text:
    John F. Devine, Administrator, Appellee, v. Chicago, Burlington & Quincy Railway Company, Appellant.
    Gen. No. 16,523.
    Contributory negligence—standing by railroad track. Held, under the evidence, that the plaintiff’s intestate who was standing upon a railroad track waiting for the passing of a long heavy train was guilty of contributory negligence which barred a recovery in failing to look in the direction from which the train approached, which struck and killed him, it appearing that the intestate’s view was unobstructed and that the place where he was standing was one where trains were passing every half hour or hour throughout the day and that the intestate necessarily knew that fact.
    Action in case. Appeal from the Superior Court of Cook county; the Hon. Arthur H. Chetlain, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1910.
    Reversed with finding of facts.
    Opinion filed May 15, 1912.
    Joseph A. Connell, for appellant; Chester M. Dawes, of counsel.
    Bernard P. Barasa, for appellee.
   Mr. Justice Duncan

delivered the opinion of the court.

This action on the case was brought by Devine, appellee, as administrator, to recover damages sustained by the next of kin of Philip Matalone by reason of his death about March 20, 1907, while employed by the Chicago, Burlington & Quincy Railway Company on its tracks near Wyanet in Bureau County. In a three count, declaration the first count charges that while employed on the tracks of appellant in fastening nuts at the end of a rail, and while he was moving off the track to avoid a west bound freight train, Matalone was struck and killed by another east bound locomotive and freight train of appellant through the negligence of the servants of appellant in charge of said east bound train. The second count and third counts charge that while Matalone was so engaged and so endeavoring to escape said west bound train, he was struck and killed by the east bound train through the negligence of the servants of appellant on the latter train in failing to give Matalone any warning of its approach. In all of said counts it is averred that Matalone was in the exercise of reasonable care for his safety at and just prior to his injury and that he was not a fellow servant of the servants through whose negligence it is alleged-he was killed. The general issue and a special plea of the statute of limitations were pleaded by appellant, and on a jury trial of the issues joined, appellee recovered a judgment against appellant of $3,000.

In this appeal the railroad company challenges the correctness of the judgment upon the ground that it is not supported by the evidence, and insists that the court erred in refusing to direct a verdict of not guilty. The evidence discloses that Matalone came to this country from Italy about four years prior- to his death; that he had had about seven months’ experience as a track laborer, and had been working at and near the place of his injury with thirty or forty other men about ten days; that at or near the point where he was killed there was a curve in the road which con-tamed two main tracks known as th.e east bound and west bound tracks; that the road at this point has a decided grade about two or three miles in length, the decline in this grade being toward the east; and that the road bed at that point was about three or four feet above the level of the natural surface with a gradual slope down to a ditch, this grade extending west in a curve through a slight cut. Matalone was the farthest man west and was working on the west bound track, when a heavy freight train of about forty-five cars approached from Chicago westward up the grade there; and all the men, including Matalone, got off the track to let this train pass, nearly all of them, except Matalone, getting clear of the dump into the ditch on the north side of the r.oad bed. Matalone and about three others got off the west bound track on to the east bound or south track, and he stood on the east bound track striking the cars of the west bound train with a stick or some other object in his hand as they passed him, all the while facing east and paying no attention to any danger that might approach from the west on the east bound track. While thus standing, another heavy freight train of forty or fifty cars approached him from the west on the east bound track and struck and killed him about the time the rear end of the first train was passing him. He never heard, apparently, or looked toward, the second train until it was almost on to him, and then he did not have time to avoid it. Three of the track laborers who were working about three hundred or more feet east of him, and who went down in the ditch on the north side of the road to avoid the first train, all swear that no bell or whistle was sounded by the east bound train until it was “right on top” of Matalone. None of these witnesses saw Matalone struck and could not do so because of the first train being between them and him at that time. The noise of the west bound train in pulling up the heavy grade there, and the ringing of the bell on that train, and the further facts that these men never saw the east bound train until after Matalone was killed and knew nothing of its approach until the other train passed, may account for them not hearing or noticing any warnings the other train may have given the deceased. The noise of the passing of the first train and the two engines being both to the west of Matalone may have caused and no doubt did cause, the deceased, either to not hear or to not heed the warning signals of the train approaching him from the west. The fireman of the two trains and the engineer of the east bound train all testified that the two engines met west of the west end of the curve, one of them putting it at three or four car lengths west of the curve; and they must then have been about half the length of the trains, or about five hundred to nine hundred feet, west of Matalone. All of them swear the whistle was sounded on the east bound train then and again as it went into the curve. The engineer and fireman of the east bound train both testified that they saw the deceased when about 150 to 250 feet west of him, and could not see him earlier on account of the boiler extending back so far in the cab; and that again at that instant the engineer pulled down the whistle and held it down for one continuous blast until they struck him, and that the emergency brakes were applied and everything possible was done to stop the train, and to save the deceased; and that the bell was continuously rung from the time they met the other engine, the fireman of which had warned them by motions that men ahead were on the track.

It is also in evidence by the boss of the men that standing where Matalone was killed one could see a train approaching from the west for more than a quarter of a mile, if looking in that direction. He also testified that shortly before the accident he had warned the deceased to get clear off the tracks when any train approached, and not to stand on the track at all while one was passing, and that he replied, “All right, boss, all right. ’ ’ Considering the further fact that trains were passing that point each way every half hour or hour throughout the day, and that the deceased necessarily must have known this, we must hold that his act of standing on the east bound track and facing east while a long heavy train was passing, and without looking or taking any precautions to protect himself from the train east bound, is conclusive evidence of contributory negligence on his part, and a bar to a recovery in this cause by appellee. It was incumbent on appellee to prove the allegation that the deceased was in the exercise of reasonable care for his own safety at and prior to his injury. The evidence wholly fails to furnish such proof.

The judgment of the lower court is, therefore, reversed, and we find as an ultimate fact, to be incorporated in the judgment of this court, that Matalone was not in the exercise of ordinary care for his own safety at and just before he was killed by the train of appellant.

Judgment reversed with finding of facts.


source: Caselaw Access Project

author: Mr. Justice Graves

license: Public Domain

text:
    Abel A. Bach, Appellant, v. John E. Owens et al., Appellee.
    Gen. No. 17,875.
    This ease is controlled by the decision in Hudson v. Owens et al. Post, p. 288.

      Certiorari. Appeal from the Superior Court of Cook county; the Hon. M. M. Gridley, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed May 15, 1912.

      Certiorari denied by Supreme Court (making opinion final.)
    Frank D. Ayers, for appellant.

      Charles H. Mitchell and I. T. Greenacre, for appellees.
   Mr. Justice Graves

delivered the opinion of the court.

This case on the facts and the law is identical with the case of Hudson v. Owens et ah, disposed of by this court simultaneously with this case, and the judgment of the lower court in this case is affirmed for the same reasons given in the opinion in that case, to which opinion reference is made. (Ut infra.)

Judgment affirmed.


text:
    Nathaniel Hudson, Appellant, v. John E. Owens et al., Appellees.
    Gen. No. 17,876.

      Certiorari—when barred by laches. A delay of eight months unaccounted for by an adequate averment of facts will bar the right to review by certiorari the action of the board of election commissioners in removing an incumbent from office.

      Certiorari. Appeal from the Superior Court of Cook county; the Hon. M. M. Gridley, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed May 15, 1912.

      Certiorari denied by Supreme Court (making opinion final.)
    Frank D. Ayers, for appellant.
    Charles H. Mitchell and I. T. Greenacre, for appellees.
   Mr. Justice Graves

delivered the opinion of the court.

On December 6,1910, proceedings were begun in the County Court of Cook county under section 3 of Article 2 of the City Election law, whereby it was sought to cause appellant, then a member of the Board of Election Commissioners, to be removed from office. On the following day issues being made up the cause was heard and an order entered removing appellant from that office and revoking his commission as such officer. On the same day a further order was made by the same court appointing one Anthony Czarnecki a member of the Board of Election Commissioners to fill the vacancy caused by the removal of appellant from office.

. On July 3.1, 1911, appellant filed in the Superior Court his petition for a writ of certiorari to be directed to the judge and clerk of the County Court, commanding them that they certify to the Superior Court the record of the proceedings by which appellant was removed from office. Upon a hearing the prayer of the petition was denied and the petition was dismissed. This is an appeal from that judgment.

Appellant in his petition for certiorari has set out in full the proceedings in the County Court which resulted in his discharge from office, and the petition on which such proceedings were based, and has made numerous objections to the regularity of those proceedings and the sufficiency of the petition, both as to form and substance, but in the view we take of the case it is unnecessary to determine these questions.

The common law writ of certiorari is not a writ of right. Clark v. City of Chicago, 233 Ill. 113; McArdle v. Civil Service Commission, 159 Ill. App. 464. In order to justify its issuance, not only must good cause be shown, (City of Chicago v. Condell, 224 Ill. 595; Trustees of Schools v. School Directors, 88. Ill. 100), but the petitioner must act promptly in filing his petition, and in case of delay must show by bis petition for the writ some legal excuse why he has not moved more promptly. City of Chicago v. Condell, supra; Clark v. City of Chicago, supra. If such delay is not satisfactorily explained, the writ should be denied, particularly if great public detriment or inconvenience is likely to result from interfering with the proceedings of an inferior tribunal. Board of Supervisors v. Magoon, 109 Ill. 142; Commissioners of Drainage Dist. v. Griffin, 134 Ill. 330.

In Clark v. City of Chicago, 233 Ill. 113, the Supreme Court, after calling attention to the - fact that the statute expressly limits the issuance of the writ of certiorari to review the judgment of justices of the peace to the period of six months after such judgment is entered, holds that petitions for the common law writ of certiorari to review the judgments of inferior tribunals should by analogy b.e filed within six months after the entry of the order or judgment sought to be reviewed, or legal reasons for failing to do so should be given. By legal reasons, as there used, is meant reasons that are adequate, reasonable and not unlawful.

In the case at bar almost eight months elapsed between the entry of the judgment sought to be reviewed by certiorari and the filing of the petition for the writ. The only reason set up in the petition in excuse for such delay is that the Board of Election. Commissioners were during the interim engaged in the disposition of important business pertaining to the duties of their office, and that the prosecution of this suit during such time “would obviously result in an unnecessary interference with important proceedings on the part of said board and the discharge by said Board of its necessary public duties.”

These reasons urged as an excuse for delay are far from satisfactory. Indeed, they suggest rather reasons for haste than delay in filing the petition. The more numerous and important the duties the Board of Election Commissioners were performing, the more important it was that it should be a legally organized body of capable and experienced men. The sooner appellant, if he was the rightful incumbent of the office and a capable and experienced man, could be reinstated, the less the public good would be jeopardized. We think the delay from December 7,1910, to July 31, 1911, in filing the petition for a writ of certiorari in this case was unreasonable; that the excuse given for such delay is not sufficient, and that appellant is barred by his laches of his right to have the proceeding in the County Court, by which he was expelled from the position of member of the Board of Election Commissioners, reviewed by the common law writ of certiorari.

The judgment of the lower court in denying the writ of certiorari and dismissing appellant’s petition therefor is, therefore, affirmed.

Judgment affirmed.


author: Mr. Presiding Justice Brown

text:
    William Twick, Plaintiff in Error, v. Alexander Peterson et al., Defendants in Error.
    Gen. No. 14,664.
    Principal and agent—when authority to eolleet established. Held, under the evidence, that the authority of an attorney to collect a balance remaining due upon a note secured by a trust deed and to receipt for the same was established.
    Foreclosure. Error to the Circuit Court of Cook county; the Hon. Richard S. ' jthill, Judge, presiding. Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed May 20, 1912.
    Albert W. May, for plaintiff in error.
    Morton G. Smith and Lyman, Lyman & O’Connor, for defendants in error.
   Mr. Presiding Justice Brown

delivered the opinion of the court.

It is not necessary to notice the technical defenses urged by the defendants to the consideration of this writ of error. We shall dispose of it on its merits.

The bill of complaint in the cause was filed in the Circuit Court July 7, 1903. Its purpose was the foreclosure of a trust deed securing a note for $1500 and interest coupons dated March 8, 1893, made by Joseph W. and Louise Heitman, and payable three years from date, said to belong to Twick, the complainant, who is plaintiff in error here. The trust deed in question conveyed to one U. P. Smith, as trustee, certain real estate in Cook County, and was of even date with the note secured. It was duly recorded.

The note was to the order of the makers and by them endorsed in blank. When first made one Edward W. Cullen became the legal holder of it. Cullen was a lawyer, who apparently made the loan for which the note was executed, and sold the note to the complainant Twick, or negotiated the loan for Twick and obtained the money from Twick to pay over to the Heitmans. Twick insists upon the former theory, and it may be accepted as the most favorable to his contentions. But it is plain from the evidence that Twick invested money constantly through Cullen and that Cullen acted both as an attorney and mortgage broker for him; that in a great number of mortgage notes and accompanying coupons owned by Twick, the place of payment was made, as it was in the notes in question, the office of Cullen. The note and coupons in question here were bought or so delivered to Twick a few days after their date. In July of the same year—1893—Alexander Peterson, the defendant in error, bought the property covered by the trust deed from the Heitmans, who made the note, paying for it $500 in cash and assuming the incumbrance of $1500 described, and a further and subsequent smaller one.

Shortly after the purchase Peterson paid the principal note of the subsequent or second incumbrance, and from time to time paid the. coupon notes evidencing the interest on the $1500 Twick indebtedness at Cullen’s office. On March 7,1896, the original loan being about to become due, Peterson negotiated an extension agreement with Cullen, receiving a written document evidencing it, which purported to extend for a period of ¡three years the principal note in question. This was signed “William Twick by E. W. Cullen, his atty.” All the dealings of Peterson concerning the incumbrance were with Cullen.

It appears in the evidence that Twick told Cullen that he could extend the time for paying the principal as long as the interest was paid punctually.

From the evidence also it appears that by March 8, 1899, Peterson, with Cullen’s assent, had paid to him various sums of money on account of the principal of the note, and on that date the principal note was endorsed by Cullen, to whom it had been, temporarily at least, entrusted by Twick:

“March 8,1899, Received on the within note five hundred dollars. Balance due $1,000. Edward W. Cullen, Trustee.”

Twiek acknowledges receiving this money from Cullen.

It is impossible to tell from the record when the payments were made on the principal, and the exhibits, which might have thrown some light on testimony which is obscure, were left out of the record—a fact which by itself would justify the affirmance of the decree, were it not for the fact that a stipulation is filed with us, signed by the counsel for the defendant, that no advantage is to be taken of their absence—a very unsatisfactory arrangement to us. But it plainly enough appears that by April 9,1900, when a payment of $100 was made by Peterson to Cullen, there had been, including said payment, $600 more paid, and on that date Cullen gave to Peterson a receipt which recited that there was then left due only $400.

.On July 24, 1900, Peterson paid Cullen on the note in question, for principal and interest, the sum of $413, and received from Cullen the following receipt:

“Chicago, Ill., July 24, 1900.
Received of Alex. Peterson $413.00 in full settlement of balance of a Trust Deed and note dated March 8th, 1893, given by Joseph W. Heitman and wife on property known as Number 217 North Albany avenue, Chicago, and I release and discharge all claims whatsoever I now hold against the said Alex. Peterson personally and also against the said property known as 217 Albany Avenue, Chicago, Ill.”
When Peterson paid this last money he says he “called for all the papers” and Cullen wrapped up some papers, which he took from his safe, in a package or bundle and said, “Here is all that we hold against you and that property.”

Peterson testifies he thought it included the note. As a matter of fact it contained only an abstract, insurance policy and a receipt. On the same day, however, the Trustee, Smith, executed a release of the trust deed mortgage in question. It was recorded (evidéntly by Cullen) on the next day and was sent by Cullen to Peterson on September 19, 1900. Twick testifies that he never received from Cullen this last $513, but admits that he did receive an additional $500 from Cullen after the payment of the first $500 above described; and the note bears the unsigned endorsement: “Bec’d on within note $500 March 8, 1901. Interest paid to date.”

Twick contends, however, that he has been in possession of the note since its purchase except on the two occasions on which these endorsements were made, and that he has never been paid on the principal more than $1,000, while the interest was paid only to March 8, 1902.

It is a fair inference from the evidence that Cullen treated Peterson and Peterson treated Cullen as though Cullen was the authorized agent of the owner of the note, hut that Cullen paid over to Twick only part of the money he received, not at the times that he received it, but afterwards, and by paying only $500 of the last $1013 received by him and that in March, 1901, and by paying the interest up to March 8, 1902, (although Peterson had completed his payments on the principal and received a release in the summer of 1900), deceived his client and principal, Twick.

Cullen absconded in February, 1903, leaving Chicago and his obligations here for parts unknown.

In April, 1903, Cullen’s brother-in-law, Mr. Touhy, called on Peterson and told him, according to Touhy’s testimony, that he represented Mr. Twick, who had a claim of $500 and interest on the note and security in question. He testified that he did not then have the note in his possession, but that it was afterwards brought to his office by Twick, and that in his office he had another and later interview with Peterson. Peterson and his wife and daughter say that Touhy had the note at the interview at Peterson’s home, and said he had found it among Cullen’s papers; and Mr. Esping, Mr. Peterson’s employer, who went with him to Touhy’s office later, testifies that Touhy said the same thing there. These statements as to the way in which the papers came into Mr. Touhy’s possession are denied by Touhy and Twick, and are, in any event, of course, not evidence of the fact nor material against Mr. Twick.

But we think that the following conclusions, by omissions slightly modified from the statement of them in the report of the master to whom this case was referred, are warranted by the evidence:

“Peterson had dealt with Cullen as Twick’s authorized agent, authorized to receive the principal as well * as the interest on the said note. Two-thirds of the principal of said note had been paid in the course of years, and as the evidence shows, had been received by Twick, * * * so that when the final payment made up the remaining balance Peterson could not but believe that Cullen was entitled to receive that money on account of his principal Twick. * * * In considering the evidence which shows the relations between Cullen and Twick, and bearing in mind the fact that on two occasions Cullen’s authority to receive payments had been sanctioned by the receipt of the principal by Twick, * * * the defendant Peterson seems to have been fully justified in assuming that Cullen had authority to receive the payments; and inasmuch as it was the conduct of Twick which enabled Cullen to impose upon Peterson, Twick must suffer, though both parties are innocent. ’ ’

In conformity with the views thus expressed the Master recommended the dismissal of the bill for want of equity. The Circuit Court confirmed the master’s report and dismissed the bill, and we affirm its decree.

Affirmed.


text:
    Otto Gresham, Administrator, Appellant, v. Theodore P. Shonts et al., Appellees.
    Gen. No. 16,251.
    1. Municipal court—when hill of particulars sufficient. A bill of particulars is sufficient if it enables the adverse party to know with reasonable certainty what he is required to meet.
    2. Bills op particulars—-power of court with, respect to. Whether or not a plaintiff shall be ruled to furnish a bill of particulars in a given case is a matter resting in the sound legal discretion of the court and the action of the court in making or refusing the rule will not be reviewed, unless it be shown clearly that such discretion was abused.

      Assumpsit. Appeal from the Municipal Court of Chicago; the Hon. John H. Hume, Judge, presiding. Heard in this court at the March term, 1910.
    Reversed and remanded with directions.
    Opinion filed May 20, 1912.
    Warren B. Wilson and B. Wilson Moore, for appellant.
    Glennon Cary, Walker & Howe, E. H. Stearns and Winston, Payne, Strawn & Shaw, for appellees; Robert J. Cary, Silas H. Strawn and Walter H. Jacobs, of counsel.
   Mr. Presiding Justice Brown

delivered the opinion of the court.

This appeal is from a judgment of the Municipal Court of Chicago on October 5, 1909, dismissing at plaintiff’s costs a suit brought in that Court by the plaintiff, Otto Gresham, as administrator of John S. Cooper, deceased, against various defendants. Two of the named defendants only were served with process— Joy Morton and William C. Brown—and they are the appellees herein. The suit was dismissed on their motion for the failure of the plaintiff to comply with an order of the Court in the cause made September 27, 1909, that he file “an amended and more specific bill of particulars” within one week.

The history of the case leading up to this action of the trial Court was this: The suit was brought in the Municipal Court of Chicago as a contract case of the first class. On May 7, 1909, Joy Morton was served therein, and on June 9, 1909, William C. Brown. On May 6, 1909, a declaration in assumpsit was filed. It consisted of three special counts, setting up with some detail a claim that the defendants had promised to pay John S. Cooper in his lifetime what certain services rendered to them by said Cooper as a promoter and lawyer were reasonably worth. The said services were in the first count alleged to have been rendered “in the purchase and acquisition of the capital stock of the Indiana, Illinois and Iowa Railroad Company and in procuring $3,000,000 with which to pay for and purchase said capital stock and in improving the said railroad property represented by said capital stock, and in placing the same in condition so that the same could be sold to an advantage and at a great profit to the said defendant.” In the other counts the statements are more elaborated and detailed.

There was also filed with said declaration a “Bill of Particulars” purporting to set up “the facts in connection with” the said claim.

May 24, 1909, Joy Morton pleaded to this declaration the general issue, the statute of limitations and a denial of joint liability with the other defendants. Various motions and orders were made in the cause concerning interrogatories propounded by the plaintiff to said Morton, and on June 14,1909, William C. Brown filed his appearance in the cause and demanded a trial by jury. June 16th an order was entered by the Court on the plaintiff to file a more specific bill of particulars in twenty days. The same order extended the time for Brown to plead. On June 21, 1909, in answer to this rule the plaintiff filed another bill of particulars, entitling the same “Specific Bill of Particulars.” 'July 1, 1909, this bill of particulars was, on the motion of the defendants, stricken from the files, and the plaintiff ordered to file a more specific bill of particulars within thirty days. At the same time Brown was given further time to plead.

July 7th the plaintiff filed another bill of particulars. On July 14th this bill of particulars was on motion of the defendant, W. C. Brown, stricken from the files and the plaintiff allowed sixty days to file an amended bill of particulars.

September 11, 1909, the plaintiff was given ten days to file a more specific bill of particulars and the time for Brown to plead further extended. On September 16, 1909, the plaintiff filed another document entitled “bill of particulars,” reciting that he so'filed it “as a further and more specific bill of particulars of his claim in compliance with the order of the Court.”

On September 27, 1909, on motion' of the defendant the said last amended bill of particulars was stricken from the files and the plaintiff allowed a week to file an amended bill of particulars. Brown at the same time was given further time to plead.

October 5, 1909, the judgment first, above recited, to reverse which this writ of error was sued out, was entered.

We think it inexpedient as well as unnecessary to discuss at all the various bills of particulars filed by the plaintiff.

The merits of this controversy, either so far as the law or the facts are concerned, are not involved in this writ of error, and we do not wish by the slightest implication to render possible any inference to be even plausibly drawn concerning them from anything we may say in our opinion.

It is sufficient therefore to state we have carefully considered the various documents filed as bills of particulars by the plaintiff, and in connection with the declaration we deem each of them sufficient separately to do that which is the purpose of a bill of particulars —a purpose which in American Rolling Corporation vs. Ohio Iron & Metal Co.. 120 Ill. App. 614. we stated to be to enable the adverse party to know "with reasonable certainty what he is required to meet.

It is true, as we also in that case held, that whether or not a plaintiff shall be ruled to furnish a bill of particulars in a given case, is a matter resting in the sound legal discretion of the court, and that the action of the court in making or refusing the rule will not be reviewed in appellate jurisdictions unless it be shown clearly that such discretion was abused.

But in this case we think that discretion was in the legal sense abused. It was unwarrantably extended. The bills of particulars filed did show defendants with reasonable certainty what they were required to meet and are sufficient to prevent surprise. The plaintiff is entitled to his day in court. To deny it might lead to a failure of justice.

The assignments of error attack the order of October 5, 1909, dismissing the case with costs, and the orders of July 1st, July 14th and September 27th, 1909, respectively, striking from the files certain bills of particulars theretofore filed.

There are also assignments of error complaining of the refusal of the Court to require the defendants, Morton and Brown, to answer interrogatories propounded by the plaintiff. These denials we do not feel called on to review, however.

But the judgment of October 5, 1909, dismissing the case and adjudging costs to the appellees is reversed, and the cause is remanded to the Municipal Court with directions to vacate said orders of July 1st, July 14th and September 27th, 1909, so far only as they strike from the files bills of particulars theretofore filed, and to proceed with the cause in due course.

Reversed and remanded with directions.


text:
    American Gas Machine Co., Defendant in Error, v. Silvestro Giggi, Plaintiff in Error.
    Gen. No. 16,243.

      Verdicts—when not disturbed as against the evidence. A verdict will not be set aside as against the evidence unless clearly and manifestly so.
    Error to the Municipal Court of Chicago; the Hon. George J. Cowing, Judge, presiding. Heard in this court at the March term, 1910.
    Affirmed.
    Opinion filed May 20, 1912.

      Cairoli Gigliotti, for plaintiff in error.
    Sumner C. Palmer and Charles Daniels, for defendant in error.
   Mr. Presiding Justice Brown

delivered the opinion of the court.

This is a writ of error to the Municipal Court of Chicago to reverse a judgment of $32.50 rendered by that Court on November 11, 1909, in favor of the American Cas Machine Company against Silvestro Griggi, the plaintiff in error.

The amount was for rental of a regulator belonging to the Gras Machine Co. applied, at Grigg’s request and under a contract for rental payments, as the Company contends, to certain gas pipes which Griggi used in his business and which he contends he used in connection with a partner who was not joined as defendant in the suit. So far as there is any contradiction in the evidence, however, it is on questions of fact, and there was plainly a case, made by the plaintiff’s evidence to justify the judgment, which is affirmed.

Affirmed.


text:
    Jess G. Bates, Defendant in Error, v. Nyberg Automobile Works, Plaintiff in Error.
    Gen. No. 16,272.
    Measures of damages—in action for wrongful conversion. In an action for wrongful conversion of personal property the value of such property at the time of the conversion is the proper measure of damages.
    Error to the Municipal Court of Chicago; the Hon. McKenzie Cleland, Judge, presiding. Heard in this court at the March term, 1910.
    Affirmed on remittitur.
    Opinion filed May 20, 1912.

      William A. Jennings, for plaintiff in error.
    James W. Taylor, for defendant in error.
   Mr. Presiding Justice Brown

delivered the opinion of the court.

The defendant in error, Bates, bought an automobile for $750 from the Nyberg Automobile Works, the plaintiff in error, August 7, 1909. Bates paid $100 in cash and gave the Nyberg Automobile Works eight judgment notes of $75 each, payable to the order of that corporation, with interest at six per cent after maturity, in 30, 60, 90, 120, 150, 180, 210 and 240 days after date respectively, and a ninth single judgment note for $50, payable in 270 days after date. At the same time the Nyberg Automobile Works gave a memorandum bill of sale and warranty on an “order blank” to Bates, which contained a provision as follows: “It is understood that no verbal or other agreement or promise not clearly specified in this order will be recognized. ’ ’

No mention is made, either in the notes or in the contract bill of sale, of any chattel mortgage to be given by Bates. The claim however was made by the plaintiff in error on the trial of this case in the Court below, that Bates promised to make a chattel mortgage of the machine to secure the notes. Bates vigorously contradicted this statement, but the contention, coupled with the conceded fact that Bates had not executed or delivered any such mortgage, was made the basis of the Automobile Company’s defense to this suit. If the disposition of the writ of error at bar turns on the preponderance of proof on this matter, we hold that the defendant has not established his contention. We. do not think there is any preponderance of proof that Bates ever agreed to give any mortgage.

Bates found the machine unsatisfactory to him, spent, as he says, a sum approximating $100 on it and, as it still was unsatisfactory in its working, on August 24, .1909, took it back to the Automobile Company and asked the Manager of the Company to make it run properly. Bates and Nyberg then had some discussion, apparently heated, which, according to Nyberg’s own testimony, resulted in Nyberg’s refusing to let Bates take out the car again from the shop unless he executed a chattel mortgage on it. Bates says he demanded the car and it was refused. He then brought suit in the Municipal Court of Chicago, stating his claim to be “for the conversion by the defendant on or about August 24, 1909, of personal property of the plaintiff, consisting of a two-cylinder Buick Runabout. ’ ’

The cause was heard by the Municipal Court without a jury and judgment rendered in favor of the plaintiff for $845. This judgment the Nyberg Automobile Works has sued out the present writ of error, to reverse.

We can see no ground for denying the liability of plaintiff in error for the value of the automobile at the time of the conversion. But we cannot see in the evidence justification for the amount at which the damages are assessed. The price which Bates agreed to pay for the car, plus the cost of the repairs he had made on it, seems to have been taken as the measure. This is not repugnant to justice, but it is not consistent with the law as applied to the evidence in the case. The value of the automobile when it was wrongfully seized was, under the law, the measure of damages to be applied. In the absence of any other evidence in the record, a certain presumption or inference as to that value might perhaps have been drawn from the purchase price, but there was other evidence. The plaintiff in error contends that Bates furnished such evidence and fixed the value at $350 by his answer to a question as to the value of a second-hand machine such as the one in question. He said, “You can buy them all the way from $350.” This was not a statement as to the value of this particular car.

But Nyberg was asked the question directly: ‘‘ What was the value of the car when you received it from Bates on the 24th'day of August last?” His answer was, “About $650.” This is the only really competent evidence offered at the trial as to the value of the car as it stood with the repairs that Bates had made on it when it was seized by the plaintiff in error. We have no alternative but to hold it as the measure of damages that should have been adopted by the trial Court. The judgment of the Municipal Court on December 1, 1909, should have been $650—not $845.

On condition that within ten days the defendant in error files such a remittitur from said judgment as to make it $650, with interest at 5 per cent, per annum from December 1, 1909, to the date of such remittitur, we affirm the judgment; otherwise the judgment will be reversed and the cause remanded.

Affirmed, on remittitur.

Remittitur filed and judgment affirmed May 31, 1912.


text:
    L. G. Frisbie, Plaintiff in Error, v. T. D. Randall et al., Defendants in Error.
    Gen. No. 16,277.
    1. Appeals and errors—when finding by court not disturbed. A finding by the court will not be disturbed as against the evidence unless clearly and manifestly so.
    2. Municipal court—what proceedings not subject to review. Questions of practice arising in the municipal court will not be reviewed by the appellate court except "to prevent a failure of justice."
    Error to the Municipal Court of Chicago; the Hon. Mancha Bruggemeyer, Judge, presiding. Heard in this court at the March term, 1910.
    Affirmed.
    Opinion filed May 20, 1912.

      Frederick S. Baker, for plaintiff in error.
    Henry B. Spurlock, for defendants in error.
   Mr. Presiding Justice Brown

delivered the opinion of the court.

In this writ of error, which involves the sum of $33.37 between the parties, the Municipal Court made a part of the record its decisions on certain questions of law and fact. It held that L. G. Frisbie (who was a potato grower and dealer in Kansas) acted as a broker for T. D. Randall & Co. (who were commission merchants in Chicago) in the purchase of two cars of potatoes. As this is the contention of the plaintiff in error also, we shall, although it seems to be in a sense controverted by the defendants in error, assume, that it was proven. But the Court held that nevertheless Frisbie “was liable for the amount of dirt in said cars and the freight thereon.”

This holding meant that from the amount for which Frisbie drew sight drafts, with bills of lading of these cars attached, on Randall & Co., which drafts Randall & Co. paid, there should have been deducted a certain amount for dirt which was improperly and unjustifiably shipped with the potatoes, and the weight of which, therefore, was included in the computation of the sight drafts at the price of potatoes and charged for also in the freight bill.

The amounts of the drafts were the price paid by Frisbie to the persons from whom he had bought the potatoes, with five dollars a car added. The drafts had to be paid by Randall & Co. before they could get the bills of lading and the potatoes however, and in this suit they claimed to be entitled to recover back the amount at which the weight of dirt was figured at the price of potatoes. They claimed $74.67 and the Court held that they were entitled, under competent evidence, to $33.37. We are not inclined to disturb these findings on the merits. Although Frisbie bought as a broker, the order was addressed to Frisbie, directing him to ship best DeSoto, Ohio, potatoes, and they were shipped and the invoice made in Frisbie’s name and the sight drafts drawn by him with bills of lading attached. The Court seems to have held that even though they were bought by Frisbie as an agent or broker, he was under the evidence liable for the unusual and injurious quantity of dirt and culls made a part of the shipment, and we are not prepared to say the Court was wrong.

The method adopted to secure this reclamation, however, is also 'strenuously objected to by the plaintiffs in error. It was certainly highly irregular in its inception.

There hacl been two other cars of Frisbie’s own potatoes shipped by Frisbie to Randall & Co. to sell on commission. Randall & Co. had sold them and held $258.22 on account of the proceeds. They sent an account to Frisbie, crediting him with that amount and in addition with $304.33 only on the two cars bought by him as a broker for them, and debiting him with the amount of the sight drafts they had paid on account of these two cars, aggregating $369.35. The net result was that they showed themselves indebted to Frisbie in the account in the sum of $183.55 only, instead of $258.22. For this amount of $183.55 they sent Frisbie a check. Frisbie refused to accept this as a settlement and sued for the difference of $74.67.

When this case came up for trial before the Municipal Court, without a jury, on October 15, 1908, the record says, “the defendants offered to file a plea of set off. On objection the Court ruled the offer came top late and .plea of set off stricken from the files.”

After evidence produced on both sides the case was continued until October 25, 1909, for defendant to produce authorities and for argument. On October 22, 1909, Randall & Co. began a suit in attachment against Frisbie as a non-resident. T. D. Randall made an affidavit for attachment that Frisbie was indebted to Randall & Company “in the sum of at least $74.67 upon overdrafts paid by said T. D. Randall & Co. to said L. Gr. Frisbie on and for two carloads of potatoes (cars number 54102 and 56210) shipped by defendant to plaintiffs, and damages respecting same sustained by plaintiffs by reason of defendant’s failure to ship them goods of the kind and quality ordered and paid for by the plaintiffs and the quantity shown in defendant’s invoice.”

Randall & Co. procured a writ of attachment on this affidavit, and in the writ had themselves named as garnishees, and it was served on them as garnishees.

Then on October 25, 1909, when the case of Frisbie vs. Randall et al. was called again for trial, Randall & Co. filed a plea of puis darrein continuance, setting up these attachment proceedings. Frisbie moved to strike the plea from the files. The decision was reserved and the cause continued until October 28, 1909. On October 27th Randall & Co. answered as garnishees in their attachment suit, that they “had in their possession or under their control the sum of $74.67, which the said Frisbie * * * claimed to be due him from the garnishees.” On October 28th the suit of Frisbie vs. Randall et al. was again continued. It came up finally after another continuance and the suggestion of the death of one of the partners of Randall & Co. and an order that it proceed against the survivors, on November 10,1909, when Frisbie renewed the motion to strike the plea puis darrein, etc., from the files.

In the attachment suit, however, on November 9th he filed pleas denying any liability to Randall & Company, and setting up also the pendency of the assumpsit suit of Frisbie vs. Randall et al., and declaring that the parties plaintiff and defendant should in one and the same action submit to the Court for final determination all matters in dispute between them which were properly cognizable by the Court. Thereupon, one part of the record, (the Statement of Facts) says: “It appearing to the Court that the subject matter of both the assumpsit and attachment suits was one and the same matter, and that an early adjustment should be had of both cases, upon the suggestion of the Court both counsel proceeded before Hon. Harry Olson, Chief Justice of the Municipal Court, explained the subject matter of the .respective controversies and asked that the two cases be consolidated for immediate hearing, and that th.e same be assigned to. Judge Mancha Bruggemeyer for immediate trial. Order entered. Cause proceeds.” Other parts of the record show an order entered in each case on October 28, 1909, however, consolidating each with the other, That in Frisbie vs. Bandall & Co. recites that it was made “on the motion of the plaintiff;” that in Bandall & Co. v. Frisbie, that it was made “by agreement of the parties.”

The record is confused, the pleadings inartificial and the proceedings highly irregular, but it is plain that the consolidation was effectually completed and that a general appearance was entered by Frisbie in the attachment suit of Bandall & Co. vs. Frisbie, by his pleas called “Plea and Traverse,” of November 9, 1909.

Under these circumstances and the provision of the Municipal Court Act that “no assignment of error in this Court sha-ll be allowed which shall call in question the decision of such Municipal Court in respect to any matter pertaining to the practice in such Court,” we do not think that Frisbie is in a position to question the decision of that Court pn the respective claims of the parties on the ground of irregularity in the proceedings.

Of course, whether the matter complained of pertained to the merits or to practice, we could grant relief “to prevent a failure of justice,” but we are not satisfied that any injustice has been done.

The judgment of the Municipal Court is affirmed.

Affirmed.


author: Mr. Justice Baker

text:
    People of the State of Illinois, ex rel. Treasa Noavsll, Plaintiff in Error, v. John Graft, Defendant in Error.
    Gen. No. 16,149.

      Bastardy—what does not bar proceeding. The fact that the child was bom in another country and was necessarily a citizen thereof does not bar the mother’s right to maintain bastardy proceedings.
    Bastardy. Error to the Municipal Court of Chicago; the Hon. G. B. Watkins, Judge, presiding. Heard in this court at the March term, 1910.
    Reversed and remanded.
    Opinion filed May 20, 1912.
    William Schwemm, for plaintiff in error; Henry Dvorak, of counsel.
    O’Donnell, Dillon & Toolen, for defendant in error.
   Mr. Justice Baker

delivered the opinion of the court.

This was a bastardy proceeding instituted by the complainant, Treasa Noavsll, against John Graft. On the trial in the Municipal Court the only evidence was the testimony of the complainant that March 1, 1908, she became pregnant as the result of sexual intercourse with the defendant; that she resided in Chicago; that in September she went to the home of her parents in Austria, where her child was born in December; that her child had been and was then living with her parents in Austria; that complainant returned to Chicago in March, 1909, had since resided in Chicago, and had nev-er been married.

At the close of her testimony the defendant moved that he be discharged for the reason that the child was born in and was a citizen of Austria, and therefore a bastardy proceeding could not be maintained here. The court dismissed the proceeding and discharged the defendant.

In this we think the court erred.

In Mings v. The People, 11 Ill. 98, both the mother and child were non-residents of this State, and it was held that notwithstanding such non-residence the mother might maintain a bastardy proceeding in this State against the putative father. That decision is conclusive of the question presented by this record. See also: Scharf v. The People, 134 Ill. 240; Kolbe v. The People, 85 id. 336; LaPlant v. The People, 60 Ill. App. 340.

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

Reversed and remanded.


text:
    City of Chicago, Defendant in Error, v. M. Classen, Plaintiff in Error.
    Gen. No. 16,176.
    1. Instructions—when upon quantum of proof erroneous. In an action of debt for the recovery of a penalty more than a preponderance of the evidence is necessary to authorize a recovery and an instruction which 'permits a recovery upon a mere■ preponderance of the evidence is erroneous.
    2, Instructions—when should he aecurate. Where the evidence is conflicting the instructions should be accurate to sustain the judgment rendered on the verdict.
    Error to the Municipal Court of Chicago; the Hon. Judson F. Going, Judge, presiding. Heard in this court at the March term, 1910.
    Reversed and remanded.
    Opinion filed May 20, 1912.
    Symmes & Kirkland, for plaintiff in error; John A. Rose, of counsel.

      George H. White, for defendant in error; Henry M. Seligman, of counsel.
   Mr. Justice Baker

delivered the opinion of the court.

Plaintiff in error was charged with violating section 1454 of the Municipal Code of Chicago, was found guilty by a jury and his fine assessed at fifty dollars. The court overruled his motion for a new trial and rendered judgment on the verdict to reverse which this writ of error is prosecuted.

The Court instructed the jury that before they could find the defendant guilty they must, “find from a greater weight or preponderance of the evidence that the charge against him had been sustained. ’ ’

This instruction was wrong. In an action for debt for the recovery of a penalty, more than a preponderance of the evidence is necessary to authorize a recovery. A. T. & S. F. Ry. Co. v. The People, 227 Ill. 270; T. P. & W. Ry. Co. v. Foster, 43 id. 480; Ruth v. Abingdon, 80 id. 418.

The evidence was conflicting, and in such a case the instructions should be accurate to sustain a judgment rendered on the verdict. Smith v. The People, 142 Ill. 117.

For the error in this instruction the judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    Jennie Cohen, Defendant in Error, v. Oliver L. Plumtree, Plaintiff in Error.
    Gen. No. 16,189.
    1. Landlord and tenant—what establishes prima facie case in action for rent. The production of the lease containing a provision for the payment of the amount claimed makes a prima facie case that such sum is due without extrinsic proof that the same has not been paid.
    2. Landlord and tenant—obligation gs to repairs. The landlord is not liable for damages resulting to the tenant by reason of the premises being out of repair unless he has expressly bound himself to mate repairs.
    3. Contempt—when does not preclude maintenance of action. The fact that the plaintiff has been adjudged guilty of contempt in another case pending in the same court does not preclude the maintenance by her of the action at bar.
    Error to the Municipal Court of Chicago; the Hon. Stephen Á. Foster, Judge, presiding. Heard in this court at the March term, 1910.
    Affirmed.
    Opinion filed May 20, 1912.
    Arthur C. Bachrach, for plaintiff in error.
    B. M. Schaffner, for defendant in error.
   Mr. Justice Baker

delivered the opinion of the court.

Defendant by written lease leased from the plaintiff, Jennie Cohen, certain premises from May 1, 1909, to April 30, 191Ó, and covenanted to pay to said lessor as rent therefor $390 in monthly installments of $32.50 each, in advance on the first day of each month. September 8, 1909, plaintiff brought this suit to recover $32.50, the rent due according to the terms of the lease for the month of September, 1909. On the trial of the cause by the court, the plaintiff introduced the lease and rested without proof that the rent due September 1 had not been paid. The court gave judgment for the plaintiff for $32.50, and the defendant prosecutes this writ of error.

The production of the lease made a prima facie case that the sum of $32.50 was due as rent under the lease on September 1, 1909, and the plaintiff was not required, in the first instance, to show that such rent had. not been paid. “Where., under the terms of a written obligation, a specific sum of money becomes due and payable at a certain time, the production of such obligation establishes prima facie that the amount therein stipulated to be paid is due. ’ ’ Montgomery v. Leuwen, 94 Minn. 133.

There is in the record no evidence showing any such relation between plaintiff and P. Cohen as would render her liable to the defendant for any damage to the property of the defendant in the demised premises caused by the negligent act of P. Cohen.

There is no implied contract on the demise of real estate that it shall be fit for the purposes for which it was let, or that the landlord will make repairs. The landlord is therefore not liable for damages resulting to the tenant by reason of the premises being out of repair unless he has expressly bound himself to make repairs by the terms of the contract to let. Sunasack v. Morey, 196 Ill. 569 ; Taylor on Landlord and Tenant, Sec. 382. Where, however, there are concealed defects in the demised premises^ attended with danger to an occupant which a careful examination would not disclose, but which are known to the landlord, the latter is under obligation, imposed on him bylaw, to reveal them to the tenant, in order that he may guard against them, and on the landlord’s failure to perform such duty he will be liable for the damages which actually result to the tenant therefrom. Sunasack v. Morey, supra, 571.

Whether there was a fraudulent concealment or misrepresentation as to the state of the demised premises on the part of the lessor, was a controverted question of fact in the case, on. which the trial Court found against the contention of the defendant, and we cannot say that such finding is against the evidence.

The rule that a party in contempt will not be permitted to take any steps in the case in which the contempt occurs, is not applicable, to the facts of this- case. The contempt occurred in another case, to which the defendant in this case was not a party, and plaintiff’s right to maintain this suit was not affected by the adjudication that she was guilty of contempt in that case.

Finding no errors in the record, the judgment is affirmed.

Affirmed.


text:
    Little G. Buckner v. William A. Buckner. William A. Buckner, Defendant in Error, v. Littie G. Buckner, Plaintiff in Error.
    Gen. No. 16,231.
    1. Pleading—when eross-hill may he maintained. A cross-bill may be maintained to obtain full relief and a complete determination of all controversies which arise out of the matters set up in the original bill.
    2. Pleading—when eross-hill will support decree. Where a cross-bill is germane to the issues made by the original bill and answer and the original complainant makes no objection to its filing and treats it as a proper pleading by answering it, the court may properly make it the basis of its decree.
    3. Divorce—what not hona fide offer ■tó return. If an answer to a cross-bill setting up desertion alleges a willingness to return, relief may be granted upon the cross-bill if such allegation is traversed by replication and no evidence is offered to support it.
    4. Divorce—what not prevention of return preeluding decree on ground of desertion. If the plaintiff charged with desertion is enjoined from going to the office of the other party she is not deemed to have been prevented from returning.
    Separate maintenance. Error to the Circuit Court of Cook county; the Hon, Adelor J. Petit, Judge, presiding. Heard in this court at the March term, 1910.
    Affirmed.
    Opinion filed May 20, 1912.
    Statement by the Court. October 24, 1906, plaintiff in error filed her bill against defendant in error for separate maintenance, alleging that she was married t.o defendant in 1887 and was living separate and apart from him without her fault. September 4, 1908, the defendant answered the bill, admitting the marriage, denying the other allegations of the bill, praying that it be dismissed. November 30, 1908, the defendant filed a cross-bill alleging that the complainant deserted him July 24, 1906, without cause; that she had remained away up to the filing of the cross-bill, and praying for a divorce. The original complainant answered the cross-bill, denying its allegations. November 25, 1909, the cause came on to be heard, and the original complainant failing to appear, the court heard evidence in support of the cross-bill, dismissed the original bill for want of prosecution without prejudice to the cross-bill, found that the cross-defendant deserted her husband July 24,1906, without cause, and had continued such desertion up to the time of the hearing, and for such desertion granted to the cross-complainant a decree of divorce, to reverse which this writ of error is prosecuted.
    S. A. T. Watkins, for plaintiff in error.
    Edward E. Wilson, for defendant in error.
   Mr. Justice Baker

delivered the opinion of the court.

The facts stated in the cross-bill were germane to the subject of the original bill in the sense that they related to the same matters. A cross-bill may be maintained to obtain full relief and a complete determination of all controversies which arose out of the matters stated in the original bill.

Where a cross-bill is germane to the issues made by the original bill and answer and the original complainant makes no objection to filling it and treats it as a proper pleading by answering it, the court may properly make it the basis of its decrees. Ackley v. Croucher, 203 Ill. 530-534.

The cross-defendant alleged in her answer to the cross-bill a willingness to return to her husband, but this allegation was traversed by the replication and was not supported by any evidence at the hearing. The case therefore is not within the rule that a divorce for desertion will not be granted where the defendant makes a bona fide offer to return to the complainant.

By an interlocutory order made on motion of defendant the original complainant was enjoined, “from going around and about the office of the defendant, No. 2842 Armour Avenue, or in any. way interfering with the defendant in his business or personal property.” Defendant is a physician, had an office at 2842 Armour avenue, and lived with complainant at that number, but it does not appear that they lived in the room occupied by defendant as an office. The order only prevented complainant from going to the office of defendant of interfering with his business or personal property, and the case is not within the rule that a divorce for desertion will not be granted where the return of the party alleged to be guilty of desertion has been prevented by the act of the other party.

The evidence does not support the contention that the defendant practiced deception on the court in failing to disclose any material fact.

We think that the finding that the plaintiff in error was guilty of desertion as alleged in the cross-bill was proper on the evidence, and the decree will be affirmed.

Affirmed.


author: Mr. Justice Smith

text:
    Claude B. Davis, surviving partner, etc., Plaintiff in Error, v. Mrs. Margaretha Pauler, Defendant in Error.
    Gen. No. 16,187.
    1. Contracts—when for exchange of properties hvnding. A contract for the exchange of real estate is mutually binding notwithstanding the other party thereto does not hold the legal title to the property agreed to be exchanged by him if such party is in fact the equitable owner of such property.
    2. Brokers and factors—what not defense to action to recover real estate commissions. A party who has agreed to make an exchange of real estate and who has entered into a contract to that effect is not in a position to take advantage of a want of title in the party contracted with to defeat a claim for commissions without showing that he was willing to perform.
    Error to the Municipal Court of Chicago; the Hon William N. Gemmill, Judge, presiding. Heard in this court at this court at the March term, 1910.
    Reversed and remanded.
    Opinion filed May 20, 1912.
    George M. Stevens, for plaintiffs in error.
    John Lace and Ode L. Rankin, for defendant in error.
   Mr. Justice Smith

delivered the opinion of the court.

The plaintiffs in error, hereinafter called plaintiffs, began a suit in the Municipal Court of Chicago against the defendant in error, hereinafter called defendant, for the sum of three hundred dollars claimed as commission in a real estate transaction. At the close of the plaintiff’s case on the trial, the court of its own motion directed a verdict for the defendant. On the directed verdict the court entered judgment and the plaintiffs sued out this writ of error.

The plaintiffs, licensed real estate brokers in the city of Chicago, were engaged by the defendant to ne- ' gotiate an exchange of certain of the defendant’s property for certain other specified premises. In pursuance of that employment the plaintiffs entered into negotiations which resulted in the execution of an agreement in writing by the defendant with one John Bt. Gregory for the exchange of the premises in question. The defendant by the terms of the said contract agreed to convey the premises therein described and owned by her subject to an encumbrance of six thousand dollars. The abstracts of title to the premises to be exchanged were delivered by the respective parties, as provided by the terms of the contract. The premises owned by the defendant were subject to an encumbrance of eight thousand dollars, and subsequent to the execution of the said contract the said defendant conveyed to a third party certain of the said premises described in the said contract by her therein agreed to be conveyed to the said Gregory. She was therefore unable and refused to perform the said contract as by her undertaken, and the deal was not consummated. The plaintiffs thereupon brought this suit for their commissions under the terms of their employment and as agreed by the said defendant to be paid them in said contract.

The defense was that the title to the premises described in said contract to be exchanged and conveyed by the said John B. Gregory was not in him, but in Floie D. Gregory, his wife, and the said contract by reason thereof was not mutually obligatory upon the parties owning the said premises, and therefore there could be no recovery herein, relying on the said rule as announced in Wilson v. Mason, 158 Ill. 304.

The plaintiff’s evidence showed, and it was admitted by them, that the legal title to the said premises agreed to be conveyed by said John B. Gregory was in the said Floie D. Gregory, but claimed that the equitable title to said premises was in John B. Gregory and offered to so prove, and also offered to prove that the said John R. Gregory was, and had been at all times since entering into the said contract of exchange, able, ready and willing to convey the said premises pursuant to the terms provided in said contract. This evidence the court excluded.

In Kuhn v. Eppstein, 219 Ill. 154, the court held that a contract executed by the real equitable owner of the premises was mutually obligatory on the parties thereto, and if he had a right to make the contract, the holder of the legal title was not a necessary party thereto in order to make the contract mutually obligatory on the parties executing the same. It is argued by the defendant that the case of Kuhn v. Eppstein is not in point for the reason that in the case at bar Mrs. Gregory had a dower right and therefore an interest in the property. That may be; but there being no proof thereof, it is only an inference. If the evidence offered by the plaintiffs had been admitted, as it should have been, the plaintiffs might have established their contention, and if so, the authority of Kuhn v. Eppstein would govern.

The plaintiffs further insist that it was error to exclude the evidence that the said John R. Gregory was able, ready and willing to perform his contract as therein provided, for upon such proof, with all the other facts and circumstances of the case at bar, the plaintiffs would be entitled to recover, even if the contract between the parties for the exchange of properties he not shown to be mutually obligatory on the parties owning said premises.

On a careful consideration of the case of Wilson v. Mason, supra, in connection with the report of the same in 57 Ill. App. 825, it will be seen that the court found that the agreement between the broker, Wilson, and the defendants, Mason et al., was that if the broker’s proposed customer took the premises in question and paid cash for the equity, the broker would be paid a commission. A written contract was entered into by Mason et al., the owners of the premises, with the executors of an estate, the proposed purchasers furnished by the broker, Wilson. The said executors subsequently refused to consummate the deal upon the ground that Mason et al. could not convey a good title, when in fact the title was not subject to the objection made by the said executors, and was so determined subsequently in McCampbell v. Mason, 151 Ill. 500. Mason et al. were not able to compel the said executors to take the premises as provided in the said contract, because it was not mutually obligatory on the parties thereto. The deal therefore failed of consummation, because the purchasers furnished by the broker, Wilson, refused to perform their contract, and without Mason’s fault. Under these circumstances the court held that the broker’s agreement provided for a sale of the premises to entitle him to commissions; and without the owner’s fault no sale having been made and no enforcible contract of sale having been entered into, the broker had not performed his agreement and no commissions could be recovered. The same rule was announced in Lawrence v. Rhodes, 188 Ill. 96.

In Oliver v. Sattler, 233 Ill. 536, the court said: “To entitle appellants (the brokers) to recover, it was necessary ¿for them to prove that they produced, within the time limited by the authority, a purchaser upon the terms therein stated. If they had done that and appellee refused to perform the contract, their right to commissions would not be defeated, but if they had not done that, there was no liability for commissions, because they had not dyne what they undertook to do. It was incumbent upon them to show that the purchaser was ready, willing and able to perform the contract, and that it was in accordance with the authority given and the terms prescribed,” citing the Wilson case.

In Fox v. Ryan, 240 Ill. 391, the court approved the rule as announced in Wilson v. Mason, supra, and also said: “Where a broker is employed to sell property by the owner, if he produces a purchaser within the time limited by his authority, who is ready, willing and able to purchase the property upon the terms proposed by the seller, he is entitled to his commissions, even though the seller refuses to perform the contract on his part. In such case, however, it is necessary for the broker to prove the readiness, willingness and ability of the purchaser to take the property on the terms proposed.” In Hersher v. Wells, 103 Ill. App. 418, the court said: “If appellants in the Wilson case, in addition to the written contract, which the court declared to be void as being within the statute of frauds, had been able to show that the purchasers found were willing, ready and able to take the property, irrespective of the void written agreements, there is nothing in the reasoning of that case which leads us to believe that the court would, as a matter of law, have denied the brokers their commissions; but the contrary would seem to follow from the second paragraph of the opinion.” In Scott v. Stuart, 115 Ill. App. 535, the court, speaking through Mr. Justice Vickers, now of the Supreme Court, said: “The cases of Wilson v. Mason, 158 Ill. 304, and Lawrence v. Rhodes, 188 Ill. 101, relied upon by appellee, are distinguishable from the case at bar in this, that in those cases the sale failed because the purchaser refused to go on with the deal, and there being no enforceable contract binding him, the vendor lost, without his fault, the benefit of the sale, and hence was released from the payment of commission. Here, as we have seen, it may be found that the sale failed owing to the default of appellee, and if so, the rule announced in the Wilson and Lawrence cases does not apply.” To the same effect is Schulte v. Meehan, 133 Ill. App. 491.

If the agreement between the parties to this ease was that the plaintiff should effect an exchange of the said premises, and without fault of the defendant the said Gregory refused to carry out the said contract of exchange, and the same was not mutually obligatory upon the parties thereto, the case would come within the rule announced in the Wilson case, and there could be no recovery. However, such is not the case at bar.

A real estate broker, to maintain a suit for commissions, must base the action upon a contract, express or implied. The plaintiffs here relied upon an express contract. They produced a purchaser who was accepted by the defendant and with whom she entered into a contract. She was not bound to accept the same without a reasonable opportunity to enquire and satisisfy herself as to same,—Greene v. Hollingshead, 40 Ill. App. 195—and she is therefore not in a position to take advantage of a want of title in the party whom she accepted and entered into a contract with, in order to defeat the plaintiffs’ claim for commission, unless she first shows that she was ready to perform the said contract of exchange on her part, as therein by her agreed.

We are of the opinion, under the facts presented, the court should have admitted the evidence offered by the plaintiffs, and if proof had been made as offered, that the said John E. Gregory was able, ready and willing to perform the said contract of exchange as therein on his part provided, even though the said contract was not mutually obligatory on the parties owning the premises to be exchanged, the plaintiffs wonld make out their case.

For the reasons indicated the judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    Stromberg, Allen & Company, Defendant in Error, v. Frank W. Hill et al., Plaintiffs in Error.
    Gen. No. 16,217.
    1. Decebe—effect where predicated upon unconstitutional law. If a bill be predicated upon a law which has been declared unconstitutional a decree based thereon should be reversed and the bill dismissed for want of equity, unless the bill and decree are sustainable upon other grounds.

      2. Wages—when assignment void. An assignment of wages earned under an employment not existing at the time .of its making is void.
    Error to the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding. Heard in this court at the March term, 1910.
    Affirmed in part and reversed in part.
    Opinion filed May 20, 1912.
    William H. A. Rust, for plaintiffs in error.
    Archibald Cattell, for defendant in error.
   Mr. Justice Smith

delivered the opinion of the court.

A bill was filed April 14, 1906, by the complainant, here the defendant in error, against the defendants, here the plaintiffs in error, alleging, inter alia, that the defendant, Charles H. Dickinson, was employed by the complainant on November 7, 1905, and was not prior thereto in the employment of the complainant; that on or about August 25, 1905, said Dickinson was indebted to the defendant, Frank W. Hill, in the sum of about three hundred and fifty dollars; that on said August 25,1905, and for some weeks thereafter said Dickinson was in the employ of The Faithorn Printing Company in the city of Chicago; that on said date and while so employed the said Dickinson ‘ ‘ executed an assignment of all wages which might thereafter become due, whether then earned or unearned, to said defendant Hill,” to secure the said indebtedness; that at said time the said Dickinson was married and Renna Dickinson, his wife, joined in said assignment; that contemporaneous with the execution .of the said assignment said defendant Dickinson executed a power of attorney to the defendant, John A. Mills, thereby authorizing and empowering the said Mills to execute further and additional assignments of any wages that might thereafter become due the said defendant Dickinson from any person, firm or corporation whatsoever; that, after the execution of said instruments the said Dickinson left the employment of said Faithorn Printing Company and went to Grand Rapids, Michigan, and-entered the employment of the Grand Rapids Engraving Company; that on January 23,1906, the said Mills executed a pretended assignment of the wages of the said Dickinson due from the complainant to said Dickinson on said date and thereafter to become due up to and including July 23, 1906, signing the names of the said Dickinson and his wife and acknowledging the same as their attorney in fact before one Henry Roth, a Justice of the Peace for the township of North Chicago, and served a copy thereof on the complainant on January 26, 1906. It was also alleged that said Hill began a suit against complainant upon the said assignment before the defendant, Joseph Hall, a Justice of the Peace in the town of Cicero, Cook County, Illinois, and on March 13, 1906, a judgment was rendered therein against the complainant for the sum of seventy-eight dollars, from which said judgment the complainant- appealed to the County Court of said County; that on March 15,1906, another suit was begun by the sáid Hill against the complainant upon the said assignment before the said Justice of the Peace, Hall, which is still pending and undetermined; that the said pretended assignment was not personally executed by either the said defendant Dickinson or his said wife, and the said pretended assignment is void and of no effect and in violation of the statute; that the complainant will be continually subject to harrassing suits upon the said assignment and be subjected to great expense and annoyance, and prays that the said defendants, their agents, etc., be restrained from enforcing or attempting to enforce against the complainant said pretended assignment of wages of January 23, 1906, or making any further assignments under the pretended authority of said power of attorney of August 25, 1905, or from prosecuting or attempting to prosecute said suit begun March 15, 1906, or any other suits based upon said assignment of January 23, 1906, and that said pretended power of attorney dated August 25, 1905, be decreed void and of no effect.

The said defendants, Hill, Mills and Hall, were duly served and on failing to appear, their default was entered and the temporary restraining order entered pursuant to the prayer of the bill was made perpetual, and said defendants sued out this writ of error November 15, 1909, to reverse the said decree.

The defendants urge that the bill being based upon the statute of May 13, 1905, in relation to the assignment of wages or salary, and the said statute having been declared unconstitutional and void in Massie v. Cessna, 239 Ill. 352, the decree should be reversed and the bill dismissed for want of equity. The contention of the defendants in this repeat is correct unless the decree should be sustained upon other grounds than the said statute.

The defendants being in default, the allegations of the bill well pleaded are accepted as true. It will be observed that at the time of the execution of said assignment and power of attorney the said Dickinson was not employed by the complainant. In Mallin v. Wenham, 209 Ill. 252, where there was an assignment of wages by Mallin, while employed by Armour & Co., ‘‘ due or to become due me from Armour & Co. or from any other persons, or persons, firm, copartnership, company, corporation, organization or official by whom I am now or may hereinafter become employed, at any time before the expiration of ten years from the date hereof,’’ the Court said: “The assignment of appellant’s wages was simply a lien on the same so long as he remained in the employ of Armour & Co. and until the indebtedness secured thereby was satisfied. Should the appellant quit his employment with Armour & Co. he would by that act destroy the assignment as security.”

In Hartley v. Tapley, 2 Gray, 565, the Court said:

< < ruje that wages to be earned under ah engagement existing at the time of giving the order are assignable; but not money to be earned hereafter under a new engagement.”

In Lehigh V. R. R. Co. v. Woodring, 116 Pa. St. 513, the Lehigh Co. paid Woodring’s wages to another under an assignment of future earnings executed before Woodring entered the employ of said company. In a suit by Woodring for said wages, the trial judge gave judgment for the plaintiff in an opinion well worth reading. The Supreme Court said in affirming the judgment: ‘ ‘ The attempt was to assign that which had no existence, either substantial o.r incipient. There was no foundation or contract on which an indebtedness might arise. It was the mere possibility of a subsequent acquisition of property. This is too vague and uncertain. ’ ’ The same rule is announced in Kennedy v. Tiernay, 14 R. I. 528; Metcalf v. Kincaid, 87 Ia. 443, and National Biscuit Co. v. Consolidated Agencies Co., 153 Ill. App. 214. We think it clear under these authorities that the said assignment of wages, so far as it purported to assign the wages earned by the said Dickinson in the future from employers other than said The Faithorn Printing Company, and with whom he had no contract of employment at the time of said assignment, was void and of no effect.

If, then, Dickinson could not at the time of executing said assignment of wages make a valid assignment of future earnings from employers, other than The Faithorn Printing Company, and with whom he then had no contract of employment, it seems to us manifest that he could not then authorize or empower another to so do, and the power of attorney executed August 25, 1905, in so far as it attempted to authorize and empower Mills to assign that which Dickinson, the principal, could not assign, was void.

It necessarily follows that the attempted assignment of Dickinson’s wages by Mills to Hill under date of January 23, 1906, was void and of no force and effect. It was this void assignment of wages upon which Hill had secured a judgment against the complainant before Justice of the Peace Hall. • It was this same instrument upon which another suit was then pending before the same Hall and upon which other suits as alleged in the bill were threatened to be begun against the complainant. Under such circumstances and the authority of High on Injunctions, vol. 1, see. 63, and National Biscuit Co. v. Consolidated Agencies Co., 153 Ill. App. 214, the Court properly took jurisdiction and enjoined the said defendants Mills and Hill, and as to them the decree is affirmed.

The injunction, however, should not have been entered against the defendant, Justice of the Peace Hall, and as to said Hall it is reversed. High on Injunctions, vol. 1, sections 45 and 46; National Biscuit Co. v. Consolidated Agencies Co., supra.

Affirmed in part and reversed in part.


text:
    John A. Carroll, Appellant, v. Margaret M. Leafgreen, Appellee.
    Gen. No. 16,244.
    Brokers and factors—when commissions not earned. If a broker be employed to effect a specified exchange of properties within a time stated to entitle him to his commission he must either within such time completely effect the exchange or else obtain a binding and enforceable contract by which such exchange may be effected.
    Appeal from the Municipal Court of Chicago; the Hon. Edward A. Dicker, judge, presiding. Heard in this court at the March term, 1910.
    Affirmed.
    Opinion filed May 20, 1912.
    Edward Maher, for appellant; Bernhardt Frank, of counsel.
    Lee & Lee, for appellee.
   Mr. Justice Smith

delivered the opinion of the court.

The appellant began a suit of the first class in the Municipal Court of Chicago against the appellee to recover commissions alleged to have been earned by him as a real estate broker in certain real estate negotiations. The issues were submitted to the Court without a jury and the Court found for the appellee, the defendant below, and entered judgment on the finding, and the appellant, the plaintiff below, appealed therefrom.

The appellant received from the appellee on the day of its date the following written instrument:

“Chicago, March 4, 1909.
I will trade the buildings 5410-12-14-16 Cornell avenue subject to a mortgage of $32,000 at 5% for the northwest corner of Forty-sixth street and Woodlawn avenue—110 feet on Woodlawn avenue by 193 feet on Forty-sixth street, and $5,000 cash—each party to pay his or her own taxes for 1908. This agreemet is based on a valuable consideration and is good for three days from date. I agree to pay the regular commission of 2y2 per cent.
Margaret M. Leafgreem. (seal) ”

On the same day Mr. and Mrs. L. D. Condee went to the said premises on Cornell avenue and were shown through the same by the appellee. On March 5, 1909, the said proposition to the appellant was accepted in writing by Mr. L. D. Condee, the husband of Martha J. Condee, the owner of said premises on Woodlawn avenue, and the- appellee was advised thereof, but refused to agree thereto. An abstract of title to the Woodlawn avenue premises was subsequently tendered to the appellee and her counsel, who refused to receive same or do anything further toward consumating the proposed exchange, and on May 6, 1909, the appellant began this suit, seeking to recover a commission of 2y2 per cent on $70,000.

On the trial Mr. Condee testified in regard to representing his wife: “I was acting as her agent in this, as I always acted in all other matters. ’ ’ Mrs. Condee testified that Mr. Condee acted as her agent, and answered “Yes sir” to counsel’s question, “Were you ready, willing and able to carry out that agreement?”

The appellee’s defense was that after receiving the acceptance by Mr. Condee, the counsel for the appellee examined the records and found the title of the Wood-lawn avenue premises in Martha J. Condee, and the appellant, not carrying out the agreement, because the acceptance by Mr. Condee was not binding upon Mrs. Condee, the owner of the premises, there could be no recovery. The appellee relies solely upon the authority of Wilson v. Mason, 158 Ill. 304.

The appellant insists upon his right to recover commissions under the rule of law that a real estate broker is entitled to commissions when he furnishes a party able, ready and willing to purchase the premises offered on the terms stipulated. In our opinion this rule is not applicable to the facts in the case at b$x.

The appellee made the proposition to exchange her premises for certain other described premises on certain terms, stating under seal that the same was “based on a valuable consideration' and is good for three days. ’ ’ The appellant was employed, not to find a purchaser in the market, but to accomplish the things required of him in compliance with the terms of the said proposition. If he performed the obligation devolving upon him under the said proposition, he thereby earned and was entitled to the commission therein agreed upon. If he did not perform his undertaking, he was certainly not entitled to recover.

What, then, is the construction of the proposition as to the appellant’s obligation thereunder? Had he secured the actual exchange of the premises within three days from its date, on the terms therein expressed, there could be no question of his right to his commission; but we assume that it will be agreed that a fair construction of the proposition did not mean his commission depended upon the. actual exchange of the said premises within said time. Did it mean that if he secured the agreement of one not binding upon the owner of the said Woodlawu avenue premises within the said three days, to make the exchange on the terms stipulated, he would thereby earn his commission? If the proposition be so construed, then, upon the securing of such unenforceable agreement within said three days, his commission would be earned and his right thereto fixed, and he could recover the same, although at any time thereafter, without any fault of the appellee, the owner of the Woodlawn avenue premises, without any reason, refused to carry out the contract of exchange. This was certainly not the meaning of the proposition.

It should be observed that the appellee did not accept the contract presented to her signed by Mr. Condee. Had she accepted the same, then under the authority of Fox v. Ryan, 240 Ill. 391-397, a different question would arise. On this question our view of the law is stated in an opinion of this date in Plummer et al. v. Pauler, ante, p. 317.

It seems to us that the proper construction of the said proposition ^.required the broker, to entitle him to the commission therein agreed upon, to secure within three days an agreement binding upon the owner of the Woodlawn avenue premises to make the exchange of premises as therein provided. The appellant was not at liberty, under said authority given him, to secure an agreement to exchange some other premises or an agreement from some party not binding upon the owner of the Woodlawn avenue premises, but his undertaking was limited to the premises mentioned, and to secure an agreement not binding upon the owner thereof would not fulfill the terms of his employment.

Mrs. Condee was and bad been for many years the owner of the said Woodlawn avenue premises, and the evidence heretofore quoted, that Mr. Condee was the agent of Mrs. Condee and that she was able, ready and willing to carry out the contract tendered by him, is not. sufficient to prove that the same was binding upon and enforceable against Mrs. Condee, and she could not have been compelled to specifically perform same; Cage v. Cummings, 209 Ill. 120; Kuhn v. Eppstein, 219 Ill. 154; and we do not understand that the appellant contends that the said contract was enforceable against Mrs. Condee.

We conclude that under the terms of the appellant’s employment he was obligated to effect an exchange of the said premises or to secure within three days a contract mutually obligatory upon the owners of the said premises to make the said exchange upon the terms proposed. Failing to perform the obligation imposed, he cannot recover. Kerfoot v. Steele, 113 Ill. 610; Wilson v. Mason, 158 Ill. 304; Lawrence v. Rhodes, 188 Ill. 96.

The judgment is affirmed.

Affirmed.


text:
    Henry Reichert, Defendant in Error, v. David Wiener, Plaintiff in Error.
    Gen. No. 16,274.
    Appeals and errors—what not part of record. A bill of particulars is not a part of the record unless made so by incorporation in a bill of exceptions.
    Error to the Circuit Court of Cook county; the Hon. Merritt W. Pinckney, Judge, presiding. Heard in this court at the March term, 1910.
    Affirmed.
    Opinion filed May 20, 1912.
    Sonnenschein, Berkson & Fishell, for plaintiff in error.
    Frank L. Hume, for defendant in error.
   Mr. Justice Smith

delivered the opinion of the court.

The plaintiff, here the defendant in error, brought a suit against the defendant, here the plaintiff in error, before a justice of the peace to recover the statutory penalty for cutting trees upon plaintiff’s land. The plaintiff was given a judgment for $183 by the justice of the peace, and the defendant appealed to the Circuit Court of Cook county. On the call of the ease for trial in the Circuit Court, the defendant not appearing, the appeal was dismissed with procedendo and statutory damages for the sum of $18.30 assessed against the defendant and judgment entered therefor; to reverse which the defendant sued out this writ of error.

It is contended by the defendant that in the bill of particulars filed in the Circuit Court by the plaintiff, he therein claimed more than $200, and the Circuit Court having "no greater jurisdiction than the justice of the peace, on an appeal from the said justice the Circuit Court had no jurisdiction, and it was error to enter the said judgment. The plaintiff insists that the said bill of particulars expressly limited the claim of the plaintiff to the sum of $200.

There were no pleadings in the case and none were required. A bill of particulars is no part of the record unless preserved by a bill of exceptions. Eggleston v. Buck, 24 Ill. 262; Hess Co. v. Dawson, 149 Ill. 138; Star Brewery v. Farnsworth, 172 Ill. 247; Bowlan v. Lambka, 57 Ill. App. 334; Robinson v. Holmes, 75 Ill. App. 203.

The record contains no bill of exceptions, and therefore the bill of particulars cannot be here considered.

The judgment is affirmed.

Affirmed.


text:
    The People of the State of Illinois, Defendant in Error, v. Clarence Edwards, Plaintiff, in Error.
    Gen. No. 16,296.
    Municipal court—what not within criminal jurisdiction. On December 17, 1909, the municipal court had no jurisdiction to entertain a prosecution for petit larceny.
    Error to the Municipal Court of Chicago; the Hon. Judson P. Going, Judge, presiding. Heard in this court at the March term, 1910.
    Reversed.
    Opinion filed May 20, 1912.

      Charles E. Erbstein, for plaintiff in error.
    John E. W. Wayman, for defendant in error.
   Mr. Justice Smith

delivered the opinion of the court.

The plaintiff in error was arrested and prosecuted in the Municipal Court of Chicago, December 17,1909, on an information charging him with petit larceny. On a trial before the Court without a jury he was found guilty and sentenced to the House of Correction for six months and to pay a fine of ten dollars.

The Municipal Court of Chicago at that time had no jurisdiction to try the plaintiff in error on an information charging him with petit larceny. People v. Russell, 245 Ill. 268; People v. Perry, 156 Ill. App. 466; People v. Rowe, 157 Ill. App. 542.

The judgment of the Municipal Court is reversed.

Reversed.


text:
    Panagoites Ziankos et al., Appellees, v. Hellenic Orthodox Church, San Constantine et al., Appellants.
    Gen. No. 18,299.
    1. Chancery—when will not talce jurisdiction of ecclesiastical dispute. A court of chancery will not ordinarily concern itself with the action of an ecclesiastical institution in removing its officiating priest.
    2. Injunctions-—token appropriate to maintain status guo. Where it is alleged that the offices of trustees and inspectors of a church organization have been illegally usurped a court of equity may properly grant an injunction to maintain the status guo.

    Bill for injunction. Appeal from the Superior Court of Cook county; the Hon. Theodore Bkentano, Judge, presiding. Heard in this court at the March term, 1910.
    Affirmed.
    Opinion filed May 20, 1912.

      Stedmah & Soelke, for appellants.
    D. W. Parker, for appellees.
   Mr. Justice Smith

delivered the opinion of the court.

This is an appeal from an interlocutory injunction restraining the appellants from interfering with the conduct of the affairs of the Hellenic Orthodox Church San Constantine. The bill was filed by the complainants, here the appellees, against the said church corporation and its fifteen alleged pretended trustees and five alleged pretended inspectors individually as defendants. Eight of the defendants filed answers admitting the allegations of the bill were true. The church corporation and nine of the individual defendants filed answers denying many of the allegations of the bill and replying with counter charges, and on a hearing on the pleadings and affidavits of a motion to dissolve the said temporary injunction, which had been entered on motion of the complainants without notice to the defendants, the court refused to dissolve same, and from this order the defendants appealed.

The record shows a bitter and unfortunate controversy over the question of removing the priest in charge of said church. With this question alone, as disclosed by the record, the court will not concern itself.

The bill appears to be based upon inconsistent theories. One, that there was no constitution adopted by the said church corporation, and the other that the said trustees were not lawfully elected under the said constitution, and were doing certain acts in violation of the provisions of the said constitution.

It may be that taking into consideration all the allegations of the bill, it might be properly held that they charged an illegal usurpation by the defendants of the offices of said trustees and inspectors. If this be the view taken by the Chancellor of the allegations in the bill, he would be warranted in preserving the status quo on the evidence submitted, which consisted of charges and counter charges deplorable indeed, and no good could result in their recital here. We do not think it necessary to further discuss the pleadings or make any comment on the affidavits on this appeal.

We have concluded that under all the circumstances we should not reverse the said restraining order, which preserves the status quo until a final hearing and disposition of the cause.

Affirmed.