road, while, in his opinion, the car should have reached Augusta within five days instead of eight, and in general terms he says, he thinks several of the horses were depreciated in value by the delay, as much in the aggregate as $200.

Upon this testimony the court below originally entered a finding in favor of the shipper for $393, that being the entire amount claimed, but upon a motion for a new trial reconsidered his finding, and reduced it to $268, evidently upon the basis of allowing $175 for the lost animal, $18 for the halters, and $100 for the depreciation in the value of the horses. A letter from the carrier was admitted, over objection,- authorizing a settlement of the claim for $175.

Defendant in error contends that its suit brought in the Municipal Court was not an action in assumpsit upon the contract set out, but was in tort, and, as alleged in its statement of claim, was “for damages caused by the defendant to a carload of horses shipped by the plaintiff ever the road oij the defendant, for the escape and loss of one horse and for the loss of harness and parts thereof, all during the said shipment, all of said property being delivered by the plaintiff to the defendant for transportation on or about the 7th day of December, 1907, from Chicago to Augusta, Maine, for certain charges in that behalf paid by the plaintiff to the defendant.”

However, plaintiff offered the contract in evidence in support of its claim for damages, and we think that, after offering the contract, and making it a part of its case, it was estopped from denying its assent to the provisions of the contract in question. If it desired to avoid being bound by them, it should have pursued a different course in the matter. 3 Hutchinson on Carriers, sec. 1332.

It is clear that it was contemplated by the contract that the shipper should send some person to accompany the stock who should feed and care for it while in transit, and who should prevent the escape of any of the horses from the car; and that a man was sent by the shipper for that purpose. The contract further provided that, in the event of any unusual delay the carrier should be liable only for such amount as was actually expended by the shipper in the purchase of food and water for the stock, while thus detained, and it was also intended by the contract to fix a maximum valuation for the horses in said shipment at not exceeding $100 each.

In the Municipal Court written pleadings are not required, and in this case it is not altogether clear whether the action was, as claimed by defendant, one of assumpsit upon the contract, or, as claimed by plaintiff, in tort for negligence. If the former, then its violation by the shipper must be established, and if the latter, then the negligence which resulted in the injury should be specifically shown.

The testimony in the case seems to us exceedingly indefinite and uncertain. As to the delay en route, the only evidence tending to show delay was the Hayward statement that he thought the time occupied was about eight days, though he would not be positive about it, and that he thought “five days would be good time.” And if it be true, as claimed by the shipper, that the horses, when received at Augusta, were “gaunted up,” had bad colds, and were “off their feed,” it would still be necessary for the shipper to show by competent evidence that this condition was due to the negligence of the carrier, and that was not done. The testimony as to the extent of the damages is altogether too indefinite. The witness, Hayward, being asked how the condition of the horses would affect their market value on the day of their arrival in Augusta, said, “well, now, there was one horse there that I presume it would affect his market value to the amount of probably fifty dollars; another one perhaps $25, and some of them it really did not affect it much, if any. I should judge probably—I never thought over that, but I should judge probably there was six or seven horses that really their market value was damaged.” And in response to further questioning by counsel' for the shipper, who asked whether he had any recollection as to how much the depreciation would have been, the witness answered, “Hot thinking of this coming up, this question, I didn’t have the figures to refresh my memory about their value, as near as I can say, there was $200 difference; something like that.” There was no testimony whatever as to the condition of the horses at the time they were shipped at Chicago. And, as to the value of the horse which was lost, the witness testified with considerable uncertainty and indefiniteness, stating that “we figured him here at this end at $115.” If the shipper sues on the contract he will be bound by its terms and limitations; if, however, he sues in tort for the negligence of the carrier he must prove (1) the negligence, (2) that on account thereof the shipper was injured, and (3) the amount of such injury. This last cannot be shown as the mere conclusion of the witness.

While from the record it seems probable that the plaintiff should recover some amount, yet we cannot regard the testimony below as sufficient to justify the verdict and judgment of the court, and the judgment will be reversed and the cause remanded for another trial.

Reversed and remanded.


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    The People of the State of Illinois, Defendant in Error, v. Joseph Bos, Plaintiff in Error.
    Gen. No. 15,583.
    1. Constitutional law—statute as to wife abandonment. Eeld, that this statute is not unconstitutional.
    2. Municipal Court—jurisdiction of prosecution for wife abandonment. Eeld, under the authority of Glowacki v. People, 236 Ill. 612, that the Municipal Court of Chicago has jurisdiction of prosecutions for wife abandonment.
    3. Wipe abandonment—what essential to conviction. In order to sustain a conviction of wife abandonment under the statute, proof must he made that the wife or minor child or children would be in destitute or necessitous circumstances.
    Error to the Municipal Court of Chicago; the Hon. Hugh R. Stewart, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909,
    Reversed and remanded.
    Opinion filed June 16, 1911.
    Ernest Saunders, for plaintiff in error.
    John E. W. Wayman and F. L. Barnett, for defendant in error.
   Mr. Justice Baldwin

delivered the opinion of the court.

A criminal complaint filed in the Municipal Court of Chicago, charging the plaintiff in error, Joseph Bos, with wife abandonment and leaving her in destitute and necessitous circumstances, in violation of section 24, chapter 68, Hurd’s Statutes. "A jury trial being waived, the cause was heard by the court, who found the defendant guilty and entered an order directing that he pay May Bos, his wife, $5 weekly, for the period of one year, for her support.

We are asked, to reverse the judgment of the court below upon the grounds (1) that the judgment is contrary to the law and the evidence; (2) that the statute creating the crime of wife abandonment is unconstitutional; and (3) that the Municipal Court has no jurisdiction to try cases of this character.

We have carefully considered this ease, not only upon die briefs and abstracts, but have read all the testimony shown by the record to have been heard at the trial. We think the second and third contentions of plaintiff in error not well founded. We find no reason for holding the statute unconstitutional, and we regard the decision of the Supreme Court in Glowacki v. People, 236 Ill. 612, as establishing the jurisdiction of the Municipal Court.

The parties had been married but three or four months when the separation took place. .Upon the record we think plaintiff in error was at fault in the situation which developed, and, it may be that in a proceeding for separate maintenance, his wife, May Bos, might obtain relief. The case before us, however, is a criminal case, and is founded upon a statute which provides: “That every person who shall without good cause abandon his wife and neglect and refuse to maintain and provide for her or who shall abandon his or her minor child or children under the age of 12 years in destitute or necessitous circumstances, etc., shall be deemed guilty of misdemeanor,” etc.

In the view we take of this statute, and of the evident purpose which it was intended to serve, we regard it essential to a conviction under it, that there should be proof tending to show that the wife or minor child or children abandoned, would be in destitute or necessitous circumstances, The evident purpose of the statute in thus creating this new criminal offense was to suitably punish husbands and fathers who, without good cause, should abandon their wives, minor child or children, in destitute or necessitous circumstances, thus leaving them likely to become a public charge. Indeed, the very complaint upon which this proceeding was had, distinctly made the averment that she was in “destitute, or necessitous circumstances, contrary to the statute in such case made and provided.” There was no evidence offered to support this allegation, which we regard as an essential part of the complaint, and, therefore, we feel compelled to hold that a case was not made out against the plaintiff in error.

It may be that such evidence can be produced upon another hearing, and a case made out, but, upon the record made, we feel compelled to reverse the judgment and remand the cause for another trial.

Reversed and remanded.


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    City of Chicago, Defendant in Error, v. Minnie Everleigh, Plaintiff in Error.
    Gen. No. 15,595.
    1. Dram-shops—what intoxicating liquor. Beer is an intoxicating liquor and a conviction under an ordinance prohibiting the sale of intoxicating liquors is sustained by proof of a sale of beer.
    2. Municipal Court—when judgment not reversed. If no substantial error appears a judgment of the Municipal Court will not be reversed.
    Error to the Municipal Court of Chicago; the Hon. William N. Cottrell, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed June 16, 1911.
    Robert E. Cantwell, for plaintiff in error.
    George H. White, for defendant in error; Henry M. Seligman, of counsel.
   Mr. Justice Baldwin

delivered the opinion of the court.

Plaintiff in error (defendant below) was arrested upon a warrant, issue by one of the judges in the Municipal Court of Chicag’o, upon the affidavit of one Frank Hulse, charging her with having violated section 1348 of the Municipal Code of Chicago, by having sold on the 27th day of January, 1909, intoxicating liquors in less quantities than one gallon. The jury found her guilty and she was fined $25 and costs, to review which action the case is brought before us upon a writ of error.

The section of the city ordinance in question provided a fine of not less than $25 nor more than $100 against every person who hy himself or another should directly or indirectly in any manner sell or give away any spirituous, malt, vinous or intoxicating liquors in quantities of less than one gallon.

Plaintiff in error complains that the court below erred (1) in not sustaining her motion to quash the complaint for the reason that it was presented by a private party and not in the name of the city; (2) because the court refused to give certain requested instructions, and (3) because the verdict of the jury was against the clear weight of the evidence. There was' no denial that beer was sold to plaintiff’s witnesses, but the defense insisted that it was a non-intoxicating drink called El Primo.

The testimony on the part of the state, if believed, fully justifies a finding that the beer sold hy defendant was lager beer, and upon such evidence the court was justified in instructing that the sale of lager beer constituted a violation of the ordinance, prohibiting the sale of intoxicating liquor, because lager beer has been held to be an intoxicating liquor. Bandalow v. People, 90 Ill. 218.

We have carefully gone over the entire record, and we think the court below was right in refusing to quash the complaint, and while the court might well have given the instructions asked for and refused, nevertheless, the instructions actually given seem to us to fairly and sufficiently present the law applicable to the case, and that no substantial error on the part of the court below has been shown. The judgment will, therefore, be affirmed.

Affirmed.


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    Emil S. Krause, Defendant in Error, v. Royal Metal Mfg. Co., Plaintiff in Error.
    Gen. No. 15,601.

      Contracts—what not enforced. An alleged contract which is indefinite and lacking in mutuality, will not be enforced.
    Error to the Municipal Court of Chicago; the Hon. McKenzie Cleland, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Reversed and judgment here.
    Opinion filed June 16, 1911.
    Whitman & Horner, for plaintiff in error.
    George Remus and Ernest G. Kusswurm, for defendant in error.
   Mr. Justice Baldwin

delivered the opinion of the court.

On the 25th of February, 1909, Krause brought an action of the fourth class in the Municipal Court of Chicago to recover, as stated in his claim, “for money due the plaintiff from the defendant for that, whereas the defendant promised the plaintiff, to wit, on or about December, 1905, and on or about March, 1906, that the said corporation would pay the plaintiff a bonus of $600, if the profits justified it, but to pay the plaintiff $400 in any event.” A jury was waived, and the cause tried by the court, resulting in a finding and judgment in favor of Krause for $400, which we are here asked to review, upon a writ of error.

It appears that plaintiff entered the employ of one Salomon in 1901, and continued in his employ and that of the company, at from $16 to $22 per week, until June, 1906; that, Salomon and his associates incorporated the defendant company in the latter part of 1905, and Mr. Salomon became its president. Krause claims to have told Salomon sometime in December, 1905, that he had another position offered him, and would have to leave unless defendant did right by him; that thereupon Salomon told him not to leave, as he was going to incorporate and would give him some stock. Krause further claims that sometime about Mew Year’s, 1906, he asked Salomon about the stock, and the latter promised to sell him some on the installment plan. It appears that on Christmas, 1905, Salomon gave Krause $200, which he says was a Christmas present, but Krause claims that Salomon told him he would get more next year,—not less than $400, and, if the business allows, $600 or more. Krause claims that about March, 1906, he again asked Salomon about the stock, and was told, “We have decided not to give you any stock. We shall give you $400, and if the business profits well, we will give you $600 or more, at the end of the year.” That, relying upon such promises, he stayed and continued to work until June 22, 1906, when he says he was discharged by Salomon.

These several conversations and promises are specifically denied by Salomon, who says that the only foundation for them all is the fact that he gave to Krause $200 as a Christmas present, and for no other purpose; and he testifies that he made such Christmas presents, though of different amounts, to other employees.

As to the claim that he was discharged, Krause’s own testimony is that, when he objected to taking orders from another, a Mr. Traverse, who was manager and secretary of the company, told him that if he did not like it, he could get out. Whereupon Mr. Krause said, “All right,” and he was then told that he could come down to the office and get his pay. He says that he went down to the office, and Toldte, the bookkeeper, made out his pay for the entire week, though he had only worked four days; that he had no conversation with Toldte about any more money due him. On the other hand, Toldte testifies that be remembered the occasion, and that he asked Krause whether the amount he was paying him covered everything he had coming, to which Krause replied, “yes;” that the payment in addition to Krause’s actually earned salary covered some work which his wife had done.

It appears that neither Traverse, the manager and secretary of the company, nor Toldte, the bookkeeper, knew anything about the $200 paid to Krause on the day before Christmas.

It seems to be contended here that the consideration for the alleged promise to pay the $400 or $600 sued for was that Krause should remain with the defendant company, and impliedly “not accept the other position offered to him.” But it is not even contended that Krause bound himself, by any agreement, to stay any particular length of time.

It is also to be noted that plaintiff was not discharged, but voluntarily quit the employment of the defendant company, because he was displeased at having orders given to him by one who had theretofore been a subordinate. It is also a matter of comment that when he was paid off by the bookkeeper, according to his own testimony, he made no claim for any additional amount, nor did he, upon the trial, deny the testimony of the bookkeeper that he had admitted that nothing more was coming to him.

We do not think the conversations testified to afford a just basis for this judgment. The alleged contract is entirely too indefinite, and is lacking in mutuality. Even if there had been a contract, it was evidently abandoned by Krause, when he quit the employ of the defendant company. In any event, there is no sufficient testimony connecting the defendant corporation with the alleged promise, which Krause claims Salomon made to him before it was organized, but which Salomon expressly denies.

We have examined the entire record and briefs, and it seems clear to us that the alleged claim of defendant in error cannot be sustained, and that, upon the evidence, the court below should have found for the defendant. The judgment will, therefore, be reversed, and judgment entered here in favor of the plaintiff in error upon a finding of fact.

Reversed and judgment here.


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    Ossian Cameron, Plaintiff in Error, v. Illinois Steel Company, Defendant in Error.
    Gen. No. 15,616.
    1. Assumpsit—what essential to recovery upon assignment of chose in action. In order to recover upon an assignment of a chose in action it is essential that the plaintiff establish, first, that there was a cause of action, second, that it was such a cause of action as could be assigned, and third, that it has been assigned.
    2. Assignments—what chose in action not assignable. A cause of action to recover damages for injury to the person is not assignable.
    Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed June 16, 1911.
    A. S. Lakey, for plaintiff in error.
    Knapp & Campbell and William Beye, for defendant in error.
   Mr. Justice Baldwin

delivered the opinion of the court.

Ossian Cameron, plaintiff in error, brought suit against the Illinois Steel Company, defendant in error, in the Municipal Court of Chicago, as an assignee of an alleged chose in action of one Joseph Guzowski, against it. Plaintiff in error claims that his suit was brought under section 18, chapter 110, of the Revised Statutes, which authorizes a suit upon any “chose in action, not negotiable, heretofore or hereafter assigned,” in the name of the assignee, a bona fide owner thereof.

This cause was tried in the Municipal Court of Chicago without a jury. Plaintiff’s statement of claim was as follows:

“Know all men that I, Joseph Guzowski, of Chicago, Illinois, do hereby make, constitute and appoint Ossian Cameron, an attorney at law of the state of Illinois, residing at Chicago, Cook county, in said state, my true and lawful attorney in fact, (and said appointment coupled with an interest, is hereby made irrevocable) for me and in my stead, to ask, present, demand, sue for, collect, receive, receipt for, endorse in my name, any voucher, order, draft, check or other instrument of writing, and to sign in my name and acknowledge for me before any officer authorized to take acknowledgments, any release, voucher, or other instrument in writing, that may be necessary, required or desired, for all debts, demands, claims or compensation, owing, due or claimed by me, from Illinois Steel Company or its legal representatives, of any nature whatsoever, and especially a claim now before said * * * wherein I received personal injuries, on or about November 16th, 1901, and empowering said Ossian Cameron, my said attorney, to do and perform all acts and things .in the execution of the aforesaid business as fully and completely as I might, were I present in person. I also request my said attorney to deliver a duplicate hereof to said Illinois Steel Co. for filing with its records in said matter.
As compensation to said Cameron for his services herein I agree to pay him one-half of any amount recovered by any means on account of said claim, and to secure him I hereby assign to him said cause of action and my judgment that may be recovered thereon. In case of settlement direct with me, I hereby direct said company to pay one-half of the amount of settlement to said Cameron as and for his attorneys’ fee herein.
In witness whereof, I have hereunto set my hand and seal at Chicago, Cook County, Illinois, this 24th day of February, A. D. 1908.
Joseph Guzowski. (Seal).”

This instrument appears to have been duly acknowledged on its date before a notary public.

The cause was heard upon an agreed statement of facts, in which it appeared that at and prior to November 1, 1906, the Steel Company was operating a steel plant in Chicago, and had in its employ in said plant as a laborer one Joseph Guzowski, under a contract of hiring, who, in the course of his said employment suffered a fractured skull on, to-wit: November 16, 1907, and that thereafter and on the 24th of February, 1908, he executed an instrument in writing (hereinbefore set out in the statement of claim, being the power of attorney, etc.).

It was further stipulated that the original of said writing between Guzowski and Cameron was served upon the company and acknowledged and receipted for by them on the day of its date, and that thereafter and on the 4th of May, 1908, an action in trespass on the case was commenced by Guzowski against the company in the Superior Court of Cook county, cause No. 266,537, entitled “Joseph Guzowski v. Illinois Steel Company,” in which suit a declaration was filed which began as follows: “Coinés now the plaintiff by Ossian Cameron, his attorney, and complains of the Illinois Steel Company, a corporation, defendant, of a plea of trespass on the case,”—and this is followed by six counts, each count' alleging the employment of Guzowski and the breach of a contract duty on the part of the Steel Company as follows: In the first count, the duty of defendant to provide a reasonably safe place in which he should work; in the 2d, the duty of the defendant to provide reasonably safe equipment and appliances, etc.; in the 3rd, the duty of the Company to exercise reasonable and ordinary care to select reasonably safe and careful fellow servants; in the 4th, not to expose him to extra hazard and danger; in the 5th, to exercise reasonable and ordinary care in directing him about his employment; and in the 6th, to use ordinary care in lining a ladle,—and each count closed with an averment of the breach of the duty in that count alleged, and consequent damages.

In said agreed statement of facts it was further stated that the above declaration was the only one filed in said suit, and that Ossian Cameron appeared therein as the attorney for Joseph Guzowski; that thereafter Cameron entered into negotiations with the Steel Company for the purpose of having the settlement of the claim made for Guzowski by reason of the injuries received as aforesaid, and that thereafter and on July 20, 1908, the Company paid to Guzowski the sum of $1500, in consideration of which. Guzowski released the Company of all claims against it, which might exist by reason of any injuries received while in its employ. It was further stipulated that Cameron has not yet received from the Steel Company or Guzowski any part of the money so paid in settlement, or any equivalent therefor.

Plaintiff in error, Cameron, contends in this suit that:

1. A right of action for personal injury survives the death of the injured person and therefore is assignable.

2. The assignee and equitable and bona, fide owner of any “chose in action not negotiable heretobefore or hereafter assigned, may sue thereon in his own name, etc.”

3. To determine the nature of a cause of action, whether for a tort or on promises, the substance of the declaration must be looked to.

4. Assumpsit is technically an action on the case, and may be resorted to when there is a breach of contract, express or implied, for the payment of money or for the performance or omission of any other act.

Defendant in error contends that nowhere in this, case is it shown that Guzowski had any cause of action against it. He was injured while working for it in the course of his employment, and, unless the defendant was liable for the injury, there was no cause of action in Guzowski, and, therefore, he could not assign to Cameron what did not exist. It further contends that a cause of action for recovery of damages for personal injuries is not assignable under any circumstances.

On the first page of the brief and argument for plaintiff in error, counsel says: "The chose in action in Guzowski, the assignor, arose out of the claim against the Illinois Steel Compamy for breach of a contract of hiring, as appears in the agreed stipulation of facts,” while in the agreed statement of facts the only reference to the accident is that, “in the year 1907 the Illinois Steel Company had in its employ in said plant, as a laborer, one Joseph Guzowsld, under a contract of hiring, who in the course of his said employment suffered a fractured skull on, to wit: November 16, 1907.” This admission by no means sustains the contention of plaintiff in error. The injury may have been received by Guzowski because of the negligence of a fellow servant, or through his own contributory negligence or as a result of one of the assumed risks of his employment, in any of which cases it is clear that there would be no liability on the part of the defendant, and no cause of action in Guzowski.

In this suit Cameron relied upon an assignment of an alleged cause of action. To maintain his suit he must- establish by proof at least three things; first, that there was a cause of action in Guzowski; second, that it was such a cause of action as could be assigned; and, third, that it has been assigned. There being no proof made, nor any admission by defendant of such cause of action, the plaintiff must necessarily fail. The mere fact that the Steel Company paid to Guzowski a sum of money, does not establish a cause of action against it, even though it took a release from him. Of course, if there was no cause of action, Cameron could acquire nothing by the assignment to him. We are clear, therefore, that plaintiff in error failed to establish his case, even if the cause of action were assignable.

Having said this much, it is, perhaps, unnecessary to consider the other phase of the case, and yet it may be worth while to consider whether the cause of action was such a one as could be assigned.

As is well stated in the brief and argument for plaintiff in error, “to determine the nature of the cause of action, whether for a tort or on promises, the substance of the declaration must be looked to.” Applying this to the declaration filed in the suit against the Steel Company in the Superior Court of Cook county, we think it was clearly an action on the case for negligence, and not an action of assumpsit based upon a contract. It frequently happens that the same transaction will sustain an action in tort, or the tort may be waived and an action of assumpsit maintained, but these cases do not include an action for a personal injury, resulting from the negligence of the defendant.

We regard the law in this state as settled that a cause of action to recover damages for injury to the person is not assignable. North Chicago Street Ry. Co. v. Ackley, 171 Ill. 100. Beginning on page 108 the court in their opinion says:

“On grounds of public policy the sale or assignment of actions for injuries to the person are void. The law will not consider the injuries of a citizen, whereby he is injured in his person, to be, as a cause of action, a commodity of sale.”

Since the decision in the Ackley case three propositions applicable to this case seem settled: ¡First, that it is unimportant here whether or not a right of action for a personal injury survives, and, second, that it is unimportant whether the form of the action be in assumpsit or in tort; and, third, if the cause of action be for damages for the injury to the person, it is not assignable.

If we correctly apprehend the contention of plaintiff in error, it is that by the so-called assignment from Guzowski, with notice to the Steel Company, he thereupon became vested with the entire cause of action, and, therefore, Guzowski could not make any settlement of it with the Steel Company. This contention, if sustained, would prevent any settlement or compromise by Guzowski, though it appears that the contract did not so provide, and if the contract did so provide it would be in violation of the law as stated by the Supreme Court on page 113 in the Ackley case, where it says that: “Any contract whereby a client is prevented from settling or discontinuing his suit is void, as such agreement would foster and encourage litigation.” Clearly the cause of action could not he divided. It must exist either in Guzowski or in Cameron, and in this state at least since the decision in the Ackley case, attempted assignment of this alleged cause of action, being for an injury to the person of Guzowski, would he void on the grounds of public policy.

The judgment of the court below must be affirmed.

Affirmed.


text:
    Comptograph Company, Plaintiff in Error, v. Coey Automobile Livery Company, Defendant in Error.
    Gen. No. 15,640.
    1. Municipal Court—when plaintiff entitled to non-suit. In. a trial before a jury in the Municipal Court the plaintiff is entitled to take a non-suit at any time before the jury retires.
    2. Bailments—when bailee liable. If a machine is placed with a party upon trial he is bound to exercise reasonable care for its safety and in the event of its being lost or stolen such party must show that such result was not through his fault, and failing of such showing he is liable for the value of such machine.
    Error to the Municipal Court of Chicago; the Hon. Robert H. Scott, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Reversed and remanded.
    Opinion filed June 16, 1911.
    Knapp & Campbell and William D. McKenzie, for plaintiff in error.
    No appearance for defendant in error.
   Mr. Justice Baldwin

delivered the opinion of the court.

Plaintiff in error brought suit against defendant in error in the Municipal Court of Chicago to recover the value of an adding machine, which the Comptograph Company had theretofore delivered to the defendant in error, upon trial. About one month after such delivery a fire occurred in the place of business of defendant, and the machine was damaged. On that day, and upon the following day, and one week after the fire, the sales agent of plaintiff called upon the manager of defendant and desired to take the machine away. Again about two months later a similar effort was made to procure it and at length an express driver was sent for it, but he could not get it, and the machine was never returned, nor in any manner came into the possession of plaintiff.

Upon the trial, defendant then for the first time claimed the machine had been removed from its possession, but it was not shown by whom, and defendant claimed not to know in whose possession it was at the time of the trial. The market value of the machine before the fire, was shown to be $375, and there was testimony that an expenditure of about $25 or $30 would have made it as good as new, and that the market value of the machine in its condition after the fire was at least $340. After the plaintiff had rested its case, the defendant moved to dismiss upon the ground that the action was one for conversion and that no demand had been shown. At the close of the argument of this motion plaintiff asked to take a non-suit, which the court refused, and entered judgment against plaintiff.

We are asked to reverse the action of the court below upon the ground (1) that the plaintiff was entitled to a non-suit and (2) that the evidence was sufficient to justify a finding for the plaintiff.

We have gone over the entire record and are of the opinion that the plaintiff in error is right in both contentions. Section 30 of the Municipal Court Act, Hurd’s Statutes, 1908, page 679, reads

“Every person desirous of suffering a non-suit on trial shall be barred therefrom unless he do so before the jury retire from the bar, or before the court, in case the trial is by the court without a jury, states its findings.”

It is clear from an inspection of the record that the case had not reached the point at which the plaintiff had lost his right to a non-suit.

Upon the second proposition, we think under the evidence in this case that the court below erred in entering judgment for the defendant. The machine had been delivered to defendant for trial, and, while plaintiff cannot recover from defendant for any damage to the machine caused by the fire, it was entitled to its machine in the damaged condition. There is nothing in the record to show that the injury to the machine was caused by the negligence of defendant, and, therefore, it cannot be held liable for the damage to the machine by the fire. The evidence does show, however, that the machine was in existence in the possession of defendant in its damaged state after the fire. It was then incumbent upon defendant to use ordinary and reasonable care in regard to the machine. The title was in the plaintiff, and if the machine could no longer, on account of its damaged condition, be used for the purpose originally intended when placed in the possession of defendant, then plaintiff had the right to have the machine returned to it, and so long as it was in possession of defendant,, ordinary care must be exercised in keeping it in good condition. It is claimed by defendant that the machine had been removed from its possession, but it does not attempt to show what became of it. If it had been stolen from it, that may or may not have been due to the negligence of defendant, or if the defendant had delivered it to the wrong person, this might or might not have been negligently done. Defendant should at least satisfactorily account for the machine’s whereabouts, which it failed to do. If it was not negligent, it should have introduced testimony to so show. A careful inspection of the record satisfies us that the court below erred in entering judgment for defendant, and the judgment will, therefore, be reversed and the cause remanded.

Reversed and remanded.


text:
    S. Mittleman, Defendant in Error, v. Edward Stoerman, Plaintiff in Error.
    Gen. No. 15,660.

      Negligence—when defendant not liable. A defendant is only liable for his own negligence, and a defendant is not liable for the negligence of others with whom he was in no wise connected and to whom he sustained no relation.
    Error to the Municipal Court of Chicago; the Hon. Frank G. Plain, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909,
    Reversed and remanded-
    Opinion filed June 20, 1911.

      McArdle & McArdle, for appellant.
    Harry C. Levinson, for defendant in error.
   Mr. Justice Baldwin

delivered the opinion of the court.

Defendant in error, Mittleman, brought an action of the fourth class in the Municipal Court of Chicago to recover the value of his horse, which had to be shot on account of receiving a crushed foot through the alleged negligence of the driver of a coal wagon. A jury was waived and the trial had by the court, which resulted in a finding and judgment in favor of defendant in error for $125.

We are asked to reverse the action of the lower court practically upon the grounds, (1) that it is not shown that plaintiff in error was the owner of the coal wagon, or employer of its driver, or in any connected with it; (2) that there was no negligence shown on the part of the coal wagon driver; and (3) that the negligence of defendant in error contributed to the injury complained of.

The accident occurred on the west side of Canal street, just north of Lake street, in the city of Chicago. It appears that as many as 12 or 15 wagons were backed against the sidewalk on the west side of Canal street, and the horses in front of and attached to them were facing east, and their heads were approximately at the middle of the street. The horse and wagon of defendant in error was, perhaps, midway in this row from north to south. A heavily loaded coal wagon, drawn by three horses, was driving south upon Canal street near the center of the street. He had passed the heads of several of the horses, thus standing facing east, and when the horse of plaintiff was reached by the wagon, in some manner the horse fell and one of its feet was projected far enough out into the street that the heavy coal wagon ran over and crushed it, necessitating the shooting of the horse. The driver did not see the accident, but stopped a few feet further on, and, upon being asked his name and that of the owner of the wagon, wrote “City Fuel Company,” and his own name, John Cuthbert. It also apeared that the name of the City Fuel Co. was on the side of the wagon, and that, after the injury, the City Fuel Company was called up by defendant in error about the matter. Following a conversation over the telephone, defendant in error went to the barns of the company, where he met the plaintiff in error, and was told that he was the boss.” He claimed to have had some conversation with Stoerman on that day, and was told to come around the next day, and that, by appointment, he had two or three interviews with Stoerman, which did not result in anything, whereupon this suit was brought.

In the view we take of this case, it will not be necessary to discuss any but the first proposition urged on behalf of plaintiff in error. Without passing upon the question as to whether defendant in error was rightly using the street in the manner indicated, or whether the driver of the coal wagon was guilty of negligence which would render his principal liable, we are compelled to sustain the contention of plaintiff in error that there is no evidence in the record even tending to show that plaintiff in error was the owner of the coal wagon, or in any way responsible, as employer, for acts of its driver, or in any such way connected with the accident as to create any liability on his part.

The judgment must be reversed and the cause remanded.

Reversed and remanded.


text:
    The People of the State of Illinois, Defendant in Error, v. Zaidee Hunt, Plaintiff in Error.
    Gen. No. 15,801.

      Evidence—effect of written confession. A written confession signed by the accused if discredited in part loses much of its probative force.
    Error to the Municipal Court of Chicago; the Hon. Fredrick L. Fake, Jr., Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Reversed with judgment here.
    Opinion filed June 16, 1911.

      Charles M. Thompson, for plaintiff in error.
    John E. W. Wayman, for defendant in error; Otto B. Schram, of counsel.
   Mr. Justice Baldwin

delivered the opinion of the court.

Plaintiff in error was tried in the Municipal Court of Chicago upon a charge of larceny from Marshall Field & Company of several small articles of merchandise, aggregating in value the sum of $11.84, on the 3rd day of July, 1909. A jury was waived and the judge found her guilty of the charge, and sentenced her to imprisonment for one day in the county jail, and imposed a fine of $22 and costs. This finding and sentence she seeks to reverse in this court upon the ground that the finding is against the weight of the evidence.

At the same time, she was tried and convicted of the larceny of sundry small articles of the total value of $2.75 from ¡Rothschild & Company, and upon that finding was sentenced to imprisonment in the county jail for one day and to pay a fine of $4.50 and costs. The two cases were tried together in the court helow, and were heard together in this court.

From the evidence it appears that plaintiff in error was' at that time about thirty-five years of age, married, and living with her husband and children in the City of Chicago, and that on the day in question she came down town for the purpose of doing some shopping, and had with her a young girl of fourteen, who was a domestic in her home. Together they went to Marshall Field’s, where they made several purchases, and afterwards to various other stores and places of business, including Hillman’s, The Fair, and finally, to the store of ¡Rothschild & Company, at which last mentioned place, as they were about leaving the store, she and the maid were arrested by the house detective, and taken to the office of the superintendent, where they were interrogated concerning various articles alleged to have been stolen at this and other stores during the day, which were there unwrapped before them. From this place they were taken to the office of a detective agency, where the articles were again unwrapped, and where the defendant and the girl were separately interrogated concerning them. These interviews resulted in a written confession, signed by both the defendant and her maid. This confession was prepared by the detectives after these interviews, and after being thus prepared, was read over once, and perhaps twice, by the defendant before she signed it. This written confession specifically included several articles therein stated to have been stolen from places other than Marshall Field’s, and which, upon the trial, were satisfactorily proven to have been bought and paid for. The defendant claimed, upon the trial, that the alleged confession was erroneous in many particulars, and that though she knew the statements made in it were not true, she signed it for the purpose of securing her freedom and that she might be allowed to go home.

It appears that she was arrested about 4:30 Saturday afternoon, and that she had been detained for some time.in the detective’s office, and was greatly mortified at the charge against her, and filled with anxiety to get home, to her husband and children.

Upon the trial, she not only denied having stolen the articles mentioned in the complaint, but asserted the inaccuracy and untruthfulness of the confession, giving not only the reasons already ascribed for signing it, but, in ad-' dition, claimed that she had been badgered and vilified by the detectives and was nearly in a state of nervous distraction.

At the trial, several witnesses testified to her having theretofore sustained a good reputation, and, as before stated, it appeared that several of the articles stated in the confession to have been stolen had, in fact, been bought and paid for by her.

While her explanations as to her signing the confession are not at all satisfactory, and while we do not fully credit her statements that she was abused by the detectives, the fact still remains that the confession specifically included articles which were shown upon the trial to have been bought and paid for by her, which necessarily discredits the effect of the confession, as evidence against her.

We have carefully gone over the entire record in the case. In this case there is no direct evidence of the corpus delicti, and notwithstanding the strong presumption created by the finding of the trial court, who saw and heard the witnesses testify, we have reached the conclusion that the evidence, as a whole, does not reach that degree of certainty required to sustain a conviction in a criminal case. Indeed, the trial judge himself indicated great doubt as to his duty in the premises. j

Ho substantial purpose would be subserved by rehearing at length, the testimony. It is sufficient to say that, applying the law which requires that, if the evidence when all considered leaves a reasonable doubt of guilt of the accused, it is the duty of the courts to solve that doubt in favor of the defendant, we must reverse the judgment of the court below. Inasmuch as there is no probability that the evidence upon a second trial would substantially differ from that already heard, we think it our duty to reverse without remanding, and enter judgment here upon a finding of facts.

Reversed with judgment here upon a finding of facts.


author: Mr. Justice Clark

text:
    Central Investment Company, Defendant in Error, v. Jessie Melick, Administratrix, Plaintiff in Error.
    Gen. No. 15,408.
    1. Appeals and errors—effect of insufficient abstract. If the abstract filed on appeal is incomplete and not in compliance with the rules a pro forma affirmance will be ordered.
    2. Corporations—how purpose of organization must be established. The purpose for which a corporation is organized must be established by the introduction of a certified copy of its articles of incorporation.
    3. Foreign corporations—when entitled to do business in this state. In order to do business in this state it is not essential that a foreign corporation file for record in the recorder’s office a certified copy of the secretary of state that it has complied with the laws of this state.

      Error to the Municipal Court of Chicago; the Hon. William W. Maxwell, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed June 16, 1911.
    Rehearing denied June 27, 1911.
    John S. Reynolds and Robert D. Melick, for plaintiff in error.
    Charles E. Anthony, for defendant in error.
   Mr. Justice Clark

delivered the opinion of the court.

Judgment was obtained in the Municipal Court for rent due under a lease, and for possession of the property covered by it, defendant in error being the lessor, and plaintiff in error the tenant.

The judgment we think should be affirmed on several grounds. First, the abstract of record filed by plaintiff in error is not complete. We are not furnished in it with an abstract of the lease, or the demand for possession, or the certificate of the secretary of state licensing the defendant in error to do business in the state. We would be warranted, therefore, in affirming the judgment on that ground. (Thornton v. Muus, 120 Ill. App. 422.) We have, however, been furnished with an additional abstract by the defendant in error, covering in part at least the omissions, and have examined the record.

The first point insisted upon by the plaintiff in error is that the defendant in error is a corporation organized for the purpose of purchasing and holding real estate, a purpose not authorized by the laws of this state. The record does not show the purpose for which it is organized. This was a matter of defense, and the plaintiff in error should have introduced a certified copy of the articles of incorporation, which could easily have been procured from the secretary of state of this state, with whom it appears a copy of such articles was duly filed. A second point is that defendant is not authorized to do business in Illinois.

The case is not like that of Oil, Paint & Drug Pub. Co. v. Stroud, 156 Ill. App. 312, cited to us. In that case the pleas alleged that the corporation was organized in another state and had not complied with the laws of this state with respect to foreign corporations seeking to do business within it. The truth of these pleas was admitted by demurrer. In the case before us there is no such admission, and there is no proof that the defendant in error has not complied with the laws of this state.

The record discloses by a certificate of the secretary of state that on September 28, 1897, the Central Investment Company, which is a New Jersey corporation, filed in the office of the secretary of state of Illinois duly authenticated evidence of its incorporation, as provided by law, and that it had in all respects complied with the requirements of law governing foreign corporations. This is all that was necessary for it to do in order.to enable it to carry on business in this state. There is no provision for the filing of the final certificate in the recorder’s office, as must be done with articles of incorporation issued to domestic corporations. It has been held that even a domestic corporation is a corporation de facto when the only thing left undone is the filing of a certificate with the recorder of deeds. (Marshall v. Keach, 227 Ill. 35.)

We have considered the other questions raised by the plaintiff in error, hut find nothing in the record which, in our opinion, should cause a reversal of the judgment.

Affirmed.