text:
    Seaver Amusement Company, Appellee, v. J. E. Saxe and Thomas Saxe, copartners, Appellants.
    Gen. No. 23,432.
    1. Landlord and tenant, § 6

      —when instrument deemed not to he lease. Where from the express phraseology of a written instrument it plainly appears that it was not the intention of the parties that it should operate as a lease, it will not be held to be such, even though it provides that immediate possession may be taken under it.
    2. Landlord and tenant, § 6*—when agreement relating to leasing of property deemed not to he lease. WThere an agreement relative to the leasing of property expressly provided for and contemplated the execution of a formal lease and the liability for rent thereunder was not to commence until a later date, the instrument will not be held to be a lease, in the absence of any evidence of estoppel or contrary contemporaneous construction by the parties, even though it provided for immediate possession of the premises.
    3. Landlord and tenant, § 94*—when tenancy from month to month arises. Where a tenant goes into possession and pays monthly rent under a parol lease which, though in violation of the Statute of Frauds, provides for the payment of a monthly rent, a tenancy from month to month arises.
    4. Landlord and tenant, § 89*—when tenancy from year, to year created. Where one goes into possession under a parol lease by which the reservation of rent is annual, a tenancy from year to year is created, even though the agreement provides for a payment of one-twelfth of the annual rental each month.
    5. Landlord and tenant, § 6*—how relations of parties determined where possession taken under agreement for lease. Where possession is taken under an agreement for a lease without any lease having been actually executed, the relations of the parties are to be determined by their parol understanding at that time and their subsequent conduct pursuant thereto, and the terms of such agreement will govern except so far as they conflict with the Statute of Frauds.
    6. Landlord and tenant, § 274a*—when tenant may not recover deposit. Where an agreement for a yearly lease provides for a deposit by the lessee on the execution of the lease to guarantee its performance which shall he used by the lessor in discharge of the last quarter of the first year term, and no lease is executed but the lessee enters and takes possession under a parol agreement for a yearly rental, the deposit cannot be recovered back by the lessee, but may be applied by the lessor towards the payment of a quarter of the rent, on a breach of the parol lease by the lessee.
    Appeal from the Municipal Court of Chicago; the Hon. Sheridan E. Fey, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1917.
    Affirmed.
    Opinion filed April 24, 1918.
    Stansbury & Charles, for appellants.
    Wheelook, Newey & Mackenzie, for appellee.

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

   Mr. Presiding Justice Taylor

delivered the opinion of the court.

The Seaver Amusement Company, the appellee, lessee of the Hippodrome Theater in the City of Peoria, claiming that appellants, J. E. Saxe and Thomas Saxe, copartners, were liable for certain rent as sublessees, brought suit in the Municipal Court and recovered judgment in the sum of $3,333.33 and costs. The statement of claim set up (1) that the appellants were liable upon a formal lease for one year; (2) that they were liable for use and occupation; and (3) that they were liable for rent for certain months as the result of certain mutual acts of the parties.

The defense of the appellants was that the tenancy was from month to month; that they abandoned the premises and so notified the appellee in writing, and that there was no further rent due.

In the early part of August, 1914, one Eobinson, secretary and treasurer and vice president of the appellee, began negotiations with Thomas Saxe and one Wright in Peoria in regard to the leasing of the Hippodrome Theater. Saxe looked over the theater property and intimated that he would confer with his brother, John Saxe, who later went to Peoria. On August 5, 1914, an elaborate written contract was signed by both parties. It recited, among other things, “That whereas, the parties hereto have on -this day and date agreed upon the terms for a lease of a certain theater. * * * Whereas, for the purpose of a memorandum for a lease about to be executed * * * it is agreed as follows: that the Seaver Amusement Company * * * agrees to execute and deliver * * * a certain lease. * * * It is further agreed that the lease shall provide that the Saxes * * *. It is further agreed that said lease shall provide for carrying out,” etc. It further recited that unless the contract of August 5, 1914, was executed by a given time, appellee should have the right to cancel it without further notice. Also, that if the appellants should accept the contract it should be delivered, together with" $2,500, to the appellee by noon, Monday, August 10, 1914. The contract also provided that if the appellants executed it “the corporation (appellee) obligates itself to make the lease in substantially the terms herein contained.” The rental for the first year was fixed at $10,000. At the time the contract was made, August 5, 1914, the appellants paid to the appellee $2,500, and at the same time one'of the Saxes told Robinson that E. P. Churchill would be the manager of the theater. On August 15, 1914, Churchill took possession of the theater and proceeded to install furniture and fixtures. Churchill, as manager for appellants," opened the theater on September 1, 19.14, and, it is claimed by appellee, continued to operate it from then until June 22,1915. The rent was paid in amounts of $888.88 for the months of September, October, November and December, 1914, and January, 1915, and the appellee applied the $2,500 deposit for the months of June, July and August, 1915; that no rent being paid for the months of February, March, April and May, 1915, the appellee retook possession of the premises on September 1,1915. The evidence of Robinson of the appellee is to the effect that Thomas Saxe told him, about December 18, 1914, that they, meaning appellants, had décided that they had lost about all the money they cared to lose in the Hippodrome Theater, and were going to allow Mr. Churchill to manage it and run it as he saw fit, and they would continue to pay the rent. Certain correspondence between appellants and Churchill was offered in evidence which shows that appellants had made some arrangements with Churchill by which the latter had taken over their interest in the theater. In a letter of December 15, 1914, to Churchill from appellants, occurs the language: “We would not be obliged to pay this theater tax if the theater was closed, and inasmuch as you are conducting the house we feel that we should make this charge against your account.” On January 2, 1915, appellants wrote to Churchill that they were sending their representative, one Wright, to investigate, and stated that they authorized him “to take such steps as he deems necessary to protect our interests.” On January 30,1915, appellants wrote appellee that they would not be able to send the rent for February until the middle of that month. It was-admitted by counsel for appellants that Churchill was in possession of the theater “as the defendants’ manager up to February 17, 1915.”

The appellants took possession of the theater August 10, 1914. Churchill took possession for them as manager and, it is admitted, remained in possession as their manager until November 21 or 22, 1914. The period of Churchill’s hiring by appellants Was indefinite. On November 21 or 22, 1914, his relations as manager for the appellants were discontinued and he undertook to operate the theater on his own account, and for the period during which the appellants “decided to pay the rent and keep the theater” he agreed to pay as his rental for so doing, to the defendants, a sum equal to 50 per cent, of the profits. Between August 10, 1914 and November 22, 1914, appellants paid Churchill a weekly salary for his services as manager of the Hippodrome Theater. Churchill testilled that some time in March, 1915, he had a talk with Robinson and one Yorkin; that they said that appellants had given them notice that they would not pay the rent any longer; that “not being an occupant of the building they would look to me for it, and expect I would help them out in some way on it, as their rent was due”; that he “refused to give them any”; that he “was not then employed by the Saxes.” On February 1.7,1915, appellants, by letter, notified the appellee that they, on that date, abandoned to appellee the property and that appellee might “take possession of the said premises forthwith”; that “all agreements for releasing the above described premises and all oral agreements of lease between you and the Saxes are canceled after this date.” In that letter the appellants stated, further, that appellee might show it (said letter) to Churchill “who has been operating the theater, claiming some kind of an agreement with the Saxes so to do, as evidence that he is no longer to withhold the possession of the premises from you if you demand the surrender of them by him to you, so far as the Saxes are concerned.” The witness Robinson testified that the conversation related by Churchill as having taken place some time about the middle of March did not occur; that he had no talk with him regarding the rent. Churchill surrendered the premises to appellee on June 15, 1915. The appellee applied the $2,500, which was paid to it at the time of the signing of the contract, August 5, 1914, for the months of June, July and August, 1915, that was for one-quarter of a year at an annual rate of $10,000, and as the rent was paid by appellants for the months of September, October, November and December, 1914, and January, 1915, there remained unpaid the rent for the period beginning February 1, 1915, and ending May 31, 1915, being the sum of $3,333.33, or one-quarter of a year at $10,000 per year. The court without a jury found that the appellee was entitled to damages in the sum of $3,333.33, and, accordingly, entered judgment for that amount.

The following questions arise: (1) Was the contract of August 5, 1914, a lease? (2) Assuming the contract of August 5, 1914, was not a lease, were appellants, by implication, tenants from year to year? (3) Assuming the contract of August 5, 1914, not to be a lease and that appellants were not tenants from year to year, were they liable for use and occupation at $833.33, per month, for the months of February, March, April and May, 1915? (4) Were the appellants in actual possession of the premises during February, March, April and May, 1915, through their subtenant Churchill, and, therefore, liable as tenants from month to month? • (5) Was appellee justified in applying the deposit of $2,500 on the rent accruing for the months of June, July and August, 1915?

(1) Was the written contract of August 5, 1914, á lease? It certainly has some of the qualities of a lease, and yet, on the other hand, it contains a number of definite statements to the effect that it was intended merely as an agreement for a lease. It recites at the outset—-and the words are of great significance—that it was made “for the purpose of a memorandum for a lease about to be executed.” Further, that said lease is to be dated September I, 1914; that is, in futuro; that the appellants “agree, upon the execution of the lease,” to make a certain deposit; that “the lease shall provide that the said Saxes shall make such changes in and about the buildings so demised as they shall desire,” etc.; “that said lease shall provide for the carrying out of the provisions of the lease of the corporation with Charles J. Off, so far as the same shall be applicable here”; that “if this contract shall not be executed by the said J. E. and Thomas Saxe * * * the corporation shall have the right to annul and cancel this contract”; that “in the event that the said J. E. Saxe and Thomas Saxe shall execute, accept and deliver this contract as herein provided, that the corporation obligates itself to make the lease in substantially the terms herein contained.” Where from the express phraseology of the written instrument it plainly appears that it was not the intention of the parties that it should operate as a lease, it is the law that even though it provides that the prospective lessee may take immediate possession, such an agreement is not a lease. Taylor, Landlord and Tenant, sec. 40. The instant case is, in its facts, quite distinguishable from E. De Lue & Co. v. Spear, 192 Ill. App. 254. In the latter case the memorandum of agreement, upon a careful analysis, is shown to contain, by the use of the words, “I, D. D. Spear, hereby agree to rent,” a promise to rent in prcesenti the premises in question; and, although it contains the further words, ‘ ‘and sign a lease for same,” the latter does not in any way detract from the binding promise already made. In the latter case the lessee agreed to rent the premises at once and was to sign a lease afterwards; whereas, in the instant case, although immediate possession was provided for, and the liability for rent was not to commence until September 1, 1914, the written agreement reiterated in at least six different paragraphs that it was merely a contract for the execution of a future lease. The conduct of the parties, having reference particularly to the words used by the appellants in the letters of December 26, 1914, January 2 and January 6,1915, does not help much in the interpretation of the written agreement. It is an elaborate document and contains many provisions, and seemingly alludes to all that might be considered material in a finished lease, and yet, in the face of the repeated statements which it contains, that it is only an agreement for a lease, to hold it to be otherwise would be to transmute that which expressly and only lies in contract-—-without any evidence of estoppel and without any suggestive conduct in the nature of contemporaneous interpretation on the part of the makers—into a lease itself. We feel impelled, therefore, to conclude that the written agreement of August 5, 1914, which expressly provided for and contemplated the execution of a more formal document as a lease, did not constitute itself a written lease. Lehigh & Wilkes-Barre Coal Co. v. Wright, 177 Pa. St. 387.

(2) Assuming the contract of August' 5, 1914, was not a lease, were appellants, by implication, tenants from year to year? There seems to be no doubt that it is the law in this State that where a tenant goes into possession and pays monthly rent under a parol lease, which, though in violation of the Statute of Frauds, provides for the payment of monthly rent, there arises a tenancy from month to month. In the case of Brownwell v. Welch, 91 Ill. 523, where the rent was payable “at $83.33% per month”; in Creighton v. Sanders, 89 Ill. 543, where the words were, “For the term of five years from July 1, 1872, for $15 per month rent”; in Warner v. Hale, 65 Ill. 395, where the words were, “for one year, at a stipulated rent, payable monthly”; in Hansen v. Stein, 201 Ill. App. 501, where the term was “for a period of three years, at $125 per month”; in Mollitor v. C. M. Thom Van Co., 118 Ill. App. 293, using the following words, “For a longer period than a year on a monthly rent payable monthly”; in Donohue v. Chicago Bank Note Co., 37 Ill. App. 552, where the words used were, “for a term of three years, at a rental of $200 per month, payable monthly,” it was held that a tenancy from month to month was created. In the case of Blake v. Kurrus, 41 Ill. App. 562, where the words were, “for a term of three years * * * at a rental of $275 per annum, ’ ’ it was held that a tenancy from month to month was created “under the authority of Creighton v. Sanders, 89 Ill. 543,” etc. In the latter case, however, the court merely said that where the words were, “for $15 per month rent,” the lease was from month to month. It will be seen, therefore, that Creighton v. Sanders, supra, does not support Blake v. Kurrus, supra, and that the latter case must be considered as contrary to the prevailing judgment of our courts.

By analogy, and with equal reason, it seems to be the law that where the reservation of rent is annual, there arises a tenancy from year to year. In Taylor’s Landlord and Tenant (9th Ed.), vol. 1, sec. 55, the following language is used: “Since the time of the Year Books, however, the courts have treated a general occupation by permission, no time being fixed for its continuance, as a tenancy from year to year, when ever the reservation of rent or other circumstances indicated an agreement for an annual holding,” etc. In Herrell v. Sizeland, 81 Ill. 457, the court said that: “The reservation of an annual rent is the leading circumstance that turns leases for uncertain terms into leases from year to year.” Citing “4 Kent 114; Cox v. Burt, 15 E. C. L. 410; Adams on Ejectment, 120”; Lithograph Bldg. Co. v. Watt, 96 Ohio St. 74, 117 N. E. 25.

In the instant case, the agreement of August 5, 1914, pursuant to which appellants went into possession of the premises, provided that the rent should “be upon a basis of payment to the corporation (appellee) of ten thousand ($10,000) dollars the first year * * * the rentals to be paid in monthly periods, payable in advance,” etc. We must, therefore, assume that when the appellants went into possession and paid $833.33 in each of the months of September, October, November, December, 1914 and in January, 1915, they were paying rent “upon a basis of payment to the corporation (appellee) of $10,000 per annum”; that the rent as paid was not considered a monthly rental, but each payment as a one-twelfth part of a total annual liability of $10,000. Having taken possession óf the premises and paid rent on the yearly basis, obviously pursuant to the terms of the agreement for a lease, we are of the opinion that a tenancy from year to year was thereby created. The contract of August 5,1914, being merely an agreement for a lease, no written lease having been actually executed, the relations of the parties are determined by their parol understanding at that time, and their subsequent conduct pursuant thereto. One exception, however, must be noted, that is, that the term of the tenancy, as provided for in the written agreement, may not be considered on account of the Statute of Frauds. Having acted under the contract and created the relation of landlord and tenant, the terms of that contract will govebi in so far as they do not conflict with the Statute of Frauds. In the instant case, by the terms of the written agreement, which must be considered as in the nature of a parol understanding, the rent was fixed at an annual rent, and it follows, therefore, that the tenancy must be considered as from year to year. No question (3) of quantum meruit for use and occupation, nor (4) of rent from month to month arises.

Considering all the circumstances, and particularly the understanding as to the annual rent .to be paid, evidenced by the written contract for the lease, and followed by possession and payment of part of the rent on the basis of an annual rent of $10,000, we are of the opinion that a tenancy from year to year was created, and that the appellants were liable for the amount of rent remaining unpaid.

(5) As to the question involving the deposit of $2,500 which was made by the appellants to the appellee on August 5, 1914, contemporaneously with the acceptance and execution of the written agreement for a lease: The written contract of that date "provided, “it is also further agreed that if the said Saxes shall accept this contract, they shall deliver the same, together with the $2,500 herein provided for,” etc. The written agreement also provided, “In order to guarantee the performance of the agreement by the said ■ Saxes for the first year * * * the said J. E. and Thomas Saxe agree, upon the execution of the lease, to deposit with the corporation the sum of $2,500 in cash, which shall be used in the discharge of the last-quarter of the first year term, but they shall be entitled to interest on the same at the rate of 5 per cent, per annum.” In accordance with the above provisions, appellants, on August 5,1914, contemporaneously with the acceptance and execution of the written agreement, paid the sum of $2,500 to the appellee. It is claimed by the appellants that although the written agreement recited that the $2,500 should he used in the discharge of the last quarter of the contemplated term of one year, it was “upon the assumption, express understanding and condition that a lease should be thereafter executed and delivered,” and cases are cited to the effect that while the agreement remained executory, the money so paid may be recovered back. The record shows that the appellants made no demand for the return of the $2,500, and no claim in the nature of a set-off was made. Inasmuch as we have held that the tenancy was one from year to year at an annual rental of $10,000, and as the written agreement provided that the deposit of $2,500 “shall be used in the discharge of the last quarter of the first year term,” we are of the opinion that the appellee was justified in applying that deposit in payment of the rent for one-quarter of the annual rent of $10,000. In our opinion the evidence shows that the appellants were legally in possession of the premises until the- 1st of September, 1915. The claim that the court erred in the exclusion of certain answers to interrogatories, we are of the opinion, is untenable.

Finding no error in the record the judgment is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Taylor

license: Public Domain

text:
    John Doretti and Paul Doretti, trading as Doretti Brothers & Company, Appellees, v. George E. Rice Potato Company, Inc., et al., on appeal of First National Bank of Foley and National Produce Bank of Chicago, Appellants.
    Gen. No. 23,550.
    1. Garnishment, § 39

      —when draft not subject to garnishment as property of drawer. When the drawer of a draft deposits it with a hank and is given credit by the bank on a note of the drawer held by it for collection, such note being returned to the drawer marked “paid” and á draft for the amount of the note being sent by the bank to the payee, all relations between the drawer and the bank growing out of his deposit of the draft in the bank are at an end, and a second bank to which the first bank thereafter sends the draft for collection holds it as the property of such first bank and the draft cannot be garnisheed in its hands as the property of the drawer.
    2. Garnishment, § 63*—necessity of indebtedness of garnishee to attachment debtor. An indebtedness from the garnishee to the attachment debtor is essential.
    3. ' Garnishment, § 138*—right of third persons to assert claims. Third parties claiming the subject-matter garnisheed may inter-plead and assert any interest they have therein, and may appeal from an adverse decision.
    4. Municipal Court of Chicago, § 27*—when bill of exceptions sufficient. Bill of exceptions held sufficiently to comply with the requirements of section 23 of the Municipal Court Act (J. &■ A. If 3335).
    Appeal from the Municipal Court of Chicago; the Hon. John Richardson, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1917.
    Reversed and remanded with directions.
    Opinion filed April 24, 1918.
    Royal W. Irwin and Ewart Harris, for appellants.
    Webster & Sherrard, for appellees; Daniel Webster and Arthur A. Sherrard, of counsel.

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

   Mr. Presiding Justice Taylor

delivered the opinion of the court.

This is an appeal from a judgment in the sum of $206.67 and costs entered in favor of the appellees and against the National Produce Bank as garnishee.

On January 24, 1917, the appellees began - suit in the Municipal Court for the sum of $206.67, and in their statement of claim set forth that having bought and paid for certain carloads of potatoes it was found upon examination that “the said cars did not contain the amount agreed upon to be delivered”; that they “paid sight draft bill of lading,” and that by reason of the “short weight” there was due appellees the net sum of $206.67. On the same date the appellees filed an affidavit for attachment in aid against the George E. Bice Potato Company and the appellant, the National Produce Bank of Chicago (garnishee), for $206.67 “for liquidated damages.” An attachment writ in aid was issued and on the same date returned served on the appellant, the National Produce Bank, as garnishee, and on February 2, 1917, the latter filed its answer, stating that it had no “money, goods or property of the defendant, the George E. Bice Potato Company, in its possession, control, custody or charge.” The George E. Bice Potato Company was duly served with summons, and notice of the writ of attachment in aid, by publication^

March 6, 1917, the appellant, the First National Bank of Foley, Minnesota, hereinafter called intervening claimant, filed an intervening petition claiming that the draft—which was the subject of the attachment in aid or garnishment—was assigned to and deposited with the intervening claimant by the George E. Bice Potato Company on January 20, 1917;-that at the time the George E. Bice Potato Company was given credit for the amount of said draft in partial payment of an indebtedness theretofore existing between the George E. Bice Potato Company and the intervening claimant; that for a good and valuable consideration and the partial extinguishment of the indebtedness of the George E. Bice Potato Company, the intervening claimant claims the amount of the draft so garnisheed as its own property.

March 6, 1917, the appellant, the National Produce Bank, hereinafter called garnishee, filed a supplemental answer setting up, among other things, that the draft on Doretti Brothers & Company, appellees, was on January 20, 1917, prior to the service of the attachment writ upon the George E. Rice Potato Company, assigned to the intervening claimant, and by the latter accepted in partial payment of a debt from the George E. Bice Potato Company, and that the intervening claimant, the First National Bank of Foley, on the same date gave the George E. Rice Potato Company credit on said debt in the amount of the draft.

From the' evidence it appears that there is no question but that appellees ordered a certain quantity of potatoes from the George E. Bice Potato Company, and upon receipt of the bill of lading accepted a draft dated January 19, 1917, drawn by the George E. Bice Potato Company on appellees in the sum of $1,039.80, payable to the intervening claimant, the First National Bank of Foley. And, further, there is no question but that certain carloads of potatoes were short in weight, and that there was due to the appellees from the George E.» Bice Potato Company, by reason of the short weight, the sum of $206.67.

At the time of the trial it was admitted by all parties that the amount' claimed in the statement of claim was in the hands of the garnishee, National Produce Bank of Chicago, the contention of the garnishee and the intervening claimant being that at the time of the issuance of the writ of attachment the.draft did not belong to the George E. Bice Potato Company. It was also admitted that there being no appearance of the George E. Rice Potato Company of record, the appellees need not prove the amount of damages. The testimony of one Mushel, called on behalf of the intervening claimant, is to the effect that the latter made, during the fall of 1916, certain loans to the George E. Rice Potato Company; that on January 20, 1917, the George E. Rice Potato Company owed it, the intervening claimant, $10,300 on four demand notes: one of October 4, 1916, for $1,800; one of October 25, 1916, for $5,000; and two of November 1, 1916, one of which was for $2,000 and the other for $1,500; that in addition to those notes the intervening claimant on January 20,1917, held for collection a note executed by the George E. Rice Potato Company on October 4, 1916, to the State Bank of Foreston; that the draft on appellees, Doretti Brothers & Company, drawn by the George E. Rice Potato Company and payable to the intervening claimant, which was the subject of the garnishment, came into the possession of the intervening claimant on January 20, 1917; that “it was brought to the bank by A. R. Davis, secretary of the George E. Rice Potato Company”; that that draft, together with others, was “applied on the note of $1,800, and held by the First National Bank of Foley for collection,” and also applied upon the notes held by the intervening claimant; “that for several weeks prior to that time the George E. Rice Potato Company was paying up outstanding notes as rapidly as receipts from the sales and shipments permitted”; that all drafts received were applied in that manner; that the draft in question was sent by the intervening-claimant to the garnishee, the National Produce Bank of Chicago “for collection and returns”; that “the note of the State Bank of Foreston was returned to the George E. Rice Potato Company, marked ‘Paid,’ and a draft for the amount of the note forwarded to the State Bank of Foreston.” The draft, in question, was dated “Foley, Minn:, January 19th, 1917,” and

was for the sum of $1,039.80, drawn by the George E. Bice Potato Company, directed to Doretti Brothers, Chicago, Illinois, and payable to the First National Bank of Foley. On its face it was marked “Paid Jany. 19,” and it was indorsed on the back: “Pay to any bank or banker. First National Bank, Foley, Minn.”

On the trial of the case, the trial judge, without a jury, found the issues as to the interplea of the First National Bank of Foley—the intervening claimant— in favor of the appellees (Doretti Brothers & Company), and also found the issues as to the attachment and as to the merits of the action against the George E. Bice Potato Company, and assessed the appellees’ damages at the sum of $206.67. Judgment was entered in favor of the appellees and against the George E. Bice Potato Company in the sum of $206.67, and judgment was also entered in favor of the George E. Bice Potato Company against the garnishee, the National Produce Bank, in the sum of $206.67 for the use of the. appellees.

The decisive question in the case is whether, at the time the attachment in aid was begun, the garnishee, the National Produce Bank, had in its possession any property belonging to or was in any way the debtor of the George E. Bice Potato Company. On January 17, 1917, a draft was drawn by the George E. Bice Potato Company, appellant, payable to intervening claimant, the First National Bank of Foley. On January 20, 1917, the drawer took the draft to the payee, the intervening claimant, and the latter applied it— together with others—on a note of $1,600 which the drawer owed to the State Bank of Foresten, and which the intervening claimant held for collection, and on other notes held by the intervening claimant. The latter at that time held certain note,s of the George E. Bide Potato Company aggregating $10,300, which, however, were not at that time due but which represented indebtedness due from the George E. Bice Potato Company to the intervening claimant.

The evidence shows that for several weeks prior to January 17,1917, the George E. Bice Potato Company had been paying up outstanding notes in the possession of the intervening claimant as rapidly as its receipts from sales permitted, that is, by the application of drafts as they were received. The note of the George E. Bice Potato Company which was owned by the State Bank of Foreston and which the intervening claimant held for collection was, after the receipt of the draft in question, returned to the George E. Bice Potato Company marked “paid”; also a draft for the amount of the note was sent by the intervening claimant to the State Bank of Foreston, and the draft in question was sent to the garnishee, the National Produce Bank, “for collection and returns.” It will be observed the foregoing all took place before January 24, 1917, the date of the attachment in aid.

In view of the facts as set forth, it is difficult to discover any outstanding obligation from the garnishee to the original debtor, the George E. Bice Potato Company, after January 20, 1917. When the latter deposited the draft with the intervening claimant, First National Bank of Foley, and was given credit therefor; and the Foreston note was marked paid and returned to the George E. Bice Potato Company, and a draft for that amount sent by the intervening claimant to the State Bank of Foreston, all the relations growing out of the depositing of the draft by the, George E. Bice Potato Company with the intervening claimant, the First National Bank of Foley, came to an end. The fact that the latter then sent the draft to the garnishee for collection is no evidence of any obligation remaining by reason of the draft, between the intervening claimant and the George E. Bice Potato Company. And as far as the possession of the draft by the garnishee is concerned, the latter held it merely for collection for the benefit of the intervening claimant, and there was no obligation whatever on the garnishee to the George E. Rice Potato Company. The law is well settled that there must be an indebtedness from the gámishee to the attachment debtor; also that “third parties claiming the subject-matter garnisheed may interplead and assert any interest they have therein, and may appeal from an adverse decision.” American Nat. Bank v. Western Hay & Grain Co., 69 Ill. App. 268. The latter case, although not on all fours, is quite similar to the instant case.

We find no conflict in the evidence, and certainly it sufficiently shows that when the draft was originally taken to the National Bank of Foley, the intervening claimant, it was applied on the indebtedness of the George E. Rice Potato Company. The evidence is not very full in regard to the exact manner of the application of the amount of the draft by the intervening claimant, but certainly, there being nothing to the contrary, it justifies the conclusion that the draft—in full —was applied to a reduction in the outstanding indebtedness of the George E. Rice Potato Company upon its note to the State Bank of Foreston and in part payment of the notes aggregating $10,300. Whether or not the notes of the George E. Rice Potato Company held by the State Bank of Foley aggregating $10,300 were due makes no difference. We are of the opinion that the evidence amply proves that, at a time prior to the attachment in aid, the intervening claimant became the complete legal and equitable owner of the draft. No question as to the implied authority on the part of the intervening claimant to apply the draft arises, inasmuch as the evidence affirmatively shows that the draft in question was taken to and deposited with that bank by an officer of the George E. Rice Potato Company, itself.

Considering, then, all the evidence, the only rational inference seems to lie that the George E. Rice Potato Company gave the draft to the intervening claimant, the National Bank of Foley, with the set purpose to extinguish, at that time, its indebtedness in an amount equal to the draft, and from that it follows that the intervening claimant, after it had received and credited the appellees with the amount of the draft, then owed nothing further to the appellees, and then, further, and a fortiori, the garnishee, which subsequently received the draft from the intervening claimant but prior to January 24, 1917, owed nothing to the original debtor. American Nat. Bank v. Western Hay & Grain Co., supra.

The contention is made by counsel for the appellees that the bill of exceptions is not in compliance with section 23 of the Municipal Court Act (J. & A. ¶ 3335). Inasmuch, however, as the bill of exceptions was properly signed and sealed by the trial judge and recites, just above the certificate, “Which was all the evidence offered, heard or received on the trial of the above entitled cause,” which latter quotation seems to have been overlooked by counsel for the appellees, we are of the opinion that the objection is untenable. Weingarden v. Weinberg, 203 Ill. App. 228; Denison-Gholson Dry Goods Co. v. Inger, 203 Ill. App. 130; Miller v. Anderson, 269 Ill. 608.

Owing to the errors committed in the course of the trial in finding against the interplea of the appellant, First National Bank of Foley, and in entering judgment that the right to the funds in the hands of the garnishee was in the plaintiff and not in the intervening claimant, and in entering judgment that the George E. Bice Potato Company recover $206.67 from the appellant, National Produce Bank, garnishee, for the use of the appellees, the judgment is reversed with the direction that judgment be entered in favor of the intervening claimant.

Reversed and remanded with directions.


text:
    David Jetzinger, Appellant, v. London Guarantee and Accident Company, Limited, of London, England, Appellee.
    Gen. No. 23,579.
    1. Insurance, § 397a

      —when theft policy covers theft from inclosed porch. A theft policy provided for indemnity for the loss of property by theft from “the interior of the house, building, apartments or rooms actually occupied by the assured, and described” in a succeeding section; the premises were described in such succeeding section as a “flat building,” and “2d flat.” Held, that the policy covered a theft of property from the interior of a porch completely inclosed on four sides and partially on two, and occasionally used by the family of the assured for a sewing, dining or sitting place.
    2. Insurance,- § 120*—when construction of policy most favorable to assured adopted. If an insurer against theft so draws his policy that it requires interpretation and it is fairly susceptible of two different constructions, the one which is most favorable to the assured will be adopted.
    Appeal from the Municipal Court of Chicago; the Hon. Leo J. Doyle, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1917.
    Reversed and judgment here.
    Opinion filed April 24, 1918.
    John M. Zane, for appellant; Zane, Morse & McKinney, of counsel.
    F. J. Canty and J. C. M. Clow, for appellee.

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

   Mr. Presiding Justice Taylor

delivered the opinion of the court.

Appellant, having insured his personal property situated in his apartments, or rooms, where he lived, against theft, brought suit against the appellee for $135 for the loss of a rug. The cause was tried without a jury and judgment entered in favor of the appellee. The evidence is contained in an agreed statement of facts. On January 10, 1916, appellant took out a “theft” policy in the appellee company. The policy was for $1,000 and provided that the appellee indemnified the appellant: “1. For direct loss by burglary, larceny or theft, of any of the property stated in Section IV herein as insured hereunder, occasioned by its felonious abstraction from the interior of the house, building, apartments or rooms actually occupied by the assured, and described in said Section and hereinafter called the premises, * * * by any person or persons,” etc. “2. For direct loss by damage to said property and to the said premises caused by burglars and thieves.” The premises are described in said Section IV as follows: “Location of premises insured, 5726 Michigan Ave., Chicago, Ill. The building is flat building. The premises occupied by the assured hereunder are 2d flat.”

The agreed statement of facts shows: “That said apartment consists of a front porch, six living rooms and a rear porch; that access to said rear porch is had by a staircase running up to the center of the rear of said building, which leads to a landing. To the north of said landing there is a door opening upon the said porch. Said porch is boarded off on the south side thereof, and the only means of entry upon said porch is through said door; that on the west side thereof there is a picket fence 3 feet high with a railing across; that on the north side thereof there is a picket fence of the same size with a railing thereon; that said porch faces the yard in the rear of said building on the west and north sides, and is about 20 feet above the ground; that the top of said porch is inclosed and there is a flooring on the bottom of the same; said porch is 8 feet by 10 feet and has been occasionally used by said plaintiff and his family as a sewing place, a dining place and a sitting place. The stairs leading to the third floor, in curving upward, make it possible for a person to jump down to the said Jetzinger’s porch. That the door of said porch has a lock thereon; that said porch is a private porch and the exclusive use thereof during the tenancy of said plaintiff is rightfully in said plaintiff. That about 10 o ’clock of the morning of the 19th day of June, 1916, seven small rugs had been taken from the living room of said apartment to the said porch, for the purpose of being cleaned; that before the maid employed in so doing had finished with said rug’s, she was called into a room of the said apartment to assist Mrs. Jetzinger in getting ready for a motor trip, and when she returned to said porch, a short time later, one of the rugs which she was last cleaning was missing.” It was agreed that the missing rug was of Oriental make, known as a Suruk; that it was 6 feet and 6 inches by 4 feet and 1 inch in size, and of the cash market value of $135, and that it was lost “by theft or burglary from the said rear porch.” The cause was tried without a jury and the trial judge, after holding and refusing certain propositions of law, entered judgment in favor of the appellee (defendant) with costs. ‘

The critical question in the case is whether the rug was feloniously abstracted “from the interior of the house, building, apartments or rooms actually occupied by the assured.” If the space referred to as a rear porch, which was boarded off on the south” side and could only be entered through a door in that south side, may be considered as part of the house or building or apartments, or as one of the rooms actually occupied by the appellant, it would seem to follow that the theft was covered by the policy. The porch being completely boarded up on the south side, where there was a landing, and containing a door to which the stairway ran, and having a picket fence 3 feet high, with a railing across, on the north and the west sides, and having a roof and a floor which were 8 feet by 10 feet, and as it was occasionally used by appellant and his family as a sewing, place, a dining place and a sitting place, it would seem unreasonable to conclude that it was not a room “actually occupied by the assured” and covered by Section IV of the policy. In determining the meaning of the important words it is necessary, of course, to keep clearly in mind, not only the exact phraseology of the contract of insurance, but the physical situation to which the'particular language was intended to apply. In Crosby v. City Council of Montgomery, 108 Ala. 498, where a water rate was determined by the number of rooms occupied, the court said: “We think it equally clear, that the rooms of a building, within the ordinance and contract, do not include any small apartments prepared and adapted for use as mere pantries, waterclosets or bathrooms.” Thus it will be seen that in interpreting the words, “$6 per annum for the use of such water for a building of five rooms,” the court did not even consider inclosed spaces which are generally called and known as rooms, as intended to be covered by the words of that particular contract. In that case it was necessary to give the word “rooms” a very narrow meaning. On the other hand, it would seem to bé necessary in the instant case to extend the meaning of the word “room,” as much as possible, in order to carry out the obvious intention of the contracting parties. In Haws v. Fire Ass’n of Philadelphia, 114 Pa. St. 431, it was held that a policy of fire insurance which covered a horse “contained in his (the owner’s) two-story frame bam,” could be recovered upon, even though the horse was killed when not in the bam. In reaching that conclusion the court said: “The terms and conditions to which such, an insurance is subject must be such as are reasonably applicable to such kinds of insurance upon this particular species of property, and such, therefore, as the parties may be presumed to have had in view when the contract was made. ’ ’ In the instant case, when the appellant undertook to insure his personal property, it was his purpose to provide for indemnity in case of the loss of any personal property whatever from the premises occupied by him at that time as an apartment. When the words were used,. “The building is flat building,” and the words, “The premises occupied by the assured hereunder are 2d flat,” the normal thought in his mind was that he was getting insurance covering all the premises occupied by him, including the porch room. The mere fact that in one part of the policy the words were, 11 Felonious abstraction from the interior of the house, building, apartments or rooms actually occupied by the assured,” did not change in any way the intention as expressed in the contract of insurance, that the space protected was that which he occupied as the second flat or apartment. Of course, he knew that the use of the word “interior” would exclude his right to make any claim for the loss of anything placed or hung or found on the outside of the apartment. He knew that nothing left in the passageways, back or front, was covered by the policy. In and through those passageways he had a right of ingress and egress, but that was all. There he had no right of occupation such as he had in the apartment itself.

If the insured desired to exclude some part of the space or part of the apartment which the insured had rented and which was described in the policy, it might easily have done so by apt words. As said by the court in Thompson v. Phenix Ins. Co., 136 U. S. 287: “If an insurance company intends its policy to mean otherwise, it must express that intention more distinctly than was done by the defendant. If a policy is so drawn as to require interpretation, and to be fairly susceptible of two different constructions, the one will be adopted that is most favorable to the insured.” Travelers’ Ins. Co. v. Ayers, 217 Ill. 390; Jacobson v. Liverpool, London & Globe Ins. Co., 135 Ill. App. 20.

As the words in the policy which describe the premises are “The premises occupied by the assured are 2d flat,” and as the space in question was actually occupied by appellant as part of his apartment and was completely inclosed on four sides and partly on the other two, and as the rug was taken from the interior of that space so occupied by him, it seems difficult to avoid the conclusion that the place from which the rug was stolen was covered by the policy.

The judgment of the trial court will be reversed and judgment entered here in favor of the appellant and against the appellee in the sum of $135.

Reversed and judgment here.


author: Mr. Justice O’Connor

text:
    J. W. Pendleton for use of The James Leffel & Company, Plaintiff in Error, v. Bernard Petchaft and Globe Laundry Company, Defendants in Error.
    Gen. No. 23,521.
    1. Chattel mortgages, § 267

      —when failure to give mortgagor statutory notice after sale of property is not excused: Failure to comply with, the requirements of Rev. St. ch. 95, sec. 26 (J. & A. If 7603), as to giving notice to the mortgagor within 10 days after the sale of property under a chattel mortgage, cannot be excused on the ground that the mortgagor’s whereabouts could not .be ascertained where his post office address was known.
    2. Chattel mortgages—when mortgagee not required to account to mortgagor. A mortgagee under a chattel mortgage who disposes of his mortgage for an amount in excess of that due him under the mortgage is not required to account to the mortgagor for the excess. " .
    Error to the Municipal Court of Chicago; the Hon. Johit Richardson, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1917.
    Affirmed in part, reversed in' part and judgment here.
    Opinion filed April 24, 1918.
    Rehearing denied May 10, 1918.
    Helmer, Moulton, Whitman & Whitman, for plaintiff in error; Charles B. Holton, of counsel.
    Levtsohn & Levisohn, for defendants in error; Israel Co wen, of counsel. "

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

   Mr. Justice O’Connor

delivered the opinion of the court.

Plaintiff seeks to reverse a judgment of the Municipal Court of Chicago, discharging Bernard Petchaft and Grlobe Laundry Company as garnishees. The record discloses that James Leffel & Company'obtained a judgment against J. W. Pendleton, and, after a return of an execution nulla tona, brought garnishment in the name of Pendleton for its use against Bernard Petchaft, the Grlobe Laundry Company and Michael Tauher & Company. The three defendants were served and answered that they had no money or property in their possession belonging to Pendleton. The answers were contested. Michael Tauber & Company was, on motion of plaintiff, dismissed and the court found in favor of the other two defendants.

Pendleton was the owner of the Snow Flake Laundry and executed two chattel mortgages, one to Fred W. Hunt and the other to the Fred Bentz Paper Company, upon the laundry machinery. A few days prior to December. 7, 1916, Hunt took possession of the machinery under his chattel mortgage and advertised that a sale of the same would take place on that date. Shortly before the time set for the sale, Bernard Petchaft purchased the two chattel mortgages and took an assignment thereof. His attorney then went to the Snow Flake Laundry where the machinery was located and a number of persons had assembled, to bid at the sale. The attorney was met by one Levy who stated he was from Michael Tauber &' Company, and was there to represent the Globe Laundry Company, as it desired to purchase the property at the sale. A Mr. Luckow, secretary and treasurer of the Globe Laundry Company was also present. After a conference between these parties it was agreed .that the Globe Laundry Company would purchase the two mortgages and another claim of Petchaft \s for $2,250, and to carry this out papers were drawn purporting to assign the mortgages and the other claim to Michael Tauber & Company. The Globe Laundry Company then gave its check for $500 on account of the purchase price, made payable to Michael Tauber & Company, and the check was indorsed by Levy, who said he was representing Michael Tauber & Company, and delivered over to Petchaft’s counsel. At this time Leo B. Lowenthal, an attorney, arrived at the place and presented some wage claims, and a few minutes later stated he was acting as attorney for the Globe Laundry Company, and requested that he be permitted to see the papers to ascertain whether everything was all right. The papers were examined and he told counsel for Petchaft to call next day, when the balance of $1,750 would be paid. The parties then left, and apparently nothing was done in regard to the sale under the chattel mortgage. The next day counsel for Petchaft called on Lowenthal and the latter delivered to him a check of the Globe Laundry Company for the balance of the purchase price, or $1,750. The Globe Laundry Company also gave its check for $100 to Michael Tauber & Company, which apparently was intended to be in payment for services. A few days afterwards, at 8:30 o ’clock in the morning, Lowenthal, Levy, Luckow and two other parties went to the place where the laundry machinery was located, and Levy purported to offer the machinery for sale under the Hunt mortgage. Luckow, representing the Globe Laundry Company, bid $1,200, and it was sold to him. Thereafter the machinery was removed by the Globe Laundry Company. There is no evidence that this $1,200 was ever paid, and Luclcow testified on the trial that he paid $2,250 to Petchaft and $100 to Michael Tauber & Company, for the. purpose of purchasing the laundry machinery. On the trial Michael Tauber testified that Levy had no connection with the Michael Tauber &> Company at any time, and had no authority to represent it in any of the matters mentioned or any other matter, and that the $100 was never received by Michael Tauber & Company, or any other sum. Luckow testified that he was familiar with the value of laundry machinery, as he had been in the laundry business for 37 years, and that the machinery in question was worth at the time of the sale $2,200.

Section 26, ch. 95, Rev. St. (J. & A. ¶ 7603) provides that upon the sale of another’s property under a chattel mortgage, the “mortgagee shall make out a statement showing the items of personal property sold, the names of each purchaser and the amount for which each article sold, and also an itemized statement of the necessary reasonable expenses incurred in taking, keeping and selling said property, and shall deliver the same to the mortgagor * * * in person or by mail, and if he fails so to do within ten days after said sale, the owner of said property may sue for and recover one-third of the value of the property so sold, from the mortgagee or person making said sale as assignee of said mortgagee.” The undisputed evidence is that the notice of sale provided for in the statute was not given to Pendleton, the mortgagor, and no attempt was made to do'so. The Globe Laundry Company has filed no brief in this court, but the brief on behalf of Petchaft contends that it was unnecessary to comply with this section of the statute for the reason that a few days prior to the sale Petchaft’s attorney had written Pendleton a letter, which he saw unopened at the laundry; that Pendleton was not then at his former address, a few blocks from the laundry, and that his whereabouts were unknown and could not be ascertained. In Aoskad v. Packard Motor Car Co., 195 Ill. App. 251, there was a sale of property under a chattel mortgage, and within 10 days thereafter a statement of the sale was delivered to the mortgagor, which apparently met all the requirements of section 26, except that the name of the purchaser at the sale was not given. The court there said (253): “We cannot hold there is a substantial compliance with the statute when a distinct and unambiguous requirement is omitted. If the omission of one requisite is not fatal, it could with equal force be said that with two requirements omitted there is still a substantial compliance, and if with two omitted, why not with three or more? Where shall the line be drawn? We see no reason to hold that any one of the statutory requirements may be omitted. * * * The statute places upon the mortgagee the duty of supplying this information to the mortgagor, regardless of other sources of information he may have, or resulting harm or benefit to him.” In that case a judgment for the penalty provided in section 26 was affirmed. To the same effect is Rogers v. Weller, 187 Ill. App. 314.

The statute requires notice to be given to the mortgagor within 10 days in person or by mail, and the failure to do so cannot be excused on the ground that the mortgagor’s whereabouts could not be ascertained, where the evidence is that they know his post office address. If the mortgagor had left the city for a few days, manifestly this would not excuse a compliance with the statute. The statute was not complied with, and therefore the mortgagee, or his assigns, are liable for one-third of the value of the property. Luckow testified the property was worth $2,200 ; one-third of this would be $733. The Globe Laundry Company was the assignee of the mortgage. The undisputed evidence shows that Michael Tauber & Company had no interest in it, and as the sale of the property took place after the Globe Laundry Company purchased the mortgage, and as the provisions of section 26 were not complied with, the Globe Laundry Company is liable to the mortgagee Pendleton for the use of Leffel & Company for $733. The court therefore erred in finding in favor of this defendant.

What We have said disposes of plaintiff’s contention that Petchaft should be held liable. It is argued that as Petchaft received $2,250 for the two mortgages and as there was but $1,330 due him under them, he should account for the excess to the mortgagor. We know of no reason why a mortgagee may not dispose of chattel mortgages without accounting in any manner to the mortgagor, as the latter is in no way affected. The judgment of the Municipal Court of Chicago is reversed as to the Globe Laundry Company, but in all other respects it is affirmed. As the facts are undisputed, it will be unnecessary to remand the cause, but judgment will be entered in this court in favor of J. W. Pendleton, for the use of James Leffel & Company, a corporation, and against the Globe Laundry Company, a corporation, for $773.

Affirmed, in part, reversed in part and judgment here.


text:
    William Downs, Appellant, v. Malinda Lambur, Appellee.
    Gen. No. 23,573.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Municipai, Court of Chicago, § 13

      —when statement of claim may be amended. Where an action to recover for services is brought on an implied contract and it develops that plaintiff’s claim is based upon an express contract, he may obtain leave to amend his statement of claim.
    2. Contracts—what is effect of adverse judgment in action based on theory of implied contract. Where one sues to recover for services on the theory of an implied contract and judgment is rendered against him, he cannot thereafter sue for such services on the theory of an express contract.
    Appeal from the Municipal Court of Chicago; the Hon. William N. Gem mill, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1917.
    Affirmed.
    Opinion filed April 24, 1918.
    Statement of the Case.
    Action by William Downs, plaintiff, against Malinda Lambur, defendant, to recover for work and labor and material. From a judgment for defendant, plaintiff appeals.
    William S. Corbin, for appellant.
    Pollock, Rainey & Livingston, for appellee; Robert S. Cook, of counsel.

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

   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Joseph Soukup, Executor, Appellant, v. Modern Woodmen of America, Appellee.
    Gen. No. 23,599.
    (Not to be reported in full.)
    Abstract of the Decision.
    Insurance, § 906

      —when waiver of provision as to automatic suspension for failure timely to pay monthly assessments is not shown. Where the by-laws of a benefit association provide for the payment of an assessment each month and that any member failing to pay on or before the last of the month shall be ipso facto suspended and his certificate become null and void, and that a member may be reinstated by paying all dues and assessments within 60 days from the date of suspension, provided he is then in good health, evidence that for two or more years a member had, substantially, paid his assessments quarterly, but before the expiration of the 60-day period, and that he was reported suspended each time he failed to pay during the month, is not sufficient to show a waiver of the provision as to him so as to permit a recovery on his certificate, where it appeared that the last assessment before his death was not paid until 15 days after it was due, that he was suspended and that he was not in good health when it was paid.

      Appeal from the Municipal Court of Chicago; the Hon. John K. Pbindiville, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1917.
    Affirmed.
    Opinion filed April 24, 1918.
    Statement of the Case.
    Action by Frank Soukup, plaintiff, against Modern Woodmen of America, a corporation, defendant, to recover on a benefit certificate. After the suit was instituted, the plaintiff died and his executor, Joseph Soukup, was substituted as plaintiff. From, a judgment for defendant, plaintiff appeals.
    Q.,J. Chott and Anton Zeman, for appellant.
    Truman Plantz, George G. Perrin and George V. McIntyre, for appellee.

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

   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    John Delohery, Administrator, Appellee, v. D. B. Quinlan, Appellant.
    Gen. No. 23,631.
    1. Automobiles and garages, § 3

      —when evidence shows exercise of ordinary care by child struck by automobile ambulance. In an action to recover for the death of a 10-year-old boy who, while passing on a dark and murky night, in front of a street car which had stopped at a street crossing, was struck and killed by an automobile ambulance which passed on the wrong sidé of the car at a speed of 18 to 20 miles an hour, evidence held sufficient to warrant a finding that deceased was in the exercise of ordinary care for his safety.
    2. Automobiles and garages, § 2*—when fact that driver of automobile ambulance does not see pedestrian until too late does not relieve driver from liability. Where the evidence in an action to recover for the death of a 10-year-old boy struck by an automobile shows that the accident occurred on a dark and murky night as deceased was passing in front of a street car standing at a street crossing, and that the automobile approached on the wrong side of the car at a speed of 18 to 20 miles an hour, the fact that the driver of the ambulance did not see deceased until he was 2 feet from the ambulance does not relieve defendant from liability.
    3. Automobiles and garages, § 3*—when ordinance giving ambulances right of way is inadmissible in action for personal injuries to pedestrian. In an action to recover for the death of a boy killed by being struck at a street crossing by an automobile ambulance which was being driven at a high rate' of speed past the wrong side of a street ear standing at the crossing, it is proper to refuse to permit defendant to offer in evidence an ordinance giving ambulances the right of way in the streets when conveying a patient or injured person to a hospital or when proceeding to the scene of an accident, where the evidence shows that no one was being conveyed to the hospital at the time, that the ambulance was not going to an accident and that the boy did not see it approaching.
    4. Appeal and error—when omission to caution jury to abide by court’s instructions not ground for reversal. Omission in an instruction given for plaintiff to require the jury to abide by the court’s instructions is not ground for reversal where a number of defendant’s instructions are subject to the same objection, while in others the jury are told that they must pass upon the case under the court’s instructions.
    5. Death, § 73

      —when instruction on measure of damages for death of child not erroneous. In an action to recover for the death of a 10-year-old hoy, it is not error to instruct the jury that if they find in favor of plaintiff, in assessing his damages they are not confined to the pecuniary value, if any, of the services of the deceased until he would have become 21, but might also consider the pecuniary benefit, if any, of his services to his next of kin at any age if he had not been killed.
    6. Death, § 54*—when proof of actual services rendered parents by child unnecessary as basis for estimation of damages. In an action to recover for the death of a 10-year-old boy who left surviving him a mother and father, proof of actual services rendered them is unnecessary, hut on proof of the age and relationship the jury may estimate the damages from the facts shown in connection with their knowledge and experience, and the law presumes some substantial damages to the parents from the fact of death alone.
    7. Death, § 80*—when error in instruction on damages cured. Error in failing, in one instruction, in an action to recover for death of a child, to limit the recovery to the pecuniary loss of the next of kin, is cured where such limitation is contained in instructions given at defendant’s request which supplement each other.
    Appeal from the Circuit Court of Cook county; the Hon. Benjamin W. Pope, Judge', presiding.
    Heard in the Branch Appellate Court at the October term, 1917.
    Affirmed.
    Opinion filed April 24, 1918.
    M. D. Dolan and Freeman K. Blake, for appellant.
    O. S. O’Meara, 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 O’Connor

delivered the opinion of the court.

John Delohery, as administrator of the estate of his deceased son, John Delohery, Jr., brought suit against D. B. Quinlan to recover damages for causing his son’s death. There was a verdict and judgment for $5,000 in favor of plaintiff, to reverse which defendant prosecutes this appeal.

The record discloses that on January 25, 1913, the deceased, a boy about 10 years old, while crossing Wallace street at the intersection of 38th street in the City of Chicago, was run over and killed by an ambulance belonging to defendant. Wallace street runs north and south and is intersected at right angles by 38th street. There was a double track street car line in Wallace street. The defendant was engaged in the business of undertaker and operated an automobile ambulance. On .the evening in question defendant’s servants were proceeding south in Wallace streét with the ambulance on their way to the home of a lady who was ill, for the purpose of conveying her from her home to a hospital. The ambulance turned into Wallace street at 33rd street and was proceeding south on the west side of the roadway. There was a street car a few blocks ahead of the ambulance also going south on the west track. The ambulance was being driven at a rapid " rate of speed. The street car stopped at the north crosswalk of 38th street to permit passengers to alight. Some distance north of 38th street the ambulance turned into the northbound or east street car track, and, as it came to 38th street, was going 18 to 20 miles per hour, as variously estimated by the witnesses. The deceased was just east of the street car at the time he was struck and was killed almost instantly. The ambulance turned off towards the east side of the street and came to a stop about 150 feet south of 38th street. The accident occurred shortly before 8 o’clock, the night was dark, the street full of slush, and the atmosphere damp and murky. The evidence further shows that when the ambulance was south of 37th street, the driver sounded the gong repeatedly, and there were two bright lights on the front of the ambulance. The driver and a man who was on the seat with him testified that as they approached 38th street the gong was sounded repeatedly and that they did not see the deceased boy until he appeared about 2 feet in front of the machine, and that the brakes were immediately applied, but it was impossible to stop the ambulance until it was too late.

The defendant contends that there was no evidence of due care on the part of the boy at and prior to the time of the accident, and that to sustain the judgment such proof must be made. We think there was sufficient evidence to warrant the jury in finding that the deceased was, at the time in question, in the exercise of ordinary care for his own safety. The witness Kenny was in the motor-truck business and had been a chauffeur. At the time of the accident he was walking north in Wallace street at the northeast comer of 38th street and saw the ambulance coming south and heard the gong ringing. He testified that the street car stopped at the north crosswalk of 38th street; that the ambulance was traveling "at the rate of 24 to 26 miles an hour; that the night was dark and murky and the street was covered with slimy mud; that the deceased boy was crossing Wallace street on the north crosswalk; that he walked in front of the standing street car and just as he passed the car he was ran over and killed; that the driver had turned his machine into the east track to pass the car. The motorman and street car conductor testified that the car stopped at the north crosswalk of 38th street to permit two passengers to alight. The conductor testified that he signaled the motorman to proceed, and the car started; that immediately he heard the sounding of the gong; that he turned and saw the ambulance coming; that he thought it was the fire department and immediately signaled the motorman to stop the car, which was done; that the ambulance passed to the east of the street car and the car then proceeded south; that he did not see the boy or know that any one was hurt. The motorman testified he did not see any one pass in front of the car north of 38th street and did not know that any one was injured until he got to his destination, which was several miles further south. We think it clear that the evidence was sufficient to warrant the finding of the jury that the deceased was in the exercise of ordinary care for his own safety.

The defendant further contends that it was impossible to prevent the accident after the driver saw the boy and therefore defendant is not chargeable with negligence. It would be a strange rule of law that would permit the defendant to drive in a public street in Chicago at a reckless rate of speed, going around on the wrong side of street cars in utter disregard of the rights of persons in the street, as the evidence conclusively shows was done in this case, and then permit him to exonerate himself for the fatal accident, for the sole reason that he did not see the boy until he was but 2 feet from the ambulance.

It is also contended that the court committed error in refusing to permit the defendant to offer in evidence an ordinance of the City of Chicago, which provided that ambulances shall have the right of way in the streets of the city when conveying any patient or injured person to a hospital, or when proceeding to the scene of an accident. In support of this the argument seems to be that the deceased boy should have gotten out of the way. The ordinance manifestly has no application "to the facts in this case. No one was being conveyed to a hospital; nor were they proceeding to the scene of an accident. Moreover, it is clear that the boy did not see the ambulance until it was driven upon him in the most reckless manner. In no theory was the ordinance admissible.

Complaint is also made of the giving of instructions numbered 3, 5 and 8, offered on behalf of plaintiff.

Instruction No. 3 told the jury that if they believed from a preponderance of the evidence the deceased, while in the exercise of ordinary care for his own safety, was killed by reason of the negligence of the defendant as alleged in the declaration, then the verdict should be against the defendant. The complaint is that it did not require the jury to abide by the court’s instructions. A number of instructions given by the defendant are subject to the same objection, while in others the jury were clearly told that they were required to pass upon the case under the instructions of the court. There is no merit in this argument.

By instruction No. 5, the jury were told that if they found in favor of plaintiff, in assessing his damages they were not confined to the pecuniary value, if any, of deceased’s services until he arrived at the age of 21 years, but they might also consider the pecuniary benefit, if any, of the deceased’s services to his next of kin at any age had he not been killed. It is argued that the instruction does not confine the jury to the evidence, “and assumed that the deceased boy would have rendered services to his next of kin, both before and after he reached his majority”; that it relieves the jury from considering the pecuniary injuries which the next of kin were required to show in order to recover. The deceased was about 10 years old. He left him surviving his father and mother. It was therefore unnecessary to make proof of actual services rendered. 'Where proof of the age and relationship is made, the jury may estimate the damages from the facts proven in connection with their knowledge and experience, and the law presumes some substantial damages to the parents from the fact of death alone. City of Chicago v. Hesing, 83 Ill. 204; City of Chicago v. Scholten, 75 Ill. 468; Dukeman v. Cleveland, C., C. & St. L. Ry. Co., 237 Ill. 104.

Complaint is made of instruction No. 8, because it did not confine the jury to the evidence, nor limit the damage to the pecuniary loss to the deceased’s next of kin. The instruction does refer to the evidence, but is subject to the second objection urged, and if this were the only instruction it might constitute reversible error. However, by instruction No. 11, given on behalf of the defendant, the jury were told that they could not allow any damages by way of solace for grief or wounded feelings or bereavement of the plaintiff or the next of kin of the deceased; and by instruction No. 25, the jury were expressly told that the damages were limited to pecuniary loss, if any, to the next of kin of the deceased, as shown by the evidence, and that only such pecuniary damages should be allowed-; that nothing should be allowed for pain and suffering, grief, bereavement, wounded feelings, loss of society and domestic and social happiness. It is contended, however, that these instructions did not cure the error complained of, for the reason that it cannot be known whether the jury followed instructions Nos. 11 and 25 or the instruction No. 8. There is no inconsistency in these "instructions; they supplement each other. Instruction No. 8 did not limit the damages to the next of kin or in any other manner, but this omission is covered by the two instructions given on behalf of the defendant, and it is clear that defendant was in no way prejudiced.

We have carefully considered the other points made in reference to the giving and refusing of instructions and are of the opinion that they are without merit. On the whole we think the instructions were more favorable to the defendant than was warranted.

It is also urged that the argument of counsel for plaintiff was. improper and constitutes reversible error; that the verdict is the result of passion and prejudice. Several pages of the abstract are taken up with a quotation of the argument, but no objection was made, except to that part where plaintiff’s counsel argued that the little boy had his hand up just before he was struck, “like that (indicating) begging him to stop.” Following these remarks a discussion took place between the court and counsel, which we think removed any prejudicial error in the argument. The • case is not at all a close one. on the facts, but the liability is clear. On the question of the amount of the verdict the earlier decisions in this State are of little assistance. We cannot be unmindful of the fact that money value of life and health is appreciating, and the purchasing power of money steadily depreciating during recent years. Under all the circumstances, we are clear that the verdict is not at all excessive.

The judgment^ of the Circuit Court of Cook county is afifjrmed.

Affirmed.


text:
    Sam Lapin, Appellee, v. Frank Hunt, trading as New Jackson Hotel, Appellant.
    Gen. No. 23,900.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. John F. Haas, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1917.
    Affirmed.
    Opinion filed April 24, 1918.
    Statement of the Case.
    Action by Sam Lapin, plaintiff, against Frank Hunt, trading as New Jackson Hotel, defendant, to recover the value of property alleged to have been lost while in defendant’s custody. From a judgment for plaintiff for $200, defendant appeals.
    H. K. Galpin and S. G. Hamblen, for appellant.

      Abstract of the Decision.
    Innkeepers, § 7

      —when evidence supports verdict for loss of diamond of guest. In an action to recover for the loss of a diamond stud left by a hotel guest in the custody of an employee of the proprietor, evidence examined and held sufficient to support a verdict for plaintiff.
    Alvin E. Stein, for appellee.

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

   Mr. Justice O’Connor

delivered the opinion of the court.


author: Mr. Justice Thomson

text:
    Mrs. Vaclav Rolenee, Defendant in Error, v. Marie Rolenee, Plaintiff in Error.
    Gen. No. 23,437.
    1. Appeal and error, § 360*—when release of errors in cognovit not conclusive upon maker of judgment note. The release and waiver of errors in a cognovit on a judgment note are not conclusive upon the maker as to an error going to the question of the jurisdiction of the court to enter an order vacating a judgment entered at a previous term.
    2. Appeal and error, § 783*—when hill of exceptions sufficient. On writ of error to reverse a judgment on a judgment note, hill of exceptions examined and held sufficient to present the questions involved.
    3. Appeal and error, § 1703*—what does not constitute waiver of claim of error in vacating judgment. The mere fact that a party, who refuses to testify or to offer evidence, is present in court at the hearing of a case on its merits, is not such a participation in the hearing as amounts to a waiver of his contention that the court erred in allowing a motion to vacate a judgment entered in his favor at a previous term of court.
    4. Judgment, § 78*—when for costs not vacated. The equitable power of a court to open, at a subsequent term, a judgment by confession based upon a cognovit will not be extended to a judgment for costs obtained by a defendant against the plaintiff.
    5. Judgment, § 298

      —when may be set aside after lapse of term. Generally a court is without jurisdiction to set aside a judgment after the lapse of the term at which it was rendered, except as authorized by Rev. St. ch. 110, sec. 89 (J. & A. ¶ 8626), providing for the correction of errors in fact.
    6. Appeal and ebbob, § 1330*—when presumed court not acting beyond jurisdiction in setting aside judgment. Where a court enters an order setting aside a judgment entered at a previous term, it will not be presumed that it was attempting an act in excess of its jurisdiction but that it was acting pursuant to the authority given by Rev. St. ch. 110, sec. 89 (J. & A. ¶ 8626), providing for the correction of errors of fact at a subsequent term.
    7. Judgment, § 272*—what is purpose and effect of statute abolishing writ of error coram nobis. While Rev. St. ch. 110, sec. 89 (J. & A. ¶ 8626), abolished the writ of error coram nobis, it did not abolish the essentials of the proceedings incident to that writ, but they remain the same in nature.
    8. Judgment, § 274*—what is nature of motion to correct errors in fact in proceedings. A motion to correct errors in fact in the proceedings of courts of record under Rev. St. ch. 110, sec. 89 (J. & A. ¶ 8626), is the commencement of a new suit in which new issues are =made up, and on which there must be a finding and judgment, and the motion stands in the place of the declaration.
    9. Judgment, § 274*-—necessity of toritten motion for correction of errors in fact. The trial court has no jurisdiction to enter an order under Rev. St. ch. 110, sec. 89 (J. & A. ¶ 8626), relating to correction of errors in fact in proceedings in courts of record, where no written motion is filed.
    10. Appeal and ebbob, § 495*—when objection as to absence of written motion to correct error of fact may be first raised on appeal. On appeal from a judgment entered under Rev. St. ch. 110, sec. 89 (J. & A. ¶ 8626), relating to correction of errors in fact in proceedings in courts of record, the objection may be raised for the first time that no written motion was filed in the trial court.
    11. Judgment—when party not precluded from obtaining relief by motion to correct errors in fact. The fact that plaintiff, in a proceeding under Rev. St. ch. 110, sec. 89 (J. & A. ¶ 8626), relating to correction of errors in fact in proceedings in courts of record, failed to file a written motion, which objection is raised on appeal, will not thereafter preclude him from obtaining the relief sought if he presents his motion in writing within the time fixed by the statute and complies with its-other requirements.

      Error to the Circuit Court of Cook county; the Hon. Richabd S. Tuthill, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1917.
    Reversed.
    Opinion filed April 24, 1918.
    Anton Pecival, for plaintiff in error; James S. Wight, of counsel.
    William Annan Taylor and Philip H. McGrath, for defendant in error.

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

   Mr. Justice Thomson

delivered the opinion of the court.

The defendant in error obtained a judgment in the trial court on March 19, 1915, for the sum of $243.93 against the defendant upon a judgment note purporting to be signed by the defendant and her husband, then deceased. On April 15, 1915, on motion of the defendant, Marie Bolenee, the trial court entered an order staying execution upon the judgment, allowing the judgment to stand as security, and giving defendant leave to file her appearance and to plead within 10 days, which time was later extended 5 days by order of court. The defendant filed her appearance April 15th and her pleas April 29th.

The next order entered by the trial court was under date of October 27, 1916, and, although it is referred to by both parties and treated as an order of dismissal of the cause, it reads as follows:

“This cause, being called for trial, come the parties to this suit, by their attorneys respectively. Thereupon, upon agreement of the parties to this suit, now here made in open court, this cause is submitted to the court for trial without a jury, and the court now, after hearing all the evidence adduced, and being fully advised in the premises, finds the issues for the defendant.

“Therefore, it is considered by the court that the judgment heretofore, on March 19, A. D. 1915, rendered herein, in favor of the plaintiff and against the defendant, by confession, be and the same is hereby set aside and vacated, and the defendant have and recover of and from the plaintiff here costs and charges in this as well as in that behalf expended, and have execution thereof.”

Thereafter, on January 10, 1917, pursuant to notice served on the attorney of the defendant on the previous day, the plaintiff presented to the court a motion to set aside the order of October 27th, which motion was allowed, the order of the court being as follows:

1 ‘ On motion of attorney for the plaintiff, it appear-' ing to the court that- said cause had, through inadvertence and mistake on the part of the clerk of this court, been wrongfully placed on the court call under an improper and misleading designation and an order improperly entered herein dismissing said- cause, and that the court was without jurisdiction to enter said order of dismissal.

“It. is hereby ordered that the records of this court be corrected and that said order sustaining the motion to vacate said judgment and dismiss said suit, be and the same is hereby vacated, set aside and expunged from the records of this court and said cause hereby placed on the regular trial call of this court. To which order, vacating said order of dismissal, the defendant duly excepted and it is further ordered that defendant have twenty days within which to file a bill of exceptions herein.”

It appears from the record that the cause came on to be heard further on its merits on March 20, 1917, on which day the trial court entered an order reciting that leave was given the defendant to present her evidence and show any defense she might have to the note sued on, but that she made default or refused to testify or offer any evidence of any defense and that the plaintiff offered proofs on her part. The order concluded: “That the plaintiff’s judgment (of March 19, 1915) stand, and that the plaintiff be and she is hereby given leave to proceed by execution or otherwise to enforce said judgment.”

The defendant contends that the order of the trial court entered March 20,1917, was void and of no effect for the reason that it is based upon the order of the trial court entered January 10, 1917, which order was void by reason of the fact that the court was then without jurisdiction to enter an order vacating the judgment which the court had entered in favor of the defendant at a previous term, and that the judgment should be reversed.

It is urged by the plaintiff that the release and waiver of errors in the cognovit, upon which the judgment was entered, are conclusive upon the defendant as to any and all errors in the record. The error complained of by the defendant in the ease at bar is not such an error as is released by a waiver of errors in a cognovit. Such a waiver of errors is not conclusive upon the maker as to alleged errors going to the question of the jurisdiction of the court to enter the judgment. Krickow v. Pennsylvania Tar Mfg. Co., 87 Ill. App. 653; Little v. Dyer, 35 Ill. App. 85. It is of such an error that the defendant here complains.

It is next urged by the plaintiff that the record presents no question to this court for review inasmuch as the bill of exceptions is insufficient. The bill of exceptions includes all that took place before the trial court on January 10,1917. It recites that on that date the plaintiff moved the court to vacate the order of October 27th, and it includes the notice which the plaintiff then exhibited to the court, the affidavit exhibited by the plaintiff, and a recital of the testimony submitted to the court in the shape of a notice of the court call of the trial judge in question, published in the Chicago Daily Law Bulletin of October 26th, and also notice appearing the following day, in the same publication, reciting the,orders which had been entered by the said judge on October 27th. The bill of exceptions concludes with a recital of the order entered by the court January 10th and the exception of the defendant to the entering of the same. We deem this bill of exceptions sufficient to present to this court the questions which are involved in this writ of error. Chase v. De Wolf, 69 Ill. 47; Zimmerman v. Couran, 107 Ill. 631, 637; Baldwin v. McClelland, 152 Ill. 42.

It is next contended by the plaintiff that the defendant waived any error which the trial court may have committed in entering the order of January 10th by participating in a trial of the issues on the merits the following March. This contention of the plaintiff is not borne out by the record, from which it appears that, although the defendant was in court at the time the court took up the case for further consideration, March 20, 1917, and although the defendant was given leave to show any defense she might have to the note, she declined to testify or offer any evidence of any defense. Her mere presence in the court, as indicated by the record, was not such a participation in the hearing of the merits as would amount to a waiver of her contention that the court erred in entering the order of January 10th, setting aside the previous judgment which had been entered in her favor.

In answering the defendant’s contention that the court was without jurisdiction on January 10th to set aside the judgment which had been entered in October, at a previous term of the court, the plaintiff urges that courts of law exercise an equitable jurisdiction over judgments entered by confession, even though the term has lapsed at which that judgment was entered. This is true, but it is not applicable to the issue involved here. The equitable power of the court to open a judgment by confession has nothing to do with its power to set aside a judgment in favor of the defendant against the plaintiff in such an action. The reasons for extending equitable powers to the court, in case of a judgment by confession based upon the cognovit, are in no way present in the case of a judgment against the plaintiff for costs.

The relief sought by the plaintiff, in the motion of January 10th, and which the trial court attempted to give, by the order of that date, was such as could only be obtained by a motion coming within the provisions of section 89, ch. 110, Ill. Rev. St. (J. & A. ¶ 8626). As a general rule, a court is without jurisdiction to set aside a judgment after the lapse of the term at which it was rendered, but the section referred to creates an exception to that general rule and provides that all errors in fact committed in the proceedings of any court of record and which, by the common law, could have been corrected by a writ of error coram nobis, may be corrected by the court in which the error was committed upon motion, in writing, made at any time within 5 years after the rendition of final judgment in the case, upon reasonable notice. As has been stated by this court before, in connection with a similar case, we will not presume that the court attempted, at a term subsequent to the term at which the judgment sought to be set aside was entered, to set it aside on a motion entered in that case, in view of the well-settled law that it had then no jurisdiction to enter such an order, but we must presume that, in entering the order, the court was attempting to exercise the jurisdiction which is provided for by section 89. It is contended by the defendant that, even though the motion is considered as having been made under the provisions of section 89, it is insufficient by reason of the fact that it does not meet the requirements of that section, as it must if it is- to be upheld as one authorized by that section. While the statute abolished the writ of error coram nobis, it did not abolish the essentials of the proceedings incident to that writ, which, in nature, remain the same. Mitchell v. King, 187 Ill. 452, 457. Such a motion as this is the commencement of a new suit, in which new issues are made up, on which there

must be a finding and a judgment, and the motion stands in the place of the declaration. It is pointed out by the defendant that the motion in question, the allowing of which by the trial court resulted in the setting aside of the judgment previously entered by the court, was not in writing, as required by the statute. A similar motion, in a case very much like the case at bar, was held to be insufficient for this reason, and an order of the trial court' allowing the motion and setting aside the judgment was reversed in the case of Barnes v. Chicago City Ry. Co., 185 Ill. App. 148. Plaintiff contends that defendant is raising this question for the first time in this court and that therefore it should not now be entertained, citing Domitski v. American Linseed Co., 221 Ill. 161. That case is not in point. There a written motion was filed which was allowed. On appeal the .plaintiff in error contended that the. motion did not on its face disclose any error in fact, and that the trial court was therefore in error in entertaining it as a motion made under this provision in the statutes. The court held that the question thus raised was one of law, and that in order to preserve it for review the plaintiff in error should, under the rules of practice applicable to suits at law in which declarations are filed, have saved that question in some appropriate way recognized by law, and that' inasmuch as he had failed to do so, the judgment of the trial court would have to be affirmed.

In the case at bar we have a record as to this motion, analogous to one in a suit at law showing no declaration had ever been filed, and the court had entered judgment for the plaintiff on his oral pleading over defendant’s objection, and, to which judgment, defendant had preserved his exception. The plaintiff never filed his written motion as the statute requires. It is not to be found in the record which is certified to be complete. Such being the case, the trial court never, had any jurisdiction to enter its order of January 10th, by virtue of the provisions of the statute referred to. That being the case, that order was void and of no effect and all subsequent-proceedings are also void.

However; the plaintiff will not be precluded from having the matter he sought to get before the court by his motion of January 10th, duly considered and passed upon, provided he presents his motion within the time allowed under section 89 and complies with the requirements therein specified.

For the reasons given, the judgment of the trial court will be reversed.

Reversed.


text:
    W. E. Marquam, Appellee, v. Domestic Engineering Company, Appellant.
    Gen. No. 23,527.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Sheridan
    B. Fry, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1917.
    Reversed.
    Opinion filed April 24, 1918.
    Statement of the Case.
    Action by W. E. Marquam, plaintiff, against'Domestic Engineering Company, a corporation, defendant, to recover damages for breach of a contract of employment. From a judgment for plaintiff for $300, defendant appeals.
    Moses, Rosenthal & Kennedy, for appellant; Walter Bachrach and Henry Jackson Darby, of counsel.
    Beach & Beach, for appellee.

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

   Mr. Justice Thomson

delivered the opinion of the court.

Abstract of the Decision.

1. Master and servant, § 14 -—what constitutes hiring at will. A contract which reads that defendants “desire your [plaintiffs] seryices as editor * * * beginning the second week in October, for which we agree to pay you $50.00 per week. It is also understood that if, by the first of January, you can handle to advantage the combined editorial work and the business management, we will pay you, beginning that date, three thousand dollars per year,” constitutes a hiring at will, both as to the term of the employment and the amount of the compensation.

2. Master and servant, § 84*—when evidence does not support verdict for plaintiff for services. In an action to recover an amount claimed to be due under a contract of employment, evidence held insufficient to support a verdict for plaintiff.


text:
    Kive Siegel et al., trading as K. Siegel & Sons, Appellees, v. Hyman Cohen, Appellant.
    Gen. No. 23,534.
    (Not to he reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Dennis W. Sullivan, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1917.
    Affirmed.
    Opinion filed April 24, 1918.
    Statement of the Case.
    Action by Kivé Siegel, Joseph J. Siegel and Harry Siegel, copartners, trading as K. Siegel & Sons, plaintiffs, against Hyman Cohen, defendant, for goods sold and delivered. From a judgment for plaintiffs for $550, defendant appeals.
    Nicholas J. Pritzker, for appellant.
    Kelly, Hale, Dammann & Coolidge, for appellees.

      Abstract of the Decision.
    1. Payment, • § 19

      —when debt of one in failing circumstances not discharged by partial payment. The rule that the payment and acceptance of any amount less than the amount due the creditor, made by a debtor who is in failing circumstances, discharges the whole debt, does not apply where it not only does not appear that the creditor was in failing circumstances, but the evidence is such that a contrary presumption arises, and where it also appears that the creditor advised the debtor that the amount would not be accepted in full payment and the debtor agrees to pay the balance.
    2. Accord and satisfaction, § 4*—when retention of check does not constitute. Where a debtor sends his creditor a check for an amount less than that claimed, with the statement that it is sent in full payment, and the creditor retains the check without depositing or cashing it, and later advises the debtor that he cannot consider the remittance as a payment, there is no accord and satisfaction.
    3. Accord and satisfaction, § 4*-~when retention of check constitutes. If there is a bona fide dispute between a creditor and his debtor as to the amount due and the debtor remits his check for less than the amount claimed, with the statement that it is sent in full payment of the account and the creditor deposits or cashes the check, there is an accord and satisfaction.
    4. Accord and satisfaction, § 3*—when retention and cashing of check does not constitute. If the amount of an indebtedness is not disputed and the debtor sends the creditor a check for less than the amount with the statement that it is sent in full payment and the creditor cashes the check and thereupon, or within a reasonable time, notifies the debtor that it is not received in full payment, there is no accord and satisfaction.
    5. Accord and satisfaction, § 3*—what is not unreasonable retention of check so as to constitute. The retention, by one residing in New York, of a check, received December 24th from a Chicago debtor, until January 5th, is not a retention for such an unreasonable time as to create an accord and satisfaction of the debt for which the check was given.
    6. Accord and satisfaction, § 8*-—toho has burden of proving. The burden of proving an accord and satisfaction is on the party pleading it.

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

   Mr. Justice Thomson

delivered the opinion of the court.