author:
      Mr. Justice- Smith
      Mr, Justice Gridley,

text:
    In the Matter of the Estate of Charles T. Yerkes, Deceased. Louis S. Owsley, Executor, Plaintiff in Error, v. Central Trust Company, of Illinois, Defendant in Error.
    Gen. No. 19,528.
    1. Contempt, § 18

      —when custodian not liable for delivery of bond coupons to debtor without authority from court. Where a trust company was appointed by the Probate Court as custodian of certain bonds and securities belonging to an estate, and the order of the court provided that the bonds and securities deposited with the company should not be withdrawn from its custody except by an order of the court, held that the company could not be fined for contempt of court because it did not obtain authority from the court to deliver bond coupons to the debtor when it received interest on the bonds, where it appeared that the executor of the estate and the company construed the order as not requiring any authority for delivery of a paid security and that there had previously been numerous like deliveries without an order of the court and with the consent and acquiescence of the parties.
    2. Contempt, § 74*—when appeal lies to the Circuit Court. An appeal from an order of the Probate Court adjudging a custodian of bonds and securities of an estate guilty of contempt, imposing a fine and directing an execution to issue therefor in favor of the executor if not paid within a certain time, properly lies to the Circuit Court.
    Gridley, J., not being a member of this court when this- case was decided, took no part in its consideration.
    Error to the Circuit Court of Cook County; the Hon. H. Sterling Pomeroy, J., presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed October 6, 1914.
    Miller, Starr, Packard & Peckham, for plaintiff in error; W. Orison Underwood and Merritt Starr, of counsel.
    Pam & Hurd and John Barton Payne, for defendant in error.

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

   Mr. Justice- Smith

delivered the opinion of the court.

This writ of error is prosecuted to reverse the decree of the Circuit Court, finding the issues for the respondent and dismissing the petition of Louis S. Owsley, as executor of the estate of Charles T. Yerkes, deceased, for contempt against the respondent, Central Trust Company of Illinois.

The case was pending in the Circuit Court on appeal from an order entered on the petition and answer thereto, in the Probate Court of Cook county, fining the Trust Company for contempt in the amount of $200, and directing that sum to be paid to Louis S. Owsley, as executor, and ordering an execution to issue therefor in favor of Owsley, executor, against the Trust Company if the fine was not paid within ten days.

From the petition, answer and evidence in the record, it appears that the Central Trust Company of Illinois was, by order of the Probate Court of Cook county, Illinois, appointed custodian of certain securities and funds of the estate of Charles T. Yerkes, deceased. The order of appointment is as follows:

“It is ordered that Louis S. Owsley, to whom letters testamentary have this day been issued under the last will and testament of Charles T. Yerkes, deceased, be and is hereby directed to deposit in the Central Trust Company of Illinois, all stocks, bonds and other securities coming into his possession as such executor; also all cash that may come into his possession as executor as aforesaid.
It is further ordered that no such bonds, stocks or securities so deposited with the Central Trust Company of Illinois shall be drawn therefrom except by an order of this court and that no such cash so to be deposited shall be drawn from said Central Trust Company of Illinois except upon the order of this court or upon vouchers to be approved by said Central Trust Company of Illinois.”

The Trust Company had in its possession under this order $400,000 par value of bonds of the Inter Ocean Newspaper Company, secured by a mortgage in which the Trust Company was trustee, together with the coupons for interest thereon. The coupons, which matured on these bonds on July 1, 1909, were in the possession of the Trust Company; and, pursuant to verbal instructions from Louis S. Owsley, executor of the estate, the Trust Company presented these coupons, on July 1, 1910, and collected from the Inter Ocean Newspaper Company the amount due thereon, $10,000, and delivered up the coupons and credited the executor’s account with the payment, and no order of • the Probate Court was entered authorizing the delivery of the coupons.

On March 27, 1911, the Trust Company, upon the request of the executor, presented for payment three sets of coupons (which are the coupons involved in this controversy) to the Inter Ocean Company for payment, and payment was refused. No order of the Probate Court authorizing such presentation was ever entered. On November 25, 1911, the executor made a demand upon the Trust Company, as trustee under the mortgage securing the bonds to which these coupons appertained, to declare the principal of the bonds due. This was regarded by Dawes, president of the Trust Company, as a violation of the agreement then existing between the executor, Hinman and the Inter Ocean Company, and of the order of the Probate Court entered with respect to such agreement; but he stated that he would perform his duty in the premises, whatever it might be, stating, however, that he proposed to take advice as to just what that duty was. He thereupon notified Hinman, president of the Inter Ocean Company, of the demand. Three days later, on November 28, 1911, the Inter Ocean Company tendered payment to the Trust Company of these coupons, which it accepted and delivered to the Inter Ocean Company the coupons in question.

The situation existing at this time was that George W. Hinman, president of1 the Inter Ocean Company, who already owned most of its stock, and had sold to the public $200,000 par value of its bonds, a part of the above mentioned issue, had made an offer to purchase the bonds held by the executor and deposited with the Trust Company under an agreement for that purpose, $20,000 in cash. The executor had reported the offer to the Probate Court, which, on November 25, 1911, entered an order directing the sale of the bonds to Hinman in accordance with his offer unless by a day fixed the executor should receive a better bid, and further directing the executor to advertise for. bids, which were to be returned into open court on the day so fixed. Immediately after the entry of this order, demand was made by Owsley on the Central Trust Company, as trustee, to declare the principal of the bonds due.

The executor, contending that the action of the Trust Company in delivering up the coupons was in violation of the order appointing it as custodian, above quoted, filed a petition seeking to have it punished for contempt of court. To this petition the Central Trust Company filed an answer. The Probate Court entered an order December 30, 1911, which required the custodian to deliver up the coupons on January 8, 1912. This order was treated by all parties, in effect, as a rule to show cause, and the Trust Company filed its answer on January 8, 1912, setting up the circumstances under which it delivered the coupons, and contending that no order was required for delivery of a paid obligation, and that in the past numerous like deliveries had been made without any order of court, and with the consent and acquiescence of the executor. The Probate Court thereupon entered the above order, finding the Central Trust Company guilty of contempt. The order was based upon the original petition for contempt and the answer thereto, and also recited the order of December 30, 1911, and the answer to such order. From that order an appeal was prayed to the Circuit Court and the case was there tried de novo.

It appeared on the trial in the Circuit Court that a large number of coupons and similar obligations had been collected by the Trust Company from time to time, and the coupons surrendered without any order of the Probate Court in the premises, and it was admitted on the hearing that in each instance the executor, Owsley, had directed the Trust Company to collect the coupons and deliver the same when paid. It also appeared that the Trust Company, at the request of the executor, had sold $100,000 par value of bonds held by the Trust Company as custodian; that no order of the Probate Court was ever entered authorizing such sale or the delivery of the bonds sold, and that such action had been reported to the Probate Court more than two years before and no action had ever been taken by the Probate Court in anyway objecting thereto.

While the amount of collections made by the estate appear to have been large, most of the assets were held as collateral security to obligations of the estate, and, of course, were not in possession of the custodian. The executor admitted that he could not recall a single case where an obligation was paid any order of court was ever procured for the delivery of the paid obligation.

It further appears that the executor had filed a complete statement of his receipts and expenditure's from April 30, 1910, down to and including November 2, 1910, and that he had previously filed accounts covering receipts and expenditures prior to that time. These accounts showed the various items which were collected and delivered without any order of court, in-eluding the $10,000 collected July 1, 1910, on the Inter Ocean Company coupons. There is no evidence in the record tending to show that the slightest objection was ever made by the court or the executor to delivery of these coupons without an order of the Probate Court. Prior to the trial of the case in the Circuit Court, the executor made a motion to dismiss the appeal upon the ground that the matter could not be reviewed by appeal in the Circuit Court on a trial de novo, but that the ease should have been taken by a writ of error to the Appellate Court, or to the Supreme Court of the State. We hold that, under the statute on this subject, the appeal was properly taken to the Circuit Court and the court did not err in denying the motion to dismiss the appeal. The statute (paragraph 3269, Jones & Addington’s Statutes) is as follows:

“Appeals may be taken from the final orders, judgments and decrees of the probate courts to the circuit courts of their respective counties in all matters except in proceedings on the application of executors, administrators, guardians and conservators for the sale of real estate, upon the appellant giving bond and security in such amount and upon such condition as the court shall approve, and upon such appeal the case shall be tried de novo.”

This statute gives the right of appeal in all matters other than the specifically excepted cases, and it must be conceded that the present case is not one of the excepted cases. See also Randolph v. People, 130 Ill. 533. The order here was, as in the Randolph case, an order to pay a specific sum of money within ten days,- in default whereof execution should issue. An appeal was taken in that case to the Circuit Court which dismissed the appeal upon the ground that it did not lie in such a case. The Supreme Court held this was error; that the appeal was properly taken to the Circuit Court. The distinction between civil and criminal contempt in this State is elaborately discussed in People v. Diedrich, 141 Ill. 665; O’Brien v. People, 216 Ill. 354; Franklin Union No. 4 v. People, 220 Ill. 355; Flannery v. People, 225 Ill. 62; Hake v. People, 230 Ill. 174. Under the rulings in those cases, the proceeding in the case under review was a civil contempt, and it seems to be clear from the above cited authorities that the course of procedure, both in the lower courts and in all reviewing courts, is in accordance with that pursued in any other civil proceeding, and the appeal was properly taken to the Circuit Court. The trial in the Circuit Court is, by statute, a trial de novo. The Circuit Court does not sit in review of the Probate Court. The record shows, we think, that the executor and the custodian at all times construed the order appointing the custodian as not requiring any authority from the court to receive payment of a security and to deliver the security paid. The court adopted the same construction for the various payments so made and reported to the court in the executor’s accounts and the court, at no time, dissented therefrom. Moreover, in the only case in which the attention of the court was called to the fact that securities were delivered without an order of the court, which was a sale and not a payment, no action whatever was taken by the court either against the executor or the custodian. Parties and courts are bound by the construction which they place upon their orders, and after the party complained of has acted in reliance upon that construction, they cannot, at least in a summary contempt proceeding, repudiate such construction. We think the order should not be construed as preventing acts which would not injure the estate but would benefit it. The coupons were delivered by the custodian in accepting payment thereof, which the debt- or had a right to make. The coupons being in the possession of the respondent and the respondent having demanded payment thereof, the debtor, for his own protection, had the right to pay them. He had, at the same time, the corresponding right to demand the coupons when they were paid. The executor having placed the construction on the order, which the record shows he did, and the parties having acted upon such construction, the executor should not now he heard to contend that there is a different construction and invoke the extraordinary remedy of contempt proceedings against the custodian.

The trial court held, and we think correctly, that the order appointing the custodian was modified by a tacit agreement between the executor and the custodian, particularly in this case where the coupons were delivered to the debtor on the payment thereof by it in the ordinary course of business in handling such obligations, and where no loss or injury resulted to the estate. The practice pursued in numerous other cases by the executor and the custodian indicates clearly that although there was no written agreement on the subject, there was a tacit agreement between the executor and the custodian that no order of court need be required to deliver an obligation when it was paid. The executor seeks to have the custodian punished, not for the violation of a court decree, but for the violation of a decree as modified by what was virtually a private agreement between himself and the custodian.

In Encyclopaedia Britannica Co. v. Werner Co., 172 Fed. 1012, an injunction was issued, but there were agreements entered into between the parties materially modifying the provisions of the injunction, and the Britannica Company, as the court held, virtually asked the court to punish the Werner Company and its officers, not for their disobedience of the decree as it was pronounced by the court, but for their failure to observe the decree in the manner privately agreed on by the parties to the suit, and held that the jurisdiction to impose a fine on a violator of a decree of injunction should not he exercised in such a case. See also Holbrook v. Ford, 153 Ill. 633.

As to the right of the Inter Ocean Company to pay or tender payment of the disputed coupons after demand made by the trustee, we entertain no doubt. In Central Trust Co. of Illinois v. Owsley, No. 19,527, ante, p. 505, we have held, on the same state of facts, in onr opinion filed at this term, that the Inter Ocean Company had the right to tender payment and to pay the coupons to the Trust Company. We will not enter into a discussion of that question further than to say that when the coupons were first presented for payment, the executor clearly constituted the Trust Company his agent to receive payment. It was also the agent which received payment of the next preceding set of coupons. The executor was not in the State on November 28, 1911, and the Inter Ocean Company naturally assumed, and had a right to assume, that the Trust Company, which had the actual possession of the coupons, was the agent of the executor for the purpose of receiving payment of such coupons; and the Trust Company naturally, under the circumstances, assumed that it had authority to receive the money and deliver the coupons upon which it had demanded payment at the request of the executor and on his behalf. If the payment made to the Trust Company was an authorized payment, it is clear the delivery of the coupons was a wholly innocuous act, for, being paid, the papers were valueless, except as evidence of payment. If the payment of the money to the trustee was not a payment of the coupons, it was in equity a good tender, and until withdrawn it remained a good tender, thus cutting off any power or right of proceedings on the part of the executor or trustee based on the maturity of the coupons and nonpayment thereof. Whatever wrong was done and whatever injury was caused, it was not done or caused by the delivery of the coupons (which is the only thing claimed to be contemptuous), but by the receipt of payment and the refusal to mature the .principal of the bonds, neither of which could under any circumstances constitute contempt.

The decree of the Circuit Court is affirmed.

Affirmed.

Mr, Justice Gridley,

not being a member of this court when this case was decided, took no part in its consideration.


source: Caselaw Access Project

author: Mr. Justice Smith

license: Public Domain

text:
    Citizens Bank of Tifton, Appellant, v. Adam Schillo Lumber Company, Appellee.
    Gen. No. 19,741.
    1. Sales, § 320

      —when buyer not entitled to recoup for freight paid. In an action to recover the purchase price of a shipment of lumber, where by the terms of the contract the lumber was to be shipped to the buyer, held that defendant was not entitled to recoup for freight paid where there was nothing said in the order as to the payment thereof.
    2. - Sales, § 329*—when evidence insufficient to allow recoupment of damages for breach of contract. In an action for the purchase price of several shipments of lumber, held error to allow defendant to recoup damages for breach of the contract in not delivering the balance of the shipments contracted for, where no proof was made of the market value thereof at the time of the breach, or the amount of the lumber which defendant was entitled to have shipped.
    3. Sales, § 376*—measure of damages for failure to deliver. The true measure of damages for failure to deliver lumber or any commodity in accordance with the terms of the contract is the difference between the contract price at the time of the breach and the market price, taking into consideration the quantities contracted for.
    4. Sales, § 124*—when reasonable time for delivery presumed. Where a contract for a shipment of lumber does not specify the time when the shipment is to be made, or the time for delivery, there is a legal presumption that the lumber was to be delivered within a reasonable time, and parol evidence is inadmissible to controvert the presumption.
    5. Sauls, § 59*—when contract of sale severable. A written order for lumber specifying the number of cars, the character of the lumber to be loaded therein and the» prices to be paid therefor,
      held to constitute a severable contract so that a separate cause of action would arise on the invoice of each shipment delivered to the purchaser.
    6. Assignments, § 29

      —when not affected by equities arising between original parties. The liability on assigned invoices for lumber sold is not affected by any equities arising between the assignor and shipper after notice of the assignment.
    Appeal from the Municipal Court of Chicago; the Hon. John R. Newcomer, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Reversed and remanded.
    Opinion filed October 6, 1914.
    Adams, Crews, Bobb & Wescott, for appellant; E. C. Tourje, of counsel.
    Arnold Tripp, for appellee; James W. Breen, 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 Smith

delivered the opinion of the court.

On May 9, 3.5, 20 and 26, 1911, the Atlantic Lumber Company of Tifton, Georgia, consigned and invoiced to the appellee, Adam Sehillo Lumber Company, defendant, six carloads of lumber. The various invoices were, upon consignment, assigned to the Citizens Bank of Tifton, appellant, plaintiff below. Five of the assigned invoices were in the form of orders on the defendant to pay the account to the order of the plaintiff. The other assignment was by express assignment in writing to the plaintiff. On receipt of the invoices by the defendant, the same were acknowledged as shown by letters to plaintiff offered in evidence.

After demand for payment and refusal, this suit was instituted in the Municipal Court, predicated upon these invoices and the assignments thereof. As a defense to the action, the defendant alleged that the invoices sued upon covered lumber shipped by the plaintiff’s assignor under a contract providing for delivery to the defendant of sixty-four carloads of lumber, which contract, before the, compliance with the terms thereof, was abandoned by the Atlantic Lumber Company; and that the failure on the part of the plaintiff’s assignor to comply with its contract damaged the defendant to the extent of $728, for which sum the defendant claimed the right to recoup as against the plaintiff, which sum, together with the amount paid by the defendant for freight and a small allowance for “shorts” and “rejects,” deducted from the amount claimed by the plaintiff, left a balance due to the plaintiff of $307.18, which the defendant signified its willingness to pay.

The order alleged by the defendant to have been given to the Atlantic Lumber Company for the delivery to it of the sixty-four cars of lumber was introduced at the hearing and was received in evidence.

On the trial the plaintiff agreed to allow the amount claimed by the defendant for “shorts” and “rejects” on the lumber covered by the invoices sued on. A jury was waived and the cause was tried before the court. On the trial the court was asked to hold that the memorandum of sale, being defendant’s Exhibit 1, as treated by the parties, constitutes a severable contract. This holding was refused by the court. The order of the defendant was dated March 9,1911, on the Atlantic Lumber Company, to ship to the defendant by the C., M. & St. P. By. Co., sixty-four cars of lumber, as follows :

“2 cars 2x4 #1--14' Sissie $18.00
5 u 2x4 “- -16' C 6 18.50
2 í Í 2x4 “- -18' 19.00
2 Í 6 2x4 “- -20' U 19.00
2 it 2x6 “- -12' u 17.00

and so on, specifying the number of cars and the prices to be paid therefor. This order was accepted by the Atlantic Lumber Company. The order did not specify the time when the shipments were to be made or the time for delivery. In the absence of such time being fixed, the law will raise the presumption that the lumber was to be delivered within a reasonable time, and parol evidence to controvert this legal presumption is inadmissible. Union Spec. Sew. Mach. Co. v. Lockwood, 110 Ill. App. 387; Driver v. Ford, 90 Ill. 595. The written order contains all the elements of a contract and was a contract in writing. One of the vital questions in the case is whether or not the contract of sale is severable. In Bank of Antigo v. Union Trust Co., 149 Ill. 343, the Court quotes from Parsons on Contracts with approval, as follows:

“If the part to be performed by one party consists of several distinct and separate items, and the price to be paid by the other is apportioned to each item to be performed, or is left to be implied by-law, such a contract will generally be held to be severable. ’ ’

In Keeler v. Clifford, 165 Ill. 544, the' Court said:

“The question, whether a contract is entire or severable, cannot be determined by any precise rule, but must depend upon the intention of the parties, which in each case is ascertained from the language employed, and the subject matter of the contract. 'If the pari to be performed by one party consists of several distinct and separate items, and the price to be paid by the other is apportioned to each item to be performed, or is left to be implied by law, such a contract will generally be held to be severable. And the same rule holds, where the price to be paid is clearly and distinctly apportioned to different parts of what is to be performed, although the latter is in its nature single and entire.’ ”

Under the above cited authorities, the trial court erred in refusing to hold that the contract in question was a severable contract. The trial court also refused to hold that the memorandum of sale, defendant’s Exhibit 1, constitutes of itself a contract. This ruling of the court was erroneous.

It follows from what we have said in regard to the contract that each shipment thereunder gave rise to a separate and distinct cause of action. Each shipment created of itself a contract or chose in action, and was the subject of an assignment. Rothschild Bros. v. Wise, 81 Ill. App. 95. In Mechem on the Law of Sales, vol. 2, sec. 1163, the author says:

“If, under this rule (rule laid down by Parsons) the contract is severable, the seller may recover, in any event for the part delivered, leaving the other to his remedy by recoupment or action for the damages sustained by non-delivery of the residue.”

And in section 1164, the same author says:

“The rule stated by Mr. Parsons is simply a recognition of the fact that there may be contracts in which 'although the agreement is entire, the performance is severable,’ or, as it has been otherwise expressed, that there may be a contract which may be ‘ one and entire in its origin, and yet, looking to the performance of different things at different times, it may be severable in its operation. ’ ”

The six invoices sued upon in this case are each an independent cause of action. The invoices were received by the defendant and acknowledgment was made by the defendant of the receipt of the lumber to the plaintiff, stating that it would pay the amount direct to the Citizens Bank of Tifton. The several shipments shown by the invoices became wholly executed on delivery thereof to the carrier designated in the order, by the Atlantic Lumber Company, and upon the invoices being assigned, they constituted separate causes of action for the amount of each shipment. Each invoice and the acceptance by the defendant of the lumber became a separate and severable contract which gave rise to a separate cause of action. The liability of the defendant for the purchase price of the lumber became absolute upon the delivery thereof, as above stated, and the liability therefor was not affected by any equities arising between the assignor and the defendant subsequent to notice by the assignee of the several assignments. Under the Statute (chapter 110, sec. 18, Hurd’s R. S. 1911, J. & A. 8555), the invoices were not subject to any equities arising after notice of the assignment. Chicago Title & Trust Co. v. Smith 158 Ill. 417; Pearson v. Luecht, 199 Ill. 475. The record does not disclose that any default existed upon the original contract on the part of the Atlantic Lumber Company at the time the assignments in question were made, nor at the time the notice of assignment was given to the defendant; on the contrary, the defendant, upon the receipt of notice of the assignment, promised that it would pay the plaintiff direct. It appears that the six consignments sued upon were shipped and received by the defendant; under the contract, a total of twelve cars had been received. As to whether the remaining six cars were received before or after the receipt of the cars sued on is not shown. If it be assumed that the remaining six cars were received later than the six cars in question, it constitutes a complete answer to any question that may be made as to default prior to the notices of assignments in question. If the remaining six cars, on the other hand, were received prior to the cars in question, that would not determine in any manner the question of default except in plaintiff’s favor, as an acceptance of these six cars would be itself a waiver of the default. But it is sufficient to say that the record is entirely barren of any evidence of default at the time notices of assignments were given to defendant.

The theory on which the defendant bases its right to recoup against the plaintiff is the failure of the plaintiff’s assignor to ship more than twelve cars of lumber. There is no question made in the record but that the Atlantic Lumber Company failed to comply with its contract to ship thereunder the balance of fifty-two cars of lumber to the defendant. Failure, however, on the part o: the Atlantic Lumber Company to ship the balance of ■ he cars of lumber could not give rise to a right of recoupment on the part of defendant against the six invoices in question; for it does not appear in the record that this failure occurred before the consignments in question and notices of the assignments thereof to the plaintiff were given, and even if it did occur before such notices were given, the acceptance of the lumber by the defendant and the promises by the defendant to the plaintiff to pay for the lumber waived any right to recoup for the failure of the Atlantic Lumber Company in the shipment of fifty-two cars of lumber, for the reason given above. But, a further answer to the contention of the right to recoup in this case is based upon the evidence offered on behalf of the defendant. There is no evidence in the record establishing defendant’s claim that it was damaged to the extent of the sum of $728. No proof was made of the market value of the lumber. Proof was made that the defendant paid $1 more per thousand than the contract called for. That was incompetent evidence and did not tend to prove damages. The true measure of damages for failure to deliver lumber, or any other commodity, in accordance with the terms of a contract, is the difference between the contract price at the time of the breach and the market price, taking into consideration the quantities contracted for. No proof was made in this ease of the market value at the time of the alleged breach, or of the amount of lumber which the defendant was entitled to have shipped. It was error to allow, as against the claims sued on, the $728, for there was no foundation for such allowance in the evidence. It was also error to allow payments of freight to be recouped or deducted. By the terms of the contract, the lumber was to be shipped at Sparks, Georgia, to the defendant at Chicago. When the Atlantic Lumber Company delivered the lumber to the C., M. & St. P. By. Co., it was delivered to the defendant. Nothing is said in the order as to the payment of freight. A. J. Neimeyer Lumber Co. v. Burlington & M. River R. Co., 54 Neb. 321; City of Carthage v. Duvall, 202 Ill. 234; Lake Shore & M. S. Ry Co. v. National Live Stock Bank, 178 Ill. 506. It follows from what we have said that the court erred in admitting parol evidence of the contract. The conversations between the parties, before the order was reduced to writing, were merged in the order, and it became a complete contract in writing.

Other errors based upon the refusal to hold propositions of law presented by the plaintiff were committed by the trial court, but we think it unnecessary, in view of what we have said, to discuss them in detail.

The judgment is reversed and the cause is remanded for a new trial.

Reversed and remanded.


text:
    In the matter of the Estate of Matthaus Hempfling, Deceased. Andrew Hempfling, Executor, Appellee, v. Emily Hempfling et al., Appellants.
    Gen. No. 19,786.
    (Not to he reported in full.)
    Appeal from the Probate Court of Cook county; the Hon. Charles S. Cutting, Judge, presiding. Heard'in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed October 6, 1914.
    Statement of the Case.
    Petition by Andrew Hempfling, executor of the last will and testament of Matthaus Hempfling, deceased, for an order to sell real estate to pay debts and the widow’s award. From an order entered granting the prayer of the petition, Emily Hempfling and others appeal.
    The following are the provisions of the will involved:
    “First—That after all my just debts and funeral expenses are paid,—

      I give, devise and bequeath to my wife, Emily Hempfling, my ‘Real estate’ and ‘Bakery Business’ at number 1701 West Erie street, in the city of Chicago and County of Cook and State of Illinois. Providing that said Emily Hempfling should get married again, or in the event of the death of said Emily Hempfling, my wife, the above mentioned real estate and bakery business shall be held in trust for my two children, Andrew Hempfling also Helen Hempfling, minors, who reside with my wife, Emily Hempfling, at number 1701 West Erie street, in the city of Chicago, County of Cook and State of Illinois, until they shall become of age, each to have share and share alike.
    Second—I bequeath to my sister, Barbara Hempfling, residing in the city of Statsteinak, Bavaria, Europe, the sum of Five Hundred Dollars.
    Third—I bequeath to the Catholic Church at the town of Hohenberg, Germany, the sum of Five Hundred Dollars.
    Fourth—I bequeath to Alexian Brothers of Chicago, in the city of Chicago and County of Cook and State of Illinois, the sum of Five Hundred Dollars.
    Fifth—I have set aside Five Hundred Dollars for all expenses incurred in my last illness and death, the same moneys as I have bequeathed above is deposited in the First National Bank, making a total of Two Thousand Dollars, and the said First National Bank is located at the northwest corner of Dearborn and Monroe streets in the city of Chicago and the State of Hindis. ”
    Arnold Tripp, for appellant Emily Hempfling.
    Mancha Bruggemeyer, for appellee Andrew Hempfling.
    Frederick Mayer, for appellee Catholic Church at Town of Hohenberg, Germany.
   Mr. Justice Smith

delivered the opinion of the court.

Abstract of the Decision.

1. Executors and administrators, § 379*—when personal property not primary fund for payment of debts. Ordinarily, personal property is the primary fund for the payment of debts and general legacies, unless a contrary intention appears in the will; but where from the whole will it appears by express language or necessary implication that a particular portion of the estate is to be the primary fund for the payment of debts, the remainder of the estate will be exonerated from the burden.

2. Wills, § 489*-—when construed as charging real estate with payment of debts. Where a will reads, “That after all my just debts and funeral expenses are paid, I give, devise and bequeath to my wife,” certain real estate, and there are clauses following which dispose of all the testator’s money in a bank, held it was clearly the intention of the testator to charge his real estate with the- payment of debts, and that the Probate Court had power to order a sale of the realty to pay the debts and widow’s awards though the personal estate was sufficient to pay the same.


text:
    Samuel Arion Lewis, Appellant, v. Harris Trust & Savings Bank and Paul W. Chapman, Appellees.
    Gen. No. 19,843.
    1. Contracts, § 144

      —when not void as against public policy. A contract employing a person to go to a city and deliver public addresses and to advocate before city improvement associations the desirability of the city voting a bond issue bearing a sufficient rate of interest to make the bonds salable to carry out the purpose of the city water board to purchase a water plant, the object of the employment being to enable and help his principal to purchase such bond issue or such portion thereof as could be obtained in case they were issued, held not void as against public policy.
    2. Contracts, § 144*—when not void as against public policy. Where a contract is made by an agent to address himself to property owners on a subject in which the principal who employs the agent is interested for gain, when .the property owners’ consent is necessary to the action of an official representative body, and when it does not appear that the contract contemplates the exercise of personal solicitation or personal influence, or the acting by the agent in a secret manner, require any services at all with the official representative body, but on the other hand, the services are to be performed openly and publicly, and without the use of money, such a contract is good and valid and not against public policy.
    3. Contracts, § 136

      —determination of public policy of State. The public policy of a State is to be found in its constitution and statutes, and when cases arise concerning matters upon which they are silent, then in its judicial decisions and the constant practice of its government officials.
    4. Municipal Court on Chicago, § 13*—presumption on motion to strike statement of claim. In an action in the Municipal Court based on a written contract, where it cannot be presumed from the contract as set out in the statement of claim that it is illegal, on a motion to strike the statement of claim from the files the contract will be presumed legal, and it is for the defendant to make its illegality apparent.
    Appeal from the Municipal Court of Chicago; the Hon. Jambs C. Martin, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Reversed and remanded.
    Opinion filed October 6, 1914.
    Warwick A. Shaw and Lewis C. Ball, for appellant.
    Theodore Chapman and Charles LeRoy Brown, for appellees.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same t'opie and section number.

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

   Mr. Justice Smith

delivered the opinion of the court.

By this appeal the appellant, plaintiff below, seeks to reverse a judgment of the Municipal Court, striking the plaintiff’s second amended statement of claim from the files and entering judgment in favor of the defendants and against the plaintiff.

By the rules of the Municipal Court of Chicago, the statement of claim in first-class cases shall be filed in place of regular pleadings. The action was in assumpsit for the value of services which the plaintiff alleged were performed by him on behalf of the defendants under an oral contract. The motion to strike was in the nature of a demurrer to the plaintiff’s second amended statement of claim, and plaintiff objected to the granting of the motion, and stood by his amended statement of claim. The question thus presented is whether the second amended statement of claim presents a good cause of action.

The questions presented and discussed by counsel in their printed and oral arguments is whether the agreement set forth in the second amended statement of claim is or is not contrary to public policy and void. No other question on the validity óf the alleged contract, save that of public policy, could be raised legally, we think, for the reason that the plaintiff relies in his statement of claim upon a quantum meruit for the value of his services accepted by the defendants. At all events, counsel on both sides agree that the public policy question is the only question presented by the record, and that the statements of claim were stricken on the ground that the agreement set out was such a contract as the courts will refuse to enforce.

It appears from the statement of claim that the Omaha Water Company owned a water plant furnishing water to the city of Omaha which it did not desire to sell; that there was a “water board,” a body of public officials, which had in view the purchase of the water plant and had voted a bond issue of $6,500,000, bearing interest at four per cent., payable in thirty years, on which to raise the money necessary for the purchase of the plant; and this issue of bonds had been approved by the people of Omaha, when the contract in question was made. The issue of bonds was not marketable because of the low rate of interest. The condition of the market then existing favored the sale of bonds bearing not less than four and one-half per cent, interest. If the bond issue was made to bear interest at four and one-half per cent., and the Omaha Water Company should change its attitude and exchange its plant for the bonds, it might be possible to obtain the bonds directly from the Water Company, and plaintiff was employed to negotiate on behalf of defendants for the purchase of such issue or so much of it as could be obtained. By the contract, plaintiff was employed to deliver public addresses and to bring to the attention of the twenty-eight improvement associations of Omaha, composed of property owners and taxpayers, the desirability of a bond issue bearing interest at the rate of four and one-half per cent, in order to carry out the purpose of the Water Board to purchase the water plant, and to do his work openly and not secretly, and to announce publicly that he was acting on behalf of defendants. This is, in substance, the employment alleged.

The public policy of a State is to be found in its constitution and statutes, and when cases arise concerning matters upon which they are silent, then in its judicial decisions and the constant practice of its government officials. The laws and public policy of the State permit and require the utmost freedom of contracting between competent parties, and it is only where a contract expressly contravenes the law or the known public policy of the State that courts will hold it void. Zeigler v. Illinois Trust & Savings Bank, 245 Ill. 180. As held in the Zeigler case: “There is no precise definition of public policy, and consequently no absolute rule by which a contract can be measured or tested to determine whether or not it is contrary to public policy. Each case, as it arises, must be judged and determined according to its own peculiar circumstances.” Looking to the decisions of courts, where similar contracts were questioned on the ground of contravening public policy, we think it may be stated generally, as the result and trend of the decisions, that where a contract is made by an agent to address himself to property owners on a subject in which the principal who employs the agent is interested for gain, when the property owners’ consent is necessary to the action of an official representative body, and when it does not appear that the contract contemplates the exercise of personal solicitation or personal influence, or the acting by the agent in a secret manner, require any services at all with the official representative body, but on the other hand, the services are to be performed openly and publicly, and without the use of money, such a contract is good and valid and not against public policy.

In Union El. R. Co. v. Nixon, 199 Ill. 235, it was held that an agreement to pay so much a month to a party to obtain frontage consents for a public improvement is not against public policy, even though extra pay is promised after the passage of the ordinance, if the party’s efforts in obtaining consents have aided in the success of the enterprise, where the agent has nothing to do with the council, or the passage of the ordinance, except to get property owners’ consents.

In Paving Co. v. Botsford, 56 Kan. 532, it was held that under chapter 99 of the Laws of 1887, of the State of Kansas, the action to be taken by the mayor and council of a city of the first class with respect to grading and paving depended to a great extent upon the consent of the owners of property fronting upon the street to be improved; and that it was competent for a paving company to employ attorneys and agents to give legal advice, and to collect and present facts as to the character and superior quality of the paving material which the company proposed to put in, to make arguments and openly and honestly endeavor to convince the reason and judgment of the property owners and the members of the city council that the interests of the owners and the public would be best subserved by the use of such paving material.

In Eoulton v. Nichol, 93 Wis. 393, the plaintiff, a person of large experience in regard to Federal public lands, became satisfied that a certain class of lands that had been kept out of the market on account of a supposed claim under certain railroad grants could be legally thrown open to settlement, and entered into an agreement with defendant, who was desirous of acquiring such lands, to instruct the latter in regard to the manner of procuring the same, and to do all that was necessary to have such lands thrown open to settlement, in consideration of a certain proportion of the value of the land acquired by defendant. It was held that the contract was not per se invalid as against public policy as a lobbying contract. An appeal to reason and nothing more before an official or an official board is not opposed to public policy.

This question is discussed in McBratney v. Chandler, 22 Kan. 692; Kansas Pac. R. Co. v. McCoy, 8 Kan. 538; Marshall v. Baltimore & O. R. Co., 16 How. (U. S.) 314; Tool Co. v. Norris, 2 Wall. (U. S.) 45; Trist v. Child, 21 Wall. (U. S.) 441, and many other cases, and it is unnecessary to more than refer to them. There is no presumption from the contract as set out in the statement of claim that it was an illegal contract. The defendants admit having made the contract as alleged, the motion to strike being in the nature of a demurrer. The presumption is in favor of innocence, and it is for the defendants to make the illegality apparent.

Appellee relies strongly upon Crichfield v. Bermudez Asphalt Pav. Co., 174 Ill. 466. The grounds upon which the contract sued on in that case was held void, were: First, that the appellants therein entered into the service of the appellee as lobbyists, or, in the language of some of the cases, as log-rollers; and second, that “the making of a contract to promote the levying of a public assessment, not for the purpose of securing to the public a needed improvement, but for the purpose of enabling a paving company to get a job, is not only against the public interest, hut is abhorrent to all proper ideas of justice and honor.”

We do not construe the contract as set forth in the statement of claim as being obnoxious to these objections. The case is easily and clearly to he distinguished from the case made in the statement in many salient features which appear upon a careful reading of the contracts in connection with the circumstances shown and the services contracted for. Hazelton v. Scheckells, 202 U. S. 71, involved a contract of an entirely different character from the contract before us. Without taking the time to distinguish the many cases cited by counsel for appellee, for that would unduly extend this opinion, we have reached the conclusion that the contract sued on is not such a contract as the courts will refuse to enforce on its face as alleged.

The judgment is reversed and the cause is remanded for a new trial.

Reversed and remanded.


text:
    The People of the State of Illinois, Defendant in Error, v. Gust Anderson, Plaintiff in Error.
    Gen. No. 20,156.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Edwabb T. Wade, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.
    Affirmed.
    Opinion filed October 6, 1914.
    Statement of the Case.
    Complainant in the Municipal Court of Chicago by the People of the State of Illinois against Gust Anderson, charging defendant with assault and battery on Jonas Olson. To reverse a judgment finding defendant guilty, imposing a fine of $100 and costs, and committing him to the House of Correction until the fine and costs are paid or worked out at the rate of $1.50 per day, defendant prosecutes a writ of error.
    Hector A. Brouillet, for plaintiff in error.
    Maclay Hoyne and Edward E. Wilson, for defendant in error; Joseph R. Fahy, of counsel.

      Abstract of the Decision.
    1. Assault and battery, § 31

      —where proof of name of injured, party sufficient. A conviction for assault and battery held sustained by proof in the record of the name of the injured party, where it appeared that Anna Olson made the complaint charging the defendant with assault on Jonas Olson, and the evidence in the record shows that Jonas Olson was the husband of the complaining witness and the party who was struck and injured.
    2. Assault and battery, § 36*—when judgment of conviction not improper. A judgment finding defendant guilty of assault and battery held not subject to the objection that it required defendant to pay money to the injured party, where the record did not so show, it appearing that the court attempted to induce defendant to pay the injured party’s doctor bill, etc., but the proposition was later rejected.

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

   Mr. Justice Smith

delivered the opinion of the court.


author: Mr. Presiding Justice Baume

text:
    Charles Chapman v. Charles T. Richey et al. On Appeal of Herbert W. Duncanson, Appellant, v. Chicago Title & Trust Company, Trustee, et al., Appellees.
    Gen. No. 18,847.
    (liot to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Theodore Bbentano, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed in part, reversed in part and remanded with directions.
    Opinion filed October 7, 1914.
    Rehearing denied October 22, 1914.
    Statement of the Case.
    Action commenced by Charles Chapman filing- a bill against Charles T. Richey to foreclose a mechanic’s lien on certain premises alleged to be owned by defendant.
    The facts show that William J. Lukens sold the premises to Herbert W. Duncanson and to secure payraent of a part of the purchase price took a mortgage thereon subject to a first mortgage bond issue to be given for the improvement of the premises by the erection of an apartment building thereon. At the instance of Duncanson the premises were conveyed to Charles T. Richey, an employee of Duncanson, who appears to have been engaged in the building business. Duncanson arranged with a certain loan company for the negotiation by it of a $40,000 bond issue to be secured by a first mortgage on the premises and the building to be constructed thereon, and Richey then executed a trust deed on said premises to the Chicago Title & Trust Company to secuie the payment of the bond issue. Duncanson, then acting for Richey, contracted for work and material for the construction of the apartment building. Subsequently, Duncanson made a partial payment out of the proceeds of the bond issue to each of the several contractors, and upon the payment of said amounts each of the parties signed a receipt therefor and waiver of a lien, which, except as to date, amount and designation of work, is identical with the one as follows:
    “Form 4606 Waiver.
    $5,000. Chicago, April 27,1906.
    Received of Charles T. Richey Five Thousand and No/100 Dollars to apply on mason contract work Contract on building S. W. Cor. Evanston and Ainsley. The undersigned for and in consideration of One Dollar and other good and valuable considerations, the receipt whereof is hereby acknowledged, does hereby waive and release any and all claims or liens on said building under any Acts in relation to mechanics’ liens, approved or in force, on account of labor or materials, or both, furnished or which may be furnished by the undersigned for said premises.
    Chas. Chapman, Contractor.”
    About $11,000 of the bond issue of $40,000 remained unexpended in the hands of the loan company and such amount Duncanson and Richey directed the loan company to pay out upon the orders of one Edward Bittner, with whom one Smiley, acting for Duncanson, had negotiated an exchange of the property here involved for some property claimed to be owned by Bittner. Bichey conveyed the property to Bittner, but before the delivery of the deeds by Bittner, Duncanson, acting for himself, Smiley and Bichey, repudiated the transaction for false representations and a partial failure of consideration and filed a claim for a vendor’s lien against the property in question for a pretended equity therein of $9,400, and on the same day Bittner conveyed the property in question to one Anna M. Brooks.
    After the filing of the bill to foreclose the mechanic’s lien and while a motion for the appointment of a receiver was pending, a holder of more than twenty per cent, of the total bond issue notified the Chicago Title & Trust Company to institute foreclosure proceedings on the mortgage to secure the bonds on the ground there had been a default of the payment of general taxes and other conditions in the mortgage. The Chicago Title & Trust Company filed its bill to foreclose the trust deed and thereafter the suit was consolidated with the suit to foreclose the lien. The several lien claimants filed their answers and intervening petitions to enforce their liens, and a large number of bondholders answered the bill setting up ownership of their respective bonds.
    The decree found there had been a default in the terms of the trust deed, in that taxes for a certain year had not been paid, and also in that mechanics’ liens had been permitted to attach to the premises; that there was due the Chicago Title & Trust Company for its certain proper disbursements $210.07, also for its solicitor’s fees $5,000, and for its services $250; that certain sums were due the several bondholders. To reverse the decree, Herbert W. Duncan-son appeals.

      Abstract of the Decision.
    1. Covenants, § 3

      —rule of construction. The paramount rule for the interpretation of .covenants is to so expound them as to give effect to the actual intent of the parties, collected not from a single clause but from the entire context.
    2. Mortgages, § 87*—when default accrues under covenant to pay taxes. A covenant in a trust deed to pay taxes when they are due ahd not to suffer any part of the premises to be sold for taxes is a separable and independent covenant, for a breach of which a default accrues, and it is not necessary that the mortgagor should have suffered the premises to be sold for taxes.
    3. Mortgages, § 667*—when allowance of attorney’s fees excessive. On foreclosure of a trust deed providing for reasonable solicitor’s fees, an allowance to the trustee of $5,000 for such fees held excessive, and a sum of $3,000 held to be ample compensation for the necessary services performed and the responsibility of the solicitor.
    4. Mortgages, § 663*—right of trustee to compensation. In a foreclosure proceeding an allowance of $250 to the trustee for the. use of its name in the proceeding held unwarranted, but held that an allowance of $50 would amply compensate the trustee for its services and the responsibility which devolved upon it.
    5. Mortgages, § 545*—when decree erroneous as to amount of interest. On foreclosure of a trust deed given to secure a bond issue, a decree allowing a bondholder interest on his bonds from June 26, 1906, held erroneous where in his answer he claimed interest only from January 26, 1907.
    6. Mechanics’ liens, § 135*.—necessity of consideration for agreement waiving lien. A consideration is necessary to support a contract to waive the right to a mechanic’s lien.
    7. Mechanics’ liens, § 135*—when agreement to waive lien without consideration. Agreements to waive the right to mechanics’ liens contained in receipts given to the lien claimants for a part of the money due them are not supported by a consideration where there is no bona fide dispute between the parties, a compromise of which would be a consideration.

      Alden, Latham & Young, for appellant.
    • Hamilton & Hamilton, Henry W. Leman, Adams, Crews, Bobb & Wescott, Edmund S. Cummings, Culver, Andrews & King and Egbert L. Stephens, for appellees.

      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. Presiding Justice Baume

delivered the opinion of the court.

8. Mechanics’ liens, § 203 —when decree erroneous as to amount of interest allowed. A decree allowing lien claimants interest on their claims from the time of the completion of the work by them, instead of from the time they filed their petitions, held erroneous, where in their petitions they failed to ask for interest from the date of the completion of the work, and failed to demand an amount sufficient to authorize an allowance of interest from that date.

9. Mobtgages, § 487*—when cross-hill properly dismissed as presenting no meritorious equity. In a consolidated action to foreclose a trust deed and for the enforcement of mechanics’ liens on the premises, a cross-bill filed by the holder of the legal title and a person claiming as the beneficial owner asking for a vendor’s lien on the property as against one to whom the holder of the legal title had conveyed the premises, held properly dismissed as presenting no meritorious equity, it appearing that the person claiming as beneficial owner never had invested a dollar in the property, and that he had contrived and manipulated the title to avoid personal liability.


text:
    Jacob Pianco by Sarah Pianco, Appellee, v. Herbert L. Joseph & Company, Appellant.
    Gen. No. 18,860.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.
    Reversed and remanded.
    Opinion filed October 7, 1914.

      Statement of the Case.
    Action by Jacob Pianco, a minor, by his next friend, Sarah Pianco, against Herbert L. Joseph & Company, a corporation, to recover damages for an alleged malicious prosecution. From a judgment entered on a verdict in favor of plaintiff for $500, defendant appeals.
    On October 4, 1907, appellee, who was then between sixteen and seventeen years of age, purchased from appellant a diamond ring for $63, payable, as the instrument he then executed recites, $8 down and the balance in weekly instalments of $2. On February 22, 1908, appellee, having in the meantime paid the several accruing instalments on the purchase price of the ring, returned the same to appellant and purchased a larger ring priced to him at $225, upon which he •paid $30 down and executed a contract of purchase therefor, whereby he agreed to pay the balance, $195, in weekly instalments of $4. He also then executed a blank form of chattel mortgage, which appellant thereafter filled in by inserting a general description of the ring and a consideration therefor of $195, payable in weekly instalments of $4, with interest at six per cent, per annum. Appellee having made no further payments upon the purchase price of the ring, appellant on March 4, 1910, procured an information to be filed in the Municipal Court, charging that on or about May 20,1908, during the existence of the chattel mortgage lien thereon, appellee, without having the consent of appellant, did then and there unlawfully and feloniously conceal, remove and sell said diamond ring, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the People of the State of Illinois. Appellee was arrested under a warrant issued out of the Municipal Court upon said information, and was held in custody for about six hours, when he was admitted to bail. Thereafter, upon a trial in the Municipal Court of the offense charged in the information, appellee was acquitted and finally discharged.

      Abstract of the Decision.
    1. Malicious peosecution, § 75

      —when evidence sufficient to show probable cause. In an action for malicious prosecution by having plaintiff, who was a minor, arrested on a charge of unlawfully and feloniously concealing, removing and selling a diamond ring which he had purchased of defendant on the instalment plan, a verdict for plaintiff held against the weight of the evidence, it appearing that defendant had probable cause to institute the criminal prosecution by reason of his falsely representing himself to be of age and his concealment of his whereabouts.
    2. Malicious peosecution, § 7*—what constitutes probable cause. A reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is guilty of the offense charged, constitutes probable cause under the law.
    3. Malicious peosecution, § 88*—when instruction erroneous. In an action for malicious prosecution, an instruction given for plaintiff held erroneous, in that it failed to require the jury to find the facts upon which the announcement of law was predicated, by a preponderance of the evidence.
    4. Damages, § 206*—when instruction erroneous. An instruction relating to the measure of damages held erroneous for including certain elements not supported by the evidence, and also faulty in failing to limit the jury to the consideration of such proper elements of - damage as are shown by the evidence.
    5. Appeal and erbqb, § 1241*—when party cannot complain of instructions. Where a party tenders two or more instructions embodying the same legal principle, he cannot be heard to complain if the court adopts and gives the instruction which is least favorable to him.
    Sidney Lyon and Arthur C. Bachrach, for appellant.
    Max M. Grossman, for appellee.

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

   Mr. Presiding Justice Baume

delivered the opinion of the court.


text:
    John F. Devine, Administrator, Appellee, v. Chicago City Railway Company and Calumet & South Chicago Railway Company, Appellants.
    Gen. No. 18,876.
    (Not to he reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. William E. Deveb, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.
    Reversed with finding of fact.
    Opinion filed October 7, 1914.
    Rehearing denied October 17, 1914.
    Statement of the Case.
    Action by John F. Devine, administrator of the estate of James Dwyer, deceased, against Chicago City Railway Company and Calumet & South Chicago Railway Company to recover damages for wrongfully causing the death of plaintiff’s intestate. From a judgment entered on a verdict in favor of plaintiff for five thousand dollars, defendants appeal.
    At the time of the accident in question there were upon South Chicago avenue, which runs in a northwesterly and southeasterly direction, two street car tracks, the east track being the northbound track and the west track being the southbound track. The decedent was employed by the Chicago City Railway Company in the work of repaving the right of way with brick, and was one of a gang of thirteen or fourteen men so employed. They were working southward from 70th street, taking up the old brick, cleaning such of the old brick as were fit for use in repaving, and repaving the southbound track and the center space between the two tracks. When the old brick were removed from the pavement they were carried by the men to the west curb of the street and such as were fit for use in repaving were there cleaned and piled up with the new brick necessary to be used. Shortly after seven o’clock on the morning of the accident, the decedent picked up several bricks from the pile at the west curb, and carrying them on his arm, walked in a northeasterly direction towards the car tracks. When he reached the center space between the two tracks he stopped and stooped over for the purpose of dropping or placing, the brick in said center space, and while in such stooped position was struck on the right side or shoulder by the comer of a northbound car approaching on the east track, and thereby sustained injuries which resulted in his death.
    Abstract of the Decision.
    1. Negligence, § 157

      —necessity of proof of due care. An allegation in a declaration that plaintiffs intestate was in the exercise of due care for his own safety is a necessary and material allegation which plaintiff is required to prove.
    2. Negligence, § 156*—when presumption arising from instinct for life preservation not operative to establish due care. The presumption arising from the natural instinct prompting the preservation of life and the avoidance of injury does not become operative to establish due care on the part of a person killed, where the conduct of such person immediately before and at the time of accident is described by eyewitnesses and there is nothing in the facts and circumstances surrounding the accident to indicate that he perceived the danger to which he was exposed.
    3. Negligence, § 156*—effect of presumption that persons will perform their duty. While there is a presumption of law that every person will perform the duty enjoined by law or imposed by contract, and anticipation of negligence in others is not a duty which the law imposes, such .presumption is not a conclusive one in determining questions of negligence, and no one has a right to rely solely on it in regulating his conduct.
    Warner H. Robinson and Charles LeRoy Brown, for appellants; Leonard A. Busby, of counsel.
    George E. Gorman, for appellee; John M. Pollock, of counsel.

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

       See Illinois Notes Digest, Vo topic and section number. and Cumulative Quarterly, same

   Mr. Presiding Justice Baume

delivered the opinion of the court.

4. Appeal and error, § 1802 —when reversal with finding of fact proper. On appeal from a judgment in favor of plaintiff in a suit for wrongful death, held it was the duty of the Appellate Court to reverse the judgment with a finding of fact, where there was no evidence to show that the decedent was in the exercise of due care for his own safety, or proof of any facts or circumstances from which due care on his part might he inferred.


text:
    Dorothy Brockhaus by Margaret A. Brockhaus, Defendant in Error, v. Agnes B. Garner, Plaintiff in Error.
    Gen. No. 18,903.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Rueus P. Robinson, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1913.
    Affirmed.
    Opinion filed October 7, 1914.
    Statement of the Case.
    Action of the fourth class brought in the Municipal Court of Chicago by Dorothy Brockhaus, an infant, by Margaret A. Brockhaus, her next friend, against Agnes B. Garner to recover damages for personal injuries alleged to have been occasioned by the negligence of the defendant. A statement of claim and demand for a jury trial were filed on behalf of the plaintiff, and on August 23, 1912, the defendant entered her general appearance and moved the court to require the plaintiff to file a more spec?" ’ statement of claim. This motion was allowed ar olaintiff was ruled to file a claim within five days, and m days within which to file "A August 26, 1912, a more nent of claim was filed on ’efendant failed to file her itember 4,1912, judgment efault for her failure to more specific statement defendant was allowed her affidavit of merits specific and sufficient behalf of the plaintiff, affidavit of merits, and ■ was entered against h file and for want of such affidavit of merits. On September 10, 1912, the defendant having failed to take any further steps in the case, a jury was impaneled to assess the damages of the plaintiff, and proceedings appear to have been then had resulting in a verdict and judgment against the defendant for three hundred dollars damages. Thereafter the defendant moved the court to vacate and set aside such judgment, which motion was overruled, and defendant then prosecuted this writ of error.
    Abstract of the Decision.
    1. Municipal Court of Chicago, § 13

      —sufficiency of affidavit to plaintiff’s statement of claim. Where a statement of claim of a minor plaintiff purported to be made by an agent and it was urged by the defendant that since an infant is without capacity to appoint an agent the court had no jurisdiction of the subject-matter of the cause of action or of the person of the plaintiff, and that no summons could properly issue against the defendant, held that the court had jurisdiction of defendant by her entering a general appearance, and that the informality, if any, in the affidavit did not operate to deprive the court of jurisdiction of the subject-matter.
    2. Municipal Court of Chicago, § 13*—when objection to sufficiency of affidavit to statement of claim cannot be raised. Insufficiency of an affidavit to plaintiff’s statement of claim cannot be first raised after verdict and judgment to defeat a recovery upon a cause of action of which the .court has jurisdiction of the subject-matter.
    3. Municipal Court of Chicago, § 19*—when entry of judgment by default irregular. In a fourth class action in the Municipal Court to recover personal injuries, where the defendant entered her general appearance but failed to file an affidavit of merits within the time allowed by the court, the entry of a judgment by default held irregn lar; the judgment should be nil dieit, or for want of plea.
    Charles Turner Brown, for plaintiff in error.
    Beach & Beach, 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. Presiding Justice Baume

delivered the opinion of the court.

4. Municipal Court op Chicago, § 30 —when irregularity in entering default judgment not ground for reversal. Irregularity in entering a judgment by default instead of a judgment nil dicit, or for want of plea, held not to require reversal of the judgment upon the merits.


text:
    Harry M. Englestein et al., trading as Harry M. Englestein & Company, Plaintiffs in Error, v. William Bartholomae and Frederick Bartholomae, Defendants in Error.
    Gen. No. 19,040.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Frederick C. Hill, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1913.
    Reversed and remanded.
    Opinion filed October 7, 1914.
    Statement of the Case.
    Action by Harry M. Englestein and Louis Ehglestein, copartners, trading as Harry M. Englestein and Company, against William Bartholomae and Frederick Bartholomae to recover real estate brokerage commissions. A trial by the court resulted in a finding in favor of defendants and judgment against plaintiffs for costs. To reverse the judgment, plaintiffs bring error.
    The controverted facts showed that in May, 1912, defendants in error agreed in writing through plaintiffs in error as their brokers to sell for $12,000 their property, then being operated as a “nickel theatre,” to one Stone, who contemplated associating with him in the purchase of the property, Charles Benesch and George Paul; that defendants in error then agreed to pay plaintiffs in error a commission of two and one-half per cent.; that the contract was not signed by Stone, because he was unable to complete satisfactory negotiations with Benesch, and was unable personally to raise the required cash payment of $5,000; that shortly thereafter plaintiffs in error informed defendants in error that they believed they could sell the property for $12,500, and in that event they should have an additional commission of $300; that plaintiffs in error were informed by Stone that Benesch was a prospective purchaser, and thereupon they in- ' terviewed Benesch and arranged a meeting between defendants in error and Benesch to negotiate for the property; that plaintiffs in error accompanied Benesch to the place of business of defendants in error and then introduced Benesch to defendants in error as a prospective purchaser; that that was the first occasion upon which Benesch had ever personally met or “talked business” with defendants in error; that on several occasions thereafter plaintiffs in error interviewed defendants in error and were informed by the latter that they were not ready to close a deal; that on July 18th following, defendants in error, without the knowledge of plaintiffs in error, sold the property to Benesch for $12,500, and refused to pay plaintiffs in error any commission on said sale.
    Abstract of the Decision.
    1. Brokers, § 48

      —when entitled to commissions on sale made by principal. Where a broker has been employed by the seller to find a purchaser for his property and through his efforts the seller has been brought into communication with the purchaser, he cannot tie deprived of his commissions because the seller takes up and completes the negotiations himself or through another party.

      Bernstein, Grossman & Bernstein, for plaintiffs in error.
    Albert H. Meads, for defendants in error.

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

      See Illinois Notes Digest, Vol • XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Baume

delivered the opinion . of the court.

2. Bbokebs, § 90 —when finding against right to commissions not sustained hy the evidence. In an action to recover commissions on a sale of real estate, a finding for defendants held against the weight of the evidence, it appearing that the defendants sold the property to a person with whom the plaintiffs had negotiated to sell the property and had introduced him to defendants as a prospective purchaser.


text:
    James B. Madsen, trading as J. B. Madsen & Company, Plaintiff in Error, v. N. B. Cordell, Defendant in Error.
    Gen. No. 19,089.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Habry P. Dolan, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1913.
    Affirmed.
    Opinion filed October 7, 1914.
    Statement of the Case.
    Action by James B. Madsen, trading as J. B. Mad-sen & Company, against N. B. Cordell to recover a balance alleged to be dne for certain trade fixtures and certain extras sold and delivered to the defendant for the equipment of a butcher shop. Defendant filed his affidavit of merits wherein he claimed a set-off by reason of the failure of plaintiff to furnish a sufficient ice box and the refusal of defendant to accept the ice box furnished by the plaintiff. A trial by the court resulted in a finding in favor of defendant upon his claim of set-off, and judgment was entered against plaintiff for $83. To reverse the judgment, plaintiff brings error.
    The order for the fixtures was given June 24, 1912. The ice box included in the order was not installed ready for the reception ff ice until July 12 or 13, 1912, and some extras necessary for the proper equipment of the ice box were not supplied and installed until August 19, 1912. On July 18, 1912, defendant in error paid plaintiff in error on account $400. It was conceded that the charge for the ice box, which was included in the total amount of $540 stated in the original order, was $282. The ice box was manufactured by plaintiff in error in his factory in sections and was so delivered on the premises of defendant in error, where the several sections were united and the doors and partitions installed by the employees of plaintiff in error.
    It was uncontroverted that after defendant in error commenced to use the ice box for the storage of meat the lowest temperature obtainable was from 44 to 54 degrees, and that the temperature required for the proper preservation of meat is from 38 to 40 degrees. It was also uncontroverted that on August 20,1912, defendant in error observed a crack or opening 1 1/16 inches in width in the rear of the ice box, occasioned either by the separation of the sections forming its construction, or the coming apart of the matched flooring of which the several sections were constructed. There was evidence that the ice box was wholly inefficient to serve the purpose for which it was designed, and that defendant in error repeatedly complained to plaintiff in error of the failure of the ice box to .maintain the proper temperature, and of the defective workmanship and material resulting in the openings or cracks in the rear of the ice box and of its defective condition in other particulars, and that plaintiff in error disregarded such complaints and made no attempt to remedy the defects complained of. On September 20, 1912, defendant in error removed the ice box from his butcher shop to the rear of his premises and refused to accept the same upon his order therefor.
    It is insisted on behalf of plaintiff in error that there was an acceptance by defendant in error of the ice box in question: First, by his several receipts for the various portions of the ice box, as being in good order when they were delivered at his shop, and by the several “O.K’s” by defendant in error upon time cards which plaintiff in error required his mechanics to furnish in order that they might receive credit for the time employed by them in the performance of their work; and second, by his having used the ice box from the time it was installed in his shop in July or August, 1912, until September 20,1912.
    Abstract of the Decision.
    1. Sales, § 251

      —when implied warranty that article is fit for purpose designed. Where a manufacturer contracts to supply an article which he manufactures for a particular purpose designed by the buyer and known to the vendor, so that the buyer necessarily trusts to the judgment or skill of the manufacturer, there is an implied warranty that the article shall be reasonably fit for the purpose to which it is to be applied.
    2. Sales, § 279*—when signing good order receipt not waiver of implied warrants. The fact that a buyer of an article signed a good order receipt of the several fragments of the article when delivered by a teamster, held not to estop the buyer from denying that the article would comply with an implied warranty when the fragments are assembled.
    8. Sales, § 276*—time within which goods may be returned for breach of warranty. A buyer of an article has a reasonable time within which to reject it after it has failed to comply with an implied warranty;, and in determining what is such a reasonable time, the conduct of the seller, and what he said and did, may be taken into consideration.
    Stedman & Soelke, for plaintiff in error.
    John J. Swenie and M. B. Harris, for defendant in error; T. F. Monahan, of counsel.

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

   Mr. Presiding Justice Baume

delivered the opinion of the court.


text:
    White Oak Coal Company, Defendant in Error, v. John Worthington, Plaintiff in Error.
    Gen. No. 19,113.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Harry P. Dolan, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1913.
    Reversed and judgment here.
    Opinion filed October 7, 1914.
    Statement of the Case.
    Action by White Oak Coal Company against John Worthington to recover $679.11 for coal delivered at and consumed in heating an apartment building owned by defendant.
    One Ebbert, a coal salesman employed by the plaintiff, was a tenant of the defendant for the term of one year- beginning May 1, 1910, at a rental of $60 a month, payable in advance. Ebbert paid the rent for May, June and July, 1910, in cash, and thereafter until December 12, 1910, at his solicitation, the defendant accepted coal for the rent accruing to February 1, 1911. This coal was procured by Ebbert from Thos. W. Gfilmore & Co. and delivered at the building. In the latter part of January, 1911, defendant directed Ebbert to fill up the basement of the building with coal, and Ebbert communicated this order to the bookkeeper or local manager of the plaintiff and plaintiff delivered the coal in question during February and March, 1911. During this time Robert F. Schenck, or Robert F. Schenck & Co., were the rental agents of defendant for the apartment building, and the charges for the coal so delivered were entered upon the books of the plaintiff against R. F’ Schenck & Co., and the two invoices for said coal, bearing date March 1, 1911, and April 1, 1911, respectively, were made out as follows :
    “Sold to......................R. F. Schenck, Agt.
    Delivered.................. J. Worthington Bldg.
    45th & Drexel, Address 100 Washington St.”

      Abstract of the Decision.
    1. Sales, § 50

      —liability for coal procured for benefit of another. In an action for the purchase price of coal delivered and consumed at defendant’s apartment building, where defendant claimed that he directed a tenant in his building to procure the coal on his own credit under an agreement with him that he should pay his rent in coal, held that a finding that defendant was primarily liable for the coal was sustained by the evidence, it appearing that the tenant was not indebted to defendant at the time he ordered the coal and that the amount of the coal ordered was too great to apply on rents to become due, but held that the further finding that defendant was entitled to a deduction of a sum due him from the tenant for rent which accrued after the coal was ordered, could not be sustained for the reason there was no proof tending to show that plain- . tiff consented to or acquiesced in the allowance of the deduction.
    2. Sales, § 285*—what not an election to discharge person for whose benefit coal was purchased. The fact that a seller of coal gave
      credit in the first instance to an agent of the person to whom the coal was delivered and the fact that the plaintiff first commenced an action against the agent, held not conclusive of an election by the seller to discharge the principal.

      Statements of the coal delivered were sent by the plaintiff to Schenck and by him were sent to the defendant. Ebbert vacated the apartment at the end of his term on May 1, 1911, without having paid the rent for February, March and April, amounting to $180.
    Upon a trial of the cause by the court without a jury there was a finding and judgment against defendant for $499.11, the full amount of plaintiff’s claim, less $180, being the amount of rent due from Ebbert to the defendant. To reverse this judgment, the defendant prosecutes a writ of error and the plaintiff assigns cross-errors questioning the propriety of the action of the court in allowing to defendant, as a credit upon plaintiff’s claim, the rent due from Ebbert.
    Robert B. Clark, for plaintiff in error.
    Charles Hudson, for defendant in error.

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

   Mr. Presiding Justice Baume

delivered the opinion of the court.

3. Appeal and errob, § 864*—necessity that evidence appear in abstract. The Appellate Court is not required to search the record for evidence which does not appear in the abstract of record.


author: Mb. Presiding Justice Baume

text:
    Thomas Lanigan et al., trading as Lanigan & Kleckner, Defendants in Error, v. J. C. Henderson & Company, Plaintiff in Error.
    Gen. No. 19,163.
    1. Factors, § 26

      —measure of damages for selling hogs in violation of instructions. In an action against a live stock commission company to recover damages resulting from the defendant selling plaintiffs’ hogs in violation of instructions to hold them over for two days more for an advance in the market price, a finding of the trial court allowing plaintiffs the increase in the market price, without allowing any deduction for the expense and loss necessarily involved in keeping the hogs over, held erroneous where it was established by the evidence that the daily expense for holding over hogs approximated ten cents per hundred pounds and that there was ordinarily some shrinkage in weight.
    2. Municipal Court of Chicago, § 28*—when insufficiency of affidavit of merits cannot be considered on review. An objection to the affidavit of merits based on the ground that it is insufficient under the rules of the Municipal Court to raise an issue on a particular fact alleged in the statement of claim, cannot be urged on review where the rules of the Municipal Court are not preserved in the record, and it appeared that the rules were ignored on the trial by both parties introducing evidence in support of their several contentions regarding such fact.
    3. Municipal Court of Chicago, § 29*—judicial notice of rules. The Appellate Court cannot take judicial notice of rules of the Municipal Court where they are not preserved in the record.
    Error to the Municipal Court of Chicago; the Hon. Edward T. Wade, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1913.
    Reversed and remanded.
    Opinion filed October 7, 1914.

      Pattison & Shaw, for plaintiff in error; Douglas C. Gregg, of counsel.
    P. J. Tuohy, for defendants in error.

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

   Mb. Presiding Justice Baume

delivered the opinion of the court.

This is a suit instituted in the Municipal Court by Thomas Lanigan and GK S. Kleckner, copartners, against J. C. Henderson & Company, a corporation, to recover damages claimed to have been sustained by reason of the alleged wrongful conduct of the defendant in selling five carloads of hogs on March 18, 1912, contrary to the direction of the plaintiffs to the defendant to hold said hogs for' sale until March 20, 1912, at which time the market price of hogs had advanced materially above the market price which prevailed on March 18th. A trial by the court without a jury resulted in a finding and judgment against the defendant for $176.34, to reverse which judgment this writ of error is prosecuted.

Defendants in error are buyers and shippers of hogs and cattle doing business at Hudson, Iowa, and plaintiff in error is engaged in the live stock commission business at the Union Stock. Yards in Chicago. On Monday, March 18, 1912, Thomas Lanigan, one of the defendants in error, arrived at the stock yards with five carloads of hogs consigned to plaintiff in error for sale. When the hogs were unloaded, about seven o ’clock in the morning, Lanigan met one Sweetman, a salesman, employed by plaintiff in.error, with whom Lanigan discussed the advisability of selling the hogs at the then prevailing market price.

Lanigan testified that after considering the matter •and canvassing the situation, he directed Sweetman not to sell the hogs that day, but hold the same for sale until Wednesday, March 20th.

The market on Monday opened at about $6.85 bid, and continued to advance during the day. Lanigan left the stock yards shortly after one o’clock in the afternoon, and during his absence, later in the afternoon, Sweetman sold the five carloads of hogs for $7.05. The market continued to advance on Tuesday and a further advance prevailed on Wednesday, when hogs of the quality shipped by defendants in error realized $7.25 to $7.40.

The frictional question of fact in the case is whether or not Lanigan directed Sweetman to hold the hogs for sale until Wednesday, March 20th, and plaintiff in error insists that the finding of the court upon that issue is against the manifest weight of the evidence.

Sweetman denied that he received any such directions from Lanigan, but the facts and circumstances in evidence tend to corroborate Lanigan rather than Sweetman, and if this was the only controlling question in the case, we would affirm the judgment.

It is clearly established by the evidence that the actual daily expense involved in carrying over hogs at the stock yards approximate ten cents per one hundred pounds, at least for the first two or three days that hogs are so carried over, and that there is also ordinarily some shrinkage in the weight of the hogs during that time.

The third proposition of law submitted by plaintiff in error and refused by the court is as follows:

“That in determining the question of damages, if any, to which the plaintiffs may be entitled, the law is the plaintiffs shall recover any increase in price that would accrue if said hogs had been held over to the time directed, and therefrom should be deducted any cost or expense that it would be necessary to pay out to carry over said hogs to such time, and any shrinkage in the weight of said hogs.”

Defendants in error are only entitled to recover as damages the actual pecuniary loss, if any, sustained by them by reason of the failure of plaintiff in error to comply with the direction to hold the hogs for sale, until Wednesday, March 20th. If a compliance by plaintiff in error with such direction necessarily involved additional expense or loss, such expense or loss would properly be chargeable to and should be borne by defendants in error. In view of the fact that the amount of damages assessed by the trial court was predicated upon findings that the prevailing market price on Wednesday, and the price which defendants in error would have realized if their direction to hold the hogs for sale until that time had been complied with, was $7.25, and that defendants in error were entitled to recover the difference between that price and $7.05, the price at which the hogs were sold on Monday, the third proposition of law submitted by plaintiff in error was of controlling influence upon the question of the amount of damages recoverable ■ by defendants in error. Under the ruling of the trial court defendants in error were allowed the benefit of the prevailing market price on Wednesday without any deduction whatever for expense and loss necessarily involved in carrying the hogs until such market price could be realized. The proposition should have been held as the law of the case, and applied to the facts as found.

It is said that under the pleadings in the case and under the rules of the Municipal Court applicable thereto, the affidavit of merits filed by plaintiff in error was insufficient to raise an issue of fact upon the question of the market price of hogs on Wednesday, and whether or not defendants in error would have then realized $7.47% for their hogs, as alleged in their statement of claim. The rules of the Municipal Court relied upon by defendants in error are not preserved in the record and we are not permitted to take judicial notice of them. Sixty v. Chicago City Ry. Co., 260 Ill. 478. Furthermore, the said rules, as they are claimed to exist, appear to have been ignored or not availed of upon the trial in the court below, because both parties introduced evidence in support of their several contentions, as to the quality of the hogs in question and the prevailing market price of such hogs on Wednesday.

The other errors assigned are unsubstantial.

The judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    Sam Frankenstein, Defendant in Error, v. Max Weber and David Weber, Copartners, trading as Weber Brothers, Plaintiffs in Error.
    Gen. No. 19,198.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Hugh J. Kearns, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1913.
    Affirmed.
    Opinion filed October 7, 1914.
    Statement of the Case.
    Action by Sam Frankenstein against Max Weber and David Weber, copartners, trading as Weber Brothers, to recover a balance alleged to be due for goods, wares and merchandise sold and delivered. Upon a trial by the court there was a finding and judgment against defendants for the amount claimed to be due. To reverse the judgment, defendants bring error.
    A. L. Weber, for plaintiffs in error.
    Isaac Anderson Loeb, for defendant in error.

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

   Mr. Presiding Justice Baume

delivered the opinion of the court.

Abstract of the Decision.

1. Municipal Court of Chicago, § 26 —sufficiency of statement of facts. The record does not contain a correct statement of facts, where what purports to he such a statement is merely a statement that certain witnesses testified to certain facts, in substance, as there stated in narrative form.

2. Sales, § 329*—sufficiency of evidence. On review of a judgment for the purchase price of goods sold and delivered, evidence in the record as presented held to show an original promise by defendants to pay for the articles furnished.


text:
    Henrietta G. Daniels, Defendant in Error, v. Chicago, Burlington & Quincy Railway Company and Chicago, Burlington & Quincy Railroad Company, Plaintiffs in Error.
    Gen. No. 19,225.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Joseph S. LaBuy, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1913.
    Affirmed.
    Opinion filed October 7, 1914.
    Statement of the Case.
    Action by Henrietta Gr. Daniels against Chicago, Burlington & Quincy Railway Company and Chicago, Burlington • & Quincy Railroad Company to recover damages for personal injuries claimed to have been occasioned by the negligence of defendants. The amended statement of claim filed by plaintiff December 12, 1912, alleged that the injuries complained of were' sustained January 23, 1911. Defendants’ affidavit of merits denied that plaintiff sustained the injuries complained of on or about January 23, 1911, and averred that on or about December 31,1909, plaintiff was a passenger on one of defendants’ trains and in alighting therefrom she slipped and fell, and further averred that any canse of action that may have accrued to her was barred by the statute of limitations. A trial by the court resulted in a finding and judgment against the defendants for three hundred and fifty dollars. To reverse the judgment, defendants prosecute a writ of error.
    Abstract of the Decision.
    Limitation of actions, § 115

      —burden of proof. The statute of limitations is an affirmative defense, and the burden of proving it Is upon the party pleading it.
    J. A. Connell and S. F. Blanc, for plaintiffs in error.
    Far,t, J. Walker, for defendant in error.

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

   Mr. Presiding Justice Baume

delivered the opinion of the court.


text:
    Franz Koch et al., trading as Koch & Company, Appellants, v. John H. Suderwski, Appellee.
    Gen. No. 19,291.
    (Not to be reported" in full.)
    Appeal from the County Court of Cook County; the Hon. Isaac Hudson, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1913.
    Reversed and remanded.
    Opinion filed October 7, 1914.
    Statement of the Case.
    Action in assumpsit instituted in the County Court by Franz Koch, Frank J. Koch, John A. Bichert and Arnold Brautigam, trading as Koch & Company, against John H. Suderwski. Plaintiffs filed a declaration consisting of the common counts, and attached thereto their affidavit of claim. Plaintiffs also filed a bill of particulars. Defendant filed an affidavit of merits and a verified claim of set-off, to which plaintiff pleaded the general issue, accord and satisfaction and the Five-Year Statute of Limitations. A jury was impaneled and before the introduction of any evidence, and again at the close of plaintiffs’ evidence and at the close of all the evidence, plaintiffs called the attention of the court to the fact that defendant had neither pleaded the general issue nor replied to plaintiffs ’ pleas of accord and satisfaction and the statute of limitations filed to defendant’s plea of set-off. The trial court overruled plaintiffs’ motion for a peremptory instruction upon the pleadings filed and submitted the case to the jury. The jury returned a verdict for defendant on his plea of set-off and assessed his damages against plaintiffs at $245. To reverse a judgment entered on the verdict, plaintiffs appeal.
    Abstract of the Decision.
    Pleading, § 462

      —when rule that proceeding to trial waives nonjoinder of issues inapplicable. The rule that a party having proceeded to trial without objection, as upon issues j'oined, cannot after verdict or for the first time in a court of review be permitted to take advantage of the failure of the opposite party to file proper pleas, held to have no application where the record discloses that timely and repeated objections had been made in the trial court to the procedure adopted.
    Adler & Lederer, for appellants; Julius E. Klawans, of counsel.
    F. W. Proudfoot, for appellee.

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

   Mr. Presiding Justice Baume

delivered the opinion of the court.