text:
    Josephine Broughton, Administratrix, Plaintiff in Error, v. Charles H. Weller et al., Defendants in Error.
    Gen. No. 16,889.
    1. Appeals and errors—when objections and exceptions not essential. Where a guardian sues in equity on behalf of an insane ward, the fact that no objections to the master’s report or exceptions to a decree were made by the complainant, may not prevent him, as guardian, from asserting error in the decree.
    2. Deeds—when grantee is relieved of charge upon real estate. Where a charge upon real estate, for the support of a daughter confined in an insane asylum, is created by a deed from a father to another daughter, payments by the father to the asylum for the support of his daughter will relieve the grantee from liability.
    3. Deeds—-when interest not allowed in enforcing charge upon real estate. Where a charge upon real estate for the support of a person is created by deed, in obtaining a decree enforcing the payment of long overdue instalments for which no demand was made, it may be proper not to allow interest.
    4. Deeds—disposition of proceeds in enforcing charge upon real estate. A charge upon real estate, for the support of a person as long as she might live, was created by deed and the grantee mortgaged the property. Instalments were long overdue and in enforcing the charge it appeared that it was for the best interests of the parties that the property be sold. Held, it was not proper to direct a sale subject to a continuing charge, but that a surplus from the proceeds of the sale should be burdened with the charge.
    Error to the Superior Court of Cook county; the Hon. Albert C. Barnes, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Reversed and remanded with directions.
    Opinion filed November 7, 1912.
    Bentley, Burling & Swan, for plaintiff in error.
    Michael F. Cure, for defendant in error.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.

On October 13, 1908, a bill was filed in the Superior Court of Cook County by Frank A. Hobein, as guardian of the person and estate of Loretto Lonergan, an insane person, against Charles H. Weller and others, by which it was sought to enforce a charge created by deed upon certain real estate in the city of Chicago. A decree was entered in favor of complainant, May 6, 1909, finding that “the sum of $3,360.72 was due complainant on April 24, 1909', together with the further sum of $26 per month to accrue from April 24, 1909, to the day of sale hereinafter provided for, or to the date of the death of the defendant, Loretto Lonergan, in case of her death prior to said sale,” and declaring the same to be a first lien on said real estate; also finding that $3,249.08 was due the defendant, Charles H. Weller (a mortgagee) and declaring the same to be a second lien on said real estate. The decree ordered, in default of payment by the defendants of the amount so found to be due complainant, that the real estate be sold by a master in chancery, and directed the master to distribute the proceeds of the sale, after satisfying the costs, first by paying to complainant’s solicitor the amount so found to be due complainant, together with interest thereon, and second by applying the surplus of such poceeds toward the payment of said amount so found to he due the defendant Weller. From the master’s report of sale and distribution, confirmed by the court on July 16,1909, it appears that the property was sold to H. O. Stone on June 1, 1909, for the sum of $5,000, that complainant received the full amount due him up to said June 1, 1909, and that the proceeds were distributed as follows :—

“Paid complainant’s solicitor taxed costs $ 31.00
Paid complainant in full and debt and interest ................................ 3,398.38
Paid defendant Weller part of debt, interest and costs ...................... 1,438.12
Master’s fees, disbursements and commissions .............................. 132.50
Total disbursements ............$5,000.00
Deficiency as to Weller, the mortgagee . .2,825.24”

The complainant Frank A. Hobein, as such guardian, sued out this writ of error to reverse the decree. Since the filing of the transcript of the record in this court, Loretto Lonergan, of the insane ward, departed this life, August 18, 1911, at St. Vincent’s Institution in St. Louis, Missouri; subsequently, Josephine Broughton was appointed administratrix of her estate by the probate court of St. Louis County, Missouri, and on February 15, 1912, her death was suggested of record in this court and Josephine Broughton was substituted as plaintiff in error, she being represented by the same firm of attorneys as had formerly represented Frank A. Hobein in this court.

The facts of the case are, substantially, that at the time of the entry of said decree Loretto Lonergan was, and for more than thirty years prior thereto had been, confined as an insane person in St. Vincent’s Institution, a charitable institution for the care of the insane; that said Frank A. Hobein was appointed as guardian of her person and estate in 1887; that on May 23,1890, John Lonergan, father of Loretto, conveyed by warranty deed said real estate to Esther Gr. Lonergan sister of Loretto, subject to a change thereon as set forth in said deed as follows:

“Subject to a charge of $312 per year, payable quarterly, for the support of Loretto Lonergan, so tong-as she may live; this sum to be a continuing charge upon this property so tong as Loretto may live.” That on February 23, 1900, Esther Gr. Lonergan, to secure the payment of her promissory note for $3,000, conveyed by trust deed the same property (together with other property immediately adjoining it) to the Title Guarantee and Trust Company, as trustee, subject to said charge; that at the time of the entry of said decree the defendant, Charles H. Weller, was the legal holder of said note; that for the first two and one-half years after the creation of said charge of $312 per year upon said property, viz.: from May 23, 1890, to November 24,1892, Esther G. Lonergan, the grantee in said deed from John Lonergan, did not pay anything for the support of Loretto, but that said John Lonergan, the father, paid to said St. Vincent’s Institution for said support for that period the total sum of $798.20; that from November 24,1892, down to October 18, 1900, said Esther Gr. Lonergan made payments in irregular amounts and at irregular intervals direct to said Institution for said support aggregating the total sum of $1,761.28; that Esther Gr. Lonergan died in February, 1901, and that no other payments for said support were made by anybody. It does not appear from the testimony taken before the master, except by hearsay, that said Institution or anybody else ever made formal demand of Esther Gr. Lonergan to pay to it the overdue instalments for Loretto’s support, or that anybody took any legal steps to enforce the payment thereof until this bill was filed. The master in his report found that the said charge upon the property for said support had been paid by John Lonergan up to November 24,1892, and that there was due on April 24, 1909, to said complainant, as guardian, on account of said charge of $312 per annum from November 24,1892 (a period of sixteen years and five months) a net balance of $3,360.72, which complainant was entitled to- receive together with the further sum of twenty-six dollars per month from April 24, 1909, until a sale was made to satisfy said claim or until the death of Loretto, in case of her death prior to said sale. The master in reaching this balance credited the said sum of $1,761.28, so paid by Esther Gr. Lonergan, as payment on account of said charge, but made no charge for interest on the overdue installments. In accordance with the findings and recommendation of the master the decree in question was entered.
It is stated by counsel for plaintiff in error, in their written brief and argument filed in this court, that in the court below the complainant, Frank A. Hobein, guardian, etc., left the conduct of the suit entirely to his then retained solicitor, “who failed to present to the court any of the contentions now advanced and who made no objection to the amount found due to the complainant by the decree;” that “it was not until after the property had been sold and the proceeds distributed in pursuance of said decree that complainant realized * * * that the decree was erroneous in finding too small an amount due him, ’ ’ and that thereupon he employed additional solicitors. The transcript of the record shows that on July 27, 1909, said additional solicitors moved “that the court vacate the order heretofore entered on July 16,1909, confirming the master’s report of sale,” which motion was, on November 20, 1909, denied. The transcript does not disclose that any objections to the master’s report or any exceptions to the decree of May 6, 1909, fixing the rights of the parties, were made by the complainant.
In urging a reversal of the decree of May 6, 1909, counsel for plaintiff in error say that they are not attacking the title acquired by the purchaser, H. O. Stone, under said sale, inasmuch as he was a tona fide purchaser. “Innocent third parties have a right to rely upon a judgment or decree of a court having jurisdiction to pronounce it. * * * Innocent purchasers acting in good faith will be protected, notwithstanding the subsequent reversal of the decree or judgment.” Ure v. Ure, 223 Ill. 454, 464. Nor is any attack made on the decree of the court finding that on April 24,1909, there was due complainant the sum of $3,360.72, save that the amount was not as large as it should have been. Counsel seek a reversal of the decree, solely in order that plaintiff in error may recover the $1,438.12 paid by the master to the defendant Weller. They contend that under a proper decree complainant would have been entitled to the entire proceeds of said sale, after deducting the costs of the proceeding. They cite in this connection the case of Ure v. Ure, supra, where it is said, page 463: “A party to a suit is presumed to know of all the errors in the record, and such party cannot acquire any rights or interests based on such erroneous decree that will not he abrogated by a subsequent reversal thereof. If such party has received benefits from the erroneous decree or judgment, he must, after reversal, make restitution, #

Counsel also contend that the fact that no objections to the master’s report or exceptions to said decree were made by the complainant does not prevent him, as guardian, from urging a reversal of the decree in this court on writ of error, and for the reason, as stated by counsel, that while it is doubtless true that if Frank A. Hobein were suing in his own right he would be estopped from asserting error in a decree rendered in his favor without objection, in this ease he is not suing in his own behalf but on behalf of his insane ward, and the guardian of an infant or an insane person cannot deprive his ward of legal rights by failing to assert them or even by expressly waiving them. In this connection counsel cite the following cases: Fietsam v. Kropp, 6 Ill. App. 144; Huling v. Huling, 32 Ill. App. 519; Stark v. Brown, 101 Ill. 395; Gooch v. Green, 102 Ill. 507, and Stevens v. Van Buren, 1 Paige Ch. (N. Y.) 479. We are of the opinion that under this record the main questions .raised by counsel, which will now be considered, are properly before this court.

It is first contended by counsel that the finding of the master, viz.: “that said John Lonergan paid up said charge to November 24, 1892,” is erroneous, and that the court erred in entering the decree based upon that finding. As before stated, the testimony shows that, for the first two and one-half years after the creation of said charge of $312 per year on said property by the deed of May 23, 1890, down to November 24,1892, the grantee in said deed, Esther G. Lonergan, did not pay anything for the support of said ward, but that John Lonergan, the father, paid direct to St. Vincent’s Institution, where said ward was confined, the total sum of $798.20 during said period. Counsel state that said annual charge for said two and one-half years amounts to the sum of $780, that the amount found by the court to be due complainant on April 24, 1909, should have been increased by this sum and that the amount received by the defendant Weller from the proceeds of said sale would have been correspondingly decreased. In support of their contention they argue that the said charge was payable to Loretto; that, hence, it was payable to her guardian; that the mere payment to St. Vincent’s Institution by the father during said period of said sum of $798.20 raises no presumption that the father intended thereby to satisfy said charge for that period; that, while it is doubtless true that if the father in making said payment had intended the same to operate as a payment of said charge such payment would have relieved Esther Q. Lonergan from her obligation because of said charge, the record in this case does not tend to show any such intention. We cannot agree with counsel. The clause in the deed reads “Subject to a charge of $312 per year, payable quarterly, for the support of Loretto Lonergan, so long as she may live.” In other words, the conveyance is made subject to a charge for her support so long as she may live to the amount of $312 per year, payable quarterly. It is not stated to whom this money is to be paid. The testimony of the complainant, Frank A. Hobein, guardian, shows that for many years prior to the date of said deed Loretto was confined in said Institution and her support was paid by her father, that she remained in said Institution, and that subsequently to the date of said deed and up to November 24, 1892, her support “was fully paid” by her father. We do not think that, under the facts of this case, the court erred in finding that the charge for Loretto’s support had been paid up to November 24, 1892.

It is further contended by counsel that, in computing the amount due complainant on April 24, 19091, the court erred in failing to allow interest at the legal rate on the overdue quarterly instalments after November 24, 1892. After careful consideration of the various points made and authorities cited by counsel in this connection, and after a review of the record, we have concluded that the court did not so err.

It is lastly contended by counsel that the court erred in failing to make provision in the decree of sale of said property for the payment of the instalments for Loretto’s support falling due subsequently to the date of said sale and during the remainder of Loretto’s life. Counsel argue that the court should have made such provision in one of two ways, either by directing a sale of the property subject to such “continuing charge * * * so long as said Loretto may live,” or by “capitalizing” Loretto’s life expectancy and directing that out of the proceeds of such sale the amount resulting from such capitalization be paid to complainant in addition to what the court in its decree directed should be paid complainant. We do not think, under the facts in this case, that it would have been either advisable or equitable for the court to have directed a sale subject to such continuing charge. The testimony tends to show that it was for the best interests of the ward and for the mortgagee, Weller, that the property be sold, and for the highest price possible. If the property had been offered at the judicial sale subject to such continuing annual charge, of uncertain duration, it probably would not have brought much. It is at least doubtful if the total amount realized would have been as much as the sum which complainant received from the sale as made, and which plaintiff in error is now asking to have increased out of the sum which the defendant Weller received. But we have reached the conclusion that the court erred in failing to make provision for Loretto’s support after June 1, 1909, the date of the sale, and so long as she might live, out of the proceeds of such sale. In other words, out of the proceeds, the court, in addition to directing that the complainant be paid the amount found due him at the date of said sale (as was done), should have directed that the surplus remaining, if any, he subject to said annual charge for Loretto’s support so long as she might live, or in some other appropriate manner protected Loretto’s rights after June 1, 1909. This surplus should only, if at all, have been paid over to the defendant Weller burdened with the charge in favor of Loretto.

When this writ of error was sued out of this court Loretto was living. Subsequently, on August 18, 1911, she died and her death has been suggested of record in this court. At her death the charge made by her father for her support ceased. In our opinion the sum of $1,438.12, which under the erroneous decree of the lower court was paid over to the defendant Weller unburdened with said charge in favor of Loretto, is in equity under the facts of this case charged with the payment of Loretto’s support from June 1, 1909, to August 18,1911, and that the defendant Weller should be directed by proper decree to pay to plaintiff in error the proper amount for such support for that period, at the rate of $312 per year, without interest.

The decree of the Superior Court is accordingly reversed and the cause is remanded with directions that that court enter a decree not inconsistent with the views herein expressed, the sale of the property made to H. O. Stone to stand.

Reversed and remanded with directions.


source: Caselaw Access Project

author: Mr. Presiding Justice Gridley

license: Public Domain

text:
    Emil Eisner, Plaintiff in Error, v. Julius Jesuin, Defendant in Error.
    Gen. No. 17,156.
    1. Witnesses—discretion in excluding testimony of child. The trial court did not abuse its discretion in excluding the testimony of a ten-year-old girl where it does not appear that such court acted arbitrarily without examining the child as to competency, and especially where it appears that the finding of the court sitting without a jury seemingly would not have been different if the child had testified as stated in the bill of exceptions.
    2. Appeals and errors—presumption that child was examined as to competency to testify. It is presumed on appeal, in the absence of a contrary showing, that where the trial court excluded the testimony of a ten-year-old girl it made an examination as to the child’s age, moral sense, intelligence and understanding.
    Error to the Municipal Court of Chicago; the Hon. Michael F. Gibten, Judge, presiding. Heard in the Branch Appellate Court at March term, 1911.
    Affirmed.
    Opinion filed November 7, 1912.
    Harry C. Lehman, for plaintiff in error.
    No appearance for defendant in error.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.

On September 27, 1910, Emil Eisner, plaintiff in error, commenced an attachment suit in the Municipal Court of Chicago against Julius Jesuin, defendant in error, claiming that the latter was indebted to him in the sum of $110 for board furnished. The Wisconsin Steel Company, for whom defendant in error worked, was summoned as garnishee and filed an answer. The cause was heard by the court without a jury, the attachment issued was sustained, and the court further found in favor of plaintiff in error and assessed his damages in the sum of thirteen dollars, upon which findings judgment against defendant in error was entered for said sum and costs and charges amounting to $5.10, and that plaintiff in error recover of the garnishee the sum of $18.10, and have execution therefor. Plaintiff in error seeks by this writ to reverse the judgment.

From the statement of facts, or bill of exceptions, it appears that

‘1 Plaintiff offered to prove by Ora Eisner, a ten year old daughter of Emil Eisner, that Julius Jesuin roomed and boarded at the house of Emil Eisner from in October, 1907, until about July 1, 1909. The court ruled out this evidence on the ground that the witness was too young to testify; and on the further ground that he gave very little credence to children’s testimony.”

It further appears that

“On motion for a new trial it was urged * * * that there was error in refusing to admit the evidence of the ten year old daughter of plaintiff; * * * that the court erred in ruling that it was not sufficiently proved that Julius Jesuin was a boarder at the house of Emil Eisner, * * * and that on the story of defendant himself his evidence was entitled to no weight whatever.”

Connsel for plaintiff in error urge practically the same points in this court as reasons why the judgment should be reversed. After a review of the case we cannot say that the finding and judgment is against the weight of the evidence. The testimony was conflicting as to whether during a certain period defendant in error was a roomer and a boarder in the house of plaintiff in error, or whether he was only a roomer.

As to the contention that the trial court erred in refusing to admit the evidence of the ten-year-old daughter of plaintiff in error, we are unable to say that there was an abuse of the court’s discretion in this regard. It does not appear from the record, as counsel contends it does, that the trial court arbitrarily, and without making any examination of the child as to her competency, refused to hear her testimony. In the absence of an affirmative showing to the contrary, it is to be presumed that the court made an examination as to the age, moral sense, intelligence and understanding of the child. In Epstein v. Berkowsky, 64 Ill. App. 498, 501, this Court said: “The admissibility of children under fourteen years of age to testify, is largely discretionary, and depends mainly upon the moral sense, intelligence and understanding of the child.” In Shannon v. Swanson, 208 Ill. 52, 54, it is said: “A witness who has reached the age of fourteen years should be presumed, prima facie, competent. If below that age, his competency to testify is to be determined by an inquiry as to the strength of his mental faculties and his power to understand and appreciate the moral duty to speak the truth. This inquiry is to advise the trial judge, whose duty it is to determine whether the person is competent to testify. The decision of this matter may be reviewed, but as the intelligence of the witness is to be ascertained, to some extent, by his appearance and conduct while in the presence of the court, and as the judge is vested with a degree of discretion, it is only when there has been an abuse of discretion or a manifest misapprehension of some legal principle that the decision will be reviewed.”

Furthermore, as this case was tried by the court without a jury, the finding of the court would seemingly not have been different had the child been allowed to testify to the effect as stated in said statement of facts.

The judgment of the Municipal Court of Chicago is therefore affirmed.

Affirmed.


text:
    Bullock Motor Company, Plaintiff in Error, v. Edgar James, Defendant in Error.
    Gen. No. 17,192.
    Municipal court—ioften substantial justice is done. Substantial justice is done in an action in the Municipal Court of Chicago for an alleged balance due for an engine furnished defendant where judgment is entered for defendant for $180 on his set-off, the evidence tending to show that plaintiff for $388 was, within a certain time, to completely install an engine in defendant’s boat which would make sixteen miles an hour, and that defendant paid $180 and gave an engine worth $90 on account, but that performance was five days late and that the engine furnished would make only nine miles an hour.

      Error to the Municipal Court of Chicago; the Hon. Chabees N. Goodnow, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Affirmed.
    Opinion filed November 7, 1912.
    Henry T. Chace, Jr., for plaintiff in error.
    E. W. Adkinson, for defendant in error.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.

This writ of error is prosecuted to reverse a judgment of the Municipal Court of Chicago for $180 and costs, rendered in a fourth class suit in favor of Edgar James, defendant in error (defendant below and hereinafter called defendant), against Bullock Motor Co., plaintiff in error (plaintiff below and hereinafter called plaintiff). The case was tried before .the court without a jury, and the court found the issues against plaintiff on defendant’s claim of set-off, and assessed defendant’s damages at the sum of $180, upon which finding the judgment was entered.

On September 14, 1910, plaintiff commenced an attachment suit in said court against defendant by virtue of certain provisions of chapter 12 of the Revised Statutes concerning “Attachment of Water Craft.” It was stated in the affidavit for attachment that “the plaintiff, Bullock Motor Co., has a just demand against Edgar James, the defendant, on account of an 18-horse power T. & M. copper jacket gasoline engine, installed with muffler in the boat of the defendant, named Gibson Girl, and that the balance due plaintiff from defendant on said account is $140.” An attachment writ was issued, which commanded the bailiff to “attach the said Gibson Girl, her tackle, apparel and furniture to satisfy such demand,” etc., which was done. Subsequently the attachment was released upon defendant filing a bond. Defendant filed an affidavit of merits to plaintiff’s claim and also a claim of set-off. The affidavit of merits stated that

“Plaintiff'failed to install an 18 H. P. T. & M. Marine gasoline engine, copper jacket, complete equipment with reverse gear, by June 10, 1910, guaranteed to make sixteen miles per hour as per agreement, in defendant’s boat, but installed an engine which does not exceed nine miles per hour, and which is worthless to defendant; that plaintiff damaged defendant’s boat; that defendant was put to expense in caring for said boat because of said damage, the items of which are stated in set-off filed herewith, * * * ”

Defendant’s statement of set-off, supported by affidavit, was,

“Defendant’s claim is for damages occasioned by the failure of the plaintiff to install one 18 H. P. T. & M. Marine copper jacket complete equipment with reverse gear, as per agreement, and property and cash paid on account, to-wit:
1 9 H. P. Schmidt, 4-Cycle, 2 cylinder $ 90.00
Cash paid on account 180.00
Damages to boat 15.00
Wages for pumping out boat 10.00
$295.00”

It appears from the evidence that in May, 1910, defendant was desirous of obtaining a new gasoline engine for his boat; that he met Donald Martin, agent for plaintiff corporation, engaged in the business of selling such engines, and told him that his boat was not able to keep up with other boats during races, and that he wanted an engine installed of such power that his boat could at least keep up with, if not pass, some of the fastest boats; that Martin suggested the 18-horse power T. & M. gasoline engine in question and verbally guaranteed defendant that said engine would enable the boat to run sixteen miles an hour; that defendant wanted Martin to put this guaranty in writing, which Martin agreed to do; that, thereupon, defendant said he would buy the engine, and it was agreed that the old engine then in the boat was to be taken as part payment on the purchase price at a valuation of ninety dollars; that defendant would pay for the new engine $388, less said ninety dollars, or $300, completely installed; that, thereupon, the order for the engine was on May 27,1910, reduced to writing, and a copy given to defendant, which order, after describing the engine and stating the price and the amount of credit to be given for the old engine, contained the words “Complete installed by June 10, 1910, $300, guaranteed sixteen miles per hour;” that at the time of giving the order defendant paid $70, and later $100 to plaintiff, and at the time the boat was launched with the new engine installed therein the sum of ten dollars for expense of launching the boat,—$180 in all, and that the engine was completely installed by June 15, 1910.

After the boat was launched several trial trips were made to test the speed of the boat with the new engine installed therein, and at no time did the boat reach a speed of sixteen miles per hour, as guaranteed. The evidence was very conflicting as to just how fast the boat could travel, but tended to the conclusion that its average speed would not exceed nine miles per hour. One witness testified that the engine as installed could not make the boat run as fast as sixteen miles per hour, and that, in his opinion, no other 18-horse power T. & M. engine could. The court seemingly took the position at the trial that defendant had purchased the engine relying on the guaranty of plaintiff that said engine would cause the defendant’s boat to travel as fast as sixteen miles per hour, that the engine did not comply with the guaranty and was valueless to defendant for the purpose for which it was bought, but had a value to defendant equal at least to the value of defendant’s old engine which he had delivered to plaintiff in trade, and that under the facts of the case defendant’s damages, for the breach of plaintiff’s guaranty, was the amount of money which defendant had paid plaintiff and had expended—viz.: $180. Counsel for plaintiff urges in this court that the finding and judgment are against the weight of the evidence, and that the case was tried below under an erroneous or mistaken theory of the law as to burden of proof. We cannot agree with counsel and are of the opinion, under the facts disclosed from the record, that substantial justice has been done, and the judgment is accordingly affirmed

Affirmed.


text:
    John W. Snyder, Plaintiff in Error, v. L. H. Sass, Defendant in Error.
    Gen. No. 17,214.
    Lateral support—where contractor gives notice of excavations. Where plaintiff, a contractor, notified defendant of contemplated excavations along the wall of defendant’s building and defendant wrote in reply to protect his wall “at the smallest possible cost,” and subsequently the parties agreed plaintiff should make excavations in sections, take necessary steps to protect the wall and get defendant “out of it as cheap as he could,” it was error to sustain defendant’s motion to enter judgment for only the cost of concrete used in repairing the wall, when the action was also for other items of labor and lumber.
    Error to the Municipal Court of Chicago; the Hon. Wuxiam H. Ddstbrich, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Reversed and remanded.
    Opinion filed November 7, 1912.
    Gale Blocki, for plaintiff in error.
    Frederick Sass, for defendant in error.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.

Plaintiff in error (plaintiff below), a building contractor, had a contract for the erection of a building on a lot known as No. 45 N. Peoria street, Chicago. Defendant in error (defendant below) was the owner of the adjoining lot on the south, which was improved by a two-story brick building, extending along the entire length of the lot, about 121 feet, the north wall of which building was about four inches from the north line of said lot. The south wall of the building to be erected by plaintiff was to extend to the lot line and along the entire length of the lot. Plaintiff made an examination of defendant’s building, ascertained that the bottom of the south wall of the proposed building would be five or six feet below the bottom of the north wall of defendant’s building, and notified defendant in writing of the situation and of the excavations necessary to be made. Defendant wrote plaintiff in reply: “If there is any support necessary for the wall, you are hereby authorized to protect the same at the smallest cost possible.” Subsequently plaintiff had a conversation with defendant on the site of the proposed building, and plaintiff told defendant that he would try and make the excavations, and erect the foundation of the south wall of the proposed building, in sections, and in that way avoid the big expense of putting in a new foundation underneath the north wall of defendant’s building. Defendant told plaintiff to use his best judgment and get defendant “out of it as cheap as he could.” Plaintiff proceeded to excavate in sections that is, a piece of ground about four feet in length was excavated, then skipping about four feet of ground another similar excavation was made, and so on along the entire length of defendant’s building. In these holes three layers of concrete were put in and after the intermission of a day the intermediate sections of ground were removed and the foundation in said sections was built up to the same level. There were about twenty-five of these sections 'along defendant’s building, and during the progress of the work the north wall of defendant’s building was properly braced by means of beams and timbers. It was discovered that in some places the foundation of said north wall was “rotten” and portions thereof would fall and the earth underneath would cave into some of said sections. When this occurred plaintiff would fill in that portion of defendant’s foundation with concrete. After the foundation of the new building had been entirely completed, defendant refused to pay plaintiff for the latter’s work in protecting his foundations, wall and building and plaintiff brought suit in the Municipal Court of Chicago. At the trial, before the court without a jury, plaintiff claimed the total sum of $90.90, itemized as follows: the sum of $58.30 for wages paid to his men for the additional time consumed in erecting the foundations in the manner described over and above the time which would have been required to erect the same had defendant’s land been in its natural state, and not improved by said building, plus the usual and customary twenty per cent, added to the cost of the labor for the contractor’s services, also the sum of $6.75 for lumber used in doing the necessary bracing of defendant’s north wall, and also the sum of $25.85 for concrete necessarily used when portions of the foundations of defendant’s wall fell and the earth underneath caved in, as aforesaid. At the conclusion of plaintiff’s case, the attorney for defendant moved for a finding in favor of defendant on the ground that plaintiff, in making said excavations and erecting the foundations for said new building, was required to use reasonable skill and care so as to avoid doing unnecessary injury to defendant’s building, that plaintiff’s claim was for labor and materials used in doing what the law required him to do, and that, therefore, there was no basis for any finding against defendant. The court said that if said attorney would modify his motion so that a finding might be entered against defendant for the value of the concrete, $25.85, which was used for the purpose mentioned, he would grant the motion. The motion was so modified and such a finding was entered, upon which judgment was rendered for $25.85 and costs in favor of plaintiff. This writ of error is prosecuted by plaintiff to reverse that judgment. Counsel for plaintiff claims that the court erred in not allowing the entire claim of $90.90.

In the case of Lasala v. Holbrook, 4 Paige Ch. (N. Y.) 169, decided in 1833, Chancellor Walworth said (P. 172):

“I have a natural right to the use of my land in the situation in which it was placed by nature, surrounded and protected by the soil of the adjacent lots. And the owners of those lots will not be permitted to destroy my land by removing this natural support or barrier. Thus it is laid down by Rolle, that I may sustain an action against a man who digs a pit in his own.land so near to my lot that my land falls into the pit. 2 Roll. Abr; 565, 1, 10. But my neighbor has the right to dig the pit upon his own land, if necessary to its convenient or beneficial use, when it can be done without injury to my land in its natural state. I cannot, therefore, deprive him of this right by erecting a building on my lot, the weight of which will cause my land to fall into the pit which he may dig in the proper and legitimate exercise of his previous right to improve his own lot. 1 Sid. Rep. 167; 2 Roll. Abr. 565, 1, 5. These principles were fully recognized by Ch. J. Parker, in the case of Thurston v. Hancock, 12 Mass. Rep. 233, where it was held that the defendants, who had excavated their own lot to the depth of thirty feet below the foundation of the plaintiff’s house, were not liable for having thus placed the house in a dangerous position; but that the plaintiff was entitled to recover for the damage if any, which had been occasioned by the loss of his soil in consequence of such excavation. And in the case of Panton v. Holland, 17 Johns. Rep. 92, where the defendant, in the exercise of ordinary care and skill in making an excavation for the improvement of his own lot, had dug so near the foundation of the plaintiff’s house as to cause it to crack and settle, it was held that he was not liable for the injury.”

In the case of Nevins v. City of Peoria, 41 Ill. 502, Mr. Justice Lawrence, in delivering the opinion of the court, said (p. 509):

“A man cannot do any thing upon his own soil, under the plea of ownership, which amounts to a nuisance and works injury to his neighbor, but within that limit he may do whatever his whim may dictate. He may excavate to any depth, or raise the surface to any height, and the neighboring owner has no right to complain, because his enjoyment of his own lot is not thereby prejudiced. Even if a building erected by me near the boundary of my lot is injured or endangered by an excavation made by my neighbor in his premises, I cannot complain, because Í have no right to the use of his soil for the support of my building.”

In the case of City of Quincy v. Jones, 76 Ill. 231, Mr. Justice Scholfield, speaking for the court, said (p. 240):

“I have the right to use my land in such reasonable way as my judgment shall dictate, either by making excavations or superstructures thereon, subject, however, to the implied condition that I shall not thereby interfere with my neighbor in the enjoyment of the same right in respect to his adjacent land. Each is entitled to have his soil, in its natural state, sustained, when necessary, by the lateral support of the adjacent soil of the other; but neither has the right to burden such support by any additional weight, because this would, to that extent, appropriate the use of the property of the one, to the benefit of the other. * * * Moreover, it is required of the owner of the soil, having the right to excavate notwithstanding there are buildings upon the adjacent soil, that he shall exercise the right with reasonable skill and care, in view of the character of the buildings and the nature of the soil, so as to avoid doing unnecessary injury to the buildings. * * * If injury is sustained to a building in consequence of the withdrawal of the lateral support of the neighboring soil, when it has been withdrawn with reasonable skill and care to avoid unnecessary injury, there can be no recovery; but if injury is done the building by the careless and negligent manner in which the soil is withdrawn, the owner is entitled to recover to the extent of the injury thus occasioned.”

It is said in Washburn on Easements and Servitudes (p. 444):

“The way to reconcile these views and suggestions, and still to retain the distinction between an injury to the natural soil and an injury to the same soil burdened by a house or other structure thereon, seems to require some such rule as this; not only must the owner of the land, when causing an excavation thereon to be made, so conduct it as not to disturb the soil of the adjacent lot in its natural state, but if there be a dwelling-house thereon, he must use such care in the mode of excavating, to the extent above stated, as not to injure the house, provided this can be done without subjecting himself to extraordinary expense in guarding against such injury. He might, for instance, if there were no house standing upon the land, dig and remove portions of the lateral support for a considerable distance without substituting any such safeguard as a wall, and no injurious consequences would follow. Whereas if there were a house standing thereon, in order safely to carry the excavation to the same extent, bordering upon the land of his neighbor, he must expose only small portions of the soil at a time, as was done in Lasala v. Holbrook, where the defendant, as fast as he dug away his soil near the land of the plaintiff, supplied a support by the cellar-wall on which he was to rest his own house.
‘ ‘ Still even in this respect, he would only have to use reasonable care and diligence. Thus he would not have to prop up his neighbor’s house, if the owner was cognizant of the excavation being made, in order to prevent its falling.”

In the case of Lasala v. Holbrook, supra, it was said (p. 173):

“From the recent English decisions it appears that the party who is about to endanger the building of his neighbor by a reasonable improvement on his own land, is bound to give the owner of the adjacent lot proper notice of the intended improvement, and to use ordinary skill in conducting the same; and that it is the duty of the latter to shore or prop up his own building, so as to render it secure, in the meantime. See Payton v. Mayor of London, 9 Barn. & Cress, 725; 4 Man. & Ry., 625, S. C.; Walters v. Pfeil, 1 Moody & Malk. 362; Massey v. Goyder, 4 Car. & Payne, 161.”

See, also, 1 Cyc. 779; Bonaparte v. Wiseman, 89 Md. 12, 23; Serio v. Murphy, 99 Md. 545, 557.

In Dunlap v. Wallingford, 1 Pittsburgh Rep. 127, 133, it was said:

“If the owner of a lot erects his building at the line dividing it from one unimproved, he must take the risk of his position, and must use the necessary means to sustain his wall, if his neighbor, building subsequently up to his line, wishes to sink his foundation lower. And this he must do at his own expense.
“If the second builder wishes to sink his foundation deeper than that of the first, he should give bim reasonable notice of his intention, and permission, if requested, to come on his lot to underpin, shore up, or employ such other means as are best adapted to secure the safety of his wall and building.”
“It has been held that the neglect or refusal of the owner receiving notice will authorize the owner intending to excavate to enter upon the land of the former and take needed precautions for the safety of the building or buildings thereon, and charges such owner with the expense thereby incurred.”

1 Cyc. 780; and see Eads v. Gains, 58 Mo. App. 586, 593; Walters v. Hamilton, 75 Mo. App. 237, 247; Carpenter v. Reliance Realty Co., 103 Mo. App. 480, 491; Covington v. Geylor, 93 Ky. 275, 281.

In Eads v. Gains, supra, it was said:

“If it was necessary to the exercise by plaintiffs of ordinary care in excavating their own lot that defendant’s building should be shored or underpinned, and if defendant refused upon request to give it such support; and plaintiffs at additional expense gave it the necessary support, plaintiffs would be entitled to recover the damage necessarily caused, in doing the work as required by law, by defendant’s negligence in failing to perform the duties cast upon her by law. If this were not true, plaintiffs could be required to short or protect defendant’s building at their expense, or become responsible for its injury or destruction. For the law is universal, that, for the injury caused to a building by an excavation performed without ordinary care, the excavator is responsible. If, therefore, he could only do the work with ordinary care, as is assumed above, then he was bound to do so to escape liability for its injury or destruction. In other words to enjoy his own property rights he would be bound to suffer the loss and expense of shoring or underpinning a building erected by a coterminous owner, which doctrine is opposed to the whole consensus of decisions and text-books.”

In Obert v. Dunn, 140 Mo. 476, 486, it is said:

“Inasmuch as defendants owed plaintiff’s let nd duty to support it when incumbered by the weight of his building, it must needs follow that defendants were under no obligation either to excavate the foundation for their, cellar by piecemeal, or to build their wall in sections.” See also, Charless v. Rankin, 22 Mo. 566, 575.

" In view of the foregoing authorities, and in view of the facts disclosed in this record, that plaintiff notified defendant of the contemplated excavations for the new building, that defendant wrote plaintiff a letter in response to such notification authorizing plaintiff to protect defendant’s wall “at the smallest cost possible,” that subsequently the parties had a conversation on the site of the proposed building, at which time plaintiff told defendant that he would make the excavations and erect the foundation of the south wall of the proposed building in sections, and thereby, by this mode, protect defendant’s wall and building at a smaller expense than by another mode, and that defendant directed plaintiff to use his best judgment and get defendant “out of it as cheap as he could,” we are of the opinion that the court erred in sustaining at the close of plaintiff’s case the defendant’s motion above mentioned, and in entering the finding and judgment for only $25.85 in favor of plaintiff. The judgment of the Municipal Court of Chicago is, therefore, reversed and the cause remanded.

Reversed and remanded.'


text:
    C. F. Trapp, Defendant in Error, v. St. John’s Baptist Church, Plaintiff in Error.
    Gen. No. 17,250.
    1. Cobpobations—de facto corporation liable for rent. Where a church leases and occupies a building between the time of its organization and the recording of affidavit as required by sections 35 and 36 of the Corporation Act, It is liable for the rent.
    2. Cobpobations—de facto until statute is complied with. A church having elected officers and conducting services is a de facto corporation, and becomes a de pire corporation- upon recording an affidavit in compliance with sections 35 and 36 of the Corporation Act.
    Error to the Municipal Court of Chicago; the Hon. George B. Watkins, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Affirmed.
    Opinion filed November 7, 1912.
    James E. White, for plaintiff in error.
    Cratty Brothers and Charles Hudson, for defendant in error.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.

This writ of error is prosecuted to Reverse a judgment of the Municipal Court of Chicago for $240, entered November 22, 1910, against St. John’s Baptist Church, plaintiff in error and hereinafter called the Church, and in favor of C. F. Trapp, defendant in error and hereinafter called plaintiff.

Plaintiff’s claim was for balance due for rent, for the use and occupation of premises known as 3802 Armour Avenue, Chicago, from June 1, 1904, to April 30, 1908, a period of three years and eleven months, at sixteen dollars per month, amounting to $752, of which sum $512 had been paid, leaving a balance due of $240. Prior to the commencement of plaintiff’s suit (July 12, 1910), the defendant became fully organized as a religious corporation, under the provisions of sections 35 and 36 of the Corporation Act, by the filing of the following affidavit on February 20, 1909, in the office of the recorder of deeds of Cook county, Illinois:

“I, Forrest A. McCoo, do solemnly swear that at a meeting of the members of the St. John’s Baptist Church held in the City of Chicago, * * * on the 25th day of April, 1904, for that purpose, the following persons were elected officers, viz.: William Dunnington and Berry Taylor, deacons, M. E. Burr, secretary, according to the rules and usages of such church, and said church adopted as its corporate name ‘St. John’s Baptist Church,’ and at tins meeting this affiant acted as chairman.
Forrest A. MoCoo.
Subscribed and sworn to before me, this 17th day of February, A. D. 1909.
Frank W. Hoyt,
(Seal) Notary Public.”

The defense of the Church to plaintiff’s claim, as disclosed from the affidavit of merits of one of its trustees, was that the Church was not a corporation and had no legal existence during the said period from June 1, 1904, to April 30, 1908; that the Church had made no contract or lease with plaintiff for the premises and that the premises during said period had been leased and rented by another person. It is to be noticed that although said affidavit was not filed with the recorder of deeds until February 20, 1909, it states that on April 25, 1904, the Church elected officers and adopted a corporate name. The evidence tends to show that said Forrest A. McCoo, as minister of the congregation, subsequent, to said meeting of April 25th, 1904, rented the premises for church purposes; that during all of said period from June 1, 1904, to April 30, 1908, the premises were used and occupied by the Church for church purposes, and that from April 25, 1904, until February 20, 1909, the Church was a religious corporation de facto, and that on said last-mentioned date it became a religious corporation de jure.

We do not deem it necessary to discuss the various points made by counsel for the Church in his brief and argument as grounds for a reversal of the judgment. Suffice it to say that after careful consideration we are of the opinion that under the facts presented by this record the judgment of the trial court should be and it is affirmed.

Affirmed.


text:
    Sidney W. Worthy, Defendant in Error, v. Edward Hale Bush, Trustee, Plaintiff in Error.
    Gen. No. 17,269.
    Appeals and errors—abstract. A judgment of the Municipal Court of Chicago may he affirmed where the abstract does not contain a “complete index, alphabetically arranged” and is not “sufficient to fully present every error and exception relied on,” as required by Appellate Court Rule 19.
    Error to the Municipal Court of Chicago; the Hon. Max Eberhardt, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911. Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed November 7, 1912.

      Richard H. Peterson, for plaintiff in error.
    Clark M. Cavenee, for defendant in error.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.

This writ of error is prosecuted to reverse a judgment of the Municipal Court of Chicago, entered in a first-class suit, March 26,1910, for the sum of $3,715.37, and costs, in favor of defendant in error and against plaintiff in error. This case has previously been before this court on an appeal. On January 6, 1911, the appeal was dismissed for reasons stated in an opinion of this court. Worthy v. Bush, 159 Ill. App. 378. The transcript of thé record in the case now before us was filed in this court on January 10,1911, and what purports to be an abstract of the record was filed by plaintiff in error on February 21, 1911. A motion was made by counsel for defendant in error to strike the bill of exceptions from the files, and on March 9, 1911, this motion was allowed. Worthy v. Bush, 160 Ill. App. 70. The bill of exceptions is, therefore, not before us.

Rule 19 of the Buies of Practice of this court in part provides:

“The abstract shall-contain a complete index, alphabetically arranged, giving the page where each paper or exhibit may be found, with the names of the witnesses and the pages of the direct, cross and redirect examinations.
“The abstract must be sufficient to fully present every error and exception relied upon, and it will be taken to be accurate and sufficient for a full _ understanding of the questions presented for decision unless the opposite party shall file a further abstract, making necessary corrections or additions.”

The abstract filed in this case does not comply with the rule and is not sufficient. It does not contain “a complete index, alphabetically arranged,” neither is it “sufficient to fully present every error and exception relied upon.”

For lack of compliance with said rule the judgment of the Municipal Court of Chicago will be affirmed.

Judgment affirmed.


text:
    Jesse Binga, Defendant in Error, v. Mrs. C. G. Martin, Plaintiff in Error.
    Gen. No. 17,289.
    1. Venue—when change of, denied. Change of venue is properl) denied in an action of forcible detainer where a petition and motion therefor is presented immediately after continuance is denied on the admission by the opposite party that a certain witness would testify as stated in the affidavit for continuance.
    2. Forcible detainer-—when verdict properly directed. In an action in forcible detainer, verdict is properly directed for plaintiff where defendant alleges but fails to establish a verbal agreement by plaintiff that if repairs were not made by a certain time possession might be retained without payment of rent.
    Forcible detainer. Error to the Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Affirmed.
    Opinion filed November 7, 1912.
    W. L. Martin, for plaintiff in error.
    Cheney, Evans & Wilson, for defendant in error.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.

On August 3, 1910, defendant in error commenced an action in forcible detainer in the Municipal Court of Chicago against plaintiff in error for the recovery of the possession of the premises known as 3636 Forest avenue, in the city of Chicago. The action was based upon a five-day notice served upon plaintiff in error demanding ninety dollars claimed to be due for two months ’ rent from June 15 to August 15, 1910, for said premises.

When the case was called for trial plaintiff in error moved for a continuance of the case on the ground that one of her witnesses was ill and unable to attend. The motion was supported by affidavit, which affidavit also set forth what the witness would testify if present. Counsel for defendant in error admitted that if the witness were present she would testify as stated in said affidavit. The motion for a continuance was thereupon denied by the court, and during the trial of the case that portion of the affidavit which set forth what the witness would testify if present was read to the jury.

Immediately following the denial of the motion for a continuance, plaintiff in error presented a petition and moved the court for a change of venue. The motion was denied, and counsel for plaintiff in error here assigns as error this ruling of the court. Considering the time when, and the manner in which, this motion was made, we are of the opinion, by reason of the statutory provisions relative to a change of venue in civil cases, that the court’s ruling was proper.

At the close of all of the evidence introduced by both parties, the trial court directed the jury to bring in a verdict finding plaintiff in error guilty of unlawfully withholding from defendant in error the possession of the premises described in the complaint, and that the right to said possession was in defendant in error, which was done, and on January 14, 1911, after a motion for a new trial was overruled, judgment for possession was rendered upon said verdict, and for costs, and that a writ of restitution issue. This writ of error is prosecuted to reverse the judgment.

The principal error assigned is that the court erred in directing the jury to bring in the verdict. On the trial, plaintiff in error, as a defense to said action for possession of the premises, relied upon an alleged verbal agreement between the parties whereby, as contended, defendant in error promised at the time of the letting of the premises to make certain repairs thereon, and that if the same were not completed “by May, 1910,” plaintiff in error could remain in said premises without paying further rent until such repairs were completed. The making of any such verbal agreement was denied by defendant in error. It was shown on the trial that plaintiff in error had not paid any rent after the instalment for the period from May 15 to June 15, 1910. We are of the opinion that plaintiff in error failed to establish such a verbal agreement with defendant in error as warranted her in retaining possession of said premises without payment of the stipulated monthly rent (White v. Y. M. C. A., 137 Ill. App. 286, 289, aff’d 233 Ill. 526), and that the trial court did not err in directing a verdict. The judgment of the Municipal Court is therefore affirmed.

Affirmed.


text:
    E. W. Sann, Defendant in Error, v. A. D. Hosterman, Plaintiff in Error.
    Gen. No. 17,338.
    1. Contracts—construction. Where the proprietor of a poultry journal employs a person as “foreign advertising” representative and the contract provides that the term “foreign advertising” shall not apply to any line of advertising belonging strictly to the breeding, marketing or handling of poultry, but shall apply to advertising foreign to the poultry business, commissions may be recovered for securing advertisements of squabs or pigeons.
    2. Contracts-—effect of failure to comply with contract. Where a contract of employment of an advertising solicitor provides that he shall be given copies of live advertising contracts that are in force, and that on a failure to furnish the copies such advertising contracts shall be considered as “new” business, if such copies are not furnished, commissions for such advertisements may be recovered.

      Error to the Municipal Court of Chicago; the Hon. Charles N. Goodnow, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Affirmed.
    Opinion filed November 7, 1912.
    Charles Hudson, for plaintiff in error.
    Charles S. Graves, for defendant in error.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.

On February 19, 1910, E. W. Sann, defendant in error and hereinafter called plaintiff, commenced an attachment suit in the Municipal Court of Chicago against A. D. Hosterman, plaintiff in error and hereinafter called defendant, to recover commissions claimed to be due on advertising by virtue of a written agreement, which was entered into May 30, 1909, by and between F. S. Webb, engaged in the advertising business in Chicago under the name of F. S. Webb Special Agency, and defendant, a resident of Springfield, Ohio, and there engaged in the business of pub-fishing a monthly journal or magazine, known as “Poultry Success.” By written assignment by Webb, December 8,1909, plaintiff acquired the right and title to all moneys due or to become due by virtue of said agreement from defendant to Webb, and plaintiff brought this suit in his own name under section 18 of the Practice Act. Under the attachment writ five corporations were summoned as garnishees, and their several answers disclosed that their respective indebtedness to the defendant aggregated the sum of $422.84. The defendant filed an affidavit of merits claiming that he had a good defense to plaintiff’s claim except as to the sum of $88.38 which he admitted to be due plaintiff. At the trial without a jury the court sustained the attachment issue and found that defendant was indebted to plaintiff in the sum of $330.94, upon which finding, on January 26, 1911, judgment was entered against defendant for said' amount and costs, and against the garnishees for their said respective indebtedness to defendant in favor of plaintiff. This writ of error is prosecuted to reverse the judgment.

It was provided by the terms of said agreement, among other things, that Webb was to act as the sole “foreign advertising” representative for the publication known as “Poultry Success,” in the territory “both East and West,” from May 30, 1909, to May 30, 1911, and was to use the equipment of his office and the effort and influence of himself and those connected with him to secure advertising for said publication ; that Hosterman, the defendant, would pay Webb a commission equal to twenty-five per cent., for the first year of the period of the agreement, on the net amount of cash received by defendant on all orders or contracts for said “foreign” advertising in the territory mentioned, which the defendant accepted and inserted in said publication; that contracts for “foreign” advertising in force at the date of said agreement should, after one year, or at their expiration, be considered as “new” business; that defendant should within thirty days from the date of the agreement furnish to Webb “duplicate copies” of all live contracts or orders for “foreign” advertising in existence or in force in said territory at the date of said agreement, and should also furnish a statement showing commissions and cash discounts allowed to all advertisers and advertising agencies for all business coming through said agencies; that all “foreign” business for which defendant did not hold live contracts at the date of said agreement, and all “foreign” business for which defendant did at that time hold live contracts but of which defendant did not furnish said “duplicate copies” to Webb within said thirty days, should be considered as “new” business upon wMeh Webb would be entitled to his said commissions; that defendant would pay to Webb all commissions not later than the 15th day of the month following the receipt by defendant of the moneys for the advertising, and also, on the 15th day of each month would render to Webb a general statement showing the outstanding accounts created under the agreement, the balance due Webb on collections made and draft to cover same; that defendant'would refer to Webb all “foreign” advertising contracts and correspondence for business received by defendant direct from advertising agencies or advertisers and which were not in accordance with the conditions of the rate card and. the policy as agreed upon between the parties; that defendant would furnish to Webb, immediately upon their receipt by defendant, copies of all contracts and letters relating to the “foreign” advertising department; that defendant would furnish to Webb a sworn detailed statement of circulation for each month, and, wherever possible, with regular issues of competitive papers published in said territory, and that defendant would insert in his said publication in an appropriate place the name of said F. S. Webb Special Agency as representative covering said territory. There was a clause in said agreement defining what the term “foreign” advertising meant, as follows:

“The term ‘foreign advertising’ as used in this contract does not apply to or include the advertising of Poultry Stock, incubators, poultry raising appliances, poultry feed, poultry apparatus for feeding and watering, poultry eggs, poultry insect exterminators, poultry remedies or any line of advertising belonging strictly to the breeding, marketing or handling of poultry, but does include all general mail order, agricultural lines and advertising foreign to the poultry business and the advertising of manufacturers whose advertising in Poultry Publications is only an incident or a part or branch of their business, but whose main business in reality is along general lines, manufacturing and selling to all classes of trade.”

It appears from the “statement of facts,” certified to by the trial judge, that, during the last six months of the year 1909, and during January, 1910, the defendant published in his said journal or magazine many advertisements; that from May 30, 1909, to the commencement of this suit Webb acted as sole “foreign advertising” representative for defendant’s publication, expended considerable money in soliciting advertisements for said publication, and forwarded many advertisements to defendant to be published and which were published in said publication, for which defendant received certain sums of money, and on which the court allowed to plaintiff a twenty-five per cent, commission; that the court in making its said finding of the total indebtedness of defendant to plaintiff, viz., $330.94, allowed a twenty-five per cent, commission to plaintiff on five “advertisements of squabs or pigeons ’ ’ for which defendant received the sum of $39.14; that defendant did not furnish to said Webb within thirty days from the date of the agreement, or at any time, “duplicate copies” of all live contracts or orders for “foreign” advertising in existence or in force at the date of said agreement, and that the court allowed plaintiff a twenty-five per cent, commission upon six advertisements, aggregating in amount the sum of $442.36, and which defendant claimed were published under contracts or orders in force at the date of the signing of said agreement; that defendant, however, furnished a certain “statement showing commissions, and cash discounts allowed to all advertisers and advertising agencies on existing or expired contracts relating'to poultry and foreign business, coming through agencies;” that during the months mentioned defendant, without previously consulting Webb, departed frequently from the card rates by making quotations and contracting with various advertisers at less than regular card rates, did not furnish to Webb a sworn statement of circulation as provided in said agreement, or render a general statement on the 15th day of each month, or at any time, showing outstanding accounts, the balance due or amounts collected, or at any time insert in his said publication the name of said F. S. Webb Special Agency as representative. Both parties introduced on the trial many letters written one to the other, relative to the matters in controversy, which letters are set forth in said “statement of facts.”

Counsel for defendant here urges that the judgment should be reversed on the grounds that the finding and judgment are against the weight of the evidence and are excessive, and that the trial court erred in admitting certain improper evidence on the part of plaintiff and in refusing to hold certain propositions of law. Without discussing these several points, suffice it to say that we are of the opinion that the same are without merit.

Counsel also urges that the trial court erred in including in its finding commissions on said five “squab” advertisements, and argues that “squabs” are “poultry,” that by the provisions of the agreement no commissions were to be paid by defendant on “poultry” advertisements and that from the correspondence and conduct of the parties it appears that both considered “squab” advertisements to be the same as “poultry” advertisements, i. e., not “foreign advertising” as defined in the agreement. We cannot say from the facts appearing in this record that both parties so considered “squab” advertisements. Neither can we say under the facts of this case that the court erred as contended by counsel.

Counsel further urges that the trial court erred in including in its finding commissions on certain advertisements, which it was claimed were published in defendant’s publication by virtue of contracts or Orders in force at the date of the signing of the agreement and which, therefore, were “old” contracts which Webb took no part in soliciting. The agreement specifically provided that within thirty days from the date of the signing thereof defendant should furnish Webb with “duplicate copies” of all existing contracts for “foreign advertising,” and if he did not do so such contracts should be considered as “new” business up on which commisions were to be paid. Although defendant did not comply with his covenant in this particular and failed to furnish the duplicate copies, counsel contends that certain statements or lists forwarded by defendant to Webb served the same purpose as the duplicate copies would have done, and that Webb acquiesced in the receipt of said statements or lists in lieu of said duplicate copies. Under the facts disclosed in this record we cannot agree with the contention. Neither do we think that the trial court erred in including in its finding the commissions mentioned. ‘ ‘ The proper function of courts is to enforce contracts which parties have a legal right to make, and not to aid such parties to get rid of their agreements.” Caldwell v. Highway Commissioners, 249 Ill. 366, 371. The judgment of the Municipal Court of Chicago is affirmed.

Affirmed.


author: Mr. Justice Fitch

text:
    Guy E. Vandenburgh, Plaintiff in Error, v. The Chicago & Northwestern Railroad Company. Defendant in Error.
    Gen. No. 17,044.
    1. Railroads—when doctrine of res ipsa loquitur will not apply. Where a boy standing on a railroad platform in a sense similar to a public street crossing, within two or three feet from a passing train, is struck by a piece of tin or gutter projecting from a car, if the evidence does not show that the piece of tin had been projecting so long that the company could or should have had notice thereof, the doctrine of res ipsa loquitur will not apply.
    2. Railroads—when toy's experience need not te considered. Where a boy standing upon a railroad platform is struck by a projection, and he is aware of whatever danger there might be in standing on the platform, an instruction that he was required' only to use such care as one of his “age and intelligence” would use under like circumstances is not erroneous in omitting the qualification of “experience.”

      3. New tblal—when refusal to await arrival of witness not a ground. A new trial will not be granted for the refusal of the court to await the arrival of a witness whose evidence would tend to impeach an opposing witness, unless the affidavits make out an “extraordinary case.”
    Action in case for personal injuries. Error to the Superior Court of Cook county; the Hon. Russel P. Goodwin, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Affirmed.
    Opinion filed November 7, 1912.
    William Eloit Furness, for plaintiff in error.
    Charles A. Vilas, for defendant in error; Edward M. Hyzer, of counsel.
   Mr. Justice Fitch

delivered the opinion of the court.

In May, 1900, plaintiff in error, then a boy thirteen years of age, in company with three other boys, was standing on a platform adjoining defendant’s railroad tracks at its Norwood Park station, waiting for a freight train to pass. The boys had just come though a small park lying south of the platform, with the intention of crossing the tracks over a walk provided for that purpose. Plaintiff in error stood with his back to the passing train, and two or three feet from it. He testified that “something” hit him in the back, causing him to fall between the platform and the track, and his right arm was cut off. He did not know what hit him, and no one was looking directly towards him at that moment. One of the boys, and the gateman in the tower, testified that they saw something hanging down the side of one of the cars resembling a piece of tin or a gutter, and if the plaintiff’s story be accepted as true, a fair inference might arise that the “something” which hit him was this hanging piece of tin. On the other hand, the train men testified that they inspected the cars both before and after the accident and saw nothing projecting or hanging down. Upon a trial before a jury the defendant was found not guilty, and this writ of error was sued out to reverse the judgment entered on that verdict.

It is urged by counsel for plaintiff in error (1) that the platform was a public place ,and defendant was required to exercise reasonable care to keep it safe; (2) that the happening of the accident was prima facie evidence of negligence, under the doctrine of res ipsa loquitur; (3) that there was no proof of contributory negligence on the part of the plaintiff, “considering his age,” and (4) therefore a new trial should have been awarded. We do not deem it necessary to discuss these propositions seratim; for if it be assumed, or conceded that the platform upon which the plaintiff was standing was in some sense similar to a public street crossing, we think the opinion of the Supreme Court in Chicago & E. I. R. Co. v. Reilly, 212 Ill. 506, is decisive against the contentions here made. In that case, Reilly was standing on a street crossing, waiting for a train to pass, and was struck by a piece of timber projecting from one of the passing cars. The doctrine of res ipsa loquitur was invoked, but the court said (p. 510):

“There is no evidence as to how, when or where the car was loaded or how long a time the timber had been projecting from the car. The condition can be accounted for as readily on the hypothesis of pure accident and absence of negligence as upon the ground of negligence. * * * There is nothing to show that the- projecting timber, even if it can be said it would be evidence of negligence if intentionally allowed to remain in the position it was, had been so long projecting that the appellant could or should have had notice thereof. * * * We are of the opinion that the case at bar does not belong to that class of cases where the rule of res ipsa loquitur can be applied.”

The same may be said of this case. The evidence in this case wholly fails to show that the hanging piece of tin had been projecting so long that defendant could or should have had notice thereof, even if there were any direct evidence that plaintiff was in fact struck by it. There is evidence that the tin “something” was not projecting when the train was made up at Western avenue, nor when it reached Harvard. The condition complained of therefore can be accounted for quite as readily on the hypothesis of pure accident and absence of negligence as upon the- hypothesis of negligence. Moreover, this question, and that of the contributory negligence of the plaintiff, were questions of fact for the jury and the evidence is by no means so clearly in favor of the plaintiff as to warrant us in finding that the verdict was manifestly contrary to the evidence.

It is also urged that a new trial should have been granted because the trial court refused to await the arrival of a witness whose evidence would tend to impeach one of defendant’s witnesses. But “it must be a very extraordinary case that will induce courts to grant a new trial in order to afford an opportunity of impeaching a witness.” O’Reily v. Fitzgerald, 40 Ill. 310, 313; City of Chicago v. Hislop, 61 Ill. 86. We do not regard the affidavits submitted on the motion for a new trial as making out such an “extraordinary case” in this respect.

Complaint is also made of the fact that in several of the instructions, the jury were told that the plaintiff was only required to use such care as one of his “age and intelligence” would use under like circumstances. It is urged that these instructions are erroneous because they omit the other qualification of “experience.” While in some cases the criticism would be just, we think that in this case plaintiff in error has no reason to complain of the omission. The evidence shows that it was the daily habit of the plaintiff to cross the railroad at the point where he was hurt. He was, therefore, fully aware of whatever danger there might be in standing on the platform, near to passing trains. Hence the omission of the word “experience” from the instructions in question was more favorable to him than to the defendant. We find no reversible error in these, or any of the other instructions, under the facts of this record.

The judgment of the Superior Court will be affirmed.

Affirmed.


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    J. L. Bennett, Defendant in Error, v. Carleton Hudson, Plaintiff in Error.
    Gen. No. 17,164.
    Accobd and satisfaction—acceptance of check where amount due disputed. Where there is a dispute concerning the amount due for certain services and a check is accepted, across the face of which is a statement that it is payment in full, and letters are sent making the same statement the demand is satisfied though protest is made at the time of acceptance of the check that it is not taken in full satisfaction.
    Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Reversed and remanded.
    Opinion filed November 7, 1912.
    Rehearing denied November 11, 1912.
    Arba N. Waterman, for plaintiff in error.
    J. L. Bennett, defendant in error, pro se.
   Mr. Justice Fitch

delivered the opinion of the court.

Defendant in error, a court reporter, was employed by plaintiff in error to report the trial of a case in the Circuit Court. Nothing was said at the time of employment as to the price which should be charged or paid. Defendant in error reported the case, trans-scribed the testimony into 466 typewritten pages, and sent plaintiff in error a bill for $274.80, computed at the rate of fifty cents a page and $10 a day for four days ’ attendance. On receipt of the bill plaintiff in error, by letter, requested defendant in error to “drop in and see the writer” about the matter. Bennett did so, and Hudson then claimed the bill was more than he was in the habit of paying for similar work and asked Bennett to make a reduction, telling him that another stenographer did his work for thirty-five cents a page and $5 a day for attendance. Bennett testified “I was a little hot and said, ‘Make your own figures at 35 cents a page and $5 a day and send me a check for it.’ ” Hudson testified that Bennett said, “Well, Hudson, you send me a check for what you think is right.” Bennett also testified that not long after he told Hudson over the telephone that he had seen the stenographer referred to, who denied doing any work for Hudson at the rate of thirty-five cents a page, and he would, therefore, withdraw his proposition to accept the reduced amount. A few days later Hudson sent by mail a check to Bennett for $164.50, upon the face of which was written the statement “Hudson v. Biddle, et al., reporting in full.” At the same time he wrote Bennett : ‘ ‘ The writer is handing you his check herewith for $164.5Q in full payment for your services in Hudson v. Riddle, pursuant to the recent conversation had with you. On looking up your bills rendered to Mr. Biddle in the past for services he finds no charge for attendance where the evidence is written up * * * and as this work would be charged against the Biddle estate by the writer, as trustee, he feels that the check here enclosed is in accord with the premises.” Bennett received the check and letter, indorsed and deposited the check to his own account, but wrote to Hudson: “Replying to yours of 31st ult. I never agreed to take 35 cents a page without attendance. On your statement that Miss-:-was doing your work for $5 per day and 35 cents a page, I told you to figure it that way and send me a check. Miss--— tells me she never did any work for you and never made any such offer and never discounted her attendance. * * * I am not disposed to discount anything but the attendance $40, leaving my bill -.$234.40, or a balance of $69.90.” To this letter Hudson replied suggesting that if Bennett was not satisfied with the check he might return it and file his claim against the Biddle estate, but to this Bennett responded: “I have deposited your check and I don’t relish a little bit your suggestion. * * * I expect a check for the balance.” Upon these facts the cause was submitted to a jury, which returned a verdict in favor of Bennett for $55.02. A motion for new trial was made and overruled, and judgment entered on the verdict, from which judgment the defendant sued out this writ of error.

On the part of the plaintiff in error the rule is invoked that where the amount of a claim is unliquidated, or there is a bona fide dispute as to how much is due, the payment of the amount claimed by the debtor to be due, in full settlement, if accepted by the creditor, is a satisfaction of the claim; or as stated in Snow v. Griesheimer, 220 Ill. 106, 110, “If a check is offered under such circumstances as amount to a condition that it is to be received in full payment of the demand, an acceptance will satisfy the demand, although the creditor protests at the time that it is not all that is due him or that he does not accept it in full satisfaction of his claim. An acceptance in such a case is an acceptance of the condition notwithstanding any protest he may make to the contrary (Ostrander v. Scott, 161 Ill. 339; Lapp v. Smith, 183 Ill. 179; Canton Union Coal Co. v. Parlin & Orendorff Co., 215 Ill. 244; 1 Cyc. 229; 1 Am. & Eng. Ency. of Law (2nd Ed.), 419).” Defendant in error, while conceding this to be the rule, claims it is inapplicable to the facts in this case because, he says, there was no bona fide dispute, and also because the • alleged agreement for reduction was obtained by misrepresentation. We are disposed to agree with the contention of counsel for plaintiff in error that this is a proper case for the application of the rule above stated. There was a dispute as to the amount due; the demand was unliquidated; and the check and letter which were sent clearly show that the check was offered under such circumstances as amount to a condition that it was to be received in full payment of the demand. Hence, the acceptance of the check by defendant in error, although he protested at the timé that he would not accept it in full satisfaction of his claim, was nevertheless under the law an acceptance of the condition. Snow v. Gfriesheimer, supra. The defense of accord and satisfaction was, therefore, clearly proved, and the trial court erred in refusing to grant a new trial.

For the reasons indicated, the judgment of the Municipal Court will be reversed and the cause remanded for a new trial.

Reversed and remanded.


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    Angelus Geocaris and George Stamatides, partners as Greek American Bank, Defendants in Error, v. Tom Carellas and Christ Andreadis, Plaintiffs, in Error.
    Gen. No. 17,195.
    Chattel mortgages—maker’s defenses against assignee. Under the Act of June 21, 1895, § 1, providing that notes secured by chattel mortgages, when assigned by the payee, shall be subject to all defenses existing between the payee and payor, in an action by an assignee for value before maturity, without knowledge of defenses between the maker and payee, the maker may show that he did not receive the property mortgaged though the mortgage recites that such property “is situated” in his place of business, and this is especially true in. case of a judgment by confession.
    Error to the Municipal Court of Chicago; the How. Frederick L. Fake, Jr., Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Reversed and remanded.
    Opinion filed November 7, 1912.
    B. E. Cohen, for plaintiff in error; H. J. Rosenberg, of counsel.
    Stedman & Soelke, for defendant in error.
   Mr. Justice Fitch

delivered the opinion of the court.

This writ of error was sued out to reverse a judgment entered by confession for $203.50, upon six notes reciting upon their face that they are secured by chattel mortgage. Plaintiffs in error executed the notes and mortgage in question, and defendants in error purchased the notes for value before maturity and without notice of any defense existing between the makers and the payee. Upon motion the defendants below (plaintiffs in error) were allowed to plead to the merits, the judgment to stand as security; and upon the "hearing it was stipulated that in December, 1909, defendants agreed to purchase from the Manusos Carbonator Company a “carbonator machine” to be delivered and installed at defendants’ place of business on W. 26th street, Chicago, on or before February 1, 1910, for which they agreed to pay $225, one-third in cash and two-thirds in notes secured by chattel mortgage on the machine; that they made the cash payment at once and at the same time executed and delivered the notes and mortgage to the Carbonator Company, who sold the notes to defendants in error; but that the machine was not delivered on or before February 1, 1910, and when subsequently tendered to defendants, they refused to receive it on account of the delay. The trial court held that these facts could not be shown as a defense to the notes in a suit brought by defendants in error; and the only question here involved is as to the correctness of that ruling.

By section 1 of the act of June 21, 1895, entitled ‘ ‘ An act to regulate the assignment of notes secured by chattel mortgages,” etc., it is provided “that all notes secured by chattel mortgages * * * when assigned by the payee therein named, shall be subject to all defenses existing between the payee and the payor of said notes the same as if said notes were held by the payee therein named,” etc. In Hogan v. Akin, 181 Ill. 448, the court said of this section (p. 454): “The object of the act is to destroy the negotiability of notes of that-class, so that, in case of assignment, the assignee would not have rights that the payee did not have.”

It would seem to follow from these quotations that if the defense here claimed could have been shown in an action brought by the payee on the notes, the same defense may be urged in a suit brought by the assignee, since the enactment of the act of 1895. Indeed, counsel for defendants in error practically concede this to be true; but they contend that the makers in this case are estopped from asserting that they did not receive the property mortgaged, because, they say, the mortgage recites that such property “is situated” in defendant’s place of business on W. 26th street, even though this recital be in fact untrue. We can see no merit in the contention. If the suit had been brought by the payee on the notes, there would be no doubt the defendants might, if they could, show a want or failure of consideration; and no good reason is perceived, why, under the statute cited, they may not make the same defenses in this case. Especially is this true in cases of judgments by confession, over which courts of law exercise an equitable jurisdiction. Farwell v Huston, 151 Ill. 239, 246.

The judgment of the Municipal Court will be reversed and the cause remanded for further proceedings not inconsistent with the views herein expressed.

Reversed and remanded.


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    Augustus W. Mercer, Administrator, Plaintiff in Error, v. Chicago City Railway Company.
    Gen. No. 17,215.
    1. Attobney’s lien—administrator not liable individually. Where the attorney for plaintiff administrator, in an action for damages caused by death of plaintiff’s intestate, obtains judgment, and settlement is paid to' plaintiff, and the attorney files an intervening petition to hare his fee for services made a lien on said fund, an order by the court that plaintiff pay the fees is. erroneous if intended against plaintiff as an individual.
    2. Attorney’» lien—does not apply to funds held by administrator. The Attorney’s Lien Act of 1909 does not give an attorney a lien on funds held by an administrator, since the administrator has no authority to charge such funds with payment of attorney’s fees.
    Error to the Superior Court of Cook county; the Hon. Mabcus A. Kavanagh, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1910.
    Reversed.
    Opinion filed November 7, 1912.
    Charles A. Ward, for plaintiff in error.
    Theodore G. Case, defendant in error, pro se.

   Mr. Justice Fitch

delivered the opinion of the court.

In February, 1910, plaintiff in error, as administrator, recovered a judgment against the Chicago City Railway Company in the Superior Court for $1,000' for damages for wrongfully causing the death of plaintiff’s intestate. After the judgment was entered the suit was settled and the Railway Company paid the plaintiff $600. Defendant in error, who was the plaintiff’s attorney in that case, then filed his petition in the same case, alleging that without any agreement as to fees “except what the court should allow,” he brought the suit at the request of the plaintiff in 1907; that the case was tried by his office and was settled through his efforts subsequent to July 1, 1909; that the plaintiff had received $600 in settlement thereof, and had also received $75 in settlement of another suit, “which said fund of $675 is now in the hands of the plaintiff for distribution; that as a result of said services, the petitioner’s lien is attached to the said sum of $675 for a reasonable fee for said services, in accordance with the statutes in such case made and provided, and in pursuance of the notice of attorney’s lien heretofore served * * 1 upon said defendant.” The prayer of the petition is that the court “determine his reasonable fee for said services and make it a lien on said fund.” Upon a hearing, after due notice, the court entered an order finding that the petitioner was employed by the plaintiff to represent him in said cause “for a contingent fee of one-third of whatever amount might be collected by suit or settlement for his services as attorney at law;” that he “settled the cause of action of said plaintiff” for $600, which sum “said Augustus W. Mercer received * * * with full notice that said lien of Theodore G. Case had attached to said money.” The order then finds that said Case has a lien for $170 upon the money “in the hands, possession and control of the said Augustus W. Mercer at the time the petition of said Theodore G. Case was filed herein,” and orders and directs “that said Augustus W. Mercer pay over to the said Theodore G. Case said sum of $170 instanter.” Later an order was entered directing an execution for $170 to be issued against the property of Mercer. From this order an appeal was prayed and allowed, and an appeal bond filed, which, however, was afterwards stricken from the files. Thereupon the plaintiff sued out this writ of error to reverse the order or judgment regarding attorney’s fees, and assigns for error that the Superior Court had no jurisdiction over the intervening petition and no authority to enter any order in the matter.

It is urged that it was error to enter any order against Mercer individually in this case, for the reason that this suit was brought by him only as adminis: trator. Mercer, individually, was not a party to the suit; nor does the petition, as filed, seek to charge him with any individual liability. No rule was asked or entered against him, personally, to answer the petition, nor did he enter his personal appearance or file any answer. The court therefore, had no jurisdiction over Mercer individually. Moreover, the court’s findings that Mercer (individually) received the amount paid in settlement, and that said amount was “in the hands, possession and control of the said Augustus W. Mercer,” do not agree with the averments of the petition, if, as the language employed signifies, the court intended to find that the money was in Mercer’s hands and control as an individual and not as administrator. Upon such findings, the only proper order would have been the dismissal of the petition.

If, however, it could be conceded that the court, on such a petition and after due notice and opportunity to be heard, might enter an order against the person in whose manual custody the fund happens to be found, we think it is clear, from a consideration of the nature and extent of the lien created by the Attorney’s Lien Act of 1909, that no such lien attaches to a fund recovered by an administrator for the benefit of the heirs of a deceased person. That the defendant from whom the fund is recovered may be required to account to the attorney if his rights are ignored after notice thereof was held in Standidge v. Chicago Railways Co., 254 Ill. 524. But the question here involved was not raised or discussed in that case. The lien here sought is against the plaintiff, who sued as administrator.

The Attorneys’ Lien Act provides that “attorneys at law shall have a lien upon all claims, demands and causes of action * * * which may be placed in their hands by their clients for suit or collection * * * for the amount of any fee which may have been agreed upon by and between such attorneys and their clients, or, in the absence of such agreement, for a reasonable fee, for the services of such attorneys,” etc. The act further provides that “such lien shall attach to any verdict judgment or decree entered and to any money or property recovered,” etc. These provisions (and especially the words italicized above) clearly imply that the “client” who employs the attorney must have such authority over the cause of action and the money recovered thereon as entitles him lo bind the owners of the fund by his contract for the payment of attorneys’ fees.

The law is well settled that an administrator has no such authority over funds or property in his hands as administrator, as will enable him to charge such funds or property, or the owners thereof, by his contracts. Such contracts, if made, merely create a personal liability against himself. Vincent v. Morrison, 1 Ill. (Breese) 227; Bauerle v. Long, 187 Ill. 475. This rule applies to contracts made by the administrator for the payment of attorneys’ fees. Barker v. Kunkel, 10 Ill. App. 407; McAuley v. O’Connor, 92 Ill. App. 592. Any judgment obtained by an attorney in a suit for the recovery of fees for services rendered to an administrator is erroneous if rendered against him as administrator. McAuley v. O’Connor, supra.

Since, therefore, neither the cause of action for which the suit was brought, nor the money recovered, belonged to Mercer personally, but to Mercer as administrator, and since Mercer, as such administrator, had no power to charge any funds or property in his hands as administrator with the payment of attorneys ’ fees, it follows that Mercer’s contract with Case imposed no liability upon Mercer, as administrator, and therefore no lien attached to the money paid in settlement of the suit as against such administrator.

These views render it unnecessary for us to decide the question raised by counsel for plaintiff in error, as to whether the Lien Act is retroactive.

For the reasons stated, the order or judgment of the Superior Court entered upon the intervening petition of Theodore Q-. Case is reversed.

Reversed.