author: Mr. Justice F. A. Smith

text:
    James Longley, v. Frederick L. Wilk et al., on Appeal of James Longley, Appellant, v. Walter M. Cowell, Appellee.
    Gen. No. 17,100.

    1. Equity—necessity of averments to support proof. A party is not entitled to relief, though the evidence may establish a clear right to such relief, unless there are averments in the bill to support the case made by the evidence.
    2. Mobtgages—when hill of foreclosure must allege complainant is entitled to rents. Where a bill to foreclose a deed of trust contains no allegations as to rents collected by a receiver of the premises until the expiration of the period of redemption and does not pray for an accounting or a decree respecting them, such rents cannot be decreed to the complainant.
    3. Mobtgages—right to rents during redemption period. Where a deed of trust pledged the rents from the premises, but not during the redemption period, and provided that they should be paid to the purchaser on foreclosure until the expiration of the period of redemption, and on foreclosure a receiver is appointed to collect the rents until the expiration of such period, and the premises are sold under a decree to the grantee of the trust deed, the decree not disposing of the rents in any manner, the owner of the equity of redemption, not made personally liable for the incumbrance by the decree, is entitled to the rents collected by the receiver after the sale.
    Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed June 14, 1912.
    Gail Dray, for appellants
    William Slack, for appellee.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

The sole question presented by this appeal is whether the complainant appellant is entitled to the $418.35, consisting of rents collected during the running of the period of redemption by the receiver in this foreclosure case, or Walter M. Cowell, trustee, as the owner of the equity of redemption is entitled to it.

The complainant James Longley, appellant, being the owner and holder of a note for $5,500, signed by Sarah A. Bartlett and John A. Bartlett, her husband, filed his bill to foreclose a trust deed given by said Sarah A. Bartlett and husband to secure the note. The bill alleged that to secure payment of the note, Sarah A. Bartlett and husband had conveyed to S. W. Bawson, as trustee, certain premises together with the rents, issues and profits thereof; that mortgagors had waived all rights under the exemption and homestead laws of Illinois', and all rights to retain possession of the premises in question after default and until the time for redemption from any foreclosure sale should expire; that in case of default it should be lawful for the trustee, or person appointed by the court, to take possession of the premises and to collect the rents, issues and profits. thereof; that the premises were meager and scant security for the note, and prayed that a receiver might be appointed to collect rents and profits until the expiration of the period of redemption; that upon an accounting the court would adjudge how much was due the complainant upon the principal note, together with interest, and for other expenditures under the trust deed; and that complainant might have execution against Sarah A. Bartlett for any deficiency after the sale of the premises.

The trust deed attached to the bill of complaint and made a part thereof contained the following clauses, following a description of the premises:

“To have and to hold the same, together with all and singular the tenements, hereditaments, etc., * * * to the said party of the second part * * * in trust, nevertheless, that in case of default in payment of said promissory notes or any of them * * * or in case of the breach of any of the covenants or agreements herein mentioned, then and from thenceforth it shall be lawful for the said party of the second part or his successor in trust, or the person who may be appointed by the court to execute this trust, on application of the legal holder of the said promissory notes or either of them, to enter into and upon and take possession of the premises hereby granted, or any part thereof, and to collect and receive all rents, issues and profits thereof, and in his own name or otherwise to file a bill or bills * * * to obtain in a decree for the sale and conveyance of the whole or any part of said premises, * * * and to pay any rents that may be collected after such sale and before the time of redemption expires to the purchaser or purchasers of said premises at said sale or sales.
And the said party of the second part, or person appointed by the court to execute the trust, may, in case of default or breach of covenant, take immediate possession of said premises and collect the rents and profits as above provided until the time of redemption shall expire * * * and the party of the second part hereby expressly waive and release * * * all rights * * e under any' law of this state to retain possession of said premises after any such default or breach of covenant as aforesaid until the time for redemption expires.”

A receiver was appointed to collect the rents and profits and directed to hold them subject to the order of the court. The defendants in the bill were all defaulted, and the bill was referred to a master in chancery, who took testimony and made his report, which was approved by the court, and the sale of the premises ordered.

The property was sold on December 15, 1908, to the complainant. The sale was approved by the court and a deficiency decree entered for $597.94 against Sarah A. Bartlett.

The receiver filed his amended final report, showing the above balance in his hands of $418.35, which was approved by the court.

The complainant J ames A. Longley filed his petition asking that the balance in the receiver’s hands might be applied upon the deficiency decree. On this petition and motion the court found from the receiver’s report that there was in the receiver’s hands $418.35, consisting of rents collected during the running of the period of redemption; that Walter M. Cowell, trustee, was the owner of the equity of redemption; that said Cowell had not assumed in any way to pay the mortgage debt, and that the balance in the receiver’s hands belonged as a matter of right and law to Walter M. Cowell, trustee, and ordered the receiver to pay the balance in his hands to Walter M. Cowell, trustee, and taxed the costs against J ames Longley, complainant.

From this order or decree the complainant prosecutes this appeal.

It is contended on behalf of the complainant that the order or decree is erroneous because the trust deed pledged the rents, issues and profits as security for the mortgage debt, and that by the appointment of a receiver the complainant obtained a specific lien on the rents and profits to pay the deficiency decree.

Many cases are cited in behalf of complainant in support of this proposition. They are, however, in our opinion not applicable to the terms of the trust deed attached to the bill in this case and forming a part of it, for the fundamental reason that the trust deed did not pledge the rents of the property to the complainant during the redemption period. The trust deed in this respect differs from the provisions of the trust deeds or mortgages under consideration in the cases cited on behalf of appellant; and furthermore, the foreclosure decree did not give to the complainant a lien upon the rents which were collected after a sale, and before the time of redemption expired.

The bill for foreclosure contains no allegations as to the rents and profits under consideration, nor does it pray for an accounting or a decree respecting them, and if the decree had undertaken to subject the rents and profits of the premises collected after the sale and before the time of redemption expired the decree would have been without foundation in the bill or in the trust deed. It is a well settled principle that a party will not be entitled to relief, although the evidence may establish a clear right in his case to such relief, unless there are averments in the bill to support the case made by the evidence. (Morgan v. Smith, 11 Ill. 194; Detroit Stove Works v. Koch, 30 Ill. App. 328.) And in Bremer v. Canal & Dock Co., 123 Ill. 104, it was held: “Nothing is better settled than that proofs without allegations are just as unavailing as allegations without proofs.” And in Ohling v. Luitjens, 32 Ill. 23, it was held:

“It is well settled that party must recover according to the case made by his bill and not by the proofs. He cannot state one case in his bill and make out a different case in proof. If the evidence made a case varying from the one made in the bill, no decree should pass for other than one dismissing the bill, or at least one for no more than is prayed for. If the complainant recovers at all, he must recover upon the case made by his bill. ’ ’

The provisions in the trust deed referring to the rents, issues and profits of the premises, do not pledge or create a lien thereon in favor of the complainant for the rents, issues and profits collected after the foreclosure sale and before the time of redemption expires, but provides that they shall be paid to the purchaser or purchasers of the premises at such sale. It cannot be claimed or contended successfully that because the- complainant was the purchaser of the premises at the sale this provision of the trust deed pledged the rents covered by the decree or order under review to the complainant as such purchaser, and that must be the only ground upon which appellant can predicate error in the order under review. In Schaeppi v. Bartholomae, 217 Ill. 105, the court said:

“It is urged, however, that by virtue of the provision found in the Bartholomae trust deed, the person entitled to a deed under the foreclosure sale in case no redemption took place was expressly granted the rents during the period of redemption, and that no redemption having taken place, and a deed having been made to George Bartholomae, he was entitled to the rents arising from said premises during the period of redemption. We cannot accede to this contention. The provision with reference to the rent found in the trust deed was a covenant between the grantor in the deed and the cestui que trust, and prior to the foreclosure sale was merged in the decree of foreclosure (Davis v. Dale, 150 Ill. 239; Lightcap v. Bradley, 186 id. 510; Haigh v. Carroll, 209 id. 576); and the purchaser at said sale took title under the decree, and he can claim no right by virtue of said provision found in the trust deed with reference to rent. ’ ’

The decree of sale in this case does not give the purchaser at the sale the rents, issues and profits, if any, during the redemption period. It does not dispose of them in any manner. In our opinion, the case of Standish v. Musgrove, 223 Ill. 500, controls the question presented by the order under review. The court said:

“The substance of the provision of the trust deed referred to, is that the grantors waived all right to the possession of and income from the premises pending foreclosure proceedings, and in case of sale, until the equity of redemption expired, and agreed that a receiver might be appointed to take charge of the premises and collect the income therefrom, and after paying the expenses of receivership, pay the same to the person entitled to a deed under the certificate of sale. In Schaeppi v. Bartholomae, 217 Ill. 105, where the mortgage contained a similar provision, it was held that the purchaser at the sale took title under and by virtue of the decree, and could claim no right to the rent by -virtue of the provisions of the mortgage. * * * The appellant, so far as disclosed by the record, was the owner of the equity of redemption. There was no deficiency judgment against the appellant, and she is" not made personally liable for the incumbrance by the decree. Under such circumstances, if she was in fact the owner of the equity of redemption, she was entitled to the rents and profits of the premises until the time for redemption had expired. The appointment of a receiver did not divest her of that right. She was still entitled to the rents and profits pending redemption, less such expenditures as were necessary and proper in preserving the property, but not in bettering its condition. (Davis v. Dale, 150 Ill. 239; Stevens v. Hadfield, 178 id. 532.) ”

There was no deficiency decree against Walter M. Cowell, and moneys belonging to him could not be applied in payment of. the deficiency decree against Sarah A. Bartlett. In our opinion the order or decree directing the receiver to pay the balance of moneys in his hands to Walter M. Cowell, trustee, was correct.

The decree is affirmed.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Amanda C. Erickson, Appellee, v. Marc Sherwood, Appellant.
    Gen. No. 17,076.
    1. Sales—recovery back of price. On action for breach of a contract to repurchase stock at the price paid, $600, a verdict and judgment for $708 and costs is not sustained by the evidence where no evidence was offered as to the value of the stock at the time of tender, the tender was not kept, good, and there is no evidence of a transfer of the stock to the defendant but the plaintiff has both the stock and a judgment for the amount paid therefor and interest.
    2. Assumpsit-t-wM# may be recovered therein. On assumpsit for breach of contract to repurchase stock for the price paid, the plaintiff is not entitled to recover the price with interest but may only recover for the breach of the contract, the measure of damages being the difference between the contract price and the market price at the time and place of redelivery.
    Appeal from the Superior Court of Cook county; the Hon. Eablin Q. Ball, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Reversed and remanded.
    Opinion filed June 14, 1912.
    Cratty Bros., Jarvis & Hudson, for appellant.
    Harry A. Daugherty and F. W. Balcomb, for appellee.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

Amanda C. Erickson, appellee, brought an action in the Superior Court to recover from the defendant, Marc Sherwood, appellant, the sum of $600 with interest. The praecipe and summons in the case were for trespass on the case, and the declaration alleged damages occasioned by false representations as to the value of certain mining stock bought by the plaintiff of the defendant. Some six months later the plaintiff asked leave to amend by changing the form of action to assumpsit, and thereupon an unsigned paper purporting to be a declaration was filed alleging that the defendant, Marc Sherwood, was a director of the America-Mexico Mining and Developing Company and represented that the properties of the company were worth $20,000,000 and induced the plaintiff, upon such representations, to purchase from the defendant 200 shares of its stock for $600, and agreed to repurchase the said 200 shares at the same price of the plaintiff, within a reasonable time thereafter. It avers that the plaintiff received dividends in excess of two per cent, a month for five months, but that on September 1st following the purchase of the shares the plaintiff tendered back the stock to the defendant and demanded the $600 which was refused.

The trial resulted in a verdict against the defendant and judgment thereon for $708, and costs, and the defendant Sherwood prosecutes this appeal.

In our opinion the evidence in this case does not sustain the verdict and judgment. The action is for an alleged breach of contract made between the plaintiff and the defendant for a repurchase of the stock sold by the defendant to the plaintiff whenever the plaintiff might desire to realize the money which she had invested in the 200 shares of stock. No evidence was offered to show the value of the stock on September 1, 1905, when the plaintiff claims that she tendered the stock back to the defendant and demanded her money. The tender, if made at that time, of the stock was not kept good and the title of the stock remains in the plaintiff. As a result of the judgment she has the stock which she purchased, and the judgment for the money and interest which she paid for the stock. There is no evidence of any assignment of the stock to the defendant, or of a transfer of it in any manner or form. The plaintiff was not entitled to recover the $600 with interest. If she is entitled to recover at all it is for a breach of the contract to repurchase. The measure of damages in the action, if it be maintained, is the difference between the contract price and the market price of the stock at the time and place for the redelivery of the stock. No evidence appears in the record as to the market price at that time. The case was not tried upon any correct legal theory, and there is no basis in the evidence for the verdict and judgment.

Judgment is therefore reversed and the cause remanded for a new trial.

Reversed and remcmded.


text:
    William Witte et al., Appellees, v. Hugo Hinze et al., on Appeal of John C. Schuett, Appellant.
    Gen. No. 17,052.
    1. Partition—when purchaser takes subject to partition proceedings. An intervening petitioner in partition proceedings alleged a purchase of complainant’s interest and prayed that he be made a party thereto and that a prior decree therein be vacated. Held, that if such deed was an absolute conveyance such petitioner took pendente lite with full notice of the proceedings and subject thereto and the decree entered therein.
    2. Appeals and ebboes—when order not final. An order in partition proceedings is not final and appealable whether the appellant took by deed or by mortgage where, after the filing of an intervening petition by the appellant alleging an absolute purchase of the complainant’s interest and an answer alleging that only a mortgage wás given, the court ordered distribution of the proceeds of a sale of the premises involved but ordered that the complainant’s share be held until further order.
    Appeal from the Circuit Court of Cook county; the Hon. Chables M. Walkee, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Dismissed.
    Opinion filed June 14, 1912.
    George W. Hess, for appellant.
    Herman Welk and J. S. Reynolds, for appellees;

    Jesse Wilcox, Guardian ad litem.

   Mr. Justice F. A. Smith

delivered the opinion of the court.

William Witte and others, as tenants in common of certain real estate and owning three-fourths of the same, filed a bill for partition in the Circuit Court of Cook county making Hugo Hinze, Herman Hinze and Otto Hinze, Jr., minors and owners of the other one-fourth interest in the property, defendants. The bill for partition correctly set up the title and interest of the parties. The cause was referred to a master to take proof and report, and upon the coming in of the master’s report a decree of partition was entered in the cause on April 27, 1910. The decree confirms the master’s report and contains findings in conformity therewith, including the finding that the sum of $600 is a usual and customary charge made by members of the Cook county bar for services in proceedings of that character, and that there be allowed to Herman Welk, complainants’ solicitor, for attorney’s fees in the case the sum of $600, the same to be taxed as part of the costs of the suit, and that the sum of $25 be allowed to Jesse Wilcox, the guardian ad litem of the three minor defendants, which sum was' also to be taxed as part of the costs. The decree orders that a partition be made among the several parties, subject to a lease of Fritz Karsten, and to claims allowed against the estate of Carl Witte and cost of administration, and provides that the costs of the suit be paid pro rata by the several parties to the cause according to their respective shares, portions and interests in the property.

On April 29,1910, John C. Schuett filed a petition in the cause setting up that the petitioner had purchased from the complainants Anna Dricker and William Dricker their undivided one-fourth interest in the premises described in the bill, and that the Drickers had conveyed their interest in the premises to the petitioner by warranty deed which was duly recorded December 29, 1909, and praying that the petitioner be made a party to the proceedings, either as complainant or defendant, and that the decree theretofore entered be vacated and set aside.

On April 30, 1910, the commissioners appointed by the decree of partition to make partition of the premises in question filed their report. Their report included items of expense or commissioners’ fees and other expenses and sets forth that a division and partition of the premises could not be made without manifest prejudice to the parties. The court decreed that the proceedings of the commissioners and their report be confirmed and that the property be sold to the highest and best bidder for cash, by a master in chancery of the court, and directed the master to hold the money realized from the sale for distribution under the direction of the court.

On June 1, 1910, Anna and William Dricker filed their answer to the petition of Schuett denying* that they had conveyed their interest in the premises to him, and setting up that he was but a mortgagee of their interest pendente lite, and alleging that their deed to Schuett was given to secure the sum of $750 with interest at five per cent, which they had borrowed from Schuett and asking that the deed be held to be simply a deed of trust or mortgage given to secure that amount with interest. To this answer Schuett filed •no replication, but on June 6, 1910, served notice to have the petition set down for hearing. No hearing had been had on that petition at the time the appeal in this case was taken.

On July 6, 1910, the master reported, and the sale made by him was affirmed, and an order of distribution entered pursuant thereto for the distribution of the proceeds after payment of costs, charges and disbursements, the order or decree providing as follows: “It is further ordered that the said master retain the distributive share of Anna Dricker out of said proceeds of sale, to-wit, the sum $883.51, as found herein and hold the same until the further order of this court.”

Upon the entry of the decree of distribution John C. Schuett, the intervening petitioner, prayed an appeal from that part of the order or decree entered directing the master in chancery to make distribution of the proceeds of sale, and now prosecutes the appeal in this court.

Appellees have interposed a motion to dismiss the appeal for the reason that the decree or order appealed from is not a final order or decree as to appellant, and is therefore not appealable. This motion was reserved to the hearing.

The record shows that the petition of appellant, John C. Schuett, has never been disposed of in the Circuit Court. If the deed to Schuett of the interest of complainants Anna Dricker and William Dricker was a deed conveying absolutely the title to their interest in the property in question, it was done pendente lite with full notice of the proceedings in this ' cause and the appellant took his interest subject to the proceedings and the decree of partition entered therein. There is no contention here that there is any error in that decree. It is not before the court. The only decree sought to be reviewed on this appeal is the decree of distribution. The court reserved under its control, by the decree of distribution, the distributive shares of the Drickers for the purpose of determining to whom that share shall be paid, whether to appellant or to the Drickers.

If, on the other hand, the deed by the Drickers to Schuett was in the nature of a mortgage, as set up in the answer of the Drickers, the court reserved the question of the distribution of the fund, and it appears that the fund is more than sufficient to pay the amount of the loan with interest.

On either theory of the effect of the deed, whether it be an absolute deed or simply a mortgage, the distribution of the distributive share was reserved by the court for further consideration. It follows that the part of the order of distribution appealed from is not a final order.

The appeal must .be dismissed at the cost of appellant.

Appeal dismissed.


author: Per Curiam.

text:
    O. A. Byington et al., Defendants in Error, v. A. D. Chandler, Plaintiff in Error.
    Gen. No. 18,312.
    1. Municipal coubts—when stenographic report must he presented. A stenographic report must be presented to the judge of the Municipal Court of Chicago for signature within thirty days from the date of the judgment.
    2. Municipal coubts—effect of holiday on time for presenting stenographic report. That the last of thirty days from the date of a judgment in the Municipal Court of Chicago was a- legal holiday under the Negotiable Instrument Act, as amended in 1909, does not affect the provision that a stenographic report must be presented to the judge for signature within such thirty days.
    Error to the Municipal Court of Chicago; the Hon. Joseph Z. Uhlib, Judge, presiding. Heard in this court at the March term, 1910.
    Affirmed.
    Opinion filed June 10, 1912.
    Albert O. Olson, for plaintiff in error; James J. Leahy, of counsel.
    Arthur E. Gammage and Nicholas J. Pritzker, for defendants in error; Nicholas J. Pritzker, of counsel.
   Per Curiam.

A motion has been made by the defendant in error to strike out the stenographic report in the transcript of the record filed in this writ of error and to affirm the judgment. It must be granted.

TMrty days from the date of this judgment (of which the last day was not Sunday) had expired when the stenographic report was presented to the Judge of the Municipal Court for signature. It was then too late to make it a part of the record. Lassers v. North German Lloyd Steamship Co., 244 Ill. 570.

We do not think that the fact that the last of the thirty days was a legal holiday under the terms of the act of March 18, 1874, on Negotiable Instruments (as amended by act of May 10, 1909) affects the matter.

The stenographic report is stricken from the transcript of the record, and as there is no assignment of error which must not depend for its validity on the matter contained in the stenographic report, the judgment of the Municipal Court is affirmed.

Affirmed.


author: Mr. Presiding Justice Brown

text:
    Nathan Gewirtz, Defendant in Error, v. Wolf Abraham and Herman Vinik, copartners as Abraham & Vinik, Plaintiffs in Error.
    Gen. No. 16,399.
    1. Contract—when not binding if no delivery. A sealed contract which recites that the consideration shall be paid on the delivery of 'the instrument is not executed or binding until such delivery.
    2. Contract—when canceled. Where a contract not binding for want of delivery is delivered up with another contract covering the same transaction, this amounts to a cancellation by mutual consent.
    3. Partnership—one member can bind, on contract. One member of a bakery firm has power to bind the other on a contract disposing of part of their route and good-will.
    4. Liquidated damaoes—when sum stipulated for breach of contract constitutes. Where a contract of sale of part of a bakery route and good-will recites that the consideration shall be re. funded on a breach thereof, such amount will he considered as liquidated damages and not as a penalty.
    5. Contracts—restraint of trade. A contract by a baking firm, not to sell any bread to dealers or strangers from South Chicago is not illegal as in unreasonable restraint of trade.
    Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in this court at the March term, 1910.
    Affirmed.
    Opinion filed June 17, 1912.
    Fred Bernstein, for plaintiff in error.
    Seymour N. Cohen, for defendant in error.
   Mr. Presiding Justice Brown

delivered the opinion of the court.

January 13, 1910, the defendant in error, the plaintiff below, recovered in the Municipal Court of Chicago a judgment against the plaintiffs in error, defendants below, for $275. The judgment was rendered on the verdict of a jury, but the jury were peremptorily instructed by the court to find for the plaintiff.

The trial of the case disclosed the following state of facts-. The plaintiff (the defendant in error) was a baker doing business at 8734 Houston avenue in that part of Chicago known as South Chicago. In the course of said business he delivered bread to certain customers in South Chicago by wagon.

The defendants, plaintiffs in error, were likewise retail bakers doing business at 1053 West 61st street in Chicago, in the territory known as Englewood, and delivered bread by wagon to various customers in Englewood and in South Chicago. Thus the parties were competitors in business in South Chicago.

On June 11, 1909, the plaintiff Gewirtz and the defendant Abraham met in South Chicago and signed the following document.

“This agreement made this 11th day of June, 1909, by and between W. Abrahams and H. Vinik of the city of Chicago, county of Cook and State of Illinois, party of the first part, and Nathan Gewirtz of the city of Chicago, county of Cook and State of Illinois, party of the second part. The party of the second part agrees to pay to the parties of the first part the sum of three hundred and no-100 dollars, the receipt of which is hereby acknowledged on delivery of this instrument, for the parties of the first part bakery route and good will in South Chicago, Ills., to any merchant or private individual direct or indirect. And further the parties of the first part agree not to sell or give away to any merchant or private individual who may call at their place of business (at Englewood) for breadstuff from South Chicago, Ills.

In witness whereof, the parties to these presents have hereunto set their hands and seals the day and year first above written.

W. Abraham & H. Vinik, (Seal).

By Wolf Abraham, his

Nathan X Gewirtz, (Seal), mark.

Sealed and delivered in the presence of M. S. Furnam,

I. B. Englestein.

In duplicate.

Witness to mark,

M. S. Furman.”

This document, however, was kept by Abrahams and Gewirtz refused to pay the $300. A week later a third party, one Farber, a salesman for a milling concern, seems to have intervened to bring the parties together again at his place in Chicago. Vinik came there and next Gewirtz and undertook to act for the firm. Farber drew up another contract, which Vinik and Gewirtz signed. It read:

“Chicago, 6-17, 1909.

We, Abrahams and Vinig, agreed to give over all the customers and all the treade which we delivered bread & rolls, etc., for the sume of $275 to Mr. Gewirtz for all the tread of So. Chicago, Ill. We, Abraham & Vinig, also agreed not to sale any bread even at my place of business to the dealers from So. Chicago and to strangers from So. Chicago with onre knowledge, in case we do the sume of $275 shal be returned.

Witness by

Abraham & Vinik,

By Herman Vinik.

XNathan Gewirtz.”

This document was left with Barber by Vinik to be delivered to Gewirtz on the payment of $275. Gewirtz deposited $45 or $50 with Barber, on account of the money to be thus paid and promised to bring the rest next day.

On the next day Gewirtz and Abraham met at Barber’s place. Gewirtz made up the $275 with the additional money which he brought and gave it to Barber, who in turn paid it over to Abraham. Abraham gave up to Gewirtz the document which was dated June 11th and had not been before delivered, and there was also delivered to Gewirtz (apparently by Mr. Barber who had been holding it since the preceding day) the document dated June 17th.

The evidence produced for the plaintiff in this action shows clearly that Abraham and Vinik, after a few weeks—about two months—broke their contract not to sell bread to their former customers in South Chicago. The plaintiff testified that Abraham admitted to him that they were so selling and announced their intention to continue to do so. Two witnesses testified to having bread delivered to them in South Chicago by the defendants’ employe or agent, and one of them testified that Abraham offered to employ him in selling his bread in South Chicago.

After Abraham admitted the sales and announced his intention to continue them, the plaintiff brought the suit at bar. After the evidence for the plaintiff was taken a motion was made by the defendants’ counsel for a peremptory instruction to the jury to find for the defendants. The court refused it, and counsel then said: “I will offer no evidence. The defendants rest.” Thereupon the court instructed the jury to find for the plaintiff in the sum of $275, which they accordingly did. We do not think there was any injurious error in this. The case might properly enough have been left to the jury without peremptory instruction, but they could not, as reasonable men, have found otherwise. The document first above recited of June 17,1909, although signed by both parties, could not properly be considered as executed and binding while Abraham held it and the money had not been paid. It had not been delivered. If it were to be so considered, it must be considered also as abrogated and cancelled by mutual consent when Abraham gave it up to Gewirtz a week later. But the second document was a binding contract between the plaintiff and the defendants, duly signed and delivered for the consideration expressed. There is no merit in the suggestion of the defendants that there was a lack of Abraham’s knowledge or consent. Abraham, for the purposes involved in this transaction, was Yinik, and Yinik was Abraham. Bach had power to bind the other and the firm.

The chief contention between counsel seems to be on the measure of damages for the breach of this contract, and whether the $275 should be considered a penalty or liquidated damages.

We do not think it necessary to review the cases cited so abundantly by the briefs of the parties on this question. It was a part of the contract which Abraham and Yinik broke, that if they sold bread in violation of it they should refund Gewirtz the $275 he had paid for their promise not to do so. They have broken that part of the contract as much as any other, and • there can be no question that the proper measure of damages for refusing to refund $275 is $275.

But if this direct method of looking at the matter is not the correct one, and the question is really the measure of damages for a breach of that part of the contract which bound the defendants not to sell bread to certain customers and within a certain territory, there can he no doubt that the rule to he deduced from the authorities to be applied to a case like this, is that the $275 is to be considered liquidated damages and not a penalty. The sum is the natural and reasonable one to make the measure of damages. The damages would be difficult or impossible to ascertain by evidence. The sum is not mentioned in the contract by way of penalty and does not suggest one.

The alleged illegality of the contract, because it is in unreasonable restraint of trade, is not made out. There is a well known territory or community known as South Chicago that the court will understand the parties had in mind, and the restraint was confined to that place and community, and cannot he considered as more than partial and reasonable.

We are far from being “satisfied,” as the Municipal Court Act says we must he to justify reversal, that “.the judgment is contrary to the law and the evidence” or that it resulted from substantial errors directly affecting the matters at issue between the parties, and it is therefore affirmed.

Affirmed.


text:
    Nettie Masure, Appellee, v. Ismar Masure, Appellant.
    Gen. No. 16,412.
    1. Appeal—when not dismissed where insufficient abstract of record. Although the abstract of the record filed In an appeal from a divorce decree is insufficient under the rules of the court, such appeal will not be dismissed as the public has a substantial interest in the case.
    2. City Court—process cannot extend beyond limits of city. A City Court has no power to send its process beyond the territorial limits of the city in which it is established.

      3. Divobce—void process not valid as a constructive service. A voi.d process served on the defendant in a divorce proceeding cannot he held a valid constructive or substituted service.
    4. Divobce—jurisdiction. The statutes must be followed strictly to secure jurisdiction in a divorce proceeding.
    5. Divobce—appearance. A special appearance and plea do not give a court general jurisdiction of the defendant in a divorce proceeding.
    Appeal from the City Court of Chicago Heights; the Hon. Homes Abbott, Judge, presiding. Heard in this court at the March term, 1910.
    Reversed and remanded with directions.
    Opinion filed June 17, 1912.
    Novak & Pollack, for appellant; Otto Kerner, of counsel.
    George A. Brinkman, for appellee.
   Mr. Presiding Justice Brown

delivered the opinion of the court.

October 1, 1909, Nettie Masure, the appellee in this cause, filed in the City Court of Chicago Heig’hts a bill in chancery praying a divorce from her husband, Ismar Masure, on the ground of extreme and repeated cruelty. The bill prayed that process—a writ of summons-should issue against the defendant, Ismar Ma-sure, commanding him to appear before the City Court of Chicago Heights in the City of Chicago Heights at the term beginning on the 3rd Monday of November, 1909. Summons was issued accordingly, which by its terms commanded the Sheriff of Cook county to summon Ismar Masure so to appear if he should “be found in said county of Cook or city of Chicago Heights.” It.was returned by the Sheriff of Cook county and filed in the cause November 15, 1909. The return was: ‘ ‘ Served the within writ on the within named Ismar Masure by delivering a copy thereof to him this 14th day of October, 1909. Christopher Strassheim, Sheriff, by John P. Collins.”

November 16, 1909, Novak and Pollack as solicitors for Ismar Masure filed an appearance in the cause, signed by them, reading: “We hereby enter the special appearance of the defendant to the above entitled cause for the sole purpose of litigating or testing the question of jurisdiction,” and contemporaneously filed a plea which set forth that the City Court of Chicago Heights ought not to take cognizance of the cause, alleging (1) that the City of Chicago Heights, where the complainant, Nettie Masure, in her bill alleged that she resided, was in Cook county; (2) that the complainant did not in fact at the time of the commencement of the suit, reside there; (3) that the defendant at said time did not reside there' and does not and never did; (4) that he is and at said time and at the time of the service of process on him was a resident ’ of Chicago; (5) that service of process was had on him in Chicago; (6) that there is a Circuit Court of Cook county having jurisdiction of matters of the nature in said bill alleged and of the persons of complainant and defendant; and (7) that at the time the bill was brought all said matters were pleadable originally and exclusively in said Circuit Court of Cook county and not in the City Court of Chicago Heights.

The court caused the plea to be set down for hearing and overruled it, ordering the defendant “to plead, demur or answer instanter.” The defendant refused to plead further in any form and stood by his plea as filed. His default was then taken and complainant’s bill of complaint taken as confessed. The court then heard testimony in open court and entered a decree on January 22, 1910, reciting the foregoing proceedings and finding that it had jurisdiction of the persons and subject matter; that the complainant was at the time of the filing of the bill an actual resident of the city of Chicago Heights and had been a resident of Illinois for a year; that “defendant was sufficiently and duly served with personal notice of the pendency of said suit and made special appearance herein and by filing Ms plea thereby filed his appearance for all purposes.”

Passing then on the merits of the cause, the decree adjudged the defendant to have been guilty of cruelty as alleged in the bill, and dissolved the marriage and gave the custody of a cMld of the parties to the complainant. From this decree the defendant, Ismar Ma-sure, prayed and obtained an appeal to this court.

On the hearing on the plea its truth was admitted by the complainant except as to the allegation that the complainant did not at the time the bill was filed reside in the City of Chicago Heights, and the conclusion of law that the City Court of Chicago Heights did not have jurisdiction of the subject matter of the cause. On this admission the defendant admitted that it could not prove the allegation that the complainant did not reside in Chicago Heights, and abandoned that part of his plea.

The contentions of the appellant are, first, that City Courts do not have jurisdiction to grant divorces; and, second, that the City Court of Chicago Heights could not get jurisdiction of the defendant by process on him outside its jurisdiction, which is confined to the City of Chicago Heights, and that the plea was therefore good.

The appellee maintains, on the other hand, first, that the defendant made a general appearance by his plea, although by his contemporaneous appearance he attempted to limit it; second, that a divorce proceeding is not a proceeding in personam, but in rem, the res being the status of matrimony by which the parties are mutually affected; that in cases in rem “substituted” service is sufficient; and that in this case, as the defendant, by the notice which he received from the copy of the summons, was put in a better position even than that in which notice by publication would have left him, he cannot complain, and the decree in rem dissolving the status should be held good; third, that by statute, if the statute be properly construed by analogy, the service was good. The Divorce Statute provides that “the proceeding shall be had in the county where the complainant resides, but process may be directed to any county in the State. ’ ’ By close analogy, appellee contends, if the City Courts of Illinois have jurisdiction at all in divorce cases, such proceeding must be begun in the city where the complainant resides, but process may be directed at least to any part of the county in which the city is situated. Fourth, that the City Court of Chicago Heights has jurisdiction of divorce proceedings by the combined effect of the Divorce Statute of March 10, 1874, and of the act concerning City Courts of May 10, 1901, under which it was organized. Sections 4, 5 and 6 of the Divorce Act declare—re-enacting with the addition of the Superior Court of Cook county as a proper forum) the provisions of the Bevised Statutes of 1845—that the Circuit Courts of the respective counties and the Superior Court of Cook county shall have jurisdiction in all cases of divorce and alimony allowed by the act, that the proceedings shall be had in the county where the complainant resides, but process may be directed to any county in the State, and that the process, practice and proceedings under this act shall be the same as in other cases in chancery.

Section 1 of the City Court Act of 1901 provides that the several courts of record now existing in and for cities, and such as may thereafter be established in and for any city, shall have concurrent jurisdiction with the Circuit Courts within the city in which the same may be, in all civil cases and in all criminal cases arising in said city, and in appeals from justices of the peace in said city, and that the course of procedure and practice in such courts shall be the same as in the Circuit Courts so far as may be.

The contentions of the respective parties as thus stated indicate all the material questions in this case. The appellee does indeed with justice point out that the abstract of the record filed by the appellant is insufficient under the rules of this court, and that we might, under those rules, dismiss the appeal. But this rig’orous application of the rule we shall reserve for some case in which the public has not a substantial interest, as it has in every divorce suit.

We think the court was wrong in holding that the plea was bad. ' It should have been held good and the complainant required to take issue on it. In our opinion it was good even without the allegation of the complainant's non-residence, and if she chose, on its being held good, to confess it with that exception, it should have then been held a sufficient defense to her action, which should have been dismissed. The arguments to the contrary made by the complainant are plausible, but not, in our opinion, sound.

We may assume, without deciding the point, that although the remedy of divorce is a purely statutory one, and entrusted to certain named courts, the fact that by statute general concurrent jurisdiction with those courts in the County of Cook has been given to an entirely new court, endows that new court with power to administer this remedy. The Supreme Court did not, in Dixon v. Dixon, 61 Ill. 324, find it necessary to decide this point, although it was raised by the plea passed on therein, and we do not find it necessary to do so in this case. The question was not the one in issue in Ladies etc. v. Harrington, 227 Ill. 511; although we may note that the reasoning of a portion of the opinion of the court in the last case would seem to throw a serious doubt on the power claimed for the court below over the subject matter. But in both Dixon v. Dixon and Ladies, etc., v. Harrington it was distinctly decided—as it had been many times before in the cases cited in the Harrington case, (p. 517)—that a City Court has no power to send its process beyond the territorial limits of the city in which it is established. Service, therefore, of that process outside of the city did not secure for the court jurisdiction over the person of the defendant.

The complainant, however, maintains, as before indicated, that the action being one “in rem,” “constructive” or “substituted” service was sufficient. That the action of divorce is one in rem may be considered to be the decision of our Supreme Court in Dunham v. Dunham, 162 Ill. 589. But although an action “in rem” it is something more. It has an individual character of its own, and may be best described by calling it simply “an action to dissolve the marriage relation.” Such an action is, according to the language of the opinion in Dunham v. Dunham itself, p. 607, not “favored” by the law. Dunham v. Dunham holds that the marriage status may be destroyed by the action of a foreign court on “substituted” or “constructive” service of a non-resident defendant ; but it does not hold, nor has any other court that we know of ever held, that valid “constructive” or “substituted” service can be made except as provided by the statutes of the state where jurisdiction is assumed.

Divorce is a statutory, not a common law matter, and the statutes must be followed to secure jurisdiction. In this case, since the service of the summons was void, there was no service, “substituted” or otherwise, on the defendant, and no jurisdiction in the City Court to render the decree of divorce unless there was a voluntary appearance. This the complainant insists the plea filed contemporaneously with the special appearance furnished. But a divorce case is certainly not the one in which any astuteness can properly be shown to hold an appearance, evidently intended for a special one to challenge jurisdiction, a general one binding the defendant to litigate the cause. The court below in finding in its decree that the defendant by filing his plea thereby filed his appearance for all purposes, completely nullified the effect of the plea, which in a precisely similar case was by the Supreme Court held good and preventing a valid decree of divorce. Dixon v. Dixon, 61 Ill. 324.

The decree of the City Court of Chicago Heights appealed from is reversed and the cause remanded to that court with directions to sustain the plea.

Reversed cmd remanded with directions.


text:
    William H. Swanson, Appellant, v. C. B. Fisher, Appellee.
    Gen. No. 16,470.
    1. Injunctions—appeal. An appeal from an interlocutory injunction does not remove the entire cause from the lower court but only the order appealed from, and on reversal a remanding order is unnecessary.
    2. Injunctions—damages. Where an order granting an interlocutory injunction is reversed by the Appellate Court, a suggestion of damages may be made in the trial court though there is no remanding order.
    Appeal from the Superior Court of Cook county; the Hon. Arthur H. Chetlain, Judge, presiding. Heard in this court at the March term, 1910.
    Affirmed.
    Opinion filed June 17, 1912.
    Douglas C. Gregg, for appellant.
    Hoyne, O’Connor, Hoyne & Irwin, for appellee; Carl J. Appell, of counsel.
   Mr. Presiding Justice Brown

delivered the opinion of the court.

In the above entitled cause an interlocutory injunction was entered by the Superior Court of Cook county February 26, 1909, restraining the prosecution of a suit at law in the Municipal Court of Chicago. The suit enjoined was for rent, alleged to be due from Swanson to Fisher on a lease of a theater in Springfield, Ohio. The bill in the cause asked also a cancellation of the lease on which the rent was said to be due. From the order granting this injunction the defendant Fisher appealed to this court, as allowed by the statute. The order was reversed by this court April 12, 1909.

The effect of that reversal was to dissolve the injunction granted by the court below. Thereupon, during the pendency of the cause in the Superior Court, the defendant filed therein suggestion of damages, and on a hearing the Superior Court, December 7, 1909, assessed the damages at $296.50, and awarded execution therefor. From this judgment order the complainant Swanson appealed to this court. This appeal is the one at bar. The gist of appellant’s complaint seems to be that because there was no remanding order entered in this court when the interlocutory injunction order involved was reversed, the Superior Court did not have any right to entertain a suggestion of damages springing from the injunction. It does not very clearly appear from the argument of the appellant whether or not this view is based on the position that the reversal by this court absolutely disposed of the cause in the Superior Court, but in any event it is a misconception.

The cause itself was not remanded on the reversal of the interlocutory injunction order by us, because it was not in this court to remand. It remained in the Superior Court. The review of the interlocutory order was made by us under a statute which makes a specific exception to the general rule that the orders in a cause cannot be appealed from “piecemeal,” but that final disposition of the cause must have been made before any part of it is taken up. Our reversal of the injunction order left the cause pending in the Superior Court, as it had been during our consideration of it and before; the only change in its status being that there was no longer an injunction pendente lite. There was relief, moreover, other than an injunction asked by the bill. That injunction had been dissolved as effectively and with the same result as though the Court below had dissolved it. A suggestion of damages was in order, and we see no error in the judgment made on it. We are not prepared, however, to say that the appeal, although, in our opinion, futile, was taken merely for delay, and shall not allow damages in this court, as requested by appellee.

The additional abstract filed by appellee, however, appears to us to have been necessary, and the cost of it will be taxed against the appellant.

The order of the Superior Court of December 7, 1909, herein appealed from, is affirmed.

Affirmed.


text:
    Alexander Wilson, Trading as Wilson Hardware Mfg. Co., Defendant in Error, v. Owen E. Murphy and John J. Murphy, Trading as Murphy & Co. (John J. Murphy, Plaintiff in Error).
    Gen. No. 16,291.
    1. Appeal and ebror—correction of transcript incorrect through a misprision of cleric. Where the record of a trial court is corrected after the transcript is filed on appeal hy an order of the trial judge reciting that the original record was incorrect through a misprision of the clerk of the court and that it was corrected on inspecting his written minutes and the records and files of the court, it is proper to make the correction and proper to show it hy an additional transcript on appeal.
    2. Evidence—when evidence of telephone conversation is inadmissible. It would seem that the evidence of a witness as to a telephone conversation may he stricken if the identity and authority of the person at the other end of the wire is not sufficiently established.

      Error to the Municipal Court of Chicago; the Hon. John W. Houston, Judge, presiding. Heard in this court at the March term, 1910.
    Affirmed.
    Opinion filed May 25, 1912.
    Rehearing denied and judgment modified June 10, 1912.
    Alden, Latham & Young, for plaintiff in error; Charles Martin, of counsel.
    Charles S. Knudson, for defendant in error.
   Mr. Presiding Justice Brown

delivered the opinion of the court.

In this case a motion of the plaintiff in error was reserved to the hearing. It was to strike an additional transcript of the record filed by the defendant in error from the files. It is now denied. We think it was proper to show here the correction which the court below made in its record after the plaintiff in error had obtained and filed a transcript here. The correction, was made by an order of the Judge of the Municipal Court who tried the case, which recites that he made it on inspection of his written minutes and the records and files of the court, because the record as it originally stood was incorrect through a misprision-of the clerk of the court. Under these circumstances it was proper to make the correction and proper to show it here.

We do not think it necessary to discuss the evidence affecting the merits. It was conflicting to some extent, and the dispute between the parties was one of fact. We are not prepared to say the finding and judgment of the court below was manifestly against the evidence, nor that the striking out of the report by the witness Walsh of a telephonic conversation was erroneous under the circumstances and state of the proof. The identity and authority of the person at the other end of the wire was not, in this case, we think, sufficiently established. We are not laying down a general rule, however, affecting such communications, for, in any event, the reported conversation was, in onr opinion, immaterial.

The judgment of the Municipal Court is affirmed.

Affirmed.

Additional Opinion Per Curiam:. This writ of error was sued out to review a judgment which as entered by misprision of the clerk was on its face erroneous. The record and abstract filed herein showed said judgment thus erroneously entered. The defendant in error was allowed to file a supplemental record showing a corrected entry of said judgment. The judgment is now affirmed, but the costs of this writ of error are taxed against the defendant in error.

Affirmed.


author: Mr. Justice Smith

text:
    The President and Directors of the Manhattan Company et al., Defendants in Error, v. Ernest H. Eversz, Trading as Eversz & Co., Plaintiff in Error.
    Gen. No. 16,261.
    1. Landlord and tenant—assignment of lease by tenant. A lessee cannot rid himself of liability under the covenants of his lease by assigning the same.
    2. Landlord and tenant—when tenant not relieved of liability on assigning lease. A lease provided that it could not be assigned without the consent of the lessor. The lessor investigated a proposed assignee and informed the tenant that he was responsible. The tenant assigned the lease to such party and the lessor consented in a writing which stated that the original lessee was not released from his obligations. Meld, in an action for rent against the original lessee that there was not a surrender or a substitution of tenants which would release the defendant, and that it was proper to direct a verdict for the plaintiff.
    3. Landlord and tenant—when evidence of payment of rent is insufficient. Where a lease has been assigned and the rent is payable in quarterly instalments and there is evidence that a corporation, of which the assignee was an officer, had paid a part of the instalment, but there is no evidence that it was paid to the lessor, it is not improper in an action for rent against the original lessee to direct a verdict for the plaintiff.
    4. Corporations—dealing in real estate. Where a banking corporation owns a building, occupying the banking floors, and renting the remaining portion of the building, there is, in the absence of other evidence no evidence that the corporation is dealing in real estate.
    5. Landlord and tenant—when lease will not be considered against public policy. Where a foreign corporation, owning a building in the state of its incorporation and occupying the banking floor, rents the remaining portion of the building, if there is no other evidence that it deals in real estate, the theory that it is contrary to the policy of our law for corporations to deal in real estate, and that our courts will not enforce contracts made in foreign states contrary to the policy of our law, is inapplicable in an action for rent.
    Error to the Municipal Court of Chicago; the Hon. Freeman K. Blake, Judge, presiding. Heard in this court at the March term, 1910.
    Affirmed.
    Opinion filed June 17, 1912.
    Rehearing denied July 1, 1912.
    Alder, Latham & Young, for plaintiff in error.
    Moses, Rosenthal & Kennedy, for defendant in error; Walter Bachrach, of counsel.
   Mr. Justice Smith

delivered the opinion of the court.

The plaintiffs, here the defendants in error, two New York banking corporations, jointly owning a building on Wall and Pine streets, New York City, and occupying the banking floors of the said building in the conduct of their respective businesses and renting the remaining portions of said building, entered into a lease with the defendant under date of October 27, 1906, whereby they rented certain rooms in said building to the said defendant for three years, from May 1, 1907, to May 1, 1910, at an annual rental of eighteen hundred dollars, payable in installments of four hundred and fifty dollars each every three months during said term. The defendant being at the time of executing said lease in the possession of the premises so demised, continned to so occupy the same until March, 1908. Under date of March 28, 1908, the defendant assigned the said lease to Frank S. Colton, who accepted the same and expressly assumed and bound himself to keep and perform the terms thereof. The lease contained a provision that it should not be assigned or the premises sublet without the written consent of the lessors endorsed thereon to each and every assignment or underletting. It was therefore sent to the plaintiffs’ agents, who accepted the assignment to the said Colton as follows: “Consent is hereby given to the foregoing assignment, but not to release the original lessee from his obligation under the lease.”

Colton went into possession of the said premises and, with the Debenture Corporation, of which he was the vice-president, continued in said possession until January, 1909, when, he, with the said corporation, vacated same. The plaintiffs brought suit against the defendant, here the plaintiff in error, to recover the installments of rent due and payable February 1st and May 1st, 1909, amounting to nine hundred dollars. At the close of all the evidence the court directed the jury to find a verdict for said sum and interest thereon, a total of nine hundred thirty dollars and sixty-three cents. On the verdict so returned the court entered judgment and the defendant sued out this writ of error.

The defendant contends that there was a surrender of the lease and that the plaintiffs agreed to release him from liability thereon, or there was a substitution of tenants. The defendant saw the plaintiffs’ agent about renting said premises and said to him: “I would like to lease my premises, sublet them;” the agent replied that he would let the defendant know if there were any applicants for same. Just how Colton was secured as a tenant is not shown. It appears, however, that the plaintiffs made an investigation as to his responsibility and showed the defendant letters they received concerning same, stating that said letters appeared satisfactory and they believed Colton a good and responsible tenant. At the time the defendant had never seen Colton, but subsequently assigned to him the said lease and the plaintiffs consented thereto, expressly refusing to release the defendant, as heretofore indicated. There is testimony of other statements and acts of the parties that are claimed sustain the said defenses; that these defenses presenting questions of fact, the evidence, not of one fact alone, but of many facts and circumstances, together with the evidence offered and erroneously excluded, was sufficient to entitle the defendant to have the said issues submitted to the jury. We do not think so. We have carefully considered all the evidence and are of the opinion that it does not support the defendant’s contentions. It would seem that the defendant relied upon the plaintiff’s investigation and opinion as to Colton’s responsibility, and defendant on assigning the lease assumed he had no further liability thereon. It is well settled that a lessee cannot rid himself of liability under the covenants of his lease by assigning the same. It is further held, “although a landlord may have given his consent to an assignment by the lessee, and accepted the assignee as his tenant, and received rent from him, yet the lessee is not released from his express covenant to pay rent, unless the landlord has accepted the surrender of the lessee and released him.” Barnes v. Northern Trust Co., 169 Ill. 112, and authorities there cited. There is no evidence in the record, and none was offered, to the effect that the plaintiffs in fact accepted, or that it was their intent to accept, a surrender of the lease from the defendant and discharge him from his liability thereunder, or that there was a substitution of tenants.

It is insisted that the installment of rent payable February 1, 1909, was for the use of the premises during the three months preceding said date; that the evidence introduced by the defendant and stricken out by the court tended to show that the Debenture Corporation paid the plaintiffs the rent to January 1, 1909, that a question of fact was thus presented to the jury as to the rent for the months of November and December, 1908, and that the court therefore erred in instructing the jury to find for the plaintiffs as to said months. An officer of the said Debenture Corporation testified that the said corporation paid the rent to January 1, 1909, but to whom it was paid was not shown. The evidence tended to show that Colton, the assignee of the lease, had some arrangement with the said corporation, of which he was vice-president, whereby it paid rent for said rooms by its check in monthly installments of one hundred and fifty dollars each, but it was not even shown to whom these checks were made payable; and a consideration of all this evidence tended to show that the same was paid to Colton. At any rate there was no evidence that it was paid to the plaintiffs.

The evidence excluded, of which the defendant complains, was not material to the issues, and therefore the court did not err in said rulings.

The defendant in his brief presents fifteen propositions of law. With the most of these propositions of law we agree. It is said, for instance, it is contrary to the policy of our law for corporations to deal in real estate and our courts will not enforce contracts made in foreign states which are contrary to the policy of our law. As to the first clause of the proposition, there is no evidence in the record tending to prove that the plaintiffs were dealing in real estate. The second clause of the proposition, while correct generally speaking, is of no effect here, because it depends upon the first proposition, which is not sustained by the evidence. Many of the other propositions of law are not applicable to the facts in the case at bar, but it is not considered necessary to recite and analyze them. The merits of the case have been carefully considered and our views thereon expressed. The judgment is affirmed.

•Affirmed.


text:
    Reuben Rosenberg et al., Plaintiffs in Error, v. F. J. Lewis Manufacturing Co., Defendant in Error.
    Gen. No. 16,287.

      Sales—when agreement is not a conditional contract. Where a person orders a car of rags at an agreed price and directs that they be shipped to a manufacturing company under an agreement to pay for them as soon as he received the felt made therefrom by the company, it is not a conditional contract and the purchaser is liable for the price though the company becomes bankrupt and no felt is received.
    Error to the Municipal Court of Chicago; the Hon. Mancha Brtjggembyer, Judge, presiding. Heard in this court at the March term, 1910.
    Reversed with judgment here.
    Opinion filed June 17, 1912.
    Brown & Navigato, for plaintiffs in error.
    Elmer & Cohen, for defendant in error.
   Mr. Justice Smith

delivered the opinion of the court.

The plaintiffs, here the plaintiffs in error, began a suit in the Municipal Court of Chicago against the defendant, here the defendant in error, to recover $265.86, the purchase price of a car of rags shipped by the plaintiffs on the defendant’s order to the Vandalia Paper Co., at St. Elmo, Illinois. The cause was submitted to the court without a jury. The court found for the defendant and entered judgment on the finding.

The plaintiffs claimed that the said car of rags was shipped to the paper company on the order of the defendant at an agreed price. The defendant admitted that it ordered the car of rags to be shipped to the said paper company, but claimed that it had been its custom to have rags shipped to the paper company and made into felt and the felt sent to it, and upon receipt of the said felt it paid the shipper of the rags and sent the difference to the said paper company, and that the plaintiffs were informed of this custom and shipped said car of rags under an express agreement that the defendant would pay for same as soon as it received the felt made therefrom by the said paper company, that the defendant received no felt made from the said car of rags, which was not disputed, and was therefore not liable therefor. A short time after receiving the car of rags the Vandalia Paper Company went into bankruptcy; the plaintiffs, however, made no claim against said company.

On the hearing the trial court found that the evidence sustained the contention of the defendant, and held that the same established a conditional contract, and there could be no recovery. The evidence introduced by the plaintiffs tended to prove their contention, but the court evidently considered the evidence introduced by the defendant tending to prove its contention of greater weight. Accepting, therefore, the view of the court that the evidence established the defendant’s contention, the question arises: Did the same establish a conditional contract?

The plaintiffs had shipped the car of rags at an agreed price, as ordered by the defendant. The defendant thereupon became liable to pay for the same. The time of payment, however, was agreed to be when the defendant received the felt made from the rags. In Noland v. Bull, 24 Ore. 479, the court said: “"When there is a present debt then due, constituting the basis of an agreement which merely postpones the time of its payment to an uncertain future date,, when a certain specified transaction shall be accomplished, the agreement is to pay within a reasonable time, whether such transaction is accomplished or not.” In Upson v. Holmes, 51 Conn. 500, the court said: “Where

goods are sold and delivered to be paid for on the happening of a certain event, the vendor will not be deprived of his right to recover merely because the event on which payment is to be made has by accident become impossible.” Sears v. Wright, 24 Me. 278; DeWolfe v. French, 51 Me. 420; Croker v. Holmes, 65 Me. 195; Hicks v. Shouse, 56 Ky. 483; Williston v. Perkins, 51 Cal. 554; Ubsdell v. Cunningham, 22 Mo. 124; Randall v. Johnson, 59 Miss. 317; Nunez v. Dautel, 19 Wall. 560.

In this case we think the evidence shows that the defendant expressly obligated itself to pay for the said car of rags; and not the debt, but the time of payment thereof was contingent. Under such circumstances the rule of law announced in the cases cited controls, and the defendant must be held liable.

The judgment is reversed and judgment is here entered against the defendant for $265.86, with interest thereon at the rate of five per centum per annum from November 19, 1909.

Reversed with judgment here.


text:
    Adam Natywa for use of Joseph Ellguth, (Adam Natywa and Albert Wachowski, Plaintiffs in Error), v. Albert Wachowski, (Joseph Ellguth, Defendant in Error).
    Gen. No. 16,324.
    1. Garnishment—when garnishee cannot complain. If a garnishee answers and admits owing the debtor the amount of the debt he has no ground for complaint on judgment being entered for such amount, even though the debtor has paid a part thereof.
    2. Garnishment—effect of part payment of debt on judgment for full amount. Since it is the proper practice, where a garnishee admits owing the amount of the debt, to enter judgment against him for such an amount, the original judgment debtor cannot move to vacate the attachment judgment on the ground he has paid a part of the debt.
    3. Garnishment—practice where part of debt paid by debtor. Where judgment is given against a garnishee for the full amount of the original judgment debt and the debtor had paid a part thereof, the disposition of the partial payment should he made on a hearing on an intervening petition of the debtor.
    Error to the Municipal Court of Chicago; the Hon. Charles N. Goodnow, Judge, presiding. Heard in this court at the March term, 1910.
    Affirmed.
    Opinion filed June 17, 1912.
    Pease, Smietanka & Polkey, for plaintiffs in error.
    Morris A. Weinberg, for defendant in error.
   Mr. Justice Smith

delivered the opinion of the court.

Jospeh Ellguth obtained a judgment against Adam Natywa for the sum of $154.50. Ellguth then began a garnishment proceeding for his use in the name of said Natywa, as nominal plaintiff, against Albert Wachowski. The garnishee answered that he was indebted to said Natywa in the sum of, so far as disclosed by the record, $154.50, and judgment was accordingly entered against the garnishee, Wachowski, for the said amount. To reverse this judgment Wachowski and Natywa sue out this writ of error.

In Bank of America v. Indiana Banking Co., 114 Ill. 483, the court said: “By the practice which obtains in this State, the judgment against the garnishee must be rendered in favor of the attachment or judgment debtor, for the benefit of the attachment or judgment creditor, who is treated as the real plaintiff, against his own debtor. * * * It is equally well settled the judgment must, in form at least, be for the whole amount due from the garnishee, and whatever surplus there may be after paying the creditors entitled under the statute to share in the distribution to be made, belongs to the debtor, in whose name the suit is prosecuted." (Citing authorities.) This rule is approved in Kern v. Chicago Brewery Association, 140 Ill. 371, and Siegel et al. v. Schueck, 167 Ill. 522.

The plaintiff in error, Wachowski, has only to pay the amount of the judgment into court and he. will be protected therein, and having answered and admitted that there was due and owing from him to Natywa the said sum, he certainly has no ground of complaint.

The plaintiff in error, Natywa, made a motion to vacate and set aside the said judgment against the garnishee, Wachowski, on the ground that he, Natywa, had paid Ellguth, the beneficial plaintiff therein, the sum of one hundred dollars on account of the judgment Ellguth had recovered against him, Natywa, and introduced evidence tending to prove his contention.

The judgment against the garnishee being entered in accord with the law and the facts, as indicated, the said motion to vacate and set aside the same was properly denied.

The disposition of the said sum of one hundred dollars would be made by the court on a hearing on an intervening petition of the said Natywa; but it does not appear from the record what other, if any, proceedings were had as to the said claim made by Natywa, or what finding or order, if any, the court made as to the same.

The judgment is affirmed.

'Affirmed.


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    J. A. Coleman, Plaintiff in Error, v. J. F. Rowley Co., Defendant in Error.
    Gen. No. 16,335.

      Sales—damages where one of two articles is defective. On a contract to make an artificial leg satisfactory to the purchaser and to furnish a temporary artificial leg, for which legs a certain amount was paid with an agreement to pay an additional larger amount when the permanent leg was finished, if the temporary leg is painful and unsatisfactory and suit is brought for the amount paid, even if the plaintiff is liable on defendant’s claim of set-off for the larger amount to be paid, he is not liable for the entire contract price.
    Error to the Municipal Court of Chicago; the Hon. Geobge B. Watkins, Judge, presiding. Heard in this court at the March term, 1910.
    Reversed and remanded.
    Opinion filed June 17, 1912.
    J. A. Coleman, for plaintiff in error.
    Marvin E. Barnhart, for defendant in error, (pro se).

   Mr. Justice Smith

delivered the opinion of the court.

The plaintiff in error, hereinafter called plaintiff, brought a suit against the defendant in error, hereinafter called defendant, to recover the sum of twenty-five dollars. The defendant filed a claim of set-off for the sum of eighty-five dollars. The cause was submitted to the court without a jury. The court found the issues for the defendant and entered a judgment against the plaintiff for the sum of eighty-five dollars, and the plaintiff sued out this writ of error.

. The evidence shows that the parties entered into a contract whereby the defendant was to make for the plaintiff an artificial leg satisfactory to him, and also make and furnish him a temporary artificial leg, for which legs the plaintiff paid twenty-five dollars and agreed to pay eighty-five dollars more “when permanent leg is finished.” The defendant furnished the plaintiff a temporary artificial leg, about which the plaintiff complained to the defendant in several respects, claiming that it was not as agreed, did not fit and caused him such pain to wear that he could not stand it; and offered the leg back to the defendant, demanding a return of the said twenty-five dollars, and not being paid same, brought suit therefor. The defendant’s set-off was for the sum of eighty-five dollars, to be paid him as above set forth. There was no other evidence whatever pertaining to the permanent artificial leg. Even if the plaintiff be held liable, we know of no rule of law on the measure of damages that would permit the recovery of the entire contract price under the circumstances in evidence.

The judgment is reversed and the cause remanded.

Reversed and remanded.


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    Charles R. Withers, a minor, by Charles W. Withers, his next friend, Appellant, v. Chicago City Railway Company, Appellee.
    Gen. No. 16,341.
    1. Cabeiebs—assault By employe. On an action against a street railway company for breach of contract of safe carriage, defendant should be held liable if the jury believe plaintiff’s testimony that, as he was boarding a car at a street intersection, with his fare ready, the conductor without provocation struck at him with a black-jack, hit him in the neck, and knocked him from the car.

      2. Gabblers—appeal and error. On action against a street railway company for breach of contract to safely carry plaintiff, a verdict for defendant should not be disturbed where plaintiff’s testimony, as to an assault by a servant of the defendant as he was boarding a car, is in many respects inconsistent and improbable and especially as to whether he was assaulted by a servant of defendant.
    Appeal from the Municipal Court of Chicago; the Hon. Abitold Heap, Judge, presiding. Heard in this court at the March term, 1910.
    Affirmed.
    Opinion filed June 17, 1912.
    B. M. Shaffner, for appellant.
    C. Le Roy Brown, for appellee; W. D. Bartholomew, of counsel.
   Mr. Justice Smith

delivered the opinion of the court.

This was a case of the first class in the Municipal Court of Chicago, wherein appellant sought to recover damages from appellee for a breach of contract. The first count charged a breach of the contract to protect and safely carry the plaintiff, etc., in that the defendant, by its servant, assaulted the plaintiff, etc. The additional count charged the breach of the contract in that the defendant permitted some person on the car to assault the plaintiff, etc. The jury found for the defendant; the court entered judgment on the verdict, and the plaintiff comes here on appeal.

The plaintiff was the only witness in the case who testified to what took place at the time of the alleged assault. He was 17 years old at the time, and testified' that he boarded a car of the appellee on Wabash avenue at Madison street; that at the time he had a dime in his hand with which to pay his fare going to Ms home; that as he put his foot on the platform, a man with a blue uniform standing at the rear exit door of the car, who, he said, was the conductor, without a word- having been said by any one and without provocation of any kind, struck at him with a black-jack; that he saw the blow aimed at his head and dodged, but was hit on the neck and knocked to the street; that some man, a stranger to him, picked him up and he then went to State street and took a car and went to Ms home; that by reason of Ms injuries so received he has suffered, etc., etc.

If the jury believed the said testimony of the plaintiff, it is clear the defendant should have been held liable under the first count. We- have made a careful study of the plaintiff’s testimony as shown by the record, and in view of the inconsistencies and improbabilities shown therein in many respects, we are not disposed to hold that the verdict was clearly and manifestly against the weight of the evidence, especially as to the person who assaulted the plaintiff, if he were so assaulted, being a servant of the defendant.

There was ho evidence supporting the additional count, for there was no showing that the defendant failed to exercise due care as required by law to protect a passenger from an assault as therein charged.

The record presents no substantial errors, and the judgment is affirmed.

Affirmed.


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    In the Matter of the Petition of Emil Radtke, at Suit of William Steinhouse, (Appeal of Emil Radtke, Appellant), v. The People of the State of Illinois, Appellee.
    Gen. No. 16,357.
    1. Aeeest—when tort averred necessarily includes malice. The character of the tort averred in a single count of a declaration in trespass for assault and battery necessarily includes malice where it avers that the defendant “with force and arms violently struck plaintiff,” etc.

      2. Arrest—discharge. On arrest under a capias on judgment in trespass for assault and battery and on petition for release under the Insolvent Debtor’s Act, it is not error to refuse to permit the petitioner to introduce evidence of want of malice.
    3. Trial—when court need not consider immaterial and incompetent evidence. On hearing without a jury the court is not required to consider incompetent and immaterial evidence, however it may have been admitted.
    4. Appeal—when presumed court not influenced T>y incompetent and immaterial evidence. Where there is sufficient proper evidence to justify a judgment of a court sitting without a jury, a reviewing court will not presume that incompetent and immaterial evidence influenced the trial court.
    Appeal from the County Court of Cook county; the Hon. Frank G. Plain, Judge, presiding. Heard in this court at the March term, 1910.
    Affirmed.
    Opinion filed June 17, 1912.
    George Remus, Joseph S. La Buy and Edward E. Shinnick, for appellant.
    Charles J. Herman, for appellee.
   Mr. Justice Smith

delivered the opinion of the court.

William Steinhaus brought a suit in trespass in the Circuit Court of Cook county against Emil Radtke. The case went to trial on one count, wherein it was averred that the defendant at Chicago, etc., with force and arms assaulted and violently struck the plaintiff many blows with his fists, etc., and threw the plaintiff upon the ground and violently kicked plaintiff, etc., etc., whereby plaintiff was greatly injured, etc. The jury found the defendant guilty and judgment was entered upon the verdict for the sum of $1,500.00, which said judgment was affirmed in this court and reported in 145 Ill. App. 232. The sheriff of Cook county arrested the said Radtke under and by virtue of a writ of capias ad satisfaciendum issued on the said judgment by the said Circuit Court. The said Radtke thereupon filed a petition in the County Court of Cook county, praying to he released from the said arrest on delivering up his property, as provided by .the Insolvent Debtor’s Act.

At the hearing on the said petition by the County Court the parties introduced in evidence by agreement the record of the said cause in the Circuit Court, including the bill of exceptions filed therein. The court held, in effect, that the common law record, showed malice was the gist of the action, and refused to consider the evidence as shown by the said bill of exceptions ; refused to permit the petitioner to introduce evidence for the purpose of proving that malice was not in fact the gist of the action; denied the prayer of the petition and remanded the petitioner to the custody of the sheriff, from which said order the petitioner appealed.

The character of the tort averred in the only count of the declaration necessarily included malice. Paxton v. Boyer, 67 Ill. 132; In re Murphy, 109 Ill. 31; In re Mullin, 118 Ill. 551; and the court committed no error in refusing to permit the appellant to introduce evidence to prove want of malice. Mahler v. Sinsheimer, 20 Ill. App. 401; Masterson v. Furman, 89 Ill. App. 291; Salomon v. Buechele, 127 Ill. App. 420.

The appellant, however, insists that even though it be true that under the rule of law applicable to the case at bar, no evidence should be admitted to prove malice was not the gist of the action, yet the evidence on the trial in the Circuit Court being admitted by agreement on the hearing of said petition by the County Court, it was the duty of the County Court to consider and pass upon the same; and that had the court so done, it would have appeared that malice was not the gist of the action, and the petitioner would accordingly have been discharged. We know of no rule of law that a court, on a hearing without a jury, is required to consider, in the determination of the issues, immaterial and incompetent evidence, however the same may have been admitted in the ease. On the contrary the rule is that, on a trial by the court without a jury, no improper or incompetent evidence will be presumed by a reviewing court to have influenced the court in reaching a decision, where there is sufficient proper evidence to justify the judgment. Merchants’ Despatch v. Joesting, 89 Ill. 152; Kreiling v. Nortrup, 215 Ill. 195; Pratt v. Davis, 224 Ill. 300. There are also many Appellate Court decisions to the same effect.

The judgment is affirmed.

Affirmed.


text:
    Fannie R. Sloss, Defendant in Error, v. August F. Brockman, Plaintiff in Error.
    Gen. No. 16,409.
    1. Trial—statement by court. "Where the question of constructive eviction from a residence because of sewer gas is raised, a statement by the court that “sewer gas has no odor as I understand,” is improper.
    2. Evidence—of expert on effect of sewer gas on human system. Where on an issue as to whether or not illness was caused by sewer gas, evidence is given describing the symptoms of the illness of certain parties claimed to be affected thereby, the testimony of an expert physician as to the effect of sewer gas on the human system should not be excluded.
    3. Landlord and tenant—duty to Tceep premises in a tenantable condition. The landlord of a residence is bound to keep the premises in proper repair to render them tenantable as a residence.
    4. Landlord and tenant—constructive eviction. Whether the failure of the landlord to keep the premises in proper repair amounts to a constructive eviction is a question of fact for the jury.
    5. Landlord and tenant—constructive eviction. Where there has been a constructive eviction the tenant is discharged from the payment of rent subsequent to such eviction though advance rent be past due.

      6. Landlord and tenant—instructions. An instruction relative to the question of constructive eviction that the surrender of the key “cuts no figure” is error.
    Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in this court at the March term, 1910.
    Reversed and remanded.
    Opinion filed June 17, 1912.
    B. M. Shaffner, for plaintiff in error.
    Simeon Strauss and Ira E. Strauss, for defendant in error.
   Mr. Justice Smith

delivered the opinion of the court.

The defendant in error, hereinafter called plaintiff, under date of February 17, 1909, leased to the plaintiff in error, hereinafter called defendant, “to be used only as a residence, viz: the residence known and described as No. 4203 Grand boulevard, together with the furnishings contained therein,” for the term beginning March 6, 1909, and ending April 30, 1910, at the rate of $125.00 per month, payable in advance on the first day of each month. The lease, among other provisions, contained the following: “It is understood and agreed between the parties hereto that the party of the first part” (the plaintiff) “shall make all repairs necessary during the term of this lease.” The defendant went into possession of said premises under said lease on said March 6, 1909, but moved therefrom July 10, 1909. The plaintiff moved back into the said premises October 5, 1909, and in November following brought suit against the defendant for $375.00 for rent for the months of July, August and September and certain articles claimed to be missing from the said premises; but with one exception offered ho evidence to support her claim for the articles alleged to be missing. The jury returned a verdict finding the issues for the plaintiff and assessing her damages at the sum of $375.00, and the court entering judgment on the verdict, the defendant comes here on writ of error.

The defense was constructive eviction, and by reason thereof the defendant abandoned the premises. The defendant introduced testimony tending to prove that there was sewer gas in the said premises; that the plaintiff’s agent in charge and control of the said premises was repeatedly notified of same and requested to make the necessary repairs of alleged defective plumbing, but did not do so; that the defendant’s wife and other members of the household became seriously ill, and by reason of the said sewer gas causing said premises to be unfit and untenantable as a residence the defendant was forced to move therefrom. The plaintiff denied there was sewer gas in said premises. Some of the witnesses for the defendant testified they knew what sewer gas was, and that it had an odor and they knew it existed in said premises by the odor therein. Witnesses for the plaintiff testified they had made an examination of the premises at the time in question, and there was no sewer gas in the premises, and some said there was no odor to sewer gas; and one witness, a city plumbing inspector, testified that sewer gas may or may not have an odor. During the examination of a witness for the defendant as to sewer gas the court said: “Sewer gas has no odor as I understand it.” This statement was improper, for it concerned a disputed material circumstance going to the issues to be passed upon by the jury, and the remark of the court would naturally have great weight with the jury in their consideration of the testimony as to whether there was in fact sewer gas in the said premises.

Testimony was given describing the symptoms of the illness of certain members of the household, and the defendant called Dr. Herbst, who testified that he was a regular licensed physician for ten years and had made a study of the effect of sewer gas on the human system; and he was then asked to state the effect sewer gas had on the human system, to which the plaintiff objected and her objection was sustained. The testimony of the doctor was clearly admissible as tending to show whether the illness of said persons as claimed was caused by sewer gas. The court later stated that it was not shown that the said persons were affected by sewer gas and struck out the testimony as to the illness of the members of the defendant’s household. The defendant did not claim to have been ill. The court instructed the jury, in part, as follows: “There is no evidence as to sickness occurring to the defendant from sewer gas. Any such evidence you may have heard here is stricken out, because all people are liable to get sick, and we can’t attribute all the sickness of this time of the year to sewer gas, and all such evidence must be disregarded by you entirely.”

The general doctrine of eviction as arising from the “failure of a landlord to make necessary repairs on the demised premises may be succinctly stated as follows : When the premises become untenantable by reason of the failure of the landlord to do what is lawfully required of him, the effect is eviction, which permits the tenant to abandon the premises.” 11 Am. & Eng. Ency. of Law (2nd ed.), p. 478, and authorities there cited. “While it is clear that breach of the covenant on the part of the landlord by failing to make repairs will not, ordinarily, furnish ground for the tenant to resist the payment of rent while he continues to occupy the premises, yet it is held that if, for lack of repairs, the premises are rendered useless for the purpose for which they were leased, as by failing to keep the flumes appurtenant to a mill in repair, such default on the part of the' landlord may amount to an eviction and the tenant will be justified in abandoning the premises and refusing to pay rent for the unexpired term.” Taylor’s Landlord and Tenant, vol. 1, sec. 330, and authorities there cited. Other authorities to the same effect are McCardell v. Williams, 19 R. I. 701; Piper v. Fletcher, 115 Iowa 263. In the cases of Leonard v. Armstrong, 73 Mich. 577, and Bradley v. Gicowria, 67 Howard’s Pr. 76, it was held that the sewer gas in the premises in question rendering the premises untenantable, there was a constructive eviction, and the tenants having abandoned the premises were relieved from the further payment of rent.

“Eviction necessarily being the result of an intended, willful, wrongful act, it must be by a willful omission of duty, or a commission of a wrongful act.” Barrett v. Boddie, 158 Ill. 479. It is clear that under the lease the plaintiff was bound to keep the premises , in proper repair to render them tenantable for a residence, the use and purpose for which they were leased by the defendant. Whether the premises became untenantable for the uses and purposes for which they were rented because of a failure of the plaintiff to repair amounting to a constructive eviction is a question of fact for the jury under all the evidence and proper instructions of the court as to the law. Rubens v. Hill, 213 Ill. 523.

The court instructed the jury that under the circumstances the defendant moving from the premises July 10th and the rent for July becoming due and payable prior thereto, the defendant was liable for $125.00, the rent for the month of July. This was error. If there was an eviction, the defendant was discharged from the payment of rent for the premises subsequent to the eviction. Leadbeater v. Roth, 25 Ill. 587; Wright v. Lattin, 38 Ill. 293.

The defendant after leaving the premises delivered the key to the plaintiff’s agent. The court instructed the jury: “The question as to the key cuts no figure in this case as I see it.” It seems that there can be no constructive eviction without a surrender of the possession of the premises. Burnham v. Martin, 90 Ill. 438; Keating v. Springer, 146 Ill. 496. The delivery of the key to the plaintiff was a circumstance tending to prove the surrender of the possession of the premises. It is evident that the court’s remarks, rulings on the evidence and instructions to the jury practically eliminated the defense of eviction.

There were other errors, hut as there appears no reason why they should again occur on another trial of the case, it is unnecessary to discuss them.

The judgment is reversed and the cause remanded.

jReversed and remanded.