text:
    First State Bank of Pond Creek, Oklahoma, Appellee, v. Frank G. Clark, Appellant.
    Gen. No. 21,915.
    1. Attachment, § 330

      —-what is measure of in action of trespass by rightful owner of garnished fund. A bank which interpleads in attachment proceedings claiming the right to the funds in the hands of the garnishee and obtains judgment in its favor may, in an action in trespass, recover as damages interest on the sum during the period of its detention, and stenographic expenses and attorney’s fees necessarily incurred in establishing its right to the fund in question.
    2. Trial, § 199*—when verdict is properly directed. A verdict is properly directed where there is no conflict in the evidence on the issues involved.
    3. Attachment—where declaration states good cause of action for trespass. In an action in tort by a bank, which interpleaded in attachment proceedings commenced by the defendant and obtained judgment in its favor, to recover costs and damages alleged to have been sustained by reason of the wrongful suing out and levying of such attachment, the declaration held to state a good cause of action in trespass, whether designated as a statutory or common-law action.
    4. Attachment, § 338*—what is liability at common law for wrongful issuance and levying of writ. Under the common law the mere wrongful suing out and levying of an attachment writ, without proof of malice and want of probable cause pn the part of the attachment plaintiff, affords the injured party a right of action in trespass or case.
    5. Attachment, § 323*—what are remedies in case of wrongful issuance and levying of writ. The remedy provided by the Attachment Act, ch. 11, secs. 4, 5 (J. & A. Iflf 495, 496), for an action on the bond in case of wrongful issuance and levying of the writ of attachment is not exclusive, but suit may be brought either in tort or on the bond.
    6. Attachment, § 325*—when action of trespass lies. Force is not indispensable to support an action in trespass, and such an action lies in favor of one who interpleaded in an attachment case in which funds were garnished and secured a judgment in its favor against the attachment plaintiff, as the effect of the service of the garnishee summons was to deprive the rightful owner of the use and enjoyment of such funds during the pendency of the suit.

      Appeal from the Superior Court of Cook county; the Hon. Mabous A. Kavanagh, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Affirmed.
    Opinion filed December 19, 1916.
    Charles A. Williams and Albert Martin, for appellant.
    Silber, Isaacs, Silber & Woley, for appellee; Frederick D. Silber, of counsel.

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

   Mr. Justice McDonald

delivered the opinion of the court.

This suit is the aftermath of an attachment proceeding brought by appellant in the Municipal Court of Chicago against the Pond Creek Mill & Elevator Company, in which the appellee, the First State Bank of Pond Creek, Oklahoma, interpleaded, claiming the right to the funds in the hands of the garnishee, Du-rand & Kasper Company of Chicago. Upon hearing, the court found the issues for the interpleader and entered judgment thereon, dismissed the attachment suit at appellant’s costs, and discharged the garnishee. On appeal to this court the judgment was affirmed. (Clark v. Pond Creek Mill & Elevator Co., 175 Ill. App. 374.) This action in tort is brought by appellee to recover costs and damages alleged to have been sustained by reason of the wrongful suing out and levy of the attachment in question. At the close of appellee’s case, appellant moved for a directed verdict in his favor, which motion was overruled, whereupon both parties rested. On motion of the appellee, the court directed a verdict for appellee for the sum of $1,500.27. Judgment was entered thereon, from which this appeal is prosecuted.

The vital question presented for determination is the right of appellee to maintain this action. Subordinate thereto is the question whether this action was brought in trespass under the statute or at common law. In our opinion, the latter is immaterial.

The declaration proceeds upon the theory that an attachment was wrongfully sued out and levied upon the funds of appellee, then in the hands of the garnishee, whereby appellee was wrongfully deprived of the possession and use thereof, and was otherwise damaged and put to great expense in repossessing itself of said fund. The declaration states a good cause of action in trespass, whether it be designated as a statutory or a common-law action.

It is contended by appellant that under the common law the mere wrongful suing out and levy of an at-' tachment writ, without proof of malice and want of probable cause on the part of the attachment plaintiff, does not afford the injured party a right of action in trespass or case. We cannot agree with this conten-" tion.

In 4*Cyc. 766, it is stated:

“In an action to recover damages for depriving a third party of the possession and use of his property, it is sufficient to aver that the attachment and levy thereof was wrongful; it not being necessary to allege that the attachment was malicious and without probable cause.”

And in Shinn on Attachment it is stated, p. 671:

“Defending an interpleader filed by an owner of goods on a writ against another, will be evidence of the attaching creditors’ assent to the seizure by the officer and will render such creditor liable in trespass.”

In 3 Am. & Eng. Encyc. of Law (2nd Ed.) 245, the general rule of law is set forth as follows:

“In a few jurisdictions it is maintained that to give an attachment defendant a right of action for the wrongful suing out of an attachment, independently of statute and not under the attachment bond, proof of malice is necessary. But the more prevalent rule is that the attachment defendant has a right of action not based upon the bond, but sounding in tort for an attachment merely wrongful. ’ ’

In Thomas v. Hinsdale, 78 Ill. 259, it was held the defendant in attachment who had been wrongfully complained against might sue on the attachment bond or bring an action in trespass. While the decisions on this point are not in entire harmony, yet, in our opinion, the weight of authority and of reason supports the view that even in the absence of malice and probable cause, an action at common law may be brought by the injured party for the wrongful suing out and levying of an attachment writ.

It is further contended by appellant that the only reme'dy afforded by the statute for the wrongful suing out of a writ of attachment is an action on the bond provided for in sections 4 and 5 of the Attachment act, ch. 11, Rev. St. Ill. (J. & A. ¶¶ 495, 496.)

Section 4, supra, provides that before an attachment writ shall issue, plaintiff shall be required tp give bond payable to the defendant, in double the sum claimed to be due, “conditioned for satisfying all costs which may have been awarded to such defendant or to any others interested in said proceedings, and all damages and costs which shall be recovered against the plaintiff for wrongfully suing out such attachment.” (Italics ours.) Section 5, supra, prescribes the form of the bond and provides that in case of the failure of the attachment plaintiff to prosecute the suit with effect, he shall pay the obligee all such costs in said suit and such damages as shall be awarded against the plaintiff in attachment, in any suit or suits which may thereafter be brought for the wrongful suing out of the said attachment. In our opinion, this provision does not restrict the right of the injured party to an action on the bond. And this for obvious reasons. The bond is given simply by way of security, which the injured party, in seeking redress, may, at Ms option, avail Mmself of or not. If it should develop that the bond is invalid, can it be said that the injured party loses his right of action as a result thereof? To so hold,, under such circumstances, would be tantamount to a demal to such injured party of a right which the statute expressly gives him, viz., to recover for all the damage he has sustained as a result of the wrongful suing out and levy of the writ of attachment. We are of the opinion that suit may be brought either in tort or on the bond. Nor is there a lack of authority to sustain this view. Statutes contaimng similar provisions have been so construed in other jurisdictions. In Talbott v. Great Western Plaster Co., 151 Mo. App. 538, the court stated, p. 543:

‘1 The province of the attachment bond is to give security to the defendant on wMch he may rely if the attachment be wrongfully sued out and as to the sureties is the foundation of their liability. Not so, however, as to the plaintiff, who wrongfully avails himself of process which is too often used for purposes and in cases never contemplated by law. As against a plaintiff using such process, the basis of Ms liability is its abuse or wrongful use whereby a defendant is deprived of the use and possession of his property, or it may be of the property itself.
“In Sanders v. Hughes, supra [2 Brev. (S. C.) 495], the court said that ‘the plaintiff is not bound to sue upon such bond, for any injury he may sustain for suing out the attachment. But he may sue at common law. The bond was intended as additional security. ’ ’ * * *
“Our conclusion is that an action for wrongful attachment may be maintained, for actual damages, without reference to whether a bond has been given and without proof of malice and want of probable cause.”

To the same effect are: Jerman v. Stewart, Gwynne & Co., 12 Fed. 266; McKinstry v. Bras, 180 Ill. App. 648.

The point is made by appellant that the mere service of summons upon the garnishee did not amount to a levy on the funds in question. The effect of the service of the garnishee summons was to deprive appellee of .the use and enjoyment of the fund in question during the pendency of the suit. ° We see no distinction in effect between such a deprivation of funds and the actual levying of an attachment writ upon personal property. Force is not indispensable to support an action in trespass. Gundermann v. Buschner, 73 Ill. App. 180; Chicago Title & Trust Co. v. Core, 223 Ill. 58; 38 Cyc. 1004.

The damages allowed appellee included interest on the fund during the period of its retention, and stenographic expenses and attorney^ fees necessarily incurred by appellee in establishing its right to the fund in question. These were all proper elements of appellee’s damages, and were therefore rightfully allowed by the court. (Twidwell v. Smith, 158 Ill. App. 142; Harts v. Wendell, 26 Ill. App. 274; Damron v. Sweetser, Caldwell & Co., 16 Ill. App. 339.) There being no conflict in the evidence on the issues involved, the court properly directed- a verdict for the plaintiff. Marshall v. John Grosse Clothing Co., 184 Ill. 421.

_ Finding no reversible error, the judgment will be affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice McDonald

license: Public Domain

text:
    Maria P. Barnes, Appellant, v. Mary C. Barnes, Administratrix, Appellee.
    Gen. No. 21,926.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Look-wood Hondee, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Reversed and remanded with directions.
    Opinion filed February 17, 1917.
    Rehearing denied March 6, 1917.
    Statement of the Case.
    Bill for an accounting by Maria P. Barnes, complainant, against Mary C. Barnes, administratrix of the estate of Erastus A. Barnes, the deceased husband, for certain money and securities claimed to have been intrusted by complainant to deceased for investment and safe-keeping.
    After the issues were formed the cause was referred to a master in chancery for hearing, with directions to state his conclusions of law and fact. At the close of complainant’s testimony before the master, defendant moved the court to dismiss complainant’s bill for want of equity, which motion was also referred to the master: In his report, based solely on the complainant’s testimony, the master recommended to the court that defendant be required to account to the complainant in accordance with the prayer of her bill; pursuant to which the court overruled defendant’s motion to dismiss the, bill. By stipulation of the parties, all further proceedings were had before the court, at the conclusion of which the court dismissed the complainant’s bill for want of equity.
    The cause proceeded to a full hearing, both on the preliminary question involving complainant’s right to an accounting and on the accounting between the parties, as well, before the court. The testimony taken and the exhibits received in evidence covered upwards of 10,000 typewritten pages in the record. It appeared therefrom that there was a multitude of transactions of a fiduciary nature between the complainant and her deceased-brother, extending over a period upwards of thirty-five years, during which she intrusted him with practically her entire earnings, savings and income, aggregating approximately $50,000; that no settlement thereof was ever had; that the deceased invested complainant’s money from time to time, retaining possession of the securities so purchased; that the securities and other personal effects of both were kept in a safe deposit box rented by them jointly, to which each had access; that when complainant’s brother died, there were in their joint possession se'curities and assets of an aggregate value approximating $86,000; that many of these securities bore no evidence from which their ownership could be determined. The evidence further showed that during the same period of time the deceased had accumulated a sum of about $50,000, the greater part of which he lost through speculation.
    Oscar E. Leinbn, for appellant; Egbert F. Kolb, of counsel.
    Henry W. Magee and E. W. Adkinson, for appellee.
    Abstract of the Decision.
    I. Account, § 40

      —when case should he referred to master. On' a bill for an accounting where the items are numerous, the testimony questionable and the accounts complicated, the court should refer the case to the master with direction to take and report the evidence and to- state and report an account between the parties so that upon objection and exception particular items may be open- for investigation on appeal, and so that it will not be necessary to examine the whole account.

      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 McDonald

delivered the opinion of the court.

2. Account, § 40*—when parties may not stipulate for hearing before court. The parties to a bill for an accounting which should properly be referred to a master may not stipulate that such hearing máy be had before the court instead of before the master.

3. Equity, § 66*—when maxim that he who comes into equity must come with clean hands is inapplicable. Where a cause of action has its origin in iniquity, a court of chancery will not lend its aid to a complaining party by dismissing the suit because “He who comes into equity must come with clean hands,” but where the iniquity does not go to the right of action itself but affects only the proof of certain items incidentally connected therewith, the rule cannot be extended to preclude the complaining party from obtaining the relief sought as to other items in an action for an accounting which the evidence clearly shows to be untainted with such iniquity.

4. Account, § 55*—when decree on bill for accounting will be reversed and cause remanded with directions to re-refer cause. Where a bill for an accounting, which involves the consideration of a complicated account and questionable testimony, is improperly heard by the court instead of by the master, the decree will be reversed and the cause remanded with directions to re-refer the same to the master to take and report the testimony and to take and state an account.

5. Costs, § 79*-—when costs on appeal in reversed and remanded cose taxed equally between parties. On a bill for an accounting against the administratrix of the estate of a deceased person in which the decree was reversed and the cause remanded, where the case had not been heard by a master, instead of by the court, held that the costs of appeal should be taxed one-half to the complainant and one-half to the defendant.


author: Mr. Justice McQ-oorty

text:
    Zulu Manufacturing Company, Appellant, v. Max G. J. Hoffman and Paul J. Huxmann, Appellees.
    Gen. No. 21,830.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Denis E. Sullivan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Affirmed.
    Opinion filed December 19, 1916.
    Statement of the Case.
    Bill in equity by Zulu Manufacturing Company, a corporation, complainant, against Max Gr. J. Hoffman and Paul J. Huxmann, defendants, to restrain defendants from enforcing the payment of a judgment of defendant Hoffman, which sum the latter claimed to be due from complainant for manufacturing parts of certain machines. From a decree continuing in force the temporary injunction until final determination of the cause and denying the right to amend the bill so as to set up fraud and perjury in the procuring of such judgment, complainant appeals. ■
    The judgment involved was afterwards affirmed by this court upon writ of error (Hoffman v. Zulu Mfg. Co., 185 Ill. App. 185). Complainant, in said bill, offered to pay the judgment, upon the delivery of the machines, but alleged that Hoffman had transferred same to the Aamax Company, a corporation organized by bim and later adjudged bankrupt; that the receiver appointed in such bankruptcy proceedings had possession of the machines and that Hoffman had assigned the judgment to Paul J. Huxmann, his attorney. The receiver was not made a party. Separate answers were filed by Hoffman and Huxmann wherein the material allegations of the bill were denied. Hoffman in his answer admitted that he had the machines, that complainant was entitled to possession of same but refused to accept them, and denied that he had transferred them to said corporation, or that its receiver had them in his possession. A temporary injunction issued, enjoining Hoffman and Huxmanp, defendants, from enforcing payment of the judgment until the further order of the court. Subsequently complainant filed three successive amendments to said bill, demurrers to all of which were sustained, and the case referred to a master. The evidence taken before the master and his findings contemplated an amendment to said bill to the effect that elements of fraud and perjury entered into the procuring of said judgment. The court overruled exceptions filed by complainant to the master’s report, and entered a decree dismissing said bill for want of equity. Thereafter complainant was not permitted by the court to amend said bill as contemplated before the master, but the court modified said decree so as to continue in force the temporary injunction until the final determination of the cause in this court.
    William A. Jennings, for appellant.
    Paul J. Huxmann, for appellee Hoffman.
    Frank H. Bioek, for appellee Huxmhnn.
    Abstract of the Decision.
    1. Equity, § 251

      —when discretion of court in refusing to allow amendment to bill not abused. On a bill by a judgment debtor to restrain the judgment creditor and the assignee of the judgment from enforcing a judgment, based on the theory that the judgment creditor had sold the machines, the cost of manufacturing of which had been the basis of the judgment, and was therefore unable to deliver them to complainant, held that the court did not abuse its discretion in refusing to allow an amendment to the hill to the effect that fraud and perjury entered into the procuring of such judgment.

      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 McQ-oorty

delivered the opinion of the court.

2. Judgment, § 328 —when evidence insufficient to show procurement of, through perjured testimony. On a bill to restrain the enforcement of a judgment, evidence held insufficient to show that such judgment was procured through perjured testimony.


author: Mr. Justice McG-oorty

text:
    Central Trust Company of Illinois, Appellee, v. Anna N. Kendall, Appellant.
    Gen. No. 21,842.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Joseph S. La But, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Affirmed.
    Opinion filed December 19, 1916.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Action by the Central Trust Company of Illinois, plaintiff, against Anna N. Kendall, defendant, on a promissory note made by the defendant. From a judgment for plaintiff, defendant appeals.
    Samuel B. Hill and William Scott Stewart, for appellant.
    Pam & Hurd, for appellee.
    Abstract of the Decision.
    1. Bills and notes, § 263*—what alteration not a defense to maker. In an action, by an innocent holder for value, on a promissory note executed by the defendant who denied that the words “after maturity” following the interest clause in the note were there when she executed it, held that even though the defendant’s claim were true such words would not constitute such an alteration as would he a valid defense, since their effect would he simply to reduce the period for which she would be liable for interest.

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

   Mr. Justice McG-oorty

delivered the opinion of the court.

2. Bills and notes, § 415 —when "burden of proof on maker to show alteration after signature. In an action on a promissory note made by the defendant, held that in order that a certain alteration, claimed by the defendant to have been made in the note, should operate as a defense, the burden of proof was on her to show that the alteration was made after she signed the note.

3. Bills and notes, § 423*-—what evidence not admissible to show holder's knowledge of infirmity in note. In an action on a promissory note made and indorsed by the defendant and by her delivered to a company whose treasurer indorsed it as treasurer and delivered it to the plaintiff’s assignor, where the defenses were failure of consideration for the note, that it was negotiated by the company in breach of faith and without authority and that the plaintiff had knowledge of such facts and was not the holder in due course, held that the exclusion of secondary evidence of the contents of a resolution of the company, made in due course of business, which was alleged among other things to authorize the company to discount notes and its president and secretary to indorse them, which resolution was delivered to the plaintiff by its assignor, was not erroneous, as such resolution contained no notice to the plaintiff of any infirmity or defect in the title of the company negotiating the note.

4. Bills and notes, § 420*—when evidence of negotiation of note in breach of agreement not admissible against holder. In an action on a promissory note by a holder for value against the maker, where the defense was that the defendant’s transferee had transfered the note in breach of an agreement with the defendant, held that in the absence of evidence showing any knowledge on the part of the plaintiff of such agreement, evidence of such agreement and of negotiations leading up thereto were properly excluded.

5. Evidence, § 450*—how handwriting could not be proved. In an action on a promissory note tried before the going into operation of the present statute permitting proof of handwriting by comparison with pleadings properly in the files or records of a case, held that permitting one of the plaintiff’s witnesses to compare the defendant’s signature on certain pleas filed in the case with the signature on the note was error, though not prejudicial, in view of the fact that the defendant did not deny that she signed the note.

6. ' Appeal and error, § 1500*—when refusal to strike from short-cause calendar not reversible error. The action of the trial court in refusing to strike an action on a promissory note from the short-cause calendar on the defendant’s motion made immediately before the trial and repeated after the trial had occupied two hours, held not reversible error where it did not appear that the defendant had been prejudiced thereby or that there had been any abuse of discretion.


author: Mr. Justice McGoortt

text:
    E. H. Titchener & Company, Appellant, v. Industrial Board of the State of Illinois, Appellee.
    Gen. No. 21,868.
    Workmen’s Compensation Act, § 7

      —what constitutes loss of sight of an eye. Where the Industrial Board, upon an employer’s petition for a review of a finding and award of the committee of arbitration for the loss of an eye, approved and affirmed the award and held that the evidence showed that the permanent effect of the injury was to leave the employee so that he was only able to distinguish light and objects moving before the eye, held that, though there was no evidence of a complete destruction of vision of the injured eye, yet, as the evidence tended to show that the use of the eye was permanently lost for all practicable purposes, there was evidence sufficient to bring the ease within paragraph (e) of section S of the Workmen’s Compensation Act [J. & A. jf 5475(8)], giving compensation for loss of the sight of an eye, and so within the jurisdiction of the board.
    Appeal from the Circuit Court of Cook county; the Hon. Charles H. Bowles, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Affirmed.
    Opinion filed December 19, 1916.
    Zimmerman & Garrett, for appellant.
    F. W. Jaros, for appellee Leo T. Beauregard.

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

   Mr. Justice McGoortt

delivered the opinion of the court.

This appeal brings before us for review the action of the Circuit Court in quashing a writ of certiorari sued, out by appellant and dismissing its petition. The Committee of Arbitration, under the Workmen’s Compensation Act of 1913 [J. & A. ][ 5475(1) et seq.], awarded Leo T. Beauregard, one of appellant’s employees, compensation for (a) fifteen weeks for temporary total incapacity, and additional compensation [for the loss of sight of an eye], (b) for a further period of one hundred weeks, of $5.50 per week, based on fifty per cent, of the earnings received by him at the time of his injury. On July 31, 1913, while in the course of his employment—he was wiring an automatic staple machine—a piece of wire flew from said machine, striking his right eye in such a manner as to destroy the crystalline lens, which became wholly absorbed. On November 10, 1913, Beauregard returned to the employ of the appellant, but because of said injury was unable to resume his work on said machine, and was assigned by appellant to work as a shipping clerk at the same wages as received by him before the accident.

The Industrial Board, upon appellant’s petition for a review of the finding and award of the Committee of Arbitration, approved and confirmed same, and held as follows:

“There is but one question presented upon this record for decision.
“The evidence-discloses that the applicant was injured in one of his eyes, and that as a result of such injury the permanent effect thereof is to leave him so he is able to only distinguish light, and objects moving before the eye.
“It is contended by the respondent that this amounts under the evid'ence to no more than a loss of eighty per cent, of the sight, while claimant insists that the permanent condition of his sight in the injured eye deprives him of the use of such eye for all useful and practical purposes.
“It is the judgment of the Board that the contention of the applicant is correct, and that such injured eye is permanently impaired in its use for all practical purposes, and is, under the provision of the Workmen’s Compensation Act, a total loss of such eye.”

It is contended by appellant that there is no evidence tending to show the loss of the sight of the eye as contemplated by paragraph (e) of section 8 of Workmen’s Compensation Act [J. & A. jf 5475(8)], which is in part as follows: . v

“For the loss of the sight of an eye, fifty per cent-um of the average weekly wage during one hundred weeks. ’ ’

Paragraph (f) of section 19 of the Workmen’s Compensation Act [J. & A. j] 5475(19)] makes the decision of the Industrial Board, if it acts within its powers, in the absence of fraud, conclusive upon the courts.

“The Circuit Court and the Supreme Court, in reviewing a proceeding of this kind, can only review questions of law. Whether legal evidence is offered to support the decision of the board, where such evidence is properly preserved for review here, is a question of law, but if there is competent or legal evidence to support the decision of the board, it is not within the province of the courts to pass upon its weight or sufficiency.’’ Parker-Washington Co. v. Industrial Board of Illinois, 274 Ill. 498, 502, and cases therein cited.

While there is no evidence of a complete destruction of vision of the injured eye, yet as the evidence tends to show that the usefulness of said eye is permanently lost for all practical purposes, we think such evidence sufficient to bring the case within the provision of the statute giving compensation for loss of the sight of an eye and so within the jurisdiction of said board.

In Armour & Co. v. Industrial Board of Illinois, 197 Ill. App. 363, 368, this court in referring to this statute said:

“When a legislative act is beneficent in its provisions and intended to provide a way of escape from the rigors of the common law, then such act should receive in construction by the courts a sufficiently broad and liberal interpretation to cause it to so operaté as to attain the beneficent object for which it was enacted, unless such an interpretation would violate some constitutional right.”

We therefore hold that the Circuit Court did not err in quashing the writ of certiorari and in dismissing appellant’s petition, and its judgment will be affirmed.

Affirmed.


text:
    The People of the State of Illinois ex rel. Esther Kominsky, Appellee, v. Harry Engert, Appellant.
    Gen. No. 21,876.
    (Not to he reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Habby M. Fisher, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Reversed and remanded.
    Opinion filed December 19, 1916.
    Statement of the Case.
    Bastardy proceedings by the People of the State of Illinois, on the relation of Esther Kominsky, against Harry Engert, defendant. From a judgment against him, the defendant appeals.
    Benjamin E. Cohen, for appellant.
    No appearance for appellee.

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

   Mr. Justice McG-oorty

delivered the opinion of the court.

Abstract of the Decision.

1. Bastards, § 22 —when evidence insufficient to sustain judgment against defendant. Where in a bastardy case the defendant •testified that the relatrix told him that just prior to their having sexual intercourse for the first time she went out automobile riding with a couple of fellows but did not remember just what happened during that time, and the relatrix admitted that she told the defendant that she had been out riding on that occasion but denied that she told him that something had happened to her or that she had been drinking, held that the doubtful character of the evidence adduced by the relatrix required the reversal of a judgment against the defendant.

2. Bastards, § 20*—who has burden of proving paternity of child. In a bastardy case the relatrix has the burden of establishing the paternity of the child by the greater weight of the evidence.


author: Mr. Presiding Justice O’Connor

text:
    E. H. Levinstein, Defendant in Error, v. D. J. Dalton, trading as Dalton Foundry Company, Plaintiff in Error.
    Gen. No. 21,487.
    (Not to be reported in full.)
    Error to the Muniaipal Court of Chicago; the Hon. John Stelk, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Reversed.
    Opinion filed December 27, 1916.
    Statement of the Case.
    Action by E. H. Levinstein, plaintiff, against. D. J. Dalton, trading as Dalton Foundry Company, defendant, on a written contract for commissions on orders secured by plaintiff for the defendant. To review a judgment for plaintiff for $184.72, defendant prosecutes a writ of error.
    Thomas J. Stitt, for plaintiff in error.
    Otto L. Kolar, for defendant in error.

      Abstract of the Decision.
    1. Accobd and satisfaction, § 4

      —when cashing of Chech constitutes. In an action for commissions on orders secured by plaintiff for the defendant where the plaintiff returned a check to the defendant, claiming that certain deductions for unprofitable orders had been improperly made by the latter, and the plaintiff cashed the check on its being returned to him by the defendant with a letter stating that such deductions were properly made, held that, the amount due being in dispute between the parties, the defendant’s cashing of the check was an accord and satisfaction, although the plaintiff wrote the defendant that he had placed the amount to the defendant’s credit on account.
    2. Contbacts, § 377*—what evidence admissible to show subsequent modifications. In an action on a written contract for commissions on orders secured by plaintiff for the defendant, held that correspondence and conversations between the parties were properly admitted to show that the terms of the contract had subsequently been modified by verbal agreements.
    3. Appeal and ebbob, § 450*—when rulings on evidence not considered on appeal. Error assigned on admission of evidence will not be considered on appeal in the absence of objection thereto in the trial court.

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

   Mr. Presiding Justice O’Connor

delivered the opinion of the court.


text:
    American Laundry Machinery Company, Plaintiff in Error, v. Thomas Chamales et al., trading as Rich Laundry Company, Defendants in Error.
    Gen. No. 21,529.
    1. Corporations, § 305

      —When officers of pretended corporation liadle on notes executed in its name. In an action for a balance alleged to be due the plaintiff on the purchase price of a machine sold by it to one of three defendants, where the evidence showed that a license had been issued by the Secretary of State to the defendants authorizing the formation of a corporation, that the defendants had subscribed for all the stock, that at a meeting held by them as stockholders they had been elected directors and president, vice president and secretary of the corporation respectively, that the president had turned the machine over to the corporation, that a charter was issued to the corporation but not filed in the county recorder’s office until after the execution of a chattel mortgage on the machine, securing notes covering the unpaid balance of the purchase price thereof, in the name of the corporation by its president and secretary, the plaintiff, a foreign corporation, having been licensed to do business -in the State after the sale of the machine to one of the defendants but before the execution of the mortgage upon which the suit was based, held that a prima facie case of liability on such notes on the part of the defendants as pretended stockholders, officers and directors of a pretended corporation had been made out and that the trial court erred in directing a verdict for the defendants.
    2. Corporations, § 314*—what is nature of action against officers of pretended corporation on notes executed in-its name.' In an action against pretended officers and directors of a pretended corporation to recover on notes executed by the defendants as officers of and in the name of the corporation, held not an action to recover a penalty so that the amount involved did not prevent the Municipal Court of Chicago from having jurisdiction.
    Error to' the Municipal Court of Chicago; the Hon. Habry M. Fisher, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Reversed and remanded.
    Opinion filed December 27, 1916.
    Rehearing denied January 8, 1917.
    John S. Hummer, for plaintiff in error.
    William R. Brand, for defendants in error.

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

   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

The American Laundry Machinery Company, a corporation, plaintiff, brought suit against Thomas Chamales, Michael Rangis and Louis Hess, trading as Rich Laundry Company, defendants, to recover a balance of $4,757.12 claimed to be due the plaintiff from the defendants. The case was tried before the court and jury. At the close of plaintiff’s evidence, the court instructed the jury to find the issues for the defendants. A verdict was returned accordingly and judgment entered thereon.

Plaintiff alleged in its statement of claim that there was a balance due on certain promissory notes bearing date October 7, 1911; that a chattel mortgage was given to secure the payment of the notes, the mortgage and notes being executed by the defendants under the name of the Rich Laundry Company; that the defendants purported to be stockholders acting as duly authorized officers and agents of the Rich Laundry Company, a corporation; that said laundry company had never completed its organization as a corporation, in that it failed to file its charter for record in the recorder’s office in Cook county, where its principal place of business was located, as required by law, and that by reason of such failure the defendants were jointly and severally liable for all debts contracted in the name of such alleged corporation.

The defendant Rangis was not served and did not appear. Chamales and Hess in their affidavit of defense alleged that plaintiff’s claim was satisfied in full by defendants’ turning over to the plaintiff certain chattels and agreeing to pay certain insurance when it should thereafter be collected; that the plaintiff accepted and retained the chattels, and that the insurance had not been collected. They further alleged that on October 7,1911, there was no corporation organized in Illinois by the name of Rich Laundry Company, but that such laundry company received a charter on November 11,1911, from the Secretary of State, and such charter was afterwards filed in the recorder’s office in Cook county; that the defendants on October 30, 1911, subscribed for stock in the laundry company and after-wards disposed of it November 15, 1912. The affidavit further set up that plaintiff was a foreign corporation organized under the laws of Ohio, and was doing business in Illinois without having obtained a license as required by law.

Plaintiff’s evidence tends to show that on August 24, 1911, it entered into a contract with the defendant Bangis for the sale of certain laundry machinery. The contract provided that certain payments be made in cash, the balance to be evidenced by certain notes secured by chattel mortgage on the machinery; that the title to the machinery should remain in the plaintiff, and that if a corporation was afterwards organized Bangis might transfer the machinery to it, such company to secure the deferred payments. The machinery was delivered to Bangis between August 24th and October 7th. September 15,1911, a license was issued by the Secretary of State to Bangis and two other parties to open books of subscription to the capital stock of the “Bieh Laundry Company.” On October 7, 1911, the stock was all subscribed for by the defendants, Bangis subscribing for seventy-four shares; Chamales, seventy-five shares, and Hess one share, of the par value of $100 .each. October 30th, a stockholders’ meeting was held, at which defendants were elected directors, and immediately thereafter, at a meeting of the directors, Bangis was elected president, Chamales, vice president and treasurer, and Hess, secretary. The defendant Bangis turned over to the Bich Laundry Company at that time the laundry business which he had theretofore conducted, together with some horses and wagons. On November 11th, the Secretary of State issued a charter to the said laundry company, but it was not filed for record in the recorder’s office of Cook county, where the principal place of business of such laundry company was located, until April 24, 1913. November 4, 1911, the plaintiff, a foreign corporation, was licensed to-do business in this State, and on November 22, 1911, the notes and chattel mortgage involved were executed in the name of the Rich Laundry Company by Rangis as president and Hess as secretary, the chattel mortgage acknowledged before the clerk of the Municipal Court, and the notes and mortgage delivered to the plaintiff. The chattel mortgage-is not dated; the notes bear date October 7,1911. The witness Adelman testified that the notes and mortgage were made out by the plaintiff at its office in Chicago, two, three or four weeks before they were signed; that he could not remember the exact date, but that the execution and delivery took place on the date the chattel mortgage was acknowledged before the clerk of the Municipal Court. This acknowledgment is dated November 22nd.

Any person or persons being or pretending to be stockholders, directors or officers of a corporation or a pretended corporation are jointly and severally liable for the debts contracted in the name of such corporation or pretended corporation where the certificate of incorporation has not been recorded in the county where its principal office is located. Loverin v. McLaughlin, 161 Ill. 417; and this, too, although some of them did not personally participate in the transaction. O. S. Richardson Fueling Co. v. Seymour, 235 Ill. 319. In the case last cited the court said (p. 322): “The appellants were original subscribers to the capital stock of the supposed corporation, and were stockholders, directors and officers thereof until after the transactions here in controversy. The evidence tends to show that the appellants lived in Manistee, Michigan, and that E. W. Seymour, another original subscriber, stockholder, director and officer of the company, was its manager, who had actual charge of the business of the steamer in Chicago, where the coal was furnished. It is argued that the debt to the appellee was made by the latter alone, and that the appellants did not participate therein in any way and had no connection therewith.” The court held all liable as partners although some of them did not participate in the transaction. See also, Loverin v. McLaughlin, supra; Gunderson v. Illinois Trust & Savings Bank, 199 Ill. 422.

The evidence tends to show that the defendants, in the name of the Rich Laundry Company, became liable to the plaintiff on November 22, 1911, when the notes and chattel mortgage were executed and delivered, which was after the plaintiff was licensed to do business in this State. The plaintiff, therefore, made out a prima facie case, and it was error to instruct the jury to find for the defendants.

The defendants contend that the Municipal Court was without jurisdiction, as this was a suit “to recover a penalty, and not being a contract action, the amount is in excess of its jurisdiction.” This contention is without merit. The suit was not brought to recover a penalty, but to recover a debt incurred by the defendants in the name of the Rich Laundry Company, an alleged corporation.

Plaintiff suggests that as the Rich Laundry Company did not secure its charter until November 11, 1911, it was not a de facto corporation until that date, and therefore the defendants could not become liable until that date, which was after the plaintiff was authorized to do business in this State. This is not the law. Section 18, ch. 32, Rev. St. (J. & A. ¶ 2435) provides: “If any person or persons being, or pretending to be, an officer or agent, or board of directors, of any stock corporation, or pretended stock corporation, shall assume to exercise corporate powers, * * * without complying with the provisions of this act, * * * shall be jointly and severally liable for all debts and liabilities made by them, and contracted in the name of such corporation, or pretended corporation.” (See also, Hipp v. Muehleisen, 88 Ill. App. 55.)

The judgment of the ■ Municipal Court is reversed and the cause remanded.

Reversed and remanded.


text:
    Fred Krell, Plaintiff in Error, v. August Meyer, Defendant in Error.
    Gen. No. 21,546.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Habby M. Fishes, Judge, presiding. Heard in the Branch Appellate Court at-the October term, 1915.
    Reversed and judgment here.
    Opinion filed December 27, 1916.
    Statement of the Case.
    Action by Fred Krell, plaintiff, against August Meyer, defendant, for rent, in which the defendant filed a set-off. To reverse a judgment for defendant' on the set-off, plaintiff prosecutes a writ of error..
    Huttmann, Cloves, Netherton & Carr, for plaintiff in error.
    Albert H. Meads, for defendant in error.
    Abstract of the Decision.
    Sames, § 341

      —when evidence does not show promise hy purchaser of stock to pay seller accrued profits thereon. In an action for rent, where judgment was'rendered for the defendant on a set-off based upon an alleged promise by the plaintiff to pay the defendant accrued profits on shares of stock purchased by the plaintiff from the defendant in connection with a real estate deal between the parties, evidence held not to justify a finding that the plaintiff made such promise.

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

   Mr. Presiding Justice O’Connor

delivered the opinion of the court.


text:
    Josephine Dugan, Defendant in Error, v. International Association of Bridge & Structural Iron Workers, Plaintiff in Error.
    Gen. No. 21,587.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Geobge J. Cowing, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Affirmed.
    Opinion filed December 27, 1916.
    Statement of the Case.
    Action-by Josephine Dugan, plaintiff, against the International Association of Bridge & Structural Iron Workers, defendant, to recover a death benefit alleged to be due plaintiff as widow and sole heir at law of one Frank J. Dugan, deceased. From a judgment in favor of plaintiff, defendant brings error.
    Zoline & Levinson, for plaintiff in error.
    Michael Lyons, for defendant in error; John H. Kane, of counsel.
    Abstract of the Decision.
    1. Insubance, § 793

      —when by-law requiring payment of monthly dues and assessments in advance is waived. The provisions of the by-law of a benefit association requiring members to pay dues and assessments monthly in advance is waived by accepting them at any time during the month.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number. 0

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

   Mr. Presiding Justice O’Connor

delivered the opinion of the, court.

2. Insurance, § 780 —how rules and by-laws of benefit society should be construed. The rules and by-laws of a benefit society should be liberally construed, and in case of an attempt by a society to declare a forfeiture will be most strictly construed against it.

3. Insurance, § 793*—when forfeiture for failure to comply with by-law of benefit association may be waived. A forfeiture for failure on the part of a member of a benefit association to comply with the provisions of a by-law requiring prompt payment of assessments may be waived.

4. Insurance, § 781*—when mutual benefit certificate will not be construed as forfeited for failure to promptly pay dues. Where the by-laws of a benefit association provide that all monthly dues are payable in advance and that no member shall be entitled to a benefit if, at the time of his death, he is more than thirty days in arrears, and a member dies on the first day of September, which is Labor Day, the last day of August being Sunday, the prompt payment of dues is waived by the acceptance of payment at any time during the month, and such by-laws should be construed so as not to prevent a forfeiture of the beneficiary’s rights.

5. Corporations, § 57*—when voluntary association estopped to deny corporate existence. A voluntary association consisting of local unions throughout the United States, but which bears a name which implies a corporation and has an organization consisting of a president, first vice president, board of directors, secretary and treasurer, a constitution and by-laws and a common seal, is estopped from denying its corporate existence.

6. Associations, § 9*—what is sufficient service of summons upon. A voluntary association consisting of local unions throughout the United States may be served with summons, in an action by a beneficiary for death benefits, by service upon a part of the members who act for other members of the association as well as for themselves.


author: Mr. Justice Goodwin

text:
    Harry E. Spieker, Defendant in Error, v. William A. Schonfeld, Plaintiff in Error.
    Gen. No. 20,130.
    1. Justices of the peace, § 247—«Aere case is tried de novo on appeal to Circuit Court. On an appeal from a justice of the peace to- the Circuit Court the cause is tried de novo, and may be proceeded with as if nothing had occurred in the justice court.
    2. Justices of the peace, § 165*—-what is extent of recovery on appeal to Circuit Court. Where a suit is brought upon a note in a justice court and an appeal is taken to the Circuit Court, recovery may be had for any and all items which can properly be joined in one action as long as the total does not exceed $200.
    3. Justices of the peace, § 253*—when additional causes of action may not he brought into case on appeal to Circuit Court. Where a suit brought before a justice of the peace is appealed to the Circuit Court and trial had de novo, items that might otherwise properly be brought in by a bill of particulars may not be brought in where the time limited by the statute of limitations has elapsed between the accrual of the additional cause of action and the time when it was brought into the suit.
    4. Limitation of actions, § 90*—when payment does not revive claim. A payment will not revive a claim barred by the statute of limitations unless there is an actual affirmative intention shown on the part of the debtor to make payment on the debt which is claimed to be due.
    5. Appeal and ebbob, § 1810*—when final judgment should he entered upon reversal. Where a judgment is reversed but the evidence discloses the amount due, final judgment should be entered.
    Error to the Circuit Court of Cook county; the Hon. H. Steeling Pomeboy, Judge, presiding. Heard in the Branch Appellate Court at the October term,' 1915.
    Reversed and judgment here.
    Opinion filed December 27, 1916.
    Rehearing denied January 8, 1917.
    Warren Pease, for plaintiff in error.
    Cameron & Matson, for defendant in error.

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

   Mr. Justice Goodwin

delivered the opinion of the court.

Plaintiff in error seeks to reverse a judgment against him for $200, recovered in the Circuit Court, in a cause originally begun in September, 1903, before a justice of the peace. The transcript of the record in the justice’s court showed that recovery was had for $52.38 on a note. An appeal was taken within the statutory time but apparently no further steps were had in the cause until January 26,1910, when a bill of particulars was filed which counted on the note and certain other items. The plaintiff in error filed a plea of the statute of limitations, and at the trial the court found in favor of the defendant in error, and assessed his damages at the sum of $200. With the exception of the note, none of the items included in the judgment was upon any written instrument, and admittedly, if the suit had been begun at the time the bill of particulars was filed, a plea of the statute of limitations would have been a perfect bar to any recovery except upon the note. The position of the defendant in error, however, is that under our statute he had a right to recover in this cause for any and all items which could be properly joined in one action, so long as the sum total did not exceed $200. This is undoubtedly a correct statement of the law as laid down in Waterman v. Bristol, 6 Ill. (1 Gilm.) 597, and Swingley v. Haynes, 22 Ill. 214. Unquestionably, the Circuit Court enters upon the trial of the cause de novo, and may proceed with the cause as though nothing had occurred in the justice’s court. In our opinion, however, this is in no way decisive of the question before us. It is obvious that a suit may be brought for one demand, and afterwards, by proper amendments, its scope may be enlarged so as to include other demands not counted upon originally. In such a case, of course, the question of whether the statute of limitations has or has not run must be determined by computing the time that has elapsed between the date when the additional cause of action accrued and the time when it was brought into the suit. In the present case, the transcript of record and the testimony of the defendant in error himself show conclusively that the suit was not brought to recover any item except the promissory note; that, and that only, constituted the cause of action. While our practice would have permitted the introduction of evidence in the Circuit Court of other demands, so long as the total did not exceed $200, this is due entirely to the provision that the trial in the Circuit Court shall be de novo, and does not change the substantive rights of the parties. The addition of new items not sued for originally indubitably brings into the case new causes of action. In the present case, all items except the note were barred by the statute of limitations at the time the bill of particulars which brought them into the case was filed.

Counsel for defendant in error contends, however, that in any event two payments were made which revived the original cause of action. One of these payments is shown by the receipt to have been a payment on the note, while the other was for fifty books which were then delivered. We do not think that the addition of the words, “on account of settlement if consummated, ’ ’ which were attached to the receipt for this latter sum, renders the payment a payment upon the old account, since it clearly appears that it was paid for the delivery of the books at an agreed price.

A payment will not revive a claim barred by the statute of limitations unless there is an actual affirmative intention shown on the part of the debtor to make payment on the debt which is claimed to be due. (Murtough v. Murphy, 30 Ill. App. 59; Crum v. Higold, 32 Ill. App. 282; C. 3. Albers Commission Co. v. Sessel, 87 Ill. App. 378.) The testimony of defendant in error’s own attorney shows that the payment of $20 was made for the purpose of obtaining possession of fifty books, and that the amount allowed for the binding of each book was forty cents, while the amount stipulated for in the original contract, under which he is claiming, was thirty-three cents. There is, moreover, nothing in the evidence which in any way tends to show that plaintiff in error, in making the payment, admitted or intended to admit that he was in any way indebted to defendant in error aside from the Consequently, the payment neither tolled the running of the statute of limitations nor revived any claim which it had barred. The judgment must, therefore, be reversed, but as the evidence clearly discloses the amount justly due defendant in error, there is no reason why final judgment should not be entered here. The judgment is reversed and judgment will be entered here for $68.89 (the amount of principal and interest due on the note after deducting the $10 paid thereon, and interest from the date of that payment), together with the costs incurred by defendant in error in the proceeding before the justice of the peace and in the Circuit Court.

Reversed and judgment here.


text:
    Nora Kennedy, Administratrix, Plaintiff in Error, v. City of Chicago et al., Defendants in Error.
    Gen. No. 21,262.
    (Not to he reported in full.)
    Error to the Circuit Court of Cook county; the Hon. Chablbs M. Walkeb, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Affirmed.
    Opinion filed December 27, 1916.
    Statement of the Case.
    Action by Nora Kennedy, administratrix of the estate of John Kennedy, deceased, plaintiff, against the City of Chicago, a municipal corporation, the Belt Bailway Company of Chicago, a corporation, Chicago & Western Indiana Railroad Company, a corporation, and Chicago, Rock Island & Pacific Railway Company, a corporation, defendants, to recover damages for the death of her intestate, alleged to have resulted from the negligence of defendants in' leaving holes in a street where it was crossed by the tracks of the railroad company defendants.
    William Gillespie, for plaintiff iii error.
    Samuel A. Ettelson and Charles R. Francis, for defendant in error City of Chicago; Henry T. Chace, Jr., of counsel.
    C. G. Austin, Jr., Beverly W. Howe, M. L. Bell and A. B. Enocs, for other defendants in error.
    Abstract of the Decision.
    1. Continuance, § 31

      —when refusal of court to continue case is not an atuse of discretion. Denial of a motion by plaintiff’s counsel, in an action to recover damages for negligent death, for leave to withdraw a juror and continue the case, held not an abuse of the discretion of the trial court.
    2. Dismissal, nonsuit and discontinuance, § 28*—what constitutes an involuntary nonsuit. Where evidence introduced by the plaintiff lacks all the essential elements necessary to prove his right to recover, the court may cause a nonsuit to be entered in the cause, and such a nonsuit so entered.is involuntary.
    3. Dismissal, nonsuit and discontinuance, § 28*—when involuntary nonsuit in action for negligent death is authorized. In an action by the administratrix of the estate of a deceased person to recover damages for the death of her intestate, alleged to have resulted from the negligence of defendants in leaving holes in a street where it was crossed by the tracks of the railroad company defendants, evidence held so insufficient to justify a verdict against any of the defendants as to authorize an involuntary nonsuit.

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

   Mr. Justice Goodwin

delivered the opinion of the court.


text:
    Reliance Elevator Company, Appellee, v. Michael Zimmer, Sheriff, et al., and Arthur A. Franzke, Appellants.
    Gen. No. 21,305.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Affirmed.
    Opinion filed December 27, 1916.
    Statement of the Case.
    Bill by Reliance Elevator Company, complainant, against Michael Zimmer, sheriff of Cook county, August Franzke and Arthur A. Franzke, defendants, to procure the delivery to complainant of a master’s certificate of sale of certain property, and the payment to him of moneys received by the sheriff for the redemption of the real estate described therein. From a judgment for complainant, defendants appeal.
    The bill of complaint in the cause recited that the complainant purchased certain real estate sold at the master’s sale and received the master’s certificate; that it never assigned or sold the certificate to any person, and that the defendant Arthur A. Franzke, who claimed to be its owner, had no right, title or interest in or to the certificate.
    One J. A. Coleman was employed as the attorney for the complainant in the proceedings which resulted in the sale of the property for which the certificate of sale was issued. Complainant desired to realize money on the certificate, and, through its officers, discussed the matter with Coleman, who told them that the LaSalle Street National Bank might make a loan. Thereupon it was indorsed “Reliance Elevator Company, per A. C. C. Anderson, Secy., C. E. Anderson, Pres.,” with the name of the LaSalle Street National Bank written just above the indorsement, and in that condition was turned over to Coleman. This was some time in the summer of 1912, and on October 2nd of that year, Coleman sold and delivered the certificate to one Clark, for $1,600 in cash. At that time, the words, “LaSalle Street National Bank” had been erased by some chemical wash, and Coleman had written over and directly to the left of the signature of the Reliance Elevator Company the following words: “The Reliance Elevator Co. hereby assigns this claim and certificate to J. A. Coleman. ’ ’ About one inch underneath was written by Coleman: “I assign this certificate to- and guarantee the validity thereof and to render all services in regard thereto free of charge. J. A. Coleman. ’ ’ At the time of the transaction, Mr. Clark wrote his name in the blank, and December 4, 1912, notified the master that he had purchased the certificate. December 9, 1912, Clark assigned the certificate to the defendant Arthur A. Franzke for a consideration of $2,280.80. The erasure was done in such a way that it could have been discovered only upon a very careful examination of the certificate. Complainant learned of the Franzke claim some time in February, 1913, and in March, 1913, made a demand upon the sheriff for the payment to the company of the redemption money. The sheriff refused to comply because the company did not have physical possession of the certificate, and thereupon the bill was filed. Both Mr. Clark and Mr. Topliff acted, in all respects, in good faith. These facts were found by the master. The master further found that there was no negligence on the part of the complainant or its officers; that the equities were with the complainant, and that it was entitled to a decree. The chancellor approved the master’s report, and entered a decree in favor of the complainant.
    Edwin L. Waugh, for appellants.

      Wilicerson, Cassels & Potter, for appellee; Edwin H. Cassels and Blanche A. O’Connor, of counsel.
    Abstract of the Decision.
    1. Judicial sales, § 38

      —when question whether indorsement of master’s certificate in blank is legal assignment is immaterial. On a bill by the rightful owner of a certificate of sale of property, which certificate had been delivered to complainant’s attorney for the purpose of procuring a loan from a specified bank, against a sheriff and a subsequent assignee who derived title through an illegal assignment by such attorney, to compel the delivery of such certificate of sale and the payment of moneys received by the sheriff for redemp-" tio-n of such real estate described therein, held that the question whether an indorsement of the master’s certificate in blank constituted a legal assignment was immaterial.
    2. Alteration of instruments, § 10*—when question of estoppel of principal by leaving instrument indorsed in blank with attorney is not involved. On a bill by the rightful owner of a certificate of sale of property against the sheriff and a subsequent assignee, deriving title through an illegal assignment to compel the delivery of such certificate of sale and payment of money received by the sheriff from the redemption of real estate, where such certificate was turned over to an attorney by the owner for the purpose of procuring a loan, held that the question whether one who has indorsed an instrument in blank and left it with his attorney is estopped to deny the ownership of a bona fide purchaser, was not involved.
    3. Alteration of instruments, § 2*—what constitutes material alteration of certificate of sale. Where a master’s certificate of sale of property is delivered by the owner to his attorney for the purpose of procuring a loan and contains an indorsement by the owner with the name of a specified bank written just above the indorsement, the erasure of the name of such bank constitutes a material alteration where made without authority of the owner.
    4. Alteration of instruments, § 14*—when alteration of certificate of sale by attorney is not a mere spoliation. The contention that the erasure of the name of the bank above an indorsement of the owner of a master’s certificate of sale which had been delivered to the owner’s attorney for the purpose of securing a loan is a mere spoliation which does not invalidate the instrument when done by an agent of the party, is without force where it appears that such attorney had no authority to make such alteration and it is apparent from the use of the name of the bank above the indorsement that it was the intention of the owner to limit the attorney’s authority to transfer title only to such bank.

      See Illinois Notes Disrest, Vols. XI to XV, and Cumulative Quarterly, same (oiiic* and section number.

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

   Mr. Justice Goodwin

delivered the opinion of the court.

. 5. Alteration of instruments, § 14 —when principal is not negligent in leaving certificate of sale indorsed in blank with attorney. The owner of a master’s certificate of sale of property who delivers such certificate of sale to his attorney with an indorsement, of the owner’s name thereof and the name of a bank written just above the indorsement is not negligent in leaving such instrument in the hands of such attorney, although such attorney alters such instrument and makes it payable to himself and by assignment procures money therefor.

6. Alteration of instruments, § 15*—what are rights of purchaser of certificate of sale illegally altered. One who purchases a master’s certificate of sale from an attorney, to whom such certificate had been delivered with an indorsement of the owner’s name thereof and the name of a specified bank written just above such indorsement for the purpose of procuring a loan from such bank, procures no title or interest where such attorney erases the name of the bank above such indorsement and inserts his own name and words of assignment.

7. Alteration of instruments, § 15*—when decree compelling surrender of certificate of sale illegally altered and assigned by attorney not inequitable. On a bill by the owner of a master’s certificate of sale of property to compel the holder of such certificate who had procured it through an illegal assignment by an attorney of the owner, to which attorney the owner had delivered such certificate with his indorsement thereon and the name of a specified bank written just above such indorsement for the. purpose of obtaining a loan from such bank, to compel the delivery of such certificate of sale, and to compel a sheriff to pay to him moneys received for the redemption of such real estate, held that the decree was not subject to the objection that it did not require the complainant to do equity, since it did not in any way empower the attorney to defraud any one and the loss was due solely to the attorney’s wrongful act.

O’Connor, P. J., dissenting.


text:
    Jennie Malmquist v. Belden Manufacturing Company. On Appeal of Belden Manufacturing Company, Appellant, v. Vincent G. Gallagher and Ernest Messner, Appellees.
    Gen. No. 21,378.
    (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 March term, 1915.
    Affirmed.
    Opinion filed December 27, 1916.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Action by Jennie Malmquist, plaintiff, against Belden Manufacturing Company, defendant, for damages for personal injuries. Proceedings by Vincent G. Gallagher and Ernest Messner, attorneys for plaintiff, to enforce an attorney’s lien for services rendered after settlement made between the parties. From a judgment for the petitioning attorneys, defendant Belden Manufacturing Company appeals.
    Ralph F. Potter, for appellant; Wilkerson, Cassels & Potter, of counsel.
    Urban P. Gallagher, for appellees.
    Abstract of the Decision.
    1. Attorney and client, § 150

      —when notice of lien sufficient. A notice of an attorney’s lien which sets out an agreement made between the client and the attorneys, under which they were to prosecute the client, and states that by the terms of such agreement such attorneys were to receive for their services fifty per cent, of any sum realized on said claim or cause of action, is sufficient.

      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 Goodwin

delivered the opinion of the court.

2. Attobney and client, § 146 —what is extent of enforceable lien of attorneys upon settlement between client and debtor. Where a contract between attorneys and the client'provides for the contingent fee of one-third of any amount which might be paid before suit and one-half of any amount which might be recovered after suit, and the debtor is served with notice of a lien claiming for services fifty per cent, of any sum realized upon such claim or cause of action and a settlement is made between the client and the debtor, without the knowledge or consent of the attorneys, for a specified sum which the debtor states the client is to receive “clear for herself,” the attorneys are entitled to a sum equal to that paid to the client, especially where it is apparent that the debtor intended to discharge the obligation to the attorneys.


text:
    D. L. Tarjan, Appellee, v. William C. Regelin, Appellant.
    Gen. No. 21,390.
    (Not to be reported in full.)
    Appeal from the County Court of Cook county; the Hon. J. J. Cooke, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Affirmed.
    Opinion filed December 27, 1916.
    Rehearing denied January 8, 1917.
    Statement of the Case.
    Action by D. L. Tarjan, plaintiff, against William O. Eegelin, defendant, to recover for services in soliciting subscriptions to the capital stock of a bank and for services in placing a loan. From a judgment for plaintiff, defendant appeals.
    John J. Sonsteby, for appellant.
    Alphonse Lefkow and Irene M. Leficow, for appellee. .

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

   Mr. Justice Goodwin

delivered the opinion of the court.

Abstract of the Decision.

Appeal and error, § 1414 —when judgment not disturbed as unsupported by evidence. A judgment of the court on trial without a jury will not be disturbed as unsupported by the evidence where the evidence is conflicting and the judgment is not contrary to the manifest weight of the evidence.


author: Mr. Justice Taylor

text:
    Helen P. Young, Appellee, v. Union Life Insurance Company, Appellant.
    Gen. No. 21,399.
    1. Insurance, § 347*—when policy containing incontestable clause becomes incontestable. Where a life insurance policy provided that it would remain in force for one month after the expiration of one year from its date although the second year’s premium should not be paid, and that after one year from date it would be incontestable except for nonpayment of premiums, held that at the death of the insured, which occurred in the thirteenth month after the date of the policy, it had become incontestable on the ground of fraudulent statements in the application.
    2. Insurance, § 641*—when notice of cancellation inadmissible. In an action on a life insurance policy, incontestable after one year from the date thereof, except for nonpayment of premiums, held that a written notice given to the insured by the insurer within one year of the date of the policy, that it would not be carried after the expiration of the year was inadmissible to prove cancellation of the policy, since it was a notice to terminate it at a future time when it was incapable of termination by the insurer.
    3. Insurance, § 359*—what is effect of attempted cancellation. An ineffectual notice of cancellation of a policy is a recognition of its validity.
    4. Insurance, § 187*—what essential to cancellation of policy. Where the insurer under a life insurance policy, incontestable after one year from date, gave notice to the insured during the first year that it would not carry the policy after the termination of the first year, held that, as the policy was a voidable contract and as the attempted cancellation was in the nature of a rescission, both apt notice of an election to terminate in prcosenti and a tender back of the premium were essential to terminate the policy.
    5. Insurance, § 641

      —When evidence of cancellation of policy inadmissible. Evidence of notice to the insured, under a life insurance policy,' by the insurer- that it had elected to terminate the policy, held properly excluded where the insurer’s counsel admitted that they did not intend to prove a tender back of the premium.
    6. Insurance, § 702*—what recoverable in action on life insurance policy. Interest on the amount of a policy of life insurance is recoverable in an action thereon.
    Appeal from the Superior Court of Cook county; the Hon. H. Sterling Pomeroy, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Affirmed.
    Opinion filed December 27, 1916.
    Eastman & White, for appellant; Ralph R. Hawxhurst, of counsel.
    King, Brower & Hurlbut, for appellee; Samuel B. King, of counsel.

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

   Mr. Justice Taylor

delivered the opinion of the court.

This is an appeal from a judgment of the Superior Court of Cook county rendered in favor of Helen P. Young, plaintiff below and appellee herein, against the Union Life Insurance Company, a corporation, defendant below and appellant herein, upon an insurance policy issued February 16, 1911, in favor of one Edward B. Fairfield, to whom we shall hereinafter refer as the insured.

The declaration consisted of two counts: The first count declared upon the policy in general, and the second count set forth the policy verbatim. On June 7, 1912, the defendant filed a general and a special demurrer, the latter alleging that the plaintiff is not the proper party under the contract; that the declaration does not allege that she had an insurable interest; and that there is not a proper allegation of the assignment of the policy. The demurrers were overruled and a plea of general issue was filed, with notice of special defenses.

The special matters of defense were substantially as follows:

“That the contract declared upon and the assignment thereof never came into existence by reason of the fact that certain conditions precedent were not complied with by said plaintiff and by Edward B. Fairfield, deceased; that the said policy was not accepted nor was the first premium paid while the insured was in good health; that the insured represented in the application that he had never been refused insurance by any other company prior to applying to the Union Life Insurance Company for insurance, whereas he had been refused insurance by a number of companies, and that he knew that he had been refused insurance and had been so informed and wilfully and fraudulently denied the fact in his application; that he committed the grossest fraud in misrepresenting the state of his health, especially in relation to his habits in regard to alcoholic drinks, etc.; that the policy sued upon was canceled by the defendant company within one year from the date thereof, before the payment of the second premium was tendered or received; that said cancellation was made by notice in writing to said Edward B. Fairfield and to Helen P. Young, assignee of the policy, and also orally by demand for the return of said policy; that notice of said cancellation was given to the insured and to the plaintiff within the year of the date of the issuance of the policy.”

Upon the hearing of the case below, the plaintiff introduced the following evidence: The first and second pages of the insurance policy, numbered 3521, of the Union Life Insurance Company (defendant); the proof of the death of Edward B. Fairfield (deceased); the assignment of the policy to plaintiff; the acknowledgment by the defendant of receipt of assignment and the written statement by defendant that it would make the necessary changes on its books; a promissory note' for $8,000 made by Fairfield (deceased) and in possession of plaintiff which was given as security; a countersigned receipt of the defendant for a premium on policy No. 3521 for $190.85; the testimony of the secretary of the defendant that there was on January 9, 1912, a policy No. 3521, issued by the defendant, outstanding on the life of Fairfield. The defendant introduced in evidence that part of the policy which the plaintiff had not offered and the application of Fair-field for insurance. The following three documents were offered, the first being rejected, and the other two received:

“January 9th, 1912.
“Mr. Edward B. Fairfield,
4637 Magnolia Ave.,
City.
“Dear Sir:—
“Acting under our rights on policy #3521 on your life, we desire to notify you that the policy will not be carried beyond the first year.
“We take the opportunity of notifying you in due time, so that you may not be put to the expense or trouble of arranging for second year premium, which we will not accept, as the risk will not be carried.
Very cordially yours,
Union Life Insurance Co.
Secretary. ’ ’
“January 9th, 1912.
“ Mrs. Helen P. Young,
Chicago, Illinois.'
“Dear Madam:—
“Acting under our rights on policy #3521 on the life of Edward B. Fairfield, we desire to notify you that the policy will not be carried beyond the first year.
“We take the opportunity of notifying you in due time, as our records show that you are the beneficiary in the above policy.
Very cordially yours,
Union Life Insurance Co.
Secretary.”
“Chicago, January 9th, 1912.
1 ‘ To Whom It May Concern:
“I hereby certify that I have caused to be this day and date delivered to the United States Mail Box in the Stock Exchange Bldg., Chicago, letter to Edward B. Fairfield, insured, on policy #3521.—that the Union Life Insurance Company will not carry the policy beyond its first policy year, and that I have done so acting under our rights in the aforesaid policy.
L. S. Hall,
Secretary.”

The defendant offered to prove by the testimony of a witness who was connected with the defendant that on December 26 or 29, 1911, he made a demand on the insured for the return of the policy and that it was refused. On the ground that counsel for defendant having stated that it did not intend to prove that the premium was tendered back, the evidence was rejected. The defendant offered to prove that the insured shortly prior to February 16, 1911, had been rejected by a number of insurance companies on account of ill health and had fraudulently deceived the defendant in obtaining the policy here sued on.

The trial judge rejected the evidence on the ground that the premium, admittedly, had not been tendered back, and more than a year having elapsed between the date of the policy and the death of the insured, the policy was then incontestable.

At the close of all the evidence a motion, requesting the court to instruct the jury to find a verdict against the plaintiff, was made and was denied. Plaintiff then moved that the jury be instructed to return a verdict for the plaintiff and to assess her damages in the sum of $5,453.57. That instruction was then given by the court and objected to by the defendant. A verdict was returned and judgment entered thereon, to reverse which the defendant prosecuted this appeal.

The determination of this case depends upon the answer to two questions:

First. Was a tender of the premium necessary to cancellation?

Second. Did the policy before the death of the insured become incontestable?

We will consider the latter question first.

The insurance policy which was issued by the defendant to Fairfield, now deceased, was dated February 16, 1911, and was a term policy. It was paid up until December 16, 1912; that is for a year and ten months from the time .it was issued. On August 19, 1911, it was assigned to the plaintiff by the insured. That portion of the policy which is of chief importance on the subject of incontestability is as follows:

“This Insurance is Granted in consideration of the application for this policy, a copy of which is attached hereto and made a part hereof, and of the payment in advance of One Hundred Ninety and 85/100 Dollars, being the first annual premium for term insurance, from December 16th, 1911, to December 16th, 1912, which is the first policy year. This insurance will be continued after the first.year as a non-participating
Ordinary Life Policy
for the same amount by the payment of One Hundred Ninety and 85/100 Dollars, on or before the 16th day of February, 1912, and annually thereafter on the same day in each year during the continuance of this Policy.
“This Policy is Incontestable after one year, except for the non-payment of premiums. ’ ’

It would seem upon an examination of the above phraseology that it was optional with the insured to keep it as term insurance or take the “ordinary life policy.” There is no evidence to show that any change was made from the first intention of the insured to take a term policy.

The receipt given by the defendant for the first premium of $190.85 contains the following language:

“And the said policy is hereby continued in force until the 16th day of February, 1912.”

The second premium on the policy was never paid, but the policy provided that if the death of the insured occurred within one month (the so-called period of grace) after the expiration of one year, it would remain in force. It will be seen that the insured died within the period of grace shortly after the end of the first year. There is no doubt, therefore, that the policy took effect on February 16, 1911, and that the language in the policy, “After one year from this date this policy shall be incontestable except for the nonpayment of premiums,” means that on February 16, 1912, the period of contestability had expired, and that on February 22, 1912, the date of the death of the insured (and within the month of grace), the policy was incontestable. The Royal Circle v. Achterrath, 204 Ill. 549; Weil v. Federal Life Ins. Co., 182 Ill. App. 322.

As to the first question above mentioned, was a tender of the premium necessary to cancellation? It is admitted that the defendant undertook to rescind or cancel the policy and did not tender back the money it had received as premium, which latter was the consideration paid by the insured for the policy.

The defendant offered evidence to prove that the policy had been canceled within the policy year, that is to say, about December 29, 1911, and on or about January 9, 1912; in the first instance a conversation between an officer of the company and the insured and the delivering of a notice of cancellation, and in the second instance, the written notices of cancellation mailed both to the insured and to the assignee (plaintiff). A written notice of cancellation dated January 9, 1912, from the defendant to the insured which was offered by the defendant and excluded by the trial judge, contained the following language:,

“Acting under our rights on policy #3521 on your life, we desire to notify you that the policy will not be carried beyond the first year.
“We take the opportunity of notifying you in due time, so that you may not be put to the expense or trouble of arranging for second year premium, which we will not accept, as the risk will not be carried.”

We are of the opinion that the trial judge was right in excluding that document from evidence inasmuch as it was a notice to terminate the policy at a future time and at a time when, under the incontestable clause, the policy would be incapable of termination by the defendant.

The written notice dated January 9., 1912, from the defendant to the assignee of the policy (plaintiff) which was admitted in evidence,' contains the following:

“Acting under our rights on policy #3521 on the life of Edward B. Fairfield, we desire to notify you that the policy will not be carried beyond the first year.”

This was objected to and should have been excluded for substantially the same reasons as those given for the exclusion of the preceding notice to the insured.

The defendant undertook to introduce in evidence the testimony of a witness connected with the Union Life Insurance Company, of a conversation with the insured which took place in St. Luke’s Hospital on or about December 26 or 29, 1911, to the effect that the company had elected to void its liability under policy No. 3521 because of fraud in the representations to the company in securing the policy; and that he requested Fairfield to return the policy, which Fairfield refused, and that he thereupon handed to said Fairfield a sealed envelope which contained in substance a notice of cancellation of the policy. Objection to the testimony was made by the plaintiff on the ground that it did not appear that the defendant returned any part of the premium ■ which the company had received. It was admitted by counsel for the defendant that they did not intend to prove that they tendered back any part of the premium.

The trial court thereupon ruled that the premium should have been tendered back at that time, and that as it was admitted that it was not tendered back at that time, the evidence offered was inadmissible.

Counsel for defendant in their brief used the following language:

“We submit respectfully and earnestly that this ruling was absolutely erroneous, and although supported apparently by some authorities, it is not in accordance with the weight of authority, with the best public policy, nor with the most enlightened view upon the subject of contracts, and especially insurance contracts.”

The subject of returning premiums coincident with cancellation has been discussed by many courts, and about it there still remains some confusion and also diversity of opinion. Counsel for the defendant undertake to make a distinction between policies which are voidable and those which are void ab initio. We do not perceive that it is of importance in this case. It may be said with reason, however, that every policy of life insurance which contains an incontestable clause is a voidable contract, and is never void ab initio; the reason being that if the insurer allows the specified term (a year in this case) to elapse without a contest or cancellation, all the defenses, such as fraud and misrepresentation, become untenable and the contract unassailable.

On the other hand, it may be contended that the only time when the fraud or misrepresentation could void the policy was when the fraud and misrepresentation occurred, and that was at the beginning. In other words, when the company undertakes to elect to terminate the contract, the termination of the contract does not date from the time of election, but at the time of the breach, which was the time when the fraud or misrepresentation took place.

As a matter of fact, the defendant in this case undertook to prove that the policy was obtained by fraud and, therefore, that it was void ab iwitio. It also did prove, by the letter dated January 9, 1912, that it elected to cancel the policy not in prcesenti, but at the end of the first year. Necessarily, the two positions are in conflict. The policy cannot at one and the same time be void and voidable. The letter of so-called cancellation recognized and ratified the policy as a good policy for at least one year.

Being of the opinion that the contract in this case was a voidable contract, it follows that a cancellation is in the nature of a rescission, and requires for its consummation both apt notice of an election to terminate in prcesenti and a relinquishment of the consideration. We cannot consider the defendant as seeking to avoid liability on the policy because of the fraud or misrepresentation of the insured, but only as seeking to rescind, which latter involves both an affirmation of the contract and then a dissolution of it. The defendant had the power to terminate or continue the contract, and it exercised that power as it thought best. No matter what it did in December, 1911, it recognized by its letter of January 9, 1912, the then existence of the policy. It cannot at one "and the same time consider the policy alive for the purpose of earning premium, and dead for the purpose of avoiding a loss.

Assuming the truth of the evidence offered, the insured undoubtedly perpetrated a bare-faced fraud, but, in view of the promise by the defendant of incontestability after the lapse of a year, and the failure to perform one of the necessities of cancellation, we are of the opinion that the ruling of the trial judge was in accordance with the law. The cases that are of importance on this subject are the following: Rigdon v. Walcott, 141 Ill. 649; Naugle v. Yerkes, 187 Ill. 358; Dickerson v. Northwestern Mut. Life Ins. Co., 200 Ill. 270; Commercial Life Ins. Co. v. Schroyer, 176 Ind. 654; Groffinger v. Metropolitan Life Ins. Co., 183 Ill. App. 618; Hansell-Elcock Co. v. Frankfort Marine Accident & Plate Glass Ins. Co., 177 Ill. App. 500; Falberg v. Continental Casualty Co., 195 Ill. App. 237; Seaback v. Metropolitan Life Ins. Co., 274 Ill. 516; Aetna Life Ins. Co. v. Paul, 10 Ill. App. 431.

The defendant contends that the plaintiff is not entitled to interest on the amount of the policy. The law, however, is otherwise.

Some other questions have been raised by counsel but, in view of the foregoing conclusions, we consider them as immaterial.

Finding no errors in the record which justify a reversal, the judgment is affirmed.

Affirmed.


text:
    F. A. Morris for use of Ottis Benedict et al., trading as the Benedict Type-setting Company, for use of Kilgore Linotype Company, Defendant in Error, v. Hankel Printing Company, Plaintiff in Error.
    Gen. No. 21,429.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Sheridan E. Fry, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Reversed and cause dismissed.
    Opinion filed December 27, 1916.
    Statement of the Case.
    Action by F. A. Morris for use of Ottis Benedict, Lillian Braham and Earl Benedict, trading as the Benedict Type-setting Company, for use of Kilgore Linotype Company, a corporation, plaintiff, against the Hankel Printing Company, a corporation, defendant, to recover on an account for metal delivered to the defendant. To review a judgment for plaintiff, defendant prosecutes a writ of error.
    E. Egbert Collins, for plaintiff in error; Morton T. Culver, of counsel.
    Charles Daniels and Sumner C. Palmer, for defendant in error.
    Abstract of the Decision.
    Assignments, § 37

      —what assignee must grove in action against debtor. Where a lessee of a printing shop and typesetting machines brought an action against one of its customers to recover on an account for metal delivered to the defendant by the plaintiff’s lessor, which account the plaintiff claimed it had acquired at the time of making the lease and for which the defendant claimed it had settled with the plaintiff’s lessor with whom it had previously done business, not having had any notice of the assignment thereof, held that a judgment for the plaintiff was not justified, as it had failed to prove notice to the defendant of such assignment.

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

   Mr. Justice Taylor

delivered the opinion of the court.