text:
    First National Bank, Defendant in Error, v. Hogg-Harris Lumber Company, Plaintiff in Error.
    Gen. No. 18,121.
    1. Assignments—defenses subsisting against assignor. Where a Mississippi corporation ships lumber to defendant at St. Louis, and assigns the accounts to plaintiff, defendant is entitled to any set-offs, discounts and defenses subsisting against the corporation at the time defendant received notice of the assignment.
    2. Evidence—as to custom of inspecting lumber. In an action on accounts, for lumber sold to defendant, which are assigned-to plaintiff, in determining whether defendant is entitled to a credit for lumber which it claimed was of inferior grade, it is error to exclude evidence as to the custom of inspecting the lumber and allowing credits.
    3. Customs—assignee of chose in action. Where plaintiff sues on a chose in action assigned to him, his rights are affected by trade customs to the same extent as were the rights of assignor.
    4. Customs—when contracts are presumed to be made in reference to. Contracts made in the ordinary course of business without particular stipulations, express or implied, are presumed to be made in reference to any existing usage or custom, relating to such trade, and persons dealing therein will be held as intending that the business shall be conducted according to such general usage and custom.
    Error to the Municipal Court of Chicago; the Hon. Robert H. Scott, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1912.
    Reversed and remanded.
    Opinion filed May 29, 1913.
    Statement by the Court. This writ of error is prosecuted to reverse a judgment of the Municipal Court of Chicago for $283.37, rendered on November 18, 1911, in a case of the fourth class in favor of the First National Bank of Gulfport, Mississippi, plaintiff, against Hogg-Harris Lumber Company, a corporation, having its - principal office at St. Louis, Missouri, defendant. The case was tried before the court without a jury.
    On July 8,1911, plaintiff filed an affidavit for attachment on the ground of the nonresidence of defendant, and the Illinois Central Railroad Co. was summoned as garnishee. The defendant filed a general appearance and entered into a recognizance to pay whatever judgment might be rendered against it, whereupon the attachment was dissolved and the garnishee discharged.- At the conclusion of a somewhat protracted trial, the plaintiff filed a statement of claim and the defendant was excused from filing an affidavit of merits. From plaintiff’s statement it appears that plaintiff claimed that on July 31, 1909, and August 27, 1909, the Forrest Lumber Company, a Mississippi corporation, shipped to the defendant the following four cars of lumber, f. o. b. St. Louis, Missouri, all of which ears were received and accepted by the defendant, and freight paid thereon by defendant,- as follows:
    Car No. 11817, July 31, for price of $313.22
    Freight paid 89.93
    - $223.29
    Car No. 141041, Aug. 27, for price of 435.98
    Freight paid 140.53
    - 295.45

      Car No. 19660, Aug. 27, for price of 448.85
    Freight paid 142.32
    - 306.53
    Car No. 19361, Aug. 27, for price of 347.55
    Freight paid 112.32
    - 235.23
    . $1,060.50
    that at the time the said cars were respectively shipped to defendant, the Forrest Lumber Co., for a valuable consideration, sold and assigned the choses in action to the plaintiff; that the defendant had notice of the assignments at the times it received and accepted said cars; that after having said notice, the defendant paid to the plaintiff upon said assigned accounts, in three separate payments, the total sum of $777.11, and that there is due and owing to plaintiff from defendant the sum of $283.37. Prior to the trial the plaintiff filed certain interrogatories to be answered by George E. Hogg, president of defendant, and to these interrogatories the said Hogg answered that on or about the respective dates of said shipments the defendant received invoices, four in all, purporting to cover the lumber in each of said cars, from the Forrest Lumber Co., of Hattiesburg, Mississippi; that the defendant resold the lumber in each car and reconsigned each car to third persons, and that the defendant paid the freight on each car. Upon the trial the plaintiff introduced the answers of said Hogg to the interrogatories, and the four invoices, and rested its case. The first invoice was dated “Hattiesburg, Miss., 7-31-09,” and it was stated in effect on its face that there had been sold and shipped to the Hogg-Harris Lumber Co., St. Louis, Mo., on its order No. 926, in car No. 11817, 421 pieces of “12 foot clear pole stock,” at $31, viz: a total price of $313.22, less freight. On its face the following also appeared: “Gulfport, Miss. 7-31-09. For value received we hereby sell, assign and transfer the above account to the First National Bank of Gulfport, Miss., for its own use. Forrest Lumber Co., Fred L. Colvin. ’ ’ The second invoice was dated “8-27-1909,” and mentioned a similar sale and shipment to defendant, on its order No. 926, in car No. 141,041, of 566 pieces of “12 foot pole stock,” at $435.98, less freight. The third and fourth invoices were each dated “8-27-09,” and mentioned similar sales and shipments to defendant, on its order No. 243, in cars numbered respectively 19,660 and 19,361, of a certain number of pieces of “12 foot pole stock,” at $448.85 and $347.55, respectively, less freight. On the second, third and fourth invoices there also appeared similar indorsements by the Forrest Lumber Co., dated “Aug. 27, 1909,” assigning the respective accounts to the plaintiff.
    From the evidence introduced by defendant the following facts appeared: On July 28, 1909, the Mississippi Pine and Hardwood Company, a corporation located at Ackerman, Mississippi, hereinafter called the Mississippi Co., wired the defendant at St. Louis: “Have two cars twelve pole stock loaded, offer f. o. b. Chicago rate $31; Can you use?” The defendant on the same day wiréd the Mississippi Company to ship the two cars to the defendant at St. Louis, and confirmed the telegram by mailing to the Mississippi Co. its written order, No. 926, for “2 cars, 4x6, 1-2 foot pole stock” at the price and terms mentioned. On July 30th, the Mississippi Co., by letter mailed to defendant acknowledged receipt of defendant’s telegram and order, No. 926, and stated that “the invoice and bill lading has gone forward thru the Forrest Lumber Co., * * * our general sales agents, who will render you account sales thru their regular channels.” On July 31st, the Forrest Lumber Co. wrote a letter to defendant saying: “Enclosed find duplicate invoice for car 11,817 shipped for your account by the Mississippi Pine & Hardwood Go. * * * We have sent the original invoice and B/L through our bank for collection and same will reach you promptly. We would thank you to remit our bank check for at least $175 on receipt of original invoice and B/L.” Before car No. 11,817 reached the defendant at St. Louis, defendant resold the contents thereof to the Luehrmann Lumber Co., and by diversion order to the railroad company caused the car to be delivered to the yards of the Luehrmann Co., at St. Louis. No inspection of the contents of the car was made by defendant before said resale and diversion. It was the business custom of the defendant to purchase yellow pine lumber from mills in the southern states, order the same shipped to itself at St. Louis, and, while the material was in transit, resell the same to a customer, and give an order to the railroad company to divert the same to the customer’s place of business. Upon receipt of the material the customer would inspect the same and thereafter pay defendant for the material according to grade and the current price. If the material was found by the customer’s inspection not to be up to date, the defendant would communicate the facts to the mill from which the material was originally purchased, and endeavor to effect an adjustment as to price with the mill; and, if such adjustment could not be made, the defendant would; with the consent of the consignor, refer the question of the grade of the material to the inspectors of the Yellow Pine Manufacturers’ Association. There was evidence tending to show that, by general custom of the yellow pine lumber trade in St. Louis and vicinity, and in some of the southern states including Mississippi, where a question as to the grade of certain lumber was referred to the official inspectors of that association for decision, that decision was accepted as final. There was also evidence tending to show that in 1909 there was a general custom in said yellow pine lumber trade, as follows: Where lumber had been, purchased from a mill and consigned to a purchaser, and. while the lumber was in transit, the purchaser resold the same and diverted the lumber to the place requested by the second purchaser, an inspection was had after unloading at the ultimate destination, and any questions arising between the original consignor and the original purchaser, as to whether or not the lumber was of the grade contracted for, were to be determined by said inspection, in the absence of any agreement to the contrary. There was also evidence tending to show that by a general custom in said trade a purchaser paying 80 per cent, of the net amount of the invoice within 10 days from date of shipment was entitled to a discount of 2 per cent. In accordance with this custom the defendant, after estimating the freight on car No. 11,817, mailed its check for $160, dated August 10th, to the Forrest Lumber Co., to pay 80 per cent, of the net invoice of that car. The check was received by that company, and indorsed to plaintiff and cashed by plaintiff. The contents of car No. 141,-041 were also resold to the Luehrmann Co. without inspection by defendant, and by diversion order that car was also delivered to the yards of that company. On August 24th, the defendant mailed to the Mississippi Co. another written order, No. 243, for two cars of “12 foot pole stock @ $35, Chicago rate,” and subsequently the defendant received from the Forrest Lumber Co. the invoices for cars numbered 19,660 and 19,361. The contents of these cars while in transit were resold by defendant to the Emerson Mnfg. Co., of Rockford, Illinois, without inspection by defendant, and the shipment diverted and delivered to that company. On September 10th, the defendant mailed its check for $610 to the plaintiff, which check was cashed by plaintiff, and was for 80 per cent of the net amount of the invoices of the three last mentioned cars, as estimated by defendant. After the lumber in cars Nos. 11,817 and 141,041 had been unloaded in the yards of the Luehrmann Co., a representative of that company found upon inspection that nearly one-half of the lumber in each car was what was- termed “rejects” and the balance was up to grade mentioned in the invoices, viz: “12 foot pole stock.” That representative testified that yellow pine “pole stock” is “clear lumber, free from defects, cut to any size that may be ordered, for use as implement tongues or poles,” and that the term “rejects” had a universally accepted and understood meaning in the lumber trade in St. Louis and Mississippi, and meant “anything not up to the grade of the stock invoiced or ordered.” The Luehrmann Co. kept the contents of the cars intact, piling the lumber that was up to grade in one pile and the “rejects” in another pile, and made complaint to the defendant that the lumber was not all up to grade, which complaint was communicated to the Mississippi Co., from which company defendant had originally purchased the contents of said cars as being “12 foot clear pole stock” or “12 foot pole stock,” and on September 13th, a representative of the Mississippi Co. met the president of defendant in the yards of the Luehrmann Co. where the lumber was piled, and they together inspected the lumber, found that considerable of the stock had “bad ends and waney edges,” and generally that all of the lumber was not up to grade. It was then and there agreed between them that certain allowances, then reduced to figures, should be made to defendant on the invoice prices of the contents of said cars. On September 15th, the defendant wrote both the plaintiff and the Forrest, Lumber Co. of the terms of said settlement, and on the same day mailed a letter to the plaintiff, in which was inclosed a check for $7.11, which amount defendant claimed was the balance due plaintiff on car No. 11,817, and in which letter it was stated that said check was “in full for this car.” This check was received and cashed by plaintiff. It does not appear from the evidence that the plaintiff, prior to the beginning of this suit in July, 1911, made any objection to the settlement made on September 13, 1909, between the defendant and the Mississippi Co. as to the contents of said cars. In the meantime the contents of cars Nos. 19,660 and 19,361 had been inspected in the yards of the Emerson Mnfg. Co., at Rockford, Illinois, by a representative of that company, and some of the lumber had been found not to be up to grade, and defendant was advised of that fact by letter which letter was forwarded to the Mississippi Co., which company in turn requested by letter that the lumber be inspected by the official inspectors of said Yellow Pine Manufacturers’ Association. This inspection was had and a report thereof was received by defendant on September 29, 1909, and defendant, on October 2nd, mailed a copy of said report to the Mississippi Co., stating what the official inspection charges amounted to, and saying: “We are of the opinion that these degrades can be settled for on the usual basis of one-half invoice price, and we wish to know if this would be satisfactory to you.” To this letter the Mississippi Co. replied on October 7th directing defendant to “pass thru the report on the basis of one-half price for the rejects.” There was evidence tending to show that on said basis the amount to be allowed defendant, by deduction from the net invoice price of the contents of car No. 19,660 was $116.77, exclusive of inspection charges, and of car No. 19,361, $20.47, and that defendant promptly notified plaintiff by letter of the amounts which defendant claimed should.be so deducted. It does not appear from the evidence that plaintiff replied to this notification, or made any objections to the allowances claimed, prior to the beginning of this suit. It further appeared from the evidence offered by defendant that defendant claimed that, because of the contents of said cars not being up to grade and because of said allowances on said invoice prices and because of the total advance payments of $777.11 made to plaintiff, defendant owed plaintiff nothing and in fact had overpaid plaintiff in the sum of $1.85.
    At the conclusion of all the evidence and on motion of plaintiff, the trial court struck out, as being immaterial to the issues, all evidence introduced by defendant as to the general customs of the yellow pine lumber trade, also nearly all of the documentary evidence offered by defendant, and also all evidence as- to the agreements made between the defendant and the Mississippi Co. as to allowances on the invoice prices of the contents of said cars. In fact, the court struck out practically all of defendant’s evidence as above outlined, refused to allow defendant anything on said invoice prices save the cash payments made to plaintiff and the freight paid, found the issues in favor of plaintiff and assessed plaintiff’s damages at $283.37, and entered judgment upon the finding.
    Robert J. Folonie, for plaintiff in error.
    Fred H. Atwood, Frank B. Pease and Charles 0. Loucks, for defendant in error; Burrell J. Cramer, of counsel.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.

By statute of this state “the assignee and equitable and bona fide owner of any chose in action not negotiable heretofore or hereafter assigned may sue thereon in his own name, * * * hot in such suit, there shall be allowed all just set-offs, discounts and defenses not only against the plaintiff, but also against the assignor or assignors before notice of such assignment shall be given to the defendant.” Section 18, chap. 110, Hurd’s Ill. Stat. In this case the plaintiff, as assignee of certain choses in action against the defendant, of which assignment the defendant had notice, brought suit against the defendant, • and the plaintiff was entitled to recover to the same extent as its assignor could, and no right of set-off or other defenses could be maintained by the defendant as against the plaintiff, as assignee, which were not valid and subsisting as against the plaintiff’s assignor at the time defendant received notice of the assignment. Salt Fork Coal Co. v. Eldridge Coal Co., 170 Ill. App. 268, 273. If there were “just set-offs, discounts and defenses” subsisting at that time as against plaintiff’s assignor, the defendant was entitled to the benefit thereof.

Inasmuch as we have reached the conclusion that the trial court erred in striking out practically all of the evidence introduced by the defendant as being immaterial to the issues and entering judgment in the amount mentioned, and that the judgment should be reversed and the cause remanded for a new trial, we refrain from a discussion of the evidence and of the many points argued by counsel. We are of the opinion that at least certain portions of defendant’s evidence, so stricken out, were material to the issues, and should have been considered by the court. We think, under the facts of this case that the evidence introduced by defendant tending to show certain general customs in the yellow pine lumber trade in the year 1909, as above mentioned in the statement of the case, was material to the issues and should have been considered by the court. We think that the rights of plaintiff, as assignee of the choses in action, would be affected by said customs to the same extent as would the rights of plaintiff’s assignor. In Guggenheim v. Hoffman, 128 Ill. App. 289, 291, it is said: “While usages of trade cannot be set up to contravene established rules of law, or to vary the terms of an express contract, yet all contracts made in the ordinary course of business without particular stipulations, express or implied, are presumed to be made in reference to any existing usage or custom, relating to such trade; and persons dealing therein will be held as intending that the business should be conducted according to such general usage and custom. Chisholm v. Beaman Mach. Co., 160 Ill. 101; Samuels v. Oliver, 130 Ill. 73; Lonorgan v. Stewart, 55 Ill. 44.”

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

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Justice Fitch

license: Public Domain

text:
    Mary E. Miller, Appellee, v. William Bross Lloyd, et al., Appellants.
    Gen. No. 17,058.
    1. Attorney and client—when contract made by attorney with client is void. Where plaintiff, an attorney, accepts a retainer from four grandsons to represent them in obtaining all the property belonging to them under the will of their grandfather, and while such employment is in full force, enters into a separate employment with three of them to obtain the appointment of a conservator for the fourth to prevent him from obtaining possession of his share of the property recovered, the second contract whereby defendants agreed to pay plaintiff for her services is void on the grounds of public policy.
    2. Attorney and client—duty to client. Attorneys cannot accept employment from/ adverse litigants at the same time and in the same controversy, though their motives are honest.
    3. Attorney and client—contract of employment. Before the attorney undertakes the business of the client he may contract with reference to his services, because no confidential relation then exists.
    4. Attorney and client—where contract of employment is varied. An agreement made by a client with his counsel after the latter has been employed in a particular business, by which the original contract is varied and greater compensation is secured, is invalid and cannot be enforced.
    5. Release—joint obligation. Where four brothers are jointly indebted to plaintiff for attorney’s fees, a written release to one upon the payment of his share, does not release the others where the evidence shows it was agreed that the total amount due be apportioned among the four.

      6. Release—construction. A release must be so construed as to carry out the intention of the parties and the intention is to be sought in the language of the instrument itself when read in the light of the circumstances which surrounded the transaction.
    7. Appeals and errors—where judgment is affirmed on remittitur. In an action for attorney’s fees where the judgment includes a fee which was improperly allowed, the judgment is affirmed after a remittitur is filed for the amount of such fee.
    Appeal from the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed on remittitur.
    Opinion originally filed May 8, 1913;
    vacated and refiled May 29, 1913.
    Rehearing denied June 12,1913.
    Statement by the Court. This is an appeal from a judgment for $32,500 for attorneys’ fees. William Bross died testate in 1890, leaving an estate valued at about $2,500,000. He left him surviving as Ms only heirs at law, his widow, Mary Jane Bross, and his only daughter, Jessie Bross Lloyd. Appellants are three of the four sons of the latter. By the last will and testament of William Bross, deceased, the testator devised practically all of his property to Azariah T. G-alt in trust, with directions to pay to his widow $15,000 annually during her lifetime, to his daughter $10,000 annually during her lifetime, and to his sister an annuity of $500; to pay the expenses of the education of his four grandsons, naming appellants and John B. Lloyd; and to pay “to each of my said grandcMldren above named, and to any other child or children that may be born to my daughter, Jessie Bross Lloyd, and lives to reach his or her majority” the sum of $5,000 each, on arriving at the age of twenty-one years, $10,000 more at the age of twenty-five, and $35,000 more at the age of thirty years. The eighteenth clause of the will is as follows: “All the remainder and residue of my estate, of every Mnd, remaining after the death of my said wife and daughter and after the payment of the legacies herein provided, I give and bequeath to my grandchildren then living, share and share alike. ’ ’ Mary Jane Bross died in 1903, and Jessie Bross Lloyd in 1904. The latter left an estate of nearly $900,000, which she devised to her four sons in equal shares.
    In 1907, William B. Lloyd, the oldest of the four grandsons of William Bross, deceased, occupied an office in Chicago in the same suite of offices with appellee. Appellee is a lawyer, a graduate of the Michigan State Normal School and of the law department of Lake Forest University. She was admitted to the bar in 1895, and has been in general practice ever since.
    It appears that in 1907, all of the provisions of the will of William Bross, deceased, had been complied with, except the payment of the legacies to the two younger sons, and the trustee took the position that under the terms of the will, the period of distribution would not arrive until 1916, when the youngest grandson, John B. Lloyd, would arrive at the age of thirty years. William B. Lloyd requested appellee to give him an opinion as to whether the grandsons could compel an immediate distribution of the estate to them as residuary legatees. Upon receiving a favorable opinion from her, she was authorized to employ other counsel to assist her and to begin proceedings to compel a distribution. With the consent of appellants, she employed Lessing Rosenthal, and on June 15, 1907, the four grandsons signed the following letter:
    “Miss Mary E. Miller, and Messrs. Rosenthal and Hamill:
    We, the undersigned beneficiaries under the will of William Bross, deceased, request you to bring such proceedings in court as you may deem appropriate to recover for us all property belonging to us or intended for us under said will; to take such action as you may deem expedient against A. T. Gralt, the trustee under said will; to generally represent us in the premises and to follow such course with reference to securing possession of said estate for us as in your judgment shall deem prudent.
    (Signed) Henry Demarest Lloyd, William Bross
    Lloyd, Demarest Lloyd, John Bross Lloyd.”
    Shortly after this letter was signed, William B. Lloyd desired to know the amount of the probable fees of appellee and of Rosenthal, and it was then verbally agreed that if they were unsuccessful, the total fees should be not less than $5,000 nor more than $30,000, or, if no receivership was involved, the maximum total fee, in case of nonsuccess, should not exceed $20,000; and that in case of a successful issue to the litigation, the maximum aggregate of fees should not exceed $75,000. Soon after this agreement was made, appellee and the firm of Rosenthal & Hamill agreed upon the following as a basis for a division of such fees as between themselves: “If fees realized are $30,000 or less, Miss Miller is to have one-third and Rosenthal & Hamill two-thirds. Of every thing over and above $30,000, Miss Miller is to have forty per cent, and Rosenthal & Hamill sixty per cent.” Appellants were not parties to this last agreement.
    In pursuance of this retainer, a bill in equity was •filed in the name of the four grandsons as complainants, against the trustee Gralt. A trial was had and a decision rendered in favor of the complainants in June, 1908. An interlocutory decree was then entered, finding that said complainants were entitled to immediate distribution of the remainder of the estate in the hands of the trustee, and referring the cause to a master in chancery to take and state an account with the trustee, and to hear evidence and report as to the compensation to be allowed to the trustee and his solicitors. A number of hearings were had before the master, who made a report on March 30,1909, describing the property of the estate and recommending certain fees to be allowed to the trustee and his solicitors. A decree directing distribution to be made and the method of distribution was entered on March 31, 1909, and the final report of the trustee, showing the making of such distribution in accordance with the ■ decree, was approved on April 17, 1909.
    During the progress of these proceedings, William B. Lloyd repeatedly expressed his dissatisfaction regarding the alleged lack of co-operation between his counsel, resulting as he thought, to his disadvantage. In December, 1908, he authorized appellee to discharge Rosenthal and to request the latter to present his bill for services. She wrote Rosenthal a note to that effect. In her letter, she inclosed a letter from Henry D. Lloyd and Demarest Lloyd to Rosenthal revoking his authority to act for them, and stating’, as their reasons for so doing, that differences had arisen between the brothers and that they thought it wise to retain counsel who had not previously represented all of them. This letter also requested Rosenthal to submit a bill “for your share of your fee according to our agreement with you.” About the same time, Hiram T. Gilbert was employed by the appellants, and he thereafter worked, in conjunction with appellee, as one of appellants’ solicitors: Rosenthal did not present his bill nor withdraw his appearance, and in January, 1909, Henry D. Lloyd, on behalf of appellants, offered Rosenthal $30,000 in full payment for his services. Rosenthal declined to settle without appellee’s consent, and the offer was withdrawn. Thereupon, Gilbert was requested to undertake the task of negotiating a settlement of the matter of fees, between appellee and Rosenthal on the one hand, and the four grandsons on the other. Appellee claimed that after considerable negotiation, an agreement was reached in March, 1909, to the effect that the aggregate fees of appellee and Rosenthal should be $65,000, of which each should receive one-half; that this agreement was carried out so far as Rosenthal was concerned and that he was paid in full; that appellee had already received $2,500 on account, and that as a part of said agreement it was understood that the remaining $30,000 due her should be paid one-fourth by John B. Lloyd, and three-fourths by appellants. There is evidence tending to support this claim of appellee and tending to prove that appellants set apart, in the hands of William B. Lloyd, the sum of $22,500 for the purpose of carrying out their part of said settlement. Appellants claim that they never agreed to pay appellee that sum, but expected to pay her about $15,000 in full for her services.
    It further appears from the evidence that in the meantime appellants had received information to the effect that John B. Lloyd, the youngest brother, while attending Harvard University, had become infatuated with a married woman, was spending money lavishly on her, and was otherwise conducting himself in such a manner that the older brothers (appellants) deemed it their duty to take steps to prevent him from personally receiving the control of his share of the estate of William Bross, deceased. It appears that they then employed appellee to assist them in carrying out their wishes in this respect, and that she accepted said employment without any specific agreement as to her compensation, and without withdrawing from her previous engagement to act as solicitor for all the grandsons ; that she gave a large amount of her time and did a great deal of work in endeavoring to accomplish the result desired by appellants; that with this end in view she prepared a petition for the appointment of a conservator and filed the same in the probate court of Cook county; that she conducted a voluminous correspondence with appellants, and with their agents and attorneys in Boston and elsewhere, and had many interviews and consultations with appellants and with their counsel in Boston and with the representatives of John B. Lloyd, all of which eventually resulted in having guardians or trustees appointed in Boston for the estate of John B. Lloyd, and to these trustees his share of the William Bross estate was finally paid.
    Upon the trial in the circuit court, plaintiff introduced no evidence as to the value of the services performed by her in connection with the suit brought against A. T. Galt to compel a distribution of the estate of William Bross, deceased, but relied entirely upon the agreement of appellants to pay her three-fourths of $30,000, as above stated. A large volume of evidence was offered as to the value of the extra services rendered by appellee in the John B. Lloyd matter, the witnesses on one side estimating the value of such services to be from $1,800 to $3,500, and those on the other side estimating the value of the same services at from $18,000 to $30,000. It seems evident, from the amount of the verdict, that the jury allowed appellee $10,000 for her services in the John B. Lloyd matter, as distinguished from the services rendered in the Bross estate litigation.
    Scott, Bancropt & Stephens, for appellants; Frank H. Scott, of counsel.
    Samuel S. Page, for appellee.
   Mr. Justice Fitch

delivered the opinion of the court.

The first question presented by this appeal is whether the appellee, after having accepted a retainer from appellants and John B. Lloyd to represent all of them, with authority to bring such suits and follow such course of action as she might deem expedient “with reference to securing possession” for them of “all property belonging to or intended for” them under the will of their grandfather, could lawfully undertake, while such employment was in full force, a separate employment, the object of which was the appointment of a conservator for her client, John B. Lloyd, for the purpose of preventing him from obtaining possession of his share of the property recovered. Under the original employment, it was the duty of appellee to use her best efforts on behalf of her client, John B. Lloyd, to “secure possession” for him of his share of the Bross estate. Under the second employment, if valid, it was her duty to use her best efforts to prevent her client, John B. Lloyd, from securing personal possession of his share of the Bross estate. The latter employment was clearly inconsistent with the former, so far as her duty to John B. Lloyd was concerned. Appellee claims that she did not know when she undertook to act for John B. Lloyd, that he was a spendthrift, or otherwise incapable of taking-care of his share of the property, but that she learned that such was the fact after she had filed the bill in equity in his behalf. Her own letters show that she at first felt that she ought not to undertake the second employment without withdrawing her appearance in his behalf, but later concluded that it was consistent with her duty, as his counsel, to accept the second employment in order to protect him against the possible consequences of his mental aberration or infatuation. Upon the same theory, her counsel now contends in this court that appellee was not only free to accept an employment which was opposed to the letter and spirit of her previous contract with her client, John B. Lloyd, but that she was fully justified in “practicing deception” to prevent him from acquiring any knowledge of that fact. At the time the second contract was made, John B. Lloyd had not been declared a spendthrift, or distracted, or otherwise incompetent to manage his own affairs, by any court, and his contract with appellee was in full force and effect. After the appointment, in Boston, of guardians for his estate, she collected from them his full share of the agreed compensation for all services rendered by her in pursuance of his contract, whether the same were rendered by her after or before she accepted her second retainer. It might be that, even under these circumstances, she would have been justly entitled to claim a reasonable fee, as against the estate of John B. Lloyd, for extra services rendered by her after she had knowledge of his alleged incapacity, if such services were rendered purely in the due performance of what she considered her duty to him in the premises. This suit, however, was not brought to recover compensation from John B. Lloyd, or his estate, for services rendered to him or in his behalf, but was brought against his brothers to recover from them (with other items) the value of extra services rendered in their behalf and against him, without his knowledge or consent, and contrary to her prior contract with him. The relation of attorney and client is peculiarly one of trust and confidence. It is the duty of an attorney not only to execute the business intrusted to his care with reasonable skill and diligence, but also to act toward his client with the most scrupulous good faith. He is not compelled to accept a retainer, but if he does accept employment, he is not permitted to accept any adverse retainer. It is his duty to make known to his client any interest he may have, or may acquire during his employment, in the matter about which he is employed, and to disclose all facts that may come to his knowledge affecting his client’s interests 'in any manner. Staley v. Dodge, 50 Ill. 43. We are of the opinion that under the circumstances shown by the evidence as above recited, appellee’s second contract with appellants, wherein they agreed to pay her for services to be rendered to them and against John B. Lloyd, was void on grounds of public policy.

A case which involved the same principle, though in a different form, is Strong v. International Investment Union, 183 Ill. 97. In that case, while the property of the Investment Union (a building and loan association) was in the possession of two sets of receivers, Strong, an attorney, was employed by the association for the purpose of accomplishing the discharge of all the receivers and the restoration of the association to the management of its own officers. There was evidence tending to prove that he succeeded in accomplishing that result. During the period of his employment, however, he accepted a retainer and performed services for one set of receivers, and was paid for such services. About the time of the settlement of the accounts of the receivers, Strong presented a petition asking for the allowance of fees for services performed under his contract with the association. His petition was dismissed for want of equity. In affirming that order, the Supreme Court said:

“Attorneys at law cannot thus accept employment from adverse litigants at the same time and in the same controversy. Nor does it matter that the intention and motives of the lawyers are honest, as we fully believe them to have been in the present instance. The rule is a rigid one, and designed not alone to prevent the dishonest practitioner from fraudulent conduct, but as well to preclude the honest practitioner from putting himself in a position where he may be required to choose between conflicting duties, or be led to an attempt to reconcile conflicting interests rather than to enforce to their full extent the rights of the interest which he should alone represent. ’ ’ Citing authorities", among them, McDonald v. Wagner, 5 Mo. App. 56. “In McDonald v. Wagner, supra, the court said: ‘Part of the consideration of this note was plainly illegal. An attorney cannot recover for legal services rendered by him both to plaintiff and defendant in the same suit. The plaintiff here discloses a case founded upon a cause of action which the law, from wise motives of public policy, forbids. The intentions of plaintiff were doubtless good; but a lawyer can, under no conceivable circumstances, recover for services rendered in the same suit to parties having opposing interests. ’ ,r

In the Strong case, supra, it further appeared that after the association had been restored to the management of its own officers, its board of directors, by a formal resolution, ratified all that had been done by Strong in behalf of the association in the litigation against it, and it was urged that such ratification, with full knowledge of the inconsistent employment undertaken by Strong’, amounted to a waiver of all defense on that score. The court held, however, that such a contract could not be ratified, nor such a defense waived, for the reason that it is against public policy to permit an attorney to accept any employment inconsistent with his duty to his client. As to the original contract in this case, the liability of appellants to appellee is not affected by this rule, for the second employment is inconsistent with the first only so far as the rights of John B. Lloyd are concerned. ' The second contract, however, stands upon a different footing. It is absolutely void under the principle announced in the Strong case, supra, and cannot be enforced by appellee. It follows that the court erred in admitting any evidence as to the value of services performed by appellee under that contract in and about the so-called “ John B. Lloyd matter. ’ ’

It is also urged that it is not shown, by a preponderance of the evidence, that appellants ever agreed to pay appellee $22,500 for her services in the litigation. This is a question of fact, and the verdict of the jury upon that question should not be disturbed unless it is clearly contrary to the weight of the evidence.

On this point, Judge Gilbert testified that after several interviews with Rosenthal, with appellants, with Porter and Sprout (John B. Lloyd’s attorneys), and with appellee, he told appellee that the matter of fees would be settled upon the basis that Rosenthal should be paid a fee of $32,500, plus his expense account amounting to about $1,100, and that as appellee had already received $2,500 on account of fees, she would be paid $30,000, which “would put her on an equal footing with him, and she said she would be satisfied with that.” He further testified: “Subsequently, when the three defendants were in my office, I told them what the arrangement was. No objection was made to it. I believe William B. Lloyd said that he did not like Rosenthal’s expense account. I told him * * * that we wanted to get the matter settled up, and the matter was trifling, and they ought not to bother about that. ’ ’ It also appears that Rosenthal then prepared a formal contract in eight parts, to be signed by all, reciting that $32,500 should be paid Rosenthal & Hamill, and $30,000 to appellee for their respective services, that the former should also be paid $1,119.35 expenses, and that each of the four Lloyds should pay $8,125 to Rosenthal & Hamill and $7,500 to appellee, in full for their services. This document was not signed, however. Judge Gilbert testified that he objected to some of the recitals in the draft as prepared by Rosenthal, that he stated his objections to appellants, who also objected to it, and that he then said it was unnecessary to sign any such paper, that “we all understood what the settlement was * * * and instead of drawing an elaborate contract to be signed by all of them, I would draw proper receipts and releases, and that was all that was said about it at that time;” and that he then prepared such receipts and releases.

William B. Lloyd testified that he refused to sign the draft of agreement prepared by Rosenthal because he thought the amount to be paid to appellee was “too much for her, even if her extra services in the John Bross Lloyd matter were considered,” that Judge Gilbert then said: “Well, it is not necessary to sign it, but we all understand the agreement, don’t we?”, to which he replied, “No, we do not.” He admitted, however, that previous to that time, Judge Gilbert had “asked us whether we would be willing to settle for $62,500, and Dr. Lloyd said yes, and I didn’t say anything.”

Dr. Henry D. Lloyd testified that he and Sprout went to see appellee, and ‘ ‘ said we would pay as high as $60,000, and I stated that I did not care how she and Mr. Rosenthal divided that amount;” that later, when appellee and appellants were discussing the matter in Judge Gilbert’s office, “Judge Gilbert said Rosenthal would accept $32,500 and Miss Miller would accept $30,000,” to which William B. Lloyd replied (after appellee, at his request, had stepped out of the room) that he did not want to settle with her on that basis. On cross-examination, however, Dr. Lloyd admitted that in October, 1909, he testified, upon the trial of a suit brought against appellants by Judge Gilbert, that the result of the negotiations carried on by Judge Gilbert in appellants’ behalf was, “that Sprout on his side, and we three brothers, agreed upon a total payment, on account of these fees, of $62,500, together with Rosenthal’s expense account, and that Sprout and Flint, as trustees, should pay one-quarter and we three brothers the other three-quarters;” and that in that suit, he had also testified that: “After the Bross estate was distributed, William Bross Lloyd, Demarest Lloyd and I talked over the question of fees. To the best of my knowledge and belief, we agreed among ourselves we would pay Miss Miller $22,500 in addition to what she would get from Sprout and Flint. We considered that the services were hardly worth that, but the idea was, rather than to have any trouble, inasmuch as we had agreed to that, we would pay it. ’ ’ Demarest Lloyd did not testify on this subject.

Appellants do not deny that Judge Gilbert was authorized by them to conduct all these negotiations on their behalf. It clearly appears that the agreement which resulted from such negotiations has been carried out in exact conformity with Judge Gilbert’s version thereof up to the point of the payment of appellee’s fees. The trustees of John B. Lloyd, who participated in the negotiations, paid appellee, as her share of the agreed fees, one-fourth, of $30,000. It is apparent, from this fact, that the representatives of John B. Lloyd understood that an agreement had been made that appellants should pay to appellee the remaining three-fourths of an agreed fee of $30,000. The fact, too, that appellant set apart $22,500 in the hands of William B. Lloyd, which sum, according to the evidence of Henry D. Lloyd, appellants agreed “among ourselves, but not with Miss Miller” to pay to appellee “for all her services in both the will and the John B. Lloyd matter, rather than have any controversy with Miss Miller,” is a significant circumstance. There is no evidence that any amount was ever mentioned during the negotiations, as to the value of her services in the John B. Lloyd matter. The fact, therefore, that appellants, after these negotiations, set apart the specific sum of $22,500 to be paid to her “rather than to have any controversy with her,” tends to prove that they understood that amount to be the amount agreed upon to be paid her, in settlement of that controversy. Under these circumstances, we do not think it can fairly be held that the verdict is clearly contrary to the weight of the evidence on this point.

The rule is also invoked that in transactions between attorney and client, the burden is on the attorney, not only to show that a contract was made as alleged, but also to show that the contract, as made, was fair and equitable, and was entered into by the client after being fully informed of his rights. Upon this principle it is insisted that it was incumbent upon appellee to prove that $22,500 was a reasonable fee and that appellants were fully advised as to what fees were reasonable and customary in such cases. The rule is hardly as broad as is claimed by appellants’ counsel. In Elmore v. Johnson, 143 Ill. 513, it is said: “Before the attorney undertakes the business of the client, he may contract with reference to his services, because no confidential relation then exists and the parties deal with each other at arm’s length. The same is true in regard to dealings which take place after the relation has been dissolved.” The rule is thus stated in a quotation given in that case from Lecatt v. Sallee, 3 Port. (Ala.) 115: “An agreement made by a client with his counsel after the latter has been employed in a particular business, by which the original contract is varied and greater compensation is secured to the counsel than may have been agreed upon, when he was first retained, is invalid and cannot be enforced.”

In this case it appears that at the beginning of the employment of appellee, an agreement was made by which the fees were made to depend, to some extent, upon success or failure and a maximum of $75,000 was agreed on for the joint services of Rosenthal and appellee in case of a successful result. It also appears that the settlement in question was agreed on after practically all of the work and services of Rosenthal and appellee in the will litigation had been performed. The original contract was fully executed on their part and nothing remained to be done but to agree upon the amount due and pay over the money. As above stated, the preliminary decree fixing the rights of the parties, with an order of reference merely as to the accounts of the trustee and his compensation and that of his solicitors, was entered in June, 3908. The master’s report as to those matters was filed March 30, 1909, and a final decree entered March 31, 1909. The draft of the settlement prepared by Rosenthal bears the date March 29,1909, and the receipts executed by Rosenthal & Hamill and by appellee for the money which was paid in pursuance of the settlement are dated April 1,1909. The total of the fees thus agreed upon, after the work was done, was not greater, but was less than the maximum fee agreed upon at the beginning of the employment. Appellants were not parties to the arrangement between Rosenthal and appellee as to a division of the fees when earned and were not concerned in that matter. It is clear, from the evidence, that appellants did not rely upon either appellee or Rosenthal for advice during the negotiations for a settlement of the question of fees. They dealt with each other upon that matter entirely at arm’s- length. Throughout the negotiations, appellants had the benefit of the independent advice and assistance of Judge Gilbert, and there is no intimation in the record that he did not fully perform his duty in that regard. We are of the opinion that the facts shown do not bring this case within the operation of the rule above quoted.

It is further urged that the joint obligation of the four Lloyd brothers was wholly released and discharged when appellee executed a formal written release to John B. Lloyd upon the payment by him to appellee of $7,500. The evidence shows, however, that as a part of the settlement, it was agreed that the total amount due to appellee was apportioned between the four brothers and the amounts due respectively from John B. Lloyd and from appellants were agreed on, and that appellee acquiesced in that agreement. By this agreement, the former joint liability was, by consent, changed to a liability on the part of John B. Lloyd to pay one-fourth of the total sum, and on the part of appellants to pay three-fourths thereof. But even if this were not true, the release to J ohn B. Lloyd cannot be given the effect claimed, for it must be read and construed in the light of the circumstances under which it was given. “A release, like every other written instrument, must be so construed as to carry out the intention of the parties. This intention is to be sought in the language of thé instrument itself when read in the light of the circumstances which surrounded the transaction. * * * If A receives a contract or other instrument from B, knowing that it was designed by B to bear a particular interpretation and to be used only for a specific purpose, then A has no right to give it a different interpretation, or to use it for a different purpose, though such new purpose may be consistent with the language of the instrument. To permit A to pervert the instrument from the purpose for which he knew it was intended by B, would be to permit him to commit a fraud. This rule is founded upon the plainest dictates of natural justice. ’ ’ Parmalee v. Lawrence, 44 Ill. 405, 410.

In the opinion originally filed in this case, the judgment of the circuit court was reversed and the cause remanded on account of the error of the court in admitting evidence of the value of services performed by appellee in the John B. Lloyd matter. On petition for rehearing it was suggested that this error could be cured by a remittitur of $10,000, and we were asked to give appellee the opportunity of filing such a remittitur. In the briefs originally filed by appellee's counsel, it was insisted that the jury may have allowed interest on the item of $22,500, in which case the amount allowed for services in the John B. Lloyd matter would not exceed $8,550. Appellants’ counsel replied to this by pointing out that no instructions were given to the jury regarding the allowance of interest, which seems to be true. In the petition for rehearing, appellee’s counsel now states that he ‘‘believes it is clear beyond a reasonable doubt” that the jury allowed $10,000 for services in the John B. Lloyd matter. We have also reached the same conclusion and are disposed to give appellee the opportunity she seeks, especially in view of the large expense and time involved in a new trial. Therefore, the judgment heretofore entered herein will be vacated, the original opinion recalled and a new judgment will be entered as follows: If, within ten days from the date of the filing of this opinion, appellee shall file herein a remittitur of $10,000, the judgment of the circuit court will be affirmed for $22,500; otherwise, the judgment will be reversed and the cause remanded for a new trial.

Affirmed on remittitur.


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    Charles M. Bredhoff and Fred L. Hilmer, Appellees, v. Louis Lepman and Frank M. Heggie, Appellants.
    Gen. No. 17,521.
    1. Appeals and errors—where trial is by the court. Where an action is tried by tho court and no propositions of law are presented, the only questions to be considered on appeal are whether the trial court erred in any ruling on the admissibility of evidence as to which an exception was preserved and whether the evidence supports the finding and judgment.
    2. Practice—under section 54. Under section 54 of the Practice Act, where defendants are sued as partners and file no plea denying the partnership or the alleged partnership liability, the failure to file such a plea relieves plaintiffs of the necessity of proving “in the first instance” that defendants are liable as partners.
    3. Practice—burden of proving partnership. Where defendants are sued as partners, in the absence of a plea denying the partnership, the burden of proving that no partnership existed and that they are not liable as partners is assumed by defendants.
    4. Partnership—meaning of word “firm.” The word “firm” in its common acceptation implies a partnership.
    5. Partnership—where defendants are liable as partners. In an action for damages where defendants refused to pay a sight draft and take a car load of butter purchased of plaintiffs, evidence that defendants did business as partners for several years and did not notify plaintiffs of any change in the firm, is sufficient to establish the partnership, there being no1 denial of its existence in the pleadings.
    6. Partnership—notice of dissolution or change. In order to escape liability upon contracts made in the firm name after a dissolution or change in the partnership, it is necessary that a notice of some sort be given to those likely to be affected thereby.
    Appeal from the Superior Court of Cook county; the Hon. Albert C. Barnes, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1911.
    Affirmed.
    Opinion filed May 29, 1913.
    Frank Schoenfelb, for appellants.
    J. E. Ingram, for appellees; Herman Frank, of counsel.
   Mr. Justice Fitch

delivered the opinion of the court.

Appellees, who are in business in San Francisco, sued appellants as partners, doing business in Chicago, for damages accruing from the sale of a carload of butter, and recovered a judgment upon a trial before the court without a jury.

It appears from the evidence that in April, 1902, appellant, Heggie, telegraphed to appellees: “Wire lowest fresh creamery tubs, how many, how packed, when can ship:” Appellees replied: “Offer car fresh creamery sixty pound tubs, twenty-two cents, Monday shipment, acceptance here, answer quick.” Heggie telegraphed the same day: “Accept 300 tubs fresh creamery, sixty pounds, Monday shipment, route Union Pacific Northwestern to Chicago, iced in transit, 22 cents, Frisco. Give good weights, long lines as possible, fine quality. Am taking long chances of profit. Confirm sale by wire.” To this appellees wired the next day: “Will ship car Monday as per your wire.” Heggie then telegraphed: “If minimum 24,000, ship three-fifty, if 20,000 ship three hundred.” Appellees thereupon packed and shipped over the designated route a carload of 350 tubs of “strictly fresh creamery goods,” selected from the largest creameries (that being the meaning of the term “long lines”), weight 24,000 pounds, iced in transit. A bill of lading for this shipment, made to the order of appellees at Chicago, “notify Lepman & Heggie,” was attached to a sight draft on appellants for $4,645.50, payable to the order of .a San Francisco bank and forwarded by the latter to its Chicago correspondent. An invoice was also sent by mail to appellants with a letter stating: “We are drawing sight draft on you, which kindly honor when presented. ’ ’ Appellants refused to pay the draft when presented, on the ground that the railroad company declined to permit an examination of the car until the draft was paid. Appellants wired appellees for such permission, but appellees wired back: “Mr. Heggie bought this car acceptance San Francisco. Please pay draft as per sale.” Appellants refused to do so, and the carload of butter was then sold by another Chicago commission house in the open market at prices ranging from 20 1-4 cents to 21 cents a pound. After deducting freight and storage charges, the net amount thus realized was remitted to appellees, who sued appellants for the balance of the contract price with interest. The declaration contained several special counts and the common counts. Appellants filed the general issue.

No propositions of law were presented to be marked “held” or “refused.” The only questions, therefore, open to our consideration are whether the trial court erred in any ruling on the admissibility of evidence as to which an exception was preserved, and whether the evidence supports the finding and judgment. Armstrong S Co. v. Barrett, 46 Ill. App. 193; Flood v. Leonard, 44 Ill. App. 113; Mullin v. Johnson, 98 Ill. App. 621; Crean v. Hourigan, 158 Ill. 301; City of Alton v. Foster, 207 Ill. 150; Jacobson v. Liverpool & L. & G. Ins. Co., 231 Ill. 61; Mutual Protective League v. McKee, 223 Ill. 364.

The only alleged error concerning the admissibility of evidence is in admitting in evidence a sales bill, or statement of account, purporting to show the prices obtained and the gross and net amounts realized from the resale of the butter. This evidence was only cumulative. The essential facts tabulated in the bill, and the fact that a check for the amount of the net balance had been received by appellees, were already in evidence. The error, if any, in admitting the bill in evidence, was therefore harmless.

The main defense of appellants was that they were not liable as partners. They filed no plea, however, denying the partnership, or the alleged partnership liability. The failure to file such a plea relieved appellees of the necessity of proving, “in the first instance, ’ ’ that appellants were liable as partners: Practice Act, sec. 54. In the absence of such a plea, the burden of proving that no partnership existed and that they were not liable as partners, was assumed by appellants. Bensley v. Brockway, 27 Ill. App. 410; Readey v. Schwanzenbach, 48 Ill. App. 348. Appellants testified that at the time of the transaction in question (April, 1902) they were not partners, that a corporation named “Lepman & Heggie” was formed in April, 1901, with appellant, Lepman, as president and treasurer, and appellant, Heggie, as vice president and secretary, and that they acted on behalf of that corporation in buying the carload of butter from appellees. One of the appellees testified that he “had known Lepman & Heggie as a firm, for the last ten years. ” The word “firm,” in its common acceptation, implies a partnership. It is frequently used in that sense by almost all text writers. See, especially, the article on “Partnership” in 30 Cyc. See also McCosker v. Banks, 84 Md. 292. This evidence was given in 1906. Hence the “firm” existed as early as 1896, six years prior to the transaction in question. Appellants did not deny that prior to the formation of the corporation they had been doing business as partners under the same name, and they did not attempt to show that any notice, either actual or constructive, of the dissolution of the “firm” of “Lepman & Heggie” was ever given to the trade or the public generally, or to appellees in particular. It is a familiar principle of the law relating to commercial partnerships, that in order to escape liability upon contracts' made in the firm name after a dissolution or change in the partnership, it is necessary that a notice of some sort be given to those likely to he affected thereby. As to those with whom the firm has had dealings, actual notice is required; as to others, a notice by publication is sufficient. Chicago Trust & Savings Bank v. Kinnare, 174 Ill. 358; Hodgen v. Kief, 63 Ill. 146; Southern v. Grim, 67 Ill. 106; Holtgreve v. Wintker, 85 Ill. 470; Meyer v. Krohn, 114 Ill. 574. It appears from the evidence that the letter heads used by the corporation at the time of the" transaction in question contain merely the words “Lepman & Heggie, Commission Merchants,” without anything to indicate that this was the name of a corporation. It is a fair inference, at least, from all the evidence, that to all outward appearances, the business of appellants was conducted in precisely the same manner, and by precisely the same persons, after as before the incorporation. Upon the whole record, we think the proof was sufficient to establish the liability of appellants as partners in view of- the nature of the pleadings.

The difference between the amount realized upon the resale and the contract price was $972.49. Interest on this amount from April, 1902, to the time of the finding and judgment, amounts to more than the difference between $972.49, and the amount of the judgment, $1,176.79. Appellants therefore, have no just cause of complaint on the score of the amount of damages assessed.

The judgment of the Superior Court will be affirmed.

Affirmed.


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    Hans G. Robertson and Edward Robertson, Trading as Robertson Bros. Garage, Defendants in Error, v. John M. Carlson, Plaintiff in Error.
    Gen. No. 18,110.
    1. Evidence—what time boolcs are admissible. In an action for work and materials furnished in repairing an automobile, time books are admissible which are properly identified by the workmen as containing entries made by such workmen in the ordinary course of business contemporaneously with the doing of the work for which the charges were made.
    2. Evidence—when error to admit time books. Under the statute relating to testimony concerning book accounts made "by a deceased person or by a disinterested person, a non-resident of the state at the time of the trial,” it is necessary to make books kept by an absent workman admissible that there should be proof that the entries therein were made "by a deceased person,” etc., and it is error to admit time books kept by workmen where there is no competent evidence that the entries were made by persons who were either dead or nonresidents of the state at the time of the trial.
    Error to the Municipal Court of Chicago; the Hon. Thomas E. Scully, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1912.
    Reversed and remanded.
    Opinion filed May 29, 1913.
    Walter S. Hull, for plaintiff in error.
    E. Wilson More and Fred B. IIovey, for defendants in error.
   Mr. Justice Fitch

delivered the opinion of the court.

By this writ of error the defendant seeks to have reversed a judgment against him in the Municipal Court for $104.70 for work, labor and material furnished by defendants in error in repairing an automobile. It appears that defendant’s automobile broke down near the garage of defendants in error. Plans Eobertson was requested to look at it and found the crank case was broken and that the “rocker arm” had become loose. Defendant asked him if he could repair it, and upon receiving a reply in the affirmative, the machine was towed to plaintiffs ’ garage and left there for repairs. One of the witnesses testified that in order to make the repairs it was necessary to-take the engine apart and have the crank case taken out ana welded. Plaintiffs found they could not weld the crank case themselves and sent it to a welding company. Considerable delay resulted, and when it was returned to plaintiffs it did not fit perfectly, and a number of the engine parts had to be filed and readjusted, and the machine put together in running order. To prove the time spent in doing this, the workmen’s time books were offered in evidence. They were objected to by defendant on the ground that no proper foundation had been laid, and this is the chief objection urged.

Some of the time books were properly identified by the workmen themselves as containing original entries made by them in the ordinary course of business contemporaneously with the doing of the work for which the charges were made. These books were properly admitted on the authority^ House v. Beak, 141 Ill. 290, 296. The remainder were admitted in evidence after the foreman had testified that the books were in the handwriting of workmen who were no longer in plaintiffs’ employ and whom he could not find, that he had made inquiries at the last known place of residence or at the last working places of these workmen, and that “the only thing he found was—no one knows where they are, most of them are out of town.” As to the workman Reed, there is some evidence that he was in California at the time of the trial.' Under section 3 of chapter 51 of the' Revised Statutes it was necessary, in order to make the books kept by the absent workmen admissible, that there should be proof that the entries therein were made “by a deceased person, or by a disinterested person, a non-resident of the state at the time of the trial.” We find no competent evidence in the record to the effect that the entries in the time books kept by Peterson, Price, Forslund and Rachan were made by persons who were either dead or non-residents of the state at the time of the trial. It was, therefore, error to admit such books. The total number of hours included in the entries made by those workmen is sixty-six hours, the charge for which, at sixty cents an hour, amounts to $39.60. The witness Siddons, another workman, admitted that eight hours of his time, out of the nine and one-half hours charged against defendant, were employed in doing work having no connection with the repairs ordered, and the witness Hepburn admitted a similar overcharge of twelve hours. These items, at the same rate, amount to $12. Subtracting the sum of these two items from the amount of the judgment leaves $53.10 as the amount which is supported by a preponderance of competent evidence.

If, therefore, the defendants in error will remit within ten days the sum of $51.60, the judgment for the remainder, $53.10, will be affirmed; otherwise the cause will be reversed and remanded for a new trial. Affirmed on remittitur; otherwise reversed and remanded.

Reversed and remanded, June 9, 1913.


text:
    Ben Abrahamson, Defendant in Error, v. Hartford Fire Insurance Company, Plaintiff in Error.
    Gen. No. 18,130.
    1. -Insurance—knowledge of agent. Notice to an agent of an insurance company of facts material to the risk at the time of the application for insurance is notice to the company and will prevent it from insisting on a forfeiture for causes within the knowledge of the agent, though there are conditions to the contrary in the policy.
    2. Insurance—when company estopped from claiming that policy is not binding contract. Where an insurance company issues a policy and places it in the hands of a street broker for delivery and he delivers it to the insured, who pays the premium to him in good faith under the belief that he is an agent of the company, the company is estopped from claiming that the policy is not a binding contract of insurance.
    3. Insurance—when question of fact whether person was an agent for company or for insured. Whether a person who does not solicit an owner of an automobile to insure it is an agent for the company in the transaction of obtaining a, policy on such automobile or is an agent for the insured is a' question of fact, though the policy provides that no person shall be deemed an agent of the company unless he is authorized in writing and such person is not so authorized, where he asks a representative of the company for a rate on the automobile and on being informed as to the rate is told by the insured to insure the car and a policy is issued by the company and delivered to said person, who delivers it to the insured.
    Error to the Municipal Court of Chicago; the Hon. Feed C. Hill, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1912.
    Affirmed.
    Opinion filed May 29, 1913.
    Barger & Hicks, for plaintiff in error.
    William J. Dillon, for defendant in error.
   Mr. Justice Fitch

delivered the opinion of the court.

The defendant in error sued the plaintiff in error in the Municipal Court to recover the amount of the loss by fire of a motor delivery car, which had been insured by plaintiff in error. The defense set up by the affidavit of merits was, that contrary to the terms and conditions of the insurance policy, the plaintiff’s motor car was incumbered by a chattel mortgage at the time the policy was issued, of which fact the defendant was not informed; to which the plaintiff replied that the defendant’s agent was informed of the existence of the chattel mortgage and thereby defendant waived the provision of the policy which makes the policy void if the property insured be mortgaged. Upon a trial before a jury, plaintiff recovered a verdict of $642.50, and after a remittitur of $142.50 was entered, judgment was rendered against defendant for $500. This writ of error is sued out to reverse that judgment.

There is no dispute as to the amount of the judgment, but the parties renew in this court the same contentions, substantially, they made in the trial court. The insurance policy provides that the policy shall be void “if the subject of this insurance be or become encumbered by any lien or mortgage;” that “no person shall be deemed an agent of this Company unless such person is authorized in writing as such agent by this Company;” and that “no officer, agent or other representative of this Company, shall have power to waive any provision or condition of this policy, unless such waiver, if any, shall be written upon or attached hereto. ’ '

It appears from the evidence that when plaintiff bought his delivery car he paid part of the purchase price in cash and gave a chattel mortgage upon the car for the remainder; that about a week later, he met one H. A. Jacobs, a clerk or employe of N. Jacobs, who was a special agent for the Royal Insurance Company, and requested said H. A. Jacobs to insure the car; that Jacobs asked plaintiff how much the car was worth, to which plaintiff replied the car had cost him around $1,500; that Jacobs then asked if the car was wholly paid for; that plaintiff replied that he had paid down about half and that the balance was secured by chattel mortgage notes; that knowing that the Royal Insurance Company did not write automobile insurance but the defendant company did insure automobiles, Jacobs called up the office of defendant by telephone and asked the man in charge of the office for “a rate on that automobile,” which was given him; that the next day, plaintiff again called at Jacobs’ place of business; that Jacobs told him what the rate was and plaintiff told Jacobs “to insure the car,” whereupon, Jacobs “telephoned to the Hartford for a policy;” that a policy was issued by defendant and delivered to Jacobs, who, in turn, delivered it' to the plaintiff, who paid the premium to Jacobs. There is no claim that defendant did not receive the premium so paid. Jacobs testified that although he was an insurance solicitor, yet “with the plaintiff in this case the business was unsolicited. ’ ’

The law is well settled in this state that notice to an agent of an insurance company, at the time of the application for insurance, of facts material to the risk, is notice to the insurer, and will prevent it from insisting upon a forfeiture for causes within the knowledge of the agent (Phenix Ins. Co. v. Hart, 149 Ill. 513, 522), notwithstanding there be conditions or stipulations to the contrary in the insurance policy. Union Ins. Co. v. Chipp, 93 Ill. 96; Commercial Ins. Co. v. Ives, 56 Ill. 402, 407. If an insurance company issues a policy of insurance and places the same in the hands of a street broker for delivery, and the latter delivers the same to the insured, who pays the premium therefor to the broker in good faith, under the belief that such broker was the agent of the company, the company is estopped from thereafter claiming that the policy is not a valid and binding contract of insurance. Lycoming Fire Ins. Co. v. Ward, 90 Ill. 545, 549; Commercial Ins. Co. v. Ives, supra; Union Ins. Co. v. Chipp, supra. Whether H. A. Jacobs was an agent for the defendant, or for the insured, was a question of fact. In Lumberman’s Mutual Ins. Co. v. Bell, 166 Ill. 400, an instruction was given by the trial court to the effect that whether certain brokers were the agents of an insurance company “in the transaction of obtaining a policy is a question of fact, to be determined from all the evidence bearing on that subject, and not merely from the statement in the policy to the effect that the brokers were the agents of the assured. ’ ’ This instruction was approved by the Supreme Court as a correct statement of the law applicable to cases like the present case. “The question as to whose agents they really were is open to inquiry, and may be shown by parol evidence, notwithstanding the statement in the policy. Newark Fire Ins. Co. v. Sammons, 110 Ill. 166; Lycoming Fire Ins. Co. v. Ward, 90 Ill. 545; Union Ins. Co. v. Chipp, 93 Ill. 96.”

In this case, the trial court instructed the jury in accordance with the principles above stated, and thereby properly left to the jury the question whether Jacobs, at the time the insurance policy was written, was acting as agent for the plaintiff or for the defendant, and also properly left to the jury the question whether the company, through Jacobs as its agent, had notice, ..at that time, of the existence of the chattel mortgage; and after an examination of the evidence in the record, we are not able to say that the verdict is manifestly contrary to the evidence.

Two minor errors, in relation to the admission of certain evidence, are also claimed, but we think neither of them is well assigned.

The judgment of the Municipal Court will be affirmed.

Affirmed.


text:
    Benjamin Glassman, Defendant in Error, v. Mary Behr, Plaintiff in Error.
    Gen. No. 18,177.
    1. Appeals and errors—bonds. In an action against the surety on a stay-of-execution bond, where such bond is signed by the surety and states that a judgment was entered against the principal in the bond in the municipal court on a certain day for a certain amount and is expressly conditioned for the payment of the judgment in case it should be affirmed, the surety is estopped to urge that the judgment was no judgment, but was a jumble of abbreviated hieroglyphics.
    2. Judgment—when not uncertain. In an action against the principal and surety on a stay-of-exeeution bond, a judgment rendered against “the defendant” is not uncertain where only the surety was served and appeared, since the word defendant can only be applied to, the defendant in court.
    Error to the Municipal Court of Chicago; the Hon. Hugh R. Stewart, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1912.
    Affirmed.
    Opinion filed May 29, 1913.
    B. M. Shaffner, for plaintiff in error.
    Saltiel & Rossen, for defendant in error.
   Mr. Justice Fitch

delivered the opinion of the court.

Defendant in error recovered a judgment in the Municipal Court against plaintiff in error in a suit upon a stay-of-execution bond signed by Benjamin Abramovitz, as principal, and by plaintiff in error, as surety. Both principal and surety were sued, but only the surety was served with process. She entered her appearance, and upon a trial before the court without a jury, the bond, the order of affirmance entered in this court, the bill of costs, and the “half-sheets” (or record) of the Municipal Court, purporting to show, in abbreviated form, the judgment against Abramovitz, were offered in evidence without objection. The plaintiff then rested, and no defense or motion of any kind being interposed so far as the record shows, a judgment was entered against the “defendant.”

Two alleged errors are discussed in the briefs. It is urged that the original judgment was no judgment, but a meaningless jumble of abbreviated hieroglyphics, like that before the court in Stein v. Meyers, 253 Ill. 199. The point is not available to plaintiff in error, even if true. The principle of estoppel is applicable. In the bond signed by her, it is recited that a judgment was entered against the principal in the bond on a given day in the Municipal Court for a stated amount, and the bond is expressly conditioned for the payment of that judgment in case it should be affirmed. Her signature to the bond is “a solemn admission that there was such a judgment,” and she “could not afterwards deny what she thus asserted to be true.” McCarthy v. Chimney Construction Co., 219 Ill. 616, 623.

It is also urged that the judgment in this case is erroneous because the suit was brought against two and judgment rendered only against “the defendant.” It is said this renders the judgment uncertain. The record of the judgment recites that “thereupon, comes the plaintiff and the said defendant, Mary Behr, to this cause, and thereupon this cause comes on in regular course for trial,” etc. Then follow the finding and judgment against “the defendant.” The word “defendant” can only be applied to the defendant in court, and hence in this there was no error. Stephens v. Sweeney, 7 Ill. 375.

The judgment of the Muncipal Court will be affirmed.

Affirmed.


text:
    Thomas M. Hunter, Bailiff, for use of Charles R. Ernst, Defendant in Error, v. Commercial Security Company et al., Plaintiffs in Error.
    Gen. No. 18,226.
    1. Replevin—evidence of breach of bond. In an action on a replevin bond, the evidence is sufficient prima facie to warrant a finding that there was a breach of the condition to prosecute the replevin action with effect, where the affidavit and writ in the replevin action, the appearance of defendant therein, the writ of retorno habendo with its endorsements showing that the property replevied was returned, and a docket entry of the replevin judgment are introduced, even though the docket entry does not amount td a judgment.
    2. Replevin—liability on bond. Where a plaintiff in replevin fails to prosecute his action with effect, the obligors on the replevin bond are liable for at least nominal damages, costs and reasonable attorney’s fees though the property is returned.
    Error to the Municipal Court of Chicago: the Hon. Rufus E. Robinson, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1912.
    Affirmed.
    Opinion filed May 29, 1913.
    Kruse & Peden and R„ C. Merrick, for plaintiff in error.
    No appearance for defendant in error.
   Mr. Justice Fitch

delivered the opinion of the court.

Defendant in error recovered a judgment for $55.50 in the Municipal Court, in a suit upon a replevin bond. The record shows that this amount was assessed by the court as damages for a breach of that condition of the bond which provides that the principal obligor shall prosecute its replevin suit with effect, and that the items allowed consist of $50 for attorney’s fees, and $5.50 costs. To prove such breach, defendant in error offered in evidence the affidavit and writ in the replevin suit, the appearance of the defendant therein, the writ of retorno habendo with its endorsements, showing that the property replevied was returned to the plaintiff therein, and a docket entry in the following-form: “Commercial Security Company v. Charles R. Ernst. Date, May 2, 1911; Judge, Eberhardt; orders entered, Tr. by Ct. Plff. takes non-suit. Judg. for deft, in repn. reto. hab. etc.” All these documents were admitted in evidence without objection, and the stenographic report of the trial shows no motion to exclude the evidence thus admitted, nor to find for the defendant, either at the close of plaintiff’s case or of all the evidence. Hence, even if the docket entry above quoted does not amount to a judgment under the ruling in Stein v. Meyers, 253 Ill. 199, still, we think the other evidence is sufficient, prima facie at least, to warrant the court in finding that there had been a breach of the condition to prosecute the suit with effect. The evidence offered did not purport to be a complete record of the replevin suit. The retorno recites that in the replevin suit, ‘ ‘ such proceedings were had * * * that the right of the said property was adjudged to be in the said defendant, and a return thereof awarded to him,” which, of course, could not be true if the plaintiff in the replevin suit had prosecuted its suit with effect. The oral testimony, as well as the return to the writ of retorno, shows, without dispute, that the property replevied was in fact returned to Ernst after a trial of the replevin suit. For aught that appears, a formal judgment may have been entered from the clerk’s docket entry as a minute. Under these circumstances, we think the objection to the evidence comes too late when first made in this court.

When a plaintiff in replevin fails to prosecute his suit with effect, the obligors on the replevin bond are liable for at least nominal damages, costs and reasonable attorney’s fees, even though the property be returned. Gilbert v. Sprague, 196 Ill. 444, 453; Humphrey v. Taggart, 38 Ill. 228.

The merits of the case were very fully tried. The court held that the Commercial Security Company, through its authorized agent, sold the piano in question to Ernst, the defendant in the replevin suit, and received in part payment for the same, a smaller piano at an agreed value. We think this finding is supported by a preponderance of the evidence.

The judgment will be affirmed.

Affirmed.