text:
    Citizens Bank of Johnston City, Illinois, Appellant, v. John E. Carr, Appellee, Impleaded with Flora Carr.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Williamson county; the Hon. Benjamin W. Pope, Judge, presiding.
    Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed July 21, 1915.
    Statement of the Case.
    Action by Citizens Bank of Johnston City, Illinois, against John E. Carr, impleaded with his wife, Flora Carr, on a promissory note. From a judgment for defendant, plaintiff appeals.
    Appellant was a banking institution located at Johnston City. Ed Duncan was president of the bank and Mark Duncan, his son, cashier. On September 15, 1909, appellee, who was a stockholder and depositor of the bank, obtained a loan from appellant and gave the note in question for $3,000, due ninety days after date, with his wife, Flora Carr, as surety. At the time the note was given, appellee owned stock in the bank and kept a checking account. He made deposits from time to time, drew checks against his account, and, it seemed, paid little attention to his account. He was also president of a private bank at Loogootee, Illinois. Bex Duncan, another son of Ed Duncan, was the cashier of appellee’s bank at Loogootee. Prior to the time of bringing this suit the bank requested appellee to reduce his overdraft. Appellee denied that he had an overdraft at the bank and, upon investigation, it was found that there were charged to his account many items which he claimed he had never authorized and of which he had no knowledge. Appellee denied that he authorized charging of the various items to his account, and denied that he received any credit for or benefit from the money sent to his bank at Loogootee at the request of Bex Duncan, the cashier.
    In August, 1911, appellee paid appellant $1,000, and later he transferred to it eighteen shares of bank stock, for the sum of $1,800, for which he was to receive credit. There were also dividends on the stock he transferred amounting to $72, and dividends on other stock which he held amounting to $60, which were placed to his account, and he claimed to be entitled to credit for fire and burglary insurance paid by him for the benefit of the bank amounting to $82.36. The total' sum thus paid by him amounted to $3,014.36. Appellant admitted the receipt of the $1,000 in money, the $1,800 for the bank stock, dividends amounting to $132, and did not dispute the claim for money paid for burglary and fire insurance, but stated that no claim was ever made for those items. Appellant contended, however, that the $1,000 was to pay a note held by Ed Duncan for money loaned by him to appellee and that the other money was to apply on the overdraft of appellee.
    The principal questions were the correctness of appellee’s account as kept by the bank-and whether the payments made by appellee should be applied on the note or the overdraft, if there was an overdraft. Ed Duncan, the president of the bank, and Mark Duncan, his son, the cashier, testified to the different transactions with appellee and stated that they had repeatedly requested appellee to take up his overdraft and that the payments made were for that particular purpose. They further testified that all of the items charged to appellee’s account were authorized by him, with the possible exception of one or two, and that he had full knowledge that the payments had been credited on his overdraft. Appellee directly contradicted the statement of both these witnesses. Mark Duncan testified that while Bex Duncan was cashier of the Loogootee bank he requested him to send to appellee’s bank at Loogootee $2,000, which was done, and the same charged to the account of appellee. Appellee contended that Bex Duncan had no authority to get the money and that he had never received any credit for it at the Loogootee bank. Appellee was asked concerning the whereabouts of Bex Duncan and stated that he had gone away shortly after the case came up. Appellant objected to this testimony, but his objection was overruled. Appellee further testified that in a conversation at the bank he told Ed Duncan that “they had skinned me out of a lot of money,” and “that Bex Duncan had done it.”
    Abstract of the Decision.
    1. Appeal and ereoe, § 1410

      —when judgment not disturbed. A judgment should not be reversed upon appeal unless it is manifestly against the weight of the evidence.
    2. Payment, § 15*—when finding sustained as to misapplication. A finding that the officers of a bank improperly applied payments on an alleged overdraft of a customer instead of on a note which he owed to the bank, and that the customer was not indebted on such overdraft, is sustainable in an action by the bank on the note, where the entire evidence hinges upon statements of two officers of the bank as to the correctness of the application of payments and the amount of overdraft and the denial of such statements by defendant.
    3. Blanks and banking, § 145*—what evidence admissible on claim of overdraft. Evidence that a witness for the plaintiff had gone away shortly before the trial of a case involving a promissory note is admissible in an action by a bank against a customer on such note, where the defendant claimed that the plaintiff’s officers had improperly applied payments on an alleged overdraft instead of on the note, and that he did not have as much of an overdraft as was claimed by the bank, and that such witness, who was the cashier of a bank for defendant at another town, had no authority to borrow money from the plaintiff and have it, charged to the defendant’s account.

      William H. Warder, for appellant.
    Denison & Spiller, for appellee.

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

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

   Mr. Presiding Justice McBride

delivered the opinion of the court.

4. Banks and banking, § 145 —what evidence admissible to rebut claim of overdraft. In an action by a bank against a customer on a promissory note, and in which the correctness of an overdraft, the authority of an employee of defendant, who was cashier of defendant’s bank in another town, to borrow money of plaintiff and charge it to defendant’s account, and the alleged failure to credit payments on the note instead of on the overdraft were involved, evidence by the defendant as to a conversation, with an officer of the plaintiff regarding the correctness of the overdraft in which he stated that such cashier had “skinned” him out of a lot of money, is admissible, especially where both parties had testified concerning the correctness of the overdraft.

5. Appeal and ekkob, § 1523 —when instruction harmless. An instruction in an action by a bank against a customer on a note, the defense to which was that the bank had improperly applied payments on an alleged overdraft instead of on the note, and that the customer was not indebted on such overdraft, that if plaintiff had overcharged defendant’s account without his permission or authority to an amount equal to a certain sum and defendant had not afterwards ratified the action of the bank in so doing then defendant would be entitled to have such sum credited on the note, criticized, but held to be harmless because of the fact that the entire overdraft was disputed, instead of part of it.


source: Caselaw Access Project

author: Mr. Presiding Justice Fitch

license: Public Domain

text:
    Metropolitan Trust & Savings Bank, Conservator, v. Mary E. Perry. Cora Bloomhuff, v. Mary E. Perry. In re Petition of Cora Bloomhuff, Appellee, v. Agnes K. Rogers, Administratrix, Appellant.
    Gen. No. 19,341.
    1. Appeal and ebbob, § 1271

      —what presumed in support of decree. When a party brings to the Appellate Court a praecipe record merely, it will he presumed in support of the decree that the portions of the record omitted, if incorporated into the transcript filed, would sustain the findings of fact found in the decree.
    2. Equity, § 401

      —how jurisdiction obtained over master. Jurisdiction over the person of a master in chancery, who is a party defendant in a petition filed in an action, in the conduct of which such master collected illegal fees, for the recovery of the amount wrongfully collected as fees, is obtained by the personal service upon him of a notice stating that at a certain time the solicitor for the petitioner would ask that a rule he entered against him to answer the petition “this day filed,” and by the entry of a rule in accordance with such notice.
    3. Appeabance, § 15

      —when jurisdiction over person waived. An objection to the jurisdiction of a court of equity over the person of a master of chancery,—who is a party defendant to a petition filed in the same action in which he acted as master, to recover fees illegally collected, and who has been personally served by a notice stating that at a certain time the solicitor for the petitioner would ask that a rule be entered against him to answer the petition “this day filed,” a rule being entered in accordance with such petition —is waived by the filing of an answer to the petition after the overruling of a demurrer thereto.
    4. Equity, § 401

      —when equity may compel master to refund illegal charges. A court of equity has the power to compel one of its masters -in chancery to refund fees illegally collected, by a summary proceeding, conducted in and as a part of the same suit in which such illegal fees were collected.
    5. Equity, § 394

      —what is status of master. A master in chancery is an officer of the court.
    6. Equity, § 397

      —when agreement loith master for compensation illegal. It is illegal for a master in chancery to demand, or request by agreement between attorneys, that his fees be prepaid, as they should be taxed as costs.
    7. Equity, § 396

      —what are fees for taking testimony. The fees of a master for taking and reporting testimony are a fixed amount provided by statute.
    8. Equity, § 399

      —how fees of master for reporting on issues fixed. The fees of a master in chancery for examining the issues referred to him and reporting the conclusions thereon are wholly within the discretion of the court.
    9. Equity, § 401

      —when evidence shows that master required an agreement for fees. In a suit in equity in which an order was made requiring a master in chancery to refund part of the fees collected, evidence held to sustain a finding that the master requested that an agreement be made as to his fees before he filed his report and that he refused to file his report until his fees were paid.
    10. Contracts, § 139

      —when contract void as against public policy. Any contract by which a public officer is to accept or receive for his services more than his statutory fees is contrary to public policy and void.
    11. Equity, § 401

      —when petition to require master to refund fees not barred by laches. A party to an action who paid to a master in chancery, before the filing of his report, fees in excess of what he was entitled to, is not guilty of laches in filing a petition to recover such fees where such petition is filed within six months after the payment of such fees, and less than one month after the entry of the final decree.

      Appeal from the Circuit Court of Cook county; the Hon. Edwabd M. Mangan, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1913.
    Affirmed.
    Opinion filed June 17, 1915.
    Statement by the Court. This is an appeal by George Mills Eogers, late master in chancery of the Circuit Court of Cook county, from an Order or judgment of that court requiring him to pay back to Cora Bloomhuif, appellee, part of the amount collected by him from her as master’s fees in a suit in equity to which she was a party.
    It appears that said last mentioned suit had been referred to said master to take proofs and report the same with his conclusions of law and fact thereon, that he had taken a considerable volume of testimony, had made and filed his report, and that a final decree had been entered therein on November 23, 1912, which made no mention of the master’s fees. On December 6, 1912, Mrs. Bloomhuif filed her intervening petition in the same suit, in which she averred that no order had ever been entered fixing the amount of the master’s fees, but that notwithstanding that fact she had paid to the master at his request the sum of $1,355.13 for his services as master; that the report of the master was “signed and announced” on May 10, 1912; that objections were filed thereafter, which were overruled on May 20, 1912, and that the report was filed in the clerk’s office on June 24,1912, at 5:26 p. m.; that prior to May 10, 1912, the master informed her that he would not make his report unless an understanding was had as to the payment of fees; that soon after, and before the overruling of the objections to the report, she paid $442.13 at the master’s request, on account of fees; that thereafter, and before the report was filed in the clerk’s office, the master presented a bill for $913 for additional fees, and demanded payment thereof before he would file his report in court, whereupon she agreed to pay him $300 in cash, and to give her promissory notes for $613, signed by herself, her husband and her two sons, which agreement was carried out and the amount thus demanded was after-wards paid in full to the master; and that the reasonable fees of the master did not exceed $550. The petition prays that a rule be entered on the master to file an itemized statement of his fees and charges: that his fees be fixed and taxed by the court, and that the master be required to refund to the petitioner any excess of moneys received by him over and above the sum to be taxed by the court.
    Upon filing his petition and on notice to the master, a rule was entered on him to file an itemized statement of his fees and charges, and to answer the petition, within fiye days. In response to the rule, the master filed a statement of his fees, consisting of two items: First, fees “for taking and reporting testimony,” $272.63; and second, fees for “examining questions in issue referred, and reporting conclusions thereon, including argument by the solicitors for the respective parties,” $1082.50. At the same time, the master filed a demurrer to the petition, stating that he is not a party "to the suit in which the" intervening petition was filed, and has no interest therein, and that no case is stated in the petition such as entitled the petitioner to any relief in a court of equity. After argument this demurrer was overruled, and the record shows that on motion of the master he was given leave to file and filed an answer to the petition.
    His answer asserts that “not waiving his rights under his demurrer heretofore filed,” he admits that the allegations of the petition “with reference to the amount of his bill for services, the amounts paid thereon and the giving of said notes” are substantially true, but denies that he ever made any demand that such fees be paid, and denies that he ever informed the petitioner that he would not make his report unless an understanding was had with reference to the payment of his fees, and denies that he ever made the payment of his fees a condition of the filing of such report. The answer then states that after a preliminary draft of his report had been prepared by him, he heard arguments at great length and gave a very large amount of time to the “further consideration of the questions involved;” that he then prepared another report; that “sometime prior” to this, the solicitors for both parties were advised that the total fees of the master would amount to about $1,400, that “the whole matter of the fees, as. to the amount thereof, and the time and manner of their payment, was discussed, ’ ’ and that on the suggestion of one of the solicitors, “voluntarily made,” it was agreed between them “that when the final report should be completed, the party in whose favor the report should be, would advance the said master’s fees and take up said report;” and that the fees were paid in pursuance of such agreement. The answer further states that no objection was ever made to his hill for fees, that no request or suggestion was ever made by any of the parties that the amount of his fees he fixed by the court, that no motion or effort was made to have the amount so fixed, and that at the time the final decree was entered, the solicitor for the intervening petitioner stated to the court “that his client had paid the fees and that there was no desire on his part that the decree make any reference thereto;” that said fees were and are only a reasonable charge for the services performed, that all the parties were satisfied that they were reasonable and justifiable, and that they were paid voluntarily and without any duress.
    In January, 1913, the court heard evidence concerning the matters set forth in the intervening petition and answer, and entered the order complained of, in which the court finds “that the fees of George Mills Rogers in this cause be fixed at $902.63, for all services rendered in this cause, being $272.63 for taking and reporting testimony, and $630 for all other services,” and that as the intervening petitioner had paid $1,355.13 to the master, she is entitled to. recover from him the difference, amounting to $452.50. Pending the hearing of this appeal in this court, the death of George Mills Rogers was suggested, and Agnes K. Rogers, administratrix, was substituted as appellant.
    George Mills Rogers, pro se.

    David K. Tone, for appellee.

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

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

   Mr. Presiding Justice Fitch

delivered the opinion of the court.

It is urged that the evidence taken upon the hearing shows that the fees charged and collected by the master were reasonable and proper, in view of the character of the case, the kind of services rendered and- the amount of time consumed. The transcript of the record, however, does not contain all the evidence. It shows upon its face that the court considered as part of the evidence, the pleadings and the master’s report containing the evidence taken in the main case, and none of such pleadings, and none of the evidence heard in the main case, is in the transcript of the record before us. The certificate of the clerk is that the transcript is complete “according to praecipe for record filed herein. ’ ’ Where a party brings to this court a praecipe record merely, it will be presumed in support of the decree that the portions of the record omitted, if incorporated into the transcript filed here, would sustain the findings of fact found in the decree. Patterson v. Johnson, 214 Ill. 481; Patterson v. Northern Trust Co., 230 Ill. 334. Upon this appeal, therefore, it must be assumed that the amount fixed by the chancellor is the full amount that the master was entitled to receive or collect for the services rendered by him. Hence this court cannot increase the amount thus fixed, if it were disposed to do so. For the same reason, the cross-errors assigned by appellee, seeking to have the amount reduced, cannot be considered.

Apart from the question of amount, the main contention of appellant is that the Circuit Court had no jurisdiction to enter any order or decree requiring him to pay back any part of the fees collected by him. It is urged that jurisdiction of the person of the master was wanting because he was neither a party to the suit in which such fees were taxed, nor served with process therein; that jurisdiction of the subject-matter was also wanting because appellee had a complete and adequate remedy by an action at law against the master, or upon his official bond, for the recovery of any amount wrongfully collected as fees. We think neither of these contentions is sound. The master was a party to the petition filed against him, and jurisdiction over his person was obtained by the personal service upon him of a notice stating that at a certain time, the solicitor for the petitioner would ask that a rule be entered against him to answer the petition “this day filed,” and by the entry of such rule in accordance with the notice. Furthermore, any objection to the jurisdiction of the person was waived by the filing of his answer to the petition after his demurrer had been overruled. This was a voluntary general appearance by the. master, dispensing with the necessity of any formal'service of process. Jurisdiction of the subject-matter, in our opinion, was obtained by the filing of the petition containing averments which, in effect, charged that a master in chancery had made use of his official position to exact from one of the parties to a suit referred to him greater compensation than the law allows, under such circumstances as to make it imprudent to resist his demand.

A master in chancery is an officer of the court, and the manner in which his fees shall be determined and paid is fixed by statute. In Glos v. Flanedy, 207 Ill. 230, it was said; “In all matters * * * such as the taking and reporting of testimony, computing the amount due on which to render a decree and making report thereof, examining questions of law and fact in issue by the pleadings and reporting conclusions, and all other matters where his authority is derived from an order of the court, the master is then a part of the court and his fees and compensation are constantly subject to the supervision of the court, and we know of no authority, statutory or otherwise, which authorizes him to demand of the parties litigant, as the causes proceed before him under references from the court, the payment of the fees or any part thereof. The law is that such fees shall be taxed as costs.”

The statute provides a fixed amount for taking and reporting testimony, and provides further that in countiek of the third class, masters in chancery may receive “for examining questions in issue referred to them, and reporting conclusions thereon,” such compensation as the court may deem just. In Polakow v. Leafgreen, 178 Ill. App. 566, this court said, as to these statutory provisions: “It is apparent, therefore, that the amount of fees for taking testimony is fixed by statute, and, as was said in Schnadt v. Davis, 185 Ill. 476 (484), ‘no more can be legally demanded of the parties, or either of them, for or on account of such services. Nor has the court power to order the payment of a greater sum or allowance for such service.’ It is equally apparent that the fee for examining the issues referred to a master, and reporting conclusions thereon, is wholly within the discretion of the court, who fixes the compensation at an amount which he deems to be just. The solicitors have no power to bind the court by stipulating as to the amount of such fees. The basis of the court’s allowance is the justness of the fees, and not the stipulation of the solicitors.”

Under these decisions, it was clearly improper, if not unlawful, for the master to make any demand upon the parties, or any request, that the matter of his fees be agreed upon and paid while the cause was pending before him, and before the amount of such fees had been fixed by the court and taxed as costs in the case. No agreement so made can have any binding force or effect, and the fact that a master requests that such an agreement be made in advance of any action by the court gives rise to the suspicion that he fears the court may not approve his own estimate of the value of his services. This suspicion is strengthened in this case by the testimony of the master, who said that he told the solicitors when he requested them to agree upon his fees, that “owing to the decisions of the Supreme Court” as to master’s fees, “and in view of the practice in this county,” it was difficult to collect master’s fees “unless the lawyers were themselves inclined to be fair with the master, and would try to protect him in the collection of his fees.” While the master denied that he refused to file his report until his fees were paid, we think it is a reasonable inference, at least, from the evidence, that the parties were given to understand that no report would be forthcoming until some agreement was made as to the amount of the fees and the manner in which they should be paid. This being true, it is obvious that the request of the master that such an agreement be made before he had announced his decision upon the questions at issue, placed both parties in a most embarrassing position, in which neither felt free to refuse his request. Under such circumstances, his request had the force of a command, proceeding from one who, for the time being, occupied the position of a judge. When the solicitor for the petitioner was upon the witness stand, he was interrogated by the master as to whether the parties were dissatisfied with the amount of his fees. The witness replied: “I know there was a talk about it— Mr. Isaacs and I had a talk about it.” The same witness also testified as follows, in answer to questions put by the master: “Q. Did I at that time, or at any time, state to you that I would not file the report until my fees had been paid ? A. I cannot say that you said that—No. Q. Don’t you recollect that I never did say that? A. No, you did not say it in that way— no; of course, there was the question that we were discussing, that ivas the question of the payment of your fees,'how you were to be paid. I would not say there was any threat made that you would not file a report.”

It is unquestionably the law that any contract by the terms of which a public officer is to accept or receive for his services either more or less than his statutory fees, is contrary to public policy and void. 9 Cyc. 496. The illegal contract in this case, however, was fully executed; and as appellee was not in pari delicto (Richardson v. Crandall, 48 N. Y. 348), she undoubtedly could have recovered, in an action at law, the amount of the illegal fees paid by her. But does this fact oust a court of equity of jurisdiction? Equity has jurisdiction to correct mistakes, where there has been a mistake of law by one party induced by undue influence on the part of the other (Sands v. Sands, 112 Ill. 225, 231). It also has jurisdiction in cases of constructive fraud, and such jurisdiction is concurrent with that of the law courts. The precise question here involved, viz.: Whether a court of equity has the power to compel one of its own masters in chancery to refund fees illegally collected, by a summary proceeding, conducted in and as a part of the same suit in which such illegal fees were collected, does not seem to have been decided in this State. In other jurisdictions, however, it has been frequently held that where an officer of the court has received, by virtue of his office, in the course of some legal proceeding, money or property which he has- no equitable right to retain, the court in which such proceeding is pending has jurisdiction, on petition or motion in the same suit, to order the money or property returned to the party to whom it belongs. Mundy v. Schantz, 52 N. J. Eq. 744; Jeffries v. Laurie, 23 Fed. 786; Watson v. Edmonds, 4 Price (Eng.) 309; Smith v. Smith, 1 Bailey (S. C.) 70; Smith v. Myers, 47 Mo. 342; McMann v. Superior Court, 74 Cal. 106. In Mundy v. Schantz, supra, the identical question here involved was raised and determined. There, a motion was made in a foreclosure suit for an order upon the complainant’s solicitors to'pay over certain moneys received by them from the sale of the mortgaged premises, and which they claimed the right to retain as compensation for their services, although ■ they had previously received the full amount allowed them by the court for their solicitors ’ fees. The solicitors contended that the court had no power to deal with the matter in a summary manner in the foreclosure proceeding, and that the complainants must be remitted to their action at law. To this contention, the court replied: “If their claim arose out of matters outside the proceedings in this cause, the point might be well taken. But the question involves their conduct in the cause, as officers of this court, and with regard to such matters I understand them to be subject to the summary order of the court. It is a common practice to order an attorney or solicitor to pay over money which he has received in his capacity as an officer of this court. ’ ’ (Citing many authorities.)

Appellant admits that the court had the undoubted power to require him to file an itemized statement of his fees and charges in the same suit in which such fees and charges were made. This being true must a court of equity stop at the mere filing of such an itemized statement, after the master has received and collected more than the statute allows him, merely because there may be a remedy at law against him on his official bond 1 In such a suit at law, there could be no possible defense as to any excess of money collected by him over and above the amount allowed for fees and taxed as costs in the equity proceeding. In such case, there would be no issue of fact for a jury to try. The remedy in equity is more prompt and more efficient, and avoids circuity of action. Furthermore, the court of equity having obtained jurisdiction for one purpose, viz., the allowance of the fees, clearly had the power to give full and complete relief even to the extent of administering purely legal remedies. Kelly v. Galbraith, 186 Ill. 593. We conclude, therefore, on this branch of the case, that the Circuit Court had full jurisdiction to enter the order or judgment in question.

It is urged that Mrs. Bloomhuff was guilty of laches in not filing her petition sooner, that the moneys paid to the master were voluntarily paid, and that, in any event, she did not pay them, but they were paid by her husband. We think these contentions are without merit. The petition was filed within six months after the payment of the fees to Master Bogers, and less than a month after the entry of the final decree. The evidence shows that while the actual payment was made by Mr. Bloomhuff, the money belonged to Mrs. Bloomhuff, and the payments were made in her behalf. It is true that the fees were not paid under protest, but they were paid under such circumstances as to make them, in a real sense, compulsory and not voluntary payments.

The judgment of the Circuit Court will be affirmed.

Affirmed.


author: Mr. Presiding Justice Pitch

text:
    C. R. Boothman, Defendant in Error, v. H. E. Wulfing, William L. and Louis T. Coxe, trading as Coxe Brothers, Defendants. H. E. Wulfing, Plaintiff in Error.
    Gen. No. 19,417.
    1. Municipal Coubt op Chicago, § 8

      —when has jurisdiction of proceeding under Lien Act. The Municipal Court of the city of Chicago has jurisdiction to enter a personal judgment against a resident contractor in an action brought in such court as a fourth-class case against the resident owner of a building and such contractor for a mechanic’s lien for work and labor performed pursuant to the Mechanics’ Liens Act, see. 28 (J. & A. H 7166), where due notice is given to the owner of the amount due and service is made upon him by summons, although such contractor is served by publication and mailing only, as provided by the Chancery Act, upon a summons being returned “not found,” and does not enter his appearance and there is no evidence showing that such contractor is not in fact a resident of the city of Chicago.
    2. Municipal Coubt op Chicago, § 8

      —when defendant presumed to 5e a resident of city. A party defendant to an action in the Municipal Court of the city of Chicago, for a mechanic’s lien will be deemed to be a resident of the city of Chicago for the purpose of entering a personal judgment against him, although he is served by publication and mailing only, where the affidavit upon which the publication notice is based does not state that he is a nonresident, but that upon due inquiry, he cannot be found so that service of process can ^>e served upon him, and that upon due inquiry, his present place of residence cannot be ascertained, but his last known place of residence was a certain street and number in such city, and there was no showing that he was not in fact a resident of such city.
    3. Appeal and ebbob, § 1214

      —-when codefendant cannot assign error. A party defendant to an action for a mechanic’s lien, who is the owner of the property involved in the suit, cannot assign error as to the manner in which his codefendant, the contractor, is served with process, where, although judgment is rendered by default against such contractor upon service by publication and mailing, he enters his appearance to the writ of error and urgesi no objection to the jurisdiction of the court, and such party defendant does not attempt to show that the claim sued upon is an unjust one or that any step necessary to charge the owner with statutory liability has been omitted.
    Error to the Municipal Court of Chicago; the Hon. Edward T. Wade, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed June 17, 1915.
    Gustav E. Beerly, for plaintiff in error; Lewis Rinaker, of counsel.
    Earl J. Walker, for defendant in error.

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

   Mr. Presiding Justice Pitch

delivered the opinion of the court.

The plaintiff, C. R. Boothman, was employed by Coxe Brothers, contractors, as a foreman of bricklayers, and in pursuance of his employment, performed work and labor upon a building which Coxe Brothers were constructing for the defendant, II. E. Wulfing. The contractors having failed to pay him in full for his work, Boothman served a notice to that effect upon the owner, Wulfing, as provided by section 24 of the Mechanics’ Liens Act (J. & A. ¶ 7162), and after the lapse of ten days brought suit in the Municipal Court against the owner and contractors jointly. The owner was personally served with summons, but as to Coxe Brothers the summons was returned “not found.” Notice by publication and mailing was then given to Coxe Brothers in the manner provided by the Chancery Act. At the expiration of forty days after the first publication, a default was taken against Coxe Brothers, and after a trial in which the owner participated, the court found the issues in favor of the plaintiff and entered a judgment against all the defendants for $108. The judgment recites that the plaintiff is entitled to a lien upon the building of the defendant Wulfing, and gives the date from which the lien attached. This writ of error was thereupon sued out by the defendant, Wulfing. He contends that the Municipal Court was without jurisdiction to enter any judgment against Coxe Brothers upon a service by publication, and that being void as to them, the judgment is void in toto.

Section 28 of the Mechanics’ Liens Act (J. & A. ¶ 7166) provides that if any money due to a laborer be not paid within ten days after service of notice upon the owner, such laborer may sue the owner and the contract- or jointly for the amount due him from the contractor, “in any court having jurisdiction of the amount claimed to be due; ’ ’ that all such suits ‘ ‘ shall be against both contractor and owner jointly, and no decree or judgment shall be rendered therein until both are duly brought before the court by process or publication, and in all courts, including actions before a justice of the peace and police magistrates, such process may be served and ptiblicaiion made as to all persons, except the owners, as in suits in chancery.”

It is not denied that due service of notice of the amount due to the plaintiff was given to the owner as provided by the Mechanics’ Liens Act, nor is it denied that the notice given to Coxe Brothers by publication and mailing was in accordance with the provisions of the Chancery Act. The position taken by counsel for the defendant Wulfing may be stated as follows: That this suit was brought in the Municipal Court as a fourth-class case; that the jurisdiction, practice and procedure of that court are governed solely by the provisions of the Municipal Court Act; and that there is no provision in that act authorizing that court to enter a judgment against any defendant in a fourth-class case, unless such defendant enters his appearance therein, or is personally served with process.

The Municipal Court Act makes no express mention of suits brought to enforce the statutory liability created by section 28 of the Mechanics’ Liens Act (J. & A. ¶ 7166). Section 2 of the Municipal Court Act (J. & A. ¶ 3314), however, gives that court jurisdiction, under the designation of “cases of the fourth class” of ‘ ‘ all civil actions, quasi criminal actions excepted, for the recovery of money only, when the amount claimed by the plaintiff, exclusive of costs, does not exceed one thousand dollars,” and also of “all actions and proceedings of which justices of the peace are now given jurisdiction by law and which are not otherwise provided for in this act, in which class of actions and proceedings the Municipal Court shall have jurisdiction where the amount sought to be recovered does not exceed one thousand dollars ($1,000).”

In Smith v. Slaughter, 138 Ill. App. 46, the Appellate Court of the Second District held that a justice of the peace has jurisdiction of suits like the present suit, and sustained a joint recovery against an owner, who was personally served with process, and a contractor, who was served only by publication.

In Illinois Malleable Iron Co. v. Brennan, 174 Ill. App. 38, it was held by “Branch C” of the Appellate Court of this district that the Municipal Court has jurisdiction of such actions, as fourth-class cases “for the recovery of money only,” and sustained a judgment against an owner and contractor jointly, although the contractor was served only by publication.

Section 42 of the Municipal Court Act (J. & A. ¶ 3354) provides that every summons in a fourth-class case shall be served by reading and delivering a copy to the defendant; but section 29 (J. & A. ¶ 3341) provides that “if, in any case where there is more than one defendant, process is duly served upon one or more defendants and returned not served as to another defendant of other defendants, the suit shall proceed as in like cases in the circuit court.” The procedure followed in this case was the same that is provided by statute for “like cases in the circuit court;” and this being true, we can see no reason to doubt that the Municipal Court thereby acquired as full jurisdiction over the persons of the contractors as the Circuit Court would have acquired under like circumstances.

It is urged, however, that no court has jurisdiction to enter a personal judgment against a nonresident defendant who does not enter his appearance and who is served only by the publication and mailing of a notice to him. This is true, but there is nothing in this record to show that Coxe Brothers were not residents of the city of Chicago at the time of the service upon them by publication. The affidavit upon which the publication notice was based does not say that they are nonresidents, but says that upon due inquiry, they “cannot be found, so that process cannot be served upon them,” and that upon due inquiry “their present place of residence cannot be ascertained,” but their “last known place of residence” was a certain street and number in Chicago, Illinois. This language conveys the idea of concealment within the city, rather than residence outside of it. All the facts and circumstances shown by the record indicate that Coxe Brothers were, in fact, residents of the city of Chicago at the time of the attempted service of process upon them, and there is no showing to the contrary. We think, therefore, the court had jurisdiction to enter a personal judgment against them. Nelson v. Chicago, B & Q. R. Co., 225 Ill. 197.

Furthermore, there is another view of the matter which leads to the same result. Coxe Brothers have entered their appearance to this writ of error, and they are not urging any objection to the jurisdiction of the Municipal Court over them. That court undoubtedly had jurisdiction of the person of the plaintiff in error, and we think the rule so often declared in this State, that one party cannot assign error as to the manner in which his codefendant was served with process, is applicable here. The plaintiff in error did not show, or attempt to show, that the claim of Boothman against Coxe Brothers was not a just claim, nor that any step necessary to charge the owner with the statutory liability therefor had been omitted. It is, therefore, a matter of no consequence whatever to plaintiff in error that jurisdiction over the persons of the Coxe Brothers was acquired by a substituted, instead of a personal, service of process upon them.

The judgment of the Municipal Court will be affirmed.

Affirmed.


text:
    Central Trust Company of Illinois, Receiver, et al., Defendants in Error, v. Edward E. Kuglin and Louis Bernstein, Plaintiffs in Error.
    Gen. No. 20,013.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1914.
    Affirmed.
    Opinion filed June 17, 1915.
    Statement of the Case.
    William Waterbury and John McBride, trading as the Carterville Washed Fuel Company, sued the defendants, Edward E. Kuglin and Louis Bernstein, to recover the value of .coal sold to the defendants in 1911. Before the trial the Central Trust Company of Illinois, as receiver in bankruptcy for the Carterville company, was substituted as party plaintiff. Upon the trial a. verdict was returned in favor of the plaintiff for $270, and from the judgment entered thereon, the defendant sued out a writ of error.

      . The defense was that the Carterville company did not deliver the kind of coal contracted for, but delivered an inferior grade of much less value. The' only question raised was that the verdict was a compromise. The evidence showed that there was a written contract by which the Carterville company agreed to sell and deliver to defendants their “requirements, estimated at 1,000 tons” of Berwind-Whites Pocahontas run of mine coal between July 18, 1912, and March 31, 1913, at $3.85 per ton, deliveries to be made in such quantities as might be ordered from time to time, the price being based on a freight rate of $2.05 per ton from mines to seller’s yard to advance or decline as the rate might fluctuate; that up to September 1, 1912, the Carterville company delivered to the defandants coal of the kind and character prescribed by the contract, which was paid for at the contract rate. The dispute between the parties arose out of the delivery of ninety tons of coal during October and November, 1912. The plaintiff’s evidence tended to prove that in September, 1912, one of the defendants complained that the coal furnished prior to that time was not good coal; that he instructed the plaintiff to send “Blue Valley” or “Bluefields” Pocahontas coal instead of BerwindWhites Pocahontas; that the ninety tons in question were furnished in pursuance of this order or direction; that such coal was of the grade ordered, and that its value was $4 a ton. The defendants and an engineer in their employ testified that the coal so delivered was not Pocahontas coal, but “looked like Screenings,” and was in fact, of the grade known as' “No. 5 washed nut,” worth $1.75 to $2.per ton. The defendants admitted that they did not know where the ninety tons of coal in question came from, or the cost-of transporting such coal from the mines in West Virginia to Chicago.
    Edward J. ICelley, for plaintiffs in error.

      Abstract of the Decision.
    1. Tbial, § 266a

      —when verdict effect of compromise. A verdict in favor of a plaintiff for $270, held not objectionable as a compromise verdict, although the jury were justified, if the plaintiff's witnesses were believed, to render a larger verdict, and for not more than $180 if the defendant’s witnesses were to he believed.
    2. Appeal and ebbor, § 1258

      —when defeated party may allege inadequacy of verdict. A defeated party cannot complain that a verdict was for a less amount than the evidence of the successful party warranted.
    No appearance for defendants in error.

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

   Mr. Presiding Justice Fitch

delivered the opinion of the court.


text:
    A. M. deBeauviere, Defendant in Error, v. Chicago School of Physical Education and Expression, Plaintiff in Error.
    Gen. No. 20,086.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. James C. Martin, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1914.
    Reversed and remanded.
    Opinion filed June 17, 1915.
    Statement of the Case.
    Action brought by A. M. deBeauviere against the ■Chicago School of Physical Education and Expression for services claimed to have been rendered the defendant as a physical instructor. Judgment was rendered in favor of the plaintiff for $482.50, and the defendant sued out a writ of error.

      The evidence showed that the plaintiff was regularly employed at defendant’s school in giving fencing lessons a few hours a week, at the rate of $2.50 an hour; that he claimed that in the spring of 1909, the head of the school employed him at the same rate to give instructions in what he called “setting up exercises,” consisting of “exercises of the muscles of the body; bending and stretching the arms and legs; bending, twisting, etc.,” with the understanding, that as the school was then in debt, his pay should “lie dormant” until the end of the year 1910, by which time it was expected the defendant would be in a better financial condition as the result of the operation of a summer school at Saugatuck, Michigan.
    The defendant did not deny that the plaintiff rendered services of the kind above stated, but claimed that when the plaintiff proposed to render such additional services, he was told that the school could not afford to pay for them, whereupon, being already an instructor in the school, he offered to teach the “setting-up exercises” without any additional compensation until the school was more firmly established, and that this offer was accepted. There was a sharp conflict in the evidence as to these respective claims. That in August, 1909, the plaintiff sent to the defendant a plan for giving such instructions in which he enumerated and enlarged upon the benefits that would follow its adoption, and the methods he would adopt if his suggestions were put in operation, that in the course of this letter, he said: “The first thing that will present itself to you, I know, is the question of remuneration. Well, don’t worry about that. If your finances are flourishing, you can pay me, if you can’t, I’ll teach all the same. If you like you can pay me in postage stamps or in shares of your stock.”
    John W. Burdette, for plaintiff in error.

      Abstract of the Decision.
    1. Evidence, § 68

      —when evidence of previous financial transactions inadmissible. The admission in an action against a school for services as an instructor, of evidence as to a previous indorsement by the plaintiff of certain notes given by the head of the school in payment for its stock, held reversible error where the evidence was conflicting.
    2. Evidence, § 68

      —when evidence of previous financial transaction admissible. Testimony that the plaintiff in an action against a school for services as an instructor loaned the hea.d of the school $50, held prejudicial error where the evidence was conflicting.
    3. Appeal and ebbor, § 1523

      —when erroneous instruction not prejudicial error. While an instruction in an action against a school for services as an instructor, that the plaintiff could not recover a money judgment if there was an agreement to take something else in payment, was not a correct statement of the law, ij; was held not prejudicial to the defendant.
    4. Trial, § 45

      —when remarles of trial court as to requested instruction prejudicial error. Where, in an action against a school for services as an instructor, a letter in evidence, written by the plaintiff to the defendant, stated that the latter need not worry about the former’s pay for proposed services, and that “if your finances are flourishing you can pay me, if you can’t I’ll teach all the same. If you like you can pay me in postage stamps or in shares of your stock,” a remark of the trial judge in the presence of the jury, in reply to a request of the defendant to instruct as to the right to recover under such an offer, that there was “no use giving instructions on that. You can’t make a claim on one line in a letter. * * * I won’t base an instruction” thereon, held reversible error, since the letter tended to contradict the plaintiff’s claim that there was a definite agreement as to compensation.
    Lewis, Folsom & Streeter and Robert P. Burkhalter, for defendant in error.

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

   Mr. Presiding Justice Fitch

delivered the opinion of the court.


text:
    Max Levin and Meyer W. Goldstein, copartners, trading as Levin & Goldstein, Defendant in Error, v. Herman Strempler, Plaintiff in Error.
    Gen. No. 20,128.
    1. Assumpsit, action of, § 23

      —recovery under common counts on completion of contract. "Where a contract has been fully performed by one party and nothing remains but the payment of money by the other, the former may, under the common counts in assumpsit, recover the amount due him.
    2. Contracts, § 163

      —when ordinance becomes part of contract. When a person contracts to do plumbing “according to ordinances of the City of Chicago,”—-the ordinances become a part of the agreement as fully as if they were set out therein.
    3. Contracts, § 240

      —when presentation of inspection certificate condition precedent to recovery for plumbing. The presentation of an official inspection certificate is a condition precedent to a recovery for plumbing done under a contract providing that the work should be performed “according to ordinances of the City of Chicago,” which required such certificate to be furnished the property owner as soon as the work was completed.
    4. Contracts, § 240

      —when failure to furnish inspection certificate of plumbing excused. Where the plaintiff contracted to do plumbing “according to ordinances of the City of Chicago,” which required that an official inspection certificate should be furnished the property owner as soon as the work was completed, failure to do so cannot be excused by showing that two months after the work was finished the property owner refused to permit an official inspection to be made.
    5. Contracts, § 381

      —when prevention by contractee of inspection of plumbing may be shown. The fact that a person for whom plumbing was done under a contract providing that it was to be “according to ordinances of the City of Chicago,” refused to permit an official inspection to be made, cannot be shown by the plaintiff in an action to recover for the work, under a statement of claim not averring that the plaintiff was prevented by the defendant from securing such certificate.
    6. Contracts, § 240

      —when failure to furnish inspection certificate will defeat recovery for plumbing. A judgment for the plaintiff for the contract price of plumbing done under a contract which required the work to be performed “according to ordinances of the City of Chicago” cannot be sustained, where the evidence shows that the official certificate of inspection required by the ordinance was never furnished the defendant.
    Error to the Municipal Court of Chicago; the Hon. Habby M. Fisher, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Reversed and remanded.
    Opinion filed June 17, 1915.
    Julius K. Geweke, for plaintiff in error.
    Juul & Juul, for defendants in error.

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

   Mr. Presiding Justice Fitch

delivered the opinion of the court.

The plaintiffs, Levin and Goldstein, recovered a judgment in the Municipal Court against the defendant, Herman Strempler, for $147, alleged to be due “for plumbing work, labor and materials furnished and performed for the defendant at his special instance-' and request, on his property.”

It appears from the evidence, without dispute, that there was a written contract between the parties, by which the plaintiffs, for a stipulated price of $147, agreed to “put in” two sinks, three water-closets and certain other plumbing for defendant’s premises, “all the work to be made according to ordinances of the City of Chicago;” that the plaintiffs began work under this contract in the latter part of June or early in July, 1913, and left it as finished three or four days later, but did not furnish the defendant with a certificate of inspection, as required by the city ordinances. One of the plaintiffs testified that he did all the work specified in the contract, connected the closets with the sewer and “left the work in good condition.” He admitted, however, that no inspection was made, or certificate of inspection obtained, and there was evidence tending to prove that about a month after plaintiffs left their work as completed, it was discovered that the soil pipe put in by them had not been connected with the house drain or sewer, and that consequently, the waste matter was running into a hole in the ground under the house; that the defendant notified one of the plaintiffs that such was the fact, and asked him to complete the work, which he refused to do; that thereupon the defendant hired another plumber, who made the connection at a cost of $18; that in the meantime, plaintiffs had brought suit for the contract price, but discontinued the same for some reason not shown by the evidence; that in September, 1913, one of the plaintiffs and an inspector called at defendant’s premises for the purpose of having an inspection made, but they were refused admittance upon the ground that a suit was then pending; that similar attempts to make an inspection were made in October and November, 1913, which were prevented by the defendant for the same reason, whereupon this suit was brought.

In substance and in legal effect, the plaintiffs’ statement of claim is a common count in assumpsit for work, labor and materials. The record shows, however, that the plaintiffs offered no evidence whatever as to the value of the work done, but relied entirely upon the written contract, although it is not set out or referred to in the statement of claim. It is a familiar rule in this State that where a contract has been fully performed by one party, and nothing remains to be done but the payment of money by the other, the party who has performed his part of the contract may sue for and recover the amount due under the common counts in assumpsit, using the contract as evidence. Expanded Metal Fireproofing Co. v. Boyce, 233 Ill. 284. Apparently, the plaintiffs had this rule in mind when they filed their statement of claim, and also when they tried the case in the Municipal Court; but this rule is subject to the qualification that where the contract requires some act to be performed as a condition precedent to the payment of the contract price—as, for example, where a building contract provides that the work done and materials furnished shall be paid for upon presentation of an architect’s certificate—no recovery can be had under the common counts, without proof that such condition has been complied with. Expanded Metal Fireproofing Co. v. Boyce, supra; Hart v. Carsley Mfg. Co., 221 Ill. 444.

'The contract in this case requires the work to be done “according to ordinances of the City of Chicago.” The city ordinances (which were introduced in evidence) require the plumber, as soon as the plumbing work is completed, “to secure for the owner” a certificate of inspection showing that the work has been “properly inspected and tested” by the city health department. The ordinances also provide how such inspection and test shall be made. These ordinances are as much a part of the contract as if they had been set out in full therein. They constitute an essential element in the due performance of the contract, and the presentation of an official inspection certificate is thereby made a condition precedent to the right of the plaintiffs to recover the amount specified in the contract, and until such condition was performed, no suit brought on the theory that the contract had been fully or substantially performed could be maintained. The plaintiffs did not attempt to show performance in this respect. On the contrary, they proved, as a part of their case, that no inspection or test was made at their instance, and that an inspector who examined the premises in August, 1913, upon complaint made to the health department by third parties, found that the soil pipe was not connected with the sewer; and yet, notwithstanding these facts, they attempted to excuse their failure to secure a certificate of inspection by showing that more than two months after their work was done, the defendant refused to allow an-official inspection to be made.

In Hart v. Carsley Mfg. Co., supra, it was said: “We think there is abundant authority for the rule that when work is done under a contract, as was the case here, the plaintiff can only recover therefor when he has fully or substantially performed the conditions precedent to his right of recovery as stated in the contract, or else averred and proved a sufficient excuse for his noncompliance with its conditions.” In the same case, it was said, quoting from Coke on Littleton, 304: “Though an excuse for not performing a condition is for some purposes equivalent to performance, yet it is not the same thing, and therefore in pleading, performance must never be averred by a party who relies upon an excuse for not performing, but he must state his excuse.”

Under the statement of claim filed in this case, the plaintiffs could only recover upon proof that the conditions precedent specified in the contract had been complied with, or upon proof of the reasonable value of the work actually done. There is no averment, either expressed or implied, in the statement of claim that the plaintiffs were prevented from fully performing the contract by any act of the defendant, and therefore^ under the authorities above cited, the evidence to that effect was inadmissible. No objection, however, was made to such evidence, and therefore we have a case where a judgment has been given, under a statement of claim equivalent to the common counts, for the full contract price of work, labor and materials furnished by the plaintiffs, although the proof affirmatively shows that the conditions precedent specified in the contract were not performed, and there is no proof that the contract price represents the reasonable value of work actually performed.

In Walter Cabinet Co. v. Russell, 250 Ill. 416, it was said, with reference to statements of claim in the Municipal Court: “The object of the rules requiring statements of claim and of set-off is to inform the parties of the nature of the respective claims, and while the formalities of pleading have been abolished by statute, it is still the law in the Municipal Court, as in other courts, that a party is limited, in his evidence, to the claim he has made; that he cannot make one claim in his statement and recover upon proof of another without amendment. The issue is made by the statement of claim, and the evidence must be limited by that statement. ’ ’ That case has been followed in the recent case of Gilman v. Chicago Rys. Co., 268 Ill. 305, rev ’g 185 Ill. App. 396. It has also been held that the rule thus stated applies as well to suits in equity as to actions at law. Michaelis v. Wolf, 136 Ill. 68; Barney v. Giles, 120 Ill. 154. It has been often said that “the allegata and probata must agree, and the latter must support the former.” The application of this principle is fatal to the judgment rendered by the Municipal Court.

It is also urged that the finding and judgment are manifestly against the weight of the evidence. As there must be another trial for the reasons above stated, and as an amendment may be filed presenting different issues, we refrain from expressing any opinion upon the weight of the evidence in this case.

The judgment of the Municipal Court will be reversed and the cause remanded.

Reversed and remanded.


text:
    City of Chicago, Plaintiff in Error, v. H. W. Smith, Defendant in Error.
    Gen. No. 20,136.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Edward T. Wade, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1914.
    Affirmed.
    Opinion filed June 17, 1915.
    Abstract of the Decision.
    1. Appeal and error, § 1265

      —when regularity of proceedings presumed. On an appeal or writ of error the findings and judgments of a trial court are presumed to he correct until the contrary is made to appear.
    2. Municipal corporations, § 867

      —when acquittal of defendant in action on ordinance not open to review. The question whether judgment was properly rendered for the defendant, in an action on an ordinance for a penalty, will not be considered on writ of error where the ordinance was not included in the statement of the facts or in the stenographic report of the evidence.

      Statement of the Case.
    Action by the City of Chicago against H. W. Smith to recover a penalty for the violation of a city ordinance. Judgment was rendered for the defendant, and the city sued out a writ of error.-
    The stenographic report of the trial did not show that any ordinance of the city was offered in evidence or considered by the court. The ordinance alleged to have been violated, was not set out in the plaintiff’s statement of claim, but was merely referred to as “Section 1541 of the City Code of 1911.”
    William H. Sexton and James S. McInerney, for plaintiff in error; Ulysses S. Schwartz, of counsel.
    No appearance for defendant in error.

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

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

   Mr. Presiding Justice Fitch

delivered the opinion of the court.

3. Municipal corporations, § 864 —when failure to prove ordinance justifies finding for defendant. Where an ordinance is not set out but is only referred to by section number in the plaintiff’s statement of claim in the Municipal Court, in an action to recover a penalty, and the ordinance was neither offered in evidence nor considered at the trial, the only finding that the trial court could make was in favor of the defendant.


text:
    George J. Haberer, Defendant in Error, v. G. W. Kunstman, Plaintiff in Error.
    Gen. No. 20,159.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Charles H. Bowles, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1914.
    Affirmed.
    Opinion filed June 17, 1915.
    Statement of the Case.
    Action by George J. Haberer against G. W. Kunstman to recover a real estate broker’s commission, as provided for by a written contract for the exchange of real estate executed by the defendant and a man named Sultan, by the terms of which the latter agreed to convey his property to defendant, subject to an incumbrance of $10,500 on the property, which the defendant agreed to assume. From a judgment of $600 in favor of the plaintiff the defendant brings a writ of error.
    The evidence showed that when the title was examined it appeared that the property was incumbered by two trust deeds, aggregating $10,500, instead of one; whereupon the defendant refused to consummate the exchange, claiming that this fact made a material difference.
    Abstract of the Decision.
    1. Appeal and ebbob, § 1245

      —invited error. Where, in an action to recover commissions for effecting a contract for an exchange of realty, the defendant gave evidence of conversations relating to incumbrances which took place before the execution of the contract, and the defendant introduced contradictory testimony, the defendant cannot predicate error since it was invited by him.
    2. Bbokebs, § 55

      —when defect in title does not deprive broker of commissions. A broker who effects a contract for the exchange of realty is entitled to his commissions, although the transaction is not consummated because of defects in title.
    3. Vendob and pubchaseb, § 139

      —when agreement to take subject to incumbrance includes two trust deeds. That an incumbrance constituted of two trust deeds is not a good objection to a title which a person contracted to take in exchange for realty, subject to an incumbrance of a stipulated amount which was the total of the two trust deeds.
    4. Coñtbacts, § 171

      —when entire instrument considered in construing contract. In construing a contract, effect must be given to all of its language.
    S. L. & Fred Lowenthal, for plaintiff in error.
    Mattter & Hutson, for defendant in error; William A. Sheehan, of counsel.

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

   Mr. Presiding Justice Fitch

delivered the opinion of the-court.


text:
    Merritt O. Hoover, Plaintiff in Error, v. Mrs. I. Buckman, Defendant in Error.
    Gen. No. 20,213.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Habey M. Fisheb, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1914.
    Reversed and judgment here with finding of facts.
    Opinion filed June 17, 1915.
    Statement of the Case.
    Action by Merritt O. Hoover, a physician, against Mrs. Ida Buckman to recover a balance of $153, for services rendered in the treatment of the defendant’s eight-year-old child. Upon trial before the court a finding was entered against the plaintiff as to the amount claimed by him, and against the defendant as to her claim of set-off, and a judgment was entered in favor of the defendant for costs. The plaintiff sued out a writ of error.
    It appeared, without contradiction, that the plaintiff was employed by the defendant to treat her child; that the child was suffering from tonsilitis; that after treating her for several days she was taken to a hospital, where an operation was performed on her tonsils; that the next day the defendant took the child home, and for three days thereafter she played around like other children; that during the night of the third day following the operation, the plaintiff was called to the defendant’s house, and found the child suffering from a high fever, with symptoms of pneumonia; that a nurse was at once engaged, and the plaintiff called several times during the next day and the day following; that on the sixth day following the operation—being the third day of the fever—the plaintiff noticed symptoms of diphtheria; that he at once administered antitoxin, but the child did not improve; that the next day he gave more antitoxin, and then told the defendant the child was suffering from diphtheria; that defendant called in a specialist; that a tube was inserted in the child’s larynx and the next day the operation of tracheotomy was performed with the assistance of another physician called by the plaintiff; that two days later the child died; that the plaintiff rendered an itemized bill to defendant for his services, amounting to $183,- and that defendant made no objection to the bill, but asked for time in which to pay it, and later paid on account of the same, in small amounts, the sum of $30, leaving a balance due the plaintiff of $153.
    Abstract of the Decision.
    1. Physicians and surgeons, § 21

      —when concealment of nature of malady not evidence of negligence or lack of skill. That a physician concealed from a parent the fact that a child had diphtheria, which resulted in death, does not tend to show lack of skill or reasonable care in his treatment.

      The plaintiff testified positively that the earlier symptoms of the child’s ailment were those of pneumonia; that he examined the child’s throat several times each day, but that there were no symptoms of diphtheria present until just before he administered the antitoxin. Two other physicians testified that the plaintiff’s treatment was the usual and customary treatment in such cases, was “absolutely necessary” and was “the skillful thing to do under the circumstances.” The defendant and her daughter testified that the plaintiff did not tell them that the child was suffering from diphtheria, but insisted that she did not have that disease, until the next day after the antitoxin was administered, and that he refused to permit them to call another physician. Their testimony was flatly contradicted by the plaintiff.
    Earl J. Walker, for plaintiff in error.
    No appearance for defendant in error.

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

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

   Mr. Presiding Justice Fitch

delivered the opinion of the court.

2. Physicians and surgeons, § 19 —when death of patient does not create presumption of negligence or lack of skill. The fact that a patient dies under the treatment of a physician does not raise a presumption of negligence or lack of skill on his part.

3. Physicians and surgeons, § 22 -—when evidence not sufficient to show negligence or want of skill. A physician cannot be held liable for the death of a patient under his treatment, where there is no evidence tending to show negligence or lack of skill on hti part sufficient to overcome the prima facie case in his favor, made by evidence that the treatment adopted by him was usual and customary.


text:
    Vincent Bendix, Appellant, v. Staver Carriage Company, Appellee.
    Gen. No. 20,304.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Harry Olson, Judge, presiding.
    Heard in the Brandh Appellate Court at the March term, 1914.
    Reversed and remanded.
    Opinion filed June 17, 1915.
    Statement of the Case.
    Action brought by Vincent Bendix against the Staver Carriage Company, a corporation, to recover for the breach of a contract to furnish automobiles for sale. From a judgment of the Municipal Court upon a directed verdict in favor of the defendant, the plaintiff appeals.
    The contract in question is found in the report of a former appeal. See 174 Ill. App. 589. The evidence of the plaintiff tended to prove that immediately after the contract was signed, the plaintiff gave the defendant an order for a sample car for exhibition and demonstration purposes, paid a cash deposit of $50 at that time, and paid the remainder of the net purchase price, $1,000, in cash upon delivery of the same; that this car was not delivered until June 12, 1909, at a time when the season for the sale of 1909 cars was well advanced; that in the meantime, the plaintiff rented and opened a salesroom and signed a two years’ lease for the same, at a rental of $1,000 for the first year, and $1,100 for the second; that he hired salesmen, signed a year’s contract with a daily newspaper for advertising space, advertised therein and in other papers, and prepared and sent out circular letters to prospective customers, etc.; that on May 15, 1909, he ordered four more cars from the defendant and paid a deposit of $50 on each; that the first of these four cars was delivered about July 23rd the second about August 18th, the third sometime in September, and the last in the latter part of October; that at the time this order was given, the plaintiff had no order from any customer for any of the cars; that customers were found, however, by the plaintiff for all of them about as fast as the same were delivered; that during the summer of 1909, the president of the defendant company expressed dissatisfaction with some of the terms of the contract, especially the rate of discount allowed to the plaintiff, and requested the plaintiff to sign a new contract, such as defendant was “making with other dealers,” which plaintiff declined to do; that in August, defendant raised the list price of its cars $250; that soon after, Mr. Staver, the president of the defendant company, told the plaintiff it intended to “revise their lines and bring out new models” for the season of 1910, but when the plaintiff made inquiries about these changes, Mr. Staver declined to give him any information regarding the same unless he would sign a new contract; that finally, in November, 1909, the plaintiff made a specific request of the defendant for catalogues for the 1910 models, as he wanted to make plans for that year, but Mr. Staver replied: “When you fix up a contract you will get all the information that is necessary. We will build four and six cylinder cars. That is all the information you will get until you sign a new contract. You cannot continue this contract. It is unsatisfactory, and you will either sign a new contract or you will not get these cars.” The evidence further showed that the 1909 season for selling automobiles was then practically over; that defendant had only two cars left in its factory, and those were unfinished; that defendant had discontinued making cars like the sample car then in use by the plaintiff; that on December 31, 1909, the plaintiff and his salesman went to the office of defendant for the purpose of making a deposit on five more cars, as required by the contract; that Mr. Staver was in his office at the time, but refused to see them, and that thereupon, the plaintiff tendered the sum of $250 in currency to one of defendant’s officers there present, as a deposit upon the purchase of five cars, and with •the money tendered a written order for five cars, without giving any specifications, but stating that he was ready to do everything that was necessary to be done to comply with his contract; that this offer or tender was refused, the officer saying that he did not know anything about the plaintiff’s contract; that a few days later, the defendant notified the plaintiff in writing that “on account of your (his) failure to comply with the contract,” the defendant considered “the same hereby terminated.” It was further shown that thereafter, and during the term specified in the contract, defendant sold twenty-six cars within the territory named in the plaintiff’s contract, for $40,828.50.
    Brothers & Mills, for appellant.
    Bulkley, Gray & More, for appellee.

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

   Mr. Presiding Justice Fitch

delivered the opinion of the court.

Abstract of the Decision.

1. Sales, § 373 -—sufficiency of evidence of breach of contract to furnish automobiles for resale. The evidence in an action for the breach of a contract to furnish automobiles for resale, held prima facie sufficient to permit the plaintiff to recover.

I 2. Sales, § 374 —when verdict improperly directed for defendant in action breach of contract. A verdict held improperly directed for the defendant in an action for the breach of a contract to supply automobiles for resale.

3. Sales, § 62*—when contract confers right to purchase. A contract to supply the plaintiff with automobiles for resale, held to give him the right to purchase from the defendant and not merely the right to sell.

4. Sales, § 62*—when contract confers right to purchase. A contract conferring the exclusive right on the plaintiff to sell the defendant’s automobiles in a city, held to entitle the plaintiff to purchase as many cars as he cared to buy, notwithstanding he did not have customers waiting for them.

5. Sales, § 160*—when tender under contract of purchase must be kept good. A tender of money under a contract for the purchase of automobiles giving an exclusive right of resale in a city, held an offer to perform a condition of the contract, and that the tender need not be kept good by bringing the money into court.

6. Sales, § 65*—when quantity sufficiently designated in order. An order for automobiles under a contract for their exclusive sale in a city, held to sufficiently designate the cars desired, where the defendant did not object to the order for that reason, and there was an uncertainty at the time the order was given as to the kind of automobiles the defendant intended putting on the market, and the purchaser offered to do whatever the defendant might require to comply with the contract.

7. Sales, § 143*—when purchaser must be ready to perform on rescission by seller. Where the plaintiff declined to acquiesce in the cancellation by the defendant of a contract for an exclusive right to sell automobiles in a city, and notified the latter to that effect, all that the plaintiff was required to do was to hold himself in readiness to perform if the defendant changed his position.

8. Sales, § 44*—when stipulation against use of vendor's name in effecting resale of chattels broken. The fact that the plaintiff sent out circulars on the defendant’s letter heads, held not to violate a condition of a contract for the exclusive sale of automobiles in a city, prohibiting the use of the defendant’s name on printed matter, where it was done by direction of the defendant’s superintendent, and was discontinued on objection being made by the defendant.

9. Damages, § 66 —what recoverable for sales by vendor in territory allotted to purchaser of automobiles. Where a manufacturer sold automobiles in a territory it had assigned by a sales contract to the plaintiff, the latter may recover under a condition of his contract providing that the manufacturer should reimburse the plaintiff “to the extent of commissions and discounts” prescribed in the contract for all cars sold by the defendant in such territory.


text:
    Charles W. Duer, Appellee, v. Chicago Coach & Carriage Company, Appellant.
    Gen. No. 20,313.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Edward M. Mangan, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1914.
    Reversed and remanded with directions.
    Opinion filed June 17, 1915.
    Abstract of the Decision.
    1. Patents § 32

      —ivhen necessary to allege and prove in action for royalties, impracticability and unprofitableness of manufacture.
      One seeking to recover royalties for the manufacture of a patented article under a license, and the cancellation of the contract, need not allege and prove that the manufacture thereof was practicable and profitable, where the license did not bind the licensee to continue should it prove impracticable or unprofitable to do so.

      Statement of the Case.
    Bill by Charles W. Duer against Chicago Coach & Carriage Company, to cancel a contract entered into between the parties, under the terms of which the defendant was to manufacture automobiles under complainant’s patent. The bill also sought the restraint of further manufacture and an accounting of moneys claimed to be due under the contract. From a decree awarding complainant the sum of $5,959.15, defendant appeals.
    Alfred E. Barr, for appellant.
    John A. Brown, 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.

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

   Mr. Presiding Justice Fitch

delivered the opinion of the court.

2. Patents, § 34 —who has burden of showing in action for royalties, impracticability or unprofitableness of manufacture. Whenever it becomes material to the defense of an action for an accounting for royalties to show that it was impracticable or unprofitable to manufacture under a license, the burden is on the licensee to establish such claim.

3. Patents, § 30 —when action to cancel license constitutes rescission. The filing of a bill by a licensor to cancel a license to manufacture a patented article, if acquiesced in by the licensee, constitutes an election to rescind.

4. Patents, § 30 —when licensee liable for royalties accruing after suit to cancel license. Where a licensee, on the filing of a bill by the licensor for the cancellation of a license to manufacture a patented article under a license, denies the licensor’s right to rescind, and asserts that the license is in full force and effect, and continues to manufacture thereunder for a year and a half before expressly assenting to a cancellation, held that the licensee could not complain of a decree requiring him to account for royalties up to the time of assenting to the cancellation.

5. Patents, § 30 —when verbal cancellation of license not shown. Where verbal testimony as to notice of ceasing to manufacture a patented article under a license is disputed, such statements will not override the sworn answer of the licensee in an action for an accounting of royalties, asserting the continuance of the license in full forpe and effect.

6. Patents, § 34 —when action for cancellation of license will not defeat right to royalties subsequently accruing. The filing of a bill for the cancellation of a license to manufacture a patented article and to recover royalties does not deprive the licensor of the right to an accounting for royalties accruing until the actual cancellation of the license by decree or formal assent of the licensee.

7. Interest, § 23 —when interest recoverable for nonpayment of royalties under license. Where a license to manufacture a patented article fixes the amount of royalty and the time for payment, interest is recoverable thereon for a failure to make payments when due.

8. Patents, § 30 —when license terminable for impracticability or unprofitableness of manufacture. A license to manufacture a patented article, held to permit the licensee to terminate the contract if it proved impracticable or unprofitable to manufacture thereunder.

9. Patents, § 30 —when license terminated. A licensee held not to have terminated a license to manufacture a patented article because it was impracticable or unprofitable to do so.

10. Cobpohations, § 334 —when corporation organized to manufacture carriages and vehicles may malee automobiles. A corporation organized to manufacture and sell “carriages, coaches and other vehicles” may engage in making and selling automobiles.

11. Damages, § 67 —when royalties accruing after cancellation of license recoverable. Where on the filing of a bill for an accounting for royalties, and for the cancellation of a license to manufacture a patented article, the licensee asserts the continuance of the license until more than a year after the filing of the bill, when he formally assented to its rescission, held that the licensor could not recover royalties or an agreed compensation as superintendent for the licensee, which accrued subsequently to the latter’s assent to the cancellation.


text:
    Watson Fireproof Window Company, Appellee, v. James A. Miller and Robert B. Miller, trading as James A. Miller & Brother, Appellants.
    Gen. No. 20,356.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. John J. Stjeeivan, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1914.
    Affirmed.
    Opinion filed June 17, 1915.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Appeal from: a judgment of the Municipal Court 'of Chicago in favor of the Watson Fireproof Window Company, plaintiff, against James A. Miller and Robert B. Miller, trading as James A. Miller & Brother, defendants, for an amount claimed as royalties on the manufacture of a patented device under a license granted by the plaintiff.
    It appeared from the evidence that plaintiff was a New York corporation; that the contract between the parties was signed in Chicago; and that at the time it was signed, the plaintiff had not obtained from the Secretary of State any certificate authorizing it to do business in Illinois. There was no evidence, beyond the mere fact that the contract was signed in Chicago, tending to prove that the plaintiff was doing any business in Illinois.
    Abstract of the Decision.
    1. Corporations, § 708

      —when making contract by foreign corporation constituted doing business within State. The execution within the State hy a foreign corporation of a single contract licensing the manufacture of a patented article owned hy it does not constitute doing business within the State in violation of the Foreign Corporation Act (J. & A. If 2531).

      The contract provided: “This agreement contemplates the vigorous assertion of said Watson patent No. 702754 against infringers to the end that the licensees may be protected and the licensor agrees that it will institute suit and prosecute the same to conclusion. If any adverse decision is handed down by any Circuit Court of Appeals, said licensees shall not be obliged to pay guaranty until such decision is reversed by higher court.” It appeared from the evidence that a suit was brought against every person, firm or corporation that was infringing the patent except one concern that went into the hands of receivers; that by agreement between the parties to such suits, one of them was made a test case, and that the test case was pending when this suit was brought. There was evidence that the taking of testimony in the test suit had been delayed somewhat, but there is no evidence that such delay was the fault of the plaintiff.
    J. H. Perkinson, for appellants.
    Bell & Cross, for appellee; Delbert A. Clithero, of counsel.

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

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

   Mr. Presiding Justice Fitch

delivered the opinion of the court.

2. Patents, § 29 —violation 6y licensor of agreement to prosecute infringers. The evidence in an action to recover royalties upon the manufacture of a patented article, held not to show a violation of the licensor’s agreement to vigorously prosecute infringers.

3. Patents, § 29 —granting licenses to another on more favorable terms in violation of agreement. The granting of licenses to manufacture a patented article on more favorable terms than those given the defendant, in violation of the terms of his license, held no defense to an action for royalties, where such licenses were granted with his knowledge and consent.


author: Mr. Justice Scanlan

text:
    Watson Fireproof Window Company, Defendant in Error, v. James H. Perkinson and Herman E. Brown, copartners, trading as Perkinson & Brown, Plaintiffs in Error.
    Gen. No. 20,047.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. James C. Maetin, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1914.
    Affirmed.
    Opinion filed June 17, 1915.
    Statement of the Case.
    This case in all essential features is identical with that of Watson Fireproof Window Co. v. Rysdon, 189 Ill. App. 134, and Watson Fireproof Window Co. v. Miller, ante, page 316, and is governed by the decision of the latter case.
    James H. Perkinson, for plaintiffs in error.
    Bell & Cross, for defendant in error; Delbert A. Clithero, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    M. M. Thomas, Defendant in Error, v. Harder’s Fireproof Storage & Van Company, Plaintiff in Error.
    Gen. No. 20,394.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Joseph P. Rafferty, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed June 17, 1915.
    Statement of the Case.
    Action by Marie M. Thomas against Harder’s Fireproof Storage & Van Company for the value of an auto truck stored in defendant’s warehouse. From a judgment for plaintiff, defendant appeals.
    The truck originally belonged to one Theodore W. Jones, and was sold by him to the plaintiff. Jones afterwards married the plaintiff, and they went to Kansas to live. Just prior to their leaving Illinois, in December, 1907, the truck was stored with the defendant, who issued its warehouse receipt for the same, in the name of M. M. Thomas, although the actual delivery of the truck to the defendant was made by Jones. Jones and his wife were divorced (or the marriage between them annulled) in 1908. Defendant sent monthly statements of the storage charges to M. M. Thomas at Topeka, Kansas, for about a year; and during that year, Jones wrote the defendant several letters, requesting and purporting to authorize the defendant to sell the truck. On December 16, 1908, the defendant wrote to Jones saying: “We have at last succeeded in closing deal for your automobile truck on the lines previously written you, viz., to net you $400,” and requested him to “please send in the warehouse receipt which was outstanding in the name of M. M. Thomas” and a bill of sale “made out to us or the International Automobile Co.”; and in answer to this letter, Jones wrote from Denver, Colorado, that the warehouse receipt was at a certain street number in Topeka, Kansas (which was the plaintiff’s address, as shown by defendant’s bill to her for storage charges); that this house was closed because of his absence and because of the absence of M. M. Thomas, who was in Baltimore, Md., at’ the bedside of a sick sister, and suggested that defendant go on and make the sale just as if the car was his own property, and promised that on his return to Topeka, the warehouse receipt would be mailed to him. On January 5, 1909, defendant wrote to Jones that it was “holding check for $400,” which it would forward upon receiving the warehouse receipt for cancellation, “as we do not care to deliver said truck without cancellation of this receipt.” The warehouse receipt was" never delivered by Jones. During 1909, and part of 1910, defendant used the truck as its own property, and it was finally “burned up” in a fire in defendant’s machine shop occurring some time in 1910. In November, 1911, defendant paid $400 to Jones for the truck and received from him a bill of sale, and an affidavit that he was the owner of the truck. Defendant knew the plaintiff, who had previously stored some of her furniture in its warehouse, and in 1912, she presented the warehouse receipt and made a demand upon the defendant for the truck, and when it was not forthcoming, brought this suit to recover its value.
    The defendant took the position that if Jones was not the real owner of that truck, he was at least the agent of the plaintiff, who had actual possession of the truck and the “apparent power of disposition,” and that in buying the truck from him, the defendant was in the position of an innocent party who was misled, through the fault of the plaintiff.
    Robert W. Dunn, for plaintiff in error.
    T. Webster Brown, for defendant in error; Edward H. Morris, of counsel.

      Abstract of the Decision.
    1. Warehousemen, § 8

      —when estopped to deny ownership. One who issues a warehouse receipt to a married woman with whom he is well acquainted and to whom he sends monthly bills for storage charges to another city, where she was then residing, for a period of one year is estopped from asserting that such person was not the owner, although the husband of such person who had been divorced or had had the marriage annulled had repeatedly written the owner of the warehouse that he had authority to sell and urged the sale of the property, but was unable to produce the warehouse receipt even after the lapse of three years, because of the alleged absence of his wife.
    2. Warehousemen, § 8

      —when not an innocent purchaser. A warehouseman, with whom property has been stored for a period of three years by a woman who was married at the time, the parties being shortly after divorced, or the marriage annulled, is not an innocent purchaser, for value where he sends monthly storage bills to such woman, with whom he was well acquainted, for a period of one year to her residence in another State, although he is urged by the husband to sell the property, and he knew for a period of three years that the husband could not produce the warehouse receipt and that it was in the hands of the wife, and he had refused for two years of such period to pay over the money to the husband because the receipt was in the hands of the wife, and finally paid for the property upon receiving a bill of sale from the husband and an affidavit that he was the owner of the property.
    3. Appeal and error, § 1003

      —when sufficiency of evidence not considered. The question as to whether a verdict and judgment are against the weight of evidence cannot be considered where the transcript of the record does not contain all the evidence.

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

   Mr. Presiding Justice Fitch

delivered the opinion of the court.