text:
    Christian C. Lasman, Appellant, v. Daisy Harmon Harts et al., Appellees.
    Gen. No. 22,469.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Coolc county; the Hon. Fbedebick A. Smith, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Affirmed.
    Opinion filed October 31, 1917.
    Rehearing denied November 17, 1917.
    Statement of the Case.
    Bill by Christian C. Lasman, complainant, against Daisy Hanson Harts, Edwin B. Harts and A. A. Kuhn, defendants, to enjoin the enforcement of a judgment. The property was thereafter sold by the sheriff under the judgment upon condition that complainant pay the purchaser, within 15 days, the amount which the latter paid for the premises, and, in case of complainant’s failure to do so, the bill would be dismissed. After-wards complainant filed a supplemental bill setting up such facts and moved that the sale be set aside. The case was heard before the chancellor and a decree entered setting aside the sale as above stated on the ground that complainant occupied the premises as a homestead and that the sheriff did not comply with the law as to setting off the homestead before making the sale. From the decree setting aside the sale, complainant appeals. The same facts are involved as in Harts v. Lasman, ante, p. 137.
    Q. J. Chott, for appellant; Frank H. Culver, of counsel.
    Edwin B. Harts, for appellees.

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

   Mr. Justice O’Connor

delivered the opinion of the court.

Abstract of the Decision.

1. Equity, § 553 —when incorporation of findings of fact in decree is not ground for reversal. Where a bill and supplemental bill ask for relief and such relief is awarded by the decree, the incorporation of findings of fact in the decree is not ground for reversal.

2. Judgment, § 606*—right to revive by scire facias. The holdings of Harts v. Lasman, ante, p. 137, as to the right to revive by scire facias the judgment involved, followed.

3. Judgment, § 618*—when validity of in scire facias proceedings to revive may not be attacked. On a bill to enjoin the enforcement of a judgment, complainant cannot bring in question the validity of the judgment in a scire facias proceeding to revive the former judgment.

4. Appeal and error, § 494*—when objection cannot be raised on appeal. Objection that a default was entered while defendant had pleas on file which had not been disposed of cannot be first raised on appeal.

5. Judgment, § 360*—when error in entering by default cannot be corrected. Error in entering judgment by default while defendant still had- pleas on file which had not been disposed of cannot be corrected by a court of chancery on a proceeding to enjoin the enforcement of the judgment.

6. Appeal and error, § 1258*—when party cannot complain of any error in decree for sale of property under judgment. Where a decree for the sale of property under a judgment does not require defendant to pay the amount of the, judgment but only the amount for which the property should be sold, he cannot complain that the decree did not allow credit for a payment made before the decree was entered, where the amount for which the property was sold was less than the amount of the judgment after deducting the credit claimed.


source: Caselaw Access Project

author: Mr. Justice O’Connor

license: Public Domain

text:
    Daniel A. Levy et al., Appellees, v. Caroline L. D. Payne et al. Leslie Dudley Carter, Interpleader, Appellant.
    Gen. No. 22,710.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Venue, § 24

      —when discretion in refusing to grant petition for change of not abused. Where it appears from a petition for a change of venue, which was presented to the trial judge who had entered several orders in the cause prior to the presentation of the petition, that knowledge of the alleged prejudice of the 'trial judge came to the petitioner on December 27th, the hour not being stated, and that notice was served on the opposing counsel on December 28th, at 3 o’clock p. m., the Appellate Court cannot say that there was an abuse of discretion in refusing to grant the petition for a change of venue of the action which was for hearing January 3rd.

      Appeal from the Municipal Court of Chicago; the Hon. John Stelk, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1916.
    Affirmed.
    Opinion filed October 31, 1917.
    Rehearing denied November 17, 1917.
    Statement of the Case.
    Attachment by Daniel A. Levy, John F. Tyrrell and William H. Devenish, plaintiffs, against Caroline L. D. Payne, defendant, in which certain others were served as garnishees, to recover $6,075. Afterwards Leslie Dudley Carter filed a petition of interpleader claiming to be the owner of one-half interest in property which had been levied on in the attachment suit. The issues raised by the petition of interpleader were tried before the court without a jury and the court found in favor of plaintiffs and entered a judgment against the interpleader for costs, to reverse which this appeal is prosecuted. See also, Levy v. Payne, 204 Ill. App. 224.
    Thomas E. Swanson, for appellant.
    Levy, Tyrrell, & Devenish, pro se.

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

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

   Mr. Justice O’Connor

delivered the opinion of the court.

2. Municipal Court of Chicago, § 16 —when case properly tried by court without jury. Under section 30 of the Municipal Court Act (J. & A. 1f '3342) where one filing an intervening petition in an attachment suit to recover $6,075 on .the ground that he owns a one-half interest in the property attached makes no demand for trial by jury until the case comes on for hearing, when he tenders the statutory fee and demands a jury trial in writing, the case is properly tried by the court without a jury.

3. Appeal and error, § 1236*—when party cannot occupy different position on appeal. An appellant cannot occupy in the court of review a different position from that which he assumed in the trial court.

4. Attachment, § 42*-—when evidence shows indebtedness of defendant to plaintiffs and fraudulent transfer of interest in property. On a petition of interpleader in an attachment suit on the ground that the interpleader was owner of one-half interest in the property attached, evidence held to support a finding that defendant in attachment was indebted to plaintiffs and that the transfer of an interest in the property to the interpleader was fraudulent, collusive and invalid as against plaintiffs.

5. Attachment—when defendant cannot take advantage of assignment of plaintiffs’ interest prior to trial. Defendant in attachment cannot take advantage of - the fact that, prior to the trial, plaintiffs made an assignment of all their interest to a third person, which assignment was of record.

6. Attorney and client, § 105*—when no defense in action for fees that attorney represented both attachment defendant and receiver. It is no defense to an attachment suit to recover fees for legal services that in the proceeding in which the services were rendered plaintiffs represented both the attachment defendant and a receiver appointed by the court, where it does not appear that the interests of the receiver and such defendant were adverse, but does appear that no charge was made for the services rendered the receiver.


text:
    P. A. Russell, Defendant in Error, v. William Tevnan, Plaintiff in Error.
    Gen. No. 23,050.
    Building and construction contracts—when owner not liatm for materials and labor furnished under agreement to pay for same to contractor. In an action by a subcontractor against the owner of property tó recover for materials and labor furnished the principal contractor in the erection of a building thereon for which it is alleged that defendant agreed to pay, there can be no recovery where, according to plaintiff’s version of the agreement, defendant has already paid him for so much as he agreed to pay.
    Error to the Municipal Court of Chicago; the Hon. William N. G-emmill, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1917.
    Reversed with finding of facts.
    Opinion filed October 31, 1917.
    Rehearing denied November 17, 1917.
    Theodore Johnson, for plaintiff in error; Elmer H. Heitmann, of counsel.
    M. M. Jacobs, for defendant in error.
   Mr. Justice O’Connor

delivered the opinion of the court.

P. A. Bussell brought suit in the Municipal Court of Chicago against William Tevnan to recover $429.50. The jury returned a verdict in favor of plaintiff for the amount claimed, on which judgment was entered, to reverse which defendant prosecutes this writ of error.

The record discloses that defendant was the owner of real estate in Chicago, upon which he desired to construct a three story and basement apartment building and entered into a written contract with one C. 0. Johnson, whereby Johnson agreed to do the carpenter and mill work. Afterwards Johnson entered into a verbal contract with plaintiff whereby plaintiff was to furnish the mill work for $1,425. The parties proceeded under their respective contracts, and on or about October 26, 1912, Johnson owed plaintiff about $300. Johnson having neglected to pay plaintiff, the latter refused to furnish any further material, and thereupon the defendant called on the plaintiff and requested that he deliver certain material under his contract with Johnson, and an agreement was reached whereby this was done, and the work was-afterwards completed.

Plaintiff claimed there was a balance due bim of $429.50 from Johnson, and, after making several demands for payment, he brought this suit against the defendant claiming that defendant had on October 26th agreed to pay plaintiff for the materials furnished. A number of contentions are made by the respective parties, but, in the view we take .of the case, it will be unnecessary to pass upon but one of them.

The evidence tends to show that after plaintiff had furnished the frames, for which there was due bim about $300, Johnson neglected to pay the same, and plaintiff refused to furnish further material. Defendant being desirous of having his building completed called on the plaintiff October 26, 1912. Plaintiff contends that at that time defendant stated that if plaintiff would continue to furnish the material he would pay for it; that thereupon plaintiff continued to furnish the material and on November 30th received $150 from Johnson and $100 from defendant, and on January 10th, following, plaintiff received $800 from defendant. The evidence further tends to show that, after October 26th, plaintiff made repeated demands for payment on Johnson, and on January 10, 1913, served a notice of mechanic’s lien on the defendant and his architect, wherein it was stated that plaintiff had entered into a contract with Johnson to furnish the mill work on the building for $1,425, and extras amounting to $108; that this material was furnished Johnson under the latter’s contract with the plaintiff; that upon completion of the work by plaintiff there would be due $1,473.50. Afterwards, on February 1st, plaintiff sent an itemized bill to Johnson claiming a balance of $429.50. Johnson having neglected to make the payment, plaintiff filed in the Circuit Court of Cook county a bill to enforce his mechanic’s lien against the defendant, Johnson and other parties. The bill was sworn to by plaintiff and was offered in evidence in this case. It sets up that Johnson had entered into a contract with the plaintiff for constructing certain parts of the building, and that plaintiff entered into a subcontract with Johnson to furnish the mill work. There is no averment that the defendant had subsequently agreed to pay the plaintiff for the materials.

The evidence further shows that the defendant had obtained a loan through one Broomell; that on November 30th, when plaintiff received payment of $250, $100 was obtained from Broomell upon request of the defendant; that when the $800 was paid the following 'January, plaintiff requested the defendant to have Broomell pay this sum, stating that the defendant could charge it to Johnson. Thereupon the defendant stated that he was not certain whether he could legally do this, and immediately called his attorney, and after the matter was considered, the attorney advised that the payment could be thus made, and it was accordingly done.

The defendant denied that on October 26th, he promised to pay plaintiff for the materials, and stated that the only materials mentioned in that conversation were the sashes, which he then requested plaintiff to furnish. Plaintiff also testified that it was the furnishing of the sash that was discussed at that time, and claimed that defendant agreed if it was furnished he would pay for it. Plaintiff’s two sons testified that at the meeting of October 26th, the defendant stated that he would pay for the “materials” or “goods” if the plaintiff would furnish them, but upon cross-examination of these two witnesses it appears that the only material which defendant requested to be furnished was the sash, and there is no contention that these sashes have not all been paid for.

It therefore appears, if we accept plaintiff’s version of the agreement of October 26th, that defendant then agreed to pay for the sashes if plaintiff would furnish them, and this is the extent of the direct liability of the defendant to the plaintiff in this case. And as plaintiff has already received payment for the sash, there is no basis upon which the judgment can be sustained, and the court should have sustained defendant’s motion made at the close of all the evidence to instruct the jury to find for him. It follows that the judgment of the Municipal Court of Chicago must be reversed with a finding of fact.

Reversed with a finding of fact.

Finding of fact: The court finds as an ultimate fact that the defendant did not on October 26,-1912, promise to pay plaintiff for all the materials which the latter should furnish, but that the promise then made, if any, was limited to the sash; and that the plaintiff has received payment for the sash.


text:
    Eli Good, Appellee, v. John S. Woodruff, Appellant.
    Gen. No. 23,112.
    1. Appeal and error, § 1752

      —when judgment may be affirmed because of insufficient abstract. Where the abstract of the record on an appeal from a decree is insufficient and does not comply with the rules of the Appellate Court, in that it contains an insufficient abstract of the decree and the master’s report and shows none of the exhibits or documentary evidence introduced on the hearing, the Appellate Court may either affirm the decree for that reason or may pass upon the merits.
    2. Mortgages, § 80*—when mortgage to secure future advances becomes prior lien. A mortgage may be made to secure future advances and become a prior lien for the amount loaned, even though no money is advanced until after subsequent mortgages are in force, and even though it does not state that it is given to secure future advances.
    3. Mortgages—when provision of trust deed as to foreclosure thereof for amount due on interest notes subject to lien for principal by other than holders of bonds is inapplicable. The provision of a trust deed that, in case the interest notes of the bonds secured by it shall- become the property of any person other than the holders of the bonds, the trust deed may be foreclosed for the amount due upon such interest notes or any of them, as though they and the principal sum were secured by separate deeds of trust, provided, however, that such foreclosure shall in all respects be secondary and subject to the lien of the trust deed for the security of the principal sum and any and all interest notes other than those for which the foreclosure is had, only applies where one who becomes the owner of interest notes seeks to foreclose them, and not to a controversy between the holder of the bonds and trust deed and the holder of a mortgage, who had also purchased interest notes of the former mortgage, as to the priority as between their respective liens.
    4. Mortgages—when purchaser of interest coupons first maturing is not entitled to preference in payment over bonds. The purchaser of interest coupons of bonds secured by a mortgage which were the first of such coupons to mature is not entitled to preference in payment over the bonds where the trust deed provides that all of the bonds are equally secured “without any preference or priority whatsoever,” hut such purchaser has a concurrent lien with the holder of the bonds to the amount of his coupons.
    5. Mortgages, § 257

      —when agreement for extension of time for payment of bonds not shown. Evidence held insufficient to show an agreement by the holder of bonds secured by a trust deed to extend the time for the payment of such bonds.
    6. Mortgages, § 538*—what decree of foreclosure and sale should provide as to payment where parties have coneurrent liens. A decree on foreclosure which finds that the two parties between whom there is a controversy as to the priority of liens held by them on the property have a lien concurrent with each other for the amounts due them and also provides for the sale of the property, should provide that the parties be paid in the proportion of their respective interests out of the proceeds.
    Appeal from the Superior Court of Cook county; the Hon. Denis E. Suluvan, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1917.
    Modified and affirmed.
    Opinion filed October 31, 1917.
    Benjamin F. J. Odell, for appellant; Melville R. Adams, of counsel.
    Park Phipps, for appellee; Robert Humphrey, of counsel.

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

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

   Mr. Justice O’Connor

delivered the opinion of the court.

By this, appeal appellant seeks to reverse a decree of the Superior Court of Cook county, entered in a foreclosure suit.

The record discloses that one Harry Korshak was desirous of constructing a building on some real estate owned by him and applied to Wendell & Company to obtain the money. Wendell & Company agreed to loan him the money and bn July 27, 1912, Korshak executed 34 bonds each for the sum of $500, and on the same date he and his wife executed a trust deed on the premises to secure the payment of the bonds. The bonds and trust deed were delivered to Wendell & Company, and the trust deed was filed for record in the recorder’s office of Cook county, July 30, 1912. On July 28 or 29, 1912, Korshak applied to appellant for a loan to be secured by a mortgage on the same premises. Appellant employed an attorney to examine the title, and after an examination the attorney reported that the property was free from incumbrances, except a mortgage given to secure $1,000; and on August 1st, Korshak executed his note for $4,800 and mortgage to secure the same, and delivered them to appellant and received the $4,800. This mortgage was filed for record August 2, 1912. Apparently appellant after-wards filed a bill to foreclose his mortgage which had ripened into a master’s certificate held by him at the time of the trial of the case at bar. The interest on the 34 bonds was due and payable every 6 months and was evidenced by interest notes or coupons. When the first interest notes came due, January 27, 1914, appellant either paid or purchased them from Wendell & Company, and when the second installment of interest coupons became due, appellant paid or purchased them in the same manner.

Appellee Good purchased the bonds and trust deed, and the principal controversy between him and appellant was as to whether the trust deed securing the bonds or the mortgage for $4,800 was a first lien on the premises. The court held that the trust deed was a first lien on the premises, but as the appellant purchased the coupons falling due in January and July, 1914, he was entitled to have a lien concurrent with appellee for the amount of the coupons.

Appellee contends that the abstract of the record is not sufficient to enable this court to determine the error assigned, and therefore the decree should be affirmed. The abstract is insufficient and does not comply with the rules of this court, in that it contains an insufficient abstract of the decree and the master’s report, and shows none of the exhibits or documentary evidence introduced on the hearing; and, while we might affirm the decree for this reason, yet we think it more satisfactory to pass on the merits although it does require additional labor.

Appellant contends that his indebtedness of $4,800 is a first lien on the premises for the reason that on August 1st, when he paid Korshak the $4,800 and recorded the trust deed, he was without actual knowledge of the malting and recording of the trust deed securing the bonds, and that no money was advanced on the bonds' to Korshak until August 28th, which was 26 days after appellant’s trust deed was recorded; that under the law a mortgage takes effect as a lien only from the time the debt is created, unless it is given to secure future advances and is so stated in the mortgage, and that no debt was created by reason of the execution of the bonds until August 28th when Wendell ■& Company paid out a part of the proceeds towards the construction of the building; that as the trust deed securing the bonds did not show that it was given to secure future advances, and as appellant advanced to Korshak his money first, he is entitled to have his mortgage declared a lien superior to the trust deed securing the bonds.

The evidence disclosed that at the time Korshak was negotiating with Wendell & Company for the loan, it was agreed that Korshak should not receive any of the money for which the bonds were given, but that Wendell & Company, as his agents, should disburse the money from time to time in payment of the building as it progressed. It was a building loan. All the money was paid out as agreed by Wendell & Company, without any knowledge of appellant’s mortgage.

A mortgage may be made to secure future advances and become a prior lien for the amount loaned, although no money is advanced until after subsequent mortgages are in force. Schimberg v. Waite, 93 Ill, App. 130; Collins v. Carlile, 13 Ill. 254; McConnell v. Scott, 67 Ill. 274; Ackerman v. Hunsicker, 85 N. Y. 43; Platt v. Griffith, 27 N. J. Eq. 207; 1 Jones on Mortgages, sec. 372. And this is true although the mortgage does not state that it is given to secure future advances. Collins v. Carlile, supra; Shirras v. Caig, 7 Cranch (U. S.) 50; Platt v. Griffith, supra. When Korshak executed the bonds and trust deed and delivered them to Wendell & Company, there was then a binding contract between the parties, and when the trust deed was filed for record August 30th, it was a valid lien on the premises as to appellant and all the world. Appellee’s lien was therefore superior to appellant’s.

Appellant further contends that as he 'purchased the interest coupons maturing in January and July, 1914, he was entitled to have a first lien on the premises for the amount of the coupons; that interest notes or coupons are entitled to be paid from the proceeds of the mortgaged property in the order of their maturity, and as his coupons matured first he is entitled to a first lien. Appellee concedes that when a mortgage is given to secure several notes due at different times, and the notes are held by different persons, the one first maturing is to be first paid out of the mortgaged property; but it is argued that this law does not prevent the parties from contracting otherwise, and that the trust deed in this case expressly provides' that if any interest notes should become the property of any person other than the owners of the bonds, in such case the indebtedness evidenced by such notes or coupons should be subject and secondary to the lien of the indebtedness evidenced by the bonds and the interest coupons held by the bondholders. The provision of the trust deed is: “It is further expressly * * * agreed that in case the interest notes hereinbefore mentioned * * * shall become the property of any person or persons other than the holder or holders of said bond or bonds, * * * then in that case, this Trust Deed may be foreclosed for the amount due at any time upon said interest notes or any of them, * * * the same to all intents and purposes as though they and said principal sum were secured by separate deeds of trust; Provided, however, that any such foreclosure for any amount due upon interest notes * * * shall be in all respects secondary and subject to the lien of this Trust Deed for the security of the principal sum and any and all interest notes * * # other than and in addition to those for which said foreclosure shall be had.”

We cannot agree with appellee’s contention. We think the provision above quoted only applies where a person becomes the owner of coupons only and seeks to foreclose them in a separate suit, and has no application to the facts in the case at bar. Nevertheless, appellant is not entitled to have his coupons paid first because they mature first, for the trust deed expressly provides: “All of the bonds herein described are equally in all things secured by the said Trust Deed without any preference or priority whatsoever of the lien thereof in favor of any one or more of said bonds over any one or more of the others.” We think, therefore, that the master and chancellor were correct when they held that appellant had a lien for the amount of his coupons concurrent with the lien of appellee.

Appellant further contends that the bill to foreclose was prematurely filed, as there was no default; that it was agreed between him and Wendell & Company that in consideration of appellant’s paying or purchasing the coupons falling due in January and July, the time of payment of the first and second bonds would be extended for a period of 6 months, and that neither of these periods had elapsed prior to the filing of the bill. The evidence as to whether there was an agreement to extend the time of payment of the bonds was somewhat conflicting, but we are clear from a consideration of it that the finding of the master that no such agreement was made is amply sustained by the evidence.

There is, however, an error in the decree which was evidently made by inadvertence. The decree finds that appellant and appellee have á lien concurrent with each other on the premises for the amounts due them. respectively, and it is provided that, unless these amounts are paid, the property be sold by the master and out of the proceeds of the sale, after paying the costs, etc., the master shall pay appellee the amount found due him, and if there is any surplus he shall bring the same into court. The decree should have provided that the parties be paid" in the proportion of their respective interests out of the proceeds if there was sufficient money to do so. The decree, therefore, will be modified in this regard, and as so modified is affirmed.

Decree modified cmd affirmed.


text:
    Louis H. Mahnke, Jr., Administrator, Appellee, v. P. J. Harmon, Appellant.
    Gen. No. 23,119.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1917.
    Reversed and remanded.
    Opinion filed October 31, 1917.
    Statement of the Case.
    Action by Louis H. Mahnke, Jr., administrator of the estate of Louis H. Mahnke, deceased, plaintiff, against P. J. Hannon, defendant, on a promissory note. There was judgment for plaintiff, entered by confession, for $1,556.83, which defendant moved to vacate. From the order denying the motion to vacate, defendant appeals.
    Abstract of the Decision.
    1. Judgment, § 88

      ,—what question considered on appeal from order denying motion to vacate judgment 5y confession. On appeal from an order denying a motion to vacate a judgment entered by confession, the only question to be considered is whether the affidavit submitted in support of the motion set up a prima facie defense.
    2. Judgment, § 82*—when affidavit in support of motion to vacate judgment 6y confession on promissory note presents defense. An affidavit in support of a motion to vacate a judgment entered by confession on a promissory note which avers that affiant is and was discount teller of a bank of which defendant was president and that the note was without consideration and was given by defendant to procure the payment by plaintiff’s intestate of a loan made by the bank to the latter through defendant’s procurement, and that such loan had never been paid by plaintiff’s intestate, who had also ■ never requested that the note be paid, is sufficient to establish a prima facie defense to the note.
    McMahon & Graber, for appellant.
    J. Walter Stead, for appellee.

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

   Mr. Justice O’Connor

delivered the opinion of- the court.


author: Mr. Justice Taylor

text:
    Hattie L. Ozburn, Administratrix of the Estate of Alexander M. Ozburn, Deceased, Appellee, v. Corn Exchange National Bank of Chicago, Appellant.
    Gen. No. 22,275.
    1. Banks and banking, § 126

      —when holder of check has lien upon money in hank. Under the Negotiable -Instruments Act of 1907 (J. & A. If 7640 et seq.), the 'holder of a check has no lien upon the money in the bank upon which it is drawn, unless the check has been accepted or certified.
    2. Banks and banking—what is right of depositor as to countermanding order to hank as agent. Under the Negotiable Instruments Act of 1907 (J. & A. H 7640 et seq.), the bank is the agent and the depositor the principal, and the latter has the right seasonably to countermand any order which he may have issued upon the agent.
    3. Banks and banking, § 140*—how check may he countermanded. The payment of a check may be countermanded by means of telegraphic notice.
    4. Banks and banking, § 140*—when telegram> countermanding payment of check is received in ample time before presentation for certification. Where a telegram countermanding the payment of a check is received by the bank on which the check is drawn at 11 minutes before 3 and the check is certified by the bank between 10 and 11 o’clock on the following morning, the telegram was received by the bank in ample time to stop payment before the check was presented for certification.
    5. Names, § 16*—what are idems sonans. “Osburn” and “Oz-burn” are idems sonans.

    Appeal from the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916. Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed October 31, 1917.
    Rehearing denied November 12, 1917.
    Gardner, Foote & Burns, for appellant.
    Ninian H. Welch and William J. Lacey, for appellee.

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

   Mr. Justice Taylor

delivered the opinion of the court.

The appellee, Hattie L. Ozburn, administratrix of the estate of Alexander M. Ozburn, brought suit in the Municipal Court of Chicago against the Com Exchange National Bank of Chicago, appellant, for the sum of $1,348 and interest, on account of the certification and payment of a check for that amount, after she had sent a telegram to the bank to stop payment. No evidence was offered by appellant, and upon the conclusion of appellee’s evidence the court entéred judgment for the sum of $1,475.40 against the appellant.

The appellee had some funds of the estate of Alexander M. Ozburn, deceased, in appellant bank, subject to her check, as administratrix, when countersigned by the American Surety Company. During a visit to Nebraska, on Saturday, February 28, 1914, she gave a check, drawn on this account, for the sum of $1,348, to one Anson H. Brown. On the following Monday, March 2, 1914, she sent a telegram to the bank, which was received by it, in the following words: “Suspend payment on check issued to Anson Brown * * * instructions following. Mrs. Hattie L. Osburn.” This message reached the appellant at 2:49 p. m. of the same day. The next morning, on March 3rd, between the hours of 10 and 11 o’clock the check in question was presented for certification and was certified and charged against the account of appellee. In the meantime the American Surety Company had countersigned it and stamped on its face “payment consented to.” Thereupon, after its certification, Brown took it to the Standard Trust and Savings Bank and had it cashed. No instructions were sent to the appellant outside the telegram. Appellee demanded the amount of the check from appellant and it denied any liability and refused payment. The evidence shows that the notification by telegram to “suspend payment” was recognized as such, and, in part, acted upon by the employees of the appellant in the regular course of their business. The indorsement on the telegram “Stop payment. Enter, pass along immediately,” etc., which was made by a rubber stamp, shows that the appellant received and recognized and considered the telegram as a notification to countermand the check in question.

It is claimed by the appellant that the telegram varied from the allegations in the statement of claim, and, therefore, should not have been admitted in evidence ; that if admitted in evidence it was not sufficient notice to the bank to stop payment; and that the bank, considering its many accounts and the volume of its business, cannot be charged with negligence in failing to act on the notice given. In view of the issue and the evidence as it appears, it seems to be necessary to consider but one question and that is whether the telegram, which was sent and received, was sufficient notice to the bank to constitute a legal countermand of the check in question.

Since the passage of the Negotiable Instruments Act in 1907 (J. & A. ft 7640 et seq.), the holder of a check has no lien upon the money in the bank upon which it is drawn unless the check has been accepted or certified. The bank is the agent and the depositor the principal and the latter has the right seasonably to countermand any order upon the agent which he the principal may have issued. In Cook v. Lewis, 172 Ill. App; 518, the court said: “It would seem to be evident that the Legislature intended, by this section of the act (referring to section 188), to change the rule in Illinois so as to make it conform to the rule which obtains in most of the other States and in England.” This statute evidently makes the depositor the principal and the banker his agent. Under its terms a check is simply a written order (revocable when complied with) to pay a certain sum of money to the legal holder. The appellee in the instant case undertook to stop payment on a check by means of a telegram, and that gives rise to the incidental question whether notice by means of a telegram may be. sufficient under any circumstances. That subject was very exhaustively considered in the case of Curtice v. London City & Midland Bank, 1 Law Rep. 293. In that case a stop-payment telegram was put in the bank letter box about 6 p. m., the bank being closed at the time, and, through an oversight, the telegram was not taken out of the letter box until the second day thereafter. The court held that the telegram did not countermand the check as the bank could not be said to have received actual notice, and it was in doubt whether under any circumstances there could be such a thing as constructive notice. It was also suggested by the court, in the course of the discussion in that case, that it was not satisfied that a bank is bound as a matter of law “to accept an unauthenticated telegram as sufficient authority for the serious step of refusing to pay a check” and that, as to stopping payment by telegram, “it would, depend a great deal on the custom of the bankers.” It has been held, however, in many cases in the United States, that a draft, for example, may be accepted by telegram, even in jurisdictions where the law requires the acceptance to be in writing (Coffman v. D. C. Campbell & Co., 87 Ill. 98; Molson’s Bank v. Howard, 40 N. Y. Superior Ct. 15; Johnson v. Clark, 39 N. Y. 216; Central Sav. Bank v. Richards, 109 Mass. 413); and it would seem to follow as reasonable that if a promise to pay may be made by telegram, that an order not to pay, as in the case of a countermand by a depositor in a bank, may be made by telegram. Although we do not find that the precise question has been decided in this State, we are of the opinion that, as a matter of law, the payment of a check may be countermanded by means of telegraphic notice.

It is urged by counsel for the appellant that the business of the latter as a bank was so great and so complex that it did not have time, between the receipt of the telegram and the certification of the check, to act upon the notice. The telegram was received by the bank eleven minutes before 3 o’clock and the check was certified between 10 and 11 o’clock the next morning. The paying teller testified that stop-payment notices would be sent to him until 4 o’clock in the afternoon. It also appears, from the testimony of the paying teller, that such matters were attended to very expeditiously and only took, at most, 5 minutes; that to telephone or send a messenger from the head bookkeeper’s department to the paying teller would take very little time under any circumstances. It does not seem reasonable, as against the rights of the appellee, to give much weight to the argument that, as the appellant had about 7,000 depositors, 16 bookkeepers' and 275 employees taking care of the receipts and payment of checks, and handled between 40,000 and 50,000 checks or items each day, the appellant was therefore entitled, in order to be affected by the' notice of countermand, to more time than elapsed between 2:49 p. m. of one day and 10 o’clock a. m. of the next. It may be a question whether the order to suspend payment takes' effect immediately upon physical receipt of the notice; but that it is not necessary here to decide, as we are of the opinion that the evidence sufficiently proves that the appellant received the telegram in ample time to stop payment before the check was presented for certification.

We have considered the other contentions of counsel (1) as to “Osburn” and “Ozburn” being idem .sonans and (2)' as to certain evidence being inadmissible, and find them untenable.

Finding no error in the record the judgment is affirmed.

Affirmed.


text:
    R. J. Kittredge, Plaintiff in Error, v. Union Life Insurance Company, Defendant in Error.
    Gen. No. 22,347.
    (Not to be reported in full.)
    Abstract of the Decision.
    Assumpsit, Action of, § 84

      —what constitutes prima facie case in action by stockholder against insurance company for money had and received. In an action by a stockholder in an insurance company against the company to recover money had and received, the evidence showed that plaintiff attended a meeting of the stockholders, officers and directors of defendant, at which the demand of the State insurance department that the impairment of defendant’s capital be remedied was discussed, and gave his check, as did others, receiving therefor a receipt, signed as “trustee” by one present at the meeting, which acknowledged the receipt of the money in full payment of a certain number of shares of defendant’s stock “same to be issued in case impairment is removed, otherwise money to be returned to him”; that the amounts thus collected were turned over to another; that the latter delivered a check for the amount to defendant; that the impairment was subsequently removed; that plaintiff thereafter demanded from defendant the return of the amount paid by him and such demand was refused, and plaintiff’s statement of claim sets up that defendant received from plaintiff money without consideration and that there is an implied promise to pay it back. Held, that by such evidence plaintiff made out a prima facie case consistent with the declaration.

      Error to the Municipal Court of Chicago; the Hon. Habry P. Dolan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1916.
    Reversed and remanded.
    Opinion filed October 31, 1917.
    Statement of the Case.
    Action by B. J. Kittredge, plaintiff, against the Union Life Insurance Company, defendant, for money had and received. To reverse a judgment for defendant, plaintiff prosecutes this writ of error.
    Levin & Krinsky, for plaintiff in error; Harry H. Krinsky, of counsel.
    Eastman, White & Hawxhurst, for defendant in error; Ralph R. Hawxhurst, of counsel.

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

   Mr. Justice Taylor

delivered the opinion of the court.


text:
    Margaret Welch, Appellant, v. Chicago City Railway Company, Appellee.
    Gen. No. 22,367.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Victos P. Arnold, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Affirmed.
    Opinion filed October 31, 1917.
    Statement of the Case.
    Action by Margaret Welch, plaintiff, against the Chicago City Railway Company, defendant, to recover for personal injuries. From a judgment for defendant upon a directed verdict, plaintiff appeals.
    Francis E. Croarkin, for appellant.
    J. R. Guilliams and F. L. Kriete, for appellee.

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

   Mr. Justice Taylor

delivered the opinion of the court.

Abstract of the Decision.

1. Street railroads, § 138 —when direction of verdict for defendant proper in action for injuries to person struck in crossing in front of car. In an action to recover for personal injuries to one struck in crossing the track in- front of a street car which she saw approaching, evidence held sufficient to support a directed-verdict for defendant.

2. Carriers, § 366*—when not duty to stop street car to take on passengers. There is no rule of law requiring a street railway company to stop its cars -to take on passengers at all points on signal.

3. Street railroads, § 63*—when failure to stop car does not constitute actionable negligence. In an action to recover for personal injuries through being struck by a street car while crossing the track, proof of a failure to stop the car at a corner to take on passengers does not, of itself, show actionable negligence.

4. Street railroads, § 73*—when failure to give warning of approach of car is not negligence. In an action to recover for personal injuries received while attempting to cross the track in front of an approaching street car, negligence is not established by proof that no bell was rung or warning given, where plaintiff admits that there was nothing to obstruct her view of the car and that she saw it from time to time as it approached.

5. Street railroads, § 75*—when car not traveling at abnormal rate of speed. In an action to recover for personal injuries received while attempting to cross the track in front of an approaching street car, evidence held not to show that the car was traveling at an abnormal rate of speed.


text:
    James Foley and Francis T. Johnson, Appellants, v. James W. Hedenberg, Appellee.
    Gen. No. 22,376.
    1. Vendor and purchaser, § 16

      —what is nature and effect oj option on property. By giving a written option on his property, the owner confers on the one to whom it is given something of value, which is the right or privilege to call for and receive the property if he so elects.
    2. Vendor and purchaser, § 16*^when option is mere offer subject to withdrawal. Where.no consideration is given for an option, it is merely an offer which may be withdrawn at any time before a tender of compliance.
    3. Brokers, § 30*—when, oral agreement for division of commissions between is binding. Oral agreement between real, estate agents whereby one agent promises to divide his commission with another in case of a sale of certain propertyj held binding on the former even though the latter so effected the sale at an advance in the price specified in the option under .which he held the property as to derive a profit for himself therefrom.
    4. Brokers, § 30*—when fiduciary relations between not shown. In an action by one real, estate agent against another to recover on an agreement for the division of commissions, evidence held not to show the existence of any fiduciary relation between such agents.
    Appeal from the Municipal Court of Chicago; "the Hon. William N. Gemmill, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Reversed and remanded.
    Opinion filed October 31, 1917.
    Thompson, Tyrrell & Chambers, for appellants.
    Bradley, Harper & Eheim, for appellee.

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

   Mr. Justice Taylor

delivered the opinion of the court.

This was an action of the first class commenced in the Municipal Court of Chicago by the plaintiffs (appellants) to recover a portion of certain commissions which the defendant had been paid for the sale of a piece of real estate. The case was tried by the trial judge without a jury and, at the close of all the evidence, judgment for costs was entered.in favor.of the defendant and against the plaintiffs.

On July 23, 1913, a written contract of sale of a certain northeast quarter section of real estate was entered into by one Peter Foley and Malvina B. Armour. The contract was signed by Peter Foley and “Malvina B. Armour, by James'W. Hedenberg, her agent.” It recites, among other things, that the purchaser had paid $2,500 as earnest money to be applied on the purchase when consummated. It was also provided in the contract that Peter Foley was given the privilege to purchase the southwest quarter of the same section, “said privilege to expire December 31, 1914.” It was further provided in the said contract that “the said earnest money should be held by James W. Hedenberg for the mutual benefit of the parties concerned,” and upon the consummation of the sale “to apply the same, first, to the payment of any expenses incurred for the vendor by his agent in said matter, and second, to the payment to vendor’s broker .of all commission * * * for his services in procuring this contract, rendering the overplus to the vendor.” On August 27, 1913, a letter was written, signed “Belle Ogden Armour, by James W. Hedenberg, her agent” to Peter Foley, which contains the following: “Referring to our contract of July 23, 1913, covering the northeast quarter of Section 34 * * * and the understanding in that contract that you or your assigns should also have the refusal to purchase the southwest quarter of said section * * *. You or your assigns are to have this privilege until the 31st day of December, 1914, at $500 per acre, plus 6% per annum from the date of your contract, July 23, 1913, to the date on which you or your assigns exercise this privilege. * * * It is also understood that if on request this option should be extended * * * it will not release you or your assigns from paying the current taxes for 1914.” Subsequently the option was extended to March 1, 1915. The sale of the northeast quarter was consummated on September 13, 1913, and the plaintiffs received, altogether, as compensation for their services, from the defendant, two-thirds of 5 per cent, of the selling price, the defendant retaining one-third. In making a settlement of the purchase price, each of the plaintiffs was given, by the defendant, a credit of $1,000 on the purchase price and $343 in cash.' After that option was exercised and the deed passed, each of the plaintiffs was part owner of the northeast quarter.

In the instant case, it is claimed by the plaintiffs that they are entitled to commissions for the sale of the southwest quarter—an amount practically equivalent to that which was paid them1 by the defendant for the sale of the northeast quarter; that the defendant orally agreed with them to pay "them, if the option was carried out and a purchaser obtained by them for the southwest quarter, two-thirds of 5 per cent, of the commission he, the defendant, was to get from his principal. The defendant admitted, in his testimony, that, as" to the commission to be paid in case the southwest quarter section was sold, he had said he would give them each one-third of that commission if the southwest quarter was sold to the same party as the northeast quarter. From other testimony of the defendant, however, it may be inferred that it made no difference to the defendant to whom the southwest "quarter was sold, and" that, therefore, his statement, that he said he would pay the commission if sold to the same party as the northeast quarter, is not credible, but an effort at evasion. James T. Foley testified that, at the time of the settlement of the commission for the sale of the northeast quarter, when a question came up about the option on the southwest quarter, the defendant said that they (meaning plaintiffs) “will not receive any commission on that until the option has been used or exercised”; also, that on a subsequent occasion, in the latter part of 1914 he had a talk with the defendant, in the course of which the latter said that his (meaning the plaintiff’s, Foley’s) interest would be protected. The plaintiff Foley further testified that in March, 1915, after the sale of the southwest quarter was consummated, he went to see the defendant and the latter said that at one time he thought they, the plaintiffs, were entitled to and had earned their commissions but he had changed his mind. The testimony of the plaintiff Johnson was to the effect that on November 12, 1914, in the presence of both plaintiffs and defendant, when asked by Johnson about the commission as to the southwest quarter, whether he was going to pay part of the commission as promised at the time the first deal was made, the defendant said, “Yes, the same as on the previous deal of the northeast quarter.” Johnson further testified that, in a conversation prior to November 12, 1914, with the defendant, the latter, with reference to payment of a commission to the plaintiffs on the sale of the southwest quarter, said: “It must be understood that you get no commission at this time on the southwest quarter, it being an option, but if the land is sold by virtue of this option, you will receive two-thirds of 5 per cent, on the purchase price.” The plaintiffs obtained a purchaser and negotiated a sale' of the southwest quarter, pursuant to the terms of the option. The original option of the southwest quarter given to Peter Foley (for the convenience of the plaintiffs) had been assigned, by him, to one Thompson and, by the latter, to Frederick H. Bartlett, and the deal was consummated by a deed passing from the grantor, Armour, to one William P. Haughton (of Bartlett’s office), the option then being extinguished by merger in the completed sale. Upon the completion of the sale of the southwest quarter, the defendant retained, out of the purchase price, his commission of 5 per. cent., which amounted to $4,345.33; that is, out of the check received from Bartlett as part of the purchase price, the defendant retained his commission of 5 per cent, and transmitted the balance to Armour & Company, on behalf of his principal. The plaintiffs then demanded two-thirds of the $4,345.33, and upon his1 refusal brought this suit.

It is the legal contention of appellee that the plaintiffs “by secretly dealing in the subject-matter of the agency without the knowledge or consent of the defendant, making a profit of an amount far in excess of the amount of their claim for commissions, destroyed entirely their right to claim commissions.”

The price fixed for the southwest quarter section, by the contract of July 23, 1913, as it is set forth in the letter of the defendant of August 27, 1913, was $500 per acre, together with certain interest and” taxes. When, however, the option was sold through the plaintiffs to the purchaser, Bartlett, and the deed passed to Haughton, of Bartlett’s firm, the latter was charged, in addition to $500 per acre, interest and taxes, the following extra consideration: (1) 100 by 125 feet of vacant real estate on Prairie Avenue, Chicago, about 90 feet south of 37th Street; (2) 50 by 125 feet of vacant real estate on 29th Place, 75 feet east of Calumet Avenue, and $1,500 in cash. The record does not show accurately how the extra consideration was divided, although the plaintiff Johnson testified that he received $1,750 in cash and the vacant real estate on 29th Place. What extra consideration the plaintiff Foley received from Bartlett, when the sale was consummated, does not clearly appear.

The question arises, therefore, as to what relations arose between the defendant and the plaintiffs (Peter Foley being merely the ostensible owner of the option), by reason .of the contract of July 23, 1913. The letter of August 27, 1913, of the defendant, contains the language, ‘1 and the understanding in that contract that you or your assigns should also have the refusal to purchase the southwest quarter of said section” and “you or your assigns are to have this privilege until the 31st day of December, 1914, at" $500 per acre.” Evidently the intention was to give .to the plaintiffs, in the name of Peter Foley, a right of purchase on certain terms and within a certain time, which right, until the expiration of the specified period, that is, December 31, 1914 (subsequently extended to March 1, 1915), remained, on the part of the defendant, a continuing offer until ultimately, on January 22, 1915, it ripened into a sale. During that time, assuming that the option was given for a consideration, which is' tim fact, neither the defendant himself nor his principal could sell the property in question. To the letter of August 27, 1913, the defendant signed the words “Belle Ogden Armour, by James W. Hedenberg, her agent,” and that must be considered as the act of the principal and as binding upon her as to all the terms of the option. There is, of course, considerable difference between an option, such as the one in question here, and the customary agency to sell. It does not give rise to fiduciary relations, such as spring from a trust or agency, or personal employment. In the instant case, Peter Foley was not an agent, he was a principal. He was not given merely a power of attorney, as in the conventional case of a real estate agent, but he was given such a right that even the owner himself could not, during a certain period, sell the property free from' that restriction. When the owner gave the written option to the plaintiffs, he gave them the right, or privilege, to buy the property' at their election, or option. They got, in prcesenti, as the court said in Ide v. Leiser, 10 Mont. 5, not lands, or an agreement that they should. have lands, but they got something of value; that is, the right to call for and receive lands if they elected. If there had been no consideration given by the plaintiffs for the option, it was merely an offer and could have been withdrawn at any time prior to a tender of compliance. In the instant case, not only was there a consideration, but performance, on the part of the plaintiffs, and compliance on the part of the seller.

The matter involved in this case, however, does not in any way pertain to the rights of the original owner, Armour, or those of the ultimate* purchaser, Haughton. Neither seller nor purchaser is in any way interested in the alleged oral contract made between the plaintiffs and the defendant, as to the disposition or distribution of the five per cent, commission. The question is whether the defendant, who was to receive a commission from his principal, Armour, was bound by his promise to the plaintiffs that, in case the option ripened into a sale, he would pay them two-thirds of the commission, which his employer would have to pay him. That is, whether he was bound, even though the plaintiffs not only brought about a sale, by obtaining a purchaser, but made a profit out of that purchaser by getting the latter to agree to pay more than the price specified in the original option. It is difficult to discover any reason why the defendant should not be bound by his promise. No fiduciary relations arose between the defendant, the seller’s agent, and the plaintiffs. The latter did not owe any obligations to him. It made no difference to him what the plaintiffs did, in regard to the property, providing the terms of the option were carried out at the price fixed. Even though the price obtained was greater than that specified in the option, the excess in no event belonged to him,, the defendant. Whether or not the owner could have claimed that excess, is here immaterial. Certainly her agent was not entitled to it and so cannot now claim that, by reason of that excess going to the profit of the plaintiffs, he is now entitled to repudiate his promise to pay them part of the commission which was earned by reason of their services.

It w;as not fraudulent in law for the holders of the option to sell it for more than $500 per acre, and, at the same time, have a contract outstanding with defendant (the owner's agent) that they, the plaintiffs, should, in case of sale at $500 per acre, be entitled to part of the commission the defendant would get from the owner. -The owner empowered the defendant, her agent, to sell at $500 per acre; and she (through her agent) gave the option to Peter Foley, in whose name the option was taken, for the convenience of the plaintiffs. The latter are legal and actual strangers to her. They sold their right in the option to Bartlett and the owner (Armour) received all she asked and all she, through her agent, the defendant, had contracted for and all she was entitled to. There is no evidence ■ of any dissatisfaction upon her part. This is merely a matter between the defendant and the plaintiffs; whether the promise of the former to pay to the plaintiffs two-thirds of what he was to get for his services from his employer was binding upon him. Neither the seller nor the buyer is a party to this suit, nor, in any way, interested in these proceedings. In making the promise to the plaintiffs, of two-thirds of his commission in case of a sale, he did so in order that he might profit to the extent of one-third of the commissions, by reason of their services.

Inasmuch as the judgment in the trial court was entered in favor of the defendant on the theory that as a matter of law the plaintiffs were not entitled to recover, and as we are of the opinion that if, as a ¿natter of fact, the defendant did promise to pay the plaintiffs part of the commission upon the sale of the ,, southwest quarter, then the plaintiffs are entitled to recover, the judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    F. R. Valentine Hauser and Benjamin Neuman, by Frederick R. Hauser, Defendants in Error, v. Marmon Chicago Company, Plaintiff in Error.
    Gen. No. 22,556.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Infants—when fraudulent representations as to age not shown. In an action to recover back a part payment on the purchase price of an automobile made while plaintiffs were minors, evidence held insufficient to show fraudulent representations by plaintiffs as to their ages.

      Error to the Municipal Court of Chicago; the Hon. John J. Sullivan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1916.
    Affirmed.
    Opinion filed October 31, 1917.
    Statement of the Case.
    Action by F. R. Valentine Hauser and Benjamin Neuman, by Frederick B. Hauser, their next friend, plaintiffs, against Marmon Chicago Company, a cor- , poration, defendant, to recover back the sum of $450 paid by them while minors on the purchase price of a $600 automobile. From a judgment for plaintiffs for $450, defendant brings error.
    William A. Jennings, for plaintiff in error.
    Lucius J. M. Malmin, for defendants in error.
   Mr. Justice Taylor

delivered the opinion of the court.

2. Infants, § 23*—when entitled to rescind contract of purchase and recover part of price paid. Minors, upon restoration of an automobile to the seller, although it has been used and has deteriorated in value, are entitled to rescind the contract of sale and recover back that part of the purchase price which has been paid.


author: Mr. Presiding Justice Holdom

text:
    E. M. Fredericks, Plaintiff in Error, v. Chicago Railways Company, Defendant in Error.

      Gen. No. 23,096.
    1. Street railroads, § 131

      —when evidence sufficient to sustain findings as to negligence on part of motorman. In an action by a passenger in an automobile against a street railroad company to recover damages for personal injuries sustained as the result of the collision of a street car with the automobile, evidence held sufficient to sustain findings that either the joint negligence of the driver of the automobile and the motorman caused the accident or that it was not caused by any negligent act or conduct on the part of the motorman or other servant of defendant in charge of the colliding car.
    2. Street railroads, § 142*—when instruction on duty of motorman approaching street intersection is proper. In an action against a street railroad company to recover damages for injuries to plaintiff sustained while a passenger in an automobile, as the result of a collision of the automobile with a street car, an instruction that it was the duty of the motorman to exercise ordinary care in approaching the street’s intersection and that if the jury believe that he did operate his car with ordinary care then, under those circumstances, all the law required of him was to do all that was reasonably possible to avoid the accident after he had become apprised, or, in the exercise of reasonable care, could have become apprised, of the approach -of the automobile towards the street car tracks, held proper.
    3. Street railroads, § 144*—when instruction on contributory negligence of occupant of automobile struck by street car is correct.In an action by a passenger in an automobile against a, street railroad company to recover damages for personal injuries sustained as the result of a collision of the automobile with one of defendant’s street cars, an instruction that the law will not permit one carelessly and negligently to bring upon himself an injury and then recover damages because of the concurrent negligence of some other person, and that if plaintiff knew of the approach of the car, or by the exercise "of ordinary care and caution could have known of the approach thereof, and he, notwithstanding, rode upon the street car tracks and was thereby injured, and that in so doing, if he did so, he failed to exercise ordinary care and caution for his own safety just before and at the time of the alleged injury, which failure proximately contributed to cause the injury, a verdict should be returned for defendant, held to be correct.
    4. Street railroads, § 144

      —when instruction on right of recovery for personal injuries where occupant of automobile struck by car is negligent is correct. In an action by a passenger in an automobile to recover for personal injuries sustained in a collision with one of defendant’s street cars, an instruction that if the jury believed from the evidence that the motorman was guilty of negligence as charged in the declaration and that if the plaintiff, by using his faculties with ordinary and reasonable care in looking out for danger, could have avoided the accident and he negligently failed to do so, and such negligence caused or proximately contributed to cause the injury, then plaintiff could not recover, held to be correct. ■
    5. Street railroads, § 91*—what care required of passenger in automobile struck by street car. A passenger riding in an automobile and sustaining injuries as the result of a collision with a street car cannot recover damages from the street railroad company unless he exercised due care for his own safety at the time of and immediately preceding the accident.
    6. Street railroads, § 135*—when exercise of due care by passenger in automobile struck by car is question for jury. In an action by a passenger in an automobile against a street railroad company to recover damages for personal injuries sustained as the result of a collision between the car and automobile, held that it was a question for the jury whether plaintiff exercised due care for his own safety.
    7. Street railroads, § 131*—when evidence sustains finding of lack of due care on -part of passenger in automobile struck by car. In an action by a passenger in an automobile against a street railroad company to recover damages for personal injuries sustained as the result of a collision with one of defendant’s cars, evidence held sufficient to sustain a finding that plaintiff did not exercise due care for his own safety.

      8. Negligence, § 112

      —when negligence of driver of automobile not imputed to passenger. The negligence of the driver of an automobile cannot be imputed to. a person riding with him as a passenger.
    ' 9. Street bailboads, § 111*—when burden of 'showing lack of contributory negligence of passenger in automobile struck by car is on plaintiff. In an action by a passenger riding in an automobile against a street railroad company to recover damages for personal injuries due to a collision .between the car and automobile, the burden of affirmatively establishing freedom from contributory negligence is upon the plaintiff.
    Deveb, J., dissenting.
    Error to the Superior Court of Cook county; the Hon. Mazzini Slussek, Judge, presiding. Heard in this court at the March term, 1917.
    Affirmed.
    Opinion filed November 5, 1917.
    David K. Tone and Henry M. Ashton, for plaintiff in error.
    Franklin B. Hussey and Charles LeRoy Brown, for defendant in error; John R. Guilliams, of counsel.

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

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

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

   Mr. Presiding Justice Holdom

delivered the opinion of the court.

The plaintiff brought suit against the defendant to recover damages for personal injuries received by him August 17, 1911, as a result of a collision between an automobile, in the rear seat of which he was riding as a guest of the owner, and a southbound Clark street car, at the intersection of Clark street and Sunnyside avenue, public highways in the City of Chicago.' The verdict of the jury and judgment of the trial court were in favor of the defendant, and plaintiff brings the record here by writ of error for review.

Sunnyside avenue extends east and west and Clark street at its intersection with Sunnyside avenue extends in a southeasterly and northwesterly direction. There is a direct conflict in the testimony of the witnesses for the different parties as to the speed of both the street car and the automobile at and just before the collision occurred. The motorman on the car testified that the automobile was 45 or 50 feet from the point of collision when he applied his brake. Certain other witnesses testify that the automobile was on the south side of Sunny side avenue and east of Clark street as it approached the tracks. Certain witnesses testify that -the street car was going from 20 to 25 miles an hour just before the accident occurred, while others say the car was going at a rate of from 8 to 10 miles an hour at the point where the motorman first began to brake his car.

The evidence as to what happened just before the accident occurred, the distance at different times of the car, as well as the automobile, from the point where the collision occurred, the speed of both the car and the automobile at and before the accident happened, is in sharp conflict. It suffices to say, however,00 that there was sufficient evidence submitted to the jury to warrant the jury in finding either that the joint negligence of the driver of the automobile and motorman of the street car caused the accident, or that the accident was not caused by any negligent act or conduct on the part of the motorman or other servant of defendant in charge of the colliding car.

It is urged that the court erred in giving to the jury certain instructions numbered 7, 10 and 12, respectively.

It is asserted that an instruction similar to instruction number 12 was given in the casq of Kravitz v. Chicago City Ry. Co., 174 Ill. App. 182. An examination of this authority reveals that while it was there held that the giving of the instruction was erroneous, the error grew out of the fact that the instruction was, in the opinion of the court, not applicable to either the defendant’s or the plaintiff’s theory of the case.

In Scanlon v. Chicago Union Traction Co., 127 Ill. App. 406, the giving of an instruction containing language substantially similar to that complained of in instruction No. 12 was held not to be erroneous. The instruction as given charged the jury that “if you believe from the evidence * * * that as the car ap- - proached the place of the accident it was being operated with ordinary care, and that the motorman * * * did all he could to avoid the accident in question as soon as it was apparent or ascertainable to him in the exercise of reasonable and ordinary care, that the plaintiff was crossing the track, or going upon or near the track,” etc. This instruction charged in effect that it was the duty of the motorman to exercise ordinary care in approaching the street’s intersection, and that if the jury believed that he did operate his car with ordinary care, then under those circumstances all the law required of him was to do all that was reasonably possible to avoid the accident after he had become apprised, or, in the exercise of reasonable care, could have become apprised, of the approach of the automobile towards the street car tracks. Under the facts of this case we do not think the giving of this instruction was-error.

It is complained that the court erred in giving instructions Nos. 7 and 10. These instructions are as follows:

“No. 7. The court instructs the jury that the law will not and does not permit one carelessly and negligently to bring upon himself an injury and then recover damages because of the concurrent negligence of some other person. And if the jury believe from the evidence in this case, under the law as stated in the instructions of the court, that the plaintiff knew of the approach of the car, or by the exercise of ordinary care and caution could have known of the approach thereof, and if you further believe from the evidence in the case, under the law as stated in these instructions, that he, notwithstanding, rode upon the street car track and was thereby injured, and that in so doing, if he did so, he failed to exercise ordinary care and caution for his own safety just before and at the time of the alleged injury, which failure proximately contributed to cause the injury, then you should find your verdict for the defendant.”

“No. 10. You are instructed that even if you believe from the evidence, under the law, as stated in the instructions of the court, that the motorman of the car in question, on the occasion in question in this suit, was guilty of negligence as charged in the declaration, yet if you further believe from the evidence under the •instructions of the court, that the plaintiff, by using his faculties with ordinary and reasonable care in looking out for danger could have avoided the accident and that he negligently failed to do so and that such negligence caused or proximately contributed to cause the injury, then the plaintiff cannot recover in this case, and your verdict should be for the defendant.”

These instructions were, we think, proper to be given under the facts in evidence and were clearly applicable thereto. Because plaintiff was a guest of the car owner and was not driving the car does not exonerate him from the duty of care so far as, under the circumstances in which he was at the time situate, he was capable of exercising. The law will not excuse a total absence of care because plaintiff was not driving the car. On the contrary, the law imposed upon him the duty to use such care as he was able. He could not, as the evidence foreshadows, sit back silent and motionless in a position of danger open to his observation. He was not, in the circumstances of this case, absolved from any care or relieved from the general legal principle that he must be in the exercise of due care for his own safety at the time of and immediately preceding. the accident in order to entitle him to recover. Whether or not he was "in the exercise of due care was, under the evidence, a question for the jury to determine under the law as stated in the two instructions last quoted; and in order to so determine they should take into consideration, as they undoubtedly did, whether or not the accident could have been avoided by the plaintiff’s exercising his, faculties in looking out for the dangers which confronted the automobile at the time. We think from the evidence the jury might properly find that plaintiff was derelict in this regard.

While the negligence of the owner and driver of a vehicle cannot be imputed to a person riding with him, in a collision between such vehicle arid a street car, yet such person is responsible for his own negligence; and, if such negligence contributes to the injury for which damages are sought, there can be no recovery.

The jury might well find from the evidence that plaintiff was in a degree guilty of such negligence as contributed to the accident, and the verdict is reconcilable on the presumption that they did so find.

The legal principle laid down in instruction No. 10 is approved in Flynn v. Chicago City Ry. Co., 250 Ill. 460. In Beach on Contributory Negligence (3rd Ed.), sec. 115, the author says:

“It is everywhere held, on familiar grounds, that if tiie negligence of the occupant contributes with that-of the driver and a third person there can be no recovery against the latter. Thus, if A, being driven in the carriage of B, who is not a common carrier, willingly joins B in driving over a place obviously dangerous and is injured in consequence, A has no right of action against the municipality. And where a passenger has reason to apprehend danger he is not at liberty to leave the exercise of due care to the driver, alone. For example, where husband and wife were sitting upon the same seat in a vehicle driven by the husband and both were killed by a collision at a crossing, in an action brought by the administratrix of the wife against the railroad company it was held that she had no right, because her husband was driving, to omit some reasonable and provident effort to see for herself that the crossing was safe, and that she was bound to look and listen. So it has been held that a failure to look and listen, on the part of one riding with his back to the driver, while approaching a well-known railroad crossing at a fast trot, or to warn the driver, or to take any precautions whatever, was contributory negligence barring recovery. In cases of this kind it is no less the duty of the passenger, where he has the opportunity to do so, than of the driver, to learn of the danger and avoid it if possible.”

In volume 3 of Elliott on Railroads, see. 1174, the rule is stated thus:

“The general rule is that the negligence of the driver of a vehicle with whom the injured person is riding will not be imputed to such injured person. * * * Thus, where one person riding with another saw the headlight of an approaching locomotive, it was held that he was guilty of contributory negligence in failing to warn the driver of the vehicle in which he was riding. If the person riding in the vehicle knows that the driver is negligent and he takes no precautions to guard against injury he cannot recover, for in such case the negligence is his own and not simply that of the driver. The plaintiff cannot rightfully omit to use care in blind dependence upon another, but must use care proportionate to the danger of which the facts convey knowledge.”

Hoag v. New York Cent, & H. River R. Co., 111 N. Y. 199; Brickell v. New York Cent. & H. River R. Co., 120 N.Y. 290.

The Jmrden of affirmatively establishing freedom from contributory negligence is upon the plaintiff, nor is the rule to be relaxed in favor of the plaintiff because of the fact that he was being carried in' a vehicle owned and driven by another. McGuire v. New York City Ry. Co., 52 N. Y. Misc. 591, 102 N. Y. Supp. 749.

Plaintiff produced' no evidence from which it might • be gathered that he did any act in an attempt to avert the accident. So far as the evidence discloses he remained passive and in no way made any attempt to avoid the accident.

There is no reversible error in this record, and the judgment of the Superior Court is affirmed.

Affirmed,

Mr. Justice Dever dissents.


text:
    Continental & Commercial National Bank of Chicago, Appellee, v. Ford & Parker Teaming Company et al., Appellants.
    Gen. No. 23,147.
    (Not to be reported in full.)
    Abstract of the Decision.
    Appeal and ebbob, § 1749

      —when judgment affirmed. Where a' bill of exceptions has been stricken and no error appears in the common-law record, the judgment of the trial court will be affirmed.
    Appeal from the Circuit Court of Cook county; the Hon. Look-wood Honoke, Judge, presiding. Heard in this court at the March term, 1917.
    Affirmed.
    Opinion filed November 5, 1917.
    Rehearing' denied November 19, 1917.
    Statement of the Case.
    The plaintiff, Continental & Commercial National Bank of Chicago, obtained a judgment against the defendants, Ford & Pabker Teaming Company and others, by confession entered upon a note for $1,000, with warrant of attorney to confess judgment. Defendants appeal from the denial of their motion to vacate the judgment.
    Daniel L. Madden and R. C. Merrick, for appellants.
    Mayer, Meyer, Austrian & Platt, for appellee.

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

   Mr. Presiding Justice Holdom

delivered the opinion. of the court.


text:
    American Credit & Trust Company, Appellee, v. New Era Chandelier Company and Chicago Bonding & Surety Company. Chicago Bonding & Surety Company, Appellant.
    Gen. No. 23,323.
    1. Banks and banking, § 3

      —when corporation cannot engage in business of banking or lending money. A corporation organized under the General Incorporation Act of the State cannot engage in the business of banking or lending money.
    2. Indemnity—when nature of contract attached to bond of is question for court. Whether a contract attached to an indemnity bond is one of sale of accounts or a loan of money by a corporation is a question of law for the court which cannot be overcome by a misrecital in the bond of the legal import and effect of the contract.
    3. Contracts, § 127*—when contract void because of illegality of part of entire consideration. It is the general rule of law that any part of an entire consideration for a promise or any part of an entire promise being illegal, whether by statute or common law, the whole contract is void.
    4. Indemnity, § 5*—when bond is void. Where a contract for the loaning of money by a corporation attached to an indemnity bond and referred to by the terms of the bond is illegal because beyond the powers of the corporation, the bond is likewise void.
    5. Estoppel, § 65*-—when surety on bond is not estopped by recitals in bond. The surety on a bond of indemnity is not estopped by recitals in the bond that a contract, a copy of which is attached thereto, is for the sale of accounts receivable by the principal to the obligee.
    Appeal from the Municipal Court of Chicago; the Hon. James C. Martin, Judge, presiding. Heard in this court at the March term, 1917. Certiorari denied by Supreme Court (making opinion final).
    Reversed with judgment of nil capiat.

    Opinion filed November 5, 1917.
    Sabath, Stafford & Sabath, for appellant; Charles B. Stafford and Thomas M. Zasadil, Jr., of counsel.
    Frank Schoenfeld and David K. Tone, for appellee.

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

   Mr. Presiding Justice Holdom

delivered the opinion of the court.

This is an action upon an indemnity bond in which, on a trial before the court, there was a finding and judgment for $1,075 in favor of plaintiff and against the defendants, the principal and surety, and the Surety Company brings the record here by appeal for review.

The conclusion at which we have arrived in this case involves subdivisión 9 of the affidavit of defense, to the exclusion of all other defenses and questions, which subdivision is as follows:

“That the agreement between the New Era Chandelier Company and plaintiff, upon which the bond in question and this suit are based, amounts to the pledging of certain accounts receivable to secure the repayment of money advanced,, and is, therefore, a mere money loaning agreement and not an agreement for the sale of the accounts, and being such an agreement, the same is not only ultra vires the plaintiff corporation, but is illegal in that the plaintiff as a corporation, organized under the general incorporation act of Illinois, is not permitted by its charter to loan money.”

This agreement is referred to by the express terms of the bond and a copy thereof attached to the bond. The agreement was offered and received in evidence upon the trial and the trial judge was requested to hold, among other things, the following as a proposition of law, viz.:

“The court finds that as between the American Credit and Trust Company and the New Era Chandelier Company the contract introduced in evidence and in question in this case, while on its face purporting to be a contract for the purchase and sale of accounts, ' was in fact a contract for the lending of money by the American Credit and Trust Company to the New Era Chandelier Company in which the accounts to be collected were assigned by the New Era Chandelier Company to the American Credit and Trust Company as collateral security for the loans made by the American Credit and Trust Company to the New Era Chandelier Company.”

This the court—erroneously, we think—refused to do on the claimed legal theory that the Surety Company was estopped from denying the recital of the bond that the transaction was a sale of accounts, and from raising the question as to whether or not the contract was a sale of accounts or a loan of money. The American Credit & Trust Company is a corporation organized under the General Corporation Act of this State, and therefore could not engage in the business of banking or lending money. If the agreement is admissible in evidence as a condition of the indemnity bond, then the agreement was void as being ultra vires of the powers of the Trust Company, and the bond, being tainted with such illegality, would likewise be void and unenforceable.

This case is in every material particular analogous to Mercantile Trust Co. of Illinois v. Kastor, 273 Ill. 332, and Dorothy v. Commonwealth Commercial Co., 278 Ill. 629. In deciding the Dorothy case, supra, the court held that the facts were similar to those involved in the Kastor case, supra. We think the Kastor and Dorothy cases, supra, are decisive of the questions here involved; that the transaction was one of a loan of money and not a sale of accounts, unless as matter of law it can be held that the agreement was not admissible in evidence as not being a part of the indemnity bond; and that the Surety Company was es-topped, as the trial judge held, by the recitation in the bond that the agreement was for the “sale of accounts,” from otherwise contending.

In view of these two decisions we shall rest content in disposing of this phase of the case without further amplification, but will proceed to determine the questions raised of estoppel and the admissibility of the contract in evidence as a part of the indemnity bond in suit.

The bond bears this recital: “Whereas, the principal and the obligee have entered into a certain contract, hereinafter called the contract, which is dated January 15, 1914, and a copy of which is attached hereto, for the sale of accounts receivable by the principal to the obligee.” If the copy of the contract had not been attached to the bond, the recitation that the transaction was a sale of accounts would be binding upon the obligors, which they would be estopped from refuting; but the contract being before the court as an integral part of the bond, its legal effect must be determined by the court, and that determination must not be influenced by the' erroneous designation of the legal import of the contract by a false recitation of the bond.

. WThether the contract was one of sale of the accounts or a loan of money is a question of law for the court, which cannot be overcome by a misreeitation in the bond of the legal import and effect of the contract. The contract being void, every obligation springing from it becomes tainted with the virus of its illegality and is thereby rendered void. The indemnity bond purports to indemnify against the sale of accounts, the particulars of which purport to be set forth in the contract attached to the bond. When that contract discloses by legal interpretation that it is not a sale of accounts, but an advance of money ultra vires the charter powers of the principal obligor, then such bond falls in the same way as does the contract. In other words, neither the bond nor the contract is enforceable at law. It is the general rule of law that any part of an entire consideration for a promise or any part of an entire promise being illegal, whether by statute or common law, the whole contract is void. 1 Parsons oh Contracts 456. In Barton & Woodworth v. Port Jackson & U. F. Plank Road Co., 17 Barb. (N. Y.) 397, the court lays down the rule that every “new agreement entered into for the purpose of carrying into effect any of the unexecuted provisions of a previous illegal contract is void.” In Armstrong v. Toler, 11 Wheat. (U. S.) 258, it is held that where a contract grows immediately out of, and is connected with, an illegal or immoral act, a court of justice will not lend its aid to enforce it; and if the contract he in part only connected with the illegal consideration, and growing immediately out of it, though it be in fact a new contract, it is equally tainted by it.

The bond in'suit grows out of and is embraced in the contract between the New Era Chandelier Com-" pany and the American Credit & Trust Company, which contract is void under the Kastor and Dorothy cases, supra; and the contract and bond are therefore subject to the infirmities indicated and are consequently void. The contract and bond in suit are one and indivisible, and the infirmity in the contract attaching to the obligations of the bond nullifies it.

In the circumstances of this case the doctrine of estoppel is not invokable by plaintiff as against either the Surety Company or the principal obligor in the bond. Durkee v. People, 155 Ill. 354.

The bond in suit is not a contract of insurance but ■ one of indemnity; but, were it otherwise, the contract embraced in the bond, being ultra vires and void, does not avoid the rule of law as herein announced, that such illegality extends to the bond and vitiates it.

There is no right of recovery under either the contract or the bond, and as the bond in suit embraces the contract and indemnifies the obligee from loss thereunder, such undertaking is not enforceable.

For the reasons indicated, the judgment of the Municipal Court is reversed and a judgment of nil capiat entered in this court.

Reversed with judgment of nil capiat.


text:
    Edward Marks, Appellee, v. American Furniture Novelty Company, Appellant.
    Gen. No. 23,349.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. John R. Cavekly, Judge, presiding. Heard in this court at the March term, 1917.
    Affirmed.
    Opinion filed November 5, 1917.
    Statement of the Case.
    Action by Edward Marks, plaintiff, against the American Furniture Novelty Company, a corporation, defendant, to recover for merchandise sold and delivered by plaintiff’s assignors to defendant. Defendant filed a claim of set-off for an alleged breach of a contract which it claimed to have made with plaintiff’s assignors for certain merchandise, claiming a loss of profits in the sum of $824.67, on the ground that the goods were specialties and were to be made to order and could not be bought in the open market. Such claimed profits consisted in the difference between the prices at which the goods were bought and those at which defendant sold them for delivery for the Christmas trade. From a judgment for plaintiff for $976.71, the contract price of the goods, defendant appeals.
    Robert F. Kolb, for appellant; Frank Ingraffia, of counsel.
    Reuben J. Feldman, for appellee; John J. Whiteside, of counsel.

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

   Mr. Presiding Justice Holdom

delivered the opinion of the court..

Abstract of the Decision.

1. Set-off and becotjpmbnt, § 9 —when evidence shows that transactions set up in plaintiff’s and defendant’s pleadings are separate and distinct. In an action to recover for merchandise sold and delivered by plaintiff’s assignors to defendant, in which defendant interposed, a set-off for an alleged breach of a contract which defendant claimed to have made with plaintiff’s assignors for certain merchandise, evidence held sufficient to sustain a finding that the transactions set up in plaintiff’s statement of claim and defendant’s set-off were separate and distinct transactions.

2. Set-off and becotjpmbnt, § 40*—when claim, of set-off not established. In an action to recover for merchandise sold and delivered by plaintiff’s assignors to defendant, evidence held insufficient to sustain defendant’s claim of set-off.

3. Set-off and becoupment, § 10*—what may not be subject of set-off. A claim for unliquidated damages may not be the subject of a set-off where it in no way grows out of or is connected with the cause of action of plaintiff.

4. Damages, § 81*—when are unliquidated. Damages for loss of profits which are arrived at by computing the difference between the contract price and the price at which goods are claimed to have been resold are unliquidated.

5. Damages, § 81*—what constitute unliquidated. Unliquidated damages are such as are unascertained, as those arising out of a breach of a contract where the amount of damages has not been determined by agreement.


author: Mr. Justice Dever

text:
    Julia A. Gordon, Executrix, Appellee, v. Gertrude Brucker, Executrix, Appellant.
    Gen. No. 22,370.
    (Not to be reported in fuli.)
    Appeal from the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding. Heard in this court at the March term, 1916.
    Affirmed.
    Opinion filed November 5, 1917.
    Statement of the Case.
    A bill was originally brought by Margaretta Krohn, a stockholder in the W. C. Metzner Stove Repair Company, complainant, against Michael Brucker, James L. Morris, William C. Metzner, Julia A. Metzner and W. C. Metzner Stove Repair Company, defendants, praying for the appointment of a receiver of the corporation and that defendant Brucker, a creditor and officer of defendant corporation, be required to account for and pay over to the receiver any balance found to be due the company and its stockholders resulting from his management of the business of the corporation under a bill of sale alleged to be a chattel mortgage, and that the business of the corporation be wound up, and cross-bill by defendant Julia A. Metzner seeking the same relief. From a decree in favor of the executrix of the will of the original complainant, Julia A. Gordon, and the cross-complainant, Julia A. Metzner, appointing "a receiver requiring Gertrude Brucker, as executrix of the will of the original defendant, Michael Brucker, to render an accounting, defendant Gertrude Brucker, executrix, appeals.
    Fred H. Atwood, Charles O. Loucks and Vernon R. Loucks, for appellant.
    Montgomery, Hart, Smith & Steere, for appellee.

      Abstract of the Decision.
    1. Appeal and error, § 411

      —when objection that corporation is not properly in court may not be raised. An objection that a corporation is not properly in court as a party defendant cannot be raised on appeal for the first time.
    2. Evidence, § 333*—when parol is admissible to show true consideration. Parol evidence is admissible for the purpose of showing the true consideration which enters into the making of a written contract.
    3. Evidence, § 325*—when parol is admissible to show bill of sale to be mortgage. Parol evidence is admissible to show that a bill of sale of personal property of a corporation was intended as a chattel mortgage.
    4. Appeal and ebbob, § 450*—when objection that improper evidence was admitted may not be raised. Error in the admission of parol evidence cannot be complained of on appeal where no objection to the admission of such evidence was made before the master in chancery hearing the case.
    5. Evidence, § 342*—when parol is' admissible to prevent perpetration of a fraud. Although a bill of sale is absolute in its terms, evidence is admissible to show contemporaneous oral agreements between the parties indicating that it was intended as a chattel mortgage, in order to prevent the perpetration of a fraud.
    6. Cobpobations, § 189*—when corporation is necessary party complainant. Ordinarily, when a corporation’s right or interest is sought to be enforced by proceedings in a court of equity, the proceedings should be begun in the name of the corporation, and it usually is a necessary party complainant.
    7. Cobpobations, § 188*—when stockholder may maintain suit against directors or officers individually. Equity will permit a stockholder, either individually or on behalf of himself, to maintain a suit against the wrongdoing directors or officers, where it appears and is averred that the corporation itself refuses to begin the suit, or where it is disclosed by the complainant’s pleading a state of things exists which renders it reasonably certain that a suit by the corporation would be impossible and a demand unavailing.
    8. Cobpobations, § 188*—when shown that demand on corpora¡tion to bring suit against directors or officers would be unavailing. Evidence held sufficient to show that a demand by complainant on a corporation to bring suit against wrongdoing directors and officers of the corporation would be unavailing.

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

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

   Mr. Justice Dever

delivered the opinion of the court.

9. Appeal and error, § 410 —when question of failure of stockholder to make demand on corporation to bring suit is raised too late. The question of failure of a stockholder to make demand on a corporation to bring suit against wrongdoing directors or officers before instituting a suit individually cannot be raised on appeal where such question was not raised in the trial court by plea, demurrer or otherwise.

10. Equity, § 66*—when maxim that he who comes into equity must come with clean hands is inapplicable. Any wrongdoing of an executrix individually cannot be imputed to her in her official capacity so as to render applicable the equitable maxim that he who comes into equity -must come with clean hands.

11. Corporations, § 187*—when stockholder not denied equitable' relief because of small holding of stock. The fact that the interest of a stockholder in a corporation is only 1 per cent, of the total stock is not ground for denying him equitable relief against one to whom a bill of sale, claimed to be a chattel mortgage, was issued by the corporate officers and who refuses to make an accounting.

12. Chattel mortgages—when evidence sustains verdict for complainant in action by stockholder against mortgagee for an accounting. On a bill by a stockholder against the corporation and one holding a bill of sale of corporate personalty, which is claimed to be a chattel mortgage, for the appointment of a receiver and to compel an accounting by such alleged mortgagee, evidence held sufficient to support a decree in favor of complainant.

13. Chattel mortgages, § 7*—what is evidence that bill of sale was intended as mortgage. The fact that a bill of sale claimed to be a mortgage of corporate personalty is acknowledged by a justice of the peace is evidence that the instrument was intended to be a mortgage, since the acknowledgment by a justice of the peace is unnecessary to give the instrument validity as a bill of sale.

14. Appeal and ebbob, § 1399*—when findings of master not disturbed. The findings of a master in chancery based upon conflicting evidence will not be disturbed on appeal where the master had an opportunity to hear and see the witnesses and judge of their credibility.

15. Corporations, § 552*—when appointment of receiver is proper. The appointment of a receiver for a corporation is proper where a mortgagee of corporate personalty is required by decree of a court of equity to render an accounting for the benefit of stockholders and there is no person authorized to receive the money coming from such accounting ■ for the corporation.