author: Mr. Justice Fitch

text:
    The People of the State of Illinois, Defendant in Error, v. Max Stricker, Plaintiff in Error.
    Gen. No. 16,385.
    1. Information—effect of omission of word “unlawful.” The omission of the word "unlawful” from an information is not materia] where it concludes "contrary to the form of the statute,” etc., as such allegation is equivalent to the employment of the word unlawful.
    2. Labels and trademarks—what proof not essential in prosecution

      for use of counterfeit. If the label alleged to have beeú counterfeited is shown to have been the property of a dc facto corporation it is sufficient notwithstanding the information charge ownership in a corporation organized under the laws of a specified state.
    Error to the Municipal Court of Chicago; the Hon. Edwin K. Walker, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed May 23, 1912.
    Rehearing denied June 6, 1912.
    Richard J. Cooney and John A. Verhoeven, for plaintiff in error.
    John E. W. Wayman, for defendant in error.
   Mr. Justice Fitch

delivered the opinion of the court.

Max Strieker, doing business as Imperial Distilling & Cordial Company, plaintiff in error, and hereinafter called defendant, was found guilty of knowingly selling a Bottle containing a liquid resembling gin, to Which bottle was attachel a label which was a counterfeit and an imitation of a label theretofore adopted and Used by Tanqueray Gordon & Company, a corporation. After a motion for new trial was heard and overruled, the court entered judgment on the verdict and the defendant was sentenced to pay a fine of $200 and to ten months’ imprisonment in the House of Correction, from which judgment the defendant has prosecuted a writ of'error to this court.

The information and the offense therein charged are based upon Sections 1 and 2 of Chapter 140 of the Revised Statutes, as amended in 1895, being an act of the legislature entitled, “An act to protect associations, unions of working men and persons in their labels, trade marks and forms of advertising.” Section 1 of that act makes it unlawful to counterfeit or imitate any label, trade mark, design or form of advertisement, or to utter or circulate any counterfeit thereof, which has been adopted or used by any person, association or union of working men for the purpose of making known or distinguishing any goods, wares or merchandise as having been made, manufactured, produced, prepared, packed or put on sale by such person, association or union. Section 2 provides, among other things, as follows: “Whoever counterfeits or imitates any such label, trade mark, term, design, device or form of advertisement * * * or knowingly sells or disposes of any goods, wares, merchandise or other product of labor contained in any box, ease, can, or package to which or on which any such counterfeit or imitation is attached, affixed, painted, stamped or impressed * * * shall be punished by a fine of not less than one hundred (100) dollars nor more than two hundred (200) dollars, or by imprisonment for not less than three (3) months nor more than one (1) year, or by both such fine and imprisonment.”

The case was tried upon an amended verified information which, omitting the signatures and verification, is as follows:

“John M. Boteler, in bis own proper person, comes now here into court, and, in the name and by the authority of the People of the State of Illinois, gives the court to be informed and understand that Max Stricker, doing business as Imperial Distilling and Cordial Company, late of the said City of Chicago, heretofore, to-wit, on the 6th day of May, A. D. 1909, at the City of Chicago, aforesaid, did sell a certain bottle containing goods, wares and merchandise, to-wit, a certain liquid resembling gin, to which bottle was attached a counterfeit or imitation label, as he, the said Max Strieker, well knew then and there, which counterfeit and imitation label is described as follows, to-wit: A label about four inches long by about three and one-half inches wide, containing thereon words in the English language purporting to be a report on Gordon & Co.’s ‘dry gin,’ London, dated September 2, 1899, by one E. Godwin Clayton, F. T. C. F. C. S., consulting chemist and analyst, which said label was then and there a counterfeit and an imitation of a certain label theretofore adopted and used and then and there being used by Tanqueray, Gordon & Co., a corporation, organized under the laws of Great Britain, which said label was adopted and used by said corporation for the purpose of designating and making known and distinguishing certain goods, wares and merchandise as having been made, manufactured, packed and put up and put on sale by the said Tanqueray, Gordon & Co., which said label so adopted and being used as aforesaid was, on February 20,1907, filed in the office of the secretary of state of the State of Illinois, as is by law provided, contrary to the form of the statute in such case made and provided and against the peace and dignity of the People of the State of Illinois.”

The following facts appear from the evidence. Ill May, 1909, the defendant, under the name of Imperial Distilling and Cordial Company, was engaged in the business of buying and selling liquors, and in compounding and bottling the same. He occupied a four story and basement building at 81 Illinois street, Chicago. In the basement were kept crates of empty, used bottles, of various kinds, which were brought in by the wagon load. The top floor was equipped and used for washing and filling such bottles. The third floor was used for “distilling and compounding;” the second was filled with barrels of liquor, and the first was the office and salesroom, containing cases of filled and labeled bottles of wine, brandy, whiskey and gin. It was shown that the genuine “Gordon Gin” is made by Tanqueray, Gordon & Co. of London, England; that the aetual cost of such gin to importers in Chicago is $8.05 per case of a dozen bottles, when received in car load lots; that the defendant was selling what purported to be the same commodity at from $6.50 to $8.00 a case, and out of these prices he was paying commissions as high as fifteen per centum for selling the same. For several months prior to May 6, 1909, the Robert T. Mott Amusement Co; conducted a saloon called the “Pekin Buffet” in State Street, Chicago, and purchased what gin it used from the defendant exclusively. On the day last mentioned defendant' sold to Mott two cases of gin at $8.00 a case and billed the same to Mott, who paid for it in the usual course of business, after deducting a cash discount of two per centum. One of the bottles of this sale was identified and offered in evidence. Upon the bottle was pasted a label, which was clearly shown to be a counterfeit or imitation of the label theretofore adopted and in use by Tanqueray, Gordon & Co. on their bottles of genuine “Gordon Gin,” the fact of such adoption being shown by the certificate of the Secretary of State as provided by Section 3 of the act above mentioned.

It is urged by defendant’s counsel (1) that the verdict is not sustained by the evidence, (2) that the instructions given were inaccurrate and misleading, (3) that the motion to quash the amended information (which was made before the trial) should have been allowed, for the reasons that the amended information does not allege the sale was “unlawful” nor to whom it was made, and that the label is not set out in liaec verba; (4) that it was not shown that Tanqueray, Gordon & Co. is a “corporation organized under the laws of Great Britain;” and (5) that a variance exists between the ownership of the label as alleged in the information and as stated in the certificate of the Secretary of State.

As to the alleged variance, the record shows that it does not in fact exist. Counsel have been misled by a typographical error or omission in the abstract. As to the omission of the word “unlawful” from the information, the conclusión “contrary to the form of the statute * * * and against the peace” is an equivalent allegation. State v. Tibbetts, 86 Me. 189, 191.

The fact that Tanqueray, Gordon & Co. was “a corporation organized under the laws of Great Britain,” seems to have been conceded in the court below, for defendant’s counsel attempted to prove that a corporation of that name and so organized had brought a civil suit against the defendant in the Federal Court for the value of the goods alleged to have been sold by him by the use of counterfeit labels, and that such suit was pending at the time of the trial of this case in the court below. If such an allegation is material or necessary to be proved in this class of cases, which may be doubted, (Quigley v. People, 3 Ill. 301), it was only necessary to prove the de facto existence of the alleged corporation by user, reputation or otherwise. Kossakowski v. People, 177 Ill. 563; Hurd’s Stat. of Ill., Chap. 38, Sec. 486 (1909 Ed.). The allegation that the corporation was “organized under the laws of Great Britain” was unnecessary in any event, and may be treated as surplusage. McCarney v. People, 83 N. Y. 408.

We apprehend that no one would contend that an information, which partakes of the nature of a declaration in a civil suit, and may be amended (Long v. People, 135 Ill. 435), must be any more explicit in its allegations than an indictment; and as to the latter the Criminal Code (Sec. 6 of Div. XI) provides: “Every indictment * * * shall be deemed sufficiently technical and correct which states the offense in the terms and language of the statutes creating the offense, or so plainly that the nature of the offense may be easily understood by the jury. ’ ’ The information in this case is substantially in the language of the statute and, in our opinion, it is stated so plainly that its meaning could not be misunderstood by the jury. This is all the law requires. Maxwell v. People, 158 Ill. 248; Graham v. People, 181 Ill. 477; People v. Scattura, 238 Ill. 313; Strohm v. People, 160 Ill. 582; White v. People, 179 Ill. 356.

In Glover v. People, 204 Ill. 170, 174, the court said:

“In Cannaday v. People, 17 Ill. 158, it is said: ‘Where statutes create offenses, indictments should contain proper and sufficient averments to show a violation of the law. * * * G-reat niceties and strictness in pleading should only be countenanced and supported when it is apparent that the defendant may be surprised on the trial, or unable to meet the charge or make preparation for his defense for want of greater certainty or particularity in the charge. Beyond this, it tends more to the evasion than the investigation of the charge, and becomes rather a means of escaping punishment for crime than of defense against the accusation. ’ ”

It will be unnecessary to discuss at length the remaining questions raised. We have given them due and careful consideration and find nothing which, in our opinion, is reversible error. We are satisfied beyond any reasonable doubt from the evidence that the defendant is guilty as charged in the amended information. The record before us shows that he has had a fair and impartial trial in which he was accorded every substantial right the law gives him, and deprived of none. He made no defense upon the merits,' but relied wholly on technical objections to the People’s case. To permit any of these technicalities to succeed in this court under such circumstances, would, in our opinion, be little else than a miscarriage of justice.

The judgment will be affirmed.

Judgment affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Louis L. Loeb, Defendant in Error, v. Leo. A. Loeb et al., Plaintiffs in Error.
    Gen. No. 16,537.
    1. Practice—when affidavit of claim sufficient. An affidavit of plaintiff's claim may be made by agent or attorney.
    2. Practice—when affidavit of merits properly stricken. If an affidavit of merits interposed by a defendant is insufficient it is properly stricken and the right of the plaintiff to judgment necessarily follows.
    Error to the Municipal Court of Chicago; the Hon. Henry C. Beitlbr, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed May 23, 1912.
    Sidney N. Ware, for plaintiffs in error.
    Adler & Lederer, for defendant in error.
   Mr. Justice Fitch

delivered the opinion of the court.

Defendant in error (hereinafter called the plaintiff) brought suit in the Municipal Court against plaintiffs in error (hereinafter called the defendants) to recover the amount of a balance of $254.97 claimed to be due on two promissory notes for $250 each, signed by defendants and payable to the order of plaintiff two and three months, respectively, after the date thereof and the amount of- the protest fees paid. With the statement of claim, plaintiff filed an affidavit of the amount due, made by Sidney Adler, who states that he is “the attorney and agent of the plaintiff.” Defendants entered their written appearance by attorney and demand for a jury trial, and, a,t the same time, filed an affidavit of merits to the whole of the plaintiff’s demand, alleging, as their defense, that the plaintiff had “failed to return a certain promissory note previously paid by the defendants.” On motion, this affidavit was stricken from the files, and three days’ time was given to file another. The next day, defendants filed a similar affidavit to the same effect, with more words. On motion, this was also stricken, and three days more were given to file another. A third affidavit was then filed stating that “there is not due upon said promissory notes * * * the sum of $254.97 and there is no sum of money due * * * for protest fees advanced.” On motion, this affidavit was also stricken from the files and defendants were given two days to file an amended affidavit, but none was filed. Five days later, defendants moved to strike the plaintiff’s affidavit of claim from the files. The court denied this motion, and on the counter-motion of the plaintiff, entered a default against the defendants for want of an affidavit of merits. A month later a jury trial was had and a verdict and judgment entered against defendants for $262 and costs, from which they have prosecuted this writ of error.

It is first claimed that under Section 55 of the Practice Act, an affidavit of plaintiff’s claim must be made by the plaintiff in person, and cannot be made by an agent or attorney of the plaintiff. The law is well settled that such an affidavit may be made by any one cognizant of the facts. Young v. Browning, 71 Ill. 44; Bank of Chicago v. Hull, 74 Ill. 106; Wilder v. Arwedson, 80 Ill. 435; Honore v. Home National Bank, id. 489; Brigham v. Atha, 84 Ill. 43; Garrity v. Lozano, 83 Ill. 597.

It is also assigned for error, but not discussed in the briefs, otherwise than by the mere mention of the point, that the court erred in striking the several ‘ ‘ affidavits of merits” from the files and in entering default for want of a proper affidavit. We fail to see any error in the action of the court in this regard. Defendants’ affidavits were clearly insufficient, and were therefore properly stricken. The right of-the plaintiff to judgment followed. New York Exchange Bank v. Reed, 232 Ill. 123, 125.

Several minor points are raised, but we find none of them well taken.

The judgment will be affirmed.

Judgment affirmed.


text:
    Frank B. Easter, Defendant in Error, v. George C. Newbury, Plaintiff in Error.
    Gen. No. 16,576.
    1. Brokers and factors—when real estate commissions may he recovered. A real estate broker is entitled to his commissions when the purchaser and seller enter into a valid and enforceable contract and this right of the broker is not affected if one or both of the parties subsetquently refuse to carry out the contract.
    2. Assumpsit—when third party may sue upon contract. Where one enters into a simple contract with another for the benefit of a third person, such third person may maintain an action directly on the contract.
    Error to the Municipal Court of Chicago; the Hon. William N. Cottrell, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed May 23, 1912.
    H. F. Dickinson, for plaintiff in error.
    Harvey Strickler, for defendant in error.

   Mr. Justice Fitch

delivered the opinion of the court.

On October 25, 1909, after some negotiations conducted through the agency of defendant in error, who is a licensed real estate broker doing business under the name of F. B. Easter & Co., a written contract was entered into between plaintiff in error and one Anna Wakerli, by which plaintiff in error agreed to purchase of her certain real estate in Chicago at an agreed price of $8000 to be paid as follows: $1500 in cash, $5500 by the assumption of an existing mortgage upon the property, and the remainder, $1000, by conveying to her two lots in Chicago. The contract was in the usual form of a contract for the exchange of real estate and by one clause thereof, it was mutually agreed “that brokerage fees or commissions shall be paid to F. B. Easter & Co. Party of first part” (Wakerli) “agrees to pay 2y2% commission, and party of the second part” (Newbury) “agrees to pay one hundred dollars commission, by the respective parties hereto as heretofore agreed by them.” The contract provided that “deeds shall be passed * * * within five days after the titles have been found good;” that each should furnish the other, within a reasonable time, a registered title certificate, a title guarantee policy, or an abstract of title; that if the latter be furnished, the party receiving the same should within ten days specify in writing his objections to the title, if any, or if none, that the title is satisfactory; that if objecions be reported and not cured within sixty days, the party objecting might elect to take the title or to abandon the contract, in which event it should become null and void and cease to have any force or effect' as against the premises described.

A month or six weeks later, Easter asked Newbury to pay the agreed commission of $100. Newbury said “he could not fulfill the deal; that his wife was not willing to join in the transaction,” and refused to pay. Easter thereupon brought suit in the Municipal Court and on a trial before the court introduced evidence of the foregoing facts. Newbury offered no evidence. Easter recovered judgment for $100 and Newbury sued out this writ of error.

Plaintiff in error claims that the clause of the contract relating to commissions should be construed as having binding force only “upon the closing of the deal,” and urges that if such be the correct construction, then it was incumbent upon Easter to prove that all the terms and conditions of the contract between the plaintiff in error and Anna Wakerli had been fully performed.

We cannot agree to this contention or to this construction of the clause in question. The clause is merely an admission or acknowledgment that the commissions named therein have been earned. It is well settled that a real estate broker is entitled to his commissions when the purchaser and seller enter into a valid and enforceable contract; and this right of the broker is not affected if one or both of the parties subsequently refuse to carry out the contract. Jenkins v. Hollingsworth, 83 Ill. App. 139; Russell v. Hurd, 113 Ill. App. 63; Dennis v. Walters, 123 Ill. App. 93; Tackett v. Powley, 130 Ill. App. 97.

It is also well settled that where one enters into a simple contract with another for the benefit of a third person, such third person may maintain an action directly on the contract. Eddy v. Roberts, 17 Ill. 504; Webster v. Fleming, 178 Ill. 140.

There is no language in the contract in question which makes the broker’s commissions in anywise dependent upon any further action by either of the parties to the contract. The words ‘ ‘ as heretofore agreed by them” following the positive agreement that “brokerage fees or commissions shall be paid to F. B. Easter & Co.” with the amounts stated, clearly mean that the amounts stated are the amounts which the parties respectively have “heretofore agreed” to pay as commissions. In other words, the clause in question states what commissions Easter should be paid by each party. To give to this clause the construction contended for by counsel for plaintiff in error would do violence to the ordinary, simple and well understood meaning of the words themselves. If there was any different prior agreement (as is suggested by counsel) plaintiff in error could have shown that fact in defense, or in support of his theory of the contract. Npne was produced or shown hy him, however, and this fact gives rise to the presumption at least that no other contract was in existence.

The judgment will be affirmed.

Judgment affirmed.


text:
    William Anderson, Defendant in Error, v. Chicago City Railway Company, Plaintiff in Error.
    Gen. No. 16,600.
    1. Verdicts—when not disturbed as against the evidence. A verdict will liot be set aside as against the evidence unless clearly and manifestly so.
    2. Evidence—what competent in personal injury action. In an action for personal injuries suffered by a boy it is competent to show his condition of health prior to the accident, his intelligence and experience.
    3. Appeals and errors—when admission of erroneous evidence will not reverse. The admission of improper evidence will not reverse if the evidence admitted was not such as would be calculated to influence the jury.
    Action in ease for personal injuries. Error to the Municipal Court of Chicago; the Hon. McKenzie Cleland, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed May 23, 1912.
    W. D. Bartholomew and Charles J. Gould, for plaintiff in error.
    Laramie & Levy, for defendant in error.
   Mr. Justice Fitch

delivered the opinion of the court.

The Chicago City Railway Company, defendant below, seeks by this writ of error to reverse a judgment rendered against it in the Municipal Court for $400 for so negligently operating one of its street cars as to run into William Anderson, a boy ten years old, resulting in a broken leg.

The errors assigned are, that the verdict is against the weight of the evidence, that the boy was guilty of contributory negligence, and that the court erred in permitting the boy’s mother to testify that his “habits were good” before the accident and that he'had never before been injured by defendant’s cars.

The evidence tended to prove that on October 14, 1909, at eight o ’clock in the evening, the .boy Anderson started to cross Archer avenue, (on which the defendant operates a double-track street car line) at the intersection of Paulina street. He was going south. A west-bound car was passing at the time, and was “slowing down” to let off passengers at the west side of Paulina street. The boy waited until the car passed him and then walked across the tracks behind the car and stepped directly in front of another car coming towards him on the south or eastbound track. He was struck by the front of the latter car-and thrown to the ground. The car was stopped quickly and the boy was taken'from.under the car between.the fender and the forward trucks. The night was dark, and the boy testified that he heard no bell and had no warning of the approaching car. Just before the accident, a police officer stepped off the rear end of the west-bound car as it was slowing down at Paulina street and turned south behind that car to cross the street. He testified that he looked for an east-bound car, but did not see or hear one coming, that just then he saw “somebody shooting across the rear end of the car.” and then he saw the other car coming, but did not see it hit the boy and did not notice whether it had given any signal nor if there was a light on the front of the car, but did notice that th¿ inside of the car was lighted. The motorman of the east-bound car testified that he first saw the west-bound car a block away; that he was then going about seven miles an hour; that as he approached Paulina street and was about a car length (45 feet) from the west-bound car he “slowed down and rang his bell * * * shut off the power and applied the brakes a little bit;” that his car met the other car “a little bit east or a little bit west of the middle of the street;” that is, about the center of the Paulina street intersection; that when he arrived at a point ten feet from the rear end of the west-bound car, “a boy ran straight towards my car and the car struck him and broke his leg.” The conductor of the east-bound car did not see the accident, but said his attention was attracted by the “loud ringing of the gong and sudden stop.” A passenger standing on the front platform of the car which struck the boy, testified that he saw the boy running from behind the westbound car when the east-bound car was about ten feet away from him. “Just before that, the motorman slowed down his speed. When the motorman saw the boy, he stopped all of a sudden. The car ran about fifteen feet after the boy was struck.” These were the only witnesses to the accident.

In this state of the proof, we cannot say that the verdict is manifestly against the weight of the evidence, nor that the boy was guilty of contributory negligence as a matter of law.. The language of Mr. Justice Ball in the case of Fisher v. Chicago City Railway Co., 114 Ill. App. 217, is applicable, we think, to the facts in this case:

“The rights of the plaintiff and of the defendant at that street crossing were the same. Neither had the right to use it to the exclusion of the other. It was the duty of the plaintiff in approaching and in crossing the street car tracks to use reasonable care to avoid a collision with the car. It was the duty of the motorman to keep a lookout for persons and vehicles coming towards the track in front of his moving car; and in case anyone should go or drive upon such tracks, it is his duty to exert himself to slow the speed of his car, or to stop his car, so that, if possible, an accident may be avoided. The motorman is bound to use a greater degree oh care in approaching a street crossing than he is required to use at many other points in his route. These propositions have been decided many times by this court and by our Supreme Court. * * *
“Attempting to cross the track of a street railway ahead of an approaching car is not negligence per se. It may or may not be prudent to so do. The circumstances of each case determine that question. Whether or not the plaintiff was in the exercise of reasonable care for his personal safety, and whether or not the defendant was guilty of negligence at the time and place of this accident, are questions of fact, there being evidence in the record upon each of these points. Under proper instructions the determination of these issues should be left where the law places it, with the triers of facts, the jury. Chicago City Ry. Co. v. Sandusky, 198 Ill. 400.”

To the same effect, in principle, are Chicago City Ry. Co. v. Tuohy, 196 Ill. 410, and Stack v. East St. Louis & Sub. Ry. Co., 152 Ill. App. 613, affirmed in 245 Ill. 308.

In West Chicago Street R. R. Co. v. Stoltenberg, 62 Ill. App. 420, a truck was going east on Ohio street across the Milwaukee avenue street car tracks. A train of cable cars came up the avenue from the southeast close to the passing truck. Just as the truck cleared the street car tracks, a boy nine years old, who was north of the truck, stepped from behind it on the car tracks directly in front of the moving cable car on the street crossing and was run over and killed. The court held that whether the grip man was guilty of negligence, in not so controlling the movement of his train that it would not run over a person who might step from behind' a wagon on the crossing, was a question for the jury, and that the question of due care on the boy’s part must be answered “not from the standpoint of the care to be expected from an adult, but by that which is to be looked for in boys of the age and experience of the deceased.”

As to the alleged errors in the admission of evidence, it was competent for the plaintiff to show the boy’s condition of health prior to the accident and his intelligence and experience; and while the form of the two questions objected to was improper, the substance of the answers was such that we do not think the error in permitting the witness to answer was of such a character and so injurious to the defendant, as to require a reversal of the judgment under the circumstances shown in this case. No intelligent jury would attach much weight to a statement by a boy’s mother that his “habits were good,” and as used in this case the statement had very little meaning. Moreover, the jury was instructed that the plaintiff must prove by a preponderance of the evidence that he was in the exercise of such care and caution for his own safety as a boy of his age and capacity would exercise under the same or like circumstances; and as this omitted the element of the boy’s experience, we think the plaintiff in error has no good reason to complain.

For the reasons indicated, the judgment of the Municipal Court will be affirmed.

Judgment affirmed.


text:
    John C. Patterson, Plaintiff in Error, v. The Northern Trust Company et al., Defendants in Error.
    Gen. No. 16,613.
    1. Masters in chancery—when report advisory. A report of a master in chancery made pursuant to reference “to take evidence and report the same to this court together with his conclusions thereon,” is advisory merely, and has no force or effect as an adjudication, and such an order of reference does not amount to a delegation of judicial power.
    2. Masters in chancery—when permitting use of evidence taken upon previous reference not error. Such a practice, held, in this ease, not erroneous, and held, further, that a party availing thereof was in no position to complain.
    3. Masters in chancery—when findings presumed supported by evidence. The findings of fact by a master approved' by the court will be presumed to have been supported by the evidence heard where such evidence is not preserved and presented for review.
    4. Accounting—when preliminary reference proper. If the defendant to a bill for an accounting claims in his answer that he has fully accounted and denies that he has ever refused to account to the complainant, it is proper practice to make a special reference to a master to take testimony and report on the preliminary question or issue thus raised.
    5. Venue—when denial of application not error. A petition for a change of venue presented after the filing of the report of the master to whom the cause was referred should state that the alleged cause (prejudice) “has arisen or come to the knowledge of the applicant within less than 10 days before the making of the application.” Reasonable notice of such an application must likewise be given to the adverse party. If the application is defective in the form of the petition and in the absence of reasonable notice a denial of the change constitutes no abuse of discretion.
    6. Pleading—when supplemental bill properly stricken. Where leave to file a supplemental bill of complaint has been given, and the bill, when filed, seeks to relitigate adjudicated questions, etc., it may properly be stricken from the files.
    Error to the Circuit Court of Cook county; the Hon. Lockwood Honors, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed May 23, 1912.

      Vertiorari denied by Supreme Court (making opinion final).
    James Hamilton Lewis, for plaintiff in error.
    Judah, Willard, Wolf & Reichmann, for defendants in error.
   Mr. Justice Fitch

delivered the opinion of the court.

This writ of error was brought to < reverse a decree of the Circuit Court of Cook County, dismissing for want of equity a bill filed by the plaintiff in error for an accounting.

The facts alleged in the bill are in substance as follows: The complainant and all the defendants, except The Northern Trust Company, were the owners of a piece of ground ninety-one feet by ninety-five feet in size, located at the northwest corner of State and Washington streets, Chicago, which was encumbered by a mortgage for $140,000, and was leased for one hundred and two years, beginning May 1, 1893, to H. H. Kohlsaat (who had assigned the same to the Merrimac Building Company) at an annual rental of $47,350 for the first three years, $57,500 for the next five years, $65,000 for the next five and $75,000 for the remainder of the term, payable quarter-yearly. The building company, after issuing mortgage bonds against the leasehold, erected upon said tract of ground a twelve-story fire-proof office building, known as-the Stewart Building. In December, 1897, all the land owners, including complainant, executed a trust deed conveying the ground above mentioned, subject to the lease and the encumbrance of $140,000, to The Northern Trust Company in trust, to hold the same until May 1, 1917, and during that time to collect all the income from the same and out of such collections to pay, first, $20,000 as directed by the owners; second, interest on the encumbrance and all expenses of the trust, including $1000 a year as compensation to the trustee; third, certain annuities to the owners amounting to about $40,000 a year; and fourth, with the remainder to create a sinking fund to pay the encumbrance. By one clause of this trust deed it was provided that the agreement in writing of the owners of three-fourths of the property shall be binding in the settlement of the trustee’s accounts, and effectual to discharge it from any further accounting as to the matters included in any such setlement. The complainant has only a life estate in one-third of the interest of his son, Stewart Patterson, who is the owner, subject to such life estate, of one-fourth of the fee of said ground, and the amount of complainant’s annuity as fixed by the deed of trust, was $277.77 per month. It was also provided in the trust deed, that if the net rentals of the property should not be enough to pay the annuities, the trustee should advance the amount of the deficiency to the beneficiaries, and for such advances with interest, the trustee was given a lien upon the share of the fee of the owner to whom such advances were made.

At the time of the execution of the deed to The Northern Trust Comupany, the ground rent was in arrears to the amount of about $25,000, and The Northern Trust Company, as trustee, at once served notice on the Merrimac Building Company that on account of such non-payment of rent it had elected to forfeit the lease, and demanded that the tenant yield possession on March 1, 1898. The bill avers that instead of taking possession according to this notice, tfie trustee, in alleged violation of its trust, made an agreement with the tenant company on March 15,1898, providing in substance, that “to avoid litigation” no steps should be taken to enforce the forfeiture of the lease until July 1,1900, the trustee in the meantime to take possession and control of the building, lease the same and collect the rents, and after paying all expenses, including $1200 a year for a manager and a commission of 2y2% on rents collected, to apply the surplus to the payment of the rent accrued and to accrue until July 1, 1900, when, if the rent then due was fully paid, the possession of the building should be restored to the tenant; but if not so paid, then all rights of the tenant in the premises should cease and the lease should be considered at an end. The bill avers that by means of this agreement the trustee secured to itself a commission of $5,625, and attorneys’ fees amounting to $620, as a “consideration of this breach of trust;” that between March 15, 1898, and June 28, 1900, the trustee collected $213,115.06, out of which $45,029.89 was paid on account of ground rent, and all the remainder was paid out in “alleged salaries, alleged expenses and large repairs, and has never been accounted for by said trustee, and said trustee has hitherto refused and stiH refuses to account” for the same.

In June, 1900, the bondholders of the building company began suit to foreclose their mortgage bonds and a receiver was appointed who took possession of the building June 28, 1900, and remained in possession until December 10, 1900, during which period he collected, it is alleged, about $25,000 in rents, which the bill claims should be charged to the trustee. On August 10, 1900, the Northern Trust Company, as trustee, filed a bill against the building company to foreclose its lien for ground rent then due amounting to about $140,000, and C. W. Hubbard, a clerk for The Northern Trust Company, was appointed receiver and took possesion of the premises on December 10, 1900. He remained in possession until June 24, 1902, collected all the rents, amounting to $209,621.48, and out of such collections, paid on account of ground rent $93,750. The bill charges that all of the remainder was paid out by the trustee “in alleged salaries, alleged expenses and alleged attorney fees, and has never been accounted for by. said trustee, and said trustee has hitherto refused and still does refuse to account” for the same. The bill also charges that during this time the trustee illegally charged to the owners of the fee about $5000 for the services of Hubbard as receiver.

On June 24, 1902, Hubbard resigned and the trust company was appointed receiver and collected the rents from that date until the date of the filing of the bill, March 15, 1904, during which time it collected $228,242.24, and paid on account of current ground rent $113,750. The remainder is alleged in the same language as before, to have been paid out in “alleged salaries, expenses, attorneys’ fees,” etc. The bill avers, as a sort of summary, that the trustee had been in possession all the time from March 15, 1898, (the date of the Merrimac agreement) until the filing of the bill, March 15, 1904, and had collected rents amounting in all to $671,987.78, out of which it had paid on account of ground rent “only the sum of $252,500, according to its accounts,” and expended the remainder in salaries, expenses, repairs and attorneys’ fees, and has never accounted for the same.

The bill further alleges that the suit to foreclose the lien for ground rent was unnecessary and of no benefit to the trust fund, and was only brought for the purpose of enabling the trustee to make a profit out of its trust. It is averred that in June, 1902, pending the hearing of that suit, a decree was entered therein by agreement with the building company, finding that there was due $180,000 for back rent, and $20,000 attorneys ’ fees; but' it was provided, however, tiat no sale should be made under such decree until March 15, 1904. It is charged that sufficient money was collected by the trustee, from the beginning of the trust to the date of the filing of the bill, to have paid all the annuities provided for in the deed of trust, but that the trustee, prior to July 1, 1903, only paid to complainant. one-half of his share of the same, and that it charged even that half on its books as a .loan to complainant at compound interest. In June, 1903, complainant executed a note for $6516.04, payable to The Northern Trust Company for advances theretofore made by the trust company to complainant. Complainant avers that he was not aware of the true state of his account at that time. In November, 1903, complainant filed objections in court to one of the accounts of the trust company as receiver, and thereupon, it is charged, the trustee demanded payment df said note and refused to pay the complainant h.is “monthly income,” whereupon complainant withdrew his objections and the account was approved by the court; that the same thing occurred again in February, 1904, when another receiver’s account was presented to the court. It is further alleged that in January, 1901, the trustee induced complainant and his son to execute a mortgage for money claimed by the trustee to have been advanced, amounting to $18,533.33, which they signed “in order to obtain their income;” that in the same way, for the same purpose and in the same month, another mortgage was executed for $22,462.25, and in November, 1901, a third mortgage for $18,167.39; that, nothing was or is due to the trustee on any of the said mortgages, yet the trustee refuses to cancel or release the same. The complainant avers that he has repeatedly asked for an accounting and that the trustee refuses to account, but falsely pretends that the trust property received was inconsiderable and has been duly applied as directed in the trust deed. The bill prays for an accounting; that the trust company be removed as trustee and another appointed; that a receiver be appointed in the meantime; that the trust company be enjoined from applying complainant’s income to the payment of said notes, and for general relief.

Upon the filing of this bill a temporary injunction was issued as prayed. The owners of three-fourths of the fee filed answers which, in substance, deny all the material allegations of the bill so far as they relate to the alleged wrongful acts of the trustee, state that the trustee has handled the property satisfactorily to them and has accounted fully to them, and deny that full accounts have not been made and given to complainant. The owner of the remaining fourth interest, Stewart Patterson, the son of complainant, filed-an answer admitting most of the allegations of the bill and submitting his rights to the court. The Northern Trust Company answered admitting the allegations of the bill regarding the creation and existence of the trust, and that it went into possesion of the premises, leased the same and collected the rents as alleged in the bill, but claims that it took possession under the agreement with the Merrimac Company as agent of that company, and not as trustee; that it rendered regular monthly statements of rents received and moneys paid out to the building company, and mailed copies thereof to all the owners of the fee, including complainant; it admits that the amounts stated in the bill as having been collected and paid out are correctly stated, but asserts that the amounts collected were not expended for the purposes alleged in the bill of complaint, but were necessarily expended in completing the building, in making repairs, in operating expenses, and in the payment of taxes and insurance; that all it received as compensation was $5,625, and that only $620 was paid out for attorneys’ fees, both of which items are alleged to be reasonable and proper charges under the terms of the Merrimac agreement; that said agreement was entered into and signed by all the owners, including the complainant, and was executed by the trust company at their request; that it has accounted fully for all moneys received in pursuance of such agreement and from all other sources, and that all statements in the bill to the contrary are utterly false and unfounded. The trustee’s answer further alleges that the several steps taken and the suits instituted were so taken and instituted upon the advice of counsel and with the full knowledge and consent of all the parties, including complainant; that it has been guilty of no breach of trust; that the complainant, who is a lawyer of mature years, in practice for more than twenty years in Chicago, fully understood and was fully informed of each and every step taken and act done, and made no objection to anything until the trust company declined to make him further personal loans and advances. Replications being filed to these answers, the cause was referred to Master in Chancery Learning to take proofs and report the same, with his opinion on the law and the evidence. The master took over 600 pages of testimony which, with over 1000 exhibits, he reported to and filed in court at the expiration of his term of office. Then a new order was entered on March 8, 1907, referring the case to Master in Chancery Rogers to take evidence and report the same with his conclusions upon two questions only; whether the trustee is accountable to complainant, and whether, if so accountable, it has fully discharged its obligation to. account. As part of the order of reference, the master was directed to take into account the pleadings “and such portions of the evidence heretofore taken in this case before Master in Chancery Jeremiah Learning as either of said parties may desire to present, subject to all proper and legal objections.” Upon this reference, complainant appeared before Master in Chancery Rogers and introduced in evidence practically all of the testimony and exhibits that had been previously introduced before Master in Chancery Learning. Extended arguments were heard by the master upon the questions of law and fact involved, and the master made and filed a report stating all the foregoing facts, and also many other facts appearing from such evidence, (including the fact that on February 2.1,1905, $210,487.20. was paid to the trustee in full settlement of the decree entered, as above stated, in the suit to foreclose the owners’ lien for ground rent) and found that all the parties were fully advised of each step in the several proceedings above mentioned, and that the trustee had fully accounted to them; that they were all of age and none of them had ever complained until the complainant filed exceptions to one of the receiver’s accounts, as above stated; that the complainant had produced no evidence in support of his various charges of misconduct and had failed to point out where any injury had been done to him, except as to the custom of charging compound interest; that the owners of three quarters in interest, who have the right to approve the trustee’s accounts, are not making any complaint; that complainant made no demand for any account other than those he received; that by his course of conduct he must be held to have ratified and agreed to the charges of compound interest; that in any event it would be inequitable,-because of a slight error of this sort in the trustee’s account to compel the trustee to come into court and make such an extended and expensive accounting as copxplainant now desires; that the bill was not filed in good faith; that the trustee has always at all times discharged its obligation to account to every reasonable extent; and recommended that the bill of complaint be dismissed. After this report had been prepared and notice thereof given to the parties, the complainant prepared a supplemental bill, and on November 13, 1908, on notice, but in the absence of defendant’s counsel, leave was given to file the same. On the next day a motion was entered by the trust company to strike the supplemental bill from the files and an order was entered continuing this motion, which order recites that the order giving leave to file had been entered by the court without knowing there was any opposition thereto, and that said order and the motion to strike would be considered together and treated as a motion by the complainant for leave to file the supplemental bill. Master Rogers’ report was filed December 17, 1903, and attached to the same was an itemized bill of the master for $1202.13 fees. Objections and exceptions were filed by the complainant to the report and to the bill for fees. Pending the hearing upon these questions, on February 3, 1910, complainant filed a petition for change of venue, which was denied February 10,1910. On March 19,1910, the exceptions to the master’s report were overruled, the report approved, and the supplemental bill was stricken from the files;.and on March 22, 1910, a decree was entered finding that the trustee has discharged its obligation to account to the complainant, and dismissing the bill for want of equity at complainant’s costs.

The errors assigned are, in substance, that the court erred (1), in entering the special order of reference to Master in Chancery Rogers; (2), in denying the petition for change of venue; (3), in striking the supplemental bill from the files; and (4), in overruling the objections to the master’s report, and approving the same with his bill for costs, and dismissing the bill for want of equity.

First. It is urged that the prehminary question whether an account should be ordered, is a question of law for the court, and cannot be referred to a master, to decide. If the order of reference could be considered as a delegation of judicial power to hear and determine the rights of the parties, there might be force in this objection. Counsel for complainant assume that such is the meaning and effect of the order. In this, he is in error. The order cannot be so construed. It is in the usual, statutory form. It directs the master ‘ ‘ to take evidence and report the same to this court, together with his conclusions thereon.” See Ill. Rev. Stat., Chap. 22, Sec. 39. This is not a delegation of judicial power, Leigh v. Laughlin, 222 Ill. 265, 269. A master’s report made in pursuance of such an order is merely advisory. It has no force or effect as an adjudication. The parties are not concluded by its findings; while prima facie correct, they are not binding until approved by the court. Ennesser v. Hudek, 169 Ill. 494; Larson v. Glos, 235 Ill. 584; Kueper v. Mette, 239 Ill. 586, 593.

While it is undoubtedly the customary and usual procedure in suits of this character for the court to first “settle the rights of the parties by an interlocutory decree which fixes the basis for stating the account” (Ennesser v. Hudek, supra, 501), yet where, as here, the defendant claims in his answer (and sets up facts apparently supporting such claim) that he has fully accounted, and denies that he has ever refused to account to the complainant, it is proper practice to make a special reference to a master to take testimony and report on the preliminary question or issue thus raised. Christy’s Appeal, 92 Pa. St. 157; Ill. Rev. Stat., Chap. 22, Secs. 39, 40.

It is further contended that the order directed Master Rogers to report on the evidence previously taken before Master Learning, and is therefore erroneous, under the rule laid down in Coel v. Glos, 232 Ill. 142, and later cases to the same effect. This is a misapprehension on the part of counsel. The terms of the order do not bring it within the rule mentioned. The order merely permitted either of the parties to introduce before Master Rogers such of the evidence previously taken as either might desire to present subject to all proper objections. Moreover,-the record does not show that complainant objected to the entry of the order in this form; and it appears that the complainant himself offered in evidence all the testimony previously taken, together with nine volumes of exhibits containing statements of accounts and thousands of vouchers, and the same were admited in evidence without objection. We think, therefore, the alleged errors in the entry of the order of reference are not well assigned.

Second. It is next claimed that the court erred in denying a petition for a change of venue, filed in February, 1910, several months after the master’s report was filed. Counsel for plaintiff in error made no argument upon this point. The record does not show that any notice such as the statute requires was given, and the petition does not state that the alleged cause (prejudice on the part of the judge) “has arisen or come to the knowledge of the applicant within less than ten days before the making of the application.” Ill. Rev. Stat., Chap. 146, Sec. 6. Moreover, section 5 of the same statute requires reasonable notice of the application to be given to the adverse party ‘‘ and what is reasonable notice in a particular case must be left to the discretion of the judge to whom the application is made, and that discretion will not be interfered with unless abused.” Glos v. Garrett, 219 Ill. 208, 213. We think there was no abuse of discretion in the ruling in question.

Third. It is next urged that error was committed in striking the supplemental bill from the files. In the supplemental bill, the complainant alleged that on July 15, 1906,—two years and four months before leave was asked to file it—he learned “by an examination of the records of Cook County * * * that the Merrimac Company * * * was an illegal corporation forbidden to hold title to real estate by the laws of Illinois.” Upon this foundation is erected a voluminous supplemental bill attacking the validity of every act done by the trustee to which the Merrimac Company was a party or in which it was in any manner concerned. The conclusions which plaintiff in error draws from the facts alleged in the supplemental bill are thus stated in his reply brief:

“The Merrimac Company was not a corporation de facto or de jure; * * * by reason whereof, the pretended assignment” (of the lease) “was null and void and worked a forfeiture of said lease. * * * The Kohlsaat lease then and there died a natural death, and can never be resurrected again in any way known to -law or equity. The conveyance by Merrimac Company to secure bonds in 1896 was void and the bonds void. The stock of the said Merrimac Company was also void. * * * The so-called Merrimac agreement of March 15,1898, was a breach of trust through a mistake of law and fact, but was not known to be such by the trustee or the beneficiaries of said trust. * * * The proceedings of the trustee in pursuance thereof were a breach of trust and null and void. The accounts kept by the trustee as agent for the Merrimae Company and trustee of the Stewart building were null and void, false accounts and a breach of the duty of the trustee * * * as the Merrimae Company had no legal existence. The foreclosure suit by trustee against the Merrimae Company, void as aforesaid, was a breach of trust * * * and all the proceedings, orders, master’s reports and decrees, entered by stipulation therein, were breaches of trust and null and void, because the Merrimae Company was a phantom corporation. * * * The fact that these orders and decrees, on writ of error, were affirmed by the Appellate and Supreme Courts does not confer on the Circuit Court any jurisdiction of the Merrimae Company, which had no existence, legal or equitable. Wherefore *' * * the accounts of Receiver Hubbard and The Northern Trust Company, as receiver, in said Merrimac suits, are null and void and cannot operate as an account of the receipts and disbursements of the rents and profits of the trust property required by law to be kept by the trustee.”

Upon the motion- to strike this supplemental bill from the files, it was shown by affidavit, that practically all the questions thus sought to be raised in this suit had been the subject matter of prior suits brought by plaintiff in error, the final decisions in which are reported in Patterson v. Northern Trust Co., 230 Ill. 334; Patterson v. Northern Trust Co., 231 Ill. 22, and Patterson v. Northern Trust Co., 238 Ill. 601.

The prayer of the supplemental bill sought to cancel the original ground lease and the deed of trust, the forfeiture of the building to the owners of the ground, the annulling of the decree foreclosing the lien for ground rent (although paid in full), the dissolution of the Merrimae Company, the removal of the trustee, to compel the holders of the Merrimae Company’s bonds to account to complainant, and to have a receiver appointed.

The filing of a supplemental bill is largely a matter of discretion with the court. Caldwell v. Bank, 89 Ill. App. 448. Leave to file it may properly be refused if the party has been guilty of laches, or if the application for leave be not made “seasonably after the discovery or happening of the matter sought to be brought forward.” 21 Ency. of Pl. & Pr. 53. Such a bill is properly applicable only to cases where the same parties in the same interests remain before the court. McDonald v. Asay, 139 Ill. 123. Where leave to file has been given, the court may in its discretion, upon a proper showing, order the supplemental pleading to be stricken from the files. 21 Ency. of Pl. & Pr. 78.

For these reasons, as well as for others that must be apparent from the foregoing statement of the character of, and the objects sought by, the supplemental bill, we think the court was fully justified in striking it from the files.

Fourth. It is claimed the court erred in dismissing the bill for want of equity. After inspecting the hundreds of exhibits containing statements and vouchers, as well as the oral testimony relating thereto, the master found and reported at length, the facts regarding the trustee’s management of the property in question; that it had rendered regularly to the beneficiaries quarterly statements of account and individual statements upon request; that monthly and yearly statements of receipts and disbursements were also rendered, "during the time the building was in possession of the trust company under the so-called Merrimac agreement; that while receivers were in possession, quarterly statements were filed in and approved by the court; that all of the beneficiaries, except plaintiff in error, had expressed their approval of the acts and accounts of the trustee; and that the trustee had, to every reasonable extent, discharged its obligation to account to plaintiff in error. Plaintiff in error has filed here only a praecipe record, which contains the master’s report and the decree approving the same, with similar findings of fact, but which omits all the evidence upon which such findings are based. In Patterson v. Northern Trust Co., 230 Ill. 334, speaking of a similar record, the court said (p. 339): “In the absence of a certificate preserving all the evidence it will be presumed that there was sufficient evidence to sustain the findings of the specific facts in the decree. Brown v. Miner, 128 Ill. 148; King v. King, 215 id. 100. ’’

The right to an accounting by order of court in cases of this character, is not an absolute right, but is one which should be accorded only on equitable principles. It will not be ordered if the circumstances are such as to make an accounting unnecessary or improper. Woodbridge v. Bockes, 170 N. Y. 596. A demand and refusal to account are necessary to be alleged and proved in order to maintain such a suit. Wetzstein v. Boston, etc. Min. Co., 72 Pac. 865; Maguaran v. Tiffany, 62 How. Pr. 251; Kennicott v. Leavitt, 37 Ill. App. 435.

Under the facts and circumstances shown by this record, we think the court did not err in approving the master’s report and dismissing the bill at the costs of the complainant. Nor do we think there was error in the allowance of master’s fees.

For the reasons indicated, the decree of the Circuit Court will be affirmed.

Decree affirmed.


text:
    The People of the State of Illinois, Defendant in Error, v. James Marek, Plaintiff in Error.
    Gen. No. 16,905.
    1. Verdicts—what required in criminal ease. A verdict in a criminal case must be responsive to the issues made by the information and the plea of not guilty interposed thereto.
    2. Verdicts—when not sufficient in criminal case. A verdict simply finding the defendant guilty, or guilty as charged in the information is sufficient. If, however, the verdict goes further and specifically states of what the defendant is found guilty, then if the offense charged contains more than one material element (as where an unlawful act is charged to have been done with a specified criminal intent), the verdict must cover all the elements of the offense either in terms or by necessary implication or by a proper reference to the information.
    Error to the Municipal Court of Chicago; the Hon. Judson P. Going, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed May 23, 1912.
    Edward A. Shinnick, for plaintiff in error.
    John E. W. Wayman, for defendant in error; William H. Feindt, of counsel.
   Mr. Justice Fitch

delivered the opinion of the court.

James Marek, plaintiff in error, sued out this writ of error to reverse a judgment of the Municipal Court, of conviction of the offense of intimidating a workman.

The information is based upon Section 159 of Division 1, of the Criminal Code, and charges that on July 22, 1909, at Chicago, etc., James Marek “did * * * by threat, intimidation and unlawful interference, seek * * * to prevent * * * Charles H. Nicholas from working at a lawful business,’.’ etc. Upon a trial by jury, a verdict was returned finding plaintiff in error “guilty of intimidation and interference with a workman in manner and form as charged in the information. ’ ’ His counsel now insists that this verdict is not responsive to the issues, and is insufficient to support the judgment, and calls our attention to the case of People v. Arnett, 126 Cal. 680.

It is undoubtedly the law that a verdict must be responsive to the issues made by the information and the plea of not guilty thereto. A verdict simply finding the defendant guilty, or guilty as charged in the information, is sufficient. If, however, the verdict goes further and specifically states of what'the defendant is found guilty, then, if the offense charged contains more than one material element (as where an unlawful act is charged to have been done with a specified criminal intent) the verdict must cover all the elements of the offense either in terms, or by necessary implication, or by a proper reference to the information. People v. Lee, 237 Ill. 272, and cases cited; People v. Lemen, 231 Ill. 193. But in this case we think there is no occasion for the application of these principles, for the reason that here the verdict is entirely responsive. The only “intimidation and interference with a workman” which is “charged in the information,” is the intimidation and unlawful interference which the information charges that the plaintiff in error used in seeking to prevent Nicholas from working. The California case cited is not in point, for the reason that while the information in that case charged the defendant with an assault with intent to murder, the jury returned a verdict of guilty of assault with a deadly weapon, a different and distinct offense under the California penal code.

This being the only assigned error which is discussed in the briefs, the judgment of the Municipal Court will be affirmed.

Judgment affirmed.


author: Mr. Justice McSurely

text:
    Lena Bornstein, Defendant in Error, v. Ella Berliner et al., Plaintiffs in Error.
    Gen. No. 16,466.
    1. Appeals and errors—theory upon which cause will he reviewed. Upon review the theory upon which the cause was tried by the respective parties will be adopted and such parties will not be permitted to depart therefrom.
    2. Evidence—when does not tend to vary terms of written instrument. Evidence which tends to show transactions had pursuant to a written instrument is competent and is not subject to the objection that it tends to vary the terms of a written instrument.
    Error to the Municipal Court of Chicago; the Hon. Oscar M. Torrison, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Reversed and remanded.
    Opinion filed May 23, 1912.
    Rehearing denied June 6, 1912.
    Simon Straus and Ira E. Straus, for plaintiffs in error.
    Guerin, Gallagher & Barrett, for defendant in error.
   Mr. Justice McSurely

delivered the opinion of the court.

Lena Bornstein, hereinafter called plaintiff, obtained a judgment for $600 against Ella Berliner and Isaac Berliner, hereinafter called defendants, in a suit alleging breach of covenants of warranty contained in a warranty deed of a 30 acre farm in Michigan conveyed by defendants to plaintiff. We are asked to reverse this judgment.

.It is conceded that this deed was a conveyance in fee simple, with full covenants of seisin, good title, for quiet possession, and free from incumbrances. The breach alleged is want of title in defendants to a strip twenty-four feet wide, off the south side of the 30 acres described in the aforesaid deed. It is also conceded that over four years prior to the date of said deed, the defendants had conveyed said strip to the Kalamazoo and Lake Michigan Railway Company. The deed to the railroad contained certain provisions, as follows:

“The second party” (the railroad) “to put in and maintain two farm crossings at such places as first party may designate, also build a woven wire fence on the north line of said strip of land, no ditch on the north side of the railroad track. The above mentioned strip of land to be used for electric railway purposes.”

The railroad never took possession of this strip, but the plaintiff upon receiving her deed entered into possession of all the land described therein, including the strip previously conveyed to the railroad, and was in possession thereof at the time of the trial.

In this court counsel for both sides have argued at' length and cited many cases touching the character of the title conveyed by the deed from defendants to the railroad. Counsel for defendants claim that this deed conveyed only an easement and that upon abandonment by the railroad the title reverted to the defendants; while opposing counsel contend that the title conveyed was in fee simple, with possibly a condition subsequent and that title did not revert upon abandonment.

As we view this record, it is not necessary for us to decide this question. It appears that the theory upon which the case was tried was that if defendants could prove abandonment of the strip in question by the railroad the title reverted to the defendants, and hence there was no breach of the covenants of the deed to plaintiff. One of the things confirming this view is an instruction given by the court to the jury, which is as follows:

If you find from the evidence that the railroad company in question, the Kalamazoo & Lake Michigan Railroad, has abandoned the construction of its road and has abandoned its right of way, then the title to the strip in question is in fact vested in the plaintiff, and you may take that fact in consideration, if you find there was an abandonment, in estimating the amount of damages. ’ ’

This instruction was not objected to by either party, and both parties evidently were of the opinion that the instruction correctly stated the law and that the matter of abandonment was the main issue in the case, the other issue being the amount of damages.

The only thing, therefore, for this court to pass upon is the question of the proof by the defendants of the alleged abandonment of the strip by the railroad. This question was one for the jury to determine. However, we think the trial court erred in excluding certain material and competent testimony upon this point. A. S. Miller, called on behalf of defendants, was asked concerning a sale of part of the right of way of the Kalamazoo and Lake Michigan Railway Company to the Benton Harbor and St. J'oe Railway Company, the witness acting at the time as agent for the latter company. It was sought to show by him that another company had purchased a portion of the right of way of the K. & L. M. Ry. Co., as tending to show an abandonment of the intention by the Kalamazoo Company to construct its railroad upon the right of way in question. It was also sought to show by the same witness statements made by the president of the K. & L. M. Ry. Co. with reference to the use of the right of way. The court sustained objections to this testimony for the reason, as- stated by the court, that the contents of any written document could not be shown by parol evidence. We do not understand that defendants were seeking to prove the contents of a written document, but only the fact of transactions touching portions of the right way of the Kalamazoo Company. We believe the defendants were entitled to have the jury consider such transactions, together with statements of the president of the Kalamazoo Company touching the plans and intentions of this company with reference to its right of way. The rulings of the court in this regard constituted prejudicial error.

As the case must therefore be remanded, we refrain from commenting upon other points suggested in the briefs of counsel.

Reversed and remanded.


text:
    Guiseppe Lovece, Defendant in Error, v. Joseph A. DeMarco et al., Plaintiffs in Error.
    Gen. No. 16,551.

      Injunctions—what does not affect action at law upon bend. A failure to assess damages upon the dissolution of an injunction does not bar an action at law to recover damages predicated upon the bond.
    Error to the Municipal Court of Chicago; the Hon. John W. Houston, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed May 23, 1912.
    L. H. Craig, for plaintiffs in error.
    Kocco DeStbpano, for defendant in error.
   Mr. Justice McSurely

delivered the opinion of the court.

Gfuiseppe Lovece, hereinafter called plaintiff, obtained a judgment against Joseph A. DeMarco and Livia Lovece in a suit on an injunction bond, which judgment we are asked to reverse.

On September 8, 1908, the plaintiff sued out a forcible detainer writ against Livia Lovece for possession of certain premises in Chicago. On September 16, 1908, a bill was filed in the Superior Court of Cook County by Livia Lovece against Guiseppe Lovece, claiming an interest in common in said property, praying for an accounting of rents, and also for an injunction restraining the prosecution of the forcible detainer suit. The injunction was ordered issued conditioned upon the complainant filing a bond. Thereupon the forcible detainer suit was dismissed. The bond not having been filed, on October 5th another forcible detainer suit was started in the Municipal Court, but on October 10th a bond signed by Livia Lovece as principal and Joseph A. DeMarco as surety was duly approved and filed, and thereupon an injunction issued restraining the prosecution of the aforesaid second forcible detainer suit, and on October 12th said suit was dismissed. Livia Lovece retained possession of the premises in controversy, by reason of said injunction, from October 10, 1908, to and until December 27, 1909. The plaintiff, Guiseppe Lovece, filed a crossbill in the proceedings in the Superior Court, and about November 8, 1908, a decree was entered in the Superior Court case dismissing the original bill for want of equity, with costs against the complainant, Livia Lovece. The court further found that the averments of Guiseppe Lovece in the cross-bill were sustained and supported by the proof, and decreed that Livia Lovece was unlawfully withholding possession of the premises from Guiseppe Lovece, who was entitled thereto. Said decree ordered a writ of restitution. The plaintiff, Guiseppe Lovece, thereupon commenced suit upon the injunction bond, which is now before us on writ of error.

A number of points are presented to this court by plaintiffs in error, apparently predicated upon the assumption that the obligation of the injunction bond is conditioned upon the result of the forcible detainer suit. This is a misapprehension of the terms of the injunction bond, by which the obligors undertook to pay all costs and damages “as shall be awarded to any one or more of said defendants jointly or severally against the said complainant, Livia Lovece, in case the said injunction shall be dissolved.”

As to the point that no costs or damages were awarded in the Superior Court decree, the answer is found in the proviso of section 12, chapter 69, Revised Statutes of Illinois, entitled “Injunctions,” which is as follows: “Provided a failure so to assess damages shall not operate as a bar to an action upon the injunction bond.”

As to the last point, suggesting that Livia Lovece and Guiseppe Lovece were tenants in common and there could be no rent owing one to the other, it is sufficient to say that this contention was decided adversely to Livia Lovece by the decree in the Superior Court.

For the foregoing reasons the judgment is affirmed.

Affirmed.


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    James C. Jacobs, Defendant in Error, v. Elling Eide, Plaintiff in Error.
    Gen. No. 16,588.
    Principal and agent—obligations of latter. An agent is bound to act fairly and truthfully with his principal and not to deceive him to his injury for the purpose of obtaining. some advantage to himself.
    Tort. Error to the Municipal Court of Chicago; the Hon. Frederick L, Fake, Jr., Judge, presiding. Heard in the Brunch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion field May 23, 1912.
    Richard J. Cooney and John A. Verhoeven, for appellant.
    Michael F. Sullivan, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.

James C. Jacobs brought an action in tort against Filing Fide, based upon an alleged fraud through which, it was claimed, Fide unlawfully obtained certain money from the plaintiff, Jacobs. The issue ivas tried by a 'jury which returned a verdict for the plaintiff, upon which judgment was entered, which this court is asked to reverse.

The evidence tended to show that Fide was in the real estate business on the Northwest side of Chicago, in the neighborhood of the residence of Jacobs; that Jacobs had purchased his residence through Fide on the contract plan, and that the next door neighbor of Jacobs also had purchased through Fide his premises on the same plan. This neighbor, Schmidt, was unable to meet the monthly payments and was about to default on his contract, when Fide came to Jacobs and suggested that he, Fide, could get said premises for Jacobs. Several conversations were had between the two. Fide told Jacobs that Schmidt owed him, Fide, $100 on a note, and that if Jacobs would purchase Schmidt’s interest in said premises he, Fide, would not charge him anything as commission but would be satisfied by getting the $100 that Schmidt owed him. Fide, on behalf of Jacobs, purchased Schmidt’s interest in this property, paying Schmidt $100 in cash and canceling said note, making $200 for Schmidt’s interest, but representing to Jacobs that he had to pay Schmidt for his interest $500. Thereupon, relying on Eide’s statement, Jacobs paid him $150 in cash and gave him a note jointly executed by himself, wife and a minor son, for $350, due two years after date, with interest at 6 per cent. Before the maturity of the note Fide endorsed the same to his daughter, who subsequently sued thereon and recovered a judgment against J acobs and his wife, which judgment was satisfied. The evidence further tends to show that when Jacobs stated to Bide that he himself would like to talk with Schmidt, Bide discouraged such efforts and said that Schmidt would not sell to Jacobs if he, Schmidt, knew that Jacobs was the proposed purchaser. On the other hand, when Schmidt asked Bide who the proposed purchaser was, Bide told him that he lived on Grand street and worked nights, which was contrary to the facts. Notwithstanding that Jacobs lived next door to Schmidt, Bide concealed from Schmidt the fact that he was the proposed purchaser, although asked concerning it several times.

The theory of the defense was that Schmidt was in default to the extent of several monthly installments upon his contract with Newberry & Co., the original owners, and that to avoid a forfeiture of the contract Bide paid a number of these installments; that as Jacobs assumed the obligations of the Newberry - Schmidt contract, Eide was therefore entitled to reimburse himself for advances made by him out of the money paid by Jacobs for Schmidt’s equity.

The errors suggested to this court as grounds for reversing the case relate to the rulings of the trial court in excluding testimony tending to show these alleged defaults on the Schmidt contract and the advances made by Bide thereon, and, in brief, testimony tending to show the accounts between Newberry & Co., Schmidt and Eide.

We are of the opinion that the trial court did not err in these rulings. The gist of the action was the deceit of Bide towards Jacobs while acting as the agent of Jacobs. Therefore, it was incompetent to prove some alleged equitable right in Bide to reimbursement for advances made for Schmidt.' Eide was . bound to act fairly, and truthfully with his principal, and not to deceive him to his injury for the purpose of obtaining some advantage to himself. “If confidence is reposed, it must be faithfully acted upon and preserved from any intermixture of imposition. The party relied upon must see, that he meets fairly and squarely the responsibility of his position, and does not take any advantage, either for his own gain, or to the injury of the person whom he represents.” Salsbury v. Ware, 183 Ill. 505 (511). See also Kerfoot v. Hyman, 52 Ill. 512, and Cornwell v. Foord, 96 Ill. App. 366.

Criticism is made of an instruction given by the court, but upon examination and consideration of the same we cannot conclude that it was misleading.

Therefore the judgment will be affirmed. ■

Affirmed.


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    Winnie Lacy, Appellee, v. Continental Casualty Company, Appellant.
    Gen. No. 16,604.

      Insurance—when accident policy lapsed. Held, under the terms of a policy in question in this case, which provided for payment of premiums by the employer of the insured in a particular manner set forth in the application for the policy, that the insured had, by withdrawing certain wages earned by him, so affected the time of payment that such policy had lapsed at the time of his death and that a recovery thereunder could not be sustained.
    Assumpsit. Appeal from the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Reversed and remanded.
    Opinion filed May 23, 1912.

      Certiorari denied by Supreme Court (making decision final).
    Martin P. Cornelius, for appellant; Manton Maverick, of counsel.
    Parker S. Webster and Spencer Ward, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.

This cause comes before us on an appeal from the finding and judgment of the trial court against the Continental Casualty Company, appellant, and in favor of Winnie Lacy, appellee, the beneficiary in a policy of insurance issued by the Casualty Company upon the application of her father, Moses Lacy, who was subsequently killed in a railroad accident. The Casualty Company declined to pay, claiming that the policy had lapsed before the death of Moses Lacy, whereupon appellee- brought this suit upon the policy to recover the amount of the death indemnity.

The main facts are agreed upon by stipulation, and in brief are as follows: Moses Lacy was employed as a waiter on a dining car by the Pullman Company of Chicago. On April 1, 1907, he made a written application to the Casualty Company for a policy of accident insurance. At the same time he signed a pay order drawn on the Pullman Company and delivered the same with the application to the Casualty Company. Thereupon the Casualty Company issued and delivered to him its accident insurance policy, which is the basis of this suit. It was the custom of the Pullman Company to pay all waiters in its employ on the 15th day of each month the wages earned during the previous month. On April 18, 1907, Lacy drew $17.37 from the Pullman Company, which sum was all the wages he had earned during the calendar month of April, 1907, and he earned no more wages in that month. On May 1, 1907, Lacy went out on a trip for the Pullman Company, and continued thereon until May 11th, when he was killed in a railroad accident in California; He earned $10.64 in the calendar month of May, and said wages are still held by the Pullman Company. The pay order aforesaid was forwarded by the Casualty Company to the Pullman Company on April 22nd, and on said date Lacy’s account was billed to the Pullman Company for collection, on a form called a “Paymaster’s Return List.” On the 19th of May this form was returned to the Casualty Company by the Pullman Company, with the words “Not enough time” written by the paymaster in the column headed “Installment No. and Paymaster’s Remarks.” Thereupon the said policy of Lacy was marked “Lapsed” as of May 1st on the records of the defendant company, and the defendant company also stamped the word “Lapsed” in the column headed “Installment No. and Paymaster’s Remarks” upon the paymaster’s return list.

The provisions of the application signed by Lacy which are material at this time are as follows:

“I agree to pay therefor $16.00 in 4 installments of $4.00 each. If paymaster’s order is given to provide for the paymént of these installments, I agree to pay them as therein provided, and do hereby make such order a part of my contract with the company. If no paymaster’s order is given, the first installment shall be due, without notice, on the 15th day of May, 1907, and one installment of like amount shall be due, without notice, on the same day of each succeeding month until all are paid. I further agree that if any payment be not made by 12 o’clock noon, Standard Time, of the day when due as above specified, all my rights under said policy and the rights of the beneficiary thereunder shall then and thereby become void and that my policy can be reinstated only at the option of the Company by tendering payment at its general office in Chicago, and if accepted, the reinstatement shall take effect from and after the’receipt of such payment and no claim for loss arising between the time of such forfeiture and reinstatement shall be good against the company.”

The paymaster’s order was in part as follows:

“Please pay for me to the Continental Casualty Company the sum of $16.00 and charge the same against my pay account for services rendered or to be rendered by me.

“This order is given to provide for the payment of premium on a policy of insurance, for which I have this day made application, and you are authorized and requested to pay the said sum in installments as follows :

“1st installment of $4 to be paid from my wages for month of April, 1907.
“2nd installment of $4 to be paid from my wages for month of May, 1907.
“3rd installment of $4 to be paid from my wages for month of June, 1907.
“4th installment of $4 to be paid from my wages for month of July, 1907.

and further at the option of the Continental Casualty Company, to pay any installment, payment of which has been defaulted, from any reason whatever from my wages for any month thereafter succeeding. It is understood and agreed with respect to these installments, (1) that if each and every one of them be promptly paid as above specified, then and in that event only, they shall pay for my insurance under a policy to be issued to me by said Company, bearing even date and number herewith, for respective periods, to-wit: The first installment, two months; the second installment, two months; the third installment, three months; the fourth installment, five months, in their successive order as herein given; (2) that said Paymaster is my agent for the purpose of making such payments; (3) that his action is at my risk; and, (4) that if for any reason whatever payment of any installment be not made as above specified then all my rights under said policy and the rights of my beneficiary thereunder shall at once terminate and be void. I hereby waive for myself and for my beneficiary under said policy any notice of payment or non-payment of said installments, and I agree that should default be made in payment of any of the above specified installments and the defaulted installment be afterwards paid as above specified, then and in that event such payment shall reinstate my policy only from the date of the receipt of such payment at the general office of the Continental Casualty Company.

“I agree that should I be discharged from or cease to be in the service of said Railway System before the first of said installments becomes due then all my rights and rights of my beneficiary in said policy shall immediately cease, unless I notify the Secretary of said Continental Casualty Company in writing within three days after leaving said service, and remit said installment with said notice.
“I understand that no agent of the Company has any authority or power to waive or change any of the printed provisions hereof.
(Signed) Moses Lacy.”

The policy contained the following provisions:

“The applicationherefor and any paymaster’s order given to provide for the payment of premium are hereby made a part hereof. The Company shall not be liable for any loss occurring hereunder while the Insured shall be in default in the payment of any premium. Any unpaid portion of the annual premium hereon may be deducted from any claim hereunder. Strict compliance on the part of the Insured and beneficiary with all provisions of this policy is a condition precedent to recovery hereunder and any failure in this respect shall forfeit to the Company all rights to the principal sum and the indemnity.”

It is claimed by appellee that under the terms of the application,- pay order and policy, the insured had until May 15, 1907, within which to pay the first installment from his April wages, while the Casualty Company claims that the policy lapsed on May first. To determine which contention is the better founded in reason and justice is not free from difficulty. However, after consideration, we have reached the conclusion that the clear construction favors the contention of the Casualty - Company that the policy had lapsed on May 1, 1907, and therefore was not in force on May 11th, the date of Lacy’s death.

Referring to the language in the application, ■ it seems clear that if a paymaster’s order should be given, its terms should control the payment of installments. It seems equally clear that in the event of no paymaster’s order, the installments should be paid monthly on the 15th day of each month. The language is: “If no paymaster’s order is given, the first installment shall be due, without notice, on the 15th day of May, 1907, and one installment of like amount shall be due, without notice, on the same day of each succeeding month until all are paid.” This language is unambiguous and unequivocal. The words following evidently refer to 12 o’clock noon of the 15th day of each month, as specified, where no paymaster’s order is given.

It is stipulated as a matter of fact that a paymaster’s order on the Pullman Company was signed and given by Lacy to the Casualty Company at the same time that this application was signed and delivered. This would seem to make inoperative those provisions of the application and policy concerning the time and terms of payment conditioned upon Lacy’s not giving a paymaster’s order. Turning then to the paymaster’s order, we find that it is an order on the Pullman Company to pay $16.00 to the Casualty Company “and charge the same against my pay account for services rendered or to be rendered by me,” and the Pullman Company was ‘ ‘ authorized and requested to pay the said sum in installments as follows: 1st installment of $4 to be paid from my wages for month of April, 1907,” etc. It is said that the paymaster’s order does not mention the date when such installments should be paid, and therefore it must have been intended that the Pullman Company need not pay the first installment until May 15th. This is reading something into the order which is not there, and which is not needed to clear any ambiguity. The time when such installments became payable was manifestly as soon as the wages for the month were earned. The wages fpr the month of April would be earned and due to the employs on May 1st. It appears that it was the custom of the Pullman Company to make up the accounts with its employes for the monthly wages between the first and eighth of the succeeding month. At the time any account was made up, there was deducted from the amount due the employe any installment due on insurance under a paymaster’s order, and at the same time the amount of this insurance installment was placed to the credit account of the insurance company. The employe was paid the balance to his credit on the 15th of the month. It is evident that the reason for providing that in the event the insured paid his installments direct to the Casualty Company without giving an order on the paymaster, they should be paid on the 15th day of the month, was that that day was pay day for the employe, who might not be in funds with which to pay his installment before that day. This also indicates that the purpose of compelling payment before 12 o’clock noon of the 15th was to encourage payment of insurance installments immediately upon the employe receiving his pay.

But no such reasons for fixing the time to the day or hour obtained when the payments were to be made by the Pullman Company under a pay order. The Pullman Company had about 3,000 accounts such as this with its employes, although not all of them with this Casualty Company. Legally it became hable for. the installment as- soon as the employe had earned his monthly wages; but it took about a week to make up all the accounts, and it could not be known on just what day any particular account would be made up and the amount of an installment placed to the credit of the insurance company. The most the paymaster’s order could do was to provide that the installments to be paid by the Pullman Company should “be promptly paid. ’ ’

If we are correct in this construction it follows that the installment from Lacy’s April wages was due from the Pullman Company to the Casualty Company on May 1st, provided there was anything due Lacy from the Pullman Company for the month of April.

It is stipulated as a matter of fact that on April 18th, which was a few days before the Casualty Company forwarded the paymaster’s order to the Pullman Company, Lacy drew from the Pullman Company all of the wages he had earned for April, and did not work for the Pullman Company any more during that month; so that by his own act he had made it impossible for the Pullman Company to comply with his order to pay the first insurance installment out of his wages for the month of April. The reason why the first installment on the policy was not paid was Lacy’s own act in withdrawing his April earnings. Had he not done this, the first installment of $4.00 would have been due the insurance.company on the first of May, and in due course of business would have been placed to its credit account in the books of the Pullman Company some time before the eighth of May.

Provision 4 of the paymaster’s order reads: “that if for any reason whatever payment of any installment be not made as above specified then all my rights under said policy and the rights of my beneficiary thereunder shall at once terminate and be void. ’ ’

It therefore follows that the policy of insurance lapsed on May 1, 1907, and was not in force on May 11, 1907, the date on which Lacy was killed.

Many authorities have been cited by both counsel, but no case has been presented which is precisely in point. The cases most nearly like the one before us are: Herbert v. Standard Insurance Co., 23 Ohio Cir. Ct., 225; affirmed in 68 Ohio St., 187; 70 N. E. Rep., 1122; Prichett v. Continental Cas. Co., Ky. Ct. Apps., 1904, 80 S. W. 181; Sewell v. Continental Cas. Co., Sup. Ct. Miss., 1908, 46 So. Rep. 714; Aetna Life v. Ricks, Sup. Ct. Ark., 1906, 94 S. W. Rep. 923; Brown v. Pac. Mut. Life Ins. Co., Ct. of Appeals Mo., 1904, 82 S. W. Rep. 1122; Bone v. Travelers Ins. Co., Ct. of Appeals Ky., 4 S. W. Rep., 787.

For the reasons above indicated the judgment of the Circuit Court is reversed and the cause remanded.

Reversed and remanded.


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    Flanagan & Beidenweg Company, Defendant in Error, v. Foster Burns & Company, Plaintiff in Error.
    Gen. No. 16,622.
    1. Municipal Court—presumption as to payment of jury fees. In the absence of any showing to the contrary it will be presumed that the clerk of the municipal court properly performed his duty by collecting the required fees. Meld, further, that the point was one which could not be first raised on appeal.
    2. Municipal Court-—statute providing for jury trials construed. This statute should be liberally construed in favor of the right to have a trial by jury when demanded.
    Error to the Municipal Court of Chicago; the Hon. Freeman K. Blase, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Reversed and remanded with directions.
    Opinion filed May 23, 1912.
    John W. Creekmur and George L. Schein, for plaintiff in error.
    W. J. Stapleton, for defendant in error.
   Mr. Justice McSurely

delivered the opinion'of the court.

It would serve no useful purpose to make a statement of the facts herein, for the reason that we have concluded to reverse this case on the ground that the trial court erred in refusing to grant the defendant a jury trial pursuant to its demand on file.

Apparently the trial court was guided by a decision of this court rendered in the case of Morrison Hotel & Restaurant Co. v. Kirsner, reported in 152 Ill. App. 43, where a similar ruling under like circumstances was upheld; but pending this appeal the Morrison Hotel Co. case was decided by the Supreme Court— reported in 245 Ill. 431—the Supreme Court holding that the defendants were entitled to a trial by jury pursuant to their demand, and the judgment of the Appellate Court and the Municipal Court was reversed with instructions to the trial court to award the defendants their right to a trial by jury.

But it is claimed that in the case before us the jury fees were not paid. There is nothing in the record to support this claim, and this court will assume, in the absence of any showing to the contrary, that the clerk of the trial court properly performed his duty by collecting the required fee. It also may be said that it comes too late to raise this point for the first time in this court.

We cannot agree with counsel that it is material to the question involved whether the judgment was “set aside” or “opened up” by the court. Neither can we assent to the claim that the stipulation enlarging the issues had the effect of waiving a jury. The stipulation apparently was entered into as the consideration for the plaintiff’s consent to “open up the judgment,” and did not touch the matter of a jury trial.

In reversing the Morrison Hotel Co. case above referred to, the Supreme Court said concerning the jury provision of the Municipal Court Act (p. 433): “In view, however, of the provision of the constitution that the cherished right of trial by jury shall remain inviolate, the statute should be liberally construed in favor of the right and the inclination of the court should be to protect and enforce the right.”

Following this authority, we must reverse, the judgment and remand the case to the Municipal Court with directions that the court award defendant its right to a trial by jury.

Reversed and remanded with directions.


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    The People of the State of Illinois, Defendant in Error, v. Batisti Pizzi, Plaintiff in Error.
    Gen. No. 16,837.

      Informations—when charging pandering sufficient. An information charging pandering in the language of the statute is sufficient. It need not allege that the affiant is a ‘‘female person.”
    Error to the Municipal Court of Chicago; the Hon. Edwin K. Walker, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed May 23, 1912.
    J. Gray Lucas, for plaintiff in error.
    John E. W. Wayman, for defendant in error; Zach Hofheimer, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

Batisti Pizzi, plaintiff, in error, was found guilty upon' an amended information signed and sworn to by one Ethel Archbold, charging him with the offense of pandering. He was sentenced on the verdict.

It is argued by counsel for plaintiff in error that the amended information is insufficient in that it does not allege Ethel Archbold to be a “female' person.” The language of the statute defining pandering is:

“Any person who shall procure a female inmate for a house of prostitution * * * shall be guilty of pandering.” The language of the amended information is: “Ethel Archbold, * * * in her own proper person, comes now here into court, and * * * gives the Court to be informed and understand * * * that Batisti Pizzi * * * did then and there unlawfully and wrongfully procure one Ethel Archbold, the affiant, a female inmate for a house of prostitution, then and located in the City of Chicago, County of Cook and State of Illinois.” Thus it is to be seen that the language of the information, in its charging part, is the language of the statute, and that it is not necessary that affiant be described as a “female person.”

It is claimed that in the jurat the affiant is described as “he” and “him.” However, in the body of the information Ethel Archbold states that she comes into court “in her own proper person,” and that she is “the affiant, a female.” The information appears to have been signed and sworn to by the said Ethel Arch-bold. Furthermore the name “Ethel” imports a person of the female sex. It therefore cannot be held that the mere inadvertence of the clerk who administered the oath can prevail over what appears affirmatively as to the sex of Ethel Archbold.

The amended information being sufficient, the verdict thereon was in proper form arid judgment properly followed the verdict. Therefore the judgment will be affirmed.

Affirmed.