text:
    Edna Morgan Dean, Appellant, v. The Northern Trust Company, Trustee, et al., Appellees.
    Gen. No. 19,647.
    1. Wills, § 435

      —when allowance to complainant of attorneys’ fees on hill to construe a will improper. Where on a bill filed to construe a will the chancellor allowed the complainant a certain amount as attorneys’ fees, held that the provisions of the will were not ambiguous and uncertain so as to justify an allowance of attorneys’ fees.
    2. Wills, § 436

      -—lohen finding that wife of heir was living'harmoniously with him at time of his death sustained hy the evidence. On bill to construe a will providing that in case of death of one of the heirs the widow of such heir should become entitled to a certain amount of a trust fund in case she was living harmoniously with him at the time of his death, a finding that they were so living together held sustained by the evidence, there being evidence that they lived together for three months and no evidence in the record tending to show that they ever ceased to live together or that they ever lived together otherwise than harmoniously.
    Appeal from the Superior Court of Cook county; the Hon. M. L. McKinley, Judge, presiding. Certiorari denied by Supreme Court (making opinion final).
    Heard in this court at the March term, 1913.
    Decree modified and affirmed.
    Opinion filed May 4, 1914.

      Daniel W. Scanlan, Patrick H. O’Donnell and Elijah N. Zoline, for appellant.
    Judah, Willard, Wolf & Reichmann, for appellee Northern Trust Company.
    Alvin W. Wise, for appellees Blanche Isabelle Blackman et al.

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

   Mr. Presiding Justice Baker

delivered the opinion of the court.

John E. Dean died testate November 10, 1908, leaving four daughters and a son, Morris Rowland Dean, his only heirs at law. The son died January 12, 1912, leaving appellant, Edna Morgan Dean, his widow, but no issue. The testator also left a widow. By a compromise agreement between the widow and the children of the testator she released all claim to her husband’s estate and the controversy here is wholly between Edna Morgan Dean and the sisters of her deceased husband.

She filed a bill in the Superior Court April 8, 1912, against the Northern Trust Company as trustee and the sisters of her husband for the construction of the will of John E. Dean. November 1, 1912, she filed her amended bill for the same purpose. Both the will and the amended bill are divided into numbered paragraphs. The only portions of the will involved in this" litigation are paragraph 4 and trust section C of paragraph 5, which are as follows:

“Paragraph 4. If, after making the payments and gifts above in paragraphs 1, 2 and 3 provided for, the rest and remainder of my estate, of all kinds, should, for any reason now unforeseen, not amount in value to the sum of three hundred thousand dollars ($300,000) then and in that case I give, devise and bequeath to my five (5) dear children, to-wit, Morris Rowland Dean, Blanche Isabelle Blackman (formerly Blanche Isabelle Dean), Grace F. D. Wood (formerly the wife of John E. Wood), Marian Dean and Evelyn Dean, for their own use and behoof forever, in equal parts, share and share alike, all of the said rest and remainder of my property and estate, of all kinds whatsoever; Provided, however, that if at the time of my death one or more of my above named daughters shall have already departed this life, then the share or shares of the daughters so deceased shall forthwith go and be turned over to her or their respective devisees in accordance with her or their respective wills, if she or they shall have left a last will or wills, and in any case where there be no such last will, then to her or their respective heirs-at-law under the Statute of Descents of the State of Illinois; and if at the time of my death my said son, Morris, shall already have departed this life, his share shall forthwith go and be turned over to his heirs-at-law under said Statute of Descents.

Paragraph 5. If my estate and property, after making the payments and gifts above in paragraphs 1, 2 and 3 above provided for, does, as I believe it certainly will, amount in value to more than the sum of three hundred thousand dollars ($300,000) then and in that case I give, devise and bequeath to the Northern Trust Company of Chicago, as trustee, in trust, all of my property and estate, of all kinds whatsoever, remaining after making the payments and gifts above in paragraphs 1, 2 and 3 provided for, for and upon the following trusts, terms and purposes, to-wit: * * *

Trust Section C. One-fifth (1/5) of all the trust estate and property remaining after the provision for my wife, set forth above in trust section B shall be held and applied subject to the provisions and terms and conditions below in this Section C contained,' to and for the use and benefit of my said son, Morris; that is to say, all the net income from said one-fifth (1/5) shall be paid over to him upon his written orders or receipts at quarter-yearly periods during his life and until his death, and in addition to said net income the trustee shall, beginning fifteen (15) months from my death, if he be unmarried, pay him, in quarter-yearly installments, a sufficient sum from the principal of his share to make his annual income up to eight thousand dollars ($8,000) per year, and if he be married, then a sufficient sum from the principal to make his annual receipt from the trustee equal to ten thousand dollars ($10,000); also if at any time my said son shall desire to go into business for himself, and if his health and habits at such time and the proposed business are, in the judgment of the trustee, such as to make such proposed venture reasonable and desirable, then the trustee may pay over to him from the principal such sum, up to but not exceeding twenty thousand dollars ($20,000) as he may request for the proposed business period, such advance to be made only once and not repeated. Immediately upon the death of my said son all of his share under this trust section C then remaining in the hands of the trustee shall be turned over, go and be distributed to his lawful issue, taking per stirpes, and if there be no such issue, then to the persons who would at such time be my heirs-at-law under the statutes of descent of the State of Illinois: Provided, that if my said son leave a widow living harmoniously with him at the time of his death and no issue, then such widow shall have and receive the said remainder of his said share up to, but not exceeding, the sum of ten thousand dollars ($10,000) and the balance, if any, or all, if he leaves no widow and no issue, shall go to my heirs, as aforesaid.”

Paragraph 1 of the amended bill alleged that the estate of John E. Dean amounted to more than'$1,300,-000, and that $879,150.43 was paid to the trustee to be held on the trust created by the will.

Paragraph 4 of the amended bill alleged that Morris Rowland Dean was married to complainant in March, 1909, and that they lived together harmoniously as husband and wife from that time until his death, at the age of thirty-five, in January, 1912; that he left surviving him no issue, but left complainant, his widow, and his four sisters, surviving; that he did not in his lifetime draw the $20,000 authorized by the will in case of his going into business, and that complainant has received no part of the $10,000 bequeathed her by the will. Paragraph 5 of the bill alleges, in substance, that under trust section C, in addition to the income from one-fifth of the estate in the hands of the trustee, Morris Rowland Dean was authorized to draw upon the principal of the fund, to be used by him as his absolute property; that it was the intent of the testator that the entire fund should be used by his son, and that he did not intend to create or leave any certain sum for any person as a gift over, and that said principal sum had been greatly depleted in payments made therefrom to Morris Rowland Dean. The bill alleges that the gift over is so uncertain as to the subject that it is void, and said one-fifth of the estate vested' absolutely in Morris Rowland Dean in his lifetime and descended to his heirs upon his death. The bill further alleges that it is manifest from paragraph 4 of the will that the testator intended to vest in his son, absolutely and without reservation or limitation, one-fifth of his estate, and that the division and distribution to the beneficiaries was postponed for the convenience and benefit of the estate or fund and not for reasons personal to said Morris Rowland Dean. Other paragraphs of the bill alleged that the devise was of personal property and not of real estate, and that after the death of Morris Rowland Dean the complainant claimed that as his widow and heir at law she was entitled to the entire one-fifth part or share set apart under trust section C, and that the sisters of Morris Rowland Dean claimed the same as their sole and separate property under the construction placed by them upon said section of the will, and that the trustee had neglected and refused to pay complainant said fund or any part thereof. The bill prayed that the will be construed, the estate and interest of Morris Rowland Dean and the rights and interests of complainant in one-fifth of the principal in the hands of the trustee be defined and determined. The demurrers were sustained to the amended bill, except the part thereof in which complainant claimed to be entitled to $10,000 under trust section O. The defendants demurred to all of the amended bill except paragraph 4 and answered that paragraph denying that complainant was living harmoniously with her husband at the time of his death. The court sustained the demurrers to so much of the bill as was demurred to and dismissed the same. The court found and declared that there was no ambiguity or uncertainty in the meaning’ of the language of the will of John E. Dean except that there was some ambiguity in that part of the will designated ‘ ‘ Trust Section C,” providing that the widow of Morris Rowland Dean should have from the estate $10,000 if she was living harmoniously with her husband at his death. The decree ordered the trustee to pay $10,000 to complainant as the widow of Morris Rowland Dean; found that $1,500 was a reasonable fee for the services rendered by complainant’s solicitors in and about the construction of that portion of the will requiring construction, as stated in the decree, and ordered the trustee to pay to complainant for her solicitors’ fees the sum of $1,500. From this decree the complainant and the trustee appealed to the Supreme Court and that court transferred the case to this court. Dean v. Northern Trust Co., 259 Ill. 148.

The provisions of paragraph 4 of the will as to the disposition of the estate in case the remainder of the estate after making certain payments and gifts did not amount in value to $300,000 may be disregarded. The contingency so provided for never happened, for the bill averred that the estate amounted to more than $1,300,000 and that nearly $900,000 was paid over to the trustee. The provisions of paragraph 4 never became operative and the rights of the parties are not affected by any of its provisions.

The language of the first clause of paragraph 5 of the will is clear; the estate amounted to more than $300,000 and the property of the testator remaining after the payments and gifts mentioned in the will passed to the trustee on the trusts declared and created by the will. Under trust section C one-fifth of the trust estate bequeathed and devised to the trustee was to be held and applied by it to and for the use and benefit of Morris Rowland Dean as follows:

(a) All the net income from said one-fifth share was to be paid over to him upon his written orders at quarterly periods during his life and until his death.

(b) In addition, the trustee was, beginning fifteen months after the death of the testator, if necessary, to make a sum sufficient from the principal of the one-fifth share in question, which, when added to the net income therefrom, should make his total income or annuity $8,000 or $10,000 per year, as the case might be.

(c) If at any time Morris Rowland Dean should desire to go into business for himself and his health and habits at such time and the proposed business were, in the judgment of the trustee, such as to make such proposed venture reasonable and desirable, then the trustee was permitted to pay over to him from the principal of said one-fifth share a sum up to but not exceeding $20,000, as he might request for the proposed business, such payment to be made only once and not repeated.

All that Morris Rowland Dean was to get out of his father’s estate was that which the trustee was directed by trust section C to pay to him. The remainder of that section provides what shall be done at the death of Morris Rowland Dean with the one-fifth of the estate of the testator which the trustee was to hold and apply to and for his use and benefit in his lifetime. It provides that on the death of Morris Rowland Dean his share, under trust section C, remaining in the hands of the trustee shall be turned over, go and be distributed as follows:

(a) If he left lawful issue at the time of his death, it was to go and be distributed to such issue, taking per stirpes.

(b) If he left no such issue, but left a widow, living harmoniously with him at the time of his death, then the widow was to have and receive a sum not exceeding $10,000 out of said share, and the balance was to go and be distributed to the persons who, at the time of the death of Morris Rowland Dean, would be the heirs at'law, under the statutes of descent of the State of Illinois, of John E. Dean, deceased, the testator.

(c) If he died leaving no widow and no issue, then all of said one-fifth share remaining in the hands of the trustee was to go and be distributed to said heirs at law as aforesaid.

There is in the provisions of trust section C in question no ambiguity or uncertainty. It was a bequest and devise of property to a trustee for the benefit of a beneficiary during his life with remainder over absolutely to certain specified persons. The language of the section is clear and explicit and there is no necessity or even room for construction. The chancellor properly sustained the demurrer to so much of the bill as was demurred to and dismissed the same.

We are unable to concur in the conclusion reached by the chancellor that there was anything ambiguous in the provision that in case of the death of Morris Rowland Dean leaving a widow but no issue the widow should receive the remainder of his share up to but not exceeding $10,000. We see nothing in this provision to authorize or support a bill for the construction of the will.

The question whether the chancellor might from the evidence properly find that the complainant was living harmoniously with her husband at his death is not free from difficulty. The bill alleged that she was so living with her husband at his death and the answer denied the allegation. The only evidence on the subject is the testimony of Dr. Croker that complainant and her husband lived together as husband and wife; that he knew that they lived together three or four months. There is in the record no evidence tending to show that the parties ever ceased to live together as husband and wife or that they ever lived together otherwise thsn harmoniously; and we cannot say that the finding the chancellor that they were living together harmoniously at the time of the husband’s death is so manifestly against the evidence as to require a reversal of that portion of the decree which directs the trustee to pay her $10,000.

It follows from our conclusion that there is not in any part of the will anything to require or authorize the filing of a bill to have the will construed; that in our opinion complainant was not entitled to an allowance of $1,500 for her solicitors’ fees in the cause.

The decree of the Superipr Court is amended by striking out therefrom that portion thereof which orders that complainant shall receive from the trust estate and that the Northern Trust Company as trustee under the will of John E. Dean, deceased, pay to her $1,500 as and for her solicitors’ fees in the cause, and as modified the decree is affirmed.

Decree modified and as modified affirmed, each party to pay the costs made by such party.


source: Caselaw Access Project

author: Mr. Justice Brown

license: Public Domain

text:
    Chalmers Motor Company of Illinois, Defendant in Error, v. Charles Maibaum, Plaintiff in Error
    Gen. No. 18,523.
    1. Automobiles and garages, § 4

      —when finding that fraudulent representations were made in procuring cancellation of order sustained by the evidence. In an action by an automobile company for loss of profits on the sale of an automobile alleged to have resulted from false and fraudulent representations made by the defendant to induce the plaintiff to cancel defendant’s order for an automobile, a finding that such representations were made held sustained by the evidence.
    2. Fraud, § 58

      —when action for deceit lies for procuring cancellation of order. An action may he brought in tort for fraud and deceit in procuring the cancellation of a contract of purchase without the cancellation being first set aside in equity.
    3. Fraud, § 118

      —measure of damages in action for deceit in procuring cancellation of order for automobile. In an action by an automobile company to recover damages resulting from fraud and deceit in securing a release or cancellation of an order for an automobile, held that a recovery for loss of profits was erroneous; that the measure of damages was the difference between the market price and the contract price; and that plaintiff was entitled to nominal damages only, it appearing that the automobile had a standard price and was sold at that price to a third party soon after defendant procured a cancellation of his order.
    Error to the Municipal Court of Chicago; the Hon. Harry Olson, Judge, presiding.
    Heard in this court at the October term, 1912.
    Reversed and judgment here.
    Opinion filed May 4, 1914.
    Elijah N. Zoline, for plaintiff in error.
    Garnett & Garnett, for defendant in error; Cyrus L. Garnett, of counsel.

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

   Mr. Justice Brown

delivered the opinion of the court.

This is a writ of error sued out by Charles Maihaum to reverse a judgment of $657.15, recovered in the Municipal Court of Chicago by the Chalmers Motor Company of Illinois against him on April 3, 1912. The action was in tort, and in the “statement of claim” the plaintiff averred that June 14, 1911, Maihaum agreed in writing to buy an automobile of the plaintiff for $1,500 in cash and the transfer of a secondhand automobile owned by him, and that on June 23, 1911, he induced the plaintiff to cancel said agreement by means of certain false and fraudulent representations. Thereby, the “statement” alleges, the plaintiff was prevented from making said sale of the automobile and “has lost profits in the sum of $750 which it would have made if the defendant had not made said representations.”

“Plaintiff,” the statement concludes, “credits defendant as against the damages herein claimed with $50 paid by defendant on or about June 23,1911, when plaintiff cancelled said contract.”

The evidence on which the judgment was rendered tended to show and, for the purpose of the question before ns may be assumed to have shown, that the defendant Maibaum on June 14,1911, came to the place of business in Chicago of the Chalmers Motor Company of Illinois and signed an order, the essential part of which was:

“6/14/1911.
Chalmers Motor Company of Illinois,
Gentlemen: Please enter my order for the following described car and accessories:
One Chalmers 1911-40 Torpedo Touring Car, Colors Bed, complete with catalog equipment herein specified, for which I agree to pay Three Thousand Dollars ($3,000) F. O. B. Chicago. To be paid as follows:
Allowance $1,500 upon signing of contract and balance of $1,500 on delivery of car.
Bemarks: Allowance of $1,500 for 1910 Pony in present condition and with present equipments. Salesman—Levy. Delivery—Bush. ’ ’

That on June 21, 1911, Maibaum came again to the Chalmers Co.’s place and talked with a Mr. Collander, manager of the service department of the Company, and wanted to know from him if he could cancel the contract, saying that “it would be impossible for him to take that car, that he couldn’t make the payments on it as he hadn’t the money at the time, that he had suffered some very sudden losses and expected to go to France a little later, and that he had concluded that he would keep the car that he had.” Mr. Collander gave him no answer but referred him to Mr. Levy, the president, treasurer and manager of the Company.

That on June 22, 1911, Maibaum called again at the store of the Company and saw Mr. Levy and told him that he would like to get out of taking that car, cancel the contract because he found himself financially unable to take it and pay for it; that he did not have the money; that he was in some difficulties; that he might have to go to Europe, and that the car that he had was running very well and would do until fall, at which time he would get another car from Levy, because he would not consider any other make of car. In answer to a question by Mr. Levy whether he wanted to cancel the contract so as to let some other concern take advantage of it, he replied in the negative.

That Mr. Levy believed the statements Maibaum made, but said to him, “It is very well for you to cancel the contract, but your car is now in transit from the factory.” To this Maibaum replied, “I will tell you what I will do, I will give you $50 for your expenses.” That Levy took the $50, saying, however, to Maibaum that if he bought the other car it would be credited on that car. Levy thereupon also took the written memorandum contract from the safe, marked it across the face “Voided 6/22/11. Chalmers Motor Car Co. of Ill. Levy,” and gave it to Maibaum. Mr. Levy had the $50 credited in the books of the Chalmers Co., “Cash $50, Charles Maibaum, deposit on car,” but testified that “according to Maibaum’s idea it was to cover expenses on the car that had been ordered by him and that “it was paid to me for both purposes, for voiding the contract and for applying on a new car.”

Meanwhile, on June 21, 1911, Maibaum had ordered from another concern a new automobile known as a Locomobile. He received this car from the11 Locomobile Company of America” June 23, 1911, paying therefor $2,200 in cash and turning in his used car. On that day or on June 24, 1911, Levy saw Maibaum in his new machine and on the following day called him up on the telephone and said to him, “I saw you bought a Locomobile; didn’t we have an understanding?” Maibaum said, “You got all the money you want out of it.” Levy said, “You made an agreement with me. You were going to buy another car in the fall.” Maibaum replied, “A man has a right to change his mind.”

This suit, brought on July 1, 1911, followed.

June 24th the car ordered by Maibaum came to the shop of the plaintiff in Chicago. It was sold by it to Edward P. Swift for $3,000 cash on July 5, 191Í.

All the matters above set forth are not admitted by the defendant. On the contrary he strenuously insists that he made no representations to either Levy or Collander about his financial condition in his interviews with them, and he brought forward some corroborative testimony by persons who heard the respective conversations.

We agree with counsel for Maibaum that the statement as to his financial condition is the only one of Maibaum’s testified to on which in any event a suit for fraud and deceit in procuring the agreement which cancelled the original contract could be properly based. The others are rather promises or conjectures than representations of an existing fact, but after (according to the request of counsel) reading in full the testimony of the witnesses, we do not feel justified in overruling the finding of the court below that the plaintiff’s case as outlined above was made out.

It is not definitely stated by Levy, that we can find, that it was the representation that Maibaum had no money with which to pay for the machine if he took it, that induced him to cancel the contract, but this is legitimately inferred from his testimony that he “believed the statements” of Maibaum and that “he relied on them in making the contract void.”

We are relieved from any consideration of whether there is sufficient evidence in the purchase of the Loco-mobile by Maibaum and the payment of $2,200 for it on June 23, 1911, of the falsity of the representation that he had no money on June 22, 1911, with which he could, when the Chalmers automobile arrived on June 24, pay $1,500 for it, by the distinct admission made for him at the outset of the trial, that he had on June 22, 1911, $1,500 with which he could have paid for the Chalmers automobile.

Two lines of attack upon the judgment, however, are taken by plaintiff in error independent of the questions of fact alluded to. The first is that the cancellation of the contract of June 14th was, as was held by the court below (Held Proposition of law II) equivalent to a release, that said release was not procured by fraud going to the execution of it by the plaintiff, and that said release is binding on the plaintiff until set aside in equity; and, moreover, as was not held by the court below, that the present action in tort cannot be sustained unless said release is set aside and the $50 paid by the defendant on its execution be refunded or tendered to him.

The defendant in error admits that no recovery could be had on the contract of June 14, 1911, without the setting aside of the “cancellation” (which, however, he denies is a “release”) in a court of equity, but insists that this action is of a different nature—one brought in tort for fraud and deceit in procuring* on June 22, 1911, the contract of cancellation on the payment of $50; and that such an action can be maintained while holding the contract of cancellation valid and effective.

To this point counsel for defendant in error cites cases which we deem in point, and we are disposed to agree with his contention. At least for the purposes of this discussion it may be assumed that it is well taken, for in our view the alternative objection to the judgment made by the plaintiff in error is insuperable. It is that the measure of damages adopted by the court below which resulted in the judgment was incorrect and inapplicable in the present cause. The $657.15 for which it was given was computed as follows: The evidence tended to show the car which Maibaum contracted with the plaintiff to buy from it cost the plaintiff $2,292.85; that the fair cash value of the used car Maibaum was to turn in in the trade was $1,500, and that the profit therefore 'which the plaintiff would make by taking it and $1,500 cash from Maibaum for the new car was $707.15, of which if the $50 for the cancellation paid was credited, $657.15 would remain as the loss by the Chalmers Company through the deceitful action of the defendant.

The question of fact as to the value of the used automobile, which is raised by the plaintiff in error with much insistence, may be ignored, for unless there is a different rule of damages in a suit brought for deceit in securing a release or cancellation of an order for the purchase of an already manufactured article, which release or cancellation is nevertheless affirmed and allowed to stand, from that which would govern in a suit brought by the seller against the purchaser for a refusal to receive and pay for the goods purchased, we think this method of computation is in the present case wrong.

We know of no such difference and of no reason why there should be one. The defendant in error does not place his argument on the existence of such a difference, but on the proposition that in either kind of case if there be no “market value” for the goods which a purchaser refuses to receive, “lost profits” are a proper measure of damages.

There are undoubtedly cases in which, in the absence of the possibility of applying the more common and general rule concerning such defaults, lost profits are taken into account. But if these cases are not of goods to be manufactured, they are exceptional in some other respect, as, for example, the case of Cody v. American Educational Co., 131 Ill. App. 240, where the goods were so specially prepared for the intending purchaser as to materially diminish their value to all other persons.

It is quite manifest that the addition of a painted monogram on the panel of the automobile in question here and the presence of easily detached separable accessories did not so affect the value of the car which was left on the hands of the vendor. It was sold within a very few days to a third party for the exact price for which it had been bargained by the cancelled contract to Maibaum.

The rule which governs this case in our opinion is thus stated in the headnote of Phelps v. McGee, 18 Ill. 155:

“Where an article is to be delivered at a place certain, on or before a day named, * * * the measure of damages, in case of a breach, will be the difference between the value of the article, on the day and at the place named, and the contract price. ’ ’

And in the headnote of Foos v. Sabin, 84 Ill. 564:

“Where cattle are sold for future delivery, if, at the time and place of delivery, they are worth as much as the contract price, the seller, not being damaged, cannot recover of the buyer, for not accepting the same, more than nominal damages. ’ ’

And in the headnote of Kadish v. Young, 108 Ill. 170:

“In ordinary cases of contracts for the sale of personal property for future delivery, where the purchaser fails to receive and pay for it at the stipulated time, the me&sure of damages is the difference between the contract price and the market or current value of the property at the time and place of delivery.”

The language of the Court in each case justifies the headnote. Moreover in Kadish v. Young, supra, the Supreme Court said:

“No court, so far as our researches have enabled us to know, ever held that the price paid by the seller for an article sold and contracted to be delivered in the future, was a circumstance to be taken into consideration by the jury in determining the amount of damages the seller is entitled to recover upon the buyer’s refusing to receive and pay for the property.”

If this language is to be taken as meaning that in no decided case were estimated profits which were lost by refusal to receive or by countermanding an order, considered proper to prove, it may be too sweeping; but undoubtedly the general rule is as stated.

Indeed the defendant in error’s argument admits the rule of damages so to be, when “the subject-matter” has a “market value” and places its whole reliance on the position that the automobile ordered by Maibaum had no market value. If it had no “market value” it certainly had a “market price,” which by Held Proposition VII, the court below held to be synonymous and to be “a usual and ordinary selling price of the automobile here in question at the place of delivery. ’ ’ It had at all events ‘ ‘ a value ’ ’ and ‘ ‘ a current value,” as is shown by the fact that the Company, apparently formed for the express purpose of marketing machines of this make, sell very many of them and sold this one eleven days after the order of Maibaum was countermanded for the same price Maibaum had been charged, without being obliged to take a part of the price in a secondhand car.

We think the propositions that there was no “market value” of the car in question", because it could not find an instant purchaser like listed stock or bonds on a stock exchange, or warehouse receipts for inspected grain or meat on a produce exchange, but required, like most merchandise, shops and salesmen to market, and the proposition that there was no market value because the manufacturer fixed “a list price” and put it into a catalogue, and that there was proved to be no “market value” because Mr. Levy said so after testifying that he had sold fifteen cars of this particular model for $3,000 each, “the regular price”, during the preceding year, are all unsound.

We do not regard Lovejoy v. Michels, 88 Mich. 15, as in point or, if in point, controlling. The question really at issue in that case was whether the “market price” was a “reasonable price” under the proof of an illegal combination to raise prices. There is nothing of the sort in the case at bar. The automobiles were sold in competition with other models and other makes. There was a standard price and it was obtained in the ease of this car and in that of many others, as the proof shows, by means no different in essence from those by which most goods are sold.

The plaintiff was entitled to only nominal damages, in our opinion, and we shall enter here the judgment we think should have been entered below—a judgment, that is, for one cent damages and the costs in the court below. The costs of this court will follow the usual course in cases of reversal.

Reversed and judgment here,


text:
    John G. Hale, Plaintiff in Error, v. Edward A. Ferguson et al., Defendants in Error.
    Gen. No. 18,752.
    (Not to he reported in full.)
    Error to the Superior Court of Cook county; the Hon. Theodobe Bbentano, Judge, presiding.
    Heard in this court at the March term, 1913.
    Affirmed.
    Opinion filed May 4, 1914.
    Statement of the Case.
    Bill by John Q-. Hale against Edward A. Ferguson, Union Central Life Insurance Company and Charles W. Sampson to enjoin the collection of a judgment entered against complainant in favor of Ferguson on a promissory note, and also to enjoin the collection of a judgment recovered on an appeal bond. A demurrer was filed setting up that the face of the bill showed that the matter was res adjudicaba and that there had been laches in prosecuting it. The demurrer was sustained and the bill dismissed. Later the complainant moved to vacate the order of dismissal and to make Lelia H. Hale a party complainant and the motion was denied. Thereupon complainant sued out a writ of error.
    Previous to the filing of the bill, Ferguson recovered a judgment against the complainant on a promissory note before a justice of the peace, and on appeal to the Circuit Court a judgment was entered for the same amount, and from the judgment Hale appealed to the Appellate Court and the judgment was affirmed. After this affirmance, Ferguson failing to obtain satisfaction of his judgment brought suit against the surety on the appeal bond (one Lelia H. Hale) and obtained a judgment. On appeal from the judgment to the Appellate Court the judgment was affirmed. See 162 Ill. App. 523.

      Edward J. Kelley, for plaintiff in error.
    No appearance for defendants in error.
    Abstract of the Decision.
    Judgment, § 311

      —when dismissal of Mil to enjoin enforcement of judgment proper. On bill to enjoin the collection of a judgment recovered against complainant on a promissory note on the ground that there was fraud in the execution of the note and a partial failure of consideration, held that a decree dismissing the bill was proper, that the matter set up in the bill would have been, available in law as well as in equity, and that the matter was res adjudicata in the Superior Court and in the Appellate Court.

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

   Mr. Justice Brown

delivered the opinion of the court.


text:
    National Life Insurance Company of the United States of America, Appellant, v. Charles H. McDermott, Appellee.
    Gen. No. 18,834.
    1. Insurance, § 194

      —when acceptance of worthless certificate of deposit in payment of a single premium policy does not entitle insurer to cancellation of policy. On bill filed by a life insurance company to cancel a policy of life insurance executed and delivered to defendant on application for a single premium policy, it was alleged that the policy was void because there was no payment of the premium, that a certain certificate of deposit given in payment for the premium was worthless for the reason that the bank was insolvent, and that defendant knew of the bank’s insolvency and complainant did not, held that a decree, dismissing the bill for want of equity, finding that the certificate of deposit was accepted as payment in full of the premium was proper, it appearing from the circumstances attending the transaction that the certificate was taken as a “settlement” or “payment” or "exchange” for the policy and there being no sufficient proof that defendant had knowledge of the bank’s insolvency.
    2. Payment, § 7

      —determination whether taking of certificate of deposit constitutes absolute payment. Whether the taking of certificate of deposit of a bank in payment of a premium on a life insurance policy is an absolute or a conditional payment may be established not only by express words but by reasonable implication from the attendant circumstances.
    Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding.
    Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed May 4, 1914.
    L. A. Stebbins, for appellant.
    O’Shaughnessy & O’Shaughnessy, for appellee; Francis O’Shaughnessy and Joseph L. Toohey, of counsel.

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

   Mr. Justice Brown

delivered the opinion of the court.

The complainant below and appellant here, the National Life Insurance Company of The United States of America, brought a bill in equity in the Circuit Court of Cook county in February, 1911, against Charles H. McDermott, the appellee herein, to cancel a certain policy of life insurance in the sum of $3,000 which it had theretofore on September 9,1910, executed and delivered to the said Charles H. McDermott. It alleged that the terms of the application for said policy provided that the Company should incur no liability until the premium had actually been paid to and accepted by the Company or its authorized agent, and that although McDermott asserted to the contrary and was threatening to assign and transfer the policy, the policy was void because there had been no payment to the complainant' of the premium, which was to be a single premium of $1,948. 20.

The further allegations were that contemporaneously with the delivery of the said policy to McDermott, McDermott had delivered to the complainant a certificate of deposit in the Cosmopolitan Bank of Chicago for the snm of $1,948.20; that while the certificate of deposit bears date July 1, 1910, it was in fact executed at about the time of its delivery to the complainant by McDermott; that at the time of the said transaction between the complainant and McDermott the Cosmopolitan Bank of Chicago was insolvent; that McDermott knew it; that the complainant did not know it; that on December 14,1910, a receiver was appointed by the Circuit Court of Cook county for the Cosmopolitan Bank of Chicago; that the receiver took possession of the property of the bank; that said property is not more than sufficient to pay the expense of the receivership and the certificate of deposit is of no value; that when said certificate of deposit, which was in the following terms:

“COSMOPOLITAN BANK OF CHICAGO.
(Not Inc.)
C. B. Chicago, HI., July 1, 1910.
No. 146
National Life Ins. Co., U. S. A., have deposited in this Bank nineteen hundred and forty-eight (20/100) dollars $1,948.20/100 payable to themselves January 1st, 1911, in current funds, on the return of this certificate properly endorsed, with interest at the rate of 4 per cent, per annum, if left six months, no interest after 7 months.
Milo Franklin Lewis,
Not subject to check. St. Lawrence Chandler,”

became due on January 1, 1911, Lewis and Chandler had left for parts unknown, the bank was closed and there was no person to make demand for payment in Chicago; that the complainant indorsed the certificate of deposit “Without Becourse” and tendered it to McDermott, demanding from him payment of $1,948.20, which he refused to make.

By amendment the complaint alleged further that it never deposited any sum in the Cosmopolitan Bank; that said certificate was issued by said bank at the request of said defendant and not at its request, and that the complainant obtained the certificate by surrendering to said bank a certain other certificate of deposit executed by the said bank for a larger sum and securing in return this certificate for $1,948.20 and other certificates of deposit, and that the larger certificate was not McDermott’s property, but that of one Arvidson, and that McDermott attempted to commit a fraud on Arvidson and the complainant by the surrender of the larger certificate and obtaining the certificate here in question and delivering it to complainant; also that Lewis and Chandler, whose names are appended to the said certificate of deposit, were in September, 1910, and at all times thereafter insolvent, known so to be by the defendant, but not known to be so by complainant.

The policy is made a part of the bill. A provision of it much insisted on by the complainant is:

“This insurance is granted upon condition that the premium be promptly paid when due, and failure to pay the premium or any part thereof when due, or failure to pay at maturity any note given for the premium or any part thereof, shall forfeit and cancel this contract and terminate all obligations of the company under this policy and all payments made hereon shall. thereupon stand forfeited to the company, except as herein otherwise provided.”

The bill as amended was demurred to, but the demurrer was overruled and the defendant McDermott answered. The answer denied knowledge on the part of the defendant that the Cosmopolitan Bank or Lewis or Chandler were in September, 1910, insolvent, and alleged that McDermott offered the certificate of deposit in question “as full payment and satisfaction of the premium upon said policy of insurance and the complainant accepted said certificate of deposit as payment of said premium.”

The chancellor below, after a hearing, dismissed the bill for want of equity, finding that the certificate of deposit was accepted as payment in full of the premium. The complainant appealed.

We think the decision of the chancellor in the Circuit Court was correct.

The evidence, which was entirely offered by complainant, showed that McDermott and an agent of the Company (one Burton) went to the main office of the Company and there submitted to the assistant secretary of the Company, a Mr. McCourtie, an application for a single premium policy of life insurance, ‘ an unusual form of policy,” and that there Burton spoke about tailing a “certificate of deposit” for the premium; that the assistant secretary said that he couldn’t decide about that, but would “take the thing up” with the proper officials of the Company; that it was usual and customary for the Company “to trade life insurance for things other than money,” “for notes and that sort of thing;” that McCourtie did submit the matter to a superior officer, as he says: “On a question of credit, as to whether or not that could be rightfully received as a settlement of this premium, just as if we had taken a note or something of that sort.”

McCourtie also testified: “I don’t know of another case of this kind of a certificate of deposit being offered in exchange for the premium.”

After the conference alluded to between the officers of the Company, McCourtie went with McDermott, whose certificate of deposit was larger than the amount of the premium, to the Cosmopolitan Bank and took from it or from Lewis and Chandler the “certificate of deposit” in question, running directly to the Company, for which the policy was then delivered to Mc-Dermott.

We think this was done at the risk of the Company and that the transaction shows it was not a conditional payment or security, but an “exchange” of one document for the other—the obligation of the Company to McDermott for the obligation of Lewis and Chandler to the Company.

While it is true that in Illinois, as in the majority of the States, the taking of a note of a third person is not prima facie absolute payment in the case of either a contemporaneous or antecedent indebtedness, but mere conditional payment or security (Cheltenham Stone & Gravel Co. v. Gates Iron Works, 124 Ill. 623), there is nothing in the Cheltenham case or any other in Illinois, we think, which contradicts the statement quoted in the Cheltenham case with apparent approbation from Story on Promissory Notes, that: “The taking of a promissory note for a pre-existing debt, or a contemporaneous consideration, is treated, prima facie, as a conditional payment only, that is, as payment, only,—if it is duly paid at maturity. * * * But * * * the rule is founded upon a mere presumption of the supposed intention of the parties, and is open to explanation and rebutter, by establishing, by proper proofs, what the real intention of the parties was; and this may be established, not only by express words, but by reasonable implication from the attendant circumstances.”

Indeed the opinion in White v. Jones, 38 Ill. 159, 165, would seem to lay down a different rule from the Cheltenham case, supra, as to the presumption in the case of a pre-existing debt. And see Archibald v. Argall, 53 Ill. 307, and Davis & Rankin Mfg. Co. v. Montrose Butter & Cheese Co., 59 Ill. App. 573-575.

We think “the circumstances attending the transaction” in this case, the character of the exchange, the action of the subordinate officer in delaying action for conference, the taking of an unindorsed certificate running direct to the Company from the third parties, and the peculiar nature of the wording of the obligation taken, tend to show that the certificate was taken as “settlement” or “payment” or “exchange” for the policy.

Another question might arise if the charge of fraud by the taking of advantage of the ignorance by the Company of the insolvency of Lewis and Chandler, by one who did know of it, had been proven. But we see no sufficient proof in the record of such knowledge on the part of McDermott, nor even of the insolvency itself in September, 1910. The testimony of Kreis as to an ambiguous remark of McDermott falls short of it and could at most raise merely a suspicion.

The decree of the Circuit Court is affirmed.

Affirmed.


text:
    Carterville Coal Company, Appellee, v. Covey-Durham Coal Company, Appellant.
    Gen. No. 18,843.
    1. Municipal Court of Chicago, § 13

      —when form, of statement of claim not irremediable. In an action brought in the Municipal Court on a statement of claim for goods “sold and delivered,” where it appeared before the actual trial that the suit was based on a del credere agency contract, held that the difference between a liability on del credere agency and on a direct purchase was not so great that under the reformed and summary practice in the Municipal Court a mistake in the form of the “statement” was irremediable.
    2. Contracts, § 377

      —when testimony as to admissions of deponent in unfiled deposition admissible to construe contract. In an action by a coal company for coal sold and delivered to another coal company, where a contract between the parties was ambiguous as to whether it was a contract for the purchase and sale of coal or a del credere agency contract, and the court refused to require the plaintiff to file a deposition of the president of the plaintiff Company, held that the court erred in ruling that the defendant could not prove anything in the nature of an admission made by such officer of the plaintiff Company concerning the intention and meaning of the contract which could be proved by a witness who heard them made.
    3. Contracts, § 12

      —when not wanting in mutuality. A contract between a coal company and another coal company in which the former agreed to furnish the latter with coal, held not wanting in mutuality.

      4. Depositions, § 28

      —when party denied right to have deposition filed may introduce evidence of deponent’s admissions. Where the court refuses to require a deposition of a person to he filed or to allow a carbon copy thereof to be read, a ruling that in consequence thereof no oral testimony could he heard of anything which such person said while giving such deposition and which was made a part of the deposition, held erroneous.
    5. Factors, § 26

      —when exclusion of evidence of damages ta factor’s business is error. In an action by a coal company against another coal company where the contract between the parties was held to constitute a del credere agency, action of the trial court in striking out and refusing all evidence to support a counterclaim alleging damages to defendant’s business by reason of the defaults of plaintiff in furnishing coal, held reversible error.
    6. Factors, § 26

      —elements of damages provable on counterclaim for breach of contract by principal to furnish coal. In an action to recover for coal sold and delivered where the agreement constitutes a del credere agency, certain elements of damages held proper to prove on a claim of set-off.
    7. Customs and usages, § 17

      —when evidence of custom competent in construing contract. Where a contract for the sale and delivery of coal exempts the seller from liability to furnish coal from lack of “car supply,” evidence of a custom of the coal district involved in the transactions concerning the furnishing of cars, held competent to aid in construing the contract.
    8. Trial, § 53

      —right to open and close. Refusal of court to allow the defendant to open and close the case, held too technical and immaterial to warrant a reversal, even if it was error.
    Appeal from the Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding.
    Heard in this court at the October term, 1912.
    Reversed and remanded.
    Opinion filed May 4, 1914.
    Statement by the Court. This is an appeal from a judgment rendered in a first-class case by the Municipal Court of Chicago. The judgment was in favor of the appellee, the Carterville Coal Company, plaintiff below, against the Covey-Durham Coal Company, defendant below and appellant in this court. The amount of it was $3,919.54. The judgment was rendered on the verdict of a jury, but the jury were instructed by the court at the conclusion of all the evidence to find the issues for the plaintiff and assess the damages at the sum for which the judgment was rendered.

      The pleadings and proceedings in the canse took the following course:
    April 5, 1911, the plaintiff filed in the Municipal Court of Chicago a praecipe to the summons in. a snit in assumpsit, setting the damages at $5,000, and with it filed a statement and affidavit of claim. The statement of claim was that the claim was “for a balance due plaintiff from defendant in the sum of $3,897.40 for coal sold defendant on the dates and in the amounts” set forth in the statement, which contained between one and two hundred items of varying amounts, the dates running from August 3, 1909, to March 31, 1910. The total amount of the items was $11,765.41, but various credits of cash, with two small allowances also shown in the account, reduce the balance asserted to be due to $3,897.40. The affidavit is by one of the attorneys for the plaintiff and declares the nature of plaintiff’s demand to be “for coal sold defendant by plaintiff.” May 22, 1911, after the appearance of defendant, the plaintiff filed an amended statement and affidavit of claim, again stating that the claim was for 11 a balance due plaintiff from defendant for coal sold defendant by plaintiff,” but giving in the account appended descriptions of cars, grade of coal, net weight and rate per ton, not given in the first statement, and making the snm of the items of charges slightly less and that of the credits slightly more, so that the balance was computed at $3,787.70. This amount another of the attorneys for the plaintiff swore in the accompanying affidavit was due to the plaintiff from defendant “for coal sold defendant by the plaintiff”

    The defendant thereupon, June 7, 1911, by its secretary, filed an affidavit of defense, in which the affiant first asserts that “he verily believes that the defendant has a good defense to this suit upon the merits to the whole of the plaintiff’s demand,” and then describes the nature of the defense by averring that the plaintiff cannot prosecute a suit for coal sold the defendant by the plaintiff because, before the date that the payment for coal delivered would have been due, the plaintiff was in default on the same contracts in the delivery of the coal, which default still continues. The nature and amount of the default the affiant says is set out in the defendant’s statement of set-off filed with the affidavit. He further sets out alleged mistakes, clerical and otherwise, in the plaintiff’s statement of claim amounting to $237.20, and concludes:
    “Affiant further avers that on April 5, 1910, and subsequent dates, defendant offered to allow the amount of plaintiff’s claim as herein corrected against defendant’s claim of damages as is set out in defendant’s statement of counterclaim and set-off filed herewith, and defendant now sets up as a further defense against plaintiff’s claim its counterclaim and set-off filed herewith and (should the Court hold that plaintiff’s claim is a valid claim) defendant prays judgment for the balance due in its favor. ’ ’
    The “statement of set-off and counterclaim” filed with said affidavit sets up “damages for failure by plaintiff to deliver coal according to its contracts with' defendant,” and proceeds with five specified items of failure to deliver coal amounting in the aggregate to about 9,000 tons and damages aggregating $11,530.80. The statement says that because of the failure of plaintiff to deliver the coal it became necessary for the defendant to purchase coal at prices more than the contract price, and that the defendant claims as damages the difference between the contract price and the market price at the time the coal should have been delivered. The statement concludes with an offer to give the plaintiff credit for its claim of $3,603.16 on the claim of defendant.
    Attached to this statement were another affidavit of the secretary of the defendant, describing the defendant’s demand to be “for failure to furnish coal as above set out according to contracts,” and forty-nine pairs of documents which in form and in general purport are alike, except that they all differ in the dates, numbers, names of consignee or consignees, destination, amount of coal to be skipped, etc. One of these pairs as illustrating them all is given here to make clear their nature and the controversy concerning their construction in this case:
    “J. P. Covey, Pres. R. W. Durham, Secy.
    COVEY-DURHAM COAT, CO.
    215 Dearborn Street.
    Telephone
    Harrison 3047. Chicago, May 24, 1909.
    Order No. 5566.
    Carterville Coal Co.,
    St. Louis, Mo.
    Gentlemen:
    Please enter the following order and acknowledge receipt of same on attached slip:

    Cars to be 40 tons or less. Ship in equal monthly quantities Sept. 1st, 09 to March 1st, 1910.
    Yours truly,
    Covey-Durham Coal Co.,
    By R. W. Durham.”
    The “attached slip” was:
    “St. Louis, May 26, 1909.
    Covey-Durham Coal Co.,
    Chicago, 111.
    Gentlemen:
    We are in receipt of your order No. 5566 of 5-24-09, and have entered same on our books for shipment as directed.
    10 cars 6" Lump or 3x6 egg for Z. K. Hoag, Iowa Falls, Ia.
    Yours truly,
    Carterville Coal Co.”
    The slip was printed except in the portions above underlined.
    July 10, 1911, the defendant, by leave of court, amended this “Statement of Set-off and Counterclaim” by inserting a detailed statement of the failures to ship in relation to each of the forty-nine orders. Thus, for example, as to the order above specified, the statement as amended set forth:

    thus alleging a default in the shipment of seven of the ten cars ordered for Z. K. Hoag.
    The statement as amended stated that the tonnage was estimated at forty tons per car.
    The following paragraph was also added to the statement by the amendment:
    “As a further item of damage defendant claims damage for loss of business and custom. For many years defendant had been engaged in buying and selling coal; defendant had always promptly filled its contracts with its customers, all of which plaintiff well knew. The defendant, relying upon its contracts with the plaintiff, made contracts for the sale of coal so purchased from plaintiff. Defendant depended upon the plaintiff’s fulfilment of its contracts for its supply of coal with which to carry out its contracts with its customers, and because of plaintiff’s breach of its contracts as hereinbefore set out, defendant was unable to fill its contracts with its purchasers and thereby lost several of its customers and thereby has been greatly damaged in its business. Because of plaintiff’s repeated promises to furnish the coal contracted for, defendant did not buy other coal in the market, and as a result of plaintiff’s breach of contract defendant lost its reputation for prompt performance of its contracts. Defendant notified plaintiff that unless the plaintiff performed its contracts with defendant, defendant’s business would be greatly damaged, and plaintiff well knew that defendant’s business would be so damaged. Defendant claims therefore an additional counterclaim of ten thousand ($10,000) dollars for damage to its business by reason of plaintiff’s failure to perform its contracts as is herein alleged.”

      Another amendment by defendant of the set-off claim made the statement a little more detailed, but without changing its essential character. To the statement as finally amended and filed on September 22, 1911, the secretary of the defendant appended his affidavit that there was due to the defendant from the plaintiff for failure to furnish coal according to the contracts, $7,966.31, after allowing all credits and also additional unliquidated damages for Josses to business for such failure.
    On the same day, September 22, 1911, the court on motion of the plaintiff ordered the “additional counterclaim” of $10,000, or of unliquidated damages, for “damage to business” disallowed and stricken out. December 1,1911, the court denied a motion of the plaintiff to strike the whole of defendant’s claim of set-off from the files and granted leave to the plaintiff to file an affidavit of merits of defense to said claim.
    December 15,1911, the president of the plaintiff, the Carterville Coal Company, filed an affidavit in behalf of the Company, in which he asserted that the defense of the plaintiff to the amended set-off and counterclaim filed by the defendant was that on March 10, 1909, the plaintiff entered into a contract with the defendant, the Covey-Durham Coal Company, to sell coal for the plaintiff in certain described territory solely on a commission basis. The affidavit sets out the contract, and as the present controversy and the rulings of the court below turn on that contract, we give it in full:
    “St. Louis, Mo., March 10,1909.
    Covey-Durham Coal Co.,
    Chicago, Ill.
    Gentlemen: We hereby propose to give you the exclusive sale of our coal in the following territory and under the following conditions from March 31, 1909, until March 31,1910.

      Territory.
    On all lines of railroad in Illinois north of Centralia except in the City of Chicago and within a radius of fifty miles.
    Illinois Central E. E. in Wisconsin.
    Illinois Central E. E. in Iowa as far west as Fort Dodge, la.
    Conditions.
    Prices to be agreed on from time to time and commissions to be allowed on the following basis:
    Lump, Egg, Mine Bun and No. 1 Nut.
    Sold at $1.25 per ton or less, com. to be 10c per ton.
    “ “ 1.30 to $1.40 per ton, com. to be 12% “ “

      “ “ 1.45 to 1.70 “ “ “ “ “ 15 “ “
    “ “ 1.75 to 2.00 “ “ “ “ “ 20 “ “
    “ “ 2.10 to 2.50 “ “ “ “ “ 25 “ “
    Screenings No. 2 Nut and Pea.
    Sold at $1.00 per ton or less, com. to be 10c per ton.
    Sold at 1.05 per ton or over, com. to be 10% of selling price.
    Slack sold at .50 per ton or less, com. to be 10c per ton.
    Slack sold at .65 to .75 per ton, com. to be 12% per ton
    Slack sold at .80 to 1.00 per ton, com to be 15 per ton. and all sizes not mentioned above and for coal sold at higher prices than named herein commissions allowed shall be at least 10% of prices coal is sold at F. O. B. mine.
    We are to ship all coal to consignees direct and render bills to you at net prices and payments are to be made monthly.
    The above is subject to strikes and car supply.
    Tours truly,
    Carterville Coal Co.
    H. B. Burr.
    Accepted March 10, 1909.
    Covey-Durham Coal Co.,
    B. W. Durham, Secy.”
    After reciting the contract as above, the affiant says that defendant cannot prosecute its counterclaim because it had broken the contract and was in default in payment for coal already shipped and delivered to its consignees before the date on which the coal mentioned in the counterclaim was to have been shipped and delivered; that the counterclaim cannot be a set-off under plaintiff’s statement of claim because it is “for unliquidated damages arising out of the purchase and sale of a commodity at different dates, to different people, for different amounts;” that the orders described by defendant in its set-off are not contracts, but “are only memoranda,” and as well as the receipts attached were all sent only “under the terms and conditions of the contract of March 10, 1909;” that the said contract provided that the shipments were to be made subject to car supply and that the plaintiff shipped all the coal ordered under the contract to the consignees named as far as possible with the car supply furnished the plaintiff, and that if there was any failure to deliver any of the coal described in defendant’s amended set-off, it was by reason of plaintiff’s inability to secure cars in which to make such shipments to the consignee indicated by the defendant; and that the plaintiff is informed and believes that the defendant did not purchase any coal at the market price during January and February, 1910, and was not damaged in any particular by any failure of the plaintiff to deliver coal to it.
    At the trial of the cause, which began on May 27, 1912, the defendant first asked for an order directing the plaintiff to file a deposition of H. B. Burr, the president of the plaintiff Company, which had been taken at St. Louis at the instance of the plaintiff under a stipulation and sent to the plaintiff’s counsel in Chicago but not filed in court. This motion was reserved temporarily but afterwards denied, and during the progress of the trial all offers or attempts, of which there were many, to prove certain admissions alleged to have been made by Burr in the said depositions were overruled.
    The counsel for the defense then moved that he be allowed the opening and close in the trial. This motion was denied. All these rulings were excepted to and are complained of as erroneous.
    The answers filed by defendant to certain interrogatories propounded to it under the Municipal Court Act were offered by plaintiff and admitted over the objection of the defendant, and in answer to the interrogatory, “Did the Covey-Durham Company through its duly authorized agent or agents enter into the following agreement with the Carterville Coal Company” (then reciting the document dated March 10, 1909, before set forth as a part of the affidavit of the President of the Carterville Coal Company filed December 16, 1911), the answer was “Tes.” The admission of this document was especially objected to. Other answers to the interrogatories practically admitted that the coal set out in the plaintiff’s statement of claim was shipped by the plaintiff at the request of the defendant, but it was said; however, that mistakes made the plaintiff’s claim founded on the said shipments $237.20 too large, and “that all the coal requested by defendant to be shipped was not shipped.”
    The plaintiff admitted the corrections pointed out by defendant and introduced evidence that the interest on $3,603.13, which-it maintained was due to it for two years and one month at five per cent, was $369.04, and asked judgment for $3,972.17, which was reduced when the final instruction was requested to $3,919.54, for which the judgment was eventually given.
    The plaintiff having rested its case, the defendant introduced in evidence all the orders sent by the Covey-Durham Coal Company to the Carterville Coal Company during 1909 and 1910, with the receipts, acknowledgments or acceptances thereof, as set out in the defendant’s set-off and counterclaim above recited, and the plaintiff, “subject to the objection that the agent is estopped to introduce such evidence,” admitted that it failed to ship coal as set out in defendant’s amended statement of set-off and counterclaim, ‘ ‘ owing, as it claimed, to inadequate car supplies.”
    Certain postal cards were introduced by the defendant from the Carterville Coal Company to the Covey-Durham Coal Company, showing shipments of certain portions of the coal ordered under the forty-nine orders previously admitted to have been given and a great deal of correspondence between the two Companies to the suit, on the one side urging more speedy shipment of the coal to the consignees named in the forty-nine orders, and complaining of delays, and on the other, laying the fault to the short car supply, expressing hope of being able to be more prompt in the future and after August asking prompter or larger remittances on account of the coal shipped.
    The differences between the two Companies reached a climax by April 5, 1910, and a letter of that date from the Covey-Durham Company to the Carterville Company stated the claim of the Covey-Durham Company to be that because of the failure of the Carter-ville Company to furnish the coal agreed on, at the times agreed on, the Covey-Durham Company had filled orders for about 5,000 tons of coal, which cost them or was worth to them $4,500 more than the price for which the Carterville Coal Company had agreed to furnish it, and on about 4,000 other tons which they had contracted to have delivered, but which orders they had not been obliged to fill, they had lost their commissions of at least ten cents a ton; that they ha,d suffered a large amount of damage (at least $4,000) for the injury to their business by their inability to keep their promises through the default of the Carterville Coal Company, and that they were entitled also to commissions in accordance with the “contract of March 10, 1909” on certain coal shipped by the Carterville Coal Company on orders of other persons into the territory where, by the said contract, the Convey-Durham Coal Company was to have the exclusive sale.
    In a subsequent letter of the Carterville Coal Company introduced in evidence, the claim for commissions on a consignment of coal made to a third party in the said territory without the intervention of the Covey-Durham Company was admitted, but no further claim.
    Besides the evidence heretofore alluded to, it was shown that some of the cars ordered to be shipped on some of the forty-nine orders which were not shipped at the times specified in the orders were subsequently shipped and received and accepted by the consignees, and subject to “a general objection for immateriality, which was reserved by the Court,” evidence offered by the defendant was received of the market .prices of six inch lump coal f. o. b. the mine in the Carterville locality in the different months and parts of months from July, 1909, to March, 1910.
    The defendant also attempted to introduce a notice served on defendant during the pendency of the suit, signed by plaintiff’s attorney, setting forth the agreement of March 10, 1909, and giving notice of a motion to strike the defendant’s set-off and counterclaim from the files for the reasons:
    “First. That there is a want of mutuality in the contract between the plaintiff and defendant sufficient to found the defendant’s set-off and counterclaim upon.
    Second. Because the set-off and counterclaim of defendant is for unliquidated damages arising out of independent contracts for the sale and purchase of commodity.
    Third. Because the contract between said plaintiff and defendant is severable and consists of several distinct and separate items, and no set-off or claim can lie in law for the above reasons.”
    This evidence, which was apparently offered for the purpose of showing an admission by the plaintiff that the transactions in question were not governed by the document of March 10, 1909, was on objection by the plaintiff excluded.

      The court on motion of the plaintiff after the conclusion of the evidence instructed the jury to find the issues in favor of the plaintiff and to assess plaintiff’s damages at the sum of $3,919.54. That verdict having been returned, the court, after a motion for a new trial and a motion in arrest of judgment had been overruled, entered judgment upon it for the amount named. The defendant appealed and in this court has assigned as error and insists upon these matters:
    That the court erred in refusing the defendant the opening and closing of the case;
    That it erred in the admission of improper evidence, especially that of the agreement of March 10,1909;
    That it erred in striking out the paragraph of defendant’s statement and counterclaim, which asserted unliquidated damages to the defendant’s business by the default of the plaintiff;
    That it erred in the exclusion of proper evidence—■ notably in the exclusion of the testimony of the president of the plaintiff Company taken at St. Louis on a stipulation, which deposition, or a copy thereof, or secondary evidence of what was said by the witness therein, should have been admitted;
    That it erred in instructing the jury for the plaintiff, as requested, and at least in including interest in the amount of the plaintiff’s claim.
    Runnells, Burry & Johnstone, for appellant.
    O’Bryan & Marshall and Judson, Green & Henry, for appellee.-

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

   Mr. Justice Brown

delivered the opinion of the court.

As we have said in the statement prefixed, this cause turned largely in the court below on the construction given to the agreement of March 10,1909. That agreement was and is treated in a puzzling and inconsistent manner by the parties to this controversy. The plaintiff sued for coal sold to the defendant and stated its claim in that way; hut it now says that it sold no coal to the defendant. It says in its argument: ‘ ‘ The plaintiff entered suit in the Municipal Court against defendant for the sum of $3,897.40, the proceeds due plaintiff for collections made by defendant as its agent from third parties. ’ ’

It certainly used inapt language in its “statement of claim,” which answers to a declaration, to express this idea, and as no “collections” of any “proceeds” were shown to have been made by “the defendant as the agent of the plaintiff,” what warrant was there for the peremptory instruction to the jury under this theory?

Again the plaintiff says in its argument: “It was not intended to sell the coal to the company and to create the relation of debtor and creditor, but only to make the defendant herein the agent of the plaintiff to take orders for the coal and authorize the defendant herein as agent to collect and account for the proceeds of the coal.” And again, that “the Court’s review” of the documents and dealings involved “will show that the Covey-Durham Coal Company was the agent of the Carterville Coal Company to sell its coal on commission within a certain exclusive territory and to collect for the coal which was delivered to said third persons, deduct its commissions for its services and remit its principal, the Carterville Coal Company, the amount as shown by the bills rendered to them at net prices, etc.”

This theory of the plaintiff carried to its logical conclusion is on the present record as destructive to the plaintiff’s right to recover as it is of the defendant’s asserted set-off, if indeed it is not more so.

On the other hand, the defendant in insisting that each of the forty-nine orders and acceptances is a distinct, severable and separate contract, and that the contract of March 10,1909, is negligible, is urging a theory which if not fatal to, certainly renders very doubtful its right of set-off of the unliquidated damages which it is claiming as an aggregate amount for the combined defaults of the plaintiff.

But neither of the positions taken is sound. The contract of March 10, 1909, is something more than an agency contract, because whatever else it does or does not do, its words and the construction put upon them by both parties render the Covey-Durham Coal Company liable to the Carterville Coal Company for the coal shipped by the latter to third parties on the orders of the former. If it is a contract of agency it is a “del credere” agreement, making a “del credere” agency, which since Grove v. DuBois (1 T. R. 112) in 1785, when Lord Mansfield decided that such an agreement was enforceable and absolute, making the broker or agent liable to the principal in the first instance, without reference to “proceeds collected,” has been a very commonly used device in mercantile proceedings.

On the other hand, however inconsistent with the theory on which the “Statement of Claim” was originally made, the position of the plaintiff later taken was indubitably sound. It was that the contract of March 10, 1909, could not be left out of account in this litiga - tion; that the transaction and defaults, if they existed, in connection with the forty-nine orders introduced, could not be treated without reference to it, but that unless it could be shown that the March 10th contract had been abandoned, the entire scope and course of the business must be considered in connection with it, and that it must be held to have bound together and in a sense unified the transactions.

One of the errors strenuously insisted on by the defendant is that while under the “pleadings” the defendant was entitled to open and close the case, it was denied that right. It would seem on the authority of the cases cited in defendant’s argument, so far as an analogy can be traced between the more informal proceedings and practice of the Municipal Court and the practice and pleadings at common law, to have merit in its claim; but we hold the error, if it was committed, too technical and really immaterial to warrant a reversal on that ground. We should not deem it worth while even thus briefly to allude to it if it were not that the raising of the question and the insistence on it emphasize a criticism we feel disposed to make of tne conduct of the case hitherto, which we hope will not apply to the new trial which, for reasons hereinafter stated, we feel compelled to order. Too much attention was paid to manoeuvring for position and too great insistence made on the exclusion of evidence which might have thrown light on the really vital questions at issue, namely: What did the contract of March 10, 1909, mean in the minds of the parties who made it? Was it broken? If it was, by whom first? Also, if it was so broken first by the plaintiff, what damages resulted to the defendant?

The agreement in question is said by the defendant (a) To be no contract because wanting in mutuality. (b) If a contract, then abandoned by the plaintiff, in the bringing of this suit “for goods sold and delivered.” (c) If a contract, then even if the form of the suit did not estop the plaintiff from insisting on it, yet asserted by the defendant to have been abandoned by both parties before the transactions which are sued for herein, (d) If a contract and not abandoned, then unambiguously a contract of purchase and sale, (e) If a contract and ambiguous, then to be construed by and in the light of the intention of the parties as expressed by the utterances of their representatives and by their acts under it.

Of these propositions we find no difficulty in negativing the first two (a and b) and the fourth (d). We think that in what was expressed and implied in the document of March 10, 1909, there was a valid contract ; and although the plaintiff took a strange course, to our minds, in “stating his case,” there came out in the procedure, before the actual trial began, the agreement prior to the “deliveries;” and the difference between a liability on a del credere agency and on a direct purchase is not, we must hope, so great that under the reformed and summary practice of the Municipal Court, designed and supposed by many to be so great an improvement on the forms of the common law, a mistake in the form of the “statement” is irremediable.

Nor do we need to advert to the third proposition of the defendant (c) except to say that while there is no evidence whatever now in the record to sustain it, and much that would seem definitely to negative it, the defendant was, by what we hold to be an erroneous ruling on evidence, prevented from introducing alleged admissions of the plaintiff’s president and managing agent, and we are unwilling unnecessarily therefore to foreclose the defendant’s right to assert hereafter anything which it is conceivably possible, even if improbable, might be proven by such admissions. But with the fifth proposition of defendant (e) we can see no reason to disagree, and if it is correct we think that the court below seriously erred in excluding the evidence which it was stated would show the construction of the contract by the plaintiff.

That it was ambiguous and in a sense designedly so, is in our opinion clear. It looks to us like a del credere agency contract rather than one of purchase and sale. It differs from the one discussed in Finch & Co. v. Zenith Furnace Co., 146 Ill. App. 257, but it is “like a mermaid, ” as was that. The parts are changed in position and the result is different. The quotation used in the Zenith Go. case might be inverted perhaps in speaking of it, and we might say “prima pristis, postrema hominis facies!” But it is one of those contracts anent which Mr. Justice Burton, now of the U. S. Supreme Court, when sitting in the U. S. Circuit Court of Appeals for the Sixth Circuit, justly remarked: “Hardly any two contracts raising the question of sale or agency are so near alike as to make an opinion construing one an authority in another. It matters little what the parties call such agreements. .Whether the result is a sale or an agency must depend upon the meaning and intent of the instrument as a whole.” Miles Medical Co. v. Park & Sons Co., 90 C. C. A. 579, 164 Fed. 803.

On such contracts evidence as to how by word or deed they have been construed by the parties to them is material and admissible. A corporation must act and speak through its officers and agents; and we think that the court below erred in rejecting the testimony concerning alleged statements of the plaintiff’s president and business manager, and then instructing the jury for the plaintiff. We think it very doubtful at best whether the deposition taken in St. Louis on a stipulation ought not to have been sent to the clerk of the court. We do not think that the cases cited by the plaintiff’s counsel go to the length of holding, as they urge, that it might be withheld from the clerk and consequently altogether withheld from being read by the defendant at the trial. But even if the defendant had no right to the filing or reading of the deposition, it had a right to prove anything in the nature of admissions made by Burr for his Company concerning the intention and meaning of the contract of March 10th which it could prove by a witness who heard them made. It made no difference that these admissions, if there were any, were taken down and sworn to after-wards. That they were made, and especially to or in the presence of a representative of the defendant, was the important thing in this phase of the matter. The contention of plaintiff, apart from the alleged incom.petency of Mr. Burr to admit anything for the Company, seems to be that the offered witness was only forbidden to say what he knew only from reading the deposition, but this is not what the record shows. The court having refused to require the deposition to be filed, or to allow a carbon copy to be read, erred in ruling that as a consequence no oral testimony could be heard of anything which Burr said while giving his deposition and which made a part of said deposition. This was a non sequitur.

That Burr’s alleged 11 admissions’’ may not be conclusive when received, that the court may perhaps after they are heard still feel compelled to rule that the construction of the agreement is for the court, is possible; but it was error to exclude the testimony without hearing and considering it, and because of that error an instructed verdict cannot be allowed to stand.

There is, however, another serious error in our opinion which as imperatively requires reversal. We do not think the court, while holding, as it evidently did, the contract of March 10th to be one of a del credere agency (a conclusion which on the record as it now stands seems to us a correct one), should have stricken out and refused all evidence on the clause in the defendant’s ‘1 Amended Statement of Set-off and Counterclaim,” filed July 10,1911, which alleged damages to its business by reason of the defaults of the plaintiff in its relations with it.

If the agreement of March 10th is on another trial held to be abandoned or to be no contract or to be a contract simply of purchase and sale, or if in any form the forty-nine orders, acceptances and partial deliveries are held to be severable, separate and distinct transactions, we do not wish to be understood hereby as laying down any rule of damages to be applied; but if the said agreement is held again to constitute a del credere agency, and to have bound the transactions involved in this cause together, then, in the interest of speeding the cause, we state the following to be our opinion as to the evidence which would be competent to prove damages on the claim of set-off, if a default in its obligations rendering the plaintiff liable on the set-off should be first proven:

First. Evidence of what direct expenditure the defendant had been obliged to make or loss to stand in filling any of the orders on which it had made itself liable, or in paying damages for a default therein. Of course in this item only those sums could be allowed which had been actually expended or lost because of some legal liability under which the defendant had come. ;

Second. Evidence of the amount of “commissions” provided for by the agreement of March 10,1909, which the defendant had not received but would have received if the plaintiff had not so indefensibly defaulted.

Third. Evidence of any further direct pecuniary damage to the defendant by reason of loss of business or of business standing through the defaults of the plaintiff.

Conjectural, remote, speculative damages could not be recovered; but if the defendant offers to prove damages that are the direct and natural result of the breach and are not problematical, he should be allowed to try to do it, whatever the difficulty it may be reasonably foreseen he will have in succeeding. By the ruling of the court striking out the clause in question from the amended statement of claim, the defendant would have been foreclosed from any such attempt, however the other questions in the case had been decided. It will be seen that we do not agree with either party in the matter of the rule of damages on the set-off, if the plaintiff should be found liable for a set-off; but we do not think it necessary to discuss further the question or to attempt to show in detail the fallacy of the “market price” theory put forward by the defendant.

There is but one other matter we think it necessary to mention. The plaintiff makes much of the contract of March 10,1909, making the deliveries subject among other conditions to “car supply.” It did make them so subject, but if a default or delay in deliveries was attributable to lack of “car supply,” it was for the plaintiff so to prove, and to show self-serving letters of the plaintiff stating that a scarcity existed is manifestly not sufficient. We think, moreover, that evidence is competent as tending and aiding to construe the contract of the custom of the coal district involved in these transactions concerning the furnishing of cars as between the plaintiff and defendant. We speak of this because the defendant says in its argument that there was testimony to such a custom, and the plaintiff says it was stricken out. Deference to the record shows it at least very doubtful if the statement that there was a custom as described was stricken out. In any event, we think evidence of a custom, if it exists, competent, as we have said.

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

Reversed and remanded.


text:
    Arthur T. Vreeland, Plaintiff in Error, v. Warren Vreeland, Defendant in Error.
    Gen. No. 19,046.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding.
    Heard in this court at the March term, 1913.
    Affirmed.
    Opinion filed May 4, 1914.
    Statement of the Case.
    Action by Arthur T. Vreeland against Warren Vreeland in the Municipal Court of Chicago. The court ruled that plaintiff’s statement of claim was insufficient to sustain an action. Plaintiff declining to take advantage of leave to file an amended or more specific statement, elected to “to stand by his original statement of claim.” Thereupon the court entered a judgment of nil capiat and for costs against him. To reverse the judgment, plaintiff prosecutes a writ of error.
    J. Warner Beckstrom, for plaintiff in error.
    William A. Morrow, for defendant in error.

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

   Mr. Justice Brown

delivered the opinion of the court.

Abstract of the Decision.

Municipal Court of Chicago, § 13 —when statement of claim too vague to state a cause of action. A statement of claim as follows: “Plaintiff’s claim is upon the contract hereto attached for money had and received by defendant, to-wit, $1000, received by defendant as one of the heirs of John J. Vreeland, deceased, by virtue of a settlement of the suit to contest John J. Vreeland’s will; said sum is one-sixth of the amount received by defendant,” held too vague to state a cause of action, in that it did not aver from whom defendant received the money or why and when it was received, and there was no intervening connection between it and the contract.


text:
    American Credit & Trust Company, Plaintiff in Error, v. Robert Witz et al., Defendants in Error.
    Gen. No. 19,139.
    1. Guaranty, § 9

      —construction. A guarantor’s obligation is strictly construed in Illinois.
    2. Guaranty, § 12

      —contract construed as to liability of guaran. tors for performance of a contract. Where a contract guaranties the performance by a certain company of its agreement on the reverse side of the guaranty or any other instrument executed in pursuance thereof, and there was an agreement on the reverse side of the guaranty in which it was agreed that said company should assign certain accounts receivable to the plaintiff with certain conditions in no one of which the company agreed to be liable for their payment and there was another and separate document by which the company formally assigned the accounts receivable and guarantied their payment, held that the guarantors were not liable on their guaranty for the payments of the accounts, that the assignment agreement did not require payment by the company, and that the company’s guaranty agreement could not be construed to have been executed in pursuance of the agreement.
    Error to the Municipal Court of Chicago; the Hon. Jambs C. Martin, Judge presiding.
    Heard in this court at the March term, 1913.
    Affirmed.
    Opinion filed May 4, 1914.
    Rehearing denied.

      Frank Schoenfeld, for plaintiff in error.
    Samuels & Samuels, for defendants in error.

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

   Mr. Justice Brown

delivered the opinion of the court.

The Municipal Court of Chicago dismissed a suit brought in that court by the plaintiff in error against the defendants in error, with “judgment as in case of nonsuit” and for costs. The dismissal was on motion of defendants and was ordered, we shall assume from the course of procedure and the arguments before us, because the court did not consider that the “statement of claim” stated a cause of action. We do not think it did. The claim is that the defendants executed and delivered to the plaintiff a contract of guaranty as follows :

“In consideration of the sum of one ($1.00) dollar and other valuable considerations paid by American Credit and Trust Company to each of the undersigned, receipt of which is hereby acknowledged, they and each of them do hereby jointly and severally guarantee to American Credit and Trust Company, its successors or assigns, the full, prompt a/nd faithful payment, performance and discharge by The Wi-Ko Electric Company of each of the provisions and conditions of the agreement on reverse side hereof, or any other instrument given or executed in pursuance thereof.
The undersigned hereby jointly and severally waive all notice of default by first party, and waive notice of acceptance of this guaranty by American Credit & Trust Company, its successors or assigns.
In Witness Whereof, we have hereunto set our hands and seals this fourth day of August, A. D. 1911.
Robert Witz. (Seal)
S. Korf. (Seal)
A. D. Anscher. (Seal) ”;

and that by virtue of this contract of guaranty the defendants became and were liable to the plaintiff for the full face value of each and every of certain accounts receivable by the Wi-Ko Electric Company, which are set forth; that each and every of the accounts receivable aforesaid are due and unpaid to the plaintiff, although the time of payment has long since elapsed; and that there is in the possession of the plaintiff applicable to the payment of accounts receivable aforesaid the sum of $245.14, leaving a balance due and owing to the plaintiff of $218.71, for which it brings suit.

(The italics in the contract of guaranty are ours.)

It is manifest that the only question for us to decide is whether by virtue of the contract of guaranty the defendants did become liable for the amount of the unpaid accounts receivable mentioned. This depends as manifestly on what the Wi-Ko Electric Company undertook and promised to do by “an agreement on the reverse side” of the guaranty, or by “any other instrument given or executed in pursuance of” an agreement on the reverse side of the guaranty. The agreement on the reverse side of the guaranty is incorporated in the “statement of claim.” It is signed by the Wi-Ko Electric Company by Robert Witz, president, and by the American Credit & Trust Company by its president. It recites that the Wi-Ko Electric Company is desirous of selling to the American Credit & Trust Company certain “Accounts Receivable,” and that the Trust Company agrees to buy them at a certain discount and on certain terms of payment. The things which the Wi-Ko Electric Company agrees to do are: (a) To pay the Trust Company all expenses and attorney’s fees incurred by said Trust Company in and about the collection of any account in default, (b) To assign and set over to the Trust Company such accounts as are purchased by it, to the end that the Trust Company shall become subrogated to all of the rights possessed by first party in respect thereto, (c) To make entries upon its books disclosing the sale to the Trust Company of the accounts purchased and allow the Trust Company inspection of all records pertaining thereto at all times, (d) To furnish the Trust Company once every year statements concerning the financial responsibility of the Wi-Ko Company. As no one of these things includes the payment by the Wi-Ko Company or even the guaranty by the Wi-Ko Company of the “Accounts Receivable” which it is to sell, it is clear that the defendants are not liable to the plaintiff on their guaranty for “the full face value’ ’ of any accounts receivable, by virtue of anything which the Wi-Ko Electric Company undertook to do by the “agreement on the reverse side” of the guaranty.

The only question remaining, therefore, is whether they are so liable by virtue of what the Wi-Ko Company has agreed to do by any other instrument given or executed in pursuance of the agreement on the reverse side of the guaranty.

This the plaintiff answers with a certain plausibility in the affirmative, but we cannot assent to his conclusion. Incorporated in the statement of claim is a list of the certain accounts receivable, for the full face value of which the plaintiff says the defendants are liable because they are due and unpaid, and certain written and printed assignments to the Trust Company signed by the Wi-Ko Company of these with other accounts. Various recitals and guaranties concerning their nature' and condition follow the words of assignment, and the concluding printed words of the document are:

“In consideration of the premises aforesaid and the further sum of one dollar to the undersigned heretofore paid, the undersigned hereby guarantees the payment in full to American Credit and Trust Company, its successor or assigns, of the above named contracts and open accounts in accordance with the terms indicated and appearing thereon.”

Although this guaranty by the Wi-Ko Electric Company appears in and as a part of a paper which is undoubtedly, so far as the portion which assigns the accounts receivable, “in pursuance of” the agreement on the reverse of defendants’ guaranty, we do not think that so far as this “guaranty of payment” goes, it is “an instrument given or executed in such pursuance.” The guaranty of payment is entirely collateral to the assignment and not necessary to it or to any of the stipulations on the reverse of the defendants’ guaranty.

If this provision is to be reckoned as covered by the defendants’ guaranty, so might any other promise, bond or obligation, however disconnected with the assignment of the account, if only it were incorporated with it.

The defendants Anscher and Korf, who were the only persons served and appearing below, were no parties to this instrument, and cannot be supposed to know of its collateral provisions.

A guarantor’s obligation is strictly construed in Illinois. Tolman Co. v. Rice, 164 Ill. 255; Phoenix Mfg. Co. v. Bogardus, 231 Ill. 528.

The judgment of the Municipal Court is affirmed.

Affirmed.