text:
    George P. Bent Company, Defendant in Error, v. Michael Zimmer, Sheriff, et al., Plaintiffs in Error.
    Gen. No. 19,604.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John K. Pbindivikle, Judge, presiding.. Heard in the Branch Appellate Court at the October term, 1913.
    Reversed and remanded.
    Opinion filed December 22, 1914.
    Statement of the Case.
    The George P. Bent Company, a corporation, instituted a replevin suit against Kate Franklin for the recovery of a piano, and such piano was taken under the writ and delivered to the Bent Company. On the trial of the suit the Bent Company took a nonsuit, and the court ordered that a writ of retorno habendo issue for the return of the piano to Kate Franklin and that she recover costs and have execution therefor. Subsequently the sheriff in execution of said writ took the piano from the Bent Company, and while the piano was in his possession the Bent Company instituted this replevin. suit to recover such piano, against Michael Zimmer, sheriff of Cook County, Kate Franklin and H. 0. Franklin. The replevin writ was directed to the bailiff of the Municipal Court and he replevined the piano, the writ being served on the sheriff, but not on the Franklins. Subsequently the sheriff entered his appearance and in Ms affidavit of merits alleged that he was lawfully in possession of the piano under the writ of retorno habendo. The trial was postponed for notice by publication to the Franklins and when they did not appear they were defaulted. On the trial a judgment was entered on a finding that the Bent Company was entitled to possession of the piano and this writ of error was brought.
    Abstract of the Decision.
    Replevin, § 124

      —when finding as to right to possession not sustained, by evidence. A finding in a replevin suit that a plaintiff was entitled to possession of a piano is not supported by the evidence, where it appeared that the defendant was a sheriff who had taken temporary possession of such piano under a writ of retorno habendo issued in a prior replevin suit, since such temporary possession of the sheriff was lawful, and where it also appeared that the evidence was insufficient to show that the plaintiff was lawfully entitled to possession.
    William A. Rogan and John G. Petteys, for plaintiffs in error.
    W. Knox Haynes and Michael Feinberg, for defendant in error; Michael Feinberg, of counsel.

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

   Mr. Justice Gridley

delivered the opinion of the court.


source: Caselaw Access Project

author: Mr. Justice Gridley

license: Public Domain

text:
    George H. Schneider and Homer H. Schneider, trading as G. H. Schneider & Company, Defendants in Error, v. Robert Commons, Plaintiff in Error.
    Gen. No. 20,000.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Brokers, § 90

      —when evidence shows right to compensation. In an action by brokers for commissions for procuring a purchaser for real estate, evidence held to show that the plaintiffs were verbally authorized to sell the land, that they found a purchaser ready, willing and able to buy, and that the defendant refused to consummate the sale, wherefore the plaintiffs were entitled to commissions.

      Error to the Municipal Court of Chicago; the Hon. Henry C. Beitler, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.
    Affirmed.
    Opinion filed December 22, 1914.
    Statement of the Case.
    George H. Schneider and Homer H. Schneider, real estate brokers, trading under the firm name of G. H. Schneider & Company, commenced a fourth-class action in the Municipal Court of Chicago against Robert Commons, defendant, to recover one hundred and fifty dollars as commissions for procuring a purchaser for defendant’s premises. The case was tried before a jury, resulting in a verdict for the plaintiffs and assessing their damages at one hundred and fifty dollars, upon which verdict judgment against the defendant was entered, and he brought error.
    N. M. Jones, for plaintiff in error.
    Homer H. Schneider and Jones, Kerner & Posvic, for defendants in error; De Witt C. Jones, 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. Justice Gridley

delivered the opinion of the court.

2. Brokers, § 47 —-what authority necessary to sell land. A real estate agent who procures a purchaser ready, willing and able to buy is entitled to commissions when the principal refuses to sell, even though such agent is not authorized in writing to sell and his acts are not ratified in writing.


text:
    Voightman & Company for use of Watson Solar Window Company, Defendant in Error, v. Guaranty Construction Company and E. F. Hamm, Plaintiffs in Error.
    Gen. No. 20,034.
    (Not to Ibe reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Rufus T. Robinson, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.
    Reversed and remanded.
    Opinion filed December 22, 1914.
    Statement of the Case.
    The Watson Solar Window Company commenced an action against the Guaranty Construction Company, a corporation, and E. F. Hamm to recover the sum of $686 for certain art metal doors furnished in accordance with a contract made by and between the Construction Company and the Watson Company, by Voightman & Company, its selling agents. The action was based on section 28 of the Mechanics’ Liens Act of 1903, (J. & A. 7166), authorizing suits against the owner and contractor jointly. Subsequently the records, papers and proceedings were amended on motion of the plaintiff, so as to read' “Voightman & Company for use of Watson Solar Window Company.” The defendant Hamm denied knowing by whom the doors were installed, or of the relation between Voightman & Company and the Watson Company, and denied service of a'mechanic’s lien notice as required by law, and the Construction Company also denied its liability. The case was tried before' the court without a jury, and the issues being found in favor of the plaintiff, its damages were assessed at $714.82, the full amount of the claim with interest. It was also found that the plaintiff was a subcontractor and entitled to a lien upon the premises, and judgment being entered on such findings, the defendants brought error.
    Abstract of the Decision.
    1. Mechanics’ liens, § 1

      —what is nature of lien. A mechanic’s lien is in derogation of the common law, is opposed to common right and. cannot he given except when authorized by the provision of a statute strictly construed.
    2. Mechanics’ liens, § 207*—when joint judgment authorised. Under section 28 of the Mechanics’ Liens Act of 1903, (J. & A. If 7166), the trial court may enter a joint judgment against the owner and contractor if the subcontractor establishes its right to a lien on the premises, and such section authorizes a suit against the owner and contractor jointly if money is due the subcontractor and is not paid within ten days after its notice was served as provided in sections 5, 24, 25, 27, (J. & A. 7143, 7162, 7163, 7165).
    3. Mechanics’ liens, § 207*—what must he shown to authorise joint judgment. Where the evidence failed to show that a subcontractor served a notice of lien on the owner as required by section 24 of the Mechanics’ Liens Act (J. & A. If 7162), within sixty days after completion of its contract, or that such owner dispensed with the necessity of notice, or that the contract was in fact completed, or that the owner was indebted to the original contractor when a notice was given, or that the suit was commenced within four months after final payment was due the subcontractor, the court was not authorized to enter a judgment against the owner and contractor for materials furnished and establishing a lien therefor, under section 28 of the Mechanics’ Liens Act, (J. & A. If 7166).

      Adams, Crews, Bobb & Wescott, for plaintiffs in error.
    Bell & Cross, for defendant in error.

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

   Mr. Justice Gridley

delivered the opinion of the court.

4. Appeal and error, § 909*—what must be included in transcript. The Appellate Court cannot take judicial notice of rules of the Municipal Court not incorporated in the transcript.


author: Mr. Justice Gridley Barnes, Presiding Justice :

text:
    Photo Cines Company, Defendant in Error, v. American Film Manufacturing Company, Plaintiff in Error.
    Gen. No. 20,057.
    1. Appeal and error, § 578

      —when exception to judgment necessary. Section 23 of the Municipal Court Act of 1905 as amended in 1907, (J. & A. If 3335,) which has reference to the prosecution of writs of error in cases of the fourth and fifth classes, does not authorize the Appellate Court to review the evidence in a fourth class case tried without a jury to determine whether a judgment is against the weight of the evidence where there is no formal exception to the judgment.
    2. Appeal and error, § 551*— how statutes as to exceptions are construed. The second clause of section 81 of the Practice Act as amended in 1911, (J. & A. If 8618,) as to exceptions during the progress of any trial, and sections 82 and 83, (J. & A. Iflf 8619, 8620,) authorizing the allowance of an exception to a final judgment of the court in a case tried without a jury, are to be construed together.
    3. Appeal and error, § 551*—when exception during trial is necessary. Under section 81 of the Practice Act as amended in 1911, (J. & A. 1f8618,) as to exceptions during the progress of any trial, the word “trial” means a judicial examination of the issues between the parties, and such section is not strictly construed.
    4. Appeal and error, § 551*—when exception is necessary. Section 81 of the Practice Act, (J. & A. If 8618,) providing for a review of any matters at the trial, upon which the court rules adversely, without formal exception thereto, is not confined to a ruling made before the court has pronounced the finding, and does not exclude the judgment or decision of the court, it being the evident intent of the legislature to provide a method for the- review of causes without the necessity of the record disclosing that a formal exception was taken at the time to the adverse ruling upon which error is assigned.
    5. Appeal and error, § 578

      —When court may review evidence. In an action of the fourth class before the Municipal Court of Chicago, where the case was tried by the court without a jury, and where the defendant objected to a finding against it and moved for a new trial, the Appellate Court was authorized to determine whether such finding was against the weight of the evidence, where the stenographic report of the trial complied with section 81 of the Practice Act, (J. & A. jf 8618,) but did not show that the defendant excepted to the entry of the judgment.
    6. Sales, § 267*—when warranty is violated. In an action to recover damages for breach of an oral contract to purchase raw cinematograph film, the evidence was held to show that such film was purchased under an express warranty, that the same was first class and of good quality, and also under an implied warranty that it was merchantable and fit for the defendant’s use, and since such film did not comply with the warranties, the defendant was not liable for film shipped after notice to the plaintiff not to make further shipments.
    7. Sales, § 404*—when evidence will warrant recovery for breach of warranty. In an action for damages for breach of an oral contract to purchase raw cinematograph film, a finding in favor of the plaintiff was held not warranted by the evidence, since the evidence as to damages was not sufficiently definite to warrant such finding, and since it -was not sufficiently shown that the plaintiff in making a resale of film, which the defendant refused to accept, did so to the best advantage of the defendant.
    Barnes, P. J., concurring specially.
    Error to the Municipal Court of Chicago; the Hon. Joseph S. La Buy, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.

    Reversed and remanded.
    Opinion filed December 22, 1914.
    Rehearing denied January 5,1915.
    James P. Grier and Dayton Ogden, for plaintiff in error.

      Newman, Poppenhusen & Stern, for defendant in error; Charles T. Farson, 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. Justice Gridley

delivered the opinion of the court.

The Photo Cines Company, a corporation with principal office in the city of New York, commenced an action of the fourth class in the Municipal Court of Chicago, to recover damages for the breach of an oral contract, against the American Film Manufacturing Company, an Illinois corporation with principal office in the city of Chicago, defendant. It was alleged in plaintiff’s statement of claim, in substance, that under said contract plaintiff agreed to sell and ship to the defendant at Chicago, and the defendant agreed to accept from the plaintiff 68,012 feet of raw, positive, cinematograph film, at three and one-half cents per foot, said film to be paid for in cash upon the delivery thereof; that on or about February 16, 1911, plaintiff shipped said film to Chicago but defendant refused to accept and pay for the same; that by reason of such refusal plaintiff was obliged to sell said film “in the open market” at great loss, and also incurred expenses for express and freight charges, and plaintiff sustained damages in the sum of $752.22. In defendant’s affidavit of merits it was alleged, in substance, that defendant did not owe plaintiff any sum as damages; that plaintiff violated said oral contract in that the film offered to be delivered to defendant was defective in quality and not according to the terms of said contract as to quality, and was unmerchantable and wholly unfit for use in defendant’s business; that because of this defendant refused to accept said film; and that portions of the film, sold under said contract and previously accepted by defendant, were so' defective in quality that the use thereof resulted in great damage and loss to defendant and brought it into bad repute with its customers, etc. The case was tried before the court without a jury, resulting in the court finding the issues against the defendant and assessing plaintiff’s damages at the sum of $752.22, and entering judgment upon the finding.

The defendant seeks by this writ to reverse the judgment, chiefly .upon the ground that the finding and judgment are against the weight of the evidence. The plaintiff contends- that inasmuch as it does not appear from the stenographic report of the proceedings at the trial that defendant excepted to the judgment, the question of the sufficiency of the evidence to support the judgment cannot now be inquired into by this court.

The stenographic report appears to have been submitted to the trial judge for certification by him and to have been filed with the clerk of the court in apt time. It purports on its face to be a “stenographic report of the testimony taken and proceedings had on the trial,” and to contain all the evidence, and it seemingly contains the rulings of the court upon all the questions submitted and ruled upon by the judge of the court. The trial judge certifies over his official signature that the same “is a full, true and complete transcript of all the evidence taken and offered at the trial of the foregoing case and the rulings of the court with respect to such evidence, and a correct stenographic report of the proceedings at the trial of said case, and a correct statement of such other proceedings in said case as said party desires to have reviewed.” It also appears that after-the court had announced his finding the defendant moved to set the same aside and for a new trial, which motion was overruled and defendant excepted, and thereupon the court entered judgment in the following words: “Enter judgment in favor of the plaintiff and against the defendant in the sum of $752.22,” and thereupon defendant, by its counsel, prayed an appeal to this court, which was allowed upon filing bond, etc. But the report does not disclose that the defendant excepted to the entry of the judgment, and it does not appear that any propositions of law were submitted.

Prior to the amendment, hereinafter mentioned, to section 81 of the Practice Act of 1907, (J. & A. 8618), it was the law that in the absence of an exception to the judgment, in a case tried before the court without a jury, the sufficiency of the evidence to support the judgment could not be inquired into upon an appeal. Climax Tax Co. v. American Tag Co., 234 Ill. 179, 182. And it was also the law that in a case so tried a motion for a new trial was neither required nor authorized by law or the rules of practice, and could serve no purpose whatever in preserving questions for review. Climax Tag Co. v. American Tag Co., supra; Mahony v. Davis, 44 Ill. 288, 291; Sands v. Kagey, 150 Ill. 109, 114; Union Ins. Co. v. Crosby, 172 Ill. 335, 336. In the Crosby case the action was in assumpsit and a trial was had before the court without a jury and judgment was rendered for the defendant. Ño propositions of law were submitted to the trial judge and no exception was taken to the judgment. A motion for a new trial, however, was made, and it was argued that such motion was, of itself, a sufficient exception to the judgment, but the court held to the contrary. In the Climax Tag Co. case the action was also in assumpsit and a trial was had without a jury and the finding and judgment were in favor of the plaintiff. The bill of exceptions disclosed that when, at the conclusion of the trial, the court announced its decision finding the issues for plaintiff and assessing its damages at a certain sum, counsel for defendant said: “I think you are wrong,” and stated he desired to enter a motion for a new trial, and that thereupon the court announced: “Motion for new trial overruled and exception, appeal prayed to Appellate Court and granted; you can have thirty days for a bond”; but the bill of exceptions did not disclose that a formal exception was taken to the judgment itself. It was contended in the Supreme Court that said statement of defendant’s counsel, made when the court announced its decision, was a protest against the court’s finding and judgment, and was to all intents and purposes an exception, but the court held otherwise. It was further contended that said statement of defendant’s counsel, followed by a motion for a new trial, which motion was overruled, exception taken to the order overruling the motion and an appeal prayed and allowed, showed an intention to have the court’s rulings reviewed, and that what he said as to the rendition of the judgment, in the light of the subsequent steps taken, should be held to be an exception to said judgment, but the court held to the contrary. In the light of the decisions of our Supreme Court we are of the opinion that in the present case, the stenographic report not affirmatively showing that defendant formally excepted to the judgment of the trial court, the question whether the judgment is against the weight of the evidence cannot be considered by us, unless we are authorized to do so under and by virtue of the amendment, hereinafter mentioned, to section 81 of the Practice Act of 1907.

And we do not think that we are authorized to review the evidence in the absence of a formal exception to the judgment, because of the provisions contained in subdivision 8 of section 23 of the Municipal Court Act of. 1905, as amended in 1907 (J. & A. 3335), which section has reference to the prosecution of writs of error in cases of the fourth and fifth classes. Said subdivision provides in part as follows:

“Nor shall any exceptions to the rulings and decisions of the Municipal Court upon the trial, which appear to have been made against the objection of the party complaining thereof, be necessary to the right of either party to a review of such rulings and decisions in the Supreme Court or Appellate Court upon their merits, but it shall be the duty of the Supreme Court or the Appellate Court, as the case may be, to decide such case upon its merits as they may appear from such statement or stenographic report or reports signed by the judge.”

Section 38 of said Municipal Court Act as amended (J. & A. jf 3350), provides in part as follows:

“That whenever it appears in any bill of exceptions signed in any case of the first class or any case of the second class or any case of the third class or any bastardy case, * * * that any erroneous ruling was made by said Municipal Court, against the objection of the party complaining thereof, but that no formal exception was taken by such party thereto, such erroneous ruling shall be subject to review upon appeal or writ of error to the same extent and in like manner as if it appeared that a formal exception had, been taken thereto by the party complaining.”

In Blake v. DeJonghe Hotel & Restaurant Co., 263 Ill. 471, which was a case of the first class in the Municipal Court tried without a jury, it is said (p. 473, italics ours):

“Although in this case there was a waiver of a jury, nevertheless the Appellate Court had no authority to determine the question of fact or to review the evidence because there was no exception to the judgment of the trial court. # * * The defendant in error relies upon section 38 of the Municipal Court Act, * * *. Section 29 of article 6 of the constitution requires all laws relating to courts to be of uniform operation, and this requires that they shall operate uniformly in all similar cases in the particular court. The provision of the Municipal Court Act just mentioned is in conflict with this provision of the constitution and is therefore void. In all cases coming from any court but the Municipal Court, the Appellate Court or this court could review the judgment of the trial court as to the evidence only in case an exception was taken to the judgment and made a part of the record by a bill of exceptions. Section 38 would destroy uniformity of procedure and practice of this court and the Appellate Court in cases coming from the Municipal Court, and the provision is in conflict with the constitution. * * * The amendment to section 81 of the Practice act did not go into effect until July 1, 1911, eight months after the trial in the Municipal Court, and did not affect this case.”

It will be noticed that the provisions of said section 23 and of said section 38 of the Municipal Court Act as regards exceptions are quite similar. If, for the reasons stated in the Blake case, supra; this Appellate Court has no authority to review the evidence in a first class case, tried in the Municipal Court without a jury, because no exception was taken to the judgment, we think it is plain that for the same reasons this court has no authority to review the evidence in a fourth class case, tried in said Municipal Court without a jury prior to July 1, 1911, it not appearing that an exception was taken to the judgment. Lassers v. North-German Lloyd Steamship Co., 244 Ill. 570, 573. The present case is one of the fourth class, tried in the Municipal Court without a jury in October, 1913, the judgment being entered on October 16th, more than two years after said amendment to section 81 of the Practice Act of 1907 went into effect.

What is that amendment? And by virtue of it are we authorized to review the evidence in the present case, notwithstanding it does not appear that any formal exception was taken to the entry of the judgment?

Section 59 of the Practice Act of 1872 provided as follows:

“If, during the progress of any trial in any civil cause, either party shall allege an exception to the opinion of the court, and reduce the same to writing, it shall be the duty of the judge to allow said exception, and sign and seal the same, and the said exception shall thereupon become a part of the record of such cause.”

The above provision became the first clause of section 81 of the Practice Act of 1907, with the words “and seal” omitted, and with the words “or criminal” added between the words “civil” and “cause,” and other clauses were added, and became a part of section 81, as to the sufficient authentication of a bill of exceptions or certificate of evidence, etc.

By the amendment made to section 81 in 1911, the said first clause of the section remained in the section, and immediately preceding said clause the following new clause appeared as the first clause of the section:

“If, during the progress of any trial in any civil or criminal cause, either party shall submit to the court any matter for a ruling thereon and the court shall rule adversely to the party submitting the same, such ruling shall be deemed a matter for review in any court to which the same cause may be thereafter taken upon appeal or by writ of error without formal exception thereto, and after judgment, at any time during the term of the court at which judgment was entered or within such time thereafter as shall, during such term, be fixed by the court, any party desiring to prosecute a writ of error to or appeal from any such judgment, may submit to the court a stenographic report of the trial containing the evidence and the rulings of the court upon all or any of the questions submitted to and ruled upon by the judge thereof, and he shall examine the same, and, if correct, officially certify to the correctness of such report, and the same shall thereupon be filed in said court and become a part of the record in said cause, and all matters and things contained in such stenographic report shall become as effectually a part of said record as if duly certified in a formal bill or bills of exceptions, or * * * .”

In said section 81, as amended in 1911, again was contained the clauses as to the sufficient authentication of a bill of exceptions or certificate of evidence, save that wherever the words “bill of exceptions or certificate of evidence” appeared, these words were changed to read “bill of exceptions, certificate of evidence or report of trial”; and other new clauses were added relative to the filing of a prcecipe for a record, etc.

Sections 60 and 61 of the Practice Act of 1872 provided as follows:

“60. Exceptions taken to decisions of the court, upon the trial of causes in which the parties agree that both matters of law and fact may be tried by the court, and in appeal cases, tried by the court without the intervention of a jury, shall be deemed and held to have been properly taken and allowed, and the party excepting may assign for error, before the Supreme Court, any decision so excepted to, whether such exception relates to receiving improper or rejecting proper testimony, or to the final judgment of the court upon the law and evidence.”
“61. Exceptions taken to decisions of the court, overruling motions in arrest of judgment, motions for new trials, motions to amend and for continuances of causes, shall be allowed, and the party excepting may assign for error any decision so excepted to.”

These two sections became sections 82 and 83, respectively, of the Practice Act of 1907 (J. & A. fifí 8619, 8620), save that in section 82 the words “before the Supreme Court,” contained in section 60, were omitted. It may be of assistance to a better undérstanding of the meaning of the three sections, section 81 as amended, and sections 82 and 83, as construed together, to here relate a portion of their history.

Anciently, no error could be assigned, except for an error of law, apparent upon the face of the record itself. Baxter v. People, 8 Ill. (3 Gilm.) 368, 373. Hence, where a party alleged anything ore terms which was overruled by the judge, this could not be assigned for error. Yarber v. Chicago & A. Ry. Co., 235 Ill. 589, 598; Wheeler v. Winn, 53. Pa. St. 122, 126. “There was no bill of exceptions, and, therefore, no ruling on the admission or rejection of evidence, error in the charge of the court, or objection of any kind arising on the trial, could be alleged for error because it did not appear on the record, and so the party aggrieved had no remedy.” Yarber case, supra. To remedy this hardship the Statute of Westminster 2 (13 Edw. 1, ch. 31) was passed, “which directed the justices to allow and put their seals to an exception when he that alleges the exception writes the same and requires them to do so. The statute did not appoint the time when the exception should be allowed and sealed, but the practice was, as the nature of the thing required, that the substance of the exception should be reduced to writing when taken, though it need not then be drawn up in form. (2. Tidd’s Pr. 863.) By the statute of February 4, 1819 (which is now chapter 28 of the Revised Statutes), this statute became a part of the law of Illinois.” Haines v. Knowlton Danderine Co., 248 Ill. 259, 261. By virtue of said statute of Westminster 2, “the bill of exceptions was upon a matter of law arising on the trial and not upon any question of fact, and judgment was required to be given on the writ of error according to the exception as it ought to be allowed or disallowed. But no question of fact could be drawn into examination again by a bill of exceptions. * * * The motion for a new trial was not only unnecessary, it was practically unknown. * * * It was not until the middle of the seventeenth century that the practice of granting new trials upon motion began to prevail, * * *. The object of the motion for a new trial was not to review any error of law committed by the court, but was to review the question of fact as found by the jury. The granting or denial of the motion was entirely discretionary with the court. No exception could be taken to the decision thereon, nor could it be assigned for error.” Yarber case, supra.

In 1827 the G-eneral Assembly of this state passed an act entitled “An Act concerning Practice in Courts of Law,” in force June 1, 1827 (Revised Laws, 1827).

Section 19 of the act provided:

“If during the progress of any trial in any civil cause, either party shall allege an exception to the opinion of the court, and reduce the same to writing, it shall he the duty of the judge to allow the said exception, and sign and seal the same; and the said exception shall thereupon become a part of the record of such cause.”

Our Supreme Court has held that this section was “substantially the same as the Statute of Westminster 2” and “introduced no change.” Raines case, supra. The section became section 21 of the Practice Act of 1845 (E. S. 1845), and later section 59 of the Practice Act of 1872, and still later, with the slight changes above mentioned, the first clause of section 81 of the Practice Act of 1907, and still later, with said slight changes, the second clause of section 81, as amended in 1911. Both before and after the passage of said Practice Act of 1827, and until the passage of the act of July 21, 1837, hereinafter mentioned, our Supreme Court in several cases held that the granting or refusing a new trial was a question to be determined in the sound discretion of the trial court, and that no exception could be taken or error assigned on the trial court’s refusal. Clemson v. Kruper, Beecher’s Breese 210; Street v. Blue, id. 261; Adams v. Smith, id. 283; Vernon, Blake & Co. v. May, id. 294; Harmison v. Clark, 2 Ill. (1 Scam.) 131. In Clemson v. Kruper, supra (decided before section 19 of the Act of 1827 was passed), a verdict was returned for the plaintiff, Kruper, in an action of assumpsit. The defendant’s motion for a new trial was overruled, “and a bill of exceptions, containing the evidence given on the trial, was taken to the opinion of the court overruling the motion for the new trial.” Judgment was rendered on the verdict, and defendant assigned as error in the Supreme Court the overruling of his motion for a new trial. It was urged by defendant in error (plaintiff) that the refusal to grant a new trial could not be assigned for error, and the court so held and affirmed the judgment, saying (p. 211): “This objection, the court think, well taken, both on the score of adjudged cases, and on principle. A bill of exceptions cannot be taken, unless the exception be made on the trial, and before the jury is discharged, and it lies for receiving improper or rejecting proper testimony, or misdirecting a jury on a point of law. The bill of exceptions taken in this case was not for any decision that occurred during the progress of the trial, and was therefore improperly allowed.” The other cases, last above cited, were all decided after said act of 1827 was passed, and were to the effect, following Clemson v. Kruper, supra, that a refusal to grant a new trial could not be assigned as error. After the passage of said act of 1827 and until the passage of said act of July 21, 1837, hereinafter mentioned, our Supreme Court in several cases also held that a bill of exceptions would not lie to the final judgment of the trial court, where the case was tried by the court without a jury. Swafford v. Dovenor, 2 Ill. (1 Scam.) 165; White v. Wiseman, id. 169; Gilmore v. Ballard, id. 252; Ballingall v. Spraggins, 2 Ill. 330. In the Gilmore v. Ballard case, the court followed the holding in Clemson v. Kruper, supra, to the effect that a bill of exceptions cannot be taken unless the exception be made on the trial, and that it lies only for receiving improper or rejecting proper testimony, or deciding incorrectly a point of law, and said (p. 253): “In the present case, the bill of exceptions was taken to the judgment of the court upon the facts given in evidence by the parties. The course to be pursued in a case tried by the court without a jury is clearly pointed out in the case of Swafford v. Dovenor, * * *. Whenever the defendant supposes that the plaintiff has failed to support his action, he should move the-court to nonsuit the plaintiff, or demur to the testimony. If he does neither, and goes on and gives evidence, the office of the judge is then completely merged into that of a juror. He has only to decide upon the weight of testimony; and his decision, if wrong, can only be reviewed in the same manner as the wrong verdict of a jury, to wit, by application for a new trial, and consequently a bill of exceptions cannot be taken.”

It doubtless sometimes happened, in cases tried with or without a jury, that the trial court in refusing a new trial abused the discretion vested in it, yet the defeated litigant could not assign as error such refusal in an Appellate Court. To remedy this hardship the General Assembly passed an Act, in force July 21, 1837, entitled: “An Act to amend the Act entitled ‘An Act concerning Practice in Courts of Law,’ approved 29th January, 1827.” Laws of 1837, special session, p. 109. This amendment consisted of two sections, the first applying to cases tried by the court without a jury and the second to other cases, and is as follows:

“Sec. 1. * * * Exceptions taken to opinions and decisions of the circuit courts, upon the trial of causes, in which the parties agree that both matters of law and fact may be tried by the court; and in appeal cases, tried by the court without the intervention of a jury, shall be deemed and held to have been properly taken and allowed, and the party excepting may assign for error before the Supreme Court, any decision or opinion so excepted to, whether such exception relates to receiving improper, or rejecting proper testimony, or to the final judgment of the court upon the law and evidence.”
“Sec. 2. Exceptions taken to opinions or decisions of the circuit courts, overruling actions in arrest of judgment, motions for new trials, and for continuances of causes, shall hereafter be allowed; and the party excepting may assign for error any opinion so excepted to, any usage to the contrary notwithstanding.”

These two sections became sections 22 and 23, respectively, of the Practice Act of 1845, save that section 23 of the Act of 1845 did not have the words, ‘ ‘ any usage to the contrary notwithstanding.” And said two sections, with other slight changes, later became sections 60 and 61, respectively, of the Practice Act of 1872, and still later became sections 82 and 83, respeclively, as slightly changed, of the Practice Act of 1907.

In civil cases tried before a jury, after the passage of said Act of July 21, 1837, authorizing exceptions to be taken to the overruling of a motion for a new trial, our Supreme Court held that an appeal would lie from the decision of the trial court refusing such motion, Smith v. Shultz, 2 Ill. (1 Scam.) 490; Yarber v. Chicago A. Ry. Co., 239 Ill. 589, 600. It.was also held that, such right of exception being entirely statutory, and being allowed only to the overruling of motions for new trials, the refusal to grant a new trial was not reviewable (Brookbank v. Smith, 3 Ill. (2 Scam.) 78); and such is still the law. (Yarber case, supra.) It was also held that, in civil cases so tried, the overruling of a motion for a new trial, although the evidence was wholly insufficient to warrant the jury’s verdict, could not be reviewed, in the absence of an exception taken to the decision of the court in overruling said motion. Pottle v. McWorter, 13 Ill. 454, 456. And, as late as October, 1908, it was decided in the Tarter case, supra, (p. 597) that: “In order to bring the question of the sufficiency of the evidence to sustain the verdict before this court for review it is necessary for the losing party to make a motion for a new trial, and, upon its being overruled, to except to such ruling, and to include such motion, the order overruling the same, and his exception thereto, together with the evidence, in the bill of exceptions.”

In civil cases tried before the court without a jury, after the passage of said Act of July 21,1837, authorizing the taking of an exception “to the final judgment of the court upon the law and evidence” and assigning error thereon, our Supreme Court held that error could be assigned on such decision provided it appeared in the bill of exceptions that an exception was taken at the time to such decision (Parsons v. Evans, 17 Ill. 238; Metcalf v. Fouts, 27 Ill. 110, 114; David M. Force Mfg. Co. v. Horton, 74 Ill. 310, 311); and that in case it appeared that such exception was so taken, it was not necessary, in order to have the evidence reviewed, that it further appear either that a motion for a new trial was made, or if made and overruled that an exception was taken to the overruling of the motion. Mahony v. Davis, 44 Ill. 288, 292; Jones v. Buffum, 50 Ill. 277, 279.) As said in Mahony v. Davis, supra, where it was contended that the court could not review the evidence because there had not been made' a motion for a new trial: “There is an early decision of the court to that effect, but the late practice of the court has been to confine that decision to cases where the trial was by a jury. In the present instance it was by the court, and, the judge having once passed upon the evidence, it was not necessary to go through the form of submitting it to him again by moving for a new trial.”

It will be noticed that the provisions, strictly construed, of section 19 (relating to exceptions) of the Act of 1827, required that the exceptions to the opinion of the court should be alleged and reduced to writing by the party; and allowed, signed and sealed by the judge, all, during, the progress of the trial. Before the passage of the act of July 21,1837, our Supreme Court held, as above shown, that in civil cases tried before a jury the exception must be taken “on the trial and before the jury is discharged” (Clemson v. Kruper, supra), and that in cases tried without a jury the exception must be taken “on the trial.” (Swafford v. Dovenor, supra; Gilmore v. Ballard, supra.) When the act of July 21, 1837, was passed, authorizing the allowance of an exception taken to the decision of the trial court in overruling a motion for a new trial in a jury case, and further authorizing the allowance of an exception taken to the final judgment of the court in a case tried without a jury, section 19 of the act of 1827 still remained in the statutes, and the provisions of both acts, except as slightly changed as above shown, continued to remain in the statutes, and are now contained in the Practice Act of 1907, as amended. We think it appears that since July 21, 1837, these provisions have been construed together by our Supreme Court, and that they should now be construed together. It is manifest that the decision of the trial court in a case tried before a jury, overruling a motion for a new trial, is subsequent to the rendition of the .verdict; and it is equally manifest that the decision of the court in a case tried without a jury, rendering a final judgment on the law and evidence, is the conclusion of the trial. An exception taken to the judgment cannot be alleged before the judgment is pronounced.

The word “trial” is defined in 2 Burrill’s Law Dictionary (2nd Ed.) page 545, as follows: “In a general sense. The formal investigation and decision of a matter in issue between parties, before a competent tribunal. * * * In a stricter sense,—the examination before a competent tribunal, according to the laws of the land,' of the facts put in issue in a cause, for the purpose of determining such issue.” In Clennon v. Britton, 155 Ill. 232, 243, our Supreme Court said that the words “trial” and “hearing” are “familiar terms, and are generally understood as meaning a judicial examination of the issues between the parties, whether of law or' of fact.” In 21 Encyc. Pl. & Pr., 957, it is said: “The trial may be considered as incomplete until all the issues of law as well as of fact have been determined and until final judgment has been entered. ’ ’ In Jenks v. State, 39 Ind. 1, it appeared that it was provided in a certain section of the statutes of the State of Indiana that all bills of exception in a criminal case must be made out and presented to the judge “at the time of the trial,” or within such time thereafter during the term as the court might allow, signed by the judge and filed by the clerk; that the bill of exceptions was not signed or filed at the term at which the cause was submitted to the jury, but was signed and filed at the second term thereafter, that being the term at which the motion for a new trial was determined and judgment rendered; and that it was contended in the Supreme Court that said bill of exceptions was not properly in the record. The Court, in denying the contention, said (p. 10): “Until the motion for the new trial was disposed of, the cause was pending in court. * * * The proceedings were in fieri until judgment was rendered. We are of the opinion that the word trial, as used in the above section, was not used in its limited and restricted sense, but in a general sense, and includes all the steps taken in the cause from the submission of the cause to the jury to the rendition of judgment. * * * We think the section under examination should receive a liberal and beneficial construction, and not a strict, technical, and restricted one.” In Hake v. Strubel, 121 Ill. 321, 326, our Supreme Court said: “By an unbroken line of decisions it has been held by this court, that the exception must be taken at the time the alleged erroneous ruling or decision was made; and, also, that the bill of exceptions should show upon its face that the exception was taken at the time, and the bill signed, sealed and filed during the term. But to meet the varying exigencies, and for the convenience of bench and bar, the practice early obtained of allowing time in which to present the bill of exceptions, by an order entered of record in the cause, or by a written stipulation of parties filed in the case; and the time thus allowed often extended beyond the term, and the correctness of this practice has been repeatedly sanctioned by this court. See Evans v. Fisher, 5 Gilm. 453; Burst v. Wayne, 13 Ill. 664; Brownfield v. Brownfield, 58 id. 152; Goodrich v. Cook, 81 id. 41.” In Haines v. Knowlton Danderine Co., 248 Ill. 259, 261, it is said: “This practice was not founded upon the statute but grew out of the action of the courts.” In Burst v. Wayne, supra, the court, after quoting section 21 óf the Practice Act of 1845 (which is the same as section 19 of the Act of 1827), said: “Strictly speaking a party under this statute would he required to reduce his exception to writing, and have it signed during the progress of the trial; but a strict compliance with the letter of the statute would, in many cases, be impracticable, and has never been required.” It is thus seen that our Supreme Court, at least since the Act of July 21, 1837, has not strictly construed the provisions of section 19 of the Act of 1827 (which are now in substance contained in section 81 of the Practice Act of 1907, as amended in 1911).

In the case of Miller v. Anderson, 189 Ill. App. 72, recently decided by the “D” branch of this court, Miller and others, appellees, recovered a judgment in the Municipal Court, on a trial had before the court without a jury in a snit of the first class, against Anderson. The latter claimed that the evidence was insufficient to sustain the judgment, while appellees insisted that the evidence could not be reviewed because no exception was taken to the judgment. The transcript of the record contained a bill of exceptions, and the bill did not disclose any exception taken to the judgment. The court held that the document, in its particular form, could not be treated and considered as a sufficient stenographic report of the trial under the provisions of the first clause of section 81 of the Practice Act of 1907, as amended in .1911, and, therefore, .refused to review the evidence, in the absence óf an exception to the judgment. In the course of the opinion, delivered by Mr. Presiding Justice Fitch, the court gave its construction of the new first clause of said amended section as coupled, by the word “or,” with the second clause of said amended section (which second clause was the first clause of the section before the same was amended) and said, in substance, that by passing the section as amended, the legislature did not thereby abolish bills of exceptions but merely made provision for an alternative method of' presenting questions for review, in the form of a stenographic report of the trial; that, by virtue of the first clause of said amended section, any party, desiring to prosecute a writ of error to or appeal from any judgment, has the privilege, after judgment and within the time as properly fixed by the court, of submitting to the court, “a stenographic report of-the trial, containing the evidence and the rulings of the court upon all or any of the questions submitted to and ruled upon by the judge thereof”; that if such a stenographic report is so submitted the judge is required to examine the same, and if found correct to “officially certify” to its correctness; that the same shall thereupon be filed in said court and become a part of the record in the cause, and all matters and things contained in such report shall become as effectually a part of said record as if duly certified in a formal bill or bills of exceptions ; and that if it appears from such report that any matter was submitted to the trial court for a ruling, and that the court ruled “adversely to the party submitting the same,” then such ruling is saved for review in any court to which the cause may be taken upon appeal or by writ of error, whether any formal exception to such ruling be noted or not. We concur in this construction.

In the case of Meek v. Chicago Rys. Co., 183 Ill. App. 256, 261, which was a case decided by the “C” branch of this court on appeal from the Circuit Court, it was said in the opinion written by Mr. Presiding Justice Graves:

“A consideration of section 81, as amended and as it existed prior thereto, discloses no reason, and none has been suggested for holding that by the amendment it was intended to substitute a stenographic report for a bill of exceptions, but does disclose a manifest intention to provide two co-ordinate methods of preserving for review rulings on questions arising in common law courts. The first by means of a stenographic report of the trial and the second by means of a bill of exceptions, as theretofore. * * * The part of this amended section providing for bills of exceptions is the original provision without change. * * * When the legislature re-enacted that part of original section 81 relating to bills of exceptions, it must be presumed they did so in the light of the judicial construction that had been given to it, and of the rights of litigants existing under it and regardless of it, as declared by the courts, as well as in the light of section 2 of chapter 131” of our Revised Statutes.

The present case was tried in the Municipal Court without a jury, resulting in the trial court making a finding in favor of the plaintiff and entering a judgment on the finding against the defendant, and the latter' seeks by writ of error to reverse that judgment, chiefly because the finding and judgment are against the weight of the evidence. There is contained in the transcript of the record, not a bill of exceptions, but a stenographic report of the trial, which report is certified to by the trial judge, and which, as it seems to us, fully complies with all the requirements of the first clause of said amended section 81 of the Practice Act of 1907, as to such report. It appears from the report that the chief matter or issue submitted to the trial court by both plaintiff and defendant for a ruling or decision was whether the plaintiff, under all the evidence, was entitled to a finding and judgment in its favor. The defendant claimed all through the trial that it was not indebted to the plaintiff in any amount, but the court, in entering the finding and judgment, ruled adversely to the defendant. It further appears from the report that when the court delivered the finding the defendant moved to set it aside and for a new trial, which motion was denied, but it does not appear that when the court pronounced the judgment the defendant took a formal exception thereto. The fact that, when the court delivered the finding, the defendant moved to set it aside and for a new trial, shows that defendant objected to the action of the court and that the judgment, which was thereupon immediately pronounced, was not entered by consent.

The first words of said first clause of said section 81, as amended, are: “If, during the progress of any trial in any civil or criminal cause, either party shall submit to the court any matter for a ruling thereon and the court shall rule adversely to the party submitting the same, such ruling shall be deemed a matter for review in any court to which the same cause may be thereafter taken upon appeal or by writ of error without formal exception thereto,” etc. To hold that by the use of these words, in a case tried before the court without a jury, the legislature intended that the adverse ruling of the court on a matter submitted should be confined to a ruling made before the court had pronounced the finding, and should not include the decision or judgment, would, as it seems to us, be a highly technical and unwarranted construction, especially in view of the provisions of section 82, the history of sections 81 .and 82, the construction put upon them by our courts, the meaning of the word “trial,” and the evident intention of the legislature to provide a method for the review of causes without the necessity of the record disclosing that a formal exception was taken at the time to the adverse ruling upon which error is assigned.

The record in the present case contains a stenographic report and not a bill of exceptions. We are therefore under no necessity of discussing the question whether, if the record contained a bill of exceptions and the bill did not disclose a formal exception taken to the judgment, it was the intention of the legislature, in passing said amended section 81, to authorize us to review the evidence, notwithstanding the absence of such formal exception.

Our conclusion is that in the present case we may review the evidence contained in the stenographic report, notwithstanding that it does not appear in said report that defendant took a formal exception to the judgment

Counsel for defendant here contend (1) that the finding and judgment are against the weight of the evidence, in that it appears that all film purchased from plaintiff was purchased under plaintiff’s express warranty that the film was first-class film and of good quality, and under an implied warranty that it was merchantable and fit for the purpose for which defendant desired it, that the lot of film in question was of the same kind and quality as other lots of film previously shipped by plaintiff, that the film previously shipped was not as warranted, and that upon the discovery by defendant of that fact defendant was justified in canceling the order for the lot of film in question and refusing to accept the -same; (2) that plaintiff did not sufficiently prove the damages claimed by it and assessed by the court; and (3) did not sufficiently prove that the resale by plaintiff of the lot of film refused by defendant was made to the best advantage of defendant.

The material facts of the present case, as disclosed from the evidence, are substantially as follows: In November, 1910, Samuel Hutchinson, president of defendant company, called on Maurice Gennert, secretary and treasurer of plaintiff company, at that company’s office in New York City. Hutchinson told Gennert that defendant desired to purchase some raw, positive, cinematograph film for use in defendant’s business of manufacturing motion picture films for entertainment purposes. Gennert replied that plaintiff had for sale such film which was manufactured in England, that the price thereof was three and one-half cents per foot, cash on delivery, that it was first-class film, of good quality and fit for the purpose for which defendant desired it. Hutchinson, relying upon Gennert’s statements, ordered a two weeks’ supply of the film, and Gennert verbally agreed on plaintiff’s behalf to ship said film to defendant, and the same was shipped and received by defendant and paid for. Several subsequent deliveries were made to defendant during the months of December, 1910, and January, 1911, and the film was paid for. It appears that raw, positive, cinematograph film consists of long, thin strips of celluloid, coated with an emulsion containing photographic properties, on which can be printed pictures from a negative film. After the pictures are printed on the positive film the same is further developed by photographic processes and put up in long lengths of about 1,000 feet on reels. Then the film is ready to be passed through a projecting machine by an exhibitor of motion pictures. The factory processes of printing and developing the film require several weeks’ time. The standard length in January and February, 1911, of a first-class positive film was from 180 to 200 feet, and to make said 1,000 feet lengths several of the films had to be joined together. When the reels are completed they first go to a distributing and sales company, thence to a small exchange and finally to the theater or other user. Weaknesses and defects in the celluloid base cannot generally be noticed until the film has been in use for several weeks in the machine of the exhibitor. Ordinarily the reels should last six months to a year without repairs. During the last week in January, 1911, Hutchinson, while in New York, verbally ordered of plaintiff, through Gennert, two lots of 65,000 feet each, of raw film, to be shipped to defendant in February, and the first lot of approximately 65,000 feet was so shipped on February 8, 1911, cash on delivery, at said price of three and one-half cents per foot, plus express charges from New York to Chicago, and the same was subsequently received by defendant and paid for. According to the testimony of Hutchinson, he again saw Gennert in New York about February 5th and informed him that complaints had recently been received from customers of defendant as to the film which had previously been shipped by plaintiff to defendant, that the film was not of good quality and not as represented, that it would not wear or “hold up” the usual length of time, and directed plaintiff not to ship any more of the film; that thereupon Gennert said that the first of said two lots had already been shipped and that defendant would have to take that lot; that Hutchinson agreed that defendant should take and pay for said first lot but told Gennert that defendant would not receive any more, and that this was the last conversation he had with Gennert. According to Gennert’s testimony, this conversation was had at a later date, about February 15th, and Hutchinson agreed to accépt both of the two lots of film when delivered. Gennert, however, admitted that he had a conversation with Hutchinson in New York about February 5th, at which time Hutchinson said that defendant was “having trouble with the film,” but did not request plaintiff to pay back any money on account of any of the film previously delivered. The evidence also shows that ■ plaintiff shipped by express, C. O. D., to defendant at Chicago, on February 16, 1911, said second lot of film, containing 68,012 feet, but that defendant refused to accept and pay for the same, and subsequently the film was returned by the express company to plaintiff at New York. Gennert admitted that the kind and quality of the film in the last shipment was precisely the same as in the previous shipments. The evidence also shows that after the lot of film in question was returned to plaintiff in New York, plaintiff sold “about” 9,500 feet thereof at three and one-half cents per foot, and subsequently returned the balance of said film to the original manufacturer in England and was paid for ■the same at the rate of two and one-fourth cents per foot. The damages claimed were based upon the difference in price, between three and one-half and two and one-fourth cents per foot, on said balance so returned to England, and for certain cash expended for express charges and for freight charges to England.

We think that it was shown by a preponderance of the evidence that all raw film purchased by defendant ,was purchased under plaintiff’s express warranty, that the same was first-class film and of good quality, and also under an implied warranty that it was merchantable and fit for the purpose for which defendant desired to use it, which purpose was known to plaintiff; that the defects in the raw film which was shipped to and accepted by defendant were of such a nature that they would not become noticeable until after the same had been prepared for use by exhibitors of motion pictures and had been in use by said exhibitors for a considerable time; that as soon as defendant received notice of said defects it notified plaintiff not to ship the lot of film in question, but that plaintiff nevertheless shipped the same, which defendant refused to accept; that the film of said lot in question was of the same kind and quality as that of the other lots previously shipped by plaintiff, and that the film of said other lots was not first-class film or of good quality, as warranted by plaintiff, and was not fitted for defendant’s purpose, in that it was of uneven width, too brittle, and lacking in tensile strength. And in our opinion the trial court, under all the evidence, was not justified in making the finding or entering the judgment. Doane v. Dunham, 65 Ill. 512; Underwood v. Wolf, 131 Ill. 425. Furthermore, the evidence as to plaintiff’s damages was not sufficiently definite as to warrant the finding of the court. And the evidence did not sufficiently disclose that plaintiff, in making the resale of the lot of film in question, did so to the best advantage of defendant. Bagley v. Findlay, 82 Ill. 524; John A. Roebling’s Sons’ Co. v. Look Stitch Fence Co., 130 Ill. 660, 669.

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

Reversed and remanded.

Barnes, Presiding Justice :

I agree that the record leaves open for our consideration the question as to the sufficiency of the evidence, and that the judgment should be reversed and the cause remanded, but upon different reasoning.

I think the amendment to section 81, made in 1911, was intended to accomplish two things: (1) To permit a party to assign error in a court of review upon any adverse ruling or decision of the trial court without the formality of taking an exception thereto; and (2) to provide two methods of preserving the proceedings for review. It was not designed to recognize two' distinct methods of practice, one requiring and the other dispensing with the formal taking of exceptions, and accordingly to resort or not to a bill of exceptions, if they were taken, and necessarily to a stenographic report, if they were not.

Before such amendment was made, a formal exception was requisite for an assignment of error, not only to an adverse ruling of the court made during the progress of the trial (using the term “trial” in its strict sense), but to its decisions on matters referred to in sections 82 and 83, and exceptions to all such matters were saved in a bill of exceptions. The amendment manifestly contemplates that the same matters may now be as effectively preserved for review by a stenographic report. Otherwise, while the rulings during the progress of the trial may be preserved by a stenographic report without formal exceptions, nevertheless, as to decisions on matters taking place thereafter, covered by sections 82 and 83 of the Practice Act, it would still be necessary to take formal exceptions and preserve them by a bill of exceptions in order to bring the entire proceedings before a court of review.

If, on the other hand, the statute be construed to mean that the formality of exceptions is dispensed with only in case the proceedings are preserved by a stenographic report, and when so preserved no exceptions need be taken to the matters provided for in sections 82 and 83, but that a bill of exceptions cannot be resorted to in case no formal exceptions were taken, as held in Miller v. Anderson, supra, then we have the anomaly of two methods of practice,—one where it is necessary to take formal exceptions to all adverse rulings or decisions of the court at and subsequent to the trial, and another where they may .all be dispensed with.

I think the statute should be construed to obviate any such reductio ad absurdum, and being a remedial statute, it should be construed liberally to carry out its manifest purposes as above stated, especially as it can be done without necessary conflict with other parts of the section or act.

The office of an exception is to indicate that the party taking it does not acquiesce in or consent to adverse rulings or decisions of the court. • Under the practice heretofore, it has been necessary to take and preserve it as a basis for an assignment of error. Said amendment, however, changes that practice and allows the party against whom the ruling or decision is made to assign error and have the matter reviewed without formal exception. Therefore, a failure to except is no longer deemed consent to the ruling. Nevertheless, the assignment of error is still predicated upon the theory of nonconsent to adverse rulings whether an exception is actually taken or not; and it is immaterial for review whether the matter is brought before the court by a stenographic report showing no exception, or by a bill of exceptions alleging one which, under the amendment, is now preserved without the formality of talcing it.

While the phraseology of section 81, as amended, is cumbersome and complicated, I think that this is the construction that will ultimately prevail.


author: Mr. Justice Smith

text:
    Emma Wadhams Green, Plaintiff in Error, v. Old People’s Home of Chicago et al., Defendants in Error.
    Gen. No. 19,794.
    1. Fobeeitubes, § 1

      —how regarded. Forfeitures are never favored by courts of equity, and gifts for charitable purposes are the special care of such courts.
    2. Wills, § 493*—when bequest to eharitable corporation forfeited. Where a bequest was made to an Old People’s Home to promote the objects and purposes for which such Home was organized, such bequest would not be forfeited under the terms of the will unless it was clearly shown that the Home had ceased or failed to carry out effectively the objects and purposes for which it was organized.
    3. Tbusts, § 243*—what is remedy to enforce trust. In the event of nonuser or misuser of a gift for charitable uses, the remedy is not the forfeiture of the property to the grantor or his heirs, unless the trust is coupled with a condition to that effect, but by a proceeding in equity to enforce the trust.
    4. Wills, § 493*— when equity will not forfeit bequest at instance of heir. A court of equity will not, at the instance of an heir, decree a forfeiture of a bequest to an. Old People’s Home for the construction of a suitable building, where there is no showing as to the reasonableness or unreasonableness of the time elapsed, or the adequacy of the fund for the purpose contemplated.
    5. Wills, § 495*—how property disposed of when gift has lapsed or is void. Where lapsed or void gifts of personal property fall into a general residuary bequest, instead of being an intestate estate descending to the heirs at law, such heirs have no right or interest in a gift which lapses.
    6. Wills, § 343*—when conditional limitation valid. Under a will making devises to several charitable corporations, a conditional limitation is valid and effective and not obnoxious to the rule against perpetuities, since the beneficiary is a charitable corporation.
    7. Wills, § 346*—when conditional limitation created. Where a will provided for a bequest to a charitable corporation, but stated that if such corporation failed to carry out the purposes for which it was organized the bequest should be treated as a lapsed legacy, there being a residuary bequest to another charitable corporation and a specific legatee, such will did not create a condition subsequent but a conditional limitation, the limitation over being in the nature of an executory devise.
    8. Wills, § 343

      —what is effect where limitation over is void. Where a limitation over is void, the property is vested in the first taker as if the devise had been originally free from any limitation over.
    Error to the Circuit Court of Cook county; the Hon. Lockwood Honobe, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed December 22, 1914.
    Coburn & Bentley, for plaintiff in error.
    Charles R. Webster, for defendants in error.

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

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

   Mr. Justice Smith

delivered the opinion of the court.

This writ of error is prosecuted by the plaintiff in error to reverse a decree of the Circuit Court sustaining the demurrer of the Old People’s Home of Chicago and its trustees to the bill of complaint and dismissing the bill for want of equity.

The plaintiff in error, complainant below, sought by her bill to have certain funds and securities, which, for the last twenty-five years, have been in the hands of the defendants, declared a trust fund in her favor, and an accounting, etc.

It appears from the bill that the complainant is the daughter and sole heir of Seth Wadhams, who departed this life February 6,1888. The bill sets up that on June 29,1886, Wadhams made his last will and testament, which was duly proved in open court and admitted to probate by the County Court of Du Page county, State of Illinois, where he lived at the time of his death, and a copy of the will is annexed to and made a part of the bill. Wadhams, at the time of his death, was possessed of an estate of about $1,000,000, which included certain real estate occupied by him as a homestead known as “White Birch,” in Du Page county, Illinois, and by the terms of his will he ordered and directed his executors to sell “White Birch” and dispose of the proceeds as follows: One-half part thereof to the Board of Trustees of the Old People’s Home of Chicago, Illinois, to have and to hold the same to them and their successors in office, in trust, to manage, invest and control the same, and the same from time to time to use and reinvest, and the annual income thereof to use and expend in defraying the current expenses of a certain charitable home consisting of a building to be known as the “Home for Old Men,” to be erected as provided in the will and particularly in the thirty-second paragraph thereof. In that paragraph the testator gave and bequeathed to the Board of Trustees of the Old People’s Home of Chicago, Illinois, the sum of $20,000, -to have and to hold the same to them and their successors in office, in trust, however, to use and expend the same in the erection of a charitable building, the same to be used, managed and controlled by the said Board of Trustees as a “Plome for Old Men of American Birth” only, separate and apart from said Old People’s Home; and it is further provided in the thirty-fourth section of the will that in case the said Board of Trustees of the said Old People’s Home, and the said Old People’s Home, should at any time fail or cease to carry out effectively the objects and purposes for which they were organized, and -to promote which the bequests were by the testator made and given, it was the will of said testator that the bequests made in the said will to the Old People’s Home, and the terms thereof, should be held inoperative and void, and for that cause should become cancelled, revoked and annulled, and that the property, moneys and estate set aside to the said charitable use should be held and disposed of as a lapsed legacy, and should pass and become the property of the complainant.

It is alleged that the executors of the said testator, Wadhams, received one-half of the proceeds from the sale of the said homestead, the sum of $10,000, the income of which was to be applied to and for the maintenance of said building to be erected and to be known as a “Home for Old Men of American Birth;” and on or about July 24, 1890, under the provisions of the will, the executors delivered to the then acting trustees of the said Old People’s Home of Chicago the said sum of $10,000 in trust, for the charitable uses and purposes expressed in the will.

It is further alleged in the bill that the executors, under and by virtue of the terms of the will, turned over and delivered to the said trustees of the Old People’s Home of Chicago the sum of $20,000, under and by virtue of the thirty-second paragraph of the will, for the purpose of erecting a building to be used as a Home for Old Men of American Birth, separate and apart from the other building of the Old People’s Home, and that said moneys were received by the said trustees on or about June 23, 1890.

The bill further represents that the Old People’s Home of Chicago and the trustees thereof and their successors have never used the said bequests, or either of them, to carry out effectively the objects and purposes for which the bequests were made, but, on the contrary, did immediately place the funds with some financial institution, trust company or bank, and caused them to be invested and reinvested during the twenty-two years last past in various securities, and have never built out of the fund of $20,000 so bequeathed, the Home for Old Men of American Birth, separate and apart from the said Old People’s Home, as provided in the will; nor have they used the proceeds of the said $10,000 for the charitable use expressed in the will, but still retain the same, so that the fund in the hands of the bank or financial institution, exclusive of fees paid to said trust company or financial institution, on May 18, 1911, amounted to the sum of $71,900.

The bill further alleges that the Old People’s Home of Chicago is a corporation organized under and by, virtue of the laws of the State of Illinois, not for pecuniary profit, but for the charitable purpose of providing a home for old people.

The bill represents that the bequest has, by lapse of time in the failure to use the money for the purposes provided, and by reason of the statute against perpetuities, lapsed and become a trust fund for the complainant in the hands of the said Old People’s Home of Chicago and its said trustees; that the complainant, as the sole heir of the testator, said Wadhams, on February 21, 1912, caused notice to be served upon the Old People’s Home of Chicago and its officers and trustees to the effect that she is the sole heir of said Wadhams, deceased, and did thereby declare the bequest made by her father, the said Seth Wadhams, in his last will and testament, to have lapsed and to have become null and void, under and by virtue of the terms of his will, and that she demanded of the said Old People’s Home of Chicago and its officers and trustees that they account to her for the said bequest, together with the interest earned thereon; yet they have failed and refused so to do, and deny that the bequest has lapsed.

The bill further represents that the Old People’s Home of Chicago and the trustees thereof have secured from various sources, for the charitable purpose of providing a home for indigent old people, a large fund or sum of money exceeding $1,000,000, and have used the same exclusively to construct extensive buildings for the support of indigent old ladies, but have built no building or buildings or provided any support for old men of American birth, either with such buildings already built, or separate and apart from the Old People’s Home building established by them for old ladies, nor have they provided any support for old men of American birth, as provided in the bill, nor have they used the bequests or legacies therein given them in accordance with the intent of the testator, whereby the complainant, as his heir, has the right to and has declared the said gift terminated, lapsed and cancelled.

The material clauses of the will of Seth Wadhams set out in the bill are the following:

“Third. I order and direct my executors to sell as soon after my death as they may deem expedient my homestead known as White Birch, and described as Blocks Three (3), Four (4), Nine (9), and Ten (10), in D. N. Burnham’s Addition to Cottage .Hill, in said Du Page county, and the proceeds to be distributed as follows, to-wit:
“One-half part thereof to the managers of the Chicago Nursery and Half Orphan Asylum, to have and to hold to them and their successors in office, in trust however, to and for the following uses and purposes namely, in trust, to hold, manage, invest and control the same, and the same from time to time to reinvest, and the annual income thereof to use and expend in defraying the current expenses of said Asylum, and the remaining one-half part of said proceeds to the board of trustees of the Old People’s Home of Chicago, Illinois, to have and to hold the same to them and their successors in office, in trust, to manage, invest and control the same, and the same from time to time to reinvest, and the annual income thereof to use and expend in defraying the current expenses of The Home for Old Men, to be erected as hereinafter provided further, I hereby direct that my said homestead, known as White Birch, shall be sold to Mrs. Aurelia B. King of Chicago, Illinois, for the sum of $20,000, if she desires to purchase the same. In case- the said Mrs. Aurelia B. King shall decline to purchase said homestead, then the same may be sold to any child or children of the said Mrs. Aurelia B. King, for the said sum of $20,000.”

The will then makes a large specific bequest to Frederick E. Hammond, known as Frederick E. Wadhams, and many bequests to various charities and individuals, and then follow the thirty-second, thirty-third and thirty-fourth paragraphs, to wit:

“Thirty-second. I give and bequeath to the Board of Trustees of the Old People’s Home of Chicago, Illinois, the sum of $20,000, to have and to hold the same to them and their successors in office, in trust, however, to. use and expend the same in the erection of a suitable building, the same to be used, managed and controlled by the said Board of Trustees as a Home for Old Men, of American Birth only, separate and apart from said Old People’s Home. "
“The construction and design of said building to be under the charge and supervision of the said Board of Trustees, and to be erected upon a lot adjacent to said Old People’s Home or any other lot now or to be owned by said trustees.
“Thirty-third. All the rest, residue and remainder of my estate I give, devise and bequeath as follows, to-wit:
“One-half to the Chicago Belief and Aid Society of Chicago, Illinois, a corporation duly established by law to have and to hold to said corporation, and its assigns, forever, but in trust, however, to hold, manage, invest and control the same, and the same from time to time reinvest, and the income thereof to use and expend for the objects and purposes for which said society was established.
“And the remaining one-half to Frederick Eugene Hammond, now known as Frederick E. Wadhams, absolutely, forever.
“Thirty-fourth. In case any of the institutions or corporations which under and by virtue of this my last will shall receive any portion of my estate, shall at any time fail or cease to carry out effectively the objects and purposes for which they were respectively organized, and to promote which the bequests to them respectively are by me herein made and given, then it is my will, and I do hereby declare that the bequests made in this will to any such institution or corporation shall be held inoperative and void, and for that cause be and become canceled, revoked and annulled, and the same shall be held and disposed of as a lapsed legacy. ’ ’

The theory of the bill is that by reason of lapse of time and failure to use the bequests for the purposes designated in the thirty-second paragraph of the will, that bequest was subject to forfeiture at the instance of complainant as the heir at law of the testator, and that as such heir at law she has declared the said gift terminated, lapsed and cancelled, and that the same now constitutes a trust fund for her in the hands of the Old People’s Home under and by virtue of the provisions of the thirty-fourth paragraph of the will. And that the specific bequest made in the thirty-third paragraph has likewise failed and now constitutes a trust fund for complainant in the hands of the defendant Home.

It is tó be noted that the complainant does not allege in her bill that the Old People’s Home has failed or ceased to carry out effectively the objects and purposes for which it was organized and to promote which, that is to say, such objects and purposes, said bequests were made. On the contrary, the bill alleges that the Old People’s Home has received and now holds, securely invested, the fund of $30,000 so bequeathed to it for the charitable uses and purposes specified, and that said fund has increased by judicious investment to the sum of $71,900; that said Old People’s Home is a corporation organized under the laws of the State of Illinois, not for pecuniary profit, but for the charitable purpose of providing a home for old people, and that it has secured from various sources a sum of money exceeding $1,000,000, which it now holds and uses for its corporate purposes. The bill does not allege that the will provides (and the fact is the will does not so provide) that the bequest shall be forfeited in case of failure to erect a suitable building to be used as a Home for Old Men of American Birth only, as provided in the thirty-second paragraph of the will. The bill alleges and the will provides,.that only in case the Old People’s Home shall at any time fail or cease to carry out effectively the objects and purposes for which it was organized, that the bequests made in the will should be forfeited. It is clear, we think, from a study of the bill, that the only condition on which it can be claimed that the bequests in question are subject to forfeiture is not alleged to have occurred, but that the bill, on the contrary, shows affirmatively that such condition has not occurred.

Forfeitures are never favored by courts of equity, and gifts for charitable purposes are the special care of such courts. By the terms of the will the bequest in question was made to the Old People’s Home, not merely to use and expend in the erection of a suitable building to be used as a Home for Old Men of American Birth only, but as indicated in paragraph thirty-four of the will to promote the objects and purposes for which said Old People’s Home was organized. It follows, we think, that before any forfeiture of said bequest can be made, it must be clearly shown that the Old People’s Home has failed or ceased to carry out effectively the objects and purposes for which it was organized.

It is also a well-settled rule that in the event of nonuser or misuser of a gift for charitable uses, the remedy is not the forfeiture of the property to the grantor, or his heirs, unless the trust is coupled with a condition to that effect, but by a proceeding in equity to enforce the trust. 5 Am. & Eng. Encyc. of Law (2nd Ed.) 915; Stuart v. City of Easton, 74 Fed. 854; In re Mercer Home, 162 Pa. St. 232; People v. Cogswell, 113 Cal. 129; Mills v. Davison, 54 N. J. Eq. 659; Green v. Blackwell (N. J.) 35 Atl. 375; Associate Alumni v.' Theological Seminary, 163 N. Y. 417; Strong v. Doty, 32 Wis. 381.

The law raises every intendment in favor of a charity against the grantor or those claiming under him. McKissick v. Pickle, 16 Pa. St. 140.

Furthermore, the bill does not even allege that a reasonable time for the construction of a suitable building to be used as a Home for Old Men of American Birth only has expired. Whether or not such reasonable time has expired is necessarily a question of fact, depending upon many circumstances and conditions, such as adequacy of the fund for the purpose contemplated, and the immediate demand or need therefor, which the testator may well be considered to have left to the discretion of the Trustees of the Old People’s Home, and which, in any event, is a fact to be ascertained and determined by the court under proper allegations before it can be determined whether or not a good reason for forfeiture on that ground is shown. If it be conceded that the condition upon which the forfeiture sought by the bill might be declared was that the building contemplated must be erected within a reasonable time, it may very well be contended that in order to effectively carry out the purposes of such bequest, it was necessary to let the fund accumulate until it reached such an amount as would enable the Old People’s Home to erect a suitable and adequate building and maintain the same out of the income from the balance of said fund; and, further, that it would be improvident to invest the entire sum in the erection of a building for the purpose contemplated, unless an adequate endowment was provided, from the income of which the building might be maintained. Certainly the testator’s heir at law, in the absence of any showing whatever as to the reasonableness or unreasonableness of the time elapsed, or the adequacy of the fund available for the purpose contemplated, could not declare a valid forfeiture of the legacies, nor would a court of equity, in the absence of such a showing declare such forfeiture at the instance of the heir.

There is, in our opinion, a more fundamental objection to the bill. The complainant, as heir at law of the testator, has no right or interest in the fund in question.

By the terms of the will the testator’s entire interest in the fund in controversy passed to the Old People’s Home.

Assuming, as claimed by counsel for plaintiff in error, and we think the claim is sound, that the law of this State is, as stated in Carper v. Crowd, 149 Ill. 465, and Hobbie v. Ogden, 178 Ill. 357, that the principles applicable to the vesting of real estate apply generally in case of personal property, certainly where such personal property consists of the proceeds of sale of real estate, and, applying established principles to the construction of the will, the purpose and effect thereof, so far as the same relates to the matter in controversy, are plain, and it conclusively appears that all lapsed or void gifts of personal property fall into a general residuary bequest instead of being an intestate estate descending to the heirs at law, then plaintiff in error has not and cannot have any right or interest in the fund in question in any possible event. That such lapsed gifts of personal property fall into the general residuary bequest of the will is well settled. Crerar v. Williams, 145 Ill. 625; Dorsey v. Dodson, 203 Ill. 32; Crawford v. Mound Grove Cemetery Ass’n, 218 Ill 399.

By the thirty-third paragraph of his will the testator gave, devised and bequeathed all the rest, residue and remainder of this estate, one-half to the Chicago Belief and Aid Society of Chicago, a charitable corporation, and the remaining half to Frederick Eugene Hammond, otherwise known as Frederick E. Wadhams. Paragraph thirty-four must, therefore, be construed as if there had been added thereto the words “and shall thereupon go to and become the property of said Chicago Belief and Aid Society of Chicago, and said Frederick E. Wadhams, in equal shares,” or equivalent words. As to the one-half of the fund, therefore, which by such conditional limitation over in the event contemplated, that is, the failure of the Old People’s Home to carry out effectively its corporate purposes, would go to the Chicago Belief and Aid Society, there can be no possible doubt that such conditional limitation would be valid and effective and not obnoxious to the rule against perpetuities, for the simple reason that the Chicago Belief and Aid Society is a charitable corporation. Jones v. Habersham, 107 U. S. 174; Hopkins v. Grimshaw, 165 U. S. 342; Andrews v. Andrews, 110 Ill. 223; Crerar v. Williams, supra.

In Jones v. Habersham, supra, a testator had made devises to several charitable corporations for certain specified purposes, and then provided that if either one or more of said devisee corporations should attempt to sell, alienate or otherwise dispose of the property and estate so devised contrary to the terms and conditions set forth in his will,.his executors or legal representatives should repossess and enter upon said property or estate as to which the condition might be so broken or violated, and, in that event, gave the property so entered upon and repossessed to Savannah Female Orphan Asylum, another charitable corporation. Commenting upon this provision of the will, the Court said (p. 185):

“There is nothing in this clause by which the heirs at law or next of kin can be benefited in any possible view. If the conditions against voluntary alienation and levy of execution are invalid, the previous devises stand good. If these conditions are valid, the devise over to the Savannah Female Orphan Asylum, an undoubted charity, will take effect; for, as the estate is no more perpetual in two successive charities than in one charity, and as the rules against perpetuities does not apply to charities, it follows that if a gift is made to one charity in the first instance, and then over to another charity upon the happening of a contingency, which may or may not take place within the limit of that rule, the limitation over to the second charity is good.”

In full accord with the above is Church in Brattle Square v. Grant, 3 Gray (Mass.) 142. That case covers not only the validity of the limitation over to the Chicago Relief and Aid Society, but also the question that plaintiff in error cannot be benefited in any possible view by the provisions in the thirty-fourth paragraph of the will. That question we now proceed to consider.

As to the remaining half of the fund, the only condition or limitation annexed thereto is found in paragraph thirty-four of the will. But for that provision of the will the Old People’s Home would doubtless have taken an absolute estate or. interest in the fund. Based upon paragraph thirty-four, and because Frederick E. Wadhams was also a specific legatee under the will, the contention is made on behalf of the complainant, plaintiff in error, that Wadham’s share of such void-or lapsed legacy would not fall into the residuary estate and be governed and controlled by paragraph thirty-three of the will, but would go to complainant, and Crawford v. Mound Grove Cemetery Ass’n, supra, is relied upon to support the contention. By the eleventh clause of the will before the court in that case, $25,000 and certain real estate was given to the Helen Huling Home to be held and managed as an endowment for the maintenance of the Home. No such institution was in existence when the will spoke, and the question was whether the lapsed gifts became intestate estate, or went into the residuum under the twelfth clause of the will; and under the authority of Dorsey v. Dodson, supra, it was held that the gifts became intestate estate. But no such question as that decided in Crawford v. Mound Grove Cemetery Ass’n and Dorsey v. Dodson arises in this case. When the bill was filed in this case Wadhams was living, and the question is not what would have become of the special legacy to Wadhams had he died prior to the death of the testator and such special legacy had lapsed. The reason for the exception to the general rule stated in Dorsey v. Dodson has no application in this case.

The provisions of paragraph thirty-four did not create simply an estate on condition subsequent, but a conditional limitation, that is, a condition followed by a limitation over to a third person in cáse the condition tie not fulfilled, or there be a breach of it. The limitation over is in the nature of an executory devise. As said in Church in Brattle Square v. Grant, supra:

“When an estate in fee is created on condition, the entire interest does not pass out of the grantor by the same instrument or conveyance. All that remains, after the gift or grant takes effect, continues in the grantor, and goes to his heirs. This is the right of entry, as we have already seen, which, from the nature of the grant, is reserved to the grantor and his heirs only, and which gives them the right to enter as of their old estate, upon the breach of the condition. This possibility of reverter, as it is termed, arises in the grantor, or devisor, immediately on the creation of the conditional estate. It is otherwise where the estate in fee is limited over to a third person in case of a breach of the condition. Then the entire estate, by the same instrument, passes out of the grantor or devisor. The first estate vests immediately, but the expectant interest does not take effect until the happening of the contingency upon which it was limited to arise. But both owe their existence to the same grant or gift; they are created uno flatu; and being an ultimate disposition of the entire fee, as well after as before the breach of the condition, there is nothing left in the grantor or devisor or his heirs. The right or possibility of reverter, which on the creation of an estate in fee on condition merely, would remain in him, is given over by the limitation which is to take effect on the breach of the condition.
“One material difference, therefore, between an estate in fee on condition and on a conditional limitation, is briefly this: that the former leaves in the grantor a vested right, which, by its very nature, is reserved to him, as a present existing interest, transmissible to his heirs: while the latter passes the whole interest of the grantor at once, and creates an estate to arise and vest in a third person, upon a contingency, at a future and uncertain period of time.”

In the above case the question in dispute was as to the title to real estate devised by the testatrix to a church upon a condition substantially the same in its. legal effect as the condition mentioned in paragraph thirty-four of testator’s will, with the express provision that upon the breach of such condition the bequest was to be void and of no force, and the property devised was thereupon to revert to the estate of the testatrix and to go to her nephew, who was also the residuary devisee, and his heirs forever.

It will be seen from the above statement that the four corners of the will here under review correspond with those of the will under consideration in the above-cited case, so far as it relates to the question before us for decision. The cases cannot be differentiated. The court held that the heirs at law of the testatrix had no interest whatever in the property; that the limitation over to the residuary devisee was void for remoteness, but that the effect of the invalidity of the limitation over was to vest the first taker, the church,, with an entire interest or absolute fee in the property, as if the devise had been originally free from any limitation over.

This rule as to the effect of a void limitation over is the settled law of this State. Kales on Future Interests, sec. 183; Post v. Rohrbach, 142 Ill. 600; Howe v. Hodge, 152 Ill. 252; Nevitt v. Woodburn, 190 Ill. 283; Chapman v. Cheney, 191 Ill. 574.

As heir at law of Seth Wadhams, the complainant, plaintiff in error has, therefore, no interest in the fund in question. The decree is affirmed.

Affirmed.


text:
    Benjamin J. Rosenthal and Louis Eckstein, Appellees, v. Board of Education of the City of Chicago, Appellant.
    Gen. No. 19,869.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Landlobd and tenant, § 295

      —when reappraisal in action for injunction unauthorized. In a suit to enjoin the enforcement of an appraisal of property under a lease, the action of the court in setting aside the appraisement and making a new appraisement is unauthorized when such relief was not sought by either party.
    Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Reversed and remanded with directions.
    Opinion filed December 22, 1914.
    Rehearing denied January 5, 1915.
    Statement of the Case.
    Suit by Benjamin J. Rosenthal and Louis Eckstein against the Board of Education of the City of Chicago to enjoin the enforcement of an appraisal of two lots, made to determine the rental of such lots for the period of ten years, under certain leases. A decree was entered not granting the specific relief prayed for in the complainants’ bill, but setting aside the appraisal and fixing the value of the premises and the rental to be paid, and the defendant appealed.
    Richard S. Folsom and Angus Roy Shannon, for appellant.
    Donald L. Morrill and Mayer, Meyer, Austrian & Platt, for appellees.

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

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

   Mr. Justice Smith

delivered the opinion of the court.

2. Landlord and tenant, § 295 —when tenants estopped to object to appraisal. In a suit to enjoin the enforcement of an appraisal of school property under a lease, the conduct of the complainants in notifying the lessor of the assignment of the leases covering two lots, in occupying both lots jointly for their firm business, in paying rents for both lots in lump sums and in failing to notify the lessor of any transfers of the leases between themselves, operated as an equitable estoppel and prevented relief on the theory that the lots should have been appraised separately.

3. Landlord and tenant, § 295*—when bill• to enjoin appraisal will be dismissed. A bill seeking to enjoin an appraisal of school property under a lease, on the theory that' the two lots involved should be appraised separately, and that the joint appraisal was void, wherefore the rental for the ensuing ten years should under the lease, be the same as for the prior ten years, will be dismissed where it appears that the complainants made no such protest until after the appraisal and time for correction, and the lease provided that the lessees should be estopped from objecting to matters connected with the action of the appraisers unless objected to within thirty days.

4. Landlord and tenant, § 295*—when bill to enjoin appraisal fails to show offer to do equity. In a suit to enjoin an appraisal of school property under a lease, where the complainants contended that a joint appraisal of two lots was void, wherefore the rental under the lease should be the same for the ensuing ten years as for the prior ten years, but such complainants did not offer to pay rental in accordance with a reformed appraisal, there was no offer to do equity; and since the complainants did not show injury by the appraisal, the bill would be dismissed.

5. Landlord and tenant, § 294*—when action of appraisers binding. The action of appraisers in determining rental under a lease of school property is binding on the parties unless there is fraud or mistake.