text:
    Anna Przybylski, Appellee, v. International Harvester Company, Appellant.
    Gen. No. 19,342.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Isadore H. Himes, Judge, presiding. Heard in this court at the March term, 1913.
    Reversed with finding of fact.
    Opinion filed May 25, 1914.
    Rehearing denied June 8, 1914.
    Statement of the Case.
    Action by Anna Przybylski against International Harvester Company to recover death benefits claimed by virtue of the membership of her husband, Paul Przybylski, in the Employes’ Benefit Association of the defendant. To reverse a judgment recovered by plaintiff, defendant appeals.
    The statement of claim alleged that plaintiff’s husband was a member of the association, that he died April" 2,1911, while he was a member, and that the rules provided for payment to the widow of a sum equal to one year’s average wages. The defense was that the deceased left the service and employment of the defendant on January 30, 1911, without notice and without any report of any sickness or disability and that under the contract of membership there was a termination of employment and of membership so that neither he nor the plaintiff was entitled to any benefits.
    The benefit association is maintained by the defendant to provide for benefits for employe members in case of sickness, accident or death. It is not operated for the profit of the defendant, and both the defendant Company and the employes contribute to the benefit fund.
    The application for membership which the deceased signed was, in part, as follows:

      “I, Paul Przybylski * * * do hereby apply for membership in said Employes’ Benefit Association, and agree to be bound by the regulations of said Benefit Association, a copy of which has been by me received, and by any other regulations of said Benefit Association hereafter adopted and in force during my membership. * * *
    I also agree that * * * my resigning from or leaving the service of said International Harvester Company * * * or my being relieved or discharged therefrom, shall forfeit my membership in said Benefit Association, and all rights, benefits and equities arising therefrom, except that such termination of employment shall not (in the absence of any of the foregoing clauses of forfeiture) deprive me of benefits to the payment of which I may be entitled by reason of disability beginning and reported before and continuing without interruption, to and after such termination of employment; nor of the right to continue my membership in respect of death benefits only as provided in said rules.”
    The rules of the association in force at the time, so far as pertinent to the question in the case, are as follows:
    “15. Leaving Service.—When a member resigns from the service or leaves the service without notice, or absents himself without notice, (unless he after-wards gives reasons satisfactory to the Superintendent), or is discharged or is laid off for a period longer than 90 days his membership in the Association shall terminate with his employment and he shall not thereafter be entitled to any benefits except for disability beginning and reported before such termination of employment and continuing without interruption.
    Any employe leaving the service who has been a member of the Benefit Association for one year, or who was a member of the Association January 1, 1909, and has been in the service five years, may continue his membership in respect only of the minimum death benefit which he has held during the last year of employment, or of any smaller amount upon making supplementary application therefor before termination of employment or within five days thereafter.”

      Abstract of the Decision.
    Insurance, § 780

      —when beneficiary not entitled to recover death benefits of an employes’ benefit association. In an action to recover death benefits by virtue of plaintiff’s husband’s membership in an employes’ benefit association, held that a judgment for plaintiff could not be sustained for the reason that the deceased had forfeited his membership in the association before his death by quitting his employment without giving notice, as required by the rules of the association.
    “41. Disability.—Wherever the word ‘disability’ is used in these regulations, it shall be held to mean physical inability to work by reason of sickness or accidental injury, and the word ‘disabled’ shall apply to members thus physically unable to work.
    42. The decision as to when members are disabled and when they are able to work shall rest with the Medical Examiner of the Association and his decision shall be final and binding upon the member, subject to the provisions of the regulations.
    43. Notification.—When a Works member becomes disabled he shall notify his timekeeper immediately, or cause him to be notified; other employes shall notify their superior officers. In reporting disability, member shall give his house address. * * #
    44. Reports.—When a member becomes disabled he shall also unless unable on account of his disability, report immediately to the Medical Examiner at his office, during business hours. A disabled member not confined to the house by his disability, shall also report at the Medical Examiner’s office from time to time as requested and keep any other appointments made by the examiner. Members who avoid the medical examiner or neglect to report, or keep appointments, shall not be entitled to benefits.”
    Thomas C. Angerstein, for appellant; Edgar A. Bancroft, of counsel.
    Kaplan & Kaplan and Fred W. Kraft, for appellee; George W. Kenney, of counsel.

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

   Mr. Justice McSurely

delivered the opinion of the court.


source: Caselaw Access Project

author: Mr. Justice McSurely

license: Public Domain

text:
    Chicago Title & Trust Company, Trustee, Appellee, v. William G. Edens et al., Defendants. On Appeal of Edward Roby, Appellant.
    Gen. No. 19,357.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding. Heard in this court at the March term, 1913.
    Affirmed.
    Opinion filed May 25, 1914.
    Statement of the Case.
    Bill by Chicago Title & Trust Company, as trustee, and in its own right, against William Gr. Edens and his wife, Lillian Maud Edens, and Edward Boby to foreclose a trust deed executed by Edens and wife to complainant to secure a loan made by it to Boby and evidenced by Boby’s notes of even date with the trust deed. Edens and his wife were served with summons, and Mr. Edens ’ appearance and answer were filed by Mr. Boby as his solicitor. Mr. Boby also filed his own appearance and answer, and to each of the answers complainant filed a general replication. An order of default was entered against Mrs. Edens and the cause referred to a master in chancery to take evidence on the issues joined and to report the same to the court with his conclusions. Subsequently the master filed his report, finding the material allegations of the bill to be true and recommending that its prayer be granted, and afterwards an order was entered approving and confirming the report, and a' decree of sale was entered. From the decree, Mr. Boby appeals.
    Edward Roby, for appellant.
    Munroe & Noyes, for appellee; Charles L. Bartlett and M. Paul Noyes, of counsel.

      See Illinois Notes Digest, Vola 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. Justice McSurely

delivered the opinion of the court.

Abstract of the Decision.

1. Mortgages, § 656-when want of proof of immaterial averments in bill to foreclose not reversible error. Allegations in a hill to foreclose a trust deed that complainant had no other security than the lien of the trust deed in question and that it had not commenced any suit at law for the recovery of the money due it, held immaterial as hearing on complainant’s right to a decree, and failure of complainant to make proof of same, held entirely harmless, if error.

2. Mortgages, § 371*-right to concurrent remedies to enforce payment of debt. The law gives to a person having the right to file a bill to foreclose a trust deed the right to sue at law concurrently with the pendency of the suit to foreclose, with the limitation that there should he but one satisfaction.

3. Mortgages, § 650*-matters which person liable on notes cannot complain of on appeal. On appeal from a decree awarding a foreclosure of a trust deed, the party liable as principal on the notes cannot complain that there was a failure of proof that the mortgagor was the owner of the lands conveyed by the trust deed, and that he was denied the right to prove that a portion of the lands was held adversely by a third party under a deed.

4. Mortgages, § 456*-right to litigate validity of independent adverse claims to property. The validity of an independent ’ claim of a party who holds a portion of the premises adversely under a deed cannot he properly tried in a foreclosure suit, in which the only proper parties are the mortgagor, mortgagee and those who might have acquired rights under them subject to the mortgage.

5. Mortgages, § 605*-effect of failure to litigate the validity of independent adverse claims in foreclosure proceedings. The fact that the validity of an independent adverse claimant to the property is not litigated and settled in a foreclosure suit would not he cause to require the foreclosure sale to he vacated and the money refunded. The rule of caveat emptor applies to foreclosure sales, and defects in title are not grounds for rescinding the sale or for reimbursing the purchaser at the sale.

6. Mortgages, § 650*-who not entitled to complain of decree providing for sale of only part of the property. The person liable as principal on notes secured by a trust deed executed by other parties cannot complain of a foreclosure decree providing “that part of the lands under the lien should he sold, and that if they failed to bring enough to satisfy the amount found due that the master should make a report of deficiency,” for the reason that there may he a greater deficiency decree than if all the mortgaged lands were sold.

7. Equity, § 281 —matters put in issue hy replication to answer. A general replication does not put at issue all the averments of the answer irrespective of their materiality or responsiveness to the hill, so that defendant is free to prove everything alleged in their answers.

8. Equity, § 438*—right to introduce additional evidence on hearing of exceptions to master’s report. It is not error for the chancellor to refuse to permit a party to introduce further evidence upon a hearing of exceptions to a master’s report.

9. Equity, § 418*—power of master to rule on competency of evidence. A master upon a reference to take and report proofs with conclusions of law and fact has power to pass upon the competency of the evidence presented where such authority is given hy a rule of court.

10. Equity, § 396*-—amount of master’s fees. The concluding portion of section 20 of the Fees and Salaries Act, J. & A. f 5621, relating to the fees of masters in Cook County, is not governed hy the preceding portion of that section limiting the fees to ten dollars.

11. Appeal and ebbob, § 499*—when correctnesss of amount of master’s fees cannot he questioned. Where the statement of the amount of the master’s fees was attached to the master’s report filed in the Circuit Court, the correctness of the amount of the fees cannot be questioned on appeal, where it was not challenged in the court below, and there is no assignment as error with reference thereto.


text:
    Stanley Edward Johnson by Andrew Johnson, Appellant, v. Henry Dekker, Appellee.
    Gen. No. 19,397.
    (Hot to he reported in full.)
    Appeal from the Circuit Court of Cook County; the Hon. Charles M. Walker, Judge, presiding. Heard in this court at the March term, 1913.
    Reversed and remanded.
    Opinion filed May 25, 1914.
    Statement of the Case.
    Action hy Stanley Edward Johnson, a minor, hy Andrew Johnson, Ms next friend, against Henry Dekker to recover damages for personal injuries. The declaration alleges negligence in the manner in which defendant loaded and piled bags of grain on Ms wagon, and in the manner of driving the wagon so loaded on the highway, so that a number of the bags fell off the wagon on plaintiff, a minor, then lawfully on the street. From a judgment entered on a directed verdict for defendant, plaintiff appeals.
    Abstract of the Decision.
    Negligence, § 204

      —when direction of verdict improper. In an action to recover for injuries sustained by a six-year-old boy resulting from bags of grain falling off of a wagon upon him, where the evidence showed that plaintiff and another boy were going to a store to buy candy, that they walked behind defendant’s wagon and for a time had hold of a chain hanging from the tailboard, and that when they came to the cross walk of an intersected street they let go of the chain and plaintiff started for the store walking on the cross walk and at that time several bags of grain fell off the rear end of the wagon upon him, held that the question whether defendant was negligent in piling bags on the wagon or in driving the wagon was a question for the jury, and that the court erred in directing a verdict for defendant.
    John C. Trainor, for appellant.
    Gustav Nelson, for appellee.

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

   Mr. Justice McSurely

delivered the opimon of the court.


text:
    Atlas Floor Company, Defendant in Error, v. Robert J. McLaughlin, Plaintiff in Error.
    Gen. No. 19,420.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Henry C. Beitler, Judge, presiding. Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed May 25, 1914.

      Abstract of the Decision.
    Conteacts, § 315

      —when finding of want of existence- of warranty sustained, by the evidence. In an action to recover for labor and materials furnished in laying floors for defendant where defendant claimed the floors were to be according to sample and that they were inferior to sample, a finding that there was no such warranty express or implied, and that the defendant ordered them upon the advice of his architect and after his own independent investigation, held justified by the evidence.
    Statement of the Case.
    Action by Atlas Floor Company, a corporation, against Eobert J. McLaughlin to recover for labor and materials furnished in laying two floors in shops belonging to defendant. To reverse a judgment in favor of plaintiff, defendant brings error.
    Lyman M. Paine, for plaintiff in error.
    J. Scott Matthews, for defendant in error.

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

   Mr. Justice McSurely

delivered the opinion of the court.


text:
    S. F. Svenson, Defendant in Error, v. H. J. Le Brun, Plaintiff in Error.
    Gen. No. 19,431.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John D. Turnbaugh, Judge, presiding. Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed May 25, 1914.
    Statement of the Case.
    Action by S. F. Svenson against H. J. Le Brun in which, the brief of defendant states, a judgment was entered against him “for an alleged unpaid balance on a painting contract.” To reverse a judgment in favor of plaintiff, defendant brings error.
    . Abstract of the Decision.
    Appeal and error, § 1414*—when judgment of trial court conclusive. On writ of error to review a judgment entered against plaintiff in error for a balance due for painting, where it was assigned for error that the trial court did not decide the case on the weight of the evidence, and it appeared that the defense to the action was that the work was not properly done, held that in such a case the judgment of the trial court was conclusive where there was no manifest reason to disagree with his conclusion.
    Benjamin F. J. Odell, for plaintiff in error.
    Monroe Fulkerson, for defendant in error.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    City of Chicago, Plaintiff in Error, v. Fred D. Jackson, Defendant in Error.
    Gen. No. 19,476.
    Municipal corporations, § 857

      —when exhibiting picture not a violation of ordinance. Exhibiting in show windows a copy of a painting named “September Morn,” held not to constitute a violation of an ordinance forbidding the exhibition of any “indecent or lewd” picture.
    Error to the Municipal Court of Chicago; the Hon. John J. Rooney, Judge, presiding. Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed May 25, 1914.
    William H. Sexton and Alexander E. Arkin, for plaintiff in error; Charles M. Haft, of counsel.
    Fred D. Jackson, pro se.

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

   Mr. Justice McSurely

delivered the opinion of the court.

The City charges that the defendant by exhibiting in his show windows a copy of the painting by Paul Chabas, named “September Morn,” violated the section of the Municipal Code which forbids the exhibiting of any “indecent or lewd” picture. Upon trial a jury acquitted the defendant.

Complaint is made of rulings on objections to questions, and on the admissibility of testimony, which we shall not discuss, as our opinion on these points would not alter our conclusion that no other verdict than that returned should stand. This conclusion follows an inspection of the picture, which is an exhibit before us. It is not indecent, although this may not be said of much of the exploiting of it. It does not come within the interdiction of the ordinance, and the judgment is affirmed.

Affirmed.


text:
    Mary Drimmel by Anton Drimmel, Defendant in Error, v. Rudolph Jahrling and Mrs. Rudolph Jahrling, Plaintiffs in Error.
    Gen. No. 19,540.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John Courtney, Judge, presiding. Heard in this court at the October term, 1913.
    Reversed with finding of fact.
    Opinion filed May 25, 1914.
    Statement of the Case.
    Action by Mary Drimmel, a minor, by Anton Drimmel, her father and next friend, against Rudolph Jahrling and Mrs. Rudolph Jahrling to recover damages for personal injuries claimed to have been caused by a bite of a dog belonging to defendants. The case was tried by the court who found for the plaintiff. To reverse the judgment, defendants bring error.
    Abstract of the Decision.
    1. Animals, § 12

      —when recovery against joint defendants for dog hite erroneous. In an action against husband and wife as owners of a dog to recover for injuries sustained by plaintiff by being bitten by the dog, held that a judgment against both defendants was erroneous for the reason that it was erroneous as to one, there being no evidence tending to show that the wife owned the dog or was in anyway responsible for its conduct.
    2. Animals, § 14*—when recovery for hite of dog not sustained hy the evidence. In an action to recover damages for injuries sustained by a child by being bitten by a dog belonging to defendants, a judgment for plaintiff held not warranted by the evidence, there being no direct evidence that plaintiff was bitten by the dog and no proof that the dog was vicious or prone to bite mankind.
    Henry Roth, for plaintiffs in error,
    Emery M. Shaw, for defendant in error.

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

   Mr. Justice McSurely

delivered the opinion of the court.


author: Mr. Justice.McSurely

text:
    Martin E. Troutman, Defendant in Error, v. Postal Telegraph-Cable Company, Plaintiff in Error.
    Gen. No. 19,560.
    (Hot to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Thomas F. Scully, Judge, presiding. Heard in this court at the October term, 1913.
    Reversed.
    Opinion filed May 25, 1914.
    Statement of the Case.
    Action by Martin E. Troutman against Postal Telegraph-Cable Company, a corporation, to recover damages sustained by plaintiff resulting from the failure of defendant to deliver to the addressees a telegram given to it to be transmitted. Upon trial by the court, plaintiff recovered a judgment for $101.10, which was for railroad fare from Meadville, Pennsylvania to Chicago and return amounting to $21.10, and $80 for loss of profits and commissions while absent from Meadville. To reverse the judgment, defendant brings error.
    Plaintiff was an insurance solicitor and was employed on a commission basis by the Traveler’s Insurance Company. He had in his employ George A. Wilson and Deaton J. Brooks, who were engaged by him as solicitors of insurance, the plaintiff receiving commissions on all policies written by himself and his employes. Wilson and Brooks had become dissatisfied and were contemplating a change of employment. At this time George S. Penfield, the manager of the company and plaintiff’s official superior, was in Hartford, Connecticut, while plaintiff was in Meadville. Plaintiff had informed Penfield that Wilson and Brooks wanted a larger share of commissions, and Penfield wired plaintiff as follows:
    “Wire Brooks “and Wilson not to make a change until after hearing from me.”
    Pursuant to this instruction plaintiff sent the following telegram to Chicago through the defendant:
    “Meadville, Pa., Jan. 20, 1913.
    To Wilson and Brooks
    306 Ins. Exchange Chicago, HI.
    Have wire from Panfield. Make no arrangements for change until you hear from him.
    Troutman.”
    This message was received in the Chicago office of the defendant and given to a messenger boy to deliver, but for some reason, which is not exactly clear, Messrs. Wilson and Brooks did not receive it. These men left the employ of the Traveler’s Insurance Company, and this fact becoming known to plaintiff at Meadville he came to Chicago. It does not appear just why he came to Chicago or what he did after his arrival. As indicated above, he was allowed as damages his railroad fare for this trip and his loss of profits caused by his absence from Meadville.
    Abstract of the Decision.
    Telegraphs and telephones, § 37*—when recovery for failure to deliver telegram not warranted by the evidence. In an action against a telegraph company to recover damages sustained hy plaintiff by reason of the failure of defendant to deliver to addressees a telegram given to it to be transmitted, a judgment in favor of plaintiff for certain railroad fare and for loss of profits and commissions held not warranted by the evidence, there being no evidence to show that the failure to deliver the telegram had any hearing on the actions of the addressees or made the railroad trip by plaintiff necessary.
    Jacob E. Dittus, for plaintiff in error.
    Albert B. George, for defendant in error.
   Mr. Justice.McSurely

delivered the opinion of the court.


text:
    Harry C. Leemon, Defendant in Error, v. Grand Crossing Tack Company, Plaintiff in Error.
    Gen. No. 19,598.
    1. Master and servant, § 9

      —when conditions in employment contract as to payment of wages invalid. An employment contract which purports to deprive an employe of his wages for services rendered, by conditions as to time, manner or method of requesting his pay, is void.
    2. Assignments, § 33*—sufficiency of pleadings in suit by assignee of chose in action. In an action in the Municipal Court against an employer hy an assignee of an employe’s claim for wages, held that a judgment in favor of the assignee could not he sustained where he did not in his pleadings on oath, or hy affidavit, allege that he was the actual bona fide owner of the chose in action, and kow and when he acquired title, as required by section 8, ch. 110, R. S., J. & A. If 8555, and this though the absence of the affidavit was not made on issue by an affidavit of merits.
    3. Municipal Coubt op Chicago, § 5

      —judicial notice of rules of court. The Appellate Court cannot take judicial notice of the rules of the Municipal Court of Chicago.
    Error to the Municipal Court of Chicago; the Hon. David Sullivan, Judge, presiding. Heard in this court at the October term, 1913.
    Reversed.
    Opinion filed May 25, 1914.
    A. W. Martin and Edward H. S. Martin, for plaintiff in error.
    Harry C. Leemon, for defendant in error.

      See Illinois Notes Digest, Vols 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. Justice McSurely

delivered the opinion of the court.

Harry 0. Leemon, plaintiff, brought suit for wages earned by Jure Tomich while in the employ of the defendant and assigned to plaintiff, and recovered judgment.

Defendant seeks a defense in what is said to be the contract of employment of Tomich. It says that its manner of paying employes is as follows: In the forenoon of Wednesday, following the week in which his compensation is earned, the employe applies to his foreman for a payroll card, in the blanks of which are inserted the name and number of employe, the amount of his compensation for the week ending on the preceding Saturday, the date of that Saturday and the date on which such compensation is payable, which is the Wednesday following. The employe signs the card and delivers it to the paymaster at the office of the defendant between three and six o’clock p. m. on that Wednesday, and then the money is paid to him. It is argued that this system, which is acquiesced in by the employes, thus becoming part of the contract of employment, imposes no obligation on defendant to pay wages hitherto earned by its employes unless they secure the card on Wednesday and observe the conditions above described, and that Tomich by failing to appear and demand his card on Wednesday has forfeited his right to compensation for his labor; hence defendant owes Tomich nothing,.

We think the mere statement of this contention is sufficient to prove its unsoundness. Any contract which purported to deprive an employe of his wages for services rendered, by conditions as to time, manner or method of requesting his pay, would be void. - Conditions subsequent are not favored in law, and forfeitures are not regarded kindly: King v. Radeke, 175 Ill. 72.

However, we must reverse this judgment for the reason that plaintiff has not in his pleading, on oath or by affidavit, alleged that he was the actual bona fide owner of this chose in action, and how and when he acquired title, as required by section 18, ch. 110, Hlinois Statutes. (J. & A. 8555.) It is no answer to say that the absence of this affidavit was not made an issue by any affidavit of merits filed by the defendant in the court below, as we do not understand that the affidavit of merits should contain conclusions of law. We also find that this point of defense was raised by the first refused proposition of law submitted to the court by defendant. In Sixby v. Chicago City Ry. Co., 260 Ill. 478, it was held that this court could not take notice of the Municipal Court rules; hence we cannot judicially know of the rule cited by plaintiff.

For the reason above indicated the judgment is reversed.

Reversed.


text:
    Educational Aid Society, Defendant in Error, v. Bush Temple Conservatory, Plaintiff in Error.
    Gen. No. 19,617.
    1. Appeal and ebbob, § 528

      —when presentation of propositions of law unnecessary to preserve questions for review. It is not necessary to present propositions of law in a case tried by the court without a jury, to preserve questions for review in the Appellate Court.
    2. Bills and notes, § 295*—when “credit certificate” not primarily payable in money. A written instrument denominated a “credit certificate” certifying a certain sum to be due and stating that the certificate would be accepted in payment of school fees of any eligible student who had not been previously enrolled in the institution of the maker, held not an obligation for payment of money until an eligible student has been presented for tuition and refused by the maker of the instrument.
    3. Pbincipal and agent, § 137*—when evidence insufficient to show authority of employe of corporation to sign money obligation. Evidence held insufficient to show that a musical director of a corporation had implied authority to sign an obligation payable in money, where it appeared that he was not an officer of the corporation, that he signed the instrument without the knowledge of any of its officers and that all contracts involving money obligations were signed by the treasurer of the corporation.
    Error to the Municipal Court of Chicago; the Hon. David Sullivan, Judge, presiding. Heard in this court at the October term, 1913.
    Reversed.
    Opinion filed May 25, 1914.
    Harris, Dodds & Kagy, for plaintiff in error.
    Moses, Rosenthal & Kennedy, for defendant in error; E. D. Wallace and Sigmund W. David, of counsel.

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

   Mr. Justice McSurely

delivered the opinion of the court.

We would first notice the point made by defendant in error that we cannot review the issue herein as it is an issue of law, and no propositions of law are in this record. It is not necessary to present propositions of law in a case tried by the court without a jury, to preserve questions for review in the Appellate Court. In so holding we reaffirm what was said by this court in Lanski v. Chicago & N. W. Ry. Co., 181 Ill. App. 565:

“To preserve questions of law for the Supreme Court in cases in which that court has no jurisdiction to pass on controverted facts and which have been tried below without a jury, there must have been propositions of law offered and passed on; but that is not necessary to enable the Appellate Court, which passes on both law and fact, to consider all questions raised by the assignments of error.” See also the reasons for this view stated in City of Chicago v. Bartels, 146 Ill. App. 180, 185. We shall therefore consider this case on its merits.

Plaintiff brought an action on a written instrument and recovered a judgment for one hundred and seventy dollars, which defendant seeks to have reversed. The instrument sued on is as follows:

“Credit certificate.
$170.00 > No. 14028
> This certifies there is due Educational Aid Society or order the sum of one hundred and seventy and no dollars in payment for advertising, and this certificate will be accepted for that amount in payment of school fees of any eligible student who has not previously enrolled in this institution.
Signed
BUSH TEMPLE CONSERVATORY
Per K. M. Bradley
Officer of School.”

In Bronson v. Wilson, 186 Ill. App. 69, by Branch D. of the Appellate Court, this district, there was under consideration an instrument identical with this, except as to number, amount and name of the party signing. It was there held that the term “credit certificate * * * implies that something remains to be sold, furnished or supplied by the maker of the certificate, towards the payment of which the amount named in the certificate will he applied as a credit, upon demand.” 'This seems reasonable. Consideration of the instrument tends to favor the construction that it does not call for the payment of money until an eligible student has been presented for tuition and refused by the maker of the instrument. Any other construction makes pointless the provision that the certificate will be accepted for that amount, one hundred and seventy dollars, in payment of school fees. If the instrument was a primary obligation for one hundred and seventy dollars in money, why make any such provision, for manifestly one hundred and seventy dollars in money would be accepted by the defendant “for that amount in payment of school fees,” and probably regardless of whether or not the student had been previously enrolled in the institution. It is not claimed that plaintiff tendered any student to receive instruction as contemplated by the certificate. There must be such a tender followed by refusal of the obligor to perform its undertaking to give instruction before there can be any liability for the amount of money named in the certificate.

Plaintiff concedes that Bradley, who signed, the certificate, had no express authority so to do, but contends that he had implied authority. The evidence shows that he is not an officer of the corporation, but is the musical director; that he engages teachers and arranges with pupils as to their tuition and the work of their studies; that he teaches and lectures; that all contracts involving obligations to pay money are signed by the treasurer, Mr. Bush; that Bradley has no authority to sign such obligations. It also appears that Bradley signed the instrument in question without the knowledge of any of the officers of defendant; that he did not understand that he was signing any money obligation; that he had never before signed a paper like this, and thought it was merely an order for tuition to the extent of one hundred and seventy dollars; that once before a student had been sent by the plaintiff to the defendant to receive instruction, and he supposed this was the same kind of a transaction.

Our conclusion is that the evidence fails to show any implied authority in Mr. Bradley to sign a paper primarily obligating the defendant to pay a sum of money, but that he. did have authority to sign what he thought he was signing, namely a credit certificate for tuition.

Plaintiff, having failed to show any default or breach on the part of defendant in its undertaking to furnish tuition under the terms of the instrument, was not entitled to recover judgment, and it will therefore be reversed.

Reversed.


text:
    John W. Barnes, Defendant in Error, v. Sleph, Sandrowitz & Goldblatt Company, Plaintiff in Error.
    Gen. No. 19,625.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John Courtney, Judge, presiding. Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed May 25, 1914.
    Statement of the Case.
    Action by John W. Barnes against Sleph, Sandrowitz & Goldblatt Company to recover damages for the death of plaintiff’s horse caused by being struck by a team drawing a heavily loaded wagon claimed to belong to defendant. To reverse a judgment in favor of plaintiff, defendant brings error.
    Saltiel & Rossen, for plaintiff in error.
    Daniel A. Levy, for defendant in error.

      Abstract of the Decision.
    1. Negligence, § 187

      —evidence sufficient to show negligence in driving team and wagon. In an action for the death of plaintiffs horse, claimed to have been caused by being struck by a team and wagon owned by defendant, a judgment for plaintiff held sustained by evidence sufficient to show defendant’s negligence, where there was evidence that plaintiff’s horse hitched to a wagon was standing still behind another wagon and that defendant’s team was driven past the front wagon and into plaintiff’s horse and wagon.
    2. Damages, § 47*—when evidence sufficient to show horse died as result of injuries. In an action to recover damages for the death of plaintiff’s horse caused by being struck by a team and wagon belonging to defendant, a judgment for plaintiff held sustained by evidence showing that the horse died as a result of the injuries, where there was evidence that the horse of plaintiff, a small animal, was knocked down and a wheel of defendant’s loaded wagon ran over it, that the horse was taken to a hospital for treatment and died shortly thereafter and that before the accident it had been in good physical condition.

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

   Mr. Justice McSurely

delivered the opinion of the court.'


text:
    B. Schwinger & Company, Defendant in Error, v. George Redman, trading as G. Redman & Company, Plaintiff in Error.
    Gen. No. 19,680.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. James C. Martrin, Judge, presiding. Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed May 25, 1914.
    Statement of the Case.
    Writ of error to reverse a judgment recovered by B. Schwinger & Company, a corporation, against George Redman, trading as G. Redman & Company. The only point made by plaintiff in error is that the court erred in refusing to strike certain depositions from the record and in permitting such depositions to be read to the jury.
    Abstract of the Decision.
    1. Depositions, 3

      —when official capacity of person talcing immaterial. Where a commission is directed to a person named to take deposition, such person derives his authority from the appointment, which carries with it all the powers necessary to execute the commission, including the power to administer oaths to witnesses, and his official capacity is immaterial.
    2. Depositions, § 18*—when stipulation does not require the affixing of certificate of magistracy. Where depositions are taken under a stipulation that they could be taken before a certain person, or before any other person qualified by the law of Illinois, held that a further agreement in the stipulation that the depositions may be read free from objections “except the certificate of magistracy” means that the certificate of magistracy should be affixed only if the deposition be. taken before any other person qualified by the laws of Illinois than the particular person named.

      The objection to the depositions is that they were not accompanied by a certificate of the official character of the notary, as required by section 30 of the statute on “Depositions.” (J. & A. ft 5547.) The depositions in question were taken under a stipulation which provided that they could be taken before “Albert Edward Maves, a Notary Public in and for the County and State of New York (or before any other person in said county and State qualified by the laws of Illinois.) ” It was further agreed that said depositions might be read on the trial of the cause “free from objections, based upon the form or method of said notary’s, officer’s or commissioner’s return on, or of, said depositions, except the certificate of magistracy.” Depositions were taken before the notary public named in the stipulation who signs as a notary public and affixes his notarial seal.
    E. C. Wood and William Gillespie, for plaintiff in error.
    Lipson & Levy, for defendant in error; Sylvanus George Levy and Isaac B. Lipson, of counsel.

      See Illinois Notes Digest, Vols. 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. Justice McSurely

delivered the opinion of the court.

3. Depositions, § 40 —when objection to -form comes too late. Where depositions are taken on January 3rd and filed in court January 20th and remain on file until May 8th, the time of the trial, held that an objection to the form of the depositions came too late after the jury had been sworn to try the issues.


text:
    Julius Achterberch, Defendant in Error, v. Chicago City Railway Company, Plaintiff in Error.
    Gen. No. 19,695.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Frederick L. Fake, Jr., Judge, presiding. Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed May 25, 1914.
    Statement of the Case.
    Action by Julius Achterberch against the Chicago City Railway Company to recover damages for injuries to property and person sustained by plaintiff through a collision between a street car of the defendant and a horse and wagon of the plaintiff. To reverse a judgment entered on a verdict in favor of plaintiff, defendant brings error.
    Warren D. Bartholomew and A. C. Wild, for plaintiff in error; Leonard A. Busby, of counsel.
    McEwen, Weissenbach, Shrimski & Meloan, for defendant in error; Harry Okin, of counsel.

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

   Mr. Justice McSurely

delivered the opinion of the court.

Abstract of the Decision.

Stbeet bailboads, § 86 —when recovery for injuries resulting from collision with wagon sustained by the evidence. In an action against a street railway company to recover for injuries sustained by plaintiff resulting- from a collision between a street car and a horse and wagon driven by plaintiff, where plaintiff’s evidence tended to show that plaintiff was driving on a street car track and before he could turn his horse off the track a car approaching from behind struck the wagon causing the horse to jump across the track, and that the car was going from eighteen to twenty-five miles an hour, and did not slacken its speed, held that a judgment in favor of plaintiff was sustained by the evidence, there being conflicting stories as to how the accident happened.


author: Mr Presiding Justice Smith

text:
    Henry D. Laughlin, Appellee, v. Charles H. Norton and Henry P. Norton, Appellants.
    Gen. No. 19,412.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. John J. Rooney, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1913.
    Reversed and judgment here.
    Opinion filed June 9, 1914.
    Statement of the Case.
    Action by Henry D. Laughlin against Charles H. Norton and Henry P. Norton to recover money claimed to be loaned by plaintiff to defendants. Plaintiff filed the common counts and a bill of particulars, in which he claimed he loaned the defendants on three separate occasions sums of money aggregating in all $4,017.75. The defendants filed a set-off claiming money due from plaintiff to defendants as follows: $2,046.82 due upon a certain land contract between the parties, dated May 6, 1905: and $1,251.35 due upon another land contract between the parties dated October 31, 1905, which sums, with interest, amounted to $4,487.36; and giving the plaintiff credit for $1,277.08, for cash paid on account of contracts, with interest. The claim of set-off showed a balance due the defendants of $3,210.28. Plaintiff filed an affidavit of merits to the set-off, denying that defendants performed under the contract of October 31, 1905, and alleging that he did not waive any of the provisions of the contract and was entitled to a credit of $1,891.95, as payment upon the contract of May 6, 1905. The court found that the sum of $1,891.95 was paid by plaintiff to defendants as a loan and that performance of the contract of October 31, 1905, was not fulfilled by the defendants; that plaintiff had paid on the contract of October 31, 1905, $2,125.81, and such sum together with $1,891.95, and interest thereon, amounted to a total of $4,735.12. As against this amount the court allowed defendants a credit of $2,046.82 named in the contract of May 6, 1905, with interest, leaving a balance of $1,895.20 due plaintiff and entered judgment therefor. To reverse the judgment, defendants appeal.
    Abstract of the Decision.
    1. Assumpsit, action op, § 89

      —when finding that money was loaned not sustained by the evidence. In an action for money loaned where the defense was that the plaintiff agreed that the money should apply on a contract for the purchase of defendant’s interest in certain lands, held that a finding that the money was loaned was not sustained by the evidence.
    Castle, Williams, Long & Castle and Mighell, Gunsul & Allen, for appellants.
    Defress, Buckingham, Ritter & Eaton, for appellee; Marquis Eaton and Don K. Jones, of counsel.

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

   Mr Presiding Justice Smith

delivered the opinion of the court.

2. Contracts, § 329*—when covenants in executory sealed contract may he waived hy parol. Covenants contained in an executory sealed contract may be waived by parol by the party for whose benefit they were inserted, provided no new element or terms are added; and the party to a contract so waiving one of its terms or covenants will be estopped to insist that such covenant was not performed by the other.

3. Vendor and purchaser, § 106*—when provision in contract is waived. Where assignees of a contract to purchase land enter into a contract with another to assign to him the entire interest of the original purchaser, to confirm by deed such assignment from all the parties in interest, including the shareholders of a certain company, and also to obtain the consent of the original vendor to the transfer, held that there was a substantial performance of the contract on the part of such assignees though they did not procure the consent of the original vendor to the assignment, where the other party waived the procurement of such consent and agreed to obtain it hiinself.

4. Vendor.and purchaser, § 100*—when purchaser entitled to rescission of contract. To justify a purchaser in rescinding a land contract and recovering the money paid, the vendor must have failed in a substantial manner to observe his part of the contract, and the object of the contract must have been defeated or rendered unattainable by the vendor’s misconduct or default.


author: Mr. Presiding Justice Smith

text:
    American Woolen Company of New York et al., Defendants in Error, v. Jacob H. Lesher et al., (Defendants), Coplaintiffs in Error. Belle Lesher (Defendant), Plaintiff in Error.
    Gen. No. 19,571.
    1. Judgment, § 473

      —when separate maintenance decree not res adjudicata. A separate maintenance decree constitutes no exception to the general rule that a judgment or decree is res adjudicata only as to the parties to the suit in which such judgment or decree is rendered or their privies.
    2. Marriage, § 24*—evidence incompetent to prove marriage. A copy of a separate maintenance decree, held not admissible to establish the marital status oí the wife of the maker of the trust deed on bill to foreclose such deed.
    3. Mortgages, §. 487

      —when cross-hill unnecessary to have right of dower determined. On bill to foreclose a trust deed, where the wife of the mortgagor files an answer setting up her marriage to the mortgagor and the nonrelease of her dower, held under the pleadings that the court could have determined her right to dower without the filing of a cross-bill, and that denial of leave to file a cross-bill was not error.
    Error to the Superior Court of Cook county; the Hon. William E. Dever, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.

      Certiorari allowed by Supreme Court.
    Affirmed.
    Opinion filed June 9, 1914.
    Albert H. Fry, for plaintiffs in error.
    Moses, Rosenthal & Kennedy and Whitman & Miller, for defendants in error; Walter Bachrach, of counsel.

      See Illinois Notes Digest, Vols XI to XV, anti 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 Smith

delivered the opinion of the court.

The writs of error in these cases are prosecuted to reverse decrees of foreclosure entered in the Superior Court of Cook county, declaring that' plaintiff in error, Belle Lesher, has no right or title whatsoever in and to the real estate involved in the proceeding or any part thereof by way of homestead or dower.

The important question presented by these error proceedings is whether a separate maintenance decree constitutes an exception to the general rule that a judgment or decree is res ad judicata only as to the parties to the snit in which such judgment or decree is rendered or their privies. The writs of error were consolidated in this court for hearing.

Defendants in error, the note holders, filed in Superior Court of Cook county, on July 20, 1909, their bill to foreclose a trust deed dated February 8, 1908, conveying certain real estate situated in Cook county, Illinois. The trust deed was executed by Jacob H. Lesher and one May Charter Lesher, his wife, who were named as defendants in the foreclosure suits along with certain note holders and one Belle Scramlin, alias Belle Lesher, who the bills of complaint alleged claimed some interest in the premises in question, which interest, if any she had, was subordinate and subject to the lien of the deed of trust. To the bills of complaint said Belle Lesher filed answers wherein she denied that May Charter Lesher was the wife of Jacob H. Lesher, and asserted she, the said Belle Lesher, was the true and lawful wife and had never conveyed, quitclaimed or released her statutory right of dower, and asked that the court in its decree of sale-, if such should be entered, decree that same should be sold subject to her alleged dower right.

For the purposes of establishing the mariage of said Belle Lesher to said Jacob H. Lesher, she sought to introduce in evidence before the master in chancery, to whom said causes had been referred to take proofs and report his conclusions thereon, a certified copy of the decree of separate maintenance entered by the Circuit Court of Cook county on July 15,1911, in favor of said Belle Lesher and against said Jacob H. Lesher. On objection of complainants’ counsel said decree was excluded from the evidence on the ground that none of the complainants in these suits were parties or privies to said separate maintenance suit, and that, therefore, said decree was not competent or admissible in evidence in said causes, and the ruling on the motion was subsequently sustained by the court. •

For the express purpose of securing the admission in evidence of said decree of separate maintenance, said Belle Lesher applied to the chancellor in this case for leave to file a cross-bill which set up the proceedings in the separate maintenance suit in the case of Belle Lesher v. Jacob H. Lesher, and the rendition of a decree therein, finding inter alia that said Belle Lesher and Jacob H. Lesher were married on the 21st day of September, 1901, and that they lived and cohabited as husband and wife until August 31, 1907, when she was deserted by him, and ordering said Jacob H. Lesher to pay her alimony at the rate of $156 per year from the date of the institution of the separate maintenance suit, and that the decree be and remain a lien upon the real estate of said Jacob H. Lesher. The court denied the application for leave to file a cross-bill.

The errors assigned and argued relate to the refusal of the master, sustained by the court, to admit in evidence such certified copy of the decree of separate maintenance and the denial of Belle Lesher’s application in each case for leave to file her cross-bill. The substantial contention of plaintiffs in error in support of these assignments of error is that the decree of separate maintenance, which finds that said Belle Scramlin was married to said Jacob H. Lesher, established their marital status as against the whole world and is, therefore, binding upon parties who are not parties or privies as well as upon those who are.

In the separate maintenance suit instituted in the Circuit Court of Cook county, plaintiff in error, Belle Scramlin, under the name of Belle Lesher, alleged her marriage and cohabitation with Jacob H. Lesher and his commission of adultery with one May Charter, alias May Bangs, and that one Jacob H. Lesher was the owner of certain property, without describing it specifically and without asserting any right in respect to it and without asking that it or any part of it be assigned for alimony, but merely setting up the fact of the ownership of property for the apparent purpose of showing the amount of defendant’s property as bearing upon the amount to be allowed as alimony. The separate maintenance bill asked that said Jacob H. Lesher be ordered to pay a reasonable sum for the maintenance and support of the complainant. To that bill the defendant, Jacob H. Lesher, filed an answer denying his marriage with said Belle Scramlin, and denying any marriage relations with her and that he lived and cohabited with her or had been guilty of adultery as alleged in the bill of complaint, and alleged the fact to be that on August 7, 1907, he was lawfully joined in marriage with May Charter and lived with her and was then still living with her as her husband.

That separate maintenance cause, after various proceedings, involving a decree below in the Circuit Court, an appeal to this court (159 Ill. App. 432), a further appeal to the Supreme Court where the decree of the Circuit Court and the judgment of this court were reversed and the cause remanded to the Circuit Court (250 Ill. 382), and a hearing had in the Circuit Court, resulted in the decree sought to be introduced in evidence.

The nature and character of separate maintenance proceedings in this State are determined by our statute relating to such proceedings. Except for the statute there would be no power or right in a court of chancery to decree support and maintenance to married women, who without their fault, live apart from their husbands. “In England matrimonial causes were never under the jurisdiction of courts of equity, and in this country the jurisdiction is conferred by statute, which prescribes and limits the powers of the court.” Thomas v. Thomas, 250 Ill. 354; 9 Am. & Eng. Ency. of Law, 726.) By the language of the statute (section 22, ch. 68, Hurd’s R. S., J. & A. ft 6159), a married woman who lives separate and apart from her husband without her fault is given a remedy in equity for her reasonable support and maintenance. The sole object and purpose of the proceeding as expressed in the statute is to have determined the amount to be allowed, having reference to the condition of the parties in life, including an allowance to enable the wife to prosecute her suit, and to enforce the payment of the amount allowed by the court. No remedy is given by this statute to a woman to have her marital status declared or established. The marriage is a fact to be determined incidentally in such proceedings as a necessary qualification of the complainant to sue and obtain relief, and is merely incidental to the primary relief which is sought. It was not and could not be the ultimate or primary relief granted in the separate maintenance suit to declare a status of marriage. It was to allow an amount for a reasonable support and maintenance. This was the one purpose for which the statute authorized the suit to be brought, whether the pleadings put in issue the marriage or not. Without doubt there are proceedings provided by law to establish a status such as divorce, pedigree, citizenship, inquisitions of lunacy, etc., and these are in their nature proceedings in rem, and hence the judgment by which the status of any individual is adjudged is competent evidence as against the world to prove the status as it is declared to be by such judgment. 2 Black on Judgments, secs. 802-806. But in this State there is no proceeding, except divorce, known to the law by which a person may bring a suit to establish his marital status. The separate maintenance decree then was not and cannot be construed as establishing a status, or as a decree in rem, so as to bind all persons whether or not they were parties thereto. Gouraud v. Gouraud, 3 Redf. Surr. (N. Y.) 262; Hilton v. Snyder, 37 Utah 384; Luke v. Hill, 137 Ga. 159, 38 L. R. A. (N. S.) 559; Osborn v. State, 143 Wis. 249, 31 L. R. A. (N. S.) 966; Shores v. Hooper, 153 Mass. 228. The separate maintenance decree in Lesher v. Lesher, supra, offered in evidence does not fall within the exception to the general rule that a party is not concluded by a judgment in a prior suit or prosecution, where, from the nature or course of the proceedings, he could not avail himself of the same means of defense or of redress which are open to him in the second suit, for, as we have seen, it was not a decision directly declaring a personal status or relation of the complainant therein which, upon the ground of public policy and convenience, was binding on all persons. The decree was, therefore not admissible in evidence in the foreclosure proceedings under review as against a stranger to the decree. See cases cited above and Brigham v. Fayerweather, 140 Mass. 411.

The bill of complaint in the separate maintenance suit of Lesher v. Lesher does not raise any question of lis pendens, for the reason that the lands described in the proceedings under review were not specifically described therein, and no right or claim or relief in respect of the property or lands was asserted. Sapp v. Wightman, 103 Ill. 150.

Error is assigned upon the denial by the court of leave to plaintiff in error to file a cross-bill.

The foreclosure bills in the proceedings under review alleged that Belle Lesher claimed to have some interest in the property described therein, and that such interest, if any she had, was subordinate and subject to the lien of the deed of trust. In her answer, plaintiff in error set up her alleged marriage to Jacob H. Lesher, the maker of the trust deed, and the non-release of her alleged dower. Her marriage was, therefore, properly brought before the court by the bills of complaint and her answer, and she could have proved her marriage by any competent evidence, and the court, without a cross-bill, could have determined her dower right, if she had any, and ordered a distribution of the proceeds realized from the sale of the property according to the rights and liens of the parties. Gardner v. Cohn, 191 Ill. 553; Gouwens v. Gouwens, 222 Ill. 223. As no cross-bill was necessary it was not error to refuse leave to file it.

The decree in each case is affirmed.

Affirmed.


author: Mr. Presiding Justice Smith delivered

text:
    George F. Vietor et al., Defendants in Error, v. Jacob H. Lesher et al., (Defendants), Coplaintiffs in Error. Belle Lesher (Defendant), Plaintiff in Error.
    Gen. No. 19,570.
    (Not to be reported in full.)
    Error to the Superior Court of Cook county; the Hon. William E. Dever, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.

      Certiorari allowed by Supreme Court.
    Affirmed.
    Opinion filed June 9, 1914.
    Statement of the Case.
    This case presents the same questions upon the same state of facts as are presented in American Woolen Co. v. Lesher, p. 259, ante. The decision in that case held controlling. „
    Albert H. Fry, for plaintiff in error.
    Moses, Rosenthal & Kennedy and Whitman & Miller, for defendants in error; Walter Bachrach, of counsel.
   Mr. Presiding Justice Smith delivered

the opinion of the court.


text:
    Albert Bolla, Defendant in Error, v. M. E. Martin, Plaintiff in Error.
    Gen. No. 19,683.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. David Sullivan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Reversed.
    Opinion filed June 9, 1914.

      Abstract of the Decision.
    Brokers, § 60

      —when ’broker’s concealment of price and of real purchaser forfeits right to commissions. Where a broker authorized to sell property for $1,600, out of which he was to receive $75 for a commission, sells the same for $1,700, but reported to his principal that he had sold it for $1,600 to a person who was the broker’s wife, giving her maiden name, and the principal repudiated the sale, held that the broker was not entitled to a commission.
    Statement of the Case.
    Action by Albert Bolla against M. E. Martin to recover a commission for the alleged sale of two lots in Detroit, Michigan, owned by defendant and his wife. To reverse a judgment in favor of plaintiff defendant brings' error.
    The contract is expressed in certain letters written by the defendant in which he finally authorized Bolla to sell the two lots for $1,600, out of which the agent was to be paid a commission of $75. Bolla made a sale of the two lots to Detroit parties at $850 each, or $1,700 for the two lots, but reported to the defendant that he sold the two lots for $1,600 to Emma Pavella, without disclosing that said Emma Pavella was his wife that being her maiden name. Bolla sent to defendant $50 to apply on the contract and told defendant to hurry up the contract. Defendant, becoming suspicious repudiated the sale, sent back the $50 to the agent and Bolla thereupon commenced this action.
    N. J. Shupe, for plaintiff in error.
    Culver, Andrews & King, for defendant in error.

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

   Mr. Presiding Justice Smith

delivered the opinion of the court.


text:
    George Koutsogianis, Defendant in Error, v. George Goumas, Plaintiff in Error.
    Gen. No. 20,173.
    (Not to foe reported in full.)
    Abstract of the Decision.
    1. Municipal Coubt op Chicago, § 26

      —when bin of exceptions or statement of facts not filed in time. The record held to show that the hill of exceptions or statement of facts was not presented to the trial judge or filed with the clerk of the Municipal Court within thirty days from the entry of the judgment, where it appears that on January 17, 1914, a motion to vacate a judgment was denied, that on February 18, 1914, a hill of exceptions was presented to the trial judge and on March 7, 1914, the bill of exceptions was filed as of February 18, 1914.
    2. Municipal Court op Chicago, § 25*—when motion to file additional briefs will be denied. A cross motion by plaintiff in error to file additional briefs based on assignments of error, which can be considered only when a proper bill of exceptions or statement of facts is filed, will be denied where it is necessary on motion of defendant in error to strike the bill of exceptions or statement of facts from the files.
    Error to the Municipal Court of Chicago; the Hon. Hugh R. Stewart, Judge presiding. Heard in the Branch Appellate Court at the March term, 1914.
    Affirmed.
    Opinion filed June 9, 1914.
    Statement of the Case.
    Motion in Appellate Court made by defendant in error, George Koutsogianis, to strike from the record the bill of exceptions or statement of facts filed by George Goumas, plaintiff in error, on writ of error to review a judgment of the Municipal Court denying a motion to vacate a judgment.
    Rose, Symmes & Kirkland, for plaintiff in error; Stuart B. Krohn, of counsel.
    William W. Maxwell, for defendant in error.

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

   Mr. Presiding Justice Smith

delivered the opinion of the court.


author: Mr. Justice Barnes

text:
    Laura L. Arthur, Appellee, v. John J. Doyle et al. On Appeal of John J. Doyle, Appellant.
    Gen. No. 19,410.
    1. Forcible entry and detainer, § 116

      —when recovery on one appeal tond no tar to suit on another. Where in a forcible entry and detainer suit a bond was given by defendant on appeal from a justice’s court and another on appeal from the Circuit Court, held that an action to recover on the second bond was not barred by a recovery on the first one, where the action on the first bond did not seek to recover damages for the use and occupation of the premises after the date of the appeal to the Circuit Court.
    2. Action, § 55*—what does not constitute splitting of cause of action. Suits on different bonds which are separate contractual obligations and cumulative securities, held not to constitute splitting of a cause of action.
    Appeal from the Circuit Court of Cook county; the Hon. Adelor J. Petit, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1913.

      Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed June 9, 1914.
    J. Ambrose Gearon, for appellant.
    Lavern W. Thompson, for appellee.

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

   Mr. Justice Barnes

delivered the opinion of the court.

In a case of forcible entry and detainer, judgment was rendered in favor of appellee against appellant before a justice of the peace, also on appeal to the Circuit Court, and again on further appeal to this court. The bond given on appeal from the justice’s court was in the penal sum of $1,000, with one Peter Doyle as surety, and that given on appeal from the Circuit Court was for $1,500 with said Peter Doyle and one William H. Griffin as sureties. This suit is brought upon the latter bond. For brevity we shall refer to these two bonds as the first and second bond.respectively.

Subsequently, appellee recovered judgment in the Municipal Court of Chicag'o on the first bond against principal and surety for $1,000 debt and $289.52 damages (which were duly paid), and later began this suit and recovered judgment on the second bond against appellant and the two sureties thereon for $1,500 debt and $1,050 damages, from which appeal is prosecuted by appellant Doyle only. The premises were withheld by appellant from November 1, 1905, to September 30, 1906, when they were surrendered,—a period of eleven months.

Appellant pleaded recovery of judgment on the first bond and satisfaction thereof, and that the condition of the two bonds was the same, namely, to pay all rent due and to become due before the final determination-of the suit and all damages and loss plaintiff might sustain by reason of the withholding of the -premises in controversy, etc.

To the plea appellee filed her replication to the effect that in the suit on the first bond no claim was made in the pleadings or otherwise for damages for the use and occupation of said premises accruing after January 8, 1906 (the date of appeal to the Circuit Court), and no proof thereof was introduced. A demurrer to the plea and one to the replication were overruled. Defendants elected to stand by their demurrer to the replication. In the suit at bar the declaration seeks to recover damages suffered and sustained for withholding the premises after January 8, 1906.

Appellant contends that the judgment on the first bond conclusively settled the question as to the amount of damages appellee sustained in withholding the premises and was an adjudication of that fact, and operated as an estoppel. The theory upon which he urges the doctrine is that in the first suit appellee could have obtained an assessment for all damages that accrued during the entire period the premises were withheld. This is probably true. The entire damage had been sustained before either suit was brought, and being cumulative securities plaintiff could have brought suit on' either or both bonds for the entire damage so sustained. But this fact does not furnish the real test. “The true test is identity of issues.” 23 Cyc. 1300.

It was said in Cromwell v. County of Sac. 94 U. S. 351, that:

“Where the second action between the same parties is upon a different claim or demand, the judgment in the prior action operates as an estoppel only as to those matters in issue or points controverted, upon the determination of which the finding or verdict was rendered. In all cases, therefore, where it is sought to apply the estoppel of a judgment rendered upon one cause of action to matters arising in a suit upon a different cause of action, the inquiry must always be as to the point or question actually litigated and determined in the original action, not what might have been thus litigated and determined. Only upon such matters is the judgment conclusive in another action.” See also 23 Cyc. 1300 for other authorities.

It is pleaded by the replication in this suit, and admitted by demurrer thereto, that there was no attempt to recover damages in the former suit for withholding the premises after January 8, 1906. By admission, therefore, the .questions controverted in the two suits were entirely different, one being for damages prior and the other for damages subsequent to January 8, 1906. The presence of an additional party to this suit does not, in our opinion, affect appellant’s right to plead an estoppel, all parties to the former suit being parties to this, but the difference in the issues of the two suits does.

Because the suit on the first bond purports to have been for damages accruing during the first three and one-quarter months of said period, and the suit on the second bond for damages accruing during the remainder of the period, it is claimed that appellee split her cause of action. We do not so regard it. The suits were on different bonds which were separate contractual obligations and cumulative securities. This is not a case of two suits on the samé bond, or for the same cause of action.

At the trial Doyle offered in evidence the record of the suit brought upon the first bond and offered to prove payment of the damages assessed therein, viz., $289.52, but objections to the offers were sustained, and properly, because such record did not support appellant’s plea that the rent and damages recovered in the former suit are the same as the rent and damages sought to be recovered in the suit at bar, and the burden was on appellant to sustain such defense.

Besides, the record of the former suit offered in evidence contains nothing from which the precise matter there in controversy can be definitely determined. All there is in said record pointing to the subject of controversy is a bill of particulars claiming rental value of the premises for three and one-quarter months’ rent and damages thereto and an attached copy of the appeal bond sued on. Otherwise the' record offered throws no light upon the subject of controversy as it does not contain the evidence heard in the case.

The only real question left for the consideration of the jury, therefore, was the amount of damages. As to that it is claimed there was a recovery in the first suit for rental value for three and one-quarter months, and in this suit for eight and three-quarters months, thus allowing recovery for twelve instead of eleven months’ detention. We find nothing in the evidence or instructions to support this contention. The jury were given to understand by the instructions that the damages sought were for detention after January 8, 1906. and not for any specific number of months.

The instructions were material only so far as they relate to damages. We do not think they were misleading, at least so as to justify a new trial, for the evidence was ample to support -the judgment, which will be affirmed.

Affirmed.


text:
    John F. Heuer, Plaintiff in Error, v. William M. Webster, Defendant in Error.
    Gen. No. 19,474.
    1. Easements, § 47

      —when extrinsic evidence inadmissible to determine character of use. Where a deed expressly grants the use of a strip of land as a common right of way, without any words of limitation or restriction in the deed as to the character of its use, resort can not be had to extrinsic evidence to determine the character of its use, where the language is unambiguous.
    2. Easements, § 49*—when grant of right of way includes vehicle passage. A deed granting the use of a strip of land between lots for a common right of way, held to grant the right to vehicle passage where the strip is sufficiently wide for the passage of ordinary vehicles and there are no words of limitation or restriction in the deed as to the character of its use.
    3. Easements, § 53*—right of co-owner to pave right of way. Where a deed grants, for the common use of the parties, a strip of land between lots sufficiently wide for vehicle passage, either party may at his own expense pave the same, if in so doing there is no unreasonable interference with such co-owner’s equal rights.
    Error to the Municipal Court of Chicago; the Hon. John J. Rooney, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Reversed and remanded.
    Opinion filed June 9, 1914.
    Mayer, Meyer, Austrian & Platt, for plaintiff in error.
    Dudley Taylor, for defendant in error.

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

   Mr. Justice Barnes

delivered the opinion of the court.

By this writ of error it is sought to reverse a judgment for costs rendered on a directed verdict in favor of defendant in error, Webster, the defendant below. Heuer, the plaintiff, brought suit to recover damages resulting from Webster’s tearing up a cement driveway laid by Heuer, at his own expense, on a strip of ground ten feet wide, one-half thereof being on Webster’s lot and the other half on Heuer’s, over which they had, by a deed hereinafter referred to, a common right of way.

An apartment building stands on each lot and each is flush with the strip, Webster’s with the north and Heuer’s with the south boundary thereof. The lots are on the west side of Sheridan road and the building line is fifty-five feet therefrom. Between them and said road is a parkway under the jurisdiction of the Lincoln Park Board. Back of the lots is an alley connecting with streets north and south of said lots, running west from Sheridan road. The cement pavement was laid over the entire width of the strip from the alley to the sidewalk in front of the lots, and, at the time of the trial, it had been extended across the parkway to Sheridan road. A tree in the parkway in the line of the strip extending to the road, necessitated a curve in the driveway, which was made on the parkway in front of plaintiff’s lots. The locality is that of a residential district to which the improvements and adornments of a parkway and a boulevard lend attraction. Before the pavement was laid, the strip in question was part of a grass plot extending south of defendant’s building over the adjoining vacant lot. No walk or driveway had been constructed thereon until the cement driveway in question was laid in May, 1910, and, in fact, there was no user of the strip of any kind prior to the erection of plaintiff’s building. When the pavement was partially constructed, Webster tore up a portion thereof on his side of the strip. Heuer relaid it, afterwards finishing it to Sheridan road; Defendant deems a consideration of most of these facts necessary to a proper construction of the deed granting the easement to the strip in question.

The covenant and agreement as to said strip, in the language of the deed, is that it

“shall be and remain an open court for light, air. access and right of way, for the common benefit of the parties hereto, their heirs and assigns, and of the owners of any building or buildings now or which may hereafter be erected on said lots nine (9) and ten (10) or either of them, said strip of ground lying and being one-half thereof on each side of the north line of said south ten (10) feet of said lot nine (9).”

Plaintiff contends that the right of way so given is for passage for vehicles as well as pedestrains, and defendant contends that the deed must be construed in the light of the facts existing at the time of its execution from which, he contends, a contrary purpose and intention must be inferred.

The first matter for determination, therefore, is the construction to be given to the terms of the covenant, as aforesaid, and whether resort to such extraneous facts is necessary to that end. Several cases, involving the construction of instruments conveying easement rights, are called to our attention, in which the court in construing the particular grant before it referred to the situation of the parties and the nature and condition of the subject-matter of the grant at the time of the execution of the instrument. It would render this opinion unduly long to make a critical analysis of said cases in order to distinguish them from the one at bar. Some involve an easement of one nature and some of another; some dominant and servient tenements, some “ways óf necessity,” and others, as here, where the parties had equal and common rights in the reserved way. In several, the language of the grant was so ambiguous as to require resort to extrinsic evidence to illumine the intent of the parties and reach a proper construction. But where the language is plain and free from ambiguity and its meaning readily ascertained from the context of the instrument itself, there is no more necessity for resort to extrinsic evidence to gather its construction than there is in any other kind of written instrument. In Horner v. Keene, 177 Ill. 390, it was said, referring to Sheppard’s Touchstone, 88, that: “Where an easement is granted or reserved in express terms by deed, the question then ordinarily is, what is the proper construction of the language of the deed?” Here the language makes an express grant in terms that are clear and unambiguous. A “right of way” is designated without limitation or reservation as to its character. Like the grant referred to in the Horner case, supra, it does not “limit the right of way to foot passage,” to which defendant urges it was intended to be restricted. A similar contention was made in the case of Shreve v. Mathis, 63 N. J. Eq. 170. The Court said:

“The agreement for the way contains no specifications ' of any particular manner in which the alley should be used. It imposes no limitation on the extent of the use. It is declared that it shall be a free and unobstructed right of way over a private alley. Any use consistent with the use of a way is within the agreement. A footway, a wagonway, a passage for horses or other animals are all permissible uses of a way.”

In Randall v. Grant, 210 Mass. 302, where the deed reserved “a right of way through the premises to land in the rear,” the Court said what is applicable here:

‘ ‘ This is not the case of a right of way by prescription, where the extent of the right is measured by the ordinary use which established it. The rights of these defendants must be determined by the terms of the reservation and grant in the deeds. The language used in conveying the right of way is of the most general character, without limitation or restriction.” See also Arnold v. Fee, 148 N. Y. 214; Gillespie v. Weinberg, 148 N. Y. 238; Central Christian Church v. Lennon, 59 Wash. 425.

.When a grant cannot be construed by the language of the deed, resort may unquestionably be had to extrinsic evidence to determine it (Rowell v. Doggett, 143 Mass. 483), and there are many cases where such evidence is resorted to because of the uncertainty of the nature or extent of the easement granted, but when the words of a deed are not ambiguous and are explainable by the context, resort to extrinsic evidence to ascertain the intent and purposes of the parties thereto is unnecessary. Inasmuch as the strip in question is sufficiently wide for the use of ordinary vehicles and teams and there are no words of limitation or restriction in the deed as to the character of its use as a right of way, we see no difficulty, without resort to the extraneous facts referred to, in construing it to include the right to vehicle as well as foot passage.

Nor does the word “court” exclude the idea of the use of vehicles. On the contrary, that term is frequently applied to open areas formed by construction of buildings and connected with their use, in which vehicles are commonly used.

But were resort had to the extraneous matters above stated, we find nothing in them that warrants the construction contended for by defendant in error. There was no “user” of the strip in question at or prior to the time of the execution of the deed and-, as by its express language the future erection of a building on plaintiff’s vacant lot and the consequent common use of the strip under entirely different conditions were contemplated, it is reasonable to suppose that the parties had in view the ordinary and reasonable uses to which a common passageway of such width between buildings might be put. The fact that there was an alley in the rear of the lots or a parkway in front (which plaintiff presumably had the right to cross) has, in our opinion, no legitimate tendency to disclose intent as to the future use of the way.

But it is urged that plaintiff had no right to lay said cement driveway without defendant’s consent. The record presents no evidence that in so doing the grade was changed or the surface altered in any such way as to produce special inconvenience to defendant. Nothing is complained of, except what is naturally incident to its rightful use, such as noise from passing vehicles and a less artistic appearance. It cannot be seriously questioned that such an easement carries with it the right to enter upon any part of the way and improve it in a manner to render it available for its contemplated nse, if in so doing there is no unreasonable interference with the co-owner’s equal rights, of which there is no proof in this record. In Rotch v. Livingston, 91 Me. 461, where, as here, each co-owner was, as there stated, “at once a land-owner, and an easement owner,” the Court said:

“Each owner can (at least at his own expense as is proposed in this case) use the entire width of the way and can fit it all for use at his reasonable discretion so long as he does not unreasonably impede any other co-owner in his use.”

In its opinion the Court cites several cases, recognizing the same principle. Other cases that might be cited are Atkins v. Bordman, 2 Metc. (43 Mass.) 457, 467; Kaatz v. Curtis, 215 Mass. 311; Newcomer v. Coulsen, L. R. 5 Ch. Div. 133; and Hotchkiss v. Young, 42 Ore. 446.

No special complaint is made of the character of the pavement, which is that customarily used, and no objection can reasonably be made to the right to have this way paved. In Appleton v. Fullerton, 1 Gray (67 Mass.) 186, where the reservation of the right of way was in general terms, the Court said:

“If it had before been a mere surface of earth, it might be improved by macadamizing, paving or planking, being limited to the use of the same right, in a manner more convenient and beneficial for those having the common right. ”

In Neivcomer v. Coulsen, supra, it was said “that the right of way is one including the right of improving, from time to time, according to the improvements of the age.”

The distinctions sought to be made by defendant as to the facts in the above cited cases do not, in our opinion, affect the principles herein enunciated, or their application to the case at bar. They seem to be well settled, and we think the court erred in directing a verdict for defendant. The judgment will be reversed and the cause remanded for a new trial.

Reversed and remanded.


text:
    George A. Mugler, Executor, Appellant, v. James H. Hirsch, trading as James H. Hirsch & Company, Appellee.
    Gen. No. 19,578.
    (Not to he reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Frederick L. Fake, Jr., Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Reversed with judgment here and finding of fact.
    Opinion filed June 9, 1914.
    Statement of the Case.
    Action by George A. Mugler, as executor of the last will and testament of Marie Hirsch, deceased, against James H. Hirsch, doing business as James H. Hirsch & Company, to recover on a promissory note for $1,500 payable to the order of Jacob L. Hirsch three years from April 26, 1909. Jacob L. Hirsch died in 1909, leaving Marie Hirsch as his sole heir, and among his assets was the promissory note in question. In April, 1911, Marie Hirsch also died, and left among her assets said note and her executor brings this suit thereon. Defendant filed an affidavit of merits claiming that there was nothing due “in excess of $516,” whereupon judgment was entered for that sum, and the cause proceeded to trial without a jury as to the remainder alleged to he due. Proof having been received of payment of the balance due, the court found in favor of defendant and rendered judgment against plaintiff for costs. To reverse the judgment plaintiff appeals.

      Abstract of the Decision.
    1. Witnesses, § 95

      —when party incompetent in suit by execu- . tor. In an action by the executor of an heir on a promissory note executed by the defendant and made payable to the ancestor, where the defendant, over objection of plaintiff as to his competency, was permitted to testify that he had made payment to the ancestor in different instalments from time to time prior to his death, held that defendant came within the express language of section 2, ch. 51, R. S., J. & A. jf 5519, inhibiting a party to a civil action from testifying in his own behalf, where an adverse party sues as an executor of a deceased party.
    2. Payment, § 28*—when testimony of bookkeeper inadmissible to prove. In an action on a promissory note, testimony of defendant’s bookkeeper that she saw payments made and made entries thereof in defendant’s books at his direction, but she did not know for what purpose the payments were made, held improperly admitted.
    3. Judgment, § 428*—when judgment for sum admitted to be due not res adjudicata as to matters reserved for hearing. In an action on "a promissory note, where judgment was entered for plaintiff for a sum admitted in defendant’s affidavit to be due, and the cause proceeded to trial as to the remainder, held that the judgment for the amount admitted to be due was not res adjudicata on the question of the balance claimed to be due.
    George F. Borman, for appellant.
    Arnd & Arnd, for appellee; Frederick Arnd, of counsel.

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

   Mr. Justice Barnes

delivered the opinion of the court.


text:
    Meyer Norden, Appellee, v. Remington Typewriter Company, Appellant.
    Gen. No. 19,634.
    (Not to foe reported in full.)
    Appeal from the County Court of Cook county; the Hon. John E. Hillskotter, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Reversed and remanded.
    Opinion filed June 9, 1914.
    Rehearing denied June 23, 1914.
    Statement of the Case.
    Action by Meyer Norden against Remington Typewriter Company, a corporation, to recover commissions on typewriters delivered by defendant to a purchaser after plaintiff left the employ of defendant. To reverse a judgment in favor of plaintiff, defendant appeals.
    Plaintiff was employed as a salesman of defendant to sell typewriting machines. The contract was oral but was upon express terms as to weekly salary and amount of commissions on each machine sold. On August 15, 1911, he secured a contract with Armour & Company to purchase of defendant two hundred typewriters of the style known as the Remington, and such additional number as it might take before August 15, 1913, deliveries thereof to be made from time to time. In December, 1911, plaintiff left defendant’s employ. In 1912, another agent of defendant negotiated an arrangement with Armour & Company to take other styles of typewriters called the Monarch and Smith Premier and deliveries of a certain number were made in the summer of 1912. This suit involves the right of plaintiff to commissions on Monarch and Smith Premier machines so delivered. Plaintiff contends (1) that he is entitled to commissions on all typewriters taken pursuant to the contract of August 15, 1911; and (2) that after he left defendant’s employ there was a modification of the contract, without his consent, whereby the Monarch and Smith Premier machines were substituted for the Remington, and that he is entitled to commissions on those substituted.
    Abstract of the Decision.
    1. Master and servant, § 82*—when evidence of terms of contract of employment admissible under general issue. In an action by a typewriter salesman to recover commissions on sales of machines delivered to a purchaser after he had left the employ of defendant, exclusion of testimony of the manager of defendant that plaintiff’s oral contract of employment did not entitle him to commissions on machines delivered after he left its employ, on the theory that defendant was seeking to establish a forfeiture as an affirmative defense and that it could not be shown under the general issue, held, error.
    2. Appeal and error, § 592*—necessity of motion for new trial to preserve rulings for review. Error in striking out the testimony of a witness is preserved for review by exceptions taken to the ruling; motion for new trial is unnecessary.
    Clark, J., took no part in this decision.
    Ambrose Risdon, E. L. Shaner and William H. Holly, for appellant; Mills & Holly, of counsel.
    G. J. Norden, for appellee.
   Mr. Justice Barnes

delivered the opinion of the court.


text:
    Chris Dahlgard, Plaintiff in Error, v. Florida Development Corporation, Defendant in Error.
    Gen. No. 19,654.
    1. Brokers, § 46

      —when not entitled to commissions on ultra vires transaction. Where a real estate agent enters into a contract with a Florida corporation to sell its Florida lands and negotiates a trade of such lands for lands in Illinois, the agent is not entitled to commissions for the reason that the transaction is ultra vires and void.

      2. Corporations, § 404

      —right to engage in "business of buying and selling lands. A corporation cannot under our laws engage in the business of buying and selling lands in this State, and when it undertakes to do so it can neither receive nor give title thereto.
    Clark, J., took no part in the consideration of this case.
    Error to the Municipal Court of Chicago; the Hon. Joseph P. Rafferty, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed June 9, 1914.
    Ela, Grover & March, for plaintiff in error.
    William J. Stapleton, for defendant in error.

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

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

   Mr. Justice Barnes

delivered the opinion of the court.

Defendant in error (defendant below), a corporation organized under the laws of Florida “for the purpose of buying’, selling and dealing in land and equities therein in Florida and elsewhere,” entered into a contract with plaintiff in error (plaintiff below) for the sale of its Florida lands. Pursuant thereto plaintiff negotiated an agreement with one Luhtala and one Hakala for the exchange of one hundred acres of Florida land for certain lots in DeKalb, Illinois, and subsequently effected a sale to them of ten additional acres of Florida land. The court (before which the case was tried without a jury) found that plaintiff was entitled to commissions for sale of the ten acres but not for the one hundred acres. Only the right to commissions on the latter transaction is here involved.

By the agreement between the parties hereto, plaintiff was to sell for defendant the DeKalb lots so taken in exchange and retain his commissions from the proceeds of the sale. Deeds for the respective properties were executed and delivered. There being some delay incident to the failure of defendant to furnish said purchasers’ abstracts of title to the Florida lands, they insisted upon receiving a reconveyance of their DeKalb lots, and in turn reconveyed the Florida lands to defendant.

Defendant filed its affidavit of merits denying plaintiff’s right to commissions on the transaction and claiming that the trade of the properties was illegal and void.

Some point is raised as to the legality of the court’s action in vacating an order by which an amended affidavit of merits was stricken from the files. We deem it unnecessary to consider it, for the questions here involved would arise upon the original affidavit of merits, regardless of the legality of said action.

It is conceded, and beyond question, that defendant being a corporation could not under our law engage in the business of buying and selling lands in the State of Illinois, and that when it undertook to do so it could neither receive nor give title thereto, and- such has been the settled law in this State since the decision in the cases of Carroll v. City of East St. Louis, 67 Ill. 568. Although the statutes regulating the power of corporations as to holding and dealing in real estate have since been enacted, they have not changed the policy of the law in this respect. Under the doctrine there announced and approved in later cases, defendant received no title to the DeKalb lots, and, therefore, no consideration for the Florida lands. Had it made no deed to the Florida lands the contract could not have been enforced against it. The transaction being ultra vires and void, and therefore not enforcible, the broker could not collect commissions, for, to entitle him so to do, the contract negotiated must be one that is valid, binding and enforcible. As stated in Wilson v. Mason, 158 Ill. 304: “An agreement by a real estate broker to procure a purchaser not only implies that the purchaser shall be one able to comply,but that the seller and the purchaser must be bound to each other in a valid contract.” Authorities cited by plaintiff in error where corporations, though exceeding their powers, have received a benefit, or where it is a question of exceeding authorized power, which can be questioned by the State only, are not in point. Here no benefits were retained, the powers exercised were not authorized, but ultra vires, and the DeKalb lots were not taken for its corporate purposes. The other assignments of error raise no points that can affect this conclusion, as in no event could there be a recovery for commissions on such transaction. The judgment is affirmed.

Affirmed.

Mr. Justice Clark took no part in the consideration of this case.


author: Mr. Justice Clark

text:
    Marcella Wistafka by Elizabeth Wistafka, Appellee, v. Peter M. Grotowski, Appellant.
    Gen. No. 19,286.
    (Not to he reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Charles A. McDonald, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1913.
    Reversed and remanded.
    Opinion filed June 9, 1914.
    Rehearing denied June 23, 1914.
    Statement of the Case.
    Action by Marcella Wistafka, a minor, by Elizabeth Wistafka, against Peter M. Grotowski to recover for a dog bite. From a judgment entered on a verdict for plaintiff for five hundred dollars, defendant appeals.
    P. R. Boylan, for appellant.
    Julius Limbach, for appellee.

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

   Mr. Justice Clark

delivered the opinion of the court.

Abstract of the Decision.

Animals, § 43 —when evidence insufficient to sustain recovery for dog hite. In an action to recover for injuries sustained by being bitten by a dog claimed to have been owned by defendant, a verdict for plaintiff, held not sustained by the evidence, where the defendant testified that no one ever complained to him that the dog was cross, and plaintiff’s witness testified that a year before plaintiff was bitten she saw the dog bite a hoy hut that she never told anybody except the attorney for plaintiff and her mother, and on cross-examination admitted she could not swear it was defendant’s dog.