text:
    Edson Keith & Company, Appellee, v. The Atchison, Topeka & Santa Fe Railway Company, Appellant.
    Gen. No. 20,330.
    1. Carriers, § 188

      —when notice to connecting carrier hinds initial carrier. Notice by an employee of a connecting carrier, prior to" the completion of the contract of carriage, that the consignee refused to accept the goods is binding upon the initial carrier.
    2. Carriers, § 90*—when hound to notify shipper of refusal of consignee to accept. Where a railway company, acting as a common carrier, enters into a contract to accept goods for shipment and agrees to carry and deliver the same to a party in another State, notice by such carrier from the employee of a connecting carrier that the consignee of the goods refuses to receive the same imposes upon such carrier the duty to inform the consignor of the refusal of the goods by the consignee, and the failure upon its part to do so constitutes a breach of the contract of carriage for which it is liable for any damages resulting therefrom.
    3. Carriers, § 147*—when carrier liable as such and not as warehouseman on refusal of consignee to receive. Where a connecting carrier had been notified by the consignee that a consignment of goods would be refused, and immediately upon its arrival placed it in a warehouse without notifying the consignor of the refusal, the initial carrier cannot contend that with the placing of the property in the warehouse its duty as a carrier had ceased, and the acts of the connecting carrier were not those of a warehouseman for which it was not liable, since the duty to give notice to the consignor arose prior to the placing of the goods in the warehouse and was imposed by the contract of carriage.
    4. Carriers, § 93*—when question of notice of refusal of consignee to receive for jury. Where the plaintiff in an action against a railway company denies notice from the consignee of a refusal to accept the goods which the company claims that it received, the ° issue thereon is a question of fact for the jury under proper instructions.
    5. Appeal and error, § 1566*—when verdict shows refusal of instruction harmless. Where there is no allegation in the declaration to sustain any element of damage by reason of the delay of a railway company in the return of goods after it has been ordered to return the same, and it appears from the verdict that the jury did not take into consideration this delay in assessing damages, the company cannot complain of the failure of the court to instruct the jury that it was not liable for any damages by reason of such delay.
    Appeal from the Superior Court of Cook county; the Hon. Marcus A. Kavahagh, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.
    Affirmed.
    Opinion filed April 22, 1915.
    Rehearing denied May 8, 1915.
    Robert Dunlap, Lee F. English, James L. Coleman and Homer W. Davis, for appellant.
    John Gibson Hale, for appellee.

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

   Mr. Justice Pam

delivered the opinion of the court.

This is a suit in assumpsit brought by Edson Keith & Company, a corporation, appellee, hereinafter referred to as the plaintiff, against the Atchison, Topeka & Santa Fe Railway Company, appellant, hereinafter refei red to as the defendant, for damages sustained by reason of the breach of a contract for the transportation of certain goods, wares and merchandise from Chicago, consigned to one T. Anson, Aspen, Colorado.

The declaration, which consisted of but one count, charged that the plaintiff delivered to the defendant on July 22, 1903, six cases of dry goods and millinery, to be carried by defendant to Thomas Anson, Aspen, Colorado; that defendant agreed to transport and forward said cases to destination and deliver them to the consignee; and that in the event of refusal by the consignee to receive them, to notify plaintiff of such refusal; and further, that defendant did not deliver said cases to the consignee and failed to notify the plaintiff that the goods had been refused by the consignee ; that when on September 24, 1903, plaintiff was notified that said property had been refused by the consignee and was on hand at destination, defendant was notified by plaintiff to return said property; that the goods were not returned until November 22, 1903; that thereby plaintiff sustained the damages sued for in this case.

To this declaration defendant filed a plea of nonassumpsit.

On the trial of the case before a court and jury, a verdict for $180 was rendered in favor of the plaintiff and judgment entered thereon, to reverse which this appeal has been prosecuted.

Plaintiff was in the wholesale millinery business in Chicago. In the spring or early summer of 1903, Mrs. Margaret Bastían was managing a millinery store at Aspen, Colorado, for her son, T. Anson. Some time prior to July, 1903, she ordered certain millinery goods from plaintiff, to be shipped from Chicago, for use in the fall trade.

The evidence shows that on the 22d day of July, 1903, plaintiff delivered to the defendant at its freight receiving station in Chicago, cases containing the goods sold to Anson by plaintiff; these cases were marked “T. Anson, Aspen Colo;” that defendant receipted for these goods from plaintiff for shipment over its line of railway to the consignee at the point of destination, and that there was no bill of lading issued upon this shipment; that the defendant carried the shipment over its line to Pueblo, Colorado, where it turned the same over to the Denver & Bio Grande, whose line extends to Aspen, for completion of the transit and delivery; that prior to the arrival of the goods at Aspen, the agent of the Denver & Bio Grande at Aspen had been informed by Mrs. Bastían that if any goods came from plaintiff she was going to refuse the same; that when the shipment in question reached Aspen about August 1st, it was immediately placed in the warehouse.

Subsequently the following notification was sent by defendant’s agent at Chicago to the plaintiff:

“Notice of Undelivered Freight.
Chgo. 9-24-03 Tracer Audit No. 33373 Agent’s No.-
Edson Keith Co.
Tour shipment of 7-23-03 No.-Consigned to T.
Anson. Consisting of 1 Cs D Goods 4 cs Hats 1 cs Feathers is at destination Aspen, Colo on account of refused. Covered by Way-bill No. 13991.
Dated-190-
Please advise me at once With Return of This Notice, what disposition you wish made of it, bearing in mind that orders to return, to forward to any other destination, or to deliver to any other than the above consignee, Must Be Accompanied by the Original Shipping Receipt or Bill of Lading, indorsed accordingly.
Please record above Tracer Number on your books for future reference.
Respectfully,
C. B. Strohm, Agent,
Chicago.”
The Charles B. Strohm who signed this as agent, also signed the shipping receipt as agent on July 23, 1903.
To this letter plaintiff replied as follows:
“Chicago, Sept. 29, 1903.
Mr. C. B. Strohm, Agent,
Atchison, Topeka & Santa Fe Ry. Co.,
1202 State St., City.
Dear Sir:
We received your notice of Sept. 24th, informing us that there is a shipment of goods on hand at Aspen, Colo., for T. Anson, which has been refused by him. We have written this party today, and will ask you to be kind enough to issue instructions to your agent at Aspen, to present the goods to Mr. Anson again, and, if they are still refused, please have them returned to us at once, without fail. These goods have been out a long time, and it is only now we were notified that they were undelivered. May we ask yonr special attention to this matter, therefore, as the season is rapidly passing, and the goods will he of no use to ns, if they do not come back very soon. We would suggest that you telegraph your agent at Aspen. Please let us know the cost of this, and we will refund you the amount.
Very respectfully yours,
Edson Keith & Co.,
James Wilson, Actg. Sec. and Treas.
P. S. We enclose shipping receipt herewith.”

These goods reached Chicago about November 20th, on which day the following letter was received by plaintiff from defendant:

“Nov. 20, 1903.
S. File.
Shipment from Aspen.
Edson Keith & Co.,
Chicago, Ill.
Gentlemen:
Referring to conversation with yonr Mr. Barron this p. m. and returning herewith freight arrival notice.
Kindly take delivery of these goods at once, paying the freight charges, and sell them to the best advantage possible and amend your claim by the amount realized from the sale. Claim will then be promptly investigated and considered on its merits.
Tours truly,
G. A. Aird.”

The evidence shows that the goods were received after that date by the plaintiff, freight charges paid both to and from Chicago, and the goods sold for $100 which was the fair cash market value for the property at that time.

Except in one particular, namely, whether or not the plaintiff had notice directly from the consignee in July that the latter would not accept the property upon its arrival, the facts as outlined above are undisputed.

Upon this state of facts defendant maintains:

(1) That the court erred in not instructing the jury to find the issues for the defendant.

(2) That the court erred in the giving, refusing and modification of certain instructions.

(3) That the damages are excessive.

On the first point defendant contends that the duty of the defendant as a common carrier was terminated upon the delivery of the goods at Aspen, without notice to the consignee; that under the law of Illinois, where this contract was entered into, notice to the consignee upon the arrival of goods at destination is not required; that it was no part of the carrier’s duty to transmit notice to plaintiff of the refusal of the goods by consignee.

The evidence shows that defendant accepted these goods for shipment and agreed to carry and deliver same to Thomas Anson at Aspen, Colorado. Defendant had received notice prior to the arrival of the shipment at Aspen that consignee would not accept the property. While it is true that the person receiving this notice was an employee of the Denver & Rio Grande Railroad, the connecting carrier which carried the goods from Pueblo to Aspen under the agreement entered into between the plaintiff and defendant at Chicago, yet in receiving this notice of refusal from the consignee he was the agent of defendant, and he remained the agent until the contract of carriage was completed. This agent at Aspen did not notify consignee of the arrival, nor did he notify consignor of the refusal by consignee to receive the shipment, but immediately upon the arrival of the goods at Aspen placed them in a warehouse,

Defendant maintains that with the placing of the property into the warehouse its duty as common carrier ceased, and that thereafter the act of the connecting carrier was no longer that of a common carrier but that of a warehouseman for whose acts, if any, constituting a breach of the contract resulting in damages, it was not liable.

Plaintiff insists, however, that this contention of the defendant is not inconsistent with plaintiff’s contention that it was the duty of defendant to notify plaintiff of the refusal by the consignee to accept the property. That duty arose before the relation of warehouseman ensued, and was the duty of the defendant as a common carrier under its contract of carriage. In support of this contention plaintiff cites the case of Michigan Central R. Co. v. Harville, 136 Ill. App. 243. In that case the carrier interposed the defense contended for here by the defendant, citing the cases of Gregg v. Illinois Cent. R. Co., 147 Ill. 550, and Illinois Cent. R. Co. v. Carter, 165 Ill. 570, but Mr. Justice tice Brown, speaking for the court, held that those cases were not in point, and went on to say:

‘‘ There is no authority which holds that on refusal of freight by a consignee, or non-delivery through other obstacles, notice is not required to the consignor or persons known by the carrier to be owners or interested in the goods. The law is the other way. Louisville & Nashville R. Co. v. Duncan, 137 Ala. 446.”

In our opinion, the plaintiff, under its contract of carriage with defendant, was entitled to know whether or not there had been a delivery. Knowledge of the refusal by the consignee came to defendant while acting as a common carrier, and it was defendant’s duty as a common carrier to communicate that knowledge to the plaintiff. The damage if any, that was sustained by plaintiff, was not the result of any act following the storage of the goods. This is not a case where the warehouse was destroyed by fire or the goods were otherwise damaged through negligence; the damage resulted because of the delay in returning the property to Chicago, which delay resulted from the failure to notify plaintiff of the refusal of the goods by the consignee. We are of the opinion that defendant was charged as a common carrier with the duty to notify plaintiff of the refusal by the consignee, and that the failure to do so constituted a breach of the contract of carriage.

In fact, defendant recognized a duty in that regard by notifying plaintiff on September 24th of the consignee’s refusal to accept the property and asking for instructions. It recognized its duty too late.

Defendant further contends that, even if the law on the subject of notice is as contended for by plaintiff, yet no recovery should be sustained against the defendant because the evidence showed that the consignee, before the goods had reached their destination, had given notice directly to plaintiff of his intention to reject the shipment. Plaintiff, however, denied that the evidence showed such fact. This issue became, therefore, a question of fact for the jury under proper instructions by the court. No complaint has been made by defendant of the instruction wherein the question of notice was involved, and the jury by their verdict determined that issue, as well as the others, in favor of plaintiff.

Defendant also complains that the instructions given on behalf of plaintiff were erroneous in that they held defendant liable for the acts of the connecting carrier while acting as warehouseman. In our opinion, the instructions submitted to the jury the correct principles of law applicable to the facts.

Defendant complains that the court refused to instruct the jury that the "defendant was not liable for any damages by reason of the delay between September 29th, when the goods were ordered returned to Chicago, and the date of their arrival, November 20th, because there was no allegation in the declaration to sustain any such element of damage. The amount of damages alleged in the declaration and upon which evidence was offered was $360.94. The jury returned a verdict for $180, just one-half the amount of the claim. Apparently the jury did not allow any damages after September 24th, when the defendant sent notice to the plaintiff that the goods had been refused.

While defendant urges the further point that even this amount is excessive, there is no merit in that contention.

Finding no reversible error, the judgment of the Superior Court will be affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Pam

license: Public Domain

text:
    Fra F. Clark, Appellee, v. Chicago Railways Company, Appellant.
    Gen. No. 20,361.
    (Not to he reported in full.)
    Appeal from the Superior Court of Cook County; the Hon. Clabence N. Goodwin, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.
    Affirmed.
    Opinion filed April 22, 1915.
    Rehearing denied May 8, 1915.
    Statement of the Case.
    Action by Fra F. Clark against the Chicago Railways Company to recover damages for injuries sustained by reason of the alleged negligence of the defendant. Trial before the court and jury and verdict for the plaintiff for thirty-five hundred dollars, upon which judgment was entered. Defendant appeals,

      Abstract of the Decision.
    1. Damages, § 137

      —when not excessive for injury to bade. Verdict for thirty-five hundred dollars for injuries consisting of a dislocation of one of the dorsal vertebrae causing a curvature of the spine of a woman sixty-one years old, held sustained by the evidence.
    2. Damages, § 188*—when evidence sufficient. In arriving at a verdict as to the amount of damages, the jury may properly take into consideration the testimony of a reputable physician as to the extent of the injury and the relation of the injury to the plaintiff’s physical condition due to other causes, the appearance and demeanor of the witnesses on the stand in giving testimony tending to prove or disprove the injury and the extent of the same, and where it appears that their finding was warranted by the evidence the verdict will not be disturbed.
    3. Witnesses, § 283*—when cross-examination not impeaching in character. Question on cross-examination of plaintiff as to whether she attributed an unconscious spell three years after the accident which was the basis of suit to such accident, held not of such a character that an answer either way would affect her credibility.
    4. Evidence, § 397*-—when question calls for expert opinion. Question on cross-examination of plaintiff as to whether she attributed an unconscious spell three years after the accident which was the basis of suit to such accident, held properly excluded as calling for an expert opinion.
    5. Evidence, § 439*—when expert testimony not speculative. The answer of a physician that an injury may remain the same or grow worse but that it is more apt to grow worse than better is not speculative as to the permanency of the injuries, he having previously testified that the injury was permanent.
    Philip Rosenthal, William H. Symmes and Frank L. Kriete, for appellant; W. W. Gurley and John R. Guilliams, of counsel.
    R. W. Clifford and Mark E. Guerin, for appellee.

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

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

   Mr. Justice Pam

delivered the opinion of the court.

6. New trial, § 67 —when application for continuance necessary to granting of new trial for newly-discovered evidence. A new trial on the ground of newly-discovered evidence will he denied where during the progress of the trial defendant learned of the existence of material evidence in another State, but made no application for a continuance, claiming that he did not at any time during the progress of the trial have full information regarding the character of the evidence upon which to base an affidavit for a continuance, the affidavits on the motion for a new trial, however, showing that he had sufficient information, which together with an investigation in progress would, if properly presented, have warranted a continuance.

7. New trial, § 69*—when newly-discovered evidence too remote. In an action for personal injuries, newly-discovered evidence that forty years previously the plaintiff had received an injury which required her to use crutches for a period of seven years, held too remote to warrant a new trial.


text:
    Wisconsin Welding & Cutting Company, Defendant in Error, v. Berlin Machine Works, Plaintiff in Error.
    Gen. No. 21,118.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Edmund J. Jabecki, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Stenographic report stricken and judgment affirmed.
    Opinion filed April 22, 1915.
    Statement of the Case.
    Action by the Wisconsin Welding & Cutting Company, a corporation, against the Berlin Machine Works, a corporation, on a contract, for the sum of sixty dollars, for merchandise sold and delivered and labor performed by the plaintiff for the defendant. Trial before the court without a jury. Judgment for plaintiff for twenty-eight dollars. Defendant brings error.

      Abstract of the Decision.
    Municipal Court of Chicago, § 27

      —when order extending time for filing hill of exceptions void. Where the day upon which judgment in a fourth-class case was entered, an order was filed allowing the defendant sixty days within which to file a bill of exceptions, an order entered pursuant to a stipulation on the last day for the filing of the bill of exceptions granting a further extension is void, as not having been entered within thirty days after the rendition of judgment.
    Leslie H. Whipp, for plaintiff in error.
    Harry A. Biossat, for defendant in error.

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

   Mr. Justice Pam

delivered the opinion of the court.


author: Mr. Presiding Justice Brown

text:
    Herbert L. Lemon, Appellee, v. Arthur H. Lemon et al., Appellants.
    Gen. No. 19,892.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Adelob J. Petit, Judge, presiding. Heard in this court at the October term, 1913.
    Modified and affirmed.
    Opinion filed April 26, 1915.
    Rehearing denied May 10, 1915.
    Statement of the Case.
    The appellee in this case, Herbert L. Lemon, brought a bill in equity in the Circuit Court of Cook county against the appellants, Arthur H. Lemon and Ida Matilda Lemon, his wife, and Warren A. Baker and Addie L. Baker, his wife, and made also parties defendant thereto the Monarch Metal Company, a corporation, and Jennie Lemon, the wife of the complainant. By this bill, upon allegations therein made, the complainant prayed that the court might decree that he, the complainant, was the owner and entitled to thirteen shares of the Monarch Metal Company; that Arthur H. Lemon was the owner of and entitled to five shares in said company; and that Warren A. Baker was the owner of and entitled to seven shares in the capital stock of said company; and that it might order Warren A. Baker as secretary of said company to execute and seal with the corporate seal certificates of stock also executed by the complainant as president of said company in the proportion before mentioned, and deliver the said certificates to the respective owners thereof. He also prayed that Arthur H. Lemon and Warren A. Baker and their wives, and he, the complainant, and his wife, should be required to execute and deliver unto said company a good and sufficient conveyance or deed of Lot 14 in Block 7 in Ashland Second Addition to Chicago.
    The corporation filed an answer. The other defendants filed a demurrer, withdrew it and filed an answer in the nature of a demurrer.
    The cause was referred to a master in chancery. He found that from evidence of an agreement upon certain terms and from other evidence that it was the intention of the parties that the appellee should have the controlling stock ownership, and that the appellee and appellants interested in the profits of the company should own the shares in certain proportions and share the profits in certain other proportions. The chancellor in the Circuit Court approved his finding.
    Baker & Holder, for appellants.
    Frederick W. Winkler, for appellee.

      Abstract of the Decision.
    1. Corporations, § 136

      —when equity has jurisdiction to compel issuance of stock. It is no objection to an action in equity to compel a private corporation to allow on its books a registry of its stock that the complainant has an adequate remedy at law in an action of mandamus to compel the officers of such a corporation to issue certificates of stock.
    2. Corporations, § 136*—when equity may determine contest between stockholders. Where a contest is in reality between the stockholders of a corporation as stockholders and the stockholders and corporation are before the court, and specific performance of a contract to distribute stock of a peculiar value in certain proportions is sought, and the title to real estate is involved, it is proper to invoke the aid of equity.
    3. Equity, § 146*—when bill not multifarious. Where all the stock in a corporation was held by three persons, a bill in equity by one of them against the others to determine the proportions in which stock should be distributed among them, and to compel all three stockholders to convey to the corporation certain realty purchased with corporate funds and held by all three jointly, held not so multifarious as to require reversal.
    4. Equity, § 146*—what is discretion of chancellor as to multifarious bill. Where a bill in equity is multifarious, the chancellor may give the advantage of a demurrer on this ground to one who has abandoned it and filed an answer in the nature of a demurrer, taking much testimony thereunder on the merits, but it is largely within his discretion.
    5. Corporations, § 136*—when Appellate Court may make stock certificates refer to decree. In a suit in equity between stockholders of a corporation for the purpose of having determined their relative interests therein under the terms of a prior agreement under which one of the stockholders was to have a controlling interest therein, but all were to share equally in the profits, a decree providing for the issuance of the stock in certain proportions and the division of profits may be modified on appeal so as to protect the minority stockholders’ interest in the profits against innocent purchasers from the majority stockholders by requiring the certificates issued under the decree to refer to such decree and expressly limit the rights of transferees by its provisions.

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

   Mr. Presiding Justice Brown

delivered the opinion of the court.


text:
    Douglas State Bank, Appellee, v. S. A. Lewinsohn, Appellant.
    Gen. No. 19,953.
    Contracts, § 134

      —when illegal. In an action on a note, an alleged set-off of a certain sum of money promised the payee for making a temporary deposit in the bank of the plaintiff for the purpose “of showing a substantial increase in its business,” in order to effect a sale or consolidation with another bank, will not be considered, since such a contract was immoral and made for the purpose of deceiving and defrauding a third person.
    Appeal from the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding. Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed April 26, 1915.
    Leslie H. Whipp, for appellant.
    Clyde C. Fisher, for appellee.

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

   Mr. Presiding Justice Brown

delivered the opinion of the court.

This is an appeal from a judgment of the Municipal Court of Chicago for $1,030.84, entered July 7, 1913, against S. A. Lewinsohn, the appellant herein, in an action of the first class brought by the Douglas State Bank.

The suit was brought on a promissory note for $1,000 and interest, signed by Lewinsohn and running to the Douglas State Bank.

The defendant filed several affidavits of merits and set-off, one after another, each under the practice of the Municipal Court having been stricken on the ground that they stated no defense or ground of set-off. On the striking of the last one the defendant elected “to stand by his affidavit of merits and statement of set-off” and thereupon he was defaulted, a jury was called to assess the damages and on snch assessment the judgment herein appealed from was rendered.

The question therefore is whether the statement and affidavit of the defendant filed June 11, 1913 (which was the last one filed), stated a defense. We are clearly of the opinion it did not. The “defense” was an alleged “set-off” of $2,000. This $2,000 was alleged to be due from the Bank to Lewinsohn because promised to him for temporarily depositing $15,000 or more with the plaintiff Bank, so as to “show a substantial increase in its business” in order on such showing to effect a sale to or consolidation with another bank.

. The contract, if there was such a contract, between the plaintiff and defendant was an immoral one for the deception and defrauding of a third person, and no right to the compensation accrued tó the defendant under it which courts will enforce.

The judgment of the Municipal Court of Chicago is affirmed.

Affirmed.


text:
    Matthew Sullivan, Defendant in Error, v. Harry Wolf, trading as Climax Electric Carpet Cleaning Works, Plaintiff in Error.
    Gen. No. 20,044.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Hugs R. Stewabt, Judge, presiding. Heard in this court at the March term, 1914.
    Reversed and remanded.
    Opinion filed April 26, 1915.
    Rehearing denied May 10, 1915.
    Statement of the Case.
    Action in the Municipal Court by Matthew Sullivan against Harry Wolf, trading as Climax Electric Carpet Cleaning Works, in tort to recover damages for injury to plaintiff’s rug's. The statement of claim alleged that plaintiff’s claim was for seventy dollars damages, growing out of the defendant’s ruining three valuable rugs in an attempt to clean them. The affidavit merely alleged that affiant was the plaintiff in a suit “for damages as set forth in the aforesaid statement of claim, and that he claims damages amounting to seventy dollars and therefore he brings this suit.”
    Abstract of the Decision.
    Municipal Court of Chicago, § 19

      —when error to enter judgment on statement and affidavit of claim. The entry of judgment merely on the statement and affidavit of claim of the plaintiff and without hearing evidence of damages in a tort action is erroneous, where the affidavit merely alleged that plaintiff “claims” damages, and nowhere averred that plaintiff had actually been damaged in the amount claimed.
    Rudolph Frankenstein, for plaintiff in error.
    John A. Stagg, for defendant in error.

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

   Mr. Presiding Justice Brown

delivered the opinion of the court.


text:
    A. Bosley et al., Defendants in Error, v. Ferdinand W. Peck, Jr., et al., Plaintiffs in Error.
    Gen. No. 20,250.
    1. Specific performance, § 99

      —when damages not decreed. Damages will not be decreed in an action in equity for specific performance of a contract where it appears from the evidence the complainant knew at the time he brought the action that the court could not grant specific performance.

      2. Specific performance, § 4

      —when bill retained though performance impossible. Where it develops in an action for specific performance brought in good faith, that the defendant never had the property in his power which he sought to convey to the plaintiff, or without the plaintiff’s knowledge before the litigation began, or through his tortious action after it had begun had put it out of his power specifically to perform, the bill need not be dismissed because the plaintiff could recover damages in an action at law.
    3. Specific performance, § 4*—when bill shows knowledge by complainant of impossibility of performance. Allegations of bill for specific performance of a contract to convey, held to show that at the time of the filing of the bill complainant had knowledge of the impossibility of performance by defendant, thus preventing the retention of the bill for the purpose merely of assessing damages.
    4. Equity, § 56*—-when objection to adequacy of legal remedy not waived. Withdrawing a general demurrer and filing an answer, claiming the benefit of a demurrer, does not deprive a party in an action in equity of the right to raise the question that the defendant has an adequate remedy at law.
    Error to the Circuit Court of Cook county; the Hon. Adelor J. Petit, Judge, presiding. Heard in this court at the May term, 1914.
    Reversed and remanded for proceedings not inconsistent with this opinion.
    Opinion filed April 26, 1915.
    W. N. Horner, for plaintiffs in error.
    Ringer, Wilhartz, Louer & Concannon and David Jetzinger, for defendants in error.

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

   Mr. Presiding Justice Brown

delivered the opinion of the court.

This writ of error was sued out to reverse a money decree against the' plaintiff in error for $10,000 rendered by the Circuit Court of Cook county in a suit in equity, purporting to be for the specific performance of a contract for the sale by plaintiff in error (defendant below) to the defendants in error (complainants below) of the buildings, machinery, fixtures, material, supplies and property constituting the rolling mill plant formerly belonging to the American Rolling Mill Corporation located at Mancie, Indiana. The amount was arrived at by the chancellor, it must be presumed, on the evidence returned by the master in chancery to whom the cause was referred May 18, 1910, to take evidence and report the same “with his opinion on the law and the evidence,” and re-referred March 22, 1912, “for the sole and only purpose of hearing further evidence as to the-measure of damages.” But the chancellor did not follow the findings of the master on either reference.

On the first reference the master recommended as the proper conclusion from his findings (which involved a computation of “damages” to the complainants from the breach of the contract by the defendant) “that a decree be entered finding in substance that specific performance of the contract in the bill of complaint * * * cannot be decreed and that complainants are entitled in lieu thereof to damages and that the amount of the damages be fixed at the sum of $15,000.”

On the reference he reported that he estimated $16,000 “to be the amount of damages that complainants suffered by reason of the refusal of the defendant Ferdinand W. Peck, Jr., to abide by and perform the contract * * * entered into between the said Ferdinand W. Peck, Jr., and the complainants.”

The exceptions of defendant to the master’s report, although attacking generally all the findings of the master as to the damages and his right to find any damage at all, contain no alternative computations, nor do they suggest any specific deductions. On what ground, therefore, the chancellor, without the assistance of a jury or of any further evidence than that produced before the master, came to his conclusion, differing from one computation of the master by $5,000 and from the other by $6,000, it is impossible from anything in the record to determine. There would seem to be no basis in the evidence for the exact amount fixed on. The computation was apparently of that kind by which a jury adjudging damages in a personal injury suit or case of fraud fixes on some round sum as a proper amount to award the plaintiff.

But we are relieved from the necessity of considering the' amount of the damages assessed and decreed in this cause by our holding, on the question which meets us on the threshold of the discussion of it.

We are not of the opinion that the chancellor had jurisdiction in equity to render a decree for damages. The bill was brought ostensibly for the specific performance of a contract of sale. The contract may be conceded to have been of a nature and concerning objects which' rendered it a proper basis for such a bill if brought in good faith to secure specific performance.

It may be also conceded as well-settled law that if the bill were brought in good faith for a specific performance, and it developed in the litigation that the defendant, misleading the complainants, had never had it in his power, or without their knowledge before the litigation began, or through his tortious action after it had begun, had put it out of his power specifically to perform, the bill need not be dismissed because the plaintiff could recover damages in an action at law. But none the less the law is as stated in Peeler v. Levy, 26 N. J. Eq. 330:

“A court of equity will not take jurisdiction of a naked claim for damages, even when it is made under the guise of a suit for specific performance.”

Notwithstanding the argument of the complainants, we think that not the mere phrasing but the very substance of his bill, when taken in connection with the proceedings taken therein and undisputed evidence, shows that it could not have been brought in good faith for a specific performance.

The bill does indeed pray that “the defendants” (meaning Ferdinand W. Peck, Jr. and Charles P. Taft, who were originally made defendants to the bill) “may be made specifically to perform said agreements entered into with” the complainants and make delivery and a good and sufficient conveyance to ‘ ‘ the complainants of said property;” and there is a further prayer that “the defendants and their agents and attorneys be restrained by order and injunction * * * from selling or attempting to sell, assign or otherwise disposing of said property to any other person, persons or corporation until the further order of the Court,” and for further relief.

But the allegations of the bill are that Peck alone “being or pretending to be” on November 27, 1909, “seized and possessed” of certain property, entered into the agreement for sale described, and that although the complainants were ready to comply with the contract, Peck refused to do so, and that “since the execution of the agreement as aforesaid” the complainants “have been informed and charge the fact to be, that said Ferdinand W. Peck was in the making of said agreement acting for himself cmd as agent for his undisclosed principals, one C. P. Taft and others to” the complainants “unknown.”

A summons on the bill was issued for both Peck and Taft on the day the bill was filed, and returned the same day. Peck had been served; Taft had not been found. He did not appear, and there is not shown any further attempt by the complainants to bring him in. The cause was carried on by the complainants without regard to him or to the “others” to the complainants “unknown,” for whom they expressly charge Peck was acting in making the agreement. Answer having been filed by Peck, in which he stated that he did not own the property when he made the contract and could not deliver it or sell it because he could hot get the consent of those who did (in which answer he claimed the benefit of a demurrer), a general replication was filed by the complainants. On their motion, over the objection of Peck, the cause was referred to a master, before whom a great mass of testimony was taken at the instance of complainants, almost altogether on the subject of damages for the breach of the contract. Months after the last report was in, and four days before the decree was entered, the fact that Taft was a party to the suit was first again recognized by the complainants by the motion (which of course was granted) to dismiss the bill as to him.

The bill described the property involved as a rolling mill plant on certain lots specifically described in Muncie, Indiana, and the agreement for sale, made, as an exhibit, a part of the bill, mentions an undefined claim of persons to whom certain “supplies and material,” presumably from the bulk of the property purchased, had been sold “by order of court in bankruptcy proceedings,” and also mentioned a mortgage or trust deed from the American Bolling Mill Corporation to the Union Trust Company of Indianapolis.

The evidence shows that as a matter of fact the property stood when the bill was brought on December 24,1909, in Otto Gresham, trustee; that it had been conveyed to him under an order of record of the District Court of the United States at Chicago, in case No. 12,636 of the same date; that the conveyance to Gresham as trustee of the property (together with the land on which it was located), had been recorded in the recorder’s office of Delaware County, Indiana, where Muncie is situated, on May 7, 1908. It appears also by the testimony of Ferdinand W. Peck, Jr., that Otto Gresham held it as trustee for Anna Sinton Taft and Lewis C. Straight, and that the Sunday Creek Company of Columbus, Ohio, also had an equitable interest in it. Peck further testified that he told the complainant Bosley more than once that he had no interest, legal or equitable, in it when the contract was made by him with them; but this was denied by Bosley and his denial was confirmed as to some at least of the alleged conversations by another witness.

But despite the apparent admission of the defendant’s counsel on page 43 of his argument herein, that Bosley testified that he had no notice of any defect in the title of the defendant Peck at the time that he filed his hill, we can find no such testimony by Bosley in the record to contradict the statements of the bill itself.

Bosley being placed in rebuttal on the stand before the master on July 6, 1911 (pages 462 and 463 of Record), on direct examination made an unintelligible answer to an unintelligible question as to what he knew about the ownership of the property on the day the bill was brought. On cross-examination, counsel for defendant seemed, however, to bring out from him what prima facie was a clear expression of knowledge at the time he was testifying that the defendants Ferdinand W. Peck, Jr., and Charles P. Taft owned the property on December 24,1909, but on the examination being pursued, he said that he derived that knowledge wholly from complainants ’ Exhibit A. of March 9, 1911.” Complainants’ Exhibit A. of March 9, 1911, was a deed dated May 7, 1910, of the property and real estate on which it was located, from Otto Gresham, trustee, to the American Scrap Iron & Machinery Company, to which is attached a contract of warranty, of Otto Gresham’s title and a contract of indemnity for the benefit of the American Scrap Iron & Machinery Company, signed by Anna Sinton Taft and Clarence I. Peck. Neither the name of Ferdinand W. Peck, Jr., nor the name of Charles P. Taft appears in either of them.

The testimony of Bosley, if it could be understood to mean that he thought on December 24, 1909, that the defendants Ferdinand W. Peck, Jr., and Charles P. Taft then owned the property, would be incredible to us, considering the actual facts in "connection with the allegations of his bill; bnt it really is not capable of any such construction or interpretation. The bill shows, we think, that the complainants knew when they filed it that specific performance was not within the powers of Taft and Peck separately or even together, to make. This opinion is strengthened by what the evidence shows of the facts and by the apparent lack of interest of the complainants in obtaining jurisdiction of Charles P. Taft and their confining the prosecution of the suit to the pursuit of the person who had signed in his own name a contract of sale which had been repudiated. The belief is forced on us that the proceeding was “a naked claim for damages” for a broken contract “under the guise of a suit for specific performance.” If this was so, a court of law was the proper forum for its prosecution, and a jury, if desired by either party, the proper tribunal to assess damages if they were found to exist.

The statement that Peck and Taft, in the behalf of the complainants, were about to sell the property to some one else and the request for a preliminary injunction do not change the situation. It is to be noted that no attempt was made to secure any such injunction.

Nor does the fact that a general demurrer was withdrawn and an answer filed by Peck, claiming the benefit of a demurrer, prevent, under the rules of equity practice and pleading, his having the advantage of this jurisdictional question, which he not only now raises but raised below at every stage of the proceedings before the master and before the court.

We do not agree with the finding of the chancellor in the decree:

‘ ‘ That this suit was brought by the complainants in good faith and in the honest hope and expectation that they would obtain a decree for a specific performance of said contract,” and the withdrawal of that conclusion from the decree would in our opinion leave it without a basis. Peeler v. Levy, 26 N. J. Eq. 330; Eastman v. Reid, 101 Ala. 320; Stevenson v. Buxton, 37 Barb. (N. Y.) 13; Lewis v. Yale, 4 Fla. 418, p. 437; Iszard v. May’s Landing Water-Power Co., 31 N. J. Eq. 511; Milkman v. Ordway, 106 Mass. 232, p. 256; Durell v. Pritchard, 1 Ch. App. Cas.; The Law Reports vol. 1, 1865 and 1866, XXIX and XXX Victoria.

In accordance with these views, we reverse the decree and remand the cause to the Circuit Court for proceedings not inconsistent with this opinion.

As to whether the complainants can recover damages at law, or may have their case transferred to the law side of the court, under section 40 of the Practice Act, we express no opinion. This bill and the decree upon it cannot be sustained.

Reversed and remanded for proceedings not inconsistent with this opinion.


author: Mb. Presiding Justice Brown

text:
    Fred D. Davis, Appellee, v. The Stevens-Davis Company, Appellant.
    Gen. No. 20,262.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. John J. Suluvan, Judge, presiding. Heard in this court at the March term, 1914.
    Affirmed.
    Opinion filed April 26, 1915.
    Statement of the Case.
    Action by Fred D. Davis against The Stevens-Davis Company in the Municipal Court of Chicago. Trial before the court without a jury. The plaintiff was a stockholder in the defendant corporation and also had a contract with it to solicit advertising contracts for which he was to receive a commission. He worked for the Company under this contract from May 1,1912, to September 11,1912. The plaintiff filed an amended petition for commissions earned from and subsequent to May 1, 1912, due under an agreement to pay him twenty per cent, commissions on all work secured by him, setting out a list of twelve contracts. He also declared that the Company owed him an additional sum for dividends duly declared on his holdings of capital stock. Defendant filed the affidavit of its president to the merits and a set-off. Judgment for the plaintiff for $921.17. Defendant brings error, the plaintiff alleges cross-error on the disallowance of his claim for dividends.
    Abstract of the Decision.
    1. Corporations, § 163

      -—when stockholder not entitled to recover undivided profits. A stockholder cannot maintain an action at law against a corporation to recover undivided profits. A dividend must first he declared.
    2. Corporations, § 261*—when corporation not estopped as against director. Credits placed upon the hooks of a corporation at the direction of a director cannot, in an action by the director based thereon, operate as an estoppel against the corporation where the evidence fails to show affirmance or consent thereto by the other directors.
    3. Action, § 68*—when unmatured claims may he inserted hy amendment. Under proper pleadings and amendments items of the same nature as those originally sued for which mature between the commencement of the suit and the trial may he brought in.
    Mather, & Hutson, for appellant; William A. Sheehan, of counsel.
    Jonas & Hess, for appellees.

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

   Mb. Presiding Justice Brown

delivered the opinion of the court.


text:
    John H. Constas, Appellee, v. Peter Gregoris, Appellant.
    Gen. No. 20,297.
    Abstract of the Decision.
    1. Partnership, § 371

      —when equity has jurisdiction over dissolution and accounting. A dispute between partners concerning the dissolution of partnership and an accounting forms the proper basis for the exercise of equity jurisdiction.
    2. Equity, § 23*—when jurisdiction retained. Where a court of equity acquires jurisdiction for one purpose it will retain it for all purposes necessary to complete justice, although such retention requires that some matters be passed upon which would not otherwise be cognizable in that court.
    3. Equity, § 23*—when legal questions determined. Where a court of equity acquires jurisdiction for the purpose of correcting a mistake in the terms of a promissory note, it may retain jurisdiction for the purpose of ascertaining the amount due and enforcing its payment, although such ascertainment and enforcement of themselves involve purely legal questions.

      (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding. Heard in this court at the March term, 1914.
    Affirmed.
    Opinion filed April 26, 1915.
    Statement of the Case.
    Action by John Hi. Constas against Peter Gregoris involving the dissolution of a partnership and an accounting. From a decree finding that a note signed by the complainant and payable to the defendant had been fully paid prior to the recovery of a judgment thereon, and enjoining the collection of such judgment, defendant appeals.
    James D. Power, for appellant.
    Grover C. Niemeyer, for appellee.

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

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

   Mr. Presiding Justice Brown

delivered the opinion of the court.

4. Cancellation of instruments, § 37 -—when note ordered surrendered for cancellation. Where a court of equity acquires jurisdiction over a proceeding for the dissolution of partnership and an accounting, and finds that a judgment note signed by one of the parties and payable to the other, was agreed to he paid out of the complainant’s share of the profits of the business and had been in fact paid or satisfied in an accounting before judgment had been entered upon it at the suit of the defendant, it is within the jurisdiction of the court to enjoin the defendant perpetually from collecting or attempting to collect the same or the judgment entered upon it and to order, the defendant to deliver it up to the court for cancellation.

5. Equity, § 25*—when jurisdiction not lost 6y agreement of parties pendente lite. Where a court of equity acquires jurisdiction over a proceeding involving the dissolution of partnership and an accounting, the jurisdiction of the court to enjoin the collection of the judgment entered upon a note which the court found had been fully paid was not affected by an agreement between the parties, entered into after the coming in of the master’s report, to dissolve the partnership and settle all other matters in dispute between them except the note in question and the judgment thereon.


text:
    George C. Schrieder, Executor, v. Theresa Doeslaere, Appellant, Gertrude Schrieder, Appellee.
    Gen. No. 20,339.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Charles M. Foell, Judge, presiding. Heard in this court at the March term, 1914.
    Reversed and remanded.
    Opinion filed April 26, 1915.
    Statement of the Case.
    Bill in interpleader by George C. Schrieder, executor of the last will and testament of Emilie Schrieder, deceased, against Theresa Doeslaere and Gertrude Schrieder to determine which, by assignment, was entitled to the distributive share of William A. Schrieder in the estate. The court adjudged the sum to Gertrude Schrieder and further imposed the cost^ for filing the bill and fifty dollars for the solicitor’s fees of the complainant upon the unsuccessful claimant. From the decree, Theresa Doeslaere appeals.
    Abstract of the Decision.
    Intebpleadeb, § 19

      —when attorney’s fee improperly allowed. A decree in interpleader allowing complainant a solicitor’s fee out of the fund, and on final hearing of the cause charging it against the unsuccessful claimant, is erroneous.
    James F. Hutchison, for appellant.
    Ninian H. Welch, for appellee.

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

   Mr. Presiding Justice Brown

delivered the opinion of the court.


text:
    Norman Lyle, Appellee, v. Joseph Rosenberg et al. Detroit Stove Works, Appellant.
    Gen. No. 20,392.
    1. Mechanics’ liens, § 190*—what not ground for demurrer. The failure of a petition to foreclose a mechanic’s lien to allege the filing of a notice of claim of lien within four months after the delivery of the articles for which a lien is sought is not ground for demurrer.
    2. Mechanics’ liens, § 94*—when lien not barred by failure to begin suit or file notice in time. Except as to purchasers the failure of a lien claimant to file notice of claim for lien or begin suit within four months after furnishing the materials for which a lien is sought does not deprive him of a lien, but merely postpones his claim to those of “other creditors or incumbrancers.”
    3. Mechanics’ liens, § 23

      —when gas stoves within the act. Gas stoves installed in an apartment house are within the Mechanic’s Lien Act of 1903, sec. 1, authorizing a lien in favor of one furnishing “fixtures, apparatus or machinery” in the building, altering, repairing or ornamenting of a building.
    Appeal from the Circuit Court of Cook county; the Hon. John P. McGoobtt, Judge, presiding. Heard in this court at the March term, 1914.
    Reversed and remanded with directions.
    Opinion filed April 26, 1915.
    Edwin M. Wood, for appellant.
    Lee J. Frank, Mary Lee Colbert and Charles H. Pease, for appellee.

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

   Mr. Presiding Justice Brown

delivered the opinion of the court.

Norman Lyle brought in the Circuit Court of Cook county a bill for foreclosure of a certain mortgage deed of trust made by Joseph Eosenberg conveying certain premises improved by an apartment house and securing certain notes signed by Eosenberg, of which notes Norman Lyle was the legal holder. He made “The Detroit Stove Works, a corporation,” a party defendant with the allegation that it had or claimed to have some interest in the premises, and also with the allegation that “on, to-wit, the 7th day of August, 1914, the Detroit Stove Works, a corporation, filed in said Clerk’s office” (the office of the Clerk of the Circuit Court of Cook county) “its notice of a claim for a mechanic’s lien against said premises.”

It does not appear by the “Praecipe Transcript of the Becord” before us that the Detroit Stove Works filed any answer to this bill; but on December 3, 1913, it filed by leave of court an “Intervening Petition,” in which intervening petition it represented that it was a Michigan corporation doing business in Illinois and engaged in the manufacture of stoves, ranges and goods of a similar character; that on February 17, 1913, Joseph Rosenberg applied to it to furnish him with twenty gas ranges and five gas laundry stoves; that it contracted to do so and in pursuance of the terms of the contract proceeded to furnish said stoves and ranges and “install them in the building known and located as Lot One, ’ ’ etc., (here follows a description of the same premises described in the bill of complaint in the cause), “which now is, and at the time and date of installing and furnishing said ranges and stoves was, owned by Joseph Rosenberg.”

The petition states that the petitioner furnished all the necessary labor for the installation of the stoves and ranges and in all respects complied with the terms of the contract, and that immediately after the completion of the work and delivery of said stoves and ranges to said building, Joseph Rosenberg accepted the same and took possession of the aforesaid stoves and ranges. It also states that the petitioner has not been paid for any part of said stoves and ranges, and that there is now due and owing for them, as per terms of said contract, the fair and reasonable price of $436 and interest, and that Rosenberg has refused to pay this, although often requested, “by means whereof your orator is entitled under the statute in such cases provided to a lien upon the said premises for the amount due” the petitioner.

The prayer of the petition is that the petitioner may “be decreed to be entitled to a lien on said premises for the amount due your orator under the said contract” and “that the defendant Joseph Rosenberg be decreed to pay your orator the amount due,” and for such other and further relief as to the court shall seem meet.

A special demurrer by Norman Lyle, complainant in the original bill of complaint, was filed to this petition and another (identical in the reasons assigned) by the trustee and successor in trust in the trust deed described in the bill of complaint. The demurrer being sustained, the Detroit Stove Works by leave of court amended its petition.'

It is difficult and perhaps not important to ascertain from the amendments in the transcript before us just how the petition read after amendment, for the amendments are referred to certain “paragraphs” in such and such ‘‘ folios. ” As we have not the original papers before us, this is a blind direction. We suggest that a pleading worth while amending in a chancery suit is generally worth re-engrossing.

As far as we can see, the petition was only amended by making it refer to 1 copy of said order, ” “ marked Exhibit 1, ’ ’ instead of to a “ contract, ’5 and by adding an assertion that the respective prices written after each item in Exhibit 1 was a fair and market price for the item, and a prayer asking that Norman Lyle, Rose Rosenberg and the trustees and successors in trust named in the trust deeds described in the bill of complaint, as well as Joseph Rosenberg, should be required to answer the petition.

Identical demurrers (except for the names of the demurrants) were filed to the amended petition by Norman Lyle and by the trustee and successor in trust (jointly) in the trust deed sought to be foreclosed by him. The reasons for said demurrers were stated in them to be:

1. That it did not appear by said petition that the last materials were furnished or work done within four months next preceding the filing of the original petition.

2, That it did not appear that the articles alleged to be furnished were actually used in an erection and completion, altering, repairing or ornamenting of any building on said premises, or constituted a valuable or permanent improvement upon said premises.

3. That it did not appear that the articles were of such a character or nature or affixed in such a manner as to support a claim for mechanic’s lien.

These demurrers were sustained by the court, whereupon the petitioner, the Detroit Stove Works, elected to stand by its petition as amended and it was dismissed. The Detroit Stove Works then appealed to this court.

It is argued in this court by the appellee that the demurrer was properly sustained to the amended petition because, although the petition shows on its face that it was filed more than four months after the delivery of the articles mentioned, it fails to state that there had been within that time a claim for lien, properly verified, filed in the office of the clerk of the Circuit Court of the county.

We do not consider such an allegation necessary. If the failure to begin such a suit or file such a notice in time on the part of the petitioner is not a matter of defense for those persons to the prejudice of whom, under the provisions of the Mechanic’s Lien Act, a lien cannot be enforced in case of such failure, it is at least a matter of evidence and not of pleading, on the part of the petitioner.

The Mechanic’s Lien Act does not deny to a contractor, who comes otherwise under the provisions of the act, a lien because he does not begin his suit or file his notice in time; it merely postpones his claim to those of “other creditors or incumbrancers” in such a case, and may defeat it altogether against “purchasers.” This matter of priority must be provided for in a decree on the whole case in which the intervening petition is filed; but we do not think it necessary to consider it on this question of pleading.

The real question is, then, that which, although it does not so appear in the record, the counsel for appellant in his brief says the court below decided the case upon: “Were the articles alleged to have been furnished of such a character or nature or affixed in such a manner as to support a claim for mechanic’s lien?” This is conceded by both parties to the litigation to be a question of first impression in Illinois, except so far as Thielmem v. Carr, 75 Ill. 385, decided in 1874, may be considered as of authority. In that case as a dictum (applicable to that time, as it seems to us), Mr. Chief Justice Walker said: “It is believed that ordinary stoves and pipes have been always conceded to be personalty or mere chattels.” The court held that “furnaces” were intended to be permanent and came within the operation of the lien law. “Gras ranges and gas stoves” of the present style in apartment houses are quite as much within the reasoning of the decision as within the language of the opinion in this case. We do not regard it as conclusive. The language of the Mechanic’s Lien Act of 1903, sec. 1, we think, properly covers the articles delivered and “installed” by the petitioner,-according to the terms of his petition. It says:

‘1 That any person who shall by any contract * * * with the owner of a lot * * * of land * * * furnish material, fixtures, apparatus or machinery for the purpose of or in the building, altering, repairing or ornamenting any house or other building * * * shall have a lien upon the whole of such lot * * * for the amount due to him for such material, fixtures, apparatus, machinery * * * .”

We think that the articles described in the petition in this case properly fall within the terms “fixtures, apparatus or machinery” as the same can and should be applied to modern apartments. We do not consider the decisions in other states on a matter so peculiarly one of statutory construction very important; but it may be noted that our conclusions seem to be in line with those of the courts deciding the following cases: Turner v. Wentworth, 119 Mass. 459; Union Stove Works v. Klingman, 20 App. Div. (N. Y.) 449; Porch v. Agnew Co., 70 N. J. Eq. 328; American Radiator Co. v. Pendleton, 62 Wash. 56.

The judgment of the Circuit Court is reversed and the cause remanded to that court with directions to overrule the demurrer.

Reversed and remanded with directions.


text:
    The Billboard Publishing Company, Appellant, v. F. C. McCarahan, Appellee.
    Gen. No. 20,421.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding. Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed April 26, 1915.
    Statement of the Case.
    Action by The Billboard Publishing Company against F. C. McCarahan. in equity. For former opinions see 151 Ill. App. 227; 180 Ill. App. 525, 542, 544. The appeal in 180 Ill. App. 525, was heard in this court at the March Term, 1913. On June 20, 1913, the mandate of the Appellate Court reversing the order of March 10, 1910, which dismissed the bill and remanded the cause to the Circuit Court “for such, other and further proceedings as to law and justice shall appertain,” was filed in the Circuit Court. July 25, 1913, the Circuit Court gave the complainant the right to file a supplemental bill, and ordered an injunction pendente lite against McCarahan’s prosecuting the suit at law, in which judgment had been entered December 21,1910, and prosecuting certain suits on bonds relating to the judgment obtained in the case, and taking any further proceedings to collect said judgment. The supplemental bill prayed that all suits and proceedings by McGarahan to collect the judgment obtained by him in an action at law December 21, 1910, be restrained and that The Billboard Publishing Company be allowed damages against McGarahan for the violation of the injunction heretofore entered in this case, and prayed for an accounting pending before one of the masters in chancery. McGarahan filed an answer, and afterward withdrew it and filed a plea, setting forth that the action at law involved all the matters set forth in the equity action and the judgment therein was a complete determination of the same. Demurrer to the plea was overruled. Leave was given to file a replication. From a decree entered in favor of the defendant, plaintiff appeals.
    Abstract of the Decision.
    1. Injunction, § 212

      —■what is effect of erroneous dismissal. Where an action has been brought at law, and before trial thereof an action is brought by the defendant therein in a court of equity and therein the prosecution of the suit at law is enjoined, and the suit in equity is erroneously dismissed, the injunction is thereby dissolved and the court of law and its officers can thereafter proceed to judgment unless restrained by a subsequent action in equity.
    2. Appeal and brkor, § 1797*—what is effect of reversal on intermediate proceedings in a related action. A judgment at law involving the decision of the same case, facts and issues of an action in equity to enjoin the prosecution of the action at law, erroneously dismissed by the trial court, the judgment being rendered after such dismissal, is not affected by a decision of the Appellate Court thereafter that such dismissal is erroneous though not void, even though the plaintiff in said equity suit relied on the theory that the order of dismissal was void and failed to make any defense to the action at law.

      Simmons & Irving, for appellant.
    J. S. McClure, for appellee.

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

   Mr. Presiding Justice Brown

delivered the opinion of the court.


text:
    Luce Furniture Company, Defendant in Error, v. The Almini Company, Plaintiff in Error.
    Gen. No. 20,507.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Frank H. Graham, Judge, presiding. Heard in this court at the October term; 1914.
    Affirmed.
    Opinion filed April 26, 1915.
    Rehearing denied May 10, 1915.
    Statement of the Case.
    Action by the Luce Furniture Company, a corporation, against The Almini Company, a corporation, for goods purchased by the Almini Company A. of New York and sent by the order of said company to two other parties in New York. Before the goods were paid for said company ceased to exist and Almini Company B. was organized for the purpose of taking over and continuing the business of said company, which it did, and its capital stock was virtually the same as that of said company. Judgment for plaintiff. Defendant appeals. Affirmed for the same reasons this court affirmed Quinlan v. Almini Co., 191 Ill. App. 568.
    George W. Wilbur, for plaintiff in error.
    Eastman & White, for defendant in error; William R. Peacock, of counsel.

      Abstract of the Decision.
    1. Corporations, § 597

      —when succeeding corporation liable for debts of predecessor. A corporation created to take over the business of another corporation of the same name whose charter had expired, the capital stock of which was paid by the transfer of all the property and assets of the latter, is liable for the unpaid purchase price of goods ordered by the latter prior to the expiration of its charter.
    2. Corporations, § 346*—when corporation cannot object to want of power. A corporation accepting the benefits of a transaction cannot in an action for the purchase price object to its want of power to engage in the particular undertaking.
    3. Corporations, § 325*—what business incidental to that for which organized. Trading in furniture may reasonably be considered as incidental to the business of a corporation formed to engage in the business of interior decoration.

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

   Mr. Presiding Justice Brown

delivered the opinion of the court.


text:
    Bullard-Johnson Land & Sheep Company for use of J. H. Bishop, Administrator, Appellant, v. Oregon Short line Railroad Company, Appellee.
    Gen. No. 20,535.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Jambs C. Martin, Judge, presiding. Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed April 26, 1915.
    Statement of the Case.
    Action by Bullard-Johrison Land & Sheep Company, a corporation, for the use of J. H. Bishop, administrator of the estate of J. M. Wilson, deceased, against the Oregon Short Line Bailroad Company for damages for the failure to have ears at Emmet, Idaho, at a specified time. The questions in this case bear much resemblance to those presented to this court in Goodwin v. Oregon Short Line R. Co., 191 Ill. App. 146. The station agent of the Idaho Northern Railroad Company at Emmet gave an order, according to the testimony of the plaintiff, to the station agent of the Oregon Short Line Railroad Company at Nampa, after he had received an order from the plaintiff for cars at Emmet for the shipment of stock from that place. The agent at Nampa placed the order with the Chicago dispatcher of the Oregon Short Line Railroad Company at Nampa. Afterwards said dispatcher had a conversation with the vice-president of the defendant Company and informed said president that he did not know whether the defendant could get the cars on time but that the plaintiff would get the cars as soon as they could. Judgment for the defendant. Plaintiff appeals.
    Abstract of the Decision.
    1. Carriers, § 55

      —what are powers of agent. A local station agent in charge of a railroad company’s business at a particular station is presumed to have authority to represent the company in all matters connected with the transaction of its business at that particular station, but he is not presumed to have authority to act for the company at other stations, and when he attempts to do so, his act, unless ratified, will not bind the company.
    2. Carriers, § 55*—when agent cannot hind carrier. The promise of the local agent of a railroad company and its train dispatcher to supply cars to a shipper on the tracks of another railroad is not binding upon the former company.

      Charles A. Butler, for appellant; Franklin Raber, of counsel.
    John A. Sheean, for appellee.

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

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

   Mr. Presiding Justice Brown

delivered the opinion of the court.

3. Cabbies, § 55 —what not acquiescence in acts of agent. Knowledge by the vice-president of a railway company from its chief local dispatcher that one of its local agents has received an order or request from the local agent of another road to supply the order for cars made to the latter by one of its patrons does not make such company liable for damages for a delay in filling the order where no contract exists, the act of supplying the cars where the agents of the company have not agreed to do so not constituting acquiescence.

4. Cabbiebs, § 55*—when compliance with previous contracts of agent does not show authority. The act of the local agent of a railway company in supplying cars for the patrons of another company upon the request of the local agent of the latter does not make the former liable for failure to supply such cars on the ground that the local agent had authority to make a contract binding on it on account of his previous like conduct ratified by the company.


text:
    Daisy B. Page, Defendant in Error, v. Brink’s Chicago City Express Company, Plaintiff in Error.
    Gen. No. 20,584.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Habby P. Dolan, Judge, presiding. Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed April 26, 1915.
    Statement of the Case.
    Action by Daisy B. Page against Brink’s Chicago City Express Company in the Municipal Court of Chicago in an action of tort, arising out of a claim for damages to the automobile of the plaintiff in a collision through the alleged negligence of the employee of the defendant. Trial without a jury. Judgment for the plaintiff for $124.15, and defendant brings error.

      Abstract of the Decision.
    1. Negligence, § 186

      —when ownership question of fact. The ownership of a wagon operated by an employee of the defendant in an action for damages for negligence is a question of fact.
    2. Automobiles and garages, § 2*—when question of negligence and contributory negligence for jury. In an action for damages for injury to an automobile in a collision claimed to have been caused by defendant’s turning sharply across the path of plaintiff’s automobile, necessitating a similar turn by the latter and a consequent collision with a car in the rear, the questions of negligence and contributory negligence were held to be questions of fact.
    William English, for plaintiff in error.
    Frank M. Cox and R. J. Fellingham, for defendant in error.

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

   Mr. Presiding Justice Brown

delivered the opinion of the court.


author: Mr. Justice Baker

text:
    Western Reserve National Bank of Warren, Ohio, Appellee, v. Supply Manufacturing Company, Appellant.
    Gen. No. 19,911.
    1. Bills and notes, § 118*—when subject to defenses. Notes which show on their face that they are secured by a chattel mortgage are subject to all defenses existing in favor of the maker against the payee.
    2. Sales, § 279*—when breach of warranty waived. Breach of warranty is no defense to an action for the purchase price of a printing press where the contract provided that settlement should be made with the vendor upon fulfillment of the guaranty, and it was apparent that in giving the notes the defendant did not rely upon the guaranty, but elected to accept the press and give its notes therefor.
    Appeal from the Circuit Court of Cook county; the Hon. Edwabd M. Mangan, Judge, presiding. Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed April 26, 1915.
    Foreman, Levin & Robertson, for appellant.
    Lavern W. Thompson, for appellee.
   Mr. Justice Baker

delivered the opinion of the court.

In this case the defendant pleaded nine special pleas, to each of which the plaintiff demurred. The demurrers were sustained and, the defendant electing to abide, there was a judgment for.plaintiff for $4,316 and costs, and the defendant appealed.

The parties entered into a contract in writing for the purchase by defendant of plaintiff of a printing press. Each special plea sets out the contract in Jiaec verba. The allegations in each plea as to the giving of notes as provided in the contract are identical, and we think the decision in the case turns on the construction of the contract and the effect of the giving of the notes as alleged. The contract is in the form of an order addressed to plaintiff by defendant and accepted by the plaintiff. It contains the following provision:

“You are to send us, to remain for ten days without charge, a competent man to erect press, instruct our men in the use of the feed and to demonstrate your guaranty that with competent pressman, accurate plates and observance of your instructions, the press will handle flat paper stocks in all sizes from ll//xl7// to 28//x42// cover forms of all sizes up to 271/2"x41// and will do good printing at a speed of 4500 per hour, where accurate register is not necessary and at a speed of 4000 per hour where accurate register is required, provided the stock is not electrified or otherwise in bad condition on all grades of flat paper stocks heavier than French folio excepting gummed, glazed and blotting paper, and printing onr monthly magazine covers equal in every respect to the Saturday Evening Post.

Settlement is to be made with the erector upon fulfillment of the above guaranty, the payments to be made in exchange on New York for $2000.00, and the balance, $4750.00 in 13 six per cent, interest bearing notes, 12 notes for $125.00 each maturing monthly and one note for $3250.00 due in one year. ’ ’

The contract provides that the notes should be secured by chattel mortgage, and they were so secured, as appears from their face, and therefore are subject to all defenses existing in favor of the maker against the payee. Chapter 95, E. S. sec. 25 (J. & A. 7602). The action was brought on the seven notes last falling due.

All of the special pleas allege as a defense a breach of the warranty contained in the contract, some of them as giving the defendant the right to recoup damages for such breach, and others setting up such breach as a failure of consideration of the notes. The contract imposed no obligation on the buyer to make the cash payment or give the notes provided for in the contract until such time as the man sent by the seller to the buyer should demonstrate the guaranty of the seller contained in the contract that the press would do the work it was guarantied to do with a competent pressman and the observance of the seller’s instructions.

Each of the special pleas contains the following averment:

“And that said agreement was thereafter formally .accepted by the Niles office of the Harris Automatic Press Company, and that thereafter the said Harris Automatic Press Company, pursuant to said agreément, delivered to this defendant the certain printing press in said agreement described and this defendant delivered to said Harris Automatic Press Company its certain promissory notes as in said agreement is provided, which said promissory notes were secured by a certain chattel mortgage upon said press, duly executed, acknowledged and recorded, pursuant to law, and among which said notes were the notes sued upon by the plaintiff herein.”

We think that the principle announced in Fred W. Wolf Co. v. Monarch Refrigerating Co., 252 Ill. 491, is controlling in this case. In that case, it is true, the contract provided that the acceptance by the buyer after the time allowed for a test should be, “a full discharge of the agreements hereinbefore contained.” In this case the contract provides that, “settlement should he made with the erector, the plaintiff, upon-fulfillment of the guaranty.” We think it appears from each plea that the defendant did not in giving the notes rely on the guaranty of the plaintiff, hut elected, in the exercise of its own judgment, to accept the press that had been delivered to it and give its notes for the same, and that the settlement was made and the notes given in fulfillment and discharge of the guaranty. Schmidt v. Jutting, 31 So. Dak. 69.

The trial court did not err in sustaining the demurrers to the special pleas, and the judgment is affirmed.

'Affirmed.


text:
    Albert Buck, Administrator, Appellee, v. O. W. Rosenthal, Appellant.
    Gen. No. 19,980.
    (Not to he reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Charles A. McDonald, Judge, presiding. Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed April 26, 1915.
    Rehearing denied May 10, 1915.

      Abstract of the Decision.
    1. Trial, § 246

      —when verdict in favor of codefendant not inconsistent. In an action for the death of an employee of a contracting carpenter, caused by the collapse of a floor, and another contractor who was charged with overloading the floor, a verdict in favor of the latter is not inconsistent with a verdict against the former, who was charged with directing the decedent to work in a place, which in the exercise of reasonable care he should have known was unsafe.
    2. Master and servant, § 170*'—when notice to foreman of defect binding on master. Notice to a foreman in charge of work, of the unsafety of the place in which an employee was at work, is notice to the master.

      Statement of the Case.
    Action by Albert Buck, administrator of the estate of August Bockelman, deceased, against O. W. Rosenthal to recover damages for "the negligence of the defendant in causing the death of the said August'Bockelman, an employee of the defendant, in sending him into the basement of a saloon to work, which the defendant, the plaintiff charges, knew or ought to have known in the exercise of reasonable care was an unsafe place to work. The defendant, a contracting-carpenter, contracted to lower the floor above the basement. A great deal of material was piled on the floor at the time it fell. A contracting mosaic worker placed the material on the floor. The foreman of the defendant knew this.
    Trial before a jury. Judgment for the plaintiff and defendant brings error.
    Winston, Payne, Strawn & Shaw and Charles J. O’Connor, for appellant; John D. Black and Edward W. Everett, of counsel.
    Darrow & Baily, for appellee.

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

   Mr. Justice Baker

delivered the opinion of the court.

3. Master and servant, § 155*—when plaintiff need not show that third person was negligent in overloading floor. In an action for the death of an employee of a contracting carpenter, caused by the collapse of a floor, which it was charged was overloaded by another defendant, to sustain a verdict against the former it is not necessary that plaintiff show that the latter negligently overloaded the floor, it being sufficient to show that the floor was overloaded and that the former, decedent’s employer, had knowledge of that fact.

4. Master and servant, § 710*—when negligence question for jury. In an action against a contracting carpenter for the death of his employee, caused by the collapse of a floor, which it was charged had been overloaded by another contractor, whether defendant knew or in the exercise of reasonable care should have known that the floor was unsafe and dangerous when he directed decedent to work underneath it was a question for the jury.

5. Trial, § 215*—when rights to he determined as of time of •making motion for directed verdict. Where a defendant moves for a directed verdict and offers no evidence, his rights must be determined as they existed when the motion was made, notwithstanding another joint defendant subsequently offers evidence in his own behalf.


text:
    P. Rielly & Son, Plaintiff in Error, v. National Parlor Furniture Company, Defendant in Error.
    Gen. No. 20,059.
    1. Municipal Court of Chicago, § 19

      —when ruling on motion for default not disturbed. A motion for a default is a matter resting in the discretion of the court, and the exercise of this discretion will not be interfered with on appeal except in cases where it clearly appears that there has been an abuse of such discretion.
    2. Municipal Court of Chicago, § 14*—how interrogatories may he used. The interrogatory and answer thereto in the Municipal Court is not a pleading. The answer may be used as evidence on the trial or in support of an application for a directed verdict for the defendant, but cannot be used in support of a motion to dismiss the suit.
    3. Municipal Court op Chicago, § 16

      -—when admissions in interrogatories do not waive jury trial. The admission of facts in an answer to the interrogatories of the plaintiff in an action in the Municipal Court cannot be construed as a waiver of trial by jury.
    4. Municipal Court op Chicago, § 14*—lohen court cannot determine questions of fact on interrogatories. A motion to dismiss an action based upon the interrogatory and the answer thereto in the Municipal Court does not devolve on the court the determination summarily of a question of fact.
    5. Corporations, § 742*—lohen action t>y foreign corporation not dismissed on answers to interrogatories. An action cannot be dismissed on the ground that the plaintiff is a foreign corporation doing business in this State in violation of the statutes, merely on the ground that such fact appears from interrogatories and answers thereto filed in an action in the Municipal Court.
    Error to the Municipal Court of Chicago; the Hon. James C. Martin, Judge, presiding. Heard in this court at the March term, 1914.
    Reversed and remanded.
    Opinion filed April 26, 1915.
    Vroman, Munro & Vroman and Sidney N. Ware, for plaintiff in error.
    Lee J. Frank, Mary Lee Colbert and Charles H. Pease, for defendant in error.

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

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

   Mr. Justice Baker

delivered the opinion of the court.

The plaintiff corporation, P. Rielly & Son, brought an action in the Municipal Court against the defendant for merchandise sold and delivered and filed a statement of claim. Afterwards, by order of the court, it filed a more specific statement of claim. The contention that the court erred in denying plaintiff’s motion for a default for the reason that defendant did not appear and file an affidavit of defense within the time fixed for its appearance is without merit. Whether a default and judgment shall be set aside is a matter resting in the discretion of the court, and the' exercise of this discretion will not be interfered with on appeal except in cases where it clearly appears that there has been an abuse of such discretion. This being the rule when default has been entered, it should apply with all its force to a ruling on a motion for default.

The defendant filed interrogatories which were answered by the plaintiff. The defendant then moved that the suit be dismissed, basing its motion on plaintiff’s amended statement of claim, the affidavit of defense and plaintiff’s answer to the interrogatories. The court granted the motion and dismissed the action.

The purpose of permitting interrogatories is to obtain a discovery of facts resting in the knowledge of a party to a suit. An interrogatory and answer thereto is not a pleading. The answer may be used as evidence on the trial or in support of an application for a directed verdict for the defendant, but cannot be used in support of a motion to dismiss the suit. The admission of facts contained in the answer to the interrogatories cannot be construed as a waiver of trial by jury. The motion to dismiss could not devolve on the court the determination summarily of a question of fact. On this motion the court ought not to have determined the question of fact whether the plaintiff corporation was doing business in Illinois in violation of the statute, but ought to have remitted the parties for trial to a jury.

The judgment of the Municipal Court is reversed and the cause remanded.

Reversed and remanded.


text:
    City of Chicago, Defendant in Error, v. Otto Gross, Plaintiff in Error.
    Gen. No. 20,197.
    Abstract of the Decision.
    Disorderly house, § 2

      —when evidence insufficient to sustain conviction. Where on a prosecution for violating an ordinance against the keeping of a house for the “encouragement of idleness, gaming, drinking, fornication or other misbehaviors,” the evidence showed that defendant was merely in charge of a saloon temporarily during the illness of the proprietor and was arrested on the day following that on which he took charge, and the evidence fails to show that the house was kept for prohibited purposes while defendant was in charge, a judgment of conviction will be reversed.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Rufus F. Robinson, Judge, presiding. Heard in this court at the March term, 1914.
    Reversed and remanded.
    Opinion filed April 26, 1915.
    Statement of the Case.
    Prosecution by the City of Chicago against Otto Gross for the violation of a city ordinance directed against “every common, ill-governed or disorderly house, room or other premises, kept for the encouragement of idleness, gaming, drinking, fornication or other misbehaviors * * The proprietor of a saloon secured the services of the defendant' to operate his place of business during his illness. To reverse a judgment of conviction, plaintiff brings error.
    D. B. Brillow and George J. Reece, for plaintiff in error.
    William H. Sexton and James S. McInerney, for defendant in error; Albert J. W. Appell, of counsel.

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

   Mr. Justice Baker

delivered the. opinion of the court.


text:
    Julius G. Breitenstein, Appellant, v. Independent Button & Machine Company, Appellee.
    Gen. No. 20,270.
    1. Payment, § 34

      —when acknowledgment conclusive. An acknowledgment by plaintiff of his indebtedness to the defendant “after all counter-claims of whatever character that I have” against the defendant, held to bar an action for amounts claimed under an alleged indefinite agreement entered into prior to the making of the acknowledgment, such acknowledgment not having been satisfactorily explained.
    2. Evidence, § 381*—when parol evidence of intention inadmissible. Where a party executes a written acknowledgment of indebtedness, such writing is the only proper evidence of the purpose of the writer, and of what he intended or did not intend by the words used.
    3. Contracts, § 385*—when evidence insufficient to show contract. Evidence held insufficient to prove a definite agreement on the part of the defendant or its officers to pay plaintiff for patents assigned to it.
    4. Contracts; § 8*—when void for indefiniteness. Where an agreement is so vague and indefinite that it is not possible to collect from it the full intention of the parties, it is void, for neither the court nor the jury can make an agreement for the parties.
    Appeal from the Municipal Court of Chicago; the Hon. James C. Martin, Judge, presiding. Heard in this court at the March term, 1914.
    Affirmed.
    Opinion filed April 26, 1915.
    Cleland, Lee & Phelps, for appellant; Lester E. Lee, of counsel.
    Matz, Fisher & Boyden, for appellee; Laird Bell, of counsel.

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

   Mr. Justice Baker

delivered the opinion of the court.

Plaintiff Breitenstein brought an action of the first class in the Municipal Court against the defendant corporation to recover damages for the breach of an alleged promise by defendant by Knltchar, its president, to pay plaintiff for “two patents at the market value thereof at the time they were paid for.” The cause was tried by the court and resulted in a finding and judgment for the defendant and the plaintiff appealed. In 1904 plaintiff and Silsby were engaged in manufacturing machines to make buttons and in making button dies. In July of that year the defendant corporation was organized to engage in the same business. Plaintiff bought Silsby’s interest in the plant and business and sold the same to the defendant. He made a bill of sale to Trilling and Trilling made a bill of sale, to Knltchar. The bill of sale to Trilling transferred the plant and equipment of plaintiff, the good will of his business and “all rights, prospective rights, and patents now in existence, and patents applied for, of which said party of the first part (Breitenstein) is at the present time the owner, or may hereafter in any way be or become entitled to; also all the inventions, in part or entirely, hereafter made or discovered by said party of the first part, improving, perfecting, supplanting or superseding the invention or inventions now in existence; also any and all inventions hereafter to be made, whether patentable or not, which may at present or hereafter be of use or become valuable in the conducting of a business of a similar nature to the one said party of the first part is at the present time engaged in, or any business that may become an outgrowth of said business, whether hereafter conducted by an individual, firm or corporation, as the case may be.” The bill of sale from Trilling to Knltchar transferred the property bought by Trilling from plaintiff, the good will of his business, and contains the same provision that is contained in the bill of sale to Trilling. Knltchar transferred the plant, equipment and rights so transferred to him to the defendant corporation and the plaintiff received for the plant, equipment and rights so transferred by him $1,000 of the stock of the defendant at par and was given the right to buy forty shares in addition for $1,000. Plaintiff was employed to take charge of and operate the plant. He began to work for the defendant at $20 per week, which was increased “right along” and had a drawing account on which he drew certain amounts from the defendant from time to time. In 1906 a patent was issued to plaintiff for a button machine, dated November 29th, and another patent was issued to him for a button machine dated September 29, 1908. The defendant corporation paid the expenses of procuring both patents and they were both assigned to it by the plaintiff.

Plaintiff’s account with the defendant was overdrawn June 30, 1909, $601.39, and he had borrowed from defendant $1,177 and given his note therefor dated June 4, 1902. June 30,1909, he signed and gave to the defendant the following instrument:

“The Independent Button & Machine Co.
Chicago, June 30, 1909.
I hereby acknowledge an indebtedness to the Independent Button & Machine Co. of Seventeen Hundred Seventy-eight and 39/100 Dollars ($1,778.39), of which $601.39 is for overdraft on open salary account, and $1,177.00 is for loan evidenced by my note dated June 4, 1909, after all counter-claims of whatever character that I have had against either M. B. Kultchar or the Independent Button & Machine Co. have been deducted.
(Signed) J. G-. Breitenstein.”

Plaintiff’s case begins, as stated by himself, with an agreement to assign to defendant inventions of the character of the inventions for which the patents in controversy were issued, and concludes with a statement that plaintiff is indebted to defendant in the sum of $1,778.30, after all “counter-claims of whatever character that I have had against either M. B. Kultchar or the Independent Button Co. have been deducted.” The alleged promises on which plaintiff relies were made, if made at all, after the agreement to assign the patents were made and before the writing by plaintiff on June 30, 1909, admitting that he was .indebted to defendant, after deducting all counterclaims that he had had either against Kultchar or the defendant, in the sum of $1,178.39, was given to defendant.

The document dated June 30, 1909, is an admission that the defendant was not indebted to the plaintiff; and while not conclusive like a release under seal, it is a bar to the suit unless explained. The only evidence tending to explain it was the testimony of the plaintiff as to Ms purpose in making the statement. The written statement is the oMy proper evidence of the purpose of the writer, and of what he intended or did not intend by the words used. Sutter v. Rose, 169 Ill. 66, 72; Flower v. Brunbach, 131 Ill. 646, 652; Brant v. Gallup, 111 Ill. 487, 492. The evidence fails to explain the admission of plaintiff and is a bar to the action.

Plaintiff’s amended statement of claim alleged that the defendant agreed to pay for said two patents “at the market value thereof at the time they were paid for.” Passing the question whether the promise averred was not void for uncertainty, it is to be noticed that there is in the record no evidence tending to prove the promise so alleged.

The only evidence respecting a promise by defendant to pay plaintiff for his patents are to the effect that plaintiff said to Kultchar after the patents were issued: “If I assign this thing to you, you will have to pay me for it,” and that Kultchar replied, “You will get your pay, more than it is worth; ’ ’ that in 1911 Kultchar said to Siegenthaler: “I owe Breitenstein money and he has notMng to show for it;” that Kultchar said to plaintiff, “We will have the invention patented,” and plaintiff said, “Yes, we will have it patented provided I get what is coming to me,” and Kultchar replied, “We will take that up later;” that at another time plaintiff said to Kultchar, “You are sure you are going to pay me for every one of these without giving me anything to show for it,” and Kultchar replied, “Don’t worry, you will be taken care of;” that Kultchar said to Miss Wesselman, “Breitenstein will get all that is coming to him. It is to be in the future;” that Kultchar said to plaintiff’s sister, “I know I have not done right by him” (Breitenstein) “but I will.”

The statements testified to do not prove a promise or contract on the part of either Kultchar or the defendant to pay the plaintiff any specified sum of money, but at most only indicate a purpose on the part of Kultchar to do something for Breitenstein some time in the future. In Mackintosh v. Kimball, 101 App. Div. (N. Y.) 494, plaintiff was told that if he continued in defendant’s employ he should be given an interest in the profits. One of the defendants said to plaintiff, “You can depend on me. I will see that you get a satisfactory amount,” and it was held that the whole arrangement was so indefinite that it could not be the basis of a recovery. See to same effect: United Press v. New York Press Co., 164 N. Y. 406; Butler v. Kemmerer, 218 Pa. 242. In Beach on Contracts, sec. 72, it is said: “If the agreement be so vague and indefinite that it is not possible to collect from it the full intention of the parties, it is void; neither the court nor the jury can make an agreement for the parties.”

After a careful consideration of the evidence, our conclusion is that the terms of the alleged contract were never made complete and were never fixed; that for that, reason no recovery can be had in this case, and the judgment is affirmed.

Affirmed.