text:
    Consolidated Electric Sign Company, Defendant in Error, v. Joseph Price, Plaintiff in Error.
    Gen. No. 20,519.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed May 11, 1915.
    Statement of the Case.
    Action by Consolidated Electric Sign Company, a corporation, plaintiff, against Joseph Price, defendant, on written contracts for $165, the agreed price for an electric sign.
    The evidence showed that Price stopped the company’s men from setting the sign in place, and thereupon it was returned to he made in accordance with a supplemental contract requiring some changes, one of which was that Price was to inspect and approve the sign before it was rehung. When the Company’s men attempted to set it up the second time, they were again stopped by Price from finishing the undertaking. The evidence tended to show that Price directed the sign to be hung after a request was made of him to inspect it.
    The evidence also tended to show that all was done that is usually done in such work before setting up the sign and that plaintiff was ready and willing to do the things that are done after the sign is set in place, but that Price, without good reason, prevented it from doing so.
    The point was made that the contracts were not offered in evidence. When marked for identification, counsel for plaintiff said, “I want to submit them to the jury.” One of them was read in full to the jury and the substance of the other stated, and both parties to the suit treated them as in evidence.
    To reverse a judgment for plaintiff for $165, defendant prosecutes this writ of error.
    Jacob C. Le Bosky, for plaintiff in error.
    VosE & Page, for defendant in error; Walter S. Vose, of counsel.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.

Abstract of the Decision.

1. Contracts, § 44 —when provision for right of inspection and rejection waived. Where the purchaser of an electric sign under a contract giving him the right of inspection and approval before it should be put in place directs the sign to be hung after request is made that he inspect it, he waives his right to inspect and to claim nonacceptance before the sign was hung.

2. Contracts, § 307*—when noncompliance with terms not a defense when prevented, Toy defendant. In an action on a contract, where it appears that there has been a substantial compliance with the terms of the contract and performance in all matters except so far as prevented by defendant himself, which matters plaintiff was ready and willing to perform, defendant cannot complain as to the matters not performed.

3. Trial, § 68*—when contracts sufficiently offered in evidence. In an action on written contracts, where, when they were marked for identification, plaintiff’s counsel stated that he wished to submit them to the jury and one was read in full to the jury and the other was stated in substance and both parties treated them as in evidence, an objection that they were not offered in evidence is without merit.


source: Caselaw Access Project

author: Mr. Presiding Justice Barnes

license: Public Domain

text:
    Charles Turgrimson, Defendant in Error, v. J. P. Seeburg Piano Company, Plaintiff in Error.
    Gen. No. 20,569.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John K. Prindiville, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed May 11, 1915.
    Statement of the Case.
    Replevin suit, joining count in trover, by 'Charles Turgrimson against J. P. Seeburg Piano Company, a corporation, defendant.
    The facts were as follows: One Manusos purchased a piano from defendant and gave back a purchase price chattel mortgage thereon, which he signed and authorized one Lawson to acknowledge. The acknowledgment was made by Lawson and the mortgage was filed for record April 27, 1912. On February 14, 1914, Manusos executed another mortgage on the piano to plaintiff, which was recorded the same day. Under the powers contained in the first mortgage, defendant secured possession of the piano on a replevin writ sued out of the Municipal Court, March 17, 1914. On the following day, plaintiff made a demand on defendant for possession of the piano, which was refused, and thereupon he brought a replevin suit for the piano, joining therein a count in trover. On the hearing a witness for defendant fixed the value of the piano at $300.
    Abstract of the Decision.
    1. Chattel mortgages, § 54

      —when acknowledgment of invalid. The acknowledgment by a third person of a chattel mortgage signed by the owner of the property is invalid, and such a mortgage is inadmissible in evidence in a replevin suit in which the claim to possession is based on the mortgage.
    Evidence was also offered to show that the loan which was secured by plaintiff’s mortgage was tainted with usury, but was excluded.
    To reverse a judgment for plaintiff for three hundred dollars on a verdict directed by the court, defendant prosecutes this writ of error.
    Gorman, Pollock, Sullivan & Livingston, for plaintiff in error.
    Charles B. Napier and Charles S. McIlvaine, for defendant in error.

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

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.

2. Usury, § 38 —when chattel mortgage not invalidated by usury in loan for which security. The fact that the loan which a chattel mortgage secures is tainted with usury does not render the mortgage invalid.

3. Appeal ahd ebrob, § 1487*—when refusal to submit question of good faith in executing second mortgage not error. In suit by a chattel mortgagee to replevy the mortgaged property from one who had replevied the property under another mortgage, it is-not error to refuse to submit to the jury the question whether plaintiff’s mortgage was executed in good faith, where the evidence relative thereto merely tends to show that the loan secured by plaintiff’s mortgage was tainted with usury.


text:
    City of Chicago, Defendant in Error, v. Albert Steady, Plaintiff in Error.
    Gen. No. 20,587.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Charles H. Bowles, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1914.
    Reversed with finding of fact.
    Opinion filed May 11, 1915.
    Statement of the Case.
    • Complaint by the City of Chicago against Albert Steady, defendant, charging him with a violation of section 2012 of the Chicago Code of 1911.
    The only offense charged in the complaint which there was any attempt to prove was that defendant was “known to be a pickpocket and was found lounging in and prowling and loitering about a * * * car * * * public conveyance * * * and was unable to give reasonable excuse for being so found in violation of Section 2012 of the Chicago Code of 1911. ’ ’ The only testimony in support-of said complaint was by the police officer who made the arrest, his testimony, on direct examination, being as follows: “On the 17th day of April, A. D. 1914, at six o’clock a. m., I saw the defendant, Albert Steady, at the corner of 12th and Halsted streets, getting on a street car going west on 12th street. I know him as a pickpocket and that he was associating with pickpockets, and I got into the street car and placed him under arrest. I arrested him on suspicion that he was trying to pick someone’s pocket in the street car.”
    On cross-examination he testified that he did not see defendant doing anything in the car or at the time he made the arrest. With this testimony the City rested. Defendant testifying, admitted that he was in the car in question, and testified that he was going home; that he was a salesman.
    In answer to the question put by his counsel, “Are you a pickpocket?” he said, “No, sir, I am working.” Defendant then rested and the City’s counsel asked, “Are you working now?” and he answered, “No, I have been out of work for a couple of months,” and the City again rested.
    Defendant was found guilty and fined two hundred dollars, the order providing that on failure to pay the fine he should be imprisoned in the House of Correction not to exceed six months.
    To reverse the judgment, defendant prosecutes this writ of error.
    William Slack, for plaintiff in error.
    John W. Beckwith and Albert J. W. Appell, for defendant in error; John F. Power, of counsel.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.

Abstract of the Decision.

1. Vagrancy, § 1 —when evidence insufficient to support complaint. Where a complaint charges that defendant was known to be a pickpocket, was lounging in a street car and was unable to give a reasonable excuse for being there, evidence of the officer who arrested him that he saw defendant getting on the car, that he knew defendant to be a pickpocket and arrested him in the car on suspicion that he was trying to pick pockets, but that he did not see defendant doing anything at the time of the arrest, is insufficient to support the complaint, though defendant testified that he had not been working for a couple of months.

2. Municipal Court of Chicago, § 13*—when stenographic report sufficient. Where defendant has been allowed by order of court to file either a statement of facts or a stenographic report, a document certified to as containing all of the evidence submitted and heard is equivalent to a stenographic report and sufficient to bring the evidence up for review, even though it is not, as it is certified to be, a statement of facts.

3. Municipal Court of Chicago, § 13*—when stenographic report may he certified hy another judge. Where the placita shows that the trial of an action in the Municipal Court of Chicago was had before a judge of the City Court of Chicago Heights, holding a branch of the Municipal Court at the request of the judges of the latter court, a certificate to the stenographic report of the evidence signed by a judge of the latter court to which is appended the words “in the absence of” the Chicago Heights Judge “who is not acting as judge of this court at this time” is sufficient in the absence of a showing or objection in the record that the judge so certifying did not act upon competent proof of the disability of the trial judge.


author: Mr. Presiding Justioe Barnes

text:
    John Heron, Defendant in Error, v. Minnie C. Roberts, Plaintiff in Error.
    Gen. No. 20,611.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Charles H. Bowles, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1914.
    Reversed with finding of fact.
    Opinion filed May 11, 1915.

      Statement of the Case.
    Action by John Heron, plaintiff, against Minnie C. Roberts, defendant, based on attorney’s lien for $100 claimed by plaintiff on a judgment obtained by James E. Tate against defendant.
    Plaintiff alleged that defendant had paid $1,000 in satisfaction of such judgment after notice of his lien.
    For defendant it was contended that she did not make such payment in her personal capacity but as executrix of the last will and testament of James Corlett, deceased, and under order of the Probate Court, and had no knowledge of plaintiff’s contractual relations with Tate.
    The evidence disclosed the following facts: James E. Tate obtained a judgment against defendant for $850. Later he also obtained a decree in chancery setting aside a deed from defendant to her father, James Corlett, of certain real estate, and authorizing a sale thereof under an execution upon said judgment, and directing payment from the proceeds of sale, first of $4000 to said Corlett, and then the judgment of $850 to Tate, unless the latter sum with interest was paid by some of the parties defendant to said decree. Nothing appears to have been done under said decree, but later Corlett died, leaving a will appointing defendant as his executrix. Pursuant to an order of the Probate Court, defendant, as such executrix, sold said real estate for payment of the debts of Corlett’s estate.
    The order required, first, the payment of certain liens, including the lien of Tate’s judgment as established by said decree, then the payment of debts of the said estate. The amount of said lien was fixed in said order at $1,000 and defendant paid the same from the proceeds of the sale as directed.
    One Brown was Tate’s attorney in both the law and chancery proceedings above referred to. Afterwards, according to Heron’s testimony, Tate came to him and said that Brown, his attorney, had taken the matter from the Superior Court to the Appellate Court to have a bill of review reviewed, or something of that sort, and that he wished Heron to loan him $25 for costs already incurred in printing briefs and abstracts and to assist Brown in every way possible in the Appellate Court, and that if he ever got any money out of that judgment against the Roberts family, he would pay Heron $100. Heron testified that his services were for assisting Brown “in that matter” and paying $25 for the printing, etc., and that shortly afterwards he served a notice of an attorney’s lien on defendant. The evidence showed that he had nothing whatever to do with the Probate Court proceedings, and it did not appear that the proceeding in which he was engaged to assist Brown had anything to do with the cause of action in which the lien on Corlett’s real estate was procured.
    Abstract of the Decision.
    1. Attorney and client, § 140

      —when attorney has no right of action on lien against judgment debtor for payment made in representative capacity. A judgment debtor, who, acting in her representative capacity as executrix and in obedience to an order of the Probate Court, pays the judgment out of the funds of the estate to remove a lien against the estate is not liable in an action by the attorney of the judgment creditor on his lien -on the judgment, though she had notice of the lien.
    2. Attorney and client, § 13'8*—when evidence insufficient to establish lien. Evidence examined and held insufficient to establish attorney’s lien.
    To reverse a judgment'for plaintiff, defendant prosecutes this writ of error.
    Douglas C. Gregg, for plaintiff in error.
    John Heron, pro se.

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

   Mr. Presiding Justioe Barnes

delivered the opinion of the court.


text:
    John C. Phelan, Defendant in Error, v. DeKalb Wagon Company, Plaintiff in Error.
    Gen. No. 20,621.
    Abstract of the Decision.
    Appeal and error, § 1411

      —when judgment not reversed where evidence conflicting. On appeal where the only question raised in the record is whether the findings were against the manifest weight of the evidence and the court cannot say that the evidence, which is conflicting, manifestly preponderates against the findings, the judgment will be affirmed.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John K. Prindiville, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed May 11, 1915.
    Statement of the Case.
    Eeplevin by John C. Phelan against DeKalb Wagon Company, a corporation, defendant, for two automobile trucks. The evidence was irreconcilable.
    To reverse the findings of the court, to which the case was submitted, defendant prosecutes this writ of error."
    The only question raised in the record is whether the findings were against the manifest weight of the evidence.
    Spencer Ward and A. G. Kennedy, for plaintiff in error.
    No appearance for defendant in error.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    Roy D. Keehn, Appellee, v. Samuel E. Moist, Appellant.
    Gen. No. 20,684.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. William N: Gemmill, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1914.
    Reversed and remanded.
    Opinion filed May 11, 1915.
    Rehearing denied May 25, 1915.
    Statement of the Case.
    Action by Roy D. Keehn, plaintiff, against Samuel E. Moist, defendant, to recover the reasonable value of legal services rendered defendant in three law suits, in one of which defendant was indicted.
    It was contended by defendant and denied by plaintiff that there was a valid and binding contract between the parties that plaintiff was not to charge moré than $2,000 for his services in the criminal case, which required the greater part of his services.
    The evidence showed that the indictment was found by a Federal grand jury May 17, 1912, charging defendant Moist with a scheme to use the United States mails in connection with an alleged fraudulent device to advertise pianos which he was engaged in selling. The same device was also used by other piano concerns. After the indictment, it appeared that defendant had a conversation with plaintiff as to his fees in the matter, his version of that conversation corresponding with two undisputed letters of that date, being to the affect that plaintiff said other piano men were interested, and ought to contribute to the expenses of the case, and that he would write a letter which defendant was to show them to induce such contribution. That letter was to the effect that other piano men were as much interested in the outcome of the case as defendant, and ought to bear the expense of it, which would be more than he could properly stand personally, if tried as it ought to be; that if he pleaded guilty the prosecution- would not end with him, but the Government would then “go after all of them;” that plaintiff had an understanding with the district attorney that it was to be a test case, and that it was “a case in which, if properly tried, including attorney’s fees, a bill of $5,000 should be rendered.”
    The evidence also showed that inclosed in the same envelope was a private letter to defendant of the same date, referring to the conversation, as follows:
    “Dear Mr. Moist:
    I am enclosing herewith letter which I think will answer the purpose that we discussed this morning.
    Kindly let me know by Wednesday what can be done as I will have to prepare the demurrer and get to work on the brief. In the event that you find you are alone in the matter, I would outline the expense to be about as follows:
    Cut the bill to $2,000, you to pay the printing and court reporters’ bills. In fact, we might do a little better than this but I would want to find out first just what we will have to meet.
    Tours very truly,
    Boy D. Keehn.”
    Three days later, defendant paid plaintiff $500 upon the understanding, he claims, that plaintiff would 4 4 cut the $2,000,” if all the work outlined in the letter to be shown became unnecessary, and was to receive no more until the case was 44finished.” Afterwards, defendant paid said plaintiff $1,200 more, and he testified that when the last $500 was paid, he reminded plaintiff that it was not according to contract to pay the entire $2,000 until the matter was ended. The evidence tended to show that defendant acted on the proposition in the private letter. Plaintiff undertook to meet the effect thereof with testimony tending to show that another piano company had contributed to defendant’s expense account in the litigation.
    From a judgment on a verdict in favor of plaintiff for $1;200? defendant appeals.

      Abstract of the Decision.
    Attorney and client, § 123

      —when evidence sufficient to show agreement for compensation. Evidence examined and held to show agreement between attorney and client for attorney’s compensation and to preclude recovery by attorney on quantum meruit.

    Charles E. Carpenter, Vincent D. Wyman and Otto W. Jurgens, for appellant.
    Edward G. Woods, for appellee.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    Walter R. Kirk, Plaintiff in Error, v. H. Meinshausen, trading as German-American Oil Company, Defendant in Error.
    Gen. No. 20,719.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Joseph S. LaBuy, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed May 11, 1915.
    Statement of the Case.
    3 Action by Walter B. Kirk, plaintiff, against H. Meinshausen, trading as German-American Oil Company, defendant, to recover a balance of $150.60 as commissions claimed to be due him as broker for negotiating the sales of certain merchandise.
    The evidence as to the terms of the contracts under which the sales were negotiated and of the terms of the agreement between the parties was conflicting. There was also a conflict as to whether or not a check for commissions given by defendant to plaintiff’s order had written on it the words “payment in full” and “payment in full up to date” before or after plaintiff received and indorsed it.
    Abstract of the Decision.
    Appeal and error, § 1411

      —when judgment not disturbed where evidence conflicting. Where the evidence is conflicting the Appellate Court will not disturb the judgment, where the case is brought up on the question of the weight of the evidence, unless it can say that the finding of the lower court on the verdict of the jury is njanifestly against the weight of the evidence.
    To reverse a judgment for defendant, plaintiff prosecutes this writ of error, the only question presented on the record being whether the finding and judgment of the trial court are manifestly against the weight of the evidence.
    Culver, Andrews, King & Cook, for plaintiff in error.
    Eugene M. Bumphrey, for defendant in error.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    City of Chicago, Defendant in Error, v. Truax Greene & Company, Plaintiff in Error.
    Gen. No. 20,742.
    1. Appeal and error, § 1459

      -—when error in rulings on evidence harmless. Even though there is- error in admitting or rejecting evidence, such error is not ground for reversal where there is nothing in the evidence so admitted or rejected tending to raise a disputed material issue of fact.
    2. Druggists, § 6*—when scienter not element of unlawful sale of cocaine. In an action to recover penalties for the unlawful sale of cocaine to a habitual user and without the written order of a registered practicing physician, it is not essential that the sale shall have been knowingly and wilfully made in violation of the ordinance.
    3. Druggists, § 6*—when ignorance of violation of ordinance against sale of cocaine no defense. In an action to recover penalties for selling cocaine in violation of a city ordinance prohibiting the sale to a habitual user of the drug and without the written order of a registered practicing physician, it is no defense that defendant’s clerk who made the sale had previously dealt with the purchaser as a practicing physician and had no knowledge of his habits. .
    4. Druggists, § 6*—when evidence of intent in making prohibited sale admissible. In an action to recover penalties for selling cocaine in violation of a city ordinance, proof of the intent or ignorance of the person making the sale is admissible for the consideration of the jury in determining” the amount of the penalty.
    5. Appeal and error, § 1526*—when remarks and instructions harmless error. Instructions and remarks of the court though erroneous are not ground for reversal where the judgment given was bound to follow from the undisputed facts.
    6. Appeal and error, § 1491*—when rejection of evidence harmless error. In an action to recover a penalty for the violation of an ordinance, error in rejecting evidence proper to be considered in fixing the amount of the penalty is harmless where the penalty was fixed at the minimum amount.
    7. Municipal corporations, § 857*—when strict compliance with police 'regulation essential. One engaged in a business brought under police regulation assumes the hazards thereof and must De held to strict conformity with the requirements of the laws or ordinances governing it.
    Error to the Municipal Court of Chicago; the Hon. Joseph S. LaBuy, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed May 11, 1915.
    Rice, Lowes & O’Neil, for plaintiff in error.
    John W. Beckwith and Albert J. W. Appell, for defendant in error; George L. Reker, of counsel.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.

The action below was brought to recover penalties for eighteen sales of cocaine made by plaintiff in error, a wholesale physicians’ supply house, to one Thomas S. Boberts, in violation of a city ordinance prohibiting sales of such drug to a person addicted to the habitual use of morphine and cocaine, and without. a written order of a duly registered practicing physician when made at wholesale.

The jury found a verdict of guilty, assessed a fine of nine hundred dollars, the minimum for that number of offenses, and judgment was entered therefor.

The exceptions taken to the admission and rejection of evidence and the instructions given, if upheld, would not call for reversal of the judgment. There was nothing in the evidence, admitted or rejected, that tended to raise a disputed material issue of fact. It

was unquestioned that the sales were made at wholesale, on the written orders of Boberts himself, between April ,8th and May 20, 1914, and there was no evidence tending to dispute his own testimony that at the time thereof he, though a licensed, was not a practicing physician, and also that he had been addicted to the use of morphine and cocaine intermittently for several years. He had only shortly before making the purchases been released from the House of Correction where he had been incarcerated from the previous September. He had no office and no patients, and there was no evidence that he attempted to resume or engage in the practice of his profession after his incarceration as aforesaid. Proof of such sales, with his uncontroverted admissions that he was not a practicing physician, and was at the time addicted to the use of-morphine and cocaine, authorized even a directed verdict.

The facts that the clerks who made the sales had previously dealt with Eoberts as a practicing physician and had no personal knowledge of his habits constituted no defense to the charge, the ordinance not requiring that violations thereof shall be knowingly and wilfully made. Proof of the intent or the ignorance of the clerks making the sales should have been admitted for consideration of the jury in determining the amount of the fine, but not for determining the question of guilt. But no complaint can be made as to the rejection of proof on these matters or as to evidence and remarks alleged to have been prejudicial or as to any erroneous instructions, as judgment was bound to follow from the undisputed facts and was fixed at the minimum amount.

It is a rule of law that one engaged in a business brought under police regulation assumes the hazards thereof and must be held to strict conformity with the requirements of the laws or ordinances governing it. In the case of a sale of intoxicating liquors to a minor, it was held in McCutcheon v. People, 69 Ill. 601, that “the law imposed upon the licensed seller the duty to see that the party to whom he sells is authorized to buy, and if he makes a sale without this knowledge, he does it at his peril,” and that “it is no answer to this view to say the licensee may sometimes be imposed upon and made to suffer the penalties of the law, when he had no intention to violate its provisions. This is a risk incident to the business he has undertaken to conduct, and, as he receives the gains connected therewith, he must assume also with it all the hazards.” This and other cases announcing the same principle were reviewed and followed in People v. Nylin, 236 Ill. 19, where, contrary to the statute, a party sold liquor in quantities less than five gallons, and was held chargeable with personal knowledge of the quantity the bottles sold contained. The principle applies to any business brought under police regulation. Green-leaf in his work on Evidence, vol. 3, sec. 21, discussing the question of ignorance of the fact or state of things contemplated by police and other laws and regulations, states that the law seems “to bind the party to know the facts and obey the law at his peril.”

In the instant case, plaintiff in error was bound to know whether Roberts was a practicing physician, and whether he was a person addicted to the use of said drugs. The evil intended to be abated requires the strictest police regulation. It is no objection to such rigid enforcement of the ordinance that the extreme precaution required to escape the penalty of its violation may in some instances impose hardships. The few that may follow from ignorance of fact would be better endured than the evils that would result from a lax enforcement of the ordinance-designed, as it is, to stamp out an evil so generally recognized that it has become the subject of both State and national legislation. The judgment is affirmed.

Affirmed.


text:
    City of Chicago, Defendant in Error, v. Truax Greene & Company, Plaintiff in Error.
    Gen. No. 20,741.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Hosea W. Weixs, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed May 11, 1915.
    Statement of the Case.
    Proceeding by the City of Chicago, plaintiff, against Truax Greene & Company, a corporation, defendant, for violation of an ordinance of the City of Chicago prohibiting the sale of cocaine by a druggist or other person ‘1 except upon the written prescription of a duly registered physician,” and except that the drug may lawfully be sold at wholesale “upon the written order of a licensed pharmacist or licensed druggist, duly registered practicing physician, licensed veterinarian, or licensed dentist.”
    The evidence showed that one sale was made upon an order purporting to be signed by “J. B. Hoffman, M. D., ’ ’ and on twelve orders purporting to be signed “J. M. Hoffman, M. D.”
    It was not contended that the purchaser came within the classes excepted by the ordinance nor was it denied that the orders were fictitious.
    The defense was that the clerk who made the sales was deceived by the purchaser into the belief that the orders were geniune and made by physicians for whom the purchaser was a messenger, and as the clerk did not intend to sell to the purchaser in other than such representative capacity, there was no sale because there was no meeting of minds.
    To reverse a judgment for plaintiff, defendant prosecutes this writ of error, assigning as error the refusal of the court to admit evidence of the clerk’s intent or belief and evidence of the directions as to sales given him by defendant, and also the ruling and remark of the court that defendant must not argue to the jury that there was no sale.
    Abstract of the Decision.
    1. Druggists, § 6

      —when scienter not essential to unlawful sale. In a proceeding for a violation of the ordinance of the City of Chicago regulating the sale of cocaine to render the seller liable, it is not necessary that the sale be knowingly and wilfully made in violation of the ordinance, as the seller acts at his peril.
    2. Druggists, § 6*—when sale on fictitious order unlawful. One selling cocaine on an order is bound to know whether the order relied upon is authentic and made by a registered or licensed physician as provided by the ordinance of the City of Chicago.
    3. Druggists, § 6*—when sale a question of law. In a proceeding for the violation of the ordinance of the City of Chicago regulating the sale of cocaine, where the undisputed evidence shows that the cocaine was delivered and paid for, but upon a fictitious order, the question as to whether there was a sale is one of law for the court and not of fact for the jury.
    4. Sales, § 19*—when genuineness of order on which made immaterial. Where there is a delivery by a salesman to a cash purchase of goods out of stock kept for sale, there is a meeting of minds, even though the seller was deceived as to the genuineness of the order and the real beneficiary.
    5. Druggists, § 6*—when instruction as to absence of guilty motive proper. In a proceeding for violation of the ordinance of the City of Chicago regulating the sale of cocaine, an instruction that in fixing the penalty the jury may consider the absence of a guilty intent or the existence of an honest motive in the mind of defendant’s clerk who made the sale, is proper.
    Rice, Lowes & O’Neil, for plaintiff in error.
    John W. Beckwith and Albert J. W. Appell, for defendant in error; George L. Reker, of counsel.

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

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.

6. Appeal and error, § 1512 —when rulings harmless error. In a proceeding for' the violation of the ordinance of the City of Chicago regulating the sale of cocaine, where a judgment against defendant was bound to. follow the undisputed facts and the jury fixed the minimum penalty for the offense, error of the court in its rulings and remarks is not ground for reversal.


author: Mr. Justice Gridley

text:
    Elmer E. Challenger, Defendant in Error, v. Merchants & Miners Bank, Plaintiff in Error. First National Bank, Garnishee.
    Gen. No. 20,589.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John K. Prindiville, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed May 11, 1915.
    Rehearing denied and opinion modified May 25, 1915.
    Statement of the Case.
    Attachment by Elmer E. Challenger, plaintiff, against Merchants & Miners Bank, a corporation, defendant, First National Bank of Chicago being summoned as garnishee, to recover the sum of $815, principal and interest alleged to be due upon a certain check which defendant had certified.
    The evidence showed that in the latter part of September, 1913, one Heider, representing the Commonwealth Corporation (a Delaware corporation, with office in Detroit, Michigan), went to Calumet, Michigan, for the purpose of selling certain of the capital stock and bonds of that company. Among others he called upon Norman MacDonald, Dr. William T. King and Harry E. King. MacDonald and Dr. King and- the wife of Harry E. King were all stockholders of the Metropolitan State Bank of Detroit, Michigan. Heider falsely represented to said parties that the Commonwealth Corporation was affiliated with said Metropolitan State Bank and was organized by said bank for the purpose of handling a certain class of investments which the bank could not deal in under Michigan laws. As a result of Heider’s negotiations with said parties separately, MacDonald agreed to purchase thirty shares of the capital stock of the Commonwealth Corporation and a bond of the company, with the understanding that said securities would be sent to defendant for delivery to MacDonald upon payment of the agreed price; Dr. King purchased fifteen shares of stock and a bond of the company, received a certificate for said shares and the bond, and gave a New York draft of the defendant for $1,500 in payment therefor; and Harry E. King purchased eight shares of stock and a bond of the company, received a certificate for eight shares and the bond, and delivered to Heider his (King’s) personal check for $800, dated October 1, 1913, drawn on the defendant, and payable to the order of the Commonwealth Corporation. Heider at once presented said check for certification and the same was certified by the defendant on October 1,1913, and returned to Heider. This is the check sued on in the present action. The Commonwealth Corporation transferred it by indorsement to the Hanover Bank of Lucey & Company, of Hanover, Michigan, and that bank indorsed and sent it to the La Salle Street Trust & Savings Bank of Chicago, which bank indorsed it and forwarded it to the defendant for collection and remittance, but said defendant refused to pay the check, caused it to be protested and returned it to said La Salle Street Bank of Chicago, which bank returned it to said Hanover Bank.
    Subsequently the Hanover Bank indorsed and delivered the check to the plaintiff, Elmer E. Challenger. Plaintiff testified that the Hanover Bank was indebted to him for certain legal services rendered; that upon his making demand of payment for said.services a representative of that bank suggested his taking said check in payment of his services; that after investigation he accepted the check in payment of said services, and that he never had any dealings or relations with the Commonwealth Corporation!
    On October 2,1913, the day after Harry E. King had delivered said check to Heider, King learned that Heider’s representations that the Metropolitan State Bank was affiliated with the Commonwealth Corporation were false. King had been induced on the strength of those representations to purchase said eight shares of stock and the bond. He immediately communicated with W. B. Anderson, vice-president and general manager of the defendant, and requested him to stop payment of said check and “to try and recover the same.” About the same time MacDonald and Dr. King received the same information and they also communicated with Anderson. On October 3,1913, Anderson, as such vice-president and general manager, wrote the following letter to the Commonwealth Corporation, which that company received but to which it made no reply:
    “You will find enclosed certificate #115 for 30 shares of the capital stock of the Commonwealth Corporation in the name of Norman MacDonald, and bond #512 for $3,000.00, received by mail from your Mr. Heider, for the account of Mr. Norman MacDonald. Mr. MacDonald has requested us to say to you that he does not wish to take said securities.
    “Your Mr. Heider sold to Dr. William T. King of Ahmeek $1,500.00 of securities issued by your corporation, and he also sold to Mr. Harry E. King, of Laurium, $800.00 of said securities. These three gentlemen have requested us to say to you that said securities were sold to them under false representations, and we were requested to stop payment of our New York draft for $1,500.00 issued in payment of securities sold to Dr. William. T. King, and payment has also been stopped on certified check issued in payment of securities sold to Mr. Harry E. King.
    Abstract of the Decision.
    1. Contracts, § 276

      —what sufficient rescission. It is not sufficient for one who desires to rescind a contract merely to signify an intention to rescind, but he must either return the property purchased or tender it to the vendor.
    2. Contracts, § 278*—when conditional tender of rescission insufficient. A conditional tender of rescission is insufficient.
    “If you will return to this bank the New York draft and certified check aforementioned, we shall send to you the securities sold to Dr. William T. King and Mr. Harry E. King.”
    The case was tried before' the court without a jury and the issues as to the attachment and as to the merits were found against defendant, and plaintiff’s damages were assessed at $815.
    Upon this finding judgment was rendered, sustaining the attachment, that plaintiff recover of defendant $815 and that defendant have judgment on the answer of the garnishee and recover said sum of the garnishee for the use of the plaintiff. ’
    To reverse this judgment, defendant sues out this writ of error.
    Miller, Starr, Packard & Peckham, for plaintiff in error; Charles L. Cobb, of counsel.
    M. E. Gallioh and Elmer J. Tone, 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.


text:
    Joseph Redlowski, Defendant in Error, v. Grossfeld & Roe Company, Plaintiff in Error.
    Gen. No. 20,647.
    1. Municipal Court of Chicago, § 13

      —when amendment equivalent to substitution of party. Where, after the filing of a statement and affidavit of claim and appearance and filing of affidavit of merits by defendant, an order is entered on motion of plaintiff amending the papers, records and proceedings in the cause hy making another coplaintiff and dismissing as to plaintiff, the effect of the order is to substitute the coplaintiff as sole plaintiff instead of the original plaintiff.
    2. Parties, § 32*—when amendment substituting party not error. An order amending the' papers, records and proceedings may he entered in a fourth-class case substituting a plaintiff for the original plaintiff, though the statement and affidavit have been filed and defendant has appeared generally and filed an affidavit of merits.
    Error to the Municipal Court of Chicago; the Hon. Joseph S. LaBuy, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed May 11, 1915.
    Allen, Whipple & Ward, for plaintiff in error; John J. Ward, of counsel.
    Gorman, Pollock, Sullivan & Livingston, 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.

On September 26, 1913, an action of the fourth-class in tort was commenced in the Municipal Court of Chicago in the name of Stanislaw Rutkowski, plaintiff, against the Grossfeld & Roe Company, a corporation, defendant, to recover damages in the sum of $200, and. a statement and affidavit of claim were filed. The defendant corporation was duly served and entered its general appearance and filed an affidavit setting forth its defense upon the merits. It appears from the clerk’s transcript of the record that on January 21, 1914, the following order was entered of record: ‘1 On motion of the plaintiff herein, it is ordered that all papers, records and proceedings in this cause be and they are hereby amended by making Joseph Redlowski co-plaintiff herein, and dismissed as to Stanislaw Rutkowski. ’ ’

We are of the opinion that the effect of this order was to substitute Joseph Redlowski, as sole plaintiff in the action, in place of Stanislaw Rutkowski, in whose name the action was originally commenced.

It further appears from said transcript that on March 27, 1914, leave was granted the defendant to file a “special appearance”; that such special appearance was filed; that on June 8, 1914, the defendant moved that the cause be dismissed “for want of jurisdiction of the parties,” but that the motion was overruled; that on June 19, 1914, the cause came on for trial before the court without a jury, that evidence was heard, etc., that the court found the defendant guilty as charged in plaintiff’s statement of claim, and assessed his damages at the sum of $149.08 in tort, and on the same day entered judgment in said sum against the defendant; and that on July 6, 1914, a writ of error from this Appellate Court was filed. No statement of facts, stenographic report or bill of exceptions is contained in the transcript.

It is contended by counsel for defendant that the court erred in allowing the substitution of Joseph Redlowski for Stanislaw Rutkowski, as plaintiff, and that the judgment is void for want of jurisdiction of the parties.

Section 1 of chapter 7 of the Illinois Statutes (J. & A. ¶ 300) provides:

‘ That the court in which an action is pending shall have power to permit amendments in any process, pleading or proceeding in such action, either in form or substance, for the furtherance of justice, on such terms as shall be just, at any time before judgment rendered therein. ’ ’

Section 39 of chapter 110 of said Statutes (J. & A.

¶ 8576) provides:

“At any time before final judgment in a civil suit, amendments may be allowed on such terms as are just and reasonable, introducing any party necessary to be joined as plaintiff or defendant, discontinuing as to any joint plaintiff or joint defendant, changing the form of the action, and in any matter either of form or substance, in any process, pleading or proceeding which may enable the plaintiff to sustain the action for the claim for which it was intended to be brought or the defendant to make a legal defense. The adjudication of the court allowing an amendment shall be conclusive evidence of the identity of the action. ’ ’

We do not think that it is shown in the transcript before us that any error was committed by the trial court. While the cases of Zukowski v. Armour, 107 Ill. App. 663, and Henry v. Seaton, 170 Ill. App. 1, cited by counsel for defendant, seem to support their contention, the decisions of our Supreme Court and other decisions of the Appellate Court appear to be the other way. Teutonia Life Ins. Co. v. Mueller, 77 Ill. 22, 23; McDowell v. Toion, 90 Ill. 359; Thomas v. Fame Ins. Co., 108 Ill. 91, 99; United States Ins. Co. v. Ludwig, 108 Ill. 514, 518; Congress Const. Co. v. Farson & Libbey Co., 199 Ill. 398, 404; Kanawha Dispatch v. Fish, 219 Ill. 236, 241; Chesapeake & O. Ry. Co. v. Fish, 170 Ill. App. 359, 363; Chicago-Virden Coal Co. v. Bradley, 134 Ill. App. 234, 237. In Teutonia Life Ins. Co. v. Mueller, supra, our Supreme Court, referring to said statutes, said: “Under the liberal provisions of this statute, any amendment in civil actions, either in form or substance, is permissible, that tends to the furtherance of justice. The amendment allowed in this case was simply to substitute the real parties in interest as plaintiffs. Clearly this was within the discretion of the court, to enable the parties ‘to sustain the action for the claim for which it was intended to be brought.’ ” In Thomas v. Fame Ins. Co., supra, referring to the section of the statutes last above quoted, the court said: “In furtherance of the intention of the legislature a very broad and liberal construction has been given to this section. It was evidently the intention of the legislature in adopting this provision, that no amendment after the commencement of the suit and before final judgment, resulting in a change or substitution of parties to the action or in a change of the form of the action, should be deemed a change of the action itself. ’ ’ In Kanawha Dispatch v. Fish, supra, it is said: “Under our liberal statute of amendments there may be an entire change of plaintiffs where necessary.”

Finding no error in the record the judgment of the Municipal Court is affirmed.

Affirmed.


text:
    Tony Nosil by Joseph Nosil, Defendant in Error, v. Ellis Time Stamp Company, Plaintiff in Error.
    Gen. No. 20,707.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Hugh J. Kearns, Judge, presiding. Heard in the' Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed May 11, 1915.
    Statement of the Case.
    Action of the fourth class by Tony Nosil, a minor, by his next friend, Joseph Nosil, against Ellis Time Stamp Company, a corporation, defendant, to recover for personal injuries.
    Plaintiff entered the employ of defendant on June 17, 1912, being put to work by the foreman at a punch press in defendant’s factory. On the morning of June 19, 1912, while he was working at the press, two of his fingers were caught in the press and were cut off at a point about one-sixteenth of an inch back of the nail. The cause was tried before a jury resulting-in a verdict and judgment against the defendant company for six hundred and fifty dollars. Defendant brings this writ of error to reverse the judgment.
    In plaintiff’s amended statement of claim it was charged that defendant was negligent (a) in failing to provide suitable guards on said pfineh machine, contrary to the statute, (b) in using said punch press when the same was known to he dangerously defective, contrary to the statute, and (c) in failing to provide suitable and proper means for disconnecting the power from said press while same was used by employees, contrary to the statute.
    To this amended statement of claim the defendant filed an affidavit of merits in which it set up as a defense the provisions of the act commonly known as the “Workmen’s Compensation Act of 1911” (J. .& A. 5449 et seq), approved June 10, 1911, and in force May 1, 1912. It was alleged that the defendant had elected to provide and pay compensation for injuries sustained by any employee, arising out of and in the course of employment, according to the provisions of said act, and that thereby the defendant had relieved itself from any liability for the recovery of damages by plaintiff except as in said act provided; that plaintiff had not filed a notice disaffirming said act with the Secretary of the State Bureau of Labor Statistics, and should thereby be deemed to have 'accepted the provisions of said act and to be bound thereby; and that plaintiff has made no effort to have his compensation under said act fixed and determined.
    After the affidavit of merits had been filed by the defendant, plaintiff asked leave of court to file thereto an affidavit and replication. ’ ’ Leave was granted and the same was filed on June 3, 1913. Plaintiff therein alleged, inter alia, that he should not be barred from maintaining his aforesaid action against defendant by reason of anything contained in its affidavit of merits because plaintiff says that defendant, as employer of plaintiff, did not furnish to plaintiff' personally at the time of hiring, or post in a conspicuous place at the plant or in the room or place where plaintiff was employed, a legible statement of the compensation provisions of said Workmen’s Compensation Act of 1911.
    Defendant did not in any manner join issue on the allegations contained in said replication, but, on June 5, 1913, just as the cause was called for trial and before the jury were impaneled, defendant asked and obtained leave to file, and filed, a new affidavit of merits, in which defendant made no mention of said Workmen’s Compensation Act. It was therein alleged (1) that defendant did not fail to provide suitable guards on said punch machine, but that on the contrary the machine was properly equipped; (2) that said press was not dangerously or at all defective; (3) that it was provided with proper means for disconnecting the power therefrom; (4) that plaintiff’s injuries were due solely to his own negligence and not to any negligence of defendant; (5) and that plaintiff, before entering upon his work on said press represented to defendant that he was familiar with the operation of such presses, and that defendant, relying upon said representations, permitted him to operate said press.
    Immediately after defendant had filed said new affidavit of merits, plaintiff asked and obtained leave to file, and did file, an “additional” statement of claim, and it was ordered that defendant’s said affidavit of merits stand as answer thereto. In this additional statement of claim plaintiff also claimed damages because of the negligence of defendant (1) in failing to provide plaintiff with a safe place to work; (2) in furnishing to plaintiff a dangerous punch press, in that the same would repeat and come down without warning;' and (3) in placing plaintiff, a young and inexperienced person, 16 years of age, to work upon a dangerous press without instructing and warning him with the usual and customary directions for the proper running of said press, whereby he, while using ordinary care for his own safety, was seriously and permanently injured, etc.
    The stenographic report of the proceedings below showed that the case was tried as though with the understanding between court and counsel that the Workmen’s Compensation Act were not in it, and that defendant’s only defenses were those contained in the new affidavit, no attempt being made to show that at the time of plaintiff’s hiring he was personally furnished with, or that there was posted in defendant’s factory, a legible statement of the compensation provisions of the act.

      Abstract of the Decision.
    1. Pleading, § 420

      —when defense held to be abandoned. In an action by an employee for personal injuries, where defendant, in its original affidavit of merits, set up the provisions of the Workmen’s Compensation Act of 1911 as a defense, and plaintiff in reply alleged certain facts showing that he should not be bound by the act, and defendant did not deny the existence of the facts thus alleged, but filed a new affidavit of merits setting up new and different defenses and not mentioning the act as a defense, and the case is tried without reference to that defense, the defense based on the act is abandoned.
    2. Master and servant, § 676*—when evidence supports judgment. Evidence in an action by a minor employee for personal injuries examined and held to support verdict and judgment for plaintiff.
    Rathje & Weseman, for plaintiff in error.
    Earl J. Walker, 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.


text:
    Tony Ianni, Plaintiff in Error, v. Thomas Caros and George Preparas, Defendants in Error.
    Gen. No. 20,725.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Joseph P. Rafferty, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1914.
    Reversed with finding of facts.
    Opinion filed May 11, 1915.

      Statement of the Case.
    Replevin by Tony Ianni, plaintiff, against Thomas Caros and George Preparas, defendants, to recover possession of certain fixtures and furniture.
    The following facts, in substance, appear in the certified stenographic report: The fixtures and furniture replevied were contained in a certain shoe-shining parlor in Chicago. Prior to April 22, 1913, one Rozarlo Dispenza rented the premises and purchased the' fixtures and furniture. One Jack Cremo worked for him. On April 22, 1913, Dispenza sold the shoe-shining business and said fixtures and furniture to Cremo for the sum of $750. This transfer was evidenced by a bill of sale, which was recorded on May 5, 1913, in the recorder’s office of Cook county, Illinois. Subsequently Cremo sold the business and the fixtures and furniture to plaintiff for the sum of $610. This transfer was also evidenced by a bill of sale, recorded on May 22, 1913. Plaintiff conducted the business on the same premises until some time in the month of June, 1913, when he went to Italy on account of the illness of his mother residing there, and left his business and the furniture and fixtures in charge of Dispenza. Plaintiff testified that when he left Chicago to go to Italy “Cremo was working in the place and Dispenza was running it.” Some time after plaintiff left Chicago, the defendants, as first parties, and Dispenza and Cremo, as second parties, signed a written agreement, dated June 10, 1913, whereby said second parties agreed to sell for $375, and the defendants agreed to purchase said shoe-shining parlor and business, and the fixtures, furniture, etc., contained in said parlor. The agreement provided that defendants should pay said second parties $200 cash, and the balance in monthly payments, $50 per month for three months and $25 for the fourth month, and futher provided that said second parties (Dispenza and C'remo) would guaranty that, “if any one claims title under a bill of sale or otherwise,” they would repay to defendants the purchase price. On October 21, 1913, Dispenza and Cremo signed and acknowledged a bill of sale conveying said business, fixtures, furniture, etc., to defendants, and defendants thereafter conducted the business on the same premises. When plaintiff returned to Chicago from Italy in April, 1914, he found the defendant, George Preparas, in charge of the shoe-shining parlor and asked him what he was doing there, and Preparas replied that he and Caros had purchased the place from Dispenza, and requested plaintiff to see Caros. Plaintiff did so and Caros suggested that plaintiff and Caros visit defendants’ attorney, Morgan. Plaintiff testified that when they called on Morgan and the ■ situation was explained to him, Morgan said to Caros: “I told you Ianni might come back and make trouble. * * * Now, you have got trouble. * * * I told you not to buy the place.” Tony Abinanti, a notary public and a witness for plaintiff, testified that he drafted the bill of sale from Cremo to plaintiff; that he saw plaintiff pay Cremo $610; that after plaintiff. had left Chicago he was asked to draw the bill of sale from Dispenza and Cremo to defendants but that he refused; that he heard Morgan, C'aros’ attorney, advise Caros not to buy the place because someone else zhad an interest in it; that he told Dispenza that he ought not to sell the property because Ianni might re-" turn and then Dispenza might have to give the money back. Plaintiff further testified that he subsequently made a demand on defendants to turn over to him said furniture and fixtures, and that upon defendants ’ refusal he commenced the present replevin action.
    The defendants in their affidavit of merits denied that they unlawfully took or unlawfully detained the property, and alleged that the same was their property, that plaintiff was not the owner or entitled to the possession of the same, and that defendants had sustained damages in the sum of $200 by reason of the wrongful suing out of the writ. The case was tried before the court without a jury. The court found that the right to the possession of the property replevied was not in the plaintiff and assessed defendants’ damages at the sum of one cent, overruled plaintiff’s motions for a new trial and in arrest of judgment, and on August 8, 1914, entered judgment upon the finding, adjudging that defendants recover from plaintiff the possession of the property, that a writ of retorno habendo issue, and that defendants recover from plaintiff said damages of one cent together with costs. Plaintiff seeks by this writ of error to reverse the judgment.
    Abstract of the Decision.
    1. Bailment, § 13

      -—when bailor’s title not affected by sale by bailee. The sale of a bailment by a mere bailee haying no right to sell does not impair the bailor’s title.
    2. Replevin, § 124*—when evidence sufficient to establish title. Evidence examined in action of replevin and held sufficient to establish plaintiff’s title.
    Tone & Challenger, for plaintiff in error.
    James B. Heffernan, for defendants 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.


text:
    Max J. Brandenstein et al., copartners, trading as M. J. Brandenstein & Company, Appellants, v. Geo. Rasmussen Company, Appellee.
    Gen. No. 20,747.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Habby Olson, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed May 11, 1915.
    Rehearing denied May 25, 1915.
    Statement of the Case.
    Action of assumpsit in the first class by Max J. Brandenstein, Manfred Brandenstein and Edward Brandenstein, .copartners, trading as M. J. Branden-stein & Company, plaintiffs, against Geo. Rasmussen Company, a corporation, defendant.
    One Alfred Adelsdorfer was the manager of plaintiffs’ business, and George Rasmussen and W. Matthiesen were respectively the president and treasurer of the defendant. The action was brought on two written instruments or notes, one of which is as follows :
    “Chicago, 4/12/1913.
    Geo. Rasmussen Company hereby agrees to pay to M. J. Brandenstein & Co., one thousand dollars on the 12th day of June, 1913, in part settlement of a certain carload of coffee damaged in the flood, while in transit from New York.
    (Signed) Geo. Rasmussen Company,
    Geo. Rasmussen, Pres.
    W. Matthiesen, Treas.”
    The other instrument was the same except that the date of maturity was August 12, 1913. Plaintiffs claimed that the sum of $2,017.50 was due them. The defendant’s defense, as stated in its affidavit of merits, was in substance, that plaintiffs represented to defendant that plaintiffs had -delivered to defendant, at New York City, one carload of coffee, to wit, 245 bags of coffee, that said coffee was the property of defendant after said delivery at New York City, that said coffee had been damaged or destroyed while in transit from New York City to Chicago, and that defendant had become liable and was indebted to plaintiffs for said coffee ; that defendant, relying upon the representation of plaintiffs that they had delivered the coffee to defendant at New York City, executed the two instruments sued upon in part payment of the coffee; that after-wards defendant learned and states the fact to be that said representation was false and untrue; that plaintiffs did not deliver said coffee, or any part thereof, to defendant at New York City, or elsewhere; that defendant was not indebted in any sum to plaintiffs at. the time of executing said instruments either for said coffee or for any other matter or thing; that said instruments were made without any good or valuable consideration, that the consideration therefor has wholly failed, and that said instruments were obtained by false representations.
    The facts as disclosed from the evidence are, in substance, as follows: Between February, 1911, and February, 1913, defendant had purchased various lots of coffee from plaintiffs. The first two shipments were made early in the year 1911, upon the understanding that defendant was to have the money in New York to pay for the coffee before the shipments were made to defendant. In March, 1911, George Rasmussen, while in New York, told Adelsdorfer that it was too expensive for defendant to have its money in New York before the coffee left New York, and it was thereupon agreed that future shipments to defendant should be made upon “draft against documents,” and that defendant would pay the drafts upon presentation in Chicago. Several lots of coffee were afterwards shipped to defendant and paid for in this manner. Some time during February, 1913, Rasmussen called on Adelsdorfer in New York and as a result of the interview defendant contracted to purchase the coffee in question, which at that time was in transit and not yet received by plaintiffs. It was agreed that defendant should pay plaintiffs what the coffee had cost plaintiffs, plus a commission or profit to plaintiffs of 15 cents per bag, and plus all charges for insurance, etc., and for the handling of the coffee until it was put on the train, and that the shipment of the coffee to defendant at this total price should be “f. o. b. New York.” In due time the coffee arrived in New York, and on March 18, 1913, plaintiffs received from the Old Dominion Steamship Company in New York a so-called “order bill of lading,” in which the steamship company acknowledged the receipt in apparent good order of 245 bags of coffee, “consigned to order of M. J. Brandenstein & Co. Destination, Chicago. State of Ills. Notify Geo. Rasmussen Co. * * * at Chicago, * * * Route Norfolk & Western, % Wabash R. R.” On the face of said bill of lading it was stated that “the surrender of this original order bill of lading properly endorsed shall be required before the delivery of the property.”
    Plaintiffs indorsed in blank the bill of lading “M. J. Brandenstein & C'o.,” and, on March 20, 1913, drew a sight draft for $5,040.17 on defendant payable to the order of the State Bank of Chicago, and inclosed the bill of lading and draft in a letter addressed to said bank, in which letter plaintiffs wrote: “We enclose herewith bill of lading for 245 bags coffee consigned to our own order at Chicago, with instructions to notify George Rasmussen Co. * * * We beg to enclose herewith our draft for $5,040.17, with exchange and collection charges on New York, on Messrs. George Rasmussen Co. Please deliver bill of lading only on payment of this draft, and remit proceeds to us.” The word “only” in said letter was underlined in red ink. About the same time plaintiffs mailed to defendant at Chicago a statement or invoice showing the total purchase price of the coffee, including various incidental charges and plaintiffs’ profit therein itemized, to be $5,040.17, and stating that the amount was “payable net cash sight draft against shipping documents through State Bank of Chicago. In New York Funds. ’ ’ When the State Bank (with which bank defendant then did its banking business) received the draft, bill of lading and letter from plaintiffs, defendant was so advised by telephone by the bank, and defendant requested the bank to hold the draft and bill of lading until the arrival of the coffee in Chicago. This the bank agreed to do. It does not appear that the draft and bill of lading were formally presented to defendant or that any officer or representative of defendant saw the bill of lading. The coffee never arrived at Chicago. While in transit in the State of Ohio it was greatly damaged, if not practically destroyed, by reason of the Ohio flood of 1913.
    On April 2, 1913, defendant wrote plaintiffs to the effect that the coffee had not yet arrived in Chicago, that defendant had had the Wabash Railroad “trace from this end,” that the coffee when last heard from was in Ohio, “delayed evidently on account of flood,” and suggesting that plaintiffs “start tracer” from their end, to which plaintiffs replied, on April 4th, that they would start such tracer, and that Adelsdorfer would arrive in Chicago on April 11th or 12th. On April 11th defendant received a telegram from plaintiffs, dated April 10th, that plaintiffs had just been advised that the car containing the coffee had been caught in the flood and was at Toledo, Ohio, and had been refused by the Wabash Railroad because “contents hot and steaming causing stench.” The telegram further stated: “As the coffee is yours we have taken no action. If we can be of any assistance to you by sending a man to Toledo to sell the coffee for your account at your expense, telegraph us at once and we will be only too pleased, to accommodate you.” On April 11th defendant sent a representative, one Massmann, to Toledo to investigate, and he arrived’ there on April 12th. On the morning of April 11th Adelsdorfer arrived in Chicago and met Basmussen by appointment. Adelsdorfer told Basmussen that the coffee belonged to defendant, that he wanted the draft paid, and that if it was not paid plaintiffs would sue defendant. Basmussen replied that he would do nothing until he had received word as to the coffee from Massmann, and until he had ascertained whether or not the coffee was defendant’s coffee, and arrangements were made for another meeting on the following day. On the morning of April 12th Massmann at Toledo communicated with defendant over the long distance telephone, informing defendant that he had seen the coffee, that it was “practically worthless,” and that “not more than $100 could be realized upon it.”
    In the afternoon of April 12th Adelsdorfer met Basmussen and Matthiesen in Chicago, and further negotiations were had. Adelsdorfer testified, in substance, that at this interview he again stated that if defendant did not pay for the coffee immediately plaintiffs would bring suit to recover the purchase price; that he further stated that the coffee was shipped f. o. b. New York and that it was defendant’s coffee; that he showed a letter which he had just received from plaintiff’s New York attorney in which the said attorney expressed the opinion that the title to the coffee had passed in New York and that defendant was liable for the full amount; and that Basmussen stated during the interview that he had consulted a Chicago attorney who had advised him to settle without taking the matter into court. Basmussen denied making any such statement or that he had consulted an attorney. Basmussen further testified, in substance, that at this interview he again expressed doubt as to whether the coffee was defendant’s coffee; that thereupon Adelsdorfer said: “Of course it is your coffee; you bought the coffee f. o. b. New York, and there is no question but it is your coffee; I have seen my lawyer in New York about it;” that Adelsdorfer further said: “I feel sorry for you people: If I start suit its going to cost me some money; if I can settle this thing peaceably I am willing to allow you whatever it might cost for lawyer’s fees and so on”; that finally Adelsdorfer suggested an allowance of $500; that then he (Rasmussen) said: “If you will allow us $1,000, I will think it over and we can probably make a settlement on that basis;” that Adelsdorfer thereupon said that he would have to wire his office in New York and that as soon as he received a reply he would advise defendant; and that later, about three o’clock in the afternoon, Adelsdorfer called at defendant’s place of business and further negotiations were had which resulted in the drawing of the notes sued upon and other papers. Matthiesen, treasurer of defendant, who was-present at said interview on the forenoon of April 12th testified that Adelsdorfer then “told us that the coffee belonged to us and we had to settle, that he was going to sue for the amount of the coffee, that it was bought f. o. b. New York, and that in consequence we had to pay for it;” that he (Matthiesen) believed Adelsdorfer’s statements that the coffee had been shipped f. o. b. New York and the coffee belonged to defendant, “otherwise we would not have signed the notes.” Rasmussen also testified that he believed Adelsdorfer’s said statements and that those statements were “the basis on which I made the settlement. ’ ’ Both Rasmussen and Matthiesen testified that prior to signing the notes they had not seen the bill of lading, which was still with the State Bank. Adelsdorfer also testified that at the interviews with Rasmussen or Matthiesen nothing was stated as to the bill of lading except that after the papers were signed he promised to arrange to have the same turned over to defendant by the bank, and that he (Adelsdorfer) did not at any time inform any person connected with defendant who was the consignee named in the bill of lading.
    At the meeting of the parties at defendant’s place of business on the afternoon of April 12, 1913, the two notes sued upon were executed and delivered to Adelsdorfer, and two other like notes, maturing at dates subsequent to the commencement of the present action, were also executed and delivered. Adelsdorfer, in the name of plaintiffs, signed and delivered to defendant a receipt to the effect that plaintiffs had received from defendant four notes, amounting to $4,040.17, ‘1 as full settlement for a certain carload of coffee damaged in the flood while in transit from New York. Whatever compensation Geo. Rasmussen Co. receives by sale or salvage, or by settlement with railroad company, M. J. Brandenstein & Co. is entitled to 20 per cent, thereof.” On April 17th defendant received the bill of lading from the State Bank, the bank having been instructed by plaintiff’s letter, dated April 14th, to turn the same over to defendant, and the bank returned to plaintiffs said draft of $5,040.17. Both Rasmussen and Matthiesen testified that they first learned that defendant was not the consignee named in the bill of lading when they received the bill of lading from the bank. Defendant never made any attempt to get the coffee from the railroad company, or to get any money from the railroad company, and never realized anything by way of salvage on the coffee. Rasmussen further testified that after the bill of lading was received from the bank and he had ascertained therefrom that plaintiffs were the consignees named therein, he for the first time consulted an attorney, who expressed it as his opinion that the coffee was not defendant’s coffee at any time. The first note matured on June 12,1913, and, upon the same being presented to defendant for payment, defendant wrote plaintiffs that it would not pay the note, or any of the other notes, for the reasons, as stated in substance, that the defendant had been induced by false and fraudulent representations to sign the notes and that they were without consideration. After the second note matured plaintiffs commenced the present suit.
    Abstract of the Decision.
    1. Sales, § 200

      —when indorsement of hill of lading in blank insufficient delivery. Where the seller consigns goods to himself and forwards a bill of lading, indorsed in blank and with draft attached, to a bank with directions that the bill be delivered only on payment of the draft, the ownership of the goods remains in the seller until payment of the draft, and the risk of damage to the goods while in transit rests upon the seller.
    2. Bills and notes, § 52*—when compromise of invalid claim insufficient consideration. Evidence examined and held sufficient to support finding that consideration of notes in suit was compromise of claim having no valid existence and therefore insufficient.
    3. Bills and notes, § 443*-—when evidence sufficient to show fraud and misrepresentation. Evidence examined and held to warrant finding that defendants were induced to sign notes in suit through fraud and misrepresentations of plaintiff’s manager.
    Brecher & Chindblom, for appellants; Lambert Kaspers, of counsel.
    William B. Jarvis, for appellee.

      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.


text:
    Teander G. Peterson, Appellee, v. O. C. Peterson et al., Appellants.
    Gen. No. 20,829.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. William E. Deveb, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed May 11, 1915.
    Statement of the Case.
    Bill by Teander Gr. Peterson, complainant, against O. C. Peterson and others.
    This appeal is from a decree of the Superior Court of Cook county, entered July 16, 1913, in favor of complainant. The appeal was originally taken to the Supreme Court upon the theory that a freehold was involved in the litigation, and at the February term, 1914, the Supreme Court rendered a judgment in the cause affirming the decree. But, upon petition, a rehearing was allowed, and at the June term, 1914,' the Supreme Court transferred the cause to the Appellate Court, holding that it had no jurisdiction of the appeal inasmuch as a freehold was not involved (Peterson v. Peterson, 264 Ill. 121, 122).
    Complainant’s original bill was filed on April 5, 1911. He therein prayed for an accounting, for the specific performance of a verbal contract providing for the conveyance to him of the premises in question, and for an injunction to restrain the further prosecution of a forcible detainer action commenced against him on April 3, 1911. A preliminary injunction was issued. All of defendants, O. C. Peterson, William A. Peterson, Charles J. Ohman and Anna S. Ohman, his wife, filed a joint and several answer, denying the material allegations of the bill, and the cause was referred to a master in chancery to take proofs and report Ms concMsions of law and findings of fact thereon. On June 11, 1912, by leave of court and without prejudice to the reference, complainant filed an amended bill.
    In this amended bill complainant alleged, in substance, that prior to November 26, 1906, the defendant Charles J. Ohman was the owner of certain property on St. Lawrence avenue in Chicago; that said property was subject to a trust deed (hereinafter referred to as the Strauss mortgage) executed .by said Ohman and his wife to secure an indebtedness of $9,800, incurred for the purpose of erecting three two-flat buildings on said property; that complainant had entered into a contract with said Ohman to furnish and had furnished certain labor and materials in the erection of said buildings; that on November 26, 1906, complainant filed a bill in the Circuit Court of Cook county against said Ohman and others to enforce a mechanic’s lien on said property and buildings for said labor and materials so furnished; that in said mechanic’s lien cause the defendant, O. C. Peterson, acted as the solicitor for said Ohman and wife; that about June 29, 1909, a decree was entered in said cause establishing complainánt’s right to a mechanic’s lien and ordering a sale of the premises to satisfy the lien; that about July 23, 1909, said premises were sold by a master in chancery to V. G. Gallagher, solicitor for complainant in said cause, for the sum of $4,850.70; that subsequently said Gallagher assigned and delivered the master’s certificate of sale to complainant, who- thereafter borrowed $1,000 from the Chicago City Bank, giving his note therefor and pledging said certificate as collateral security; that at the time complainant filed his said bill for a mechanic’s lien he was residing, and has since continuously resided, in one of said flats, and that after said premises were sold as aforesaid complainant collected certain rents from other persons, except said Ohman, living in said buildings; that after the issuance of said master’s certificate of sale said Ohman, the owner of the equity of redemption, assigned and transferred to the defendant, O. C. Peterson, all his interest in the income from said buildings; and thereafter, upon an accounting being had between complainant and said 0. C. Peterson, it was found that complainant was indebted to said 0. C. Peterson, on account of rents, in the sum of $550, which sum complainant was then unable to pay, and that sometime in the early part of the year 1910, by agreement, said O. C. Peterson recovered a judgment against complainant for said sum, which judgment remains unsatisfied; - that prior to August 1, 1910, said Ohman had paid upon the principal of said Strauss mortgage the sum of $1,500; that the notes evidencing said indebtedness had been signed by complainant as well as by said Ohman; that in the month of August, 1910, the premises were subject to a sale'for taxes, and the holder of the tax sale certificate would have become entitled to a deed thereunder in the month of November, 1910; that the notes secured by said Strauss mortgage became due and payable in September, 1910; that in August, 1910, complainant had no property out of which the said O. O. Peterson judgment for $550 against him could be satisfied, and had no property except said master’s certificate of sale, pledged as aforesaid to the Chicago City Bank, all of which was well known to said O. C. Peterson; that during said month of August, 1910, said O. C. Peterson approached complainant for the purpose of obtaining security for the payment of his said judgment, and such negotiations were had that it was agreed between complainant and said O. C. Peterson that complainant would assign said master’s certificate of sale to said O. C. Peterson, and that the latter would take up complainant’s note of $1,000 to said Chicago City Bank for which it held said certificate as collateral, would redeem said premises from said tax sale, would pay the interest due on said Strauss mortgage, would arrange for an extension of said mortgage, would secure the issuing of a master’s deed upon said certificate if the premises were not redeemed, and would hold said certificate and deed as security for the payment by complainant to him, said O. C. Peterson, of the amounts so to be advanced and of the amount of said judgment with interest thereon, and that upon payment by complainant to said 0. C. Peterson of said amounts so advanced, together with the amount of said judgment and interest complainant might redeem said premises; that in pursuance of said agreement complainant assigned his interest in said certificate of sale to said 0. C. Peterson, and the latter paid to said Chicago City Bank the amount of complainant’s indebtedness to it and received from the bank complainant’s said note and he still holds the same as an obligation against complainant; that O. C. Peterson also paid $800 upon the balance due upon the notes secured by said Strauss mortgage and procured a new loan upon the premises in the sum of $7,500, but that the principal note evidencing the former loan, signed by complainant as well as by said Ohman as aforesaid, was not cancelled and the same remains outstanding as a liability against complainant; that said O. C. Peterson also paid the amount necessary to redeem said premises from said tax sale, and also paid some interest which had accrued upon the balance of $8,300-due upon said Strauss mortgage, and has since also paid certain accrued interest on said indebtedness of $7,500; that the reasonable rental value of the six flats in said buildings is $150 per month; that said flats have all been rented and the rents thereof, save one flat, have been collected either by said O. C, Peterson, or by said Ohman or his wife pretending to act under authority from said O. C. Peterson; that complainant has lived in one flat but has paid no rent therefor since the making of said agreement with said O. C. Peterson; that the deed to said premises, issued upon the master’s certificate of sale, was issued on or about October 24,1910, and that said O. C. Peterson procured the same to be issued in the name of the defendant, William A. Peterson, a brother of said O. C. Peterson, but that said William A. Peterson has no interest in said premises and holds title to the same as a naked trustee.
    Complainant further charged in his amended bill, in substance that said O. C. Peterson, in approaching complainant in August, 1910, and in entering into negotiations with him as aforesaid, acted as the representative of and in conspiracy with said Ohman and wife for the purpose of cheating and defrauding complainant out of said premises, and so that said Ohman might enjoy the beneficial use of the premises, after the expiration of the period of redemption from said master’s sale, without paying complainant the amount found due him by the decree in said mechanic’s lien cause; that the said Ohmans have collected all of the rents of said • premises, except for the flat occupied by complainant, and have retained said rents for their own use with the knowledge and consent of said 0. C. Peterson, and as part of said conspiracy; that complainant has frequently requested said 0. C. Peterson to come to an account with him as to what amount may be due from complainant for the sums so advanced by said 0. C. Peterson and for the amount of his said judgment and interest (complainant to be allowed credit for the rents collected less any proper expenditures), and that said O. C. Peterson convey said premises to complainant upon the payment of said amounts, but that 0. 0. Peterson has refused and still refuses to account and denies complainant’s right to redeem said premises in accordance with said agreement; that in pursuance of said scheme to cheat and defraud complainant, said 0. C. Peterson has instituted proceedings in the Municipal Court of Chicago to evict complainant from said flat now occupied by him, and that unless restrained said O. C. Peterson will proceed to enforce his legal rights against complainant in derogation of complainant’s equitable rights under said agreement. The bill prayed that an account be taken to ascertain what amount remained due and owing to said 0. C. Peterson from complainant, that upon payment by complainant of such amount said William A. Peterson be decreed to execute a conveyance of said, premises to complainant and that possession of said premises be delivered to complainant, and that the defendant be restrained from bringing or prosecuting any suit or suits at law in respect to the possession of said premises, etc.
    To this amended bill the defendants filed a joint and several answer, denying the material allegations of the bill and denying that complainant was entitled to the relief sought, and by an amendment to the answer they set up the statute of frauds as a defense.
    O. C. Peterson did not deny the agreement or that complainant was entitled to redeem, but he claimed that a time limit was fixed for this redemption by complainant at October 24, 1910, which was the time when a master’s deed under said certificate would be due. He testified that he agreed to take up the certificate and pay the taxes and the interest, and that he would turn the property back to complainant upon the latter reimbursing him for the amounts advanced with interest, plus the amount due on his judgment and payment for his trouble in the matter and payment of $25 per month while complainant occupied a flat in the building, provided complainant “would redeem” or pay all those amounts “before October 24, 1910.” Gallagher, complainant’s attorney, testified that after his return to Chicago and after said agreement had been made he had an interview with O. C. Peterson, at which time he reproached O. C. Peterson for dealing with his client direct and during his absence, and that O. C. Peterson replied: “Well, I don’t want the property, Gallagher; don’t get excited and talk that way about it. My only object in taking over the certificate was to make sure that I collect that judgment; * * * that is all I want; * * * if he can sell the property, all right; if I can sell and get the amount of that judgment, and what I have invested, with interest on it, that is all I want.” Gallagher further testified to the effect that he several times endeavored to have the verbal agreement between complainant and 0. C. Peterson put in writing, but that the latter refused so to do and further refused to render an itemized statement of what he claimed was owing him by reason of the transaction. Complainant denied that it was verbally agreed that a time limit within which he might redeem was fixed at October 24, 1910.
    The master made his report in which he found the facts substantially as alleged in complainant’s amended bill. The master further found, in substance, that subsequent to the sale of the premises under the decree in said mechanic’s lien proceedings and after said Ohman had assigned the rents to O. C. Peterson, Oh-man continued to collect the rents as he had previously done, but that it did not satisfactorily appear that any accounting was ever had as to said rents between said Ohman and O. C. Peterson; that complainant and said Ohman have resided in flats in said building since the same were erected; that the master’s deed on said certificate of sale was due on October 24, 1910; that said Ohman’s right to redemption expired on July 24, 1910, and' that his said assignment of the rents to O. C. Peterson was made while he still had the right of redemption; that complainant did not pay any rent for the flat occupied by him to said Ohman for some considerable period prior to said assignment of the rentals from Ohman to O. C. Peterson, except such rentals as were included in said 0. 0. Peterson’s judgment of $550 against complainant; that some time prior to August 10, 1910, O. C. Peterson, acting in behalf of said Ohman, entered into negotiations with complainant, through said V. G. Gallagher, complainant’s attorney, for the purchase of said master’s certificate of sale, and offered to pay therefor the sum of $2,800, which offer was refused; that during said month of August, 1910, while complainant’s attorney, Gallagher, was absent from the city, O. C. Peterson visited complainant and entered into negotiations with him which resulted in the making of the verbal agreement mentioned in complainant’s bill and the assignment of said master’s certificate to O. C. Peterson in accordance with said agreement; that it is difficult to determine from the evidence just what time was -fixed by the parties to said verbal agreement within which complainant might redeem; that said O. C. Peterson testified that the date for redemption was fixed at October 24,1910; that even though the time of redemption was fixed at said date, complainant could not then have redeemed from O. C. Peterson because the latter had not then performed his part of the agreement, in that on said date said Strauss mortgage and other items which O. C. Peterson had agreed to pay had not been paid; that O. C. Peterson, on August 8, 1910, paid $1,000 to said Chicago City Bank; and received from said bank complainant’s note of $1,000, and also received said master’s certificate so deposited as collateral security to said note, but that said note was not surrendered to complainant and is now a valid indebtedness from complainant to O. C. Peterson; that O. C. Peterson also paid the sum of $761.20 to redeem the premises from said tax sale; that after the master’s deed was issued to said William A. Peterson October 24, 1910, to wit, on November 22, 1910, O. C. Peterson paid $800 of the principal on said Strauss mortgage, and $40 interest, and after making said payments procured a new loan of $7,500 on said premises from Prescott & Burch, and from the proceeds thereof paid the balance due upon said Strauss mortgage, and the same was released; that subsequent to the master’s sale under the decree in said mechanic’s lien proceeding's complainant’s attorney, V. G. Gallagher, purchased certain matured interest notes, or coupons, on the Strauss mortgage, and, in order to assist O. C. Peterson in arranging for said new loan from Prescott & Burch, Gallagher, acting for complainant, turned over to said 0. C. Peterson said interest notes or coupons; that the fair, cash market value of said premises in the month of August, 1910, was upwards of $16,000; that the complainant is a mason contractor and that he is unfamiliar with negotiations involving questions of law or legal details, while the defendant, O. C. Peterson, is a member of the Chicago bar and familiar with law and legal details; and that in the negotiations between O. C. Peterson and complainant the former was acting in behalf of said Ohman and that the latter was not advised of that fact and did not know that he was jeopardizing his rights and interest in said premises’.
    The master also found in his report the amount due complainant from O. C. Peterson for the rental value of five flats from November 1, 1910, to the date of his report, and also found the amount due O. C. Peterson from complainant to the date of said report. The master further found that the equities of the cause were with complainant; that the agreement between O. C. Peterson and complainant, the said assignment to O. C. Peterson of said master’s certificate of sale and the issuance of the deed thereon amounted to an equitable mortgage; that William A. Peterson held the legal title to said premises as a naked trustee; that complainant was entitled to redeem the premises from the defendants upon payment of the amount which might be found due at the date of the entry of a decree in this cause, sáid payment to be made within a reasonable time; and the master recommended that a decree be entered in accordance with the prayer of complainant’s amended bill and the master’s findings and conclusions.
    The defendants filed objections to said report, which were overruled, and the same were allowed to stand as exceptions on the hearing before the court. The court, upon the hearing, overruled the exceptions and entered a decree in accordance with the master’s findings. The decree re-referred the cause to the master to take a further and final account of what was due O. C. Peterson under said agreement between 0. C. Peterson and complainant, including any amounts not specified therein which might have been reasonably expended by 0. 0. Peterson or William A. Peterson in and about the necessary care of the premises, and for the payment of taxes, assessments, etc., and for any payments upon the principal or interest of the mortgage for $7,500 made to Prescott & Burch; and also to take an account of the rents and profits which had come into the hands of any of the defendants, which said rents and profits should be deducted from the total amount found due from complainant. The decree further ordered that within sixty days after the coming in and confirmation of said master’s report the complainant should pay the sum found due from him upon said accounting, less his costs; that upon such payment being made by him, evidenced by the receipt of the clerk of the court, said William A. Peterson should execute a good and sufficient deed of conveyance of the premises to complainant, etc., and the defendants should deliver up to complainant all deeds, writings, etc., in their custody or control which in any way related to said premises; that in case of default of said William A. Peterson, upon presentation to him of said receipt of the clerk, to execute said deed after three days, said deed should be executed by the master; and that in default of complainant paying said sum so found due from him within said sixty days, complainant’s bill should stand dismissed.
    Abstract of the Decision.
    1. Mortgages, § 23

      —when deed a mortgage. By a verbal agreement between a judgment creditor and a debtor, the latter assigned a certificate of sale to the former, the agreement providing that the creditor would hold the certificate as security for the judgment debt and for what he should pay to get the certificate released from a third person holding it, and for what he should pay to redeem the property from a tax sale and for other items. It was held that a deed subsequently issued on the certificate was an equitable mortgage, from which the debtor was entitled to redeem.
    2. Mortgages, § 725*—when time limit fixed for redemption not binding. The provision in a verbal agreement, whereunder a certificate of sale was assigned by a debtor as security for a debt and a deed constituting a mortgage was issued, fixing a time limit for the redemption by the debtor, will not operate to prevent the debtor from redeeming at a subsequent date, especially where the creditor had not, at the time limit fixed, done all of the acts which the agreement required him to do.
    3. Mortgages, § 14*—when deed given as mortgage not a payment of debt. Where a deed is issued under a certificate of sale assigned to secure a judgment debt due from the assignor to the assignee and other amounts to be advanced by the latter, the deed is an equitable mortgage and does not constitute a payment of the debts secured by it.
    4. Frauds, statute of, § 48*—when deed operating as mortgage enforceable. Where a deed absolute in form is in fact but a mortgage to secure a debt, it will be enforced as such in equity, notwithstanding the Statute of Frauds and the fact that the agreement for redemption is verbal.
    Rankin, Howard & Donnelly, for appellants.
    Urban P. Gallagher, for appellee.

      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.