author: Mr. Justice Baker

text:
    Hennessey Bros. Company for use of W. J. Cummins, Plaintiff in Error, v. St. Mary’s Academy of Benedictine Sisters, Defendant in Error.
    Gen. No. 16,805.
    1. Garnishment—when garnishee defendant not liable on note. A garnishee defendant is not liable on a note to the nominal plaintiff where the same has been transferred to a third party, in good faith, before maturity, or before the rendition of the judgment against the nominal plaintiff.
    2. Garnishment—burden on beneficial plaintiff. The beneficial plaintiff in a garnishment proceeding against the maker of a note has the burden to show that a transfer of the note to a third person was after maturity or not in gopd faith.
    3. Garnishment—note made to nominal plaintiff. In a garnishment proceeding on a note made by the garnishee defendant where a third party alleged as holding the note claims to have returned it to the secretary of the beneficial plaintiff, the garnishee is not liable, as there is no evidence that such note was in the hands of the nominal plaintiff at the time of service of the garnishee summons.
    Error to the Municipal Court of Chicago; the Hon. John W. Houston, Judge, presiding. Heard in this court at the March term,' 1910.
    Affirmed.
    Opinion filed June 17, 1912.

      Statement by the Court. This is a proceeding in garnishment brought by Hennessey Brothers Company as nominal plaintiff for the use of W. J. Cummins, the beneficial plaintiff, based on a judgment for $1,000 recovered November 28, 1908, by the beneficial plaintiff against the nominal plaintiff, in which the St. Mary’s Academy, the defendant in error, was summoned as garnishee April 1, 1909. The garnishee answered that it had agreed to pay the nominal plaintiff $28,000 and given notes therefor, but was not able to state the amount of the several notes so given, but had been informed by letters of R. M. Hennessey, of the Hennessey Brothers Company, that one of said notes was for $10,000, and was held by Judge E. F. Dunne; that another was for $8,000 and was held by S. N. Perry; that four of said notes were for $2,500 each, due November 14, 1908; that one of said notes was in the hands of H. L. Ottenheimer, one in the hands of M. Schlessinger, one in the hands of Mrs. R. M. Hennessey, and one in the hands of Mr. Burxon; that all of said notes were held, as stated by said letter, as collateral.
    The answer was not traversed, but the parties named in the answer as holders of said notes, with the exception of “Burxon,” were made parties to the suit, were served with notice, and all were called as witnesses on behalf of the beneficial plaintiff. Morris Berkson, styled in the answer “Burxon,” was also called as a witness by the beneficial plaintiff. The court held that the nominal plaintiff had no right of action against the garnishee defendant for any moneys evidenced by said notes or any of them, and discharged the garnishee.
    Richard E. Burke, for plaintiff in error.
    No appearance by defendant in error.
   Mr. Justice Baker

delivered the opinion of the court.

No question is made as to the judgment so far as it relates to and is based on the notes given to the nominal plaintiff other than the note for $2,500 which the answer alleg’ed was held by “Burxon,” and the note for $2,500 which the answer alleged was held by Mrs. B. M. Hennessey. Berkson testified that in August, 1908, Levy, the secretary of the beneficial plaintiff, brought to bim said note for $2,500 and asked him to accept it as security in part for a debt he owed to a client of Berkson; that he kept the note a week and his best recollection was that he then returned it to Levy. The answer states that the note was due November 14, 1908. Under our statute no person is liable as garnishee by reason of having made any negotiable instrument “when the same is not due, in the hands of- the defendant at the time of the service of the garnishee summons, or the rendition of the judgment.” B. S. c. 62, § 15. The evidence fails to show that the $2,500 note in question was due in the hands of the defendant at the time of the service of the garnishee summons or the rendition of the judgment, and the court properly held that the garnishee was not liable by reason of having made said note.

The evidence introduced by the beneficial plaintiff shows that the $2,500 note held by Thomas Hennessey was transferred to B. M. Hennessey, the president of Hennessey Brothers Company, to apply on his salary of $3,000 per year as such president; that in January or February, 1909, he delivered said note to his wife, and she, some time in the following spring, delivered the same to Thomas Hennessey as collateral security for money due him from the Hennessey Brothers and Evans Company. There is no evidence tending to show when the note in question was transferred to B. M. Hennessey. If transferred to him in good faith before maturity or before the rendition of the judgment, defendant in error was not liable as garnishee by reason of having made said note. If the transfer was after maturity or was not in good faith, it was for the beneficial plaintiff to show such fact by proper proof. Wilhelmi v. Haffner, 52 Ill. 222. The evidence does not show either that the note was transferred after maturity or that the transfer to R. M. Hennessey was not in good faith, and therefore fails to show that defendant in error is liable as garnishee by reason of having made said note.

The judgment of the Municipal Court is affirmed.

Judgment affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Robert Grant, Plaintiff in Error, v. Emil Feldman, Defendant in Error.
    Gen. No. 16,313.
    1. Bankruptcy—when sale to bankrupt may be rescinded. Where a person indebted to the extent of $9,000, with only $150 assets, purchases rugs on credit for $510, and it further appears that at about that time he had consulted counsel with reference to filing a petition in bankruptcy, which was subsequently done, such sale may he rescinded and the goods recovered.
    2. Bankruptcy—purchase of goods in contemplation of. Where a person purchases goods on credit, knowing that he is insolvent and has no reasonable expectation of paying for such goods, such sale may he rescinded on the filing of a voluntary petition in bankruptcy.
    Error to the Municipal Court of Chicago; the Hon. Charles N. Goodnow, Judge, presiding. Heard in this court at the March term, 1910.
    Reversed and judgment here.
    Opinion filed June 17, 1912.
    Statement by tbe Court. In April, 1909, defendant in error purchased of plaintiff in error four Oriental rugs at prices amounting in aggregate to $510. The sale was for cash, and oh payment in cash the buyer was to have a discount of 30 per cent. It was agreed that the buyer might exchange any of said rugs and exchanges were made, the last on May 5th. May 17th the buyer filed his voluntary petition in bankruptcy, in which he scheduled a debt of $510 to Grant and other debts amounting to over $9,000. The only assets scheduled were:
    Necessary wearing apparel.............$ 50.00
    Three rugs ............................ 200.00
    One bookcase .......................... 50.00
    One dresser............................ 50.00
    The petitioner was the head of a family residing with him, and claimed all of said assets as exempt under the statute. Plaintiff in error brought replevin against defendant in error and the four rugs were taken on a writ. The case was submitted to the court, which gave judgment for the defendant and ordered that a writ of retorno hdbendo issue.
    Herman Frank, for plaintiff in error.
    James T. Brady and Edwin J. Raber, for defendant in error.
   Mr. Justice Baker

delivered the opinion of the court.

In Farwell v. Hanchett, 120 Ill. 573-580, the court quoted with approval the following from Benjamin on Sales, Sec. 439:

“A purchase of goods by one who, at the time, intends not to pay for them, is such a fraud as will entitle the vendor to avoid the sale, although there were no fraudulent misrepresentations or false pretenses.” The ultimate fact to be proven by the seller is that the buyer bought the goods with the intention not to pay for them. Such intention is not conclusively inferred from the facts alone that the buyer knew that he was insolvent- and failed to disclose it to "the seller. But from such facts, taken in connection with the conduct and circumstances of the buyer, the intention to never pay for the goods may be often inferred.

Here the defendant scheduled debts in excess of $9,000, all, with the exception of the $510, scheduled as due for the rugs, contracted before the purchase of the rugs. Excluding the rugs, he scheduled assets to the value of $150.00. Nearly $1,000 of the debts scheduled were contracted in 1909 for the rugs in question and for wearing apparel and jewelry for defendant and his wife. Thirteen of the debts scheduled were judgments against the defendant. He had been examined under supplemental proceedings, had often scheduled, and one or more of his judgment creditors were threatening to institute proceedings against him. Defendant consulted counsel in reference to filing a petition in bankruptcy about the time of his purchase of the rugs from the plaintiff. ‘1 There is a presumption that every reasonable person anticipates and intends the ordinary and probable consequences of known causes and conditions. Hence, if a purchaser of goods has knowledge of his own insolvency and of his inability to pay for them, his intention not to pay should be presumed.” Talcott v. Henderson, 31 Ohio St. 162. The defendant was insolvent and knew that he was insolvent and had no reasonable expectation of paying for the rugs when he bought them, and we think that he bought the rugs in contemplation of filing a petition in bankruptcy.

Our conclusion from the evidence is that the defendant purchased the rugs with the intention not' to pay for them, and that therefore the plaintiff was entitled to rescind the sale and recover the goods.

The judgment of the Municipal Court will he reversed with judgment here for the plaintiff.

Reversed and judgment here.


text:
    Louisa Buehlman, Defendant in Error, v. George F. Koester, Plaintiff in Error.
    Gen. No. 16,347.
    1. Appeal and error—when improper form of judgment will not reverse. Since an action under R. S. c. 95, § 10, to recover a penalty from a trustee refusing to release a trust deed, is one in debt, a judgment for “damages” is irregular, but such irregularity is not reversible error.
    2. Mortgages—when trustee justified in refusing to release trust deed. A deed of trust provided that, on failure to maintain insurance payable to the trustee, insurance might be procured and that the money paid should be additional indebtedness. After the expiration of a policy the mortgagor obtained insurance payable to the holder of the notes, but prior to the expiration the trustee procured other insurance. The grantors in the trust deed conveyed a part of the property and the notes were afterwards paid. The trustee refused to release the deed unless his insurance premium was paid and was sued under R. S. c. 95, § 10, by the mortgagor’s grantee to recover a penalty for the refusal. Held, the position of the plaintiff was the same as the mortgagor and she was not entitled to recover. . ^

    Error to the Municipal Court of Chicago; the Hon. Mancha Bbuggemeyer, Judge, presiding. Heard in this court at the March term, 1910.
    Reversed.
    Opinion filed June 17, 1912.
    Statement by the Court. July 29, 1902, Christoph Mayer and wife executed a trust deed in the nature of a mortgage to George F. Koester, trustee, to secure their principal note for $8,000 and certain interest notes, all payable to their own order and by them endorsed. The notes were delivered to John P. Gondolph and were by him held and owned until after 1904, when he sold them to Virgil F. Brand. The grantors in said trust deed covenanted to keep the buildings on said premises insured in such companies as the holder of said notes should direct and to deliver the policies to the holder of said notes, so written as to make the loss payable to the grantee in said trust deed as his interest might appear, and that in the event of their failure to so insure, the grantee or the holder of said indebtedness might procure such insurance and all moneys so paid the grantors agreed to pay, and that the same, with interest, should be so much additional indebtedness secured by said trust deed. A policy of insurance on said premises held by Grondolph expired July 2, 1904. Mrs. Mayer, one of the grantors in the trust deed, told Putkamer, an insurance man, that she would give him the insurance on said buildings, and he caused a policy to be issued with loss payable to Grondolph. It does not appear that this insurance was taken out before the expiration of the former policy. Prior to the expiration of the former policy the trustee procured other insurance and paid therefor $32. The grantors in said trust deed in 1905 conveyed a portion of the mortgaged premises to defendant in error, Buehlman. The notes secured by the trust deed were all paid and cancelled and Mrs. Buehlman demanded that the trustee release said trust deed, and gave brm notice that unless he did so she would take advantage of sec. 10, chap. 95, of the Revised Statutes of Illinois. The trustee refused to release said trust deed unless the amount paid by him, for insurance was repaid to him. Mrs. Buehlman then brought this action of debt to recover under the statute the sum of $50 for failure to release said trust deed. The cause was submitted to the court and the court found the issues for the plaintiff, assessed plaintiff’s damages at $50, gave judgment for the damages so assessed and costs, and the defendant sued out this writ of error.
    Loesch, Scofield & Loescch, for plaintiff in error.
    D. B. Brillow, for defendant in error.
   Mr. Justice Baker

delivered the opinion of the court.

The judgment for “damages” was irregular, as the action was debt, but such irregularity is not a ground of reversal. R. R. Co. v. Steele, 69 Ill. 253.

The statute under which the action is brought is as follows: “If any mortgagee or trustee in a deed in the nature of a mortgage * * * knowing the same to be paid, shall not, within one month after the payment of the debt secured by such mortgage or trust deed and request and tender of his reasonable charges, release the same, he shall, for every such offense, forfeit and pay to the party aggrieved the sum,” etc. Illinois Be-vised Statutes, chap. 95, sec. 10.

It does not appear that the insurance taken out by Putkamer was taken out before the expiration of the former policy, or that the defendant was notified before he took out the insurance for which he paid $32 that new insurance had been or would be taken out by the mortgagors, and the policy taken out by Putkamer was payable to the holder of the notes secured by the trust deed and not to the grantee therein, as the deed provided. Under the circumstances shown by the evidence the defendant was, at the time he procured the new insurance, authorized to procure such new insurance, and the amount paid by him therefor by the terms of the trust deed became so much additional indebtedness secured by said trust deed. Mrs. Buehlman acquired her interest in the property subject to the trust deed, and her position as the grantee of the mortgagors was the same as that of the mortgagors. Baker v. Aalberg, 183 Ill. 258.

The evidence fails to show that all of the indebtedness secured by the trust deed had been paid, and the court therefore erred in rendering judgment for the plaintiff.

The judgment is reversed but the cause will not be remanded.

Judgment reversed.


text:
    Johanna Reiss, Plaintiff in Error, v. Martin Neimes, Defendant in Error.
    Gen. No. 16,368.
    1. Account stated—when evidence insufficient to show good cause of action. A wife gave her husband various sums of money to give to the defendant for the husband’s joint interest in a saloon purchased, but she was not present when the money was paid to the defendant. Subsequently the defendant gave her a receipt, which was a naked acknowledgment of receiving the money, and promised he would give the money to her. Seld, the promise was without consideration and a good cause of action as on an account stated was not established.
    2. Contracts—no liability on acknowledgment of receipt of . money. An instrument that is a mere naked acknowledgment that the defendant had received a certain amount from the plaintiff imports no promise or obligation.
    Error to the Municipal Court of Chicago; the Hon. John W. Houston, Judge, presiding. Heard in this court at the March term, 1910.
    Affirmed.
    Opinion filed June 17, 1912.
    Statement by the Court. The plaintiff, Johanna Reiss, is the wife of Charles Reiss. In December, 1908, she gave to her husband $100, in January, 1909, $150 and in February, $250 of her own money to give to the defendant to pay for an interest in a saloon which he and the defendant had bought. March 11, 1909, Charles Reiss was arrested and defendant applied to plaintiff and her parents to give bail for him. This they declined to do unless the defendant would give a receipt for the money which he had received. Defendant then gave to the plaintiff the following receipt :
    “Mch. 11, 1909. Received of Mrs. Johanna Reiss five hundred dollars. $500.
    “Martin Neimes.”
    Johanna Reiss brought an action against Neimes to recover said money. The cause was submitted to the court and there was a judgment of nil capiat, to reverse which the plaintiff prosecutes this writ of error.
    John Stelk, for plaintiff in error.
    Douglas C. Gregg, for defendant in error.
   Mr. Justice Baker

delivered the opinion of the court.

The contention of the plaintiff in error is that the evidence made out in her favor a g’ood cause of action as on an account stated. The instrument is a mere naked acknowledgment that the defendant had received $500 of the plaintiff. There is in it no promise or undertaking in regard to the money, no intimation as to the character in which it was received, or of any purpose or intention with respect to its future disposition. No promise or obligation is imported by the instrument. No liability can fairly be implied' from its terms. If there is any contract, promise or liability, it arises from facts outside of the receipt. Ashley v. Yischer, 24 Cal. 322.

Plaintiff testified that when her husband got from her the $100 he said be was going to buy a saloon with Neimes; that when he got the $150 he said he wanted to give it to Neimes for the saloon; that when he got the $250 he was already in the saloon and said he must give the money to Neimes, that he was buying the saloon with Neimes. She further testified that she never gave Neimes any money and was not present when her husband gave Neimes any money. Some of the witnesses testified that at the time the receipt was given Neimes said he would give the $500 to plaintiff, but if he was not liable for the money to the plaintiff before such promise was made, he did not become liable because of such promise, for in that case it was without consideration.

We think the record is free from error, and the judgment is affirmed.

Affirmed.


text:
    Basil Maxant and Gustav Tatter, Trading as Maxant & Co., Defendants in Error, v. The Chicago Screw Co., Plaintiff in Error.
    Gen. No. 16,371.
    1. Sales—when time of delivery is not extended. Where goods to he manufactured are to be delivered by a certain day, if a salesman of the manufacturers testifies in an action by the purchaser to recover a payment that the purchaser agreed to an extension of time, which evidence is denied by the purchaser, the court may properly find that the time for performance was not extended.
    2. Sales—when delay in performance is ground for cancellation. Where screws and button dies to be manufactured are to be delivered by a certain day and an advance payment is made, if the manufacturer will not be ready to deliver the goods until tw'o months after the day named the purchaser at the end of one month may cancel the contract and recover the money advanced.
    Error to the Municipal Court of Chicago; the Hon. Michael F. Gibteií, Judge, presiding. Heard in this court at the March term, 1910.
    Affirmed.
    Opinion filed June 17, 1912.
    Gridley, Culver & King, for plaintiff in error.
    Horton, Wickett, Miller & Meier, for defendants in error.
   Mr. Justice Baker

delivered the opinion of the court.

May 29, 1909, the plaintiffs, defendants in error here, ordered the defendant to make for them 5,000 screws and 1,500 sets of button dies from patterns to be furnished by plaintiffs. The samples were delivered to defendant June 23rd. The evidence is conflicting as to the time when the dies were to be furnished, but from it the trial court might properly find that they were to be furnished, at the latest, in nine weeks from the time the samples were delivered, and therefore that they were to be furnished by September 1. Some days after the order was given the defendant demanded that plaintiff pay in advance on the order $250, and the defendant made such payment June 12. Nothing was said as to the place of delivery. In September and October the plaintiffs made repeated demands that the defendant furnish the dies, and October 4 notified the defendant by letter that they considered the order cancelled and requested the return of the money paid in advance.

Whether there was an agreement to extend the time of performance'to November 5 was another controverted question. Gorman, a salesman for the defendant, testified that Maxant, one of the plaintiffs, told him about October 5 that if the dies were furnished by November 5 it would be satisfactory to the plaintiffs, and Maxant testified that he made no such statement to Gorman. On this evidence the court might properly find that the time of performance was not extended.

The defendant was not ready to deliver the dies until November 5.

We think that from the evidence the court might properly find that this was an unreasonable delay and constituted such a breach of the contract by the defendant as gave the plaintiffs the right" to cancel the contract and recover the money advanced by them to defendant thereon.

The judgment is for the amount of money so ad-' vanced, and is affirmed.

Affirmed.


author: Mr. Presiding Justice Smith

text:
    John C. Hemmer, Appellant, v. New Illinois Athletic Club of Chicago, Appellee.
    Gen. No. 16,362.
    1. Contbacts—publication of magazine. Where a contract provided that subscriptions to a certain magazine published for defendant club by plaintiff should be collected from such members as elected to subscribe and should be the property of the club; and that the club should furnish the publisher with a list of the members four times a year for a subscription list, to each of whom each current issue of the magazine should be sent; and a modifying contract provided that the publisher should receive the entire sum realized from subscriptions, and that subscription accounts were to be included in the monthly accounts sent to the members, but that the club did not guarantee the collection of the subscriptions; under the terms of such contracts the publisher was bound to send the magazine to every member whose name appeared on the list furnished by the club, whether such members subscribed or not; and the reasonable construction thereof is that the club agreed to send bills to its members on the subscription list which where no members elected to subscribe was, as between the parties, the list of members furnished to the publisher by the club.
    2. Evidence—when question whether proper for jury depends on foundation laid. On action by a publisher against a club for breach of contract to send bills to its members for subscriptions to the plaintiffs magazine whether proper data for the consideration of the jury in fixing the damages is furnished by evidence of the custom of other clubs, and also evidence of the measure of damages of the amount collected by the club for subscriptions for a magazine published by it and sent to its members, depends on the foundation laid therefor.
    Appeal from the Municipal Court of Chicago; the Hon. John C. Scovel, Judge, presiding. Heard in this court at the March term, 1910.
    Reversed and remanded.
    Opinion filed July 8, 1912.
    Church & McMurdy, for appellant.
    Lawrence & Folsom, for appellee.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

The appellant "brought suit to recover damages from the appellee for breach of contract. At the close of the case for the plaintiff, the appellant here, the court held that no evidence had been introduced tending to prove a breach of the contract, and instructed the jury to find for the defendant, here the appellee, and entered a judgment on the verdict returned as instructed.

On June 1, 1906, the parties entered into a written contract, whereby the appellant agreed to publish for five years, at his own expense, a monthly magazine to “contain reading matter of interest to the members of the New Illinois Athletic Club of Chicago,” to be called “The Illinois.” By the terms of the contract the appellee’s president has the right “to pass upon the reading matter, advertising, illustrations, and upon the make-up and appearance of the said magazines, and if, in his judgment, he deems it best, shall have the right to reject any of the reading matter, advertising, illustrations or change the make-up or appearance of the said magazine, and this right is to be exercised for each and every issue of this magazine during the life of this contract.” The subscription price was one dollar per year, “which subscription shall be collected by the party of the first part from such members of the New Illinois Athletic Club of Chicago as elect to subscribe, which subscriptions shall belong to and be the property of the party of the first part, the New Illinois Athletic Club of Chicago, and the party of the first part shall four times a year furnish the party of the second part with a list of its members, to each and all of whom each and every month the party of the second part will mail the current number of said magazine for that month.” The contract also stated: “The consideration of this contract shall be the party of the first part” (appellee) “permitting, allowing and authorizing the said party of the second part” (appellant) “to publish the magazine hereinbefore mentioned, called ‘The Illinois,’ adopting it as its official club paper and furnishing the party of the second part with a list of its members for a subscription list, and the consideration from the the said party of the second part to the said party of the first part shall be the publishing of the said magazine according to the terms and conditions herein-before mentioned.”

On May 23, 1907, the parties entered into what they termed a “Modifying Contract,” wherein it was provided that appellant “shall receive the entire sum realized from subscriptions for the magazine called ‘The Illinois/ received from the members of the New Illinois Athletic Club of Chicago.

“Third. The party of the first part” (appellee) “agrees to include said subscription accounts in its monthly accounts sent to its members on or about the first day of August, A. D. 1907, and agrees to turn over to the party of the second part” (appellant) “all of the amount so received, but it is expressly agreed that the party of the first part does not guarantee the collection of any or all the said subscriptions.” In the consideration of the case it is not necessary to recite the other parts of the said contracts.

The appellant published and sent a copy of said magazine to appellee’s members up to and including May, 1908, and claimed damages because of the failure of the appellee to include subscription accounts for said magazine in its monthly accounts sent to its members about August 1, 1907, as agreed by the terms of said “Modifying Contract.” The appellee argued that the said contract required it to send subscription accounts to those only “as elect to subscribe,” and as none of the members had elected to subscribe, there were no subscribers, and therefore no obligation rested upon it under said contracts to send subscription accounts to its members. The trial court agreed with the appellee in its construction of the contracts, and upon that theory instructed the jury.

As provided by the contract, the magazine was to be made up under the direction of the appellee’s president, and was to contain reading matter of interest to appellee’s members and be its official publication. The appellee was to furnish appellant at certain times a list of its members “for a subscription list,” and appellant was obligated to send to each member on said list each issue of the said magazine during the life of said contracts. It is clear that under the first contract the appellee was to collect and retain such amounts as it could from its members who elected to subscribe; and it seemed to be recognized that it could not enforce collection from its members except as to those who did in fact subscribe for the magazine. It is also evident under the terms of the said contracts, even though members did not elect to subscribe or pay for the magazine, that the appellant was nevertheless bound by the terms of his contract with appellee to send each issue of his magazine to every member whose name was on the subscription list furnished him by appellee. In other words, the subscription list between the parties to the contracts was the list of names furnished appellant by appellee. The members of the club were not individually liable to the appellant as subscribers, and there was no intention to so make them. Under the terms of the modifying contract the appellee bound itself to send out bills, and, if any amounts were collected thereon, to pay same to appellant. At the time no bills had been sent for the magazine to any of its members, and none had elected to subscribe thereto. It would therefore seem that the fair and reasonable construction of the contracts is that the appellee agreed to send bills to its members on the subscription list, that is, the only subscription list existing at the time, and which, as between the parties to the contracts, was the list of the members furnished to appellant by the appellee. It also appears tha¡ this was the construction of the contract by the pa; ties, at least until suit was begun.

The appellant testified that he repeatedly requested Mr. Thompson, the President of the Club, to send out the subscription charges to the members as agreed, and Mr. Thompson said to him, “He would take care of it and see that the matter was taken up properly over at the Club and statements sent; he wanted to see me get my money.” Under date of January 7, 1908, Mr. Moulton, the chairman of the appellee’s Finance Committee, wrote Mr. Stevenson, another member of the Finance Committee, enclosing a letter from appellant in regard to these subscription accounts, and said in part: “Will you please turn this” (Mr. Hemmer’s letter) “over to Mr. G-oodbody with instructions to open a special account to be known as 1 Subscription Account’ on the Club books. I should like to see that the Club carries out this contract with Mr. Hemmer.” The testimony of Mr. Lytton, appellee’s vice-president, also tends to prove such was the construction of the contract by the parties. But the said subscription accounts were never sent by appellee to any of its members.

We may observe that we think the court properly excluded the evidence as to the custom in other clubs; also the evidence on the measure of damages of the amount collected by the Club for subscriptions for a magazine published and sent to its members by the appellee. Whether such evidence might be proper as data to be considered by the jury in fixing the damages, would depend upon the foundation laid therefor; but as to whether such foundation might be laid to make the said evidence competent, we can, of course, express no' opinion.

The judgment is reversed and the cause remanded.

jReversed and remanded.


text:
    Norman E. New, Defendant in Error, v. The Chicago, Rock Island & Pacific Railway Company, Plaintiff in Error.
    Gen. No. 16,888.
    1. Master and servant—when consignor not hound hy hill of lading signed hy teamster. There is no evidence that a teamster was authorized to sign a bill of lading limiting a carrier’s liability for loss or damage to goods and to bind the consignor thereby and no presumption to that effect where, though such teamster signed the bill as consignor, the carrier knew that the plaintiff was the consignor.
    2. Carriers—when hill of lading limiting liahility properly excluded. On action against a carrier for loss of goods a bill of lading limiting the carrier’s liability, signed by a teamster in the consignor’s employ, is properly excluded where the teamster had no authority to sign and where no assent by the consignor is shown.
    Error to the Municipal Court of Chicago; the Hon. William N. Cemmill, Judge, presiding. Heard in this court at the March term, 1910.
    Affirmed.
    Opinion filed July 8, 1912.
    Charles T. Schwarz and M. L. Bell, for plaintiff in error.
    Baker & Holder, for defendant in error.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

The defendant in error, hereinafter called plaintiff, delivered to the plaintiff in error, hereinafter called defendant, at Ottawa, Illinois, certain household goods for shipment to Chicago; and claimed that among the same was a box of books of the value of $1,000, which was never delivered by the defendant to the plaintiff at Chicago, and brought suit for said sum in the Municipal Court of Chicago. The jury found for the plaintiff and assessed his damages at the sum of $300. On the plaintiff remitting $100 the court entered judgment against the defendant for $200.

The defendant claimed that it delivered to the plaintiff at Chicago all goods received from him at Ottawa, and also that the damages are excessive. On the evidence pertaining to these questions, as presented in the record, we are not able to answer the same to our satisfaction. However, they were questions of fact for the jury, and we do not think we should hold that the verdict was clearly and manifestly against the weight of the evidence.

It was claimed by the plaintiff that the said box contained from 400 to 450 books and weighed about 600 pounds. When the teamster employed by the plaintiff to haul the said goods to the defendant’s freight house at Ottawa there delivered them, the defendant gave the teamster a bill of lading for said goods, made out in the name of the plaintiff, and thereupon the teamster signed his name as consignor to a contract releasing the said defendant, in consideration of a certain reduced rate on said goods, from all liability from any loss or damage to said goods in excess of $5 per 100 pounds. The defendant offered the said contract in evidence, and the plaintiff objected thereto on the grounds that it had not been shown the teamster had authority to sign the same, and, further, that there was no evidence that the plaintiff had assented thereto. The court sustained the objection and excluded the contract, and this ruling is urged as erroneous.

The evidence pertaining to the employment by the plaintiff of the teamster was that the latter was to “move-his” (plaintiff’s) “household goods from South Ottawa to the Bock Island depot.” It is clear that the defendant knew the plaintiff was the consignor, and under such circumstances we do not think there is any evidence, or any presumption, that the teamster was authorized to sign the said contract as assignor and bind the plaintiff to the terms and conditions limiting the defendant’s liability, as therein provided. The teamster having no authority to sign said contract, and there being no evidence that the plaintiff assented thereto, the plaintiff was not bound thereby, and in our opinion the court properly excluded same.

The judgment is affirmed.

Affirmed.


text:
    Herman B. Heideman, Appellee, v. Chicago & Southern Traction Company, Appellant.
    Gen. No. 16,462.

      Release—when release sufficient to lar action for injury. A passenger on a street car received a scalp wound from a falling trolley shank. The following day a representative of the railway company on learning that his wages were from $2.40 to $2.60 per day, stated that he would not he incapacitated more than ten days and offered him $25. He receipted therefor and signed a release from liability. His wife and daughter were present at times during the conversation. The passenger was not in the employ of the company. He alleged that he thought that the payment was for wages and that the papers were receipts and that he was dizzy and could not see during the transaction. The signatures did not indicate that he was suffering from dizziness or want of sight. He could read and write and seemed reasonably intelligent. The releases were brief and plainly written. Bight witnesses testified that he subsequently stated that he had settled with the company. Held, the release barred action for the injury.
    Appeal from the Municipal Court of Chicago; the Hon. William N. Coitbell, Judge, presiding. Heard in this court at the March term, Í910.
    Reversed.
    Opinion filed July 8, 1912.
    Lowes & Richards, for appellant.
    Edward J. Green and Charles C. Spencer, for appellee.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

The appellee brought this suit as a first-class case in the Municipal Court of Chicago against the appellant for breach of contract. The jury found for the appellee and assessed his damages at the sum of $3,500, and judgment was entered on the verdict.

On September 25, 1908, the appellee, while standing in the rear vestibule of the appellant’s car as a passenger, was struck on the head and injured by a falling trolley shank that broke off the pole extending from the top of the car to the overhead electric wire. The appellant contends that the appellee was guilty of negligence in riding in the vestibule under all the circumstances in evidence; also that the appellee was injured because of his contributory negligence in having his head outside the car at the time of the accident; that the appellee had settled with the appellant and given releases that were a bar to the action, and that the damages were excessive.

From the view we take of the case it is unnecessary to discuss any of the many questions presented and argued, except those pertaining to the releases. The appellant introduced in evidence a formal release, wherein the receipt of $25 was acknowledged by the appellee and the appellant was released and discharged from all claims, etc., by reason of the said accident to the appellee; also the following: “Sept. 26, ’08. Received of the Chicago Southern Traction Co. the sum of $25. In settlement of accident of Sept. 25, ’08.” Both writings were signed by the appellee. In the forenoon after the accident the appellant’s claim agent, Mr. Oldenburg, called upon the appellee, who was then in bed, and after talking about twenty minutes the appellee arose and dressed and went into the next room, the sitting room, and there, his wife and daughter being in the room, signed the said two releases. On the trial the appellee claimed that at the time he signed said releases he was “weak and feverish and dizzy, suffering pain in the head;” that Oldenburg asked him how much he made and he replied $2.40 and $2.60 a day; that Oldenburg said he would split the difference and give him $2.50 a day for ten days, that it was only a scalp wound and he would not be laid up longer than that; that Oldenburg gave him twenty-five dollars and told him to sign the papers; that they were receipts for the wages, and Oldenburg wanted them signed so he could show the Company what he had done with the money; that he thought they were receipts for wages and nothing had been said about a settlement with the Company for injuries; that the receipts were not read to him and he did not read them because “I didn’t feel like it. I was not able to read. * * * I could not see. * * * I thought it was a receipt for this amount of wages, $25.” Mr. Oldenburg testified that the appellee told him the doctor said it was only a scalp wound and didn’t amount to much, and on a discussion of the amount of the settlement it was agreed appellee be paid $25, and said sum was paid; that he told the appellee that it was a settlement and explained the releases, etc., and appellee read them over and signed them. In regard to the releases the appellee’s daughter testified that she and her mother were in and out of the rooms during the conversation between her father and Mr. Oldenburg; that she heard Mr. Oldenburg ask how much wages her father earned, and when he was told Mr. Oldenburg said he would split the difference and give him $25, for he thought he would not be sick longer than ten days, and that would pay him for the time he would lose; that she heard nothing said about settling the case or the release, and did not see the releases that day nor see her father sign them. Dr. Morse, a physician of twenty-six years’ experience, had known the appellee eight or ten years and for several years had been his physician, and testified that he had treated the appellee the night of the injury and the following day and subsequent thereto; that the appellee was then suffering from a scalp wound on the right side of his head about three and a half inches long, in which he put four stitches; that on the day following the accident when he called and dressed the appellee’s wound, the appellee was dressed and sitting up in the sitting room, and appellee then stated to him, the doctor, that he had settled with the company. Dr. Morse also testified that the appellant paid him for his services in treating the appellee for the injuries sustained in said accident. Mr. Swineberg, the superintendent of the Western Conduit Company, testified that the appellee worked for the said company as a fireman and watchman from June, 1909, to November, 1909, and during that time the appellee talked to him about his said accident and said that he had signed a release for $25 and his doctor’s bill. Six other witnesses, most of whom were apparently disinterested, testified that the appellee had stated to them that he had made a settlement with the Company.

The appellee denied making any of said statements as to a settlement. He had not been employed by the appellant and nothing was due him from the appellant for wages or any other claim, except such as might be due him because of the said injuries. The appellee could read and write, and judging from his testimony was reasonably intelligent. The two releases signed by him are before us. If any inference can be drawn from an examination of the appellee’s signatures, it would be that they indicate no such mental condition, nervousness or want of sight as claimed by appellee. The release heretofore set out in haec verba is written so briefly, plainly and distinctly and in handwriting so large that it seems the ordinarily intelligent person able to read and write would comprehend its contents almost at a glance, unless, of course, his mind was so disturbed that he was not in possession of his ordinary faculties. It was understood that a representative of the appellant would call on the morning in question to see appellee; and that his wife and daughter would remain about the room and the house and permit him to talk and negotiate with the said representative- without taking any part in the talk, if they did not consider appellee in the possession of his ordinary faculties, is somewhat improbable, and is a circumstance that tends to prove appellant’s contention that the appellee knowingly entered into a settlement with the appellant and so understood and agreed when he signed the said two releases.

We agree with the appellee that it appears unseemly on the part of large corporations to so hasten to secure a settlement and release from a person injured in an accident immediately thereafter and while they are suffering greatly therefrom, and such conduct is generally considered suspicious and a practice that in most instances is intolerable. Nevertheless, after a careful consideration of all the evidence in this case, which we have endeavored to set forth only briefly and in a general way, we are convinced that the appellee knew and understood he was making a settlement with appellant and releasing it from all liability for damages by reason of the said accident, and that the evidence is clearly and manifestly against the contention of the appellee that the said releases were obtained by fraud and misrepresentation, and we therefore conclude that the said releases are a bar to this action.

The judgment is reversed with a finding of facts.

Reversed.


author: Mr. Justice Brown

text:
    William S. Kline and Eloise Mason, Appellees, v. Frank Marty, Executor, et al., Appellants.
    Gen. No. 16,440.
    1. Appeal and error—presumptions.. It will be presumed on appeal that a chancellor considered only proper evidence.
    2. Creditor’s bill—not denied though judgment creditor and beneficially interested. A judgment creditor will not be denied the right to bring a creditor’s bill because he is not beneficially interested.
    3. Judgments1—effect of appeal from order removing stay of execution. Where an appeal from an order removing an order staying execution has been perfected, the stay is revived.
    4. Judgments—when entitled to priority over homestead. A judgment lien antedating a homestead is entitled to priority.
    5. Judgments—doctrine of inverse order of alienation applies. Property acquired and sold by a judgment debtor subsequent to a sale of other property held by .him is the first subject to the satisfaction of the judgment lien.
    6. Judgments—priority of lien. A chancellor’s decision that a judgment lien is to be given priority over a trust deed of certain premises purchased by the judgment debtor subsequent to the rendition of the judgment will not be disturbed when all the circumstances taken together justify the inference of an attempt to delay creditors.
    7. Appeal and error—argument. A printed argument which is in parts flippant and in passages abusive of opposing counsel is improper.
    8. Judgments—time of judgment lien. "Where execution is stayed one month and eighteen days after judgment and thereafter an erroneous order allowing execution is issued, but in one month and three days an appeal is taken from such order and it is reversed but the cause is remanded to the Superior Court with directions to enter a judgment order which will remove the stay, there are nine months and ten days during which the judgment lien remains without the issuance of an execution.
    9. Judgments—duration of lien. Where execution was stayed and a subsequent order allowing execution was appealed from and reversed but the case was remanded with directions to enter a judgment order which would remove the stay, the matter is not complicated by the fact that an unauthorized memorandum of a judgment which was never entered was added and a void execution violating the stay order issued and void proceedings had thereon, and the party against whom the original judgment was had, at whose instance the unauthorized memorandum and proceedings were expunged, cannot complain of it.
    10. Creditor’s biel—deposits in court. The rights of a complainant on a creditor’s bill are not affected by an agreement on conveyance of homestead property, whereby money was to be held in escrow for the defendant subject to the judgment lien, and a clause of the decree is correct which orders the holders of such money who tendered it into court to pay it to the complainant.
    Appeal from the Superior Court of Cook county; the Hon. George A. Dupuy, Judge, presiding. Heard in this court at the March term, 1910.
    Affirmed.
    Opinion filed July 8, 1912.

      Certiorari denied by Supreme Court (making opinion final).
    William T. Dickerman and Joshua W. Lewis, for appellants.
    Daniel S. Wentworth and W. A. Jennings, for appellees.
   Mr. Justice Brown

delivered the opinion of the court.

This is an appeal by the executor of the last will and testament of Elenor Lyman, deceased, and others from a decree rendered by the Superior Court of Cook county against them on a creditor’s bill brought against Elenor Lyman in her lifetime and several other persons. The other defendants were Henry Schaaf, James E. Daughters, W. Gr. Dickerman, Marcellus Hopkins, Frank B. Teed and Englewood Elevated Railway Company. Joe Hunter was afterwards by amendment made a party. Elenor Lyman died during the pendency of the bill and her executor was substituted as party defendant in her place and adopted her answer.

The decree appealed from recites as its findings a judgment by confession for $1,350 on May 20, 1902, in favor of William S. Kline and Eloise Mason against Elenor Lyman and William Durr ant in the Superior Court of Cook county, an order of the Superior Court on July 7, 1902, giivng the defenfants leave to plead and staying execution on the judgment, which was to stand as security, a trial on the issues before a jury and a verdict in favor of the plaintiff for $1,500, a judgment of the date of February 25, 1905, as follows: “Therefore it is considered by the court that the judgment entered herein of record on the 20th day of May, A. D. 1902, in favor of the plaintiffs and against the defendants for the sum of $1,350, to stand in full force and effect as at the time of the rendition, and the additional sum of $150, making a total of $1,500, and that the plaintiffs have execution against the defendants Elenor Lyman and William Durrant for said judgment as aforesaid, together with their costs and charges, etc.”; an appeal from said judgment order to the Appellate Court; the death of said William C. Durrant September 1, 1906; the judgment of the Appellate Court on October 8, 1906; and the mandate of said Appellate Court filed in the Superior Court November 17, 1906, which mandate provides that the said cause be remanded to the Superior Court with instructions to vacate the judgment of February 25,1905, and to enter in its stead a judgment in the following form: ‘1 Therefore it is considered by the court that the judgment entered herein on May 20, 1902, in favor of the plaintiffs and against the defendants for $1,350 stand in full force and effect as of the time of its rendition.” The decree also recites that on November 27, 1906, the Superior Court records show an order redocketing the cause under the mandate and also a judgment purporting to be entered as per mandate; that on December 11, 1905, an execution was issued, placed in the sheriff’s hands, and a sale of certain property thereunder had on February 5, 1907; that on February 11, 1908, an order was entered expunging all of the alleged order of November 27, 1906, except the portion redocketing said cause, quashing the execution of December 18, 1906, and annulling and setting aside the sale of February 5, 1907; that on Febniary 20, 1908, on motion of the complainants, the Superior Court entered a judgment in form as directed by the mandate of the Appellate Court in the cause; that after the entry of the judgment for $1,350 on May 20,1902, and before the entry of the stay order on July 7, 1902, no execution was placed in the hands of the sheriff nor was any execution so placed after the entry of the judgment of February 25, 1905, and before the filing of the appeal bond on April 1, 1905, and that no valid execution was placed in the hands of the sheriff between November 17, 1906, and February 20, 1908; that the first valid execution in said cause was dated March 7, 1908, and was obtained from the clerk of the Superior Court by Daniel S. Went-worth, and that it was by him placed in the hands of the sheriff and was returned by the sheriff in the manner set out in the bill of complaint (i. e., nulla bona, etc.). The decree further finds that the first order of court vacating or tending to vacate the order of July 7.1902, staying the execution on the judgment of May 20.1902, was the judgment of February 25, 1905, which judgment was appealed from April 1, 1905, and the second purported order to that effect was that part of the alleged order of November 27, 1906, giving full force and effect to the judgment of May 20, 1902. It then finds that on May 20, 1902, the defendant, Elenor Lyman, had title to certain real estate in Cook county (describing it), known as 6324 Eggleston avenue, subject to a trust deed to secure a note of Elenor Lyman for $1,200 dated March 4, 1902, and payable in five years from date, which note was paid and trust deed released on January 4, 1905, and that Elenor Lyman occupied said 6324 Eggleston avenue as her homestead; that on December 30, 1904, Elenor Lyman, by warranty deed, conveyed to Marcellus Hopkins the said real estate at 6324 Eggleston avenue for a consideration of $5,500, warranting said premises to be free from all liens, but retained and exercised the right to remove the building from said property; that at the time of the said conveyance the Englewood Elevated Eailroad Company signed a written instrument wherein it was agreed to pay Elenor Lyman or order $1,400 with 2 per cent, interest from December 30, 1904, when the judgment of May 20, 1902, should cease to be a lien on said premises so conveyed, but that in said instrument Marcellus Hopkins is named as the first party and Elenor Lyman as the second party, and they are the only parties therein named, and that said instrument was never executed by Marcellus Hopkins in his own name; that on September 20, 1905, Hopkins conveyed a portion of said property, namely, the north four feet of lot 11 and the south one-half of lot 10 in block 2 in the University Subdivision of Englewood (which for convenience in this opinion we shall hereafter designate herein as Lot A., designating the remainder of the premises at 6324 Eggleston avenue as Lot B.) to the Englewood Elevated Eailroad Company, and on April 19, 1906, the Englewood Elevated Eailroad Company conveyed said Lot A. to the South Side Elevated Eailroad Company, and that the South Side Elevated Eailroad Company received from the Englewood Elevated Eailroad Company the $1,400 and interest payable to Elenor Lyman or her order hereinbefore referred to; that on the date of the filing of the bill of complaint in this cause the title of Lot A. was in the South Side Elevated Eailroad Company, and of Lot B. in Harry F. Williams; that on April 1,1905, Elenor Lyman, for a valuable consideration, assigned to James E. Daughters the agreement in her favor for $1,400 before described; that on December 6, 1906, Daughters notified the Englewood Elevated Eailroad Company of said assignment, and on August 1, 1907, for a valuable consideration assigned the agreement to Henry Schaaf, and on December 13, 1907, Henry Schaaf notified the Englewood Elevated Eailroad Company of the assignment, and that Henry Schaaf is now the holder and owner of said agreement for $1,400 aforesaid; that Williams and the South Side Elevated Railroad Company now bring into court $1,400 and the stipulated interest from December 30, 1904, and ask leave to pay the same to the clerk and be discharged from the obligations of the Englewood Elevated Railroad Company to pay said sum to Elenor Lyman and all claims of the complainant under her bill of complaint.

The decree further finds that on May 20, 1902, Elenor Lyman had title to another lot in the University Subdivision of Englewood, known as 6317 Eggleston avenue (which for convenience will be designated in this opinion as Lot C.), subject to an encumbrance by trust deed of $1,800 due five years after June 14,1899; that said encumbrance has been extended from time to time and has been reduced to $1,600 and is a lien superior to any claim of the complainants’ judgment; that in May, 1904, Elenor Lyman, while occupying Lots A. and B. as her homestead, became sick and moved into a steam heated flat in order to regain her health, without any intention of abandoning her homestead, but with the intention of returning thereto as soon as her health would permit; that on December 30, 1904, she conveyed said property to Marcellus Hopkins and duly released her homestead; that a part of said property by subsequent conveyance became a part of the right of way of the South Side Elevated Railroad Company; that within one year after the sale of her homestead Elenor Lyman used a part of the money received to reduce the encumbrances that had become a lien against Lot C., subsequent to May 20, 1902, and in moving the house from Lots A. and B. to 636 West 65th place (designated in this opinion hereafter as Lot D.), and in the payment of $189 on account of fees to W. T. Dicker-man, and that within a year after the sale of Lots A. and B. she claimed Lot C. as her homestead, with the intention of moving thereon and occupying the same as her residence as soon as her health should permit; that after the sale of Lots A. and B. the rents from Lot C.- were used to maintain her while living in the steam heated flat; that in May, 1907, Elenor Lyman moved into the lower flat of the building on Lot C. and lived there continuously until her death; that on May 20, 1902, she was a widow without living descendants, and so continued until the date of her death; that on May 27, 1909, she died, leaving surviving her Laura Durrant, Bosie Mason and Dorcas Blanchard, her nieces, James Durrant and Robert Durrant, her brothers, and William Blanchard, her nephew, as her heirs at law and next of kin.

The decree further finds that upon the death of Elenor Lyman her heirs took possession of Lot C. and collected the rent for the month of June, 1909, but were thereafter dispossessed by a receiver appointed in this case by the Superior Court on July 23, 1908; that said receiver after his appointment acted as such until November 21, 1908, when an order was entered directing said receiver to cease collecting the rents until further order; that an order for the resumption of said collection was entered without notice to the heirs, and that since July, 1909, said receiver has been in full control of said Lot C.; that at the time the bill of complaint herein was filed, said Lot C. was valued at $2,400 and encumbered for $1,600.

The decree also finds that W. T. Dickerman has been since May, 1902, the attorney for Elenor Lyman, and that to secure the payment of fees due and to become due, Elenor Lyman, at the request of Dickerman, moved the building from Lots A. and B. and placed the same on Lot D., the record title to which was then in Frank B. Teed, having been acquired by him on April 14, 1905, by a warranty deed from Walter L. Brooks and wife; that Teed never paid any consideration for said property and held it in trust for Elenor Lyman subject to a lien of Dickerman for services rendered and to be rendered; that Teed conveyed said Lot D. to Henry Schaaf by trust deed recorded June 8, 1905, to secure a note of Elenor Lyman to Henry Schaaf for $600 due in five years from date; that on December 30, 1905, Teed executed and delivered his trust deed on Lot D. to secure a note of Elenor Lyman due in three years from date (the note is not otherwise described in the finding), which said note of Elenor Lyman was also secured by her trust deed on Lot C.; that Henry Schaaf is now the legal owner and holder of said notes; that on August 10th (year not mentioned) Teed conveyed, at the request of Dickerman and with knowledge of Elenor Lyman, by quit-claim deed, said premises to J ames E. Daughters, who claims “to hold the property in trust for Elenor Lyman, subject to his claim of lien and claim of Dickerman;” that Elenor Lyman never had any title of record to said Lot D., and on August 8,1907, by her unrecorded written declaration, duly executed, acknowledged that Daughters was seized in fee simple of lot D. and of the issues thereof, to be held until there should be paid to Dickerman $870 and interest, and until Daughters should be released from bonds signed by him for Elenor Lyman, and then to be conveyed to Elenor Lyman; that Dickerman claims a balance of $400 and Daughters is still liable on an $80 bond to Elenor Lyman; that on December 14, 1906, a good and valid mechanic’s lien claim was filed against Lot D., which was released without being paid on the demand of Teed; that on June 5, 1908, on a note given in payment of the indebtedness of Elenor Lyman a judgment was entered by the Circuit Court of Cook county in favor of Henry Schaaf against J ames E. Daughters and Elenor Lyman; that on an execution issued on said judgment the sheriff on July 7, 1908, sold all the interest of Daughters and Lyman in said Lot D. to Joe Hunter, who received a certificate of sale which entitled the holder to a deed from the sheriff on October 8, 1909.

Further findings are that the defendants, Schaaf, Dickerman, Teed and Hunter have nothing in their possession or control belonging to Elenor Lyman which should be applied to the claim of the complainants; that Frank Marty is the executor of the will of Elenor Lyman and administrator of the estate of William Durrani, but that there are not sufficient personal assets in either estate to pay any part of the claim of the complainants; that the South Side Elevated Railroad Company, Williams, Dickerman and Daughters had knowledge of the judgment of May 20, 1902, against Elenor Lyman before they acquired any rights in the property in which Elenor Lyman had an interest; that Elenor Lyman never made a formal conveyance of her title to the building moved from Lots A. and B. to Lot D.; that after Teed took title to said Lot D. to August, 1907, both while the title was in Teed and while it was in Daughters, Elenor Lyman exercised control as to the conveyances of it and otherwise, rented it and handled the rents, etc., and that after August, 1907, Daughters controlled it; that Teed took title to Lot D. by deed of April 14, 1905, and conveyed the same by trust deed of June 6, 1905, to secure a $1,600 note of said Elenor Lyman; that there is nothing of record as to the title to Lot D. showing the conditions between Elenor Lyman and Teed and Daughters, by which they held title to the said Lot D.; that all evidence of indebtedness between Schaaf, Teed and Daughters was the original indebtedness of Elenor Lyman; that neither Teed nor Daughters paid or received any consideration for Lot D., and that they held the title merely in trust; that the agreement of December 30, 1904, whereby $1,400 was held in escrow, is null and void so far as the complainant’s rights are concerned; that the judgment of May 20, 1902, has continuously since then been a valid lien against Lots A., B. and C.; that the South Side Elevated Railroad Company, and Williams hold title to Lots A. and B. subject to said lien; that said lien followed the building moved from Lots A. and B. to Lot D.; that the lien of said judgment on Lot C. is subject to the prior encumbrance of $1,600; that Lot D. was the property of Elenor Lyman from April 14, 1905, to her death, and that the lien of the said judgment is prior to the claims of Dickerman, Daughters, Bay, Hunter, the heirs and assigns of Elenor Lyman, and the indebtedness evidenced by the trust deed to Schaaf; and finally that the complainants are entitled to the relief prayed for.

These being the findings, on them the following decreeing clauses were based:

(1, 2, 3) That the judgment of May 20, 1902, is a valid lien on Lots A., B. and D. and on Lot C., subject to a trust deed securing $1,600.

(4) That the receiver appointed on July 23, 1908, assume control of and collect rents of Lot D. until further order;

(5) That if a sale is had of the aforesaid property (to-wit, Lots A., B., C. and D.) to satisfy said judgment of May 20, 1902, the complainants proceed first against Lot C., and for the balance, if any, against Lot D., and then for the balance, if any, against Lots A. and B.;

(6) That the South Side Elevated Railroad Company and Williams pay the money by them tendered in court to the complainants on account of the judgment of May 20, 1902, and their costs in the case at bar;

(7) That the complainants have execution for costs in the case at bar;

(8) That the defendant Daughters’ account for moneys collected on Lot D. and file an account within fifteen days to abide further order of the court.

Before discussing the correctness of this decree under the showing of the record, we feel it necessary to advert to the impropriety of much of appellees’ printed argument submitted to us. It is in parts flippant and in passages is abusive of the counsel for the appellants. Attorneys, solicitors and counsel practiding in this court are officers of the court and should treat each other with at least the formal courtesy that such a relation to the court demands. We regard a contrary spirit shown in arguments submitted to us disrespectful to the court as well as- to the opposing counsel.

We pass to the merits of the case.

It is evident that the findings of fact and law in the decree support the ordering part of the decree. It is against these findings, therefore, that the arguments of appellees are chiefly directed. But the point is made at the outset that improper evidence was considered by the court and incorporated in the findings. It is sufficient to say of this that we do not think there was any injurious error in. admitting evidence. The question before the court was as to what rights of the complainants existed at the time of the judgment on May 20, 1902, and persisted up to the time of the trial, or had been acquired since; and the whole history of the case chronologically was necessary that this might be rightfully decided. Nor did the evidence contradict the stipulation about the facts properly construed. Moreover, the Chancellor will be presumed to have considered only proper evidence. We think that all evidence shown by his findings to have governed his conclusions was proper.

It is also urged that the stipulation contradicts the allegations of the bill that there was due to them $1,350 and costs and interest, and insist that it shows, on the contrary, that D. S. Wentworth, one of the owners of the note on which the judgment was rendered, had paid appellees all that was due to them, and that appellees in consequence had no interest in the judgment. We do not think there is any merit in this point. The creditor’s bill is filed on a judgment in favor of the appellees, who are the judgment creditors. That they were properly so is the decision of this court in Lyman v. Kline, 128 Ill. App. 497. As such judgment creditors of record they have a right to bring this bill. If they are trustees in any sense or bound to account for the proceeds of what they may- collect on the judgment, that lies between them and the parties whose money went into the notes, or who have since reimbursed them. The defendants at least are not concerned with or injured by the situation, and will be fully protected by any payment-made, voluntary or involuntary, on this judgment against any claim from any other person.

The next point made by the appellants attacks the findings and decree of the court, that the judgment of May 20, 1902, is a lien on Lots A., B., C. and D., from its rendition' on May 20, 1902, and on Lot D. from April 14, 1905, at which time the lot became the property of Elenor Lyman.

Passing for further consideration all other questions involving the existence of such a lien and the effect and priority to be accorded it in case of each of the parcels of land, we will dispose first of the proposition of appellants that there was no lien arising from the judgment of May 20, 1902, existing continuously from the date of the judgment, or at any time until a valid execution was placed in the hands of the sheriff, because no execution was issued within one year of May 20, 1902. We do not think it sound. The Act concerning Judgments and Decrees, etc., provides that a judgment shall be a lien on real estate for seven years from the time it is rendered, but that when execution is not issued on a judgment within one year from the time the same becomes a lien, it shall thereafter cease to be a lien, but execution may issue upon such judgment at any time within seven years, and shall become a lien on such real estate only from the time it shall be delivered to the sheriff or other proper officer to be executed.

But this condition is subject to the further provision that “When the party in whose favor a judgment is rendered is restrained, by injunction out of chancery or by appeal or by the order of a judge or court, or is delayed on account of the death of the defendant either from issuing execution or selling thereon, the time he is so restrained or delayed shall not be considered as any part of the time mentioned,” etc.

In the case at bar the judgment was rendered May 20, 1902. Up to July 7, 1902—one month and eighteen days—execution might have issued. This left ten months and thirteen days of the year during which execution must have been issued to continue the lien of the judgment in force for longer than a year. But on July 7, 1902, execution was stayed by the court until its further order. On February 25, 1905, an erroneous order was entered allowing an execution on the original judgment with an addition of $150, but an appeal to the Appellate Court was prayed and on April 1, 1905, was perfected by the filing of an appeal bond. If execution might have issued during this one month and three days, there was still left of the year, within which execution might be taken out to continue the lien, nine months and ten days, when the plaintiffs were again stayed in its issuance. From that time until February 20, 1908, we think that the stay order of July 7, 1902, was in force. The appeal when perfected suspended the operation of the judgment of February 25, 1905, which had removed the stay of execution ordered on July 7, 1902. When the removal was thus suspended, the stay revived. That was both the necessary purpose and result of the appeal. While the appeal was pending, therefore, the stay remained in effect. This court on hearing reversed the judgment which removed the stay. That judgment being thus cancelled and held for naught, the stay still remained in effect. It is true that the mandate of the Appellate Court reversing and cancelling the judgment of February 25, 1905, remanded the case to the Superior Court with directions to that court to enter another and different judgment order, which when entered would have again removed the stay on the execution. But the Appellate Court did not enter such a judgment order. It directed the Superior Court to do it, and the Superior Court did not do it until February 20,1908. There was then at least nine months and ten days from that time during which the judgment would remain a lien without the issuance of an execution.

But an execution was issued and placed in the hands of the sheriff on March 7, 1908, that is, within a few days of the removal of the stay.

The judgment of May 20, 1902, had therefore been a lien ever since its entry and remained so up to the time the bill in the case at bar was filed on July 18, 1908. The matter is not really complicated by the fact that an unauthorized memorandum of a judgment which was never in fact entered was, according to the language of the Superior Court in its order of February 11, 1908, “added” to the record of that court “without the consent or authority of the court by some person at this time unknown to the court,” and that because of such memorandum a void execution in violation of the stay order was issued on the judgment of May 20, 1902, and void proceedings, subsequently can-celled, had under the alleged authority of said- execution. It was at the instance of the appellants themselves that the expunging action of February 11, 1908, was taken, and they are not complaining of it. They could not if they would.

With the basis of decision reached that the judgment of May 20, 1902, was a lien on the legal and equitable interest of Elenor Lyman in real estate in Cook county from May 20,1902, to the filing of the bill in this case, the solution of the subsequent questions raised as to the correctness of the decree is not difficult.

That the agreement of December 30, 1904, whereby $1,400 was held in escrow, does not affect complainants’ rights, and that the ordering clause of the decree is correct which provides that the South Side Elevated Railroad Company and Williams should “pay the money by them tendered in court to the complainants on account of the moneys due and owing to the complainants under their judgment entered May 20, 1902, and their costs herein incurred,” patently follows, and of it nothing more need be said.

The payment of this $1,400 and the interest provided for will go far towards satisfying the claim of complainants, but as there is probably a balance to be provided for, the correctness of the further ordering provisions of the decree must be considered. For such balance there should first, according to the decree, be sold under the lien found existing, Lot C. (6317 Eggleston avenue). We can see no objection to this. No homestead was ever acquired by Elenor Lyman in those premises (Slattery v. Keefe, 201 Ill. 483), and if there had been one so acquired, the lien of the judgment of May 20, 1902, plainly antedated it and would have priority. First National Bank v. Vest, 187 Ill. 389. This property is, however, subject to the prior lien of an encumbrance of $1,600 mentioned in the decree, and can only be sold under the judgment lien sought to be enforced subject to said trust deed lien.

If after a proceeding against this property there still remains a balance due, the decree provides that there may be a sale next of Lot D. (636 West 65th place), and after that, for any further balance, of lots A. and B. (6324 Eggleston avenue). That the interest of Elenor Lyman or her heirs in 636 West 65th place, if there be a lien against it, should be sold before the premises at 6324 Eggleston avenue (which had been conveyed to Marcellus Hopkins under a warranty deed before any interest of Elenor Lyman ever attached to the West 65th place property) is plain from equitable principles. The doctrines of sales under the inverse order of alienation apply. But it is maintained by appellants that as Elenor Lyman never had title of record in this property and Daughters had such record title, and as Joe Hunter bought said Lot D. on July 7, 1908, at a sheriff’s sale, on a judgment of Schaaf rendered June 5, 1908, against Daughters and Elenor Lyman, there is no right in the complainants prior to said Hunter’s.

If Elenor Lyman was the equitable or beneficial owner of Lot D. on June 7, 1908, the lien of the judgment of Schaaf then rendered against her and Daughters was subject to the lien of the judgment of the complainants against her and Durrant of May 20, 1902. And if Lot D. was bought with Elenor Lyman’s money in April, 1905, and she moved a house which she owned ■ on to it, and directed all alterations, secured tenants for it and until August, 1907, collected the rents for it, it would go far to show that she was such equitable owner. In fact the answer of Daughters admits this in asserting that she had a right to receive the title from him after certain indebtedness from her to Dickerman had been paid and he (Daughters) relieved from certain surety obligations. This is not a case of a fraudulent conveyance by the judgment debtor before the lien of the judgment attached, which the Supreme Court has said leaves no equitable estate in the debtor for a lien to attach to. It is like the case of Bennett v. Stout, 98 Ill. 47, where the court said: “The question to be decided is one of fact. It is: Did Stout purchase the land with his own means and have it conveyed to his wife for the purpose of preventing complainants from collecting their judgment against him?”

Appellants say that the proof shows that the property was bought, not with Elenor Lyman’s money, but with Schaaf’s. But it is admitted by them, as we understand, that her note to Schaaf represented the money he paid; and she took possession of the premises at once. A question of some difficulty would arise on this assumption, as to the priority of the trust deed from Teed to Schaaf of June 6,1905, to secure the payment of Elenor Lyman’s $1,600 note if the said trust deed had been contemporaneous with the conveyance to Teed from Brooks on April 14,. 1905; but we are not inclined, under all the circumstances shown, to overrule the Chancellor’s decision that this trust deed cannot be given that priority to judgment liens sometimes allowed to purchase money mortgages, because, as the Supreme Court says in Blatchford v. Boyden, 122 Ill. 657, “Not of any equity the vendor might be supposed to have for the purchase money of the land, but upon the grounds that the execution of the deed and mortgage being simultaneous acts, the title to the land does not for a single moment rest in the purchaser, but merely passes through his hands and vests in the mortgagee without stopping at all in the purchaser, and during such instantaneous passage the judgment lien cannot attach to the title.”

But apart from all other and more technical reasons we think that there was sufficient ground for the Chancellor’s decree as a whole concerning this property in the proposition that all the circumstances taken together raise a justifiable inference of a definite purpose so to handle it as to hinder and delay creditors, and that all the persons engaged or interested in it and now claiming rights prior to the complainants had notice of this, and must, however valid their claims on the property may be against the heirs of Elenor Lyman, be postponed to the complainants. This disposes also of the claims of Dickerman and Daughters to priority over the right of lien given by the decree to the complainants, and justifies the fourth and fifth ordering clauses of the decree in relation to the receiver and to an account by Daughters for rents heretofore collected.

Viewing the decree as a whole we think it does justice between the parties, and that the bill and proofs are sufficient to sustain it. It is therefore as a whole affirmed.

Affirmed.


author: Mr. Presiding Justice Clark

text:
    C. E. Freet, Trading as Fyricide Mfg. Co., Appellant, v. American Electrical Supply Co., Appellee.
    Gen. No. 16,818.
    1. Principal and agent—evidence of agent’s authority to contract. Where a principal suing a sales agent, who has repudiated his contract of employment, contends that the principal’s representative, who signed the contract, had only special limited authority, a letter from the principal answering an inquiry as to the authority, stating that the representative “has a contract with us giving him authority to make and sign contracts for this company,” is competent evidence as tending to show a general authorization.
    2. Principal and agent—when contract of employment is evidence of agency. A contract headed “Agency Contract” providing that a salary he paid a sales agent; that the principal shall provide circulars, naming the minimum amount of sales that shall he made, giving an optional right to cancel the contract, providing for the price on sales; that the agent shall purchase a certain number of articles which will be repurchased if not sold; and that the agent shall have the right to collect all moneys for sales, remitting the surplus after deducting his salary, established a relation of principal and agent and not of vendor and vendee.
    3. Principal and agent—when contract of employment is obtained by fraud. Where a representative of a company employs a sales agent to sell fire extinguishers under a contract that the agent shall canvass the territory through subagents and shall purchase a certain number of extinguishers, and the representative offers to canvass certain cities and sends in orders that the agent believed were bona fide but were made upon the same form as the agent’s, contract and payment is refused by the parties, there is some evidence that the employment contract was obtained by fraud chargeable to the principal, and the agent may repudiate the contract and return the extinguishers.
    4. Appeal and error—instruction should be abstracted in full. On abstracting an oral instruction it should be set out in full.
    5. Appeal and error—necessity of objections and exceptions. An oral instruction will not be reviewed if no objections or exceptions thereto are preserved in the record.
    Appeal from the Municipal Court of Chicago; the Hon. McKenzie Cleland, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.
    Affirmed.
    Opinion filed July 9, 1912.

      Hoyne, O’Connor & Irwin, for appellant; Carl J. Appell, of counsel.
    Harry P. Simonton, for appellee.
   Mr. Presiding Justice Clark

delivered the opinion of the court.

In March, 1907, the appellee, American Electrical Supply Co., a corporation of Illinois, hereinafter called defendant, entered into a contract with the appellant, C. E. Freet, hereinafter called the plaintiff. The negotiations which led up to the contract were made hy one George E. Weiler, the contract being signed thus: “The Fyrieide Mfg. Company, Geo. E. Weiler, Special Representative, ’ ’ “American Electrical Supply Co. (Seal) W. H. Gross, Treasurer.”

By the terms of the contract the plaintiff engaged the defendant as general sales agent for Fyrieide extinguishers in the “City and vicinity of Chicago and entire State of Illinois for a period of twelve months,” and agreed to pay for such services a salary of $125 per month. The plaintiff agreed to canvass the territory under the contract three times in each year, and to turn over all orders received to the defendant. The plaintiff also agreed at his own expense to supply circular matter for the proper handling of the trade, and to sell and deliver $1,000 worth of Fyrieide extinguishers to the defendant. He further agreed to repurchase the extinguishers on hand upon the fulfillment of the contract. The defendant on its part agreed to devote a reasonable amount of time, through its agents, to promote and insure the success of the agency. It further agreed to carry a stock of extinguishers of the value of $1,000, that is to say, 800 of them. The plaintiff retained the right to cancel the contract under certain conditions, and there were other provisions which it is not now necessary to relate.

After making the contract referred to, Weiler arranged with the defendant to solicit orders in Illinois. He did so, and led the defendant to believe that the orders (three in number) which were sent in and which were filled by the plaintiff were bona fide ones at certain prices mentioned. It seems, however, that in each instance the contract entered into by Weiler was made upon the same form as that entered into between the parties to this litigation. They provided a less salary per month; provided for the carrying of a certain amount of stock, etc. One of the contracts referred to, namely, that with the Hawthorne Hardware Co., was offered in evidence and appears to have been signed thus: “American Electrical Supply Co.; The Fyricide Mfg. Company, Geo. E. Weiler, Special Representative; Hawthorne Hardware Co., H. H. Luby, Pres.” The other two were signed in a similar manner.

The defendant, when it undertook to collect on the contracts referred to, .learned for the first time the nature of the contracts to which the name of the defendant was signed, as well as that of the plaintiff as Fyricide Mfg. Company. Payment was refused by each of the parties, thereupon the defendant repudiated the contract with the plaintiff and shipped to him the 800 extinguishers. Those shipped by the Hawthorne Hardware Company were also returned to the plaintiff, but he refused to receive them.

Thereafter this suit was brought, the plaintiff demanding $1,780 for the extinguishers delivered to the defendant and to the three supposed customers. The defense interposed was that the contract was obtained by fraud. There was a trial before the court and a jury, and judgment entered in favor of the defendant upon a verdict rendered by the jury in its favor. The court at the time was asked to instruct the jury to direct a verdict in favor of the plaintiff for the full amount of his demand, namely $1,780. This instruction was refused, and an exception taken. Thereupon another motion, to the effect that the jury he instructed to render a verdict in favor of the plaintiff for the sum of $1,000, was made by the plaintiff, and was likewise refused. To this action an exception was preserved by the plaintiff.

The grounds alleged for reversal are, first, that the court erred in refusing to instruct the jury to find the issues for the plaintiff for the full amount of his claim; second, that it erred in refusing to instruct the jury to find for the plaintiff as to the $1,000 item; third, that improper evidence was received; fourth, that erroneous instructions were given.

We have carefully read the abstract in the case, and are of the opinion that there was sufficient evidence to warrant the court in submitting to the jury the question as to whether or not the defendant was induced to sign the contract upon which the case was based by the fraudulent conduct of the plaintiff or that of an agent for which plaintiff was responsible.

A large part of the argument of the plaintiff is addressed to the proposition that Weiler had only special, limited authority. The plaintiff in his testimony stated that there was a written contract between him and Weiler, but this contract was not produced. Four contracts were made by Weiler, presuming to act for the plaintiff and, in three of them, as heretofore stated, for the defendant also. In response to a letter addressed to the plaintiff as the Fyricide Mfg. Co., asking as to Weiler’s authority, plaintiff replied: “We have yours of the 2nd in reference to Mr. Weiler’s authority to make and sign contracts for us. In regard to which will state that he has a contract with us giving him authority to make and sign contracts for this company, and we will add that he has been very successful in closing contracts for us. Tours very truly, The Fyricide Mfg. Co., C. E. Freet.” The admission of this letter in evidence by the trial court is one of the points most strenuously insisted upon as ground for reversal. We think it was competent as tending to show a general authorization by the plaintiff to Weiler. The defendant in the transaction leading up to the making of the contract knew no one else than Weiler as representing the plaintiff. The contract specifically provides that the plaintiff should canvass the territory covered by the defendant’s contract, namely the State of Illinois, three times in each year. It was quite natural, therefore, that, when Weiler offered to go to other cities than Chicago in the state and canvass, the defendant should assume that he was doing so in conformity with this provision of the contract.

We agree with the defendant in its contention that the contract was essentially an agency contract. It is headed “Agency Contract,” and provides for a salary to be paid to the defendant, and that circulars, etc., should be provided by the plaintiff; It also names the minimum amount of sales which shall be made each month, and provides for the cancellation of the contract at the option of the plaintiff if such sales do not equal $2,700 at the end of six months. It provides at what price sales shall be made, naming a smaller price for same to dealérs than to consumers. It further provides that “said second party (the defendant) shall have the right and authority to collect all moneys for sales made through said agency, and at the end of each month, after deducting from the amount of said sales $125 for salary, and the difference between the billing price and selling price to the dealer or consumer, the said second party shall remit the balance for said sales to the said first party.” All of these provisions of the contract tend, in our opinion, to establish the proposition that the essential character of the contract was that of agency, and that the relation between the parties was not by this contract made that of vendor and vendee. (Burton et al. v. Goodspeed et al., 69 Ill. 237.) If it were intended by the contract to create the relation of vendor and vendee, surely the provision last referred to need not have been inserted. The defendant, if such were the character of the contract, would have required no authority from the plaintiff to collect moneys which might be due upon a resale.

It is true the defendant may be said indirectly to have agreed to purchase 800 extinguishers and to carry the same in stock, but this was incident to the main purpose of the contract, which was that the defendant should act as the selling agent of the plaintiff in the State of Illinois. The defendant dealt only with Weiler, and his actions and representations which led up to the making of the contract with the defendant must, in our opinion, be regarded as though made by the plaintiff himself. If, at the time these representations were made, Weiler intended that the plaintiff should not in good faith carry out the provisions of the contract with regard to canvassing the state, that was proper matter to be considered by the jury upon the question as to whether or not fraud entered into the making of the contract, with which the plaintiff, by operation of law, should be charged.

Immediately upon the signing of the contract between the parties hereto, Weiler made contracts with the three concerns heretofore referred to, whose respective places of business were at Elgin, Rockford and Peoria, Illinois. In this matter he apparently undertook to act as agent both for the plaintiff and the defendant. The signature to the contract with the Hawthorne Hardware Company was signed by him for the plaintiff under the name of Fyrieide Mfg. Company, as its special representative. The character of the agency which he assumed to have for the defendant is not shown in the instrument. His whole conduct with reference to these three instruments tends, in our opinion, strongly to support the theory of the defendant that the contract with it was not entered into in good faith and that the defendant was induced to enter into it through the fraudulent practice of Weiler.

In a letter written by the plaintiff to the defendant under date of April 17, 1907, the following language was used: “For your information will state, if not previously advised, that promptly upon our confirming the reports regarding Mr. Weiler’s nefarious practices, we immediately dispensed with his services.” In the same letter it was stated: “At the time of writing our letter of the 11th, we were advised that Mr. Weiler was lying seriously ill at a hotel in Detroit, not a hospital as you state, but since that time we are in receipt of advices by message over Mr. Weiler’s name to the effect that he is now under arrest in the Wayne county jail at Detroit, which is probably the result of some of his misrepresentations at that point.”

Without further discussion of the evidence, we state it as our opinion that the testimony in the record was sufficient to warrant the conclusion of the jury that the contract sued upon was obtained by fraud; that this fraud is chargeable to the plaintiff, and was sufficient to warrant the defendant in repudiating the contract made.

Complaint is made of certain portions of the charge of the court to the jury. The record shows that certain instructions were given to the jury as “instructions for defendant,” whatever that may mean. It also shows that the court orally instructed the jury. For some reason the plaintiff (appellant) did not set out in the abstract of record all of the charge of the court given to the jury. This should have been done, for otherwise this court might have been misled. We have, however, been advised by an additional abstract furnished by the defendant as to what the record shows in this regard. We do not find in the record objections made to the charge, nor were any exceptions preserved in the record in respect to any portions of the charge. It is therefore unnecessary for us to comment or pass upon any of the objections now raised to it.

We find no error in the record of such a character as would warrant a reversal of the judgment, and the same is affirmed.

Affirmed.


text:
    Falcon Engineering Company, Appellee, v. William M. Wright, Appellant.
    Gen. No. 16,978.
    1. Appeals and errors—order to return incorrect certified copy of judgment is not appealable. An order requiring the attorney for defendant to return a certified copy of a judgment, on the ground that such copy is incorrect, does not purport to change the judgment entered, does not tend to affect the merits of the cause and is interlocutory and not appealable.
    2. Dismissal and nonsuit—when order reciting nonsuit may be corrected. Where an order reciting that a plaintiff elects to take a nonsuit entered a judgment which seemed to determine the merits of the case in favor of the defendant, the court on examining the record, files and minutes may enter an order correcting the former one so as to show no such determination.
    3. Appeal and Essos-^when bill of exceptions necessary to review order correcting incorrect order. An order, correcting an order reciting that a plaintiff elects to take a nonsuit, that enters a judgment which seems to determine the merits of the case in favor of the defendant may be affirmed, if a bill of exceptions is not filed.
    Appeal from the Municipal Court of Chicago; the Hon. Oscar M. Torrison, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Dismissed in part and affirmed ' in part.
    Opinion filed July 9, 1912.
    Rehearing denied. Certiorari denied by Supreme Court (making opinion final).
    Samuel B. King, for appellant.
    Otto G. Ryder, for appellee.
   Mr. Presiding Justice Clark

delivered the opinion of the court.

We are asked to reverse the action of the Municipal Court of Chicago in entering two separate orders on May 14, 1910, and June 20, 1910, respectively.

The order of May 14th by its terms required Samuel B. King, described as attorney for the defendant, to return a certified copy of the judgment entered in the cause on December 30, 1909, for the reason, as stated in the order, that the certified copy was incorrect. The order further provided that the certified copy" when returned should be marked canceled, also that the copy of the same “now in the files of the cause” be canceled and marked void. An exception was taken to the entry of this order, and an appeal prayed to the Appellate Court. The order does not purport to change in any respect the judgment entered, nor does it in any way tend to effect the merits of the cause. It is clearly interlocutory, and the appeal with reference to it must therefore be dismissed. Illinois Trust & Savings Bank v. Howard, 185 Ill. 332. The court erred in granting the appeal.

The second appeal, namely to the order of June 20th, is set out in the same record as is the one to the first order, two bonds having been filed, one after each appeal was granted. The order of June 20th recites that the court had examined the record and files in the cause and “his memoranda and minutes of the order and judgment entered in this cause on December 30, 1909.” The order of December 30th, as it was originally entered by the clerk, reads in part as follows: “whereupon the plaintiff elects to' take a non-suit. It is therefore considered by the court that the plaintiff take nothing by its suit, and that the defendant do have and recover of and from the plaintiff, the costs of the charges by him herein expended taxed at $32.65, and that execution issue therefor.”

By the order of June 20th it was corrected so that this portion was made to read as follows:

“whereupon plaintiff elects to take a non-suit herein. It- is therefore considered by the court that said defendant have and recover of and from the plaintiff the costs of said defendant herein expended and that execution issue therefor.”

No bill of exceptions • was filed in the last appeal, and we might properly affirm the order for this reason. Without passing upon the question whether the order as entered is properly the subject of an appeal, we state it as our opinion that from the record the court was justified in entering the order of correction. It is apparent that the order as originally transcribed upon the records was inconsistent with itself. The plaintiff had a right to take a non-suit, and upon its doing so a judgment should not have been entered against it which seemed to determine the merits of the case in favor of the defendant. The appeal from the order of May 14,1910, will therefore be dismissed, and the order of June 20, 1910, affirmed.

Appeal from order of May 14, 1910, dismissed; order of June 20,1910, affirmed.

Mr. Justice Barses took no part in the consideration of this case.