text:
    Henry Harbauer, Defendant in Error, v. Helen Harbauer, Plaintiff in Error.
    (Not to be reported in full.)
    Error to the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding. Heard in this court at the April term, 1916.
    Reversed and remanded.
    Opinion filed October 13, 1916.
    Statement of the Case.
    Bill for divorce by Henry Harbauer, complainant, against Helen Harbauer, defendant. To review a decree for complainant, defendant prosecutes a writ of error.
    The defendant did not appear in the Circuit Court, and the bill was taken as confessed as against her.
    Templeman & Templeman, for plaintiff in error.
    John P. Snigg, for defendant in error.
    Abstract of the Decision.
    1. Appeal and error, § 855

      —what jurisdictional facts must appear in certificate of evidence or in decree. In order that the court may have jurisdiction in a divorce case, the complainant must be an actual and bona fide resident of the county where he brings his suit, and must have been a resident of the State for at least one year next before the suit is begun, and these facts must affirmatively appear either by certificate of evidence 'or by specific findings in the decree in order that it may be sustained on appeal.
    2. Appeal and error, § 855*—when certificate of evidence is not obviated by finding in decree. Where the evidence on which a decree of divorce is granted was not preserved by the certificate of evidence, and all the decree showed as to the jurisdiction of the court was the recital, “and having heard the arguments of counsel and being fully advised in the premises and on consideration thereof doth find, that the court has jurisdiction of the subject-matter and of the parties * * held that no jurisdictional fact being shown or found, such finding was not sufficient to sustain a decree on appeal.

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

   Mr. Justice Craves

delivered the opinion of‘the court. '


source: Caselaw Access Project

author: Mr. Justice Graves

license: Public Domain

text:
    Imperial Seating Company for use of Wisconsin Seating Company, Appellee, v. Bloomington Opera House, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of McLean county; the Hon. Sain Welty, Judge, presiding. Heard in this court at the April term, 1916.
    Affirmed.
    Opinion filed October 13, 1916.
    Statement of the Case.
    Suit in chancery by the Imperial Seating Company for use of the Wisconsin Seating Company, complainant, against the Bloomington Opera House, defendant, based on a contract for chairs for an opera house, these to be furnished by the' complainant to the defendant. From a decree in favor of complainant for $975.32, defendant appeals, the complainant assigning cross error.
    B. C. De Mange and Frank Gillespie, for appellant.
    Livingston & Bach, for appellee.

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

   Mr. Justice Graves

delivered the opinion of the court.

Abstract of the Decision.

1. Appeal and errob, § 1396 —when findings of chancellor will not be disturbed. Findings of a chancellor on questions of fact, particularly when such findings are based on and are in accordance with the verdict of a jury, are given great weight in courts of review, and will never be set aside unless they are clearly and manifestly contrary to the weight of competent evidence.

2. Damages, § 179*—when evidence as to receipts at opening of old opera house is inadmissible in action for breach of contract to furnish seats for new buildAng. Where, in.a suit by a chair manufacturer based on a contract for chairs for an opera house, the defendant claimed damages resulting from failure of the manufacturer to deliver within the time fixed by the contract and from the chairs not being as ordered, held that evidence as to what the receipts of an old opera house were at its opening twenty years before the bpening of the new one for the purpose of comparing with the receipts at the opening of the new opera house was inadmissible as a basis of estimating the defendant’s damages.

3. Appeal and ebbob, § 1699*—when right to rely on denial of motion for directed verdict is waived. Where the complainant in a suit introduced a contract on which it based its right of recovery and then rested, and the defendant moved for a directed verdict on the ground that in order to make its case the complainant should have shown performance of the contract, and, on denial of the motion, proceeded to introduce evidence on the question of performance, held that it could not rely for reversal on .the denial of the motion, and the Appellate Court must determine the case on all the evidence in tjie record.

4. Contracts, § 306*—when party must perform contract in accordance toith its terms. While a party to a contract may treat it as abandoned on the other party’s failure to perform its part and thus avoid. any claim for damages, yet, if after such breach it undertakes to perform, it must do so in accordance with the terms of the contract or respond in damages for failure to do so.


text:
    Lulu Mae Hays and Florence VanGorder, Appellees, v. State Bank of Saybrook, Appellant.
    1. Executors and administrators, § 490

      —When County Court has no jurisdiction of proceeding to try title to personal property. The County Court has no jurisdiction of a proceeding under the Administration Act, secs. 81, 82 (J. & A. ff 130, 131), to try contested rights and title to personal property between the representative of the estate of a deceased person and others.
    2. Appeal and error, § 365*—when point that no objection was made as to jurisdiction of trial court is unavailable. Where a trial court has no jurisdiction of a case, it is no answer to a challenge in the Appellate Court of the right of the trial court to proceed in the case to show that the point was not raised in that court, since whenever the want of jurisdiction is discovered, courts will proceed no further with the litigation.
    Appeal from the Circuit Court of Piatt county; the Hon. George A. Sentel, Judge, presiding. Heard in this court at the April term, 1916.
    Reversed and remanded with directions.
    Opinion filed October 13, 1916.
    Wright & Alexander and J. L. Hicks, for appellant.
    Herrick & Herrick and E. J. Hawbaker, for appellees.

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

   Mr. Justice Graves

delivered the opinion of the court.

This is a proceeding begun in the County' Court of Piatt county, under sections 81 and 82 of the Administration Act of this State (J. & A. ¶¶ 130,131), to compel appellant to deliver up to the administrator of an estate funds in its hands, the proceeds of the sale of personal property upon which the deceased had a chattel mortgage in his lifetime and which property had been sold by the mortgagee, and the proceeds in question turned over by the mortgagee to pay a debt he owed to appellant, and which funds appellant claims the right to hold, apparently on the ground that the lien under the mortgage had been lost.

In Dinsmoor v. Bressler, 164 Ill. 211, it was held that the proceeding provided by sections 81 and 82 of the Administration Act are not the proper remedy to try contested rights and title to personal property between the representative of the estate of a deceased person and others. This case was cited and followed and the same doctrine reiterated in Moore v. Brandenburg, 248 Ill. 232.

The filing of the petition in this case conferred no jurisdiction on the Probate Court to try the question presented. It is no answer to the challenge in this court that the trial court was without jurisdiction to say the point was not raised in that court. Whenever the want of jurisdiction is discovered, courts will proceed no further with the litigation.

The judgment of the Circuit Court is therefore reversed and the cause remanded to that court with directions to dismiss the petition.

Reversed and remanded with directions.


text:
    George Lowery, Appellee, v. Mack Ashton, Appellant.
    (Wot to be reported in full.)
    Appeal frojn the Circuit Court of Macon county; the Hon. William K. Whitfield, Judge, presiding. Heard in this court at the April term, 1916.
    Reversed and remanded.
    Opinion filed October 13, 1916.
    Rehearing denied December 2, 1916.
    Statement of the Case.
    Action of trespass for assault and battery by George Lowery, plaintiff, against, Mack Ashton, defendant. From a judgment for plaintiff for $1,000, defendant appeals.
    Herrick & Herrick, Carl N. Weilipp and Redmon, Hogan & Redmon, for appellant.
    Whitley & Fitzgerald, for appellee.
    Abstract of the Decision.
    1. Assault and battery, § 17

      —when instruction is improper as assuming facts and, as setting forth incorrect rule of damages. In an action for damages for assault and battery, an instruction reading “you have a right to take into consideration his health prior to the assault complained of and his health since such assault, if shown by the evidence,' and allow him such sum as you may believe from the evidence will compensate him for any such injuries * * *,” held erroneous, as it assumed that the assault was made and that the plaintiff was damaged, and authorized the jury to estimate the damages in the light of a comparison of his health before and after the assault, regardless of whether the change in health was due to the assault or not.
    2. Assault and battery, § 19*—when instruction is erroneous as assuming facts. In an action for damages for assault and battery, an instruction to the jury that they “may take into consideration that the plaintiff was again struck by the defendant while he, the defendant, was not acting in self-defense,” held erroneous, as it assumed the fact to be that the defendant again struck the plaintiff, and that he did so when he was not acting in self-defense.

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

   Mr. Justice Graves

delivered the opinion of the court.


author: Mr. Justice Boggs

text:
    Marshall Rust and James D. Swift, copartners, trading as Rust & Swift, successors to Rust, Swift & Company, Appellees, v. Illinois Southern Railway Company, Appellant.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Randolph county; the Hon. William E. Hadley, Judge, presiding. Heard in this court at the October term, 1915.
    Reversed and remanded.
    Opinion filed May 25, 1916.
    Rehearing granted and opinion filed January 8, 1917.
    Statement of the Case.
    Petition by Marshall Rust and James D. Swift, co-partners, trading as Rust & Swift, successor to Rust, Swift & Company, petitioners, against the Illinois Southern Railway Company, respondent, to enforce a mechanic’s lien for work done under a construction contract. Prom a decree in favor of the petitioners for $16,265.35, and allowing certain set-offs to the respondent and refusing others, the latter appeals.
    On March 23, 1911, defendant entered into a contract with Rust, Swift & Company, a copartnership, composed of Marshall Rust, James D. Swift and W. H. Swift, contractors, to build a railroad incline in the Mississippi River on the Illinois side opposite Little Rock, Missouri, so that the ears of the railroad could be run onto a ferryboat and thereby transferred to its connecting track at Little Rock. In addition to the incline the contracting company was to construct a wooden trestle to connect that incline with the Illinois shore of the river, together with a drift fender and pile dike for the protection of said incline and trestle, from the waters of the river; and do all work required for the safety of the incline, to be built in compliance with plans and specifications prepared by Julius Pit-man, the engineer in charge, or as the plans might be changed by him during the progress of the work. The contract provided that the contractor should not assign or transfer the same or sublet any part of it without the consent of the engineer in charge. In regard to the payments to be made for the work, the contract read as follows: “All payments under this contract shall be made upon certificates of the engineer in charge; said certificates to be made out and given in the following manner: About the first of each month, during the progress of the work, at the request of the contractor, the engineer shall cause approximate estimates to be made of the amount of the work then done and of the amount of material delivered and of the relative value thereof at the prices hereinbefore named; after the first monthly estimate is given, the contractor shall furnish satisfactory evidence, to the engineer in charge that all bills for labor and material used during the preceding months have been paid. From the total value of the work done, as approximately estimated by the engineer, he shall deduct ten per cent, and -all sums previously paid or rightfully retained under the contract, and he shall further deduct an amount sufficient in his opinion for the payment of all unpaid bills for labor and material, the remainder after such deduction, he shall certify as then due to the contractor.”
    Section 7 of the general stipulations contained in the contract gave the engineer in charge of the work certain authority as follows: “To prevent all dis-
    putes and litigation, it is further agreed between the parties hereto that the engineer in charge shall in all cases determine the amount or quality of the several kinds of work which are to be paid for under this contract and he shall decide all questions which may arise relative to the execution of this contract on the part of the contractor and his estimates and decisions shall be final and conclusive.” Section 14 of the general stipulations provided as follows: “The contract- or shall be held responsible for the safety and protection of every part of his work until its completion and acceptance and any injury to the work resulting from flood, scour, undermining of the river bank or bed, or other causes, before such acceptance must be made good by him.”
    On May 12, 1913, a petition to enforce a lien upon the railroad and property of defendant for the amount claimed to be due the petitioners-under their contract, and for material furnished and extra work done within six months prior to the filing of the petition, was filed by Marshall Bust and James D. Swift, copartners, under- the firm name of Bust & Swift, as successors to Bust, Swift & Company, and the contract was set out therein in haec verba. W. Q-. Swift, who was a partner at the time the contract was entered into, had, at the time of the filing of the petition, parted with all his interest in the firm and contract.
    Stewart, Bryan & Williams and H. Clay Horner, for appellant.
    John J. Brenholt and W. M. Williams, for appellees.

      Abstract of the Decision.
    1. Mechanics’ liens, § 212

      —when refusal to make retiring member of contracting firm party is harmless error.. Where a construction contract, which provided that it should not be assigned, transferred, or any part thereof sublet without the consent of the engineer in charge of the work, was let to a firm of contractors consisting of three partners, two of whom filed a petition to enforce a mechanic’s lien after the retirement of the third partner from the firm, helé that the refusal of the chancellor to order that such retiring partner be made a party to the proceeding was not reversible error since such change of partnership was not such an assignment or transfer as was contemplated by the contract, as it was shown that at the time the contract was entered into, the retiring partner had but a one-tenth interest in the firm and was not actually engaged in its business, and that, on his retirement, he relinquished all his interest therein and in the contract, and the petition showed on its face that the petitioners sued as successors of the original firm.
    2. Building and construction contracts, § 57*—when allowance of set-offs by engineer is proper. Where a contract for the construction of a railroad incline leading down to a river, and a wooden trestle and fender dike in the river, provided that the engineer in charge of the work should decide all questions which might arise relative to the execution of the contract and that his decision should be final, helé, in a proceeding to enforce a mechanic’s lien against the railroad, that the engineer had the power to determine whether there should be allowed the respondent as credit or set-off the expense te which it had been put in driving pilings in the fender dike, which had been partially destroyed by a flood after it was completed, and, as claimed by the contractor, accepted by the engineer, but before the entire work had been finished and accepted by the engineer, as well as for pilings swept away, lost, and for work done on the incline, and that his allowance of such set-off was proper, since as the contract further provided that when all the work should be fully completed, as testified to and accepted by the engineer, the latter 'should make a final estimate of the amount and value and deduct all sums previously paid or rightfully retained under the contract by the respondent, and the contract was an indivisible one and there could be no final acceptance of any part until the entire had been completed, and that the court properly disallowed a set-off for labor and materials furnished by the respondent for the purpose of protecting the trestle and incline from injury from floods, as the labor and materials were not used in constructing or replacing any part of the work to be done by the contractor.

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

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

   Mr. Justice Boggs

delivered the opinion of the court.

3. Building and construction contracts, § 49 —when damages for delay in performance of contract are waived. In a suit by a railroad contractor to enforce a mechanic’s lien for work done under a construction contract, held that it was proper to disallow the respondent as set-off a claim for damages for delaying the completion of the work, as the contract did not provide for such damages, but provided that, on the contractor’s failure to construct the work in accordance with the contract, the railroad could, upon giving notice to the contractor, take over the work or any part thereof completed and deduct the cost thereof from the amount that otherwise would be due the contractor, but the railroad gave no such notice, and did not complete the work itself, and otherwise by conduct waived any claim for such damages.


author: Mr. Presiding Justice Higbee

text:
    August Eggert, Jr. and Charles M. Hurst, Plaintiffs in Error, v. Stephen D. Sexton, Trustee, Defendant in Error.
    (Not to he reported in full.)
    Error to the City Court of East St. Louis; the Hon. Robert H. Elannigan, Judge, presiding. Heard in this court at the March term, 1916.
    Affirmed.
    Opinion filed November 13, 1916.
    Rehearing denied January 13, 1917.
    Statement of the Case.
    Suit by Stephen D. Sexton, trustee, complainant, against August Eggert, Jr. and Charles M. Hurst, defendants, to foreclose a mortgage on real estate. To review a decree in favor of complainant, defendants prosecute a writ of error.
    W. W. Cohick and L. H. Hite, for plaintiffs in error.
    O. E. Pope and H. F, Dribmeyer, for defendant in error.
    Abstract of the Decision.
    1. Mortgages, § 393

      —when refusal to pay interest coupons does not place mortgagor in default in payment. The purchaser of property subject to a mortgage securing coupons and promissory notes, and providing that interest shall be payable at a certain time and place on presentation and surrender of the respective coupons, has the right to demand the coupons at the time of making payment of interest, and if, on presenting himself at such place, ready and willing to pay, he is told that the coupons are not in the possession of the party authorized to receive payment, and is refused information as to where they are, his refusal to pay does not put him in default.
    2. Mortgages, § 393*—when suit on mortgage is not prematurely brought. Where a purchaser of property subject to a mortgage securing coupons and promissory notes, and providing that interest shall be payable at a certain time and place on surrender of the respective coupons, presented himself at such time and place and offered to make a payment but refused to do so because of the refusal of the person authorized to receive payment to deliver the coupons, but later failed to present' himself at the time and place after the notes were all due, or to offer to pay them with interest thereon upon production and delivery to him of the papers, held that a suit to foreclose the mortgage was not prematurely brought, and that a decree for the complainant was properly entered.

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

   Mr. Presiding Justice Higbee

delivered the opinion of the court.


text:
    John T. Hayden, Executor, Appellee, v. Benjamin J. Hargan, Guardian, Appellant.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Pulaski county; the Hon. Benjamin- W. Pope, Judge, presiding. Heard in this court at the March term, 1916.
    Affirmed.
    Opinion filed November 13, 1916.
    Statement of the Case.
    Petition in the Prohate Court by John T. Hayden, executor of the estate of W. T. Hayden, deceased, petitioner, against Benjamin J. Hargan, guardian of Loel, Verna, Needa and Zelma Hargan, minors, respondent, to require the respondent to pay over to the estate certain funds alleged to be due it under the will. From an order granting the petition, respondent appeals.
    The testator having devised various parcels of real estate to his children, placing a valuation on each parcel, directed that the devisees should pay into the estate or receive from it such sums as would make their shares equal, taking the various devises at the valuation placed on them by the testator. One of the parcels was devised at a certain valuation to the “heirs” of a deceased daughter, naming her children, who were minors. The value of this parcel being in excess of the average value of all the devises, the executor filed a petition in the Probate Court in which the estate was being administered, asking that the court ascertain the amount necessary to be paid over by the minors to the executor, to equalize the devise to them in accordance with the terms of the will, and that upon such amount being ascertained and determined, that said guardian be required to pay to said executor the amount so fixed out of whatever fund should be in liis hands as guardian belonging to said minors, and that in case said guardian did not have sufficient funds with which to pay said amount, that then he be directed to file his petition in said court for leave to mortgage his wards’ real estate for a sufficient amount to pay the same.
    Charles L. Bice, for appellant.
    O. S. Miller and Wall & Martin, for appellee.
    Abstract of the Decision.
    1. Time, § 2

      —when Sunday is excluded in computing time for filing bill of exceptions. Where an order granting an appeal provided that a bill of exceptions should be filed within sixty days from the date of making the order, held that the sixtieth day falling on Sunday, the bill filed on the following Monday was filed in accordance with the order under clause 11, sec. 1, ch. 131, Rev. St. (J. & A. If 11,102), providing that the time within which any act provided by law is to be done shall be computed by excluding the first day and including the last, unless the last day is Sunday, and then it also shall be excluded.
    2. Wills, § 282*—when grandchildren take per stirpes and not per capita. Where a testator devised separate parcels of real estate to his children, placing a valuation upon each parcel, and directed that the various devisees should pay or receive from the estate such sum as would make the share of each equal, and devised one of the parcels at a certain valuation to the “heirs” of a deceased daughter, naming her children, who were minors, held on a petition by the executor against the guardian of such minors to require him to pay to the estate the excess of such valuation over the average value of all the devises, that such minors took per stirpes and not per capita, and that the petition was properly granted.
    3. Courts, § 105*—when Probate Court may exercise equitable jurisdiction in settlement of an estate. The Probate Court and the Circuit Court on appeal in probate matters have the right to exercise equitable jurisdiction in the settlement of an estate when necessary to further the qnds of justice, and it is only in extraordinary cases that the courts of equity will supersede the Probate Court in making such settlement.

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

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

   Mr. Presiding Justice Higbee

delivered the opinion of the court.

4. Courts, § 104 —when Probate Court has jurisdiction to require repayment by heirs of excess over average value of devises. Where a testator devised certain parcels of real estate to his children, placing the valuation upon each parcel, and directed that the devisee should pay into or receive from the estate such sums as would make the share of each equal, and devised one of the parcels at a certain valuation to the “heirs” of a deceased daughter, naming her children, who were minors, held that the Probate Court in which the estate was being settled had jurisdiction of a petition by the executor against the guardian of such minors to require him to pay into the estate the excess over the valuation of the parcel devised to them, over the average value of all the devises.


text:
    The People of the State of Illinois, Defendant in Error, v. Bob Belina, Plaintiff in Error.
    (Not to he reported in full.)
    Error to the County Court of Franklin county; the Hon. Nealy I. Glenn, Judge, presiding. Heard in this court at the March term, 1916.
    Affirmed.
    Opinion filed November 13, 1916.
    Statement of the Case.
    Prosecution by the People of the State of Illinois, plaintiff, against Bob Belina, defendant, for the sale of intoxicating liquor in anti-saloon territory. To review a judgment against him sentencing him to pay a fine of twenty dollars on each of thirteen counts of the information and to serve ten days in jail on each of the first six counts, the defendant prosecutes a writ of error.
    E. E. Smith and J. P. Mooneyham, for plaintiff in error.
    W. P. Speller and T. Gr. Lewis, for defendant in error.

      Abstract of the Decision.
    1. Indictment and information, § 44

      —when good counts are sufficient to sustain conviction. Where a verdict of guilty was rendered on each of several counts of an information, and the motion for arrest of judgment on one of the counts on the ground that it was defective was granted and the judgment entered on all the other counts, held, on appeal, that the defendant’s contention that the judgment could not be entered for the reason that the verdict, although finding the defendant guilty of the several different counts, was so far a unit, that it must stand or fall together, was untenable.
    2. Intoxicating liquors, § 261*—when admission of evidence as to contents of copy of federal special revenue stamp is harmless error. In a prosecution for selling liquor in anti-saloon territory, where a witness for the State was allowed to state the contents of an examined copy which he had made of a federal special revenue stamp issued to the defendant over the objection thereto on the ground that the copy would be the best evidence, held that he could not on appeal urge such action of the court as reversible error, as he later objected to the admission of the stamp in evidence when offered by the prosecution, which objection was sustained.

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

   Mr. Presiding Justice Higbee

delivered the opinion of the court.


author: Me. Pbesiding Justice Higbee

text:
    Emil Sanboeuf, Appellee, v. Murphy Construction Company, Appellant.
    (Not to be reported in full.)
    Appeal from the City Court of East St. Louis; the Hon. W. M. Vandeventer, Judge, presiding. Heard in this court at the March term, 1916.
    Affirmed.
    Opinion filed November 13, 1916.
    Statement of the Case.
    Action by Emil Sanboeuf, plaintiff, against the Murphy Construction Company, defendant, for personal injuries sustained by plaintiff while employed as a laborer for defendant. From a judgment for plaintiff for four hundred dollars, defendant appeals.
    Thomas C. Angeestein, W. C. Connett and P. K. Johnson, for appellant.
    Dan McGlynn, for appellee.
    Abstract of the Decision.
    1. Negligence, § 119

      —how declaration charging should he drawn. In drawing a declaration charging negligence, it is not necessary, even if it is proper, to allege alone a duty on the part of defendant to do certain things, but facts must be alleged from which the law will raise a presumption of such duty.
    2. Master and servant, § 538*—when declaration sufficiently alleges duty on part of master to provide safe place. In an action for personal injuries sustained by a workman employed in the erection of a building, whose duty it was, while standing on a platform beside a chute for concrete, to accelerate the movement of the concrete, and who, having stepped into the chute for such purpose and finding that the chute was beginning to sag because of its weight, got out on the platform beside the chute and was knocked down by it as the chute fell, a declaration which alleged that the plaintiff was employed by the defendant, that the chute was dangerous and unsafe, that employees were required to work in the chute, that the chute frequently got clogged so that employees Yvould have to get into it to accelerate the movement of the concrete, that such condition was known or could have been known to the defendant by the exercise of proper diligence and that, while the plaintiff was in the chute moving the concrete, it gave way by reason of its being unsafe, held sufficient to show an obligation on the part of the defendant to make the chute safe.

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

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

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

   Me. Pbesiding Justice Higbee

delivered the opinion of the court.

3. Master and servant, § 137 —when doctrine of safe place to work is applicable. In an action for personal injuries sustained by an employee in the erection of a building, whose duty it was, while standing on a platform beside a chute for concrete, to accelerate the movement of the concrete, and who, having stepped into the chute for such purpose and finding that it was beginning to sag because of its weight, got out upon a platform and was knocked down by the chute as it fell, held that the rule making it the duty-of a master to furnish the servant with a safe place to work applied.

4. Workmen’s Compensation Act, § 2*-—when question of duty of master to furnish servant with safe place to work is immaiérial. In an action for personal injuries by a servant against his master, who has failed to come under the Workmen’s Compensation Act, the question whether it was the duty of the master to furnish the servant with a safe place to work was immaterial, since he is precluded from taking advantage of the defense of assumed risk and contributory negligence.

5. Master and servant, § 770*—when refusal to direct verdict for plaintiff in action for personal injuries is proper. In an action for personal injuries sustained by a workman employed in the erection of a building, whose duty it was, while standing on a platform by a chute for concrete, to accelerate the movement of the concrete, and who, having stepped into the chute for such purpose and finding that it was beginning to sag because of its weight, got out on the platform and was knocked down by the chute as it fell, held that the trial court did not err in refusing to direct a verdict for the defendant, and that the evidence was sufficient to sustain the verdict.

6. Trial, § 276*—when interrogatory is properly refused as inapplicable. In an action for personal injuries by a workman employed in the erection of a building, whose duty it was, while standing on a platform beside a chute for concrete, to accelerate the movement of the concrete, and who, having stepped into the chute for such purpose and finding that it was beginning to sag because of its weight, got out upon a platform and was knocked down by the chute as it fell, held that a special proposed interrogatory reading, “Was the work upon which defendant was engaged at the time of the plaintiff’s alleged injury a work of construction of a building or other structure, which was undergoing changes and passing successive temporary conditions which, from the very nature of construction were dangerous? ” was properly refused, as, on the facts, the case was not one where the rule requiring the master to furnish the servant a safe place to work did not apply.

7. Trial, § 276 —when special interrogatory calling for answers as to evidentiary facts is properly refused. It is not erroneous to refuse a special interrogatory calling for answers as to evidentiary facts only, instead of ultimate facts.

8. Instructions, § 126*—when properly refused as abstract. The refusal to give instructions stating abstract propositions of law is not erroneous.

9. Damages, § 132*—when verdict for damages for personal injuries is not excessive. A verdict of four hundred dollars awarded a laborer, engaged in the construction of a building, for injuries, consisting of a sprained wrist and a cut on his leg below the knee several inches long, held not so excessive ás to warrant the reversal of a judgment in his favor.


text:
    Ferdinand W. Fries et al., Defendants in Error, v. Malbern M. Stephens and Charles L. Gray, Plaintiffs in Error.
    (Not to he reported in full.)
    Error to the Circuit Court of St. Clair county; the Hon. William B. Weight, Judge, presiding. Heard in this court at the March term, 1916.
    Affirmed.
    Opinion filed November 13, 1916.
    Statement of the Case.
    Action by Ferdinand W. Fries, Charles Schneider and John Schaller, partners, trading as Bank of New Athens, plaintiffs, against Malbern M. Stephens and Charles L. Cray, defendants, on a contract to purchase bonds. To review a judgment for plaintiffs for $11,216.66, defendants prosecute a writ of error.
    The contract sued upon was in part as follows:
    ‘ ‘ For and in consideration of the- sum of one dollar ($1.00) paid to the parties of the first part by the parties of the second part, receipt of which is hereby acknowledged, and other good and sufficient consideration, it is agreed between the parties hpreto as follows, to wit: First.. That pames of the first part agree to purchase from the parties of the second part bonds of the Milo Realty & Investment Company of the aggregate par value set opposite their respective names, to wit:
    Farmers & Merchants Trust Company.......$17,000
    State Bank of St. Jacob.................... 4,500
    First National Bank of Belleville............ 5,000
    Union Trust & Savings Bank................ 6,000
    Bank of New Athens....................... 10,000
    First National Bank of Freeburg............ 3,000
    F. L. Baltz................................ 6,000
    First National Bank of Edwardsville......... 15,000
    Cermantown Savings Bank.................. 5,000
    C. A. Sisk................................. 20,000
    Bartelso Savings Bank..................... 2,000
    L. D. Turner.............................. 3,000“
    A. W. Baltz ............................... 1,000
    “On or before two years from November 1,1911, and to pay for the same the par value thereof plus accumulated interest at the time of said purchase and payment. The parties of the first part are to have all unearned coupons attached to said bonds. Second. The parties of the second part, their successors and assigns, hereby agree to deliver, or cause to be delivered, the respective bonds set opposite their names herein upon payment by the parties of the first part of the par value of said bonds and accrued interest thereon, and to deliver the unearned coupons with said bonds at any time within two years from November 1, 1911. Third. It is understood and agreed that in ease of any default on any of the interest coupons attached to said bonds that the parties of the first part are to pay the interest represented by the said coupons in default at the time of the purchase of said bonds.”
    B. B. Burroughs and C. Porter Johnson, for plaintiffs in error.
    Barthel, Farmer & Klingel, for defendants in error.
    Abstract of the Decision.
    1. Judgment, § 261

      —what amendment of may be based on. To justify an amendment of a judgment at a subsequent term, the error must be shown by some note or memorandum in the record or quasi record of the court, or by the judge’s minutes or some entry in some book required to be kept by law or papers on file in the case, and cannot be determined from the memory of a witness or recollection of a judge himself.
    2. Judgment, § 256*—when may be amended at subsequent term by striMng out name of unserved defendant. Evidence in a case showing that one of two defendants against whom a judgment was rendered was not served with summons and did not answer or enter his appearance, held sufficient to show that the judgment was inadvertently entered against him and to warrant the trial court in amending the judgment at a subsequent term of court by striking his name therefrom.
    3. Contracts, § 202*—when contract for purchase of bonds is joint and several. A contract for the purchase of bonds from various holders setting out the holdings of each, held several as well as joint, so as to warrant the bringing of an action thereon by some of the holders to enforce the purchase of their holdings without joining the other holders.
    4. Contracts, § 86*—when agreement for purchase of bonds is based upon sufficient consideration. Where a contract entered into between the defendant and a committee of holders of notes secure^ by mortgage provided that the property securing the note should be purchased by the note holders, cleared of all incumbrances except the first mortgage and deeded to the defendant, who should mortgage the property and cause to he delivered to the note holders fifteen-year bonds in lieu of the notes, and also execute an agreement in writing to purchase such bonds at par and accrued interest on or before a certain time, and the property was purchased and deeded to a company of which the defendant was made president, and the agreement in writing for the purchase of the bonds issued by the company was executed, held, in an action of assumpsit for damages by some of the holders of the bonds, that the defendant’s contention that it was not shown that he requested that the property be deeded to the company was untenable as a defense, and that the defendant’s contention that there was no consideration moving to him so as to bind the agreement in writing was untenable, since a consideration was recited therein, and the agreement was a part of the original contract.

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

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

   Mr. Presiding Justice Higbee

delivered the opinion of the court.

5. Contbacts, § 377 —when bonds running for a longer term, than originally provided for in contract are admissible in evidence. Where a contract entered into between the defendant and a conmittee of holders of notes secured by mortgage provided that the property securing the note should be purchased by the note holders, cleared of all incumbrances, except the first mortgage, and deeded to the defendant, who should mortgage the property and cause to be delivered to the note holders fifteen-year bonds in lieu of notes and also execute an agreement in writing to purchase such bonds at par and accrued interest on or before a certain time, and the property was purchased and deeded to a company, of which the defendant was made president, and the agreement in writing for the purchase of the bonds issued by the company was executed, held in an action of assumpsit for damages by some of the bondholders that it was not erroneous for the court to admit in evidence bonds running for twenty years, although the original contract was for fifteen-year bonds, as the agreement was for the purchase of the bonds issued by the company, and, if there was any objection to the length of term, it was waived by the defendant in entering into the agreement in writing.


text:
    M. F. Diesel, Defendant in Error, v. G. J. Diesel, Plaintiff in Error.
    (Not to be reported in full.)
    Error to the Circuit Court of St. Clair county; the Hon. Geobge A. Cbow, Judge, presiding. Heard in this court at the March term, 1916.
    Reversed and remanded.
    Opinion filed November 13, 1916.
    Statement of the Case.
    Action by M. F. Diesel, plaintiff, against Gr. J. Diesel, defendant, to recover damage's for the alienation of affections of the plaintiff’s wife. To review a judgment for plaintiff for $3,500, defendant prosecutes a writ of error.
    William H. Pfingsten and C. H. Gr. Heinfelden, for plaintiff in error.
    Sohaumleffel & Johnson, for defendant in error.
    Abstract of the Decision.
    1. Husband and wife, § 280

      —When decree of divorce is admissible in action for alienation of ■ affections. In an action for the alienation .of affections of the plaintiff’s wife where one defense was that the plaintiff had by his cruelty and atitfee alienated his wife’s affections and that such alienation was not caused by the actions of defendant, held that a decree granting a divorce to the plaintiff’s wife containing a finding that the plaintiff had been guilty of extreme and repeated cruelty towards his wife was admissible.
    2. Husband and wife—when instruction in action for alienation of affections of mfe is erroneous. In an action for the alienation of" affections of plaintiff’s wife, an instruction that “The jury are instructed that if you find for the plaintiff, in estimating the injury he has sustained, you have a right to take into consideration the wounded feelings and affections of the husband, if any,the wrong done to him in his domestic and social relations, if any, the stain and dishonor he has sustained, if any, the grief and affliction suffered in consequence of the act complained of, if any, and give damages accordingly," held erroneous as not confining the jury to the evidence.

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

   Mr. Presiding Justice Higbee

delivered the opinion of the court.


text:
    Village of New Athens, Appellee, v. William Casperson, Appellant.
    Municipal corporations, § 860

      —what is nature of prosecution under ordinance to recover fine for indecent exposure. A prosecution under a village ordinance to recover a fine for indecent exposure, held to be a civil action, and that consequently a judgment imposing a penalty entered on the return of a verdict simply that the jury found the defendant was guilty, without fixing the penalty, was erroneous, as only the jury can fix the penalty in such a case.
    Appeal from the Circuit Court of St. Clair county; the Hon. Geoeqe A. Crow, Judge, presiding. Heard in this court at the March term, 1916.
    Reversed and remanded.
    Opinion filed November 13, 1916.
    A. B. Davis, for appellant.
    Otwele & Lindauer, for appellee.

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

   Mr. Presiding Justice Higbee

delivered the opinion of the court.

Appellant was arrested and prosecuted under a village ordinance, by appellee, for indecent exposure of his person in a public place. He was tried before a justice of the peace, who found him, guilty of the offense and assessed a fine of ten dollars and costs. On an appeal to the Circuit Court, a trial was had by jury and the jury were instructed by the court, if they found appellant guilty, the form of their verdict should be: “We the jury find the defendant guilty.” The jury found appellant guilty and returned their verdict in the form as given. A motion for a new trial was overruled and judgment entered against appellant and the surety on the appeal bond for ten dollars and costs.

Appellant complains in this court that the trial court erred in its instructions as to the form of verdict and that it was for the jury and not the court to fix the penalty. This was clearly a civil action governed by the rules of civil procedure, and therefore the jury alone could determine the amount of the penalty. In Hoyer v. Town of Mascoutah, 59 Ill. 137, the court stated in its opinion: “It has been repeatedly held by this court that a proceeding to collect a penalty for the violation of a town ordinance is a civil suit. Such a penalty cannot be recovered in any criminal proceeding. Town of Jacksonville v. Block, 36 Ill. 507; Graubner v. City of Jacksonville, 50 Ill. 87. The fact that the offense charged was assault and battery does not change the character of the proceedings. It is still a civil suit. The town only acquires jurisdiction because the offense is prohibited by ordinance.” See also, City of Chicago v. Knobel, 232 Ill. 112; McLain v. City of Chicago, 127 Ill. App. 489. In City of Chicago v. Kenney, 35 Ill. App. 57, it was held: “The proceeding must be in the corporate name of the city, and is a civil action in form, debt, and governed in all respects by the rules of procedure in civil eases. Israel v. Town of Jacksonville, 1 Scam. 290; Town of Lewiston v. Proctor, 27 Ill. 414; Town of Havana v. Biggs, 58 Ill. 483; Town of Partridge v. Snyder, 78 Ill. 519; Webster v. People, 14 Ill. 365.”

As this must be regarded as a civil action, it follows that the court had no authority, in the absence of a statute conferring power to do so, to fix the amount due the village as penalty or debt, and that such amount should have been determined by the jury and included in their verdict. For the error above indicated, the judgment will be reversed and the cause remanded.

Reversed and remanded.


text:
    Isadore Skimutis, Appellant, v. American Citizen’s Lithuanian Club, Defendant in Attachment, and Independent Breweries Company, Claimant, Appellee.
    1. Justices of the peace, § 158

      —when justice may not amend judgment. After a justice of the peace enters a judgment, he has no authority to open, amend or add thereto, and any addition he may attempt to make at a later date must be considered of no effect.
    2. Justices of the peace, § 176*—when prayer for appeal is not in time. Where it appeared from affidavits filed on a motion to dismiss an appeal to the City Court from a judgment of a Justice’s Court, that if any appeal had been prayed for it was done before the verdict in the case was rendered and judgment entered, held that the denial of the motion was erroneous.
    Appeal from the City Court of East St. Louis; the Hon. Robert H. Fdannigan, Judge, presiding. Heard in this court at the March term, 1916.
    Reversed and remanded with directions.
    Opinion filed November 13, 1916.
    Edward O. Zulley, for appellant.
    N. C. Lyrla, for appellee.

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

   Mr. Presiding Justice Higbee

delivered the opinion of the court.

Appellant sued out a writ of attachment' before a justice of the peace of St. Clair county against the goods and chattels of American Citizen’s Lithuanian Club. After the property was taken by the constable on the attachment writ, Independent Breweries Company served a written notice on him, claiming part of the same. The parties thereafter appeared before the justice of the peace who commenced the suit and a change of venue was taken to F. X. Ziegelmeier, another justice, who, on December 7, 1915, tried the case with a jury. The jury found against the claimant, Independent Breweries Company, and the .justice thereupon, on the same day, entered judgment against the company in favor of appellant for $8.35, the costs of suit taxed in the case. On the following day, the company filed its bond in the City Court and a siipersedeas was issued and served on the justice. On December 9, 1915, the justice made the following notation on his docket below his signature, at the conclusion of the judgment: “1915, December 9. Claimant, Independent Breweries Company, failed to pray for an appeal the day this judgment was rendered. Supersedeas served; transcript and files sent to City Court. F. X. Ziegelmeier, J. P.” Thereafter the attorney for appellant filed a motion in the City Court to dismiss the suit, upon the ground that no appeal had been prayed on the day the judgment was entered. The company filed two affidavits resisting the motion, being those of its attorney and his stenographer, both of whom stated that the attorney, at about 3:30 o’clock in the afternoon of the day judgment was entered, told said justice over the telephone that the Independent Breweries Company desired to appeal said cause and would file a bond in the City Court and that thereafter, on December 8, 1915, being the next day after the trial of said cause, an appeal bond in said cause was 'filed in the City Court. Counter-affidavits were filed for appellant by the justice of the peace who tried the case and his attorney .and three of the jurors who served in the Justice’s Court. The justice stated that immediately after the case had been submitted to the jury, the agents and attorney of the breweries company left his court and never returned on that day; that affiant did not see said attorney and never had any conversation with him or with any of the agents of the claimant any more that day; that the jury did not bring in its verdict until some time after four o’clock p. m., on the day of trial, and that judgment was entered on the verdict by him on the same day; that no appeal was prayed by the claimant from said judgment on the day the same was entered and that affiant made no arrangements with the attorney for the claimant, or any one else, about an appeal from said judgment, and was never requested to make an entry in his docket of the fact that an appeal was prayed from a judgment on the day it was entered by him; that affiant did not make any arrangement with any one, either over the telephone or otherwise, to make an entry in his docket of the prayer for an appeal-on said day.

The attorney for appellant swore in his affidavit that the case was tried in the Justice’s Court before a jury and that said jury did not bring in its verdict until some time after four o’clock p. m., on the day of trial. Two of the jurors testified that the verdict was not. returned in the case until after 4 :20 p. m., and one of them, after 4:30 p. m., on the day of the trial. The City Court denied the motion to dismiss the suit and appellant elected to abide by his motion. The court" called a jury to hear the proofs. The claimant introduced its evidence and the jury returned a verdict finding the rights to the property in question to be in the claimant, Independent Breweries Company, whereupon appellee, limiting his appearance for that purpose, moved the court to reconsider the decision theretofore rendered in the cause, upon the motion above referred to, and to set aside the verdict and dismiss the appeal, which motion was' also denied. Judgment was thereupon entered against appellant for costs and that the Independent Breweries Company have a writ of retorno habendo for the property.

The statute in reference to trial of the right of property provides: “An appeal may be taken as in other cases provided the same is prayed on the day the judgment is entered and the bond shall be given within five days from the time of entering the judgment.” Bev. St. ch. 79, sec. 141 (J. & A. ¶ 7002). The plaintiff below has appealed to this court and it is here conceded by the parties that under this statute, to give the City Court jurisdiction, it was necessary that an appeal should be prayed on the same day the judgment was entered, and the question presented on this appeal is whether it was shown on the hearing of appellant’s motion that there was such a prayer for an appeal made on that day as is contemplated by the statute. In determining this question we cannot consider the notation made by the justice on his docket two days after the judgment was entered, as it is a well-settled rule of law that' after a justice enters a judgment, he has no authority to open, amend or add thereto, and any addition he may attempt to make at a later date must be considered of no effect. Pettit v. Burke, 139 Ill. App. 419. This leaves the question as to when the appeal was prayed to be determined by the affidavits introduced by the respective parties. The affidavit of the justice of the peace flatly contradicts those of the attorney for appellee and his stenographer, as to the giving of a notice to the justice on the day of trial that an appeal was desired by the breweries company, and the affidavits on behalf of the company do not show that there was any judgment in existence at the time the justice of the peace was notified of a desire for an appeal, but merely stated that the justice was called up by telephone at about 3:30 o’clock in the afternoon and told that the company wished to appeal the case. On the other hand, it was shown by the affidavits of the justice of the peace, the attorney for appellant and three of the jurors, who tried the case, that no verdict was returned until after four o’clock, one of the latter fixing the date as being after 4:30 p. m. It thus plainly appears from the proofs that if the attorney for the breweries company made any request for an appeal on the day of the trial, it was made before the judgment was entered. This brings us to the consideration of the question whether such a request or prayer for an appeal, if made as claimed, was sufficient to comply with the statute.

In the case of Hughes v. Glover, 53 Ill. App. 141, relied on by appellee, it is said, where the question was raised as to whether an appeal was prayed for on the day the judgment was entered by a justice of the peace in a case involving a trial of the rights of property: “No particular form of ‘prayer’ for the allowance of an appeal in such cases is prescribed by law. The desire ór intention to appeal, made known in any way to the justice, is sufficient.” In that case, however, it was shown by affidavit that the intention to appeal was made known by the defeated party immediately following the judgment. In the case of Pettit v. Burke, supra, it was held, where there had been a trial concerning the rights of property before a justice of the peace, that praying an appeal before the judgment was rendered and at a time when the party so attempting to pray the appeal had no knowledge whether the verdict and judgment thereon would be favorable or adverse to his interest, was not praying an appeal within the requirements of the statute. We agree with this holding as it is clear that a judgment cannot be appealed from until it has been rendered and is in existence. As the proofs in this case failed to show that an appeal was prayed for from the judgment of the justice of the peace, after it had been rendered, it -was the-duty of the trial court to have dismissed the appeal on the motion presented by Skimutis asking therefor. The appeal from the justice not having been prayed for in the time prescribed by statute, the City Court acquired no jurisdiction of the case and could have entered no order in it except to dismiss the appeal. Rozier v. Williams, 92 Ill. 187. The judgment of the City Court of Bast St. Louis will be reversed and the cause remanded with directions to that court to dismiss the appeal for want of jurisdiction.

Reversed and remanded with directions.


text:
    Town of Grand Prairie, Appellee, v. Fred Schneider, Appellant.
    (Not to he reported in full.)
    Appeal from the County Court of Jefferson .county; the Hon. Ahtbew D. Webb, Judge, presiding. Heard in this court at the March term, 1916.
    Reversed and remanded.
    Opinion filed November 13, 1916.
    Statement of the Case.
    Action by Town of Grand Prairie, plaintiff, against Fred Schneider, defendant, before a justice of the. peace for obstructing a public highway. From a judgment against defendant for $65.10 and costs on appeal to the Circuit Court, defendant appeals.
    Schul & Ore, for appellant; C. F. Dew, of counsel.
    W. G. Murphéy and Curtis Williams, for appellee.

      Abstract of the Decision.
    1. Roads and bbidqes, § 21

      —when prescriptive highway not established. Evidence in an action for obstructing a highway, held insufficient to show the existence of a highway by prescription.
    2. Trial, § 69*—when limitation in number of witnesses improper. Limitation as to number of witnesses to prove an essential and strongly controverted point, held, erroneous, particularly where the limitation was applied to the witnesses for only one of the parties.

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

   Mr. Presiding Justice Higbee

delivered the opinion of the court.


text:
    Francis M. Parish, Appellant, v. Noah C. Bainum and Charles A. Bainum, Appellees.
    1. Joint adventubes, § 6*—when right to share in profits is not forfeited. Where, under an arrangement for the purchase of land for platting and sale, one of the parties was to furnish the purchase money and to receive a percentage of the profits of the sale, the failure of such party to furnish all of the purchase money required did not forfeit his right to share in the profits at the agreed rate, where the money furnished was accepted by the other parties to the agreement without requiring him to submit to a reduction of his interest in the profits pro tanto.

    2. Joint adventubes—what does not constitute release of interest in enterprise. Where one of several parties to a written contract for their joint enterprise and profit took the note of the other parties thereto for their part of the purchase money used in such enterprise, as provided in such contract, and thereafter said note was in part paid and surrendered and two new notes given for the remainder due' thereon, held that such division of the balance due on the original note into two notes did not operate as a release of the payee’s interest in the enterprise under said contract.
    3. Judgment, § 419*—when dismissal of suit is not bar to subsequent suit. Where a suit was dismissed on complainant’s motion without prejudice, after answer upon oath filed under a bill not waiving answer under oath, held that the matters set up in such answer are not res judicata in a second suit for the same relief, distinguishing the case of Mey v. Gulliman, 105 Ill. 272.
    4. Equity, § 321

      —when sworn answer will he given full credit in subsequent suit. The sworn answer to a bill not waiving answer under oath dismissed without prejudice on complainant’s motion will be considered and given full credit in another suit for the same relief.
    5. Account, § 23*—when defense of statute of limitations does not apply. The defense of the statute of limitations does not apply in a suit for accounting upon a contract where the business to be accomplished by such contract is not completed.
    Appeal from the Circuit Court of White county; the Hon. J. C. Eagleton, Judge, presiding. Heard in this court at the March term, 1916.
    Reversed and remanded.
    Opinion filed November 13, 1916.
    Petition for certiorari dismissed.
    S. Gr. Gtee and James M. Endicott, for appellant.
    W. F. Scott and E. B. G-reen, for appellees.

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

   Mr. Presiding Justice Higbee

delivered the opinion of the court.

This is an appeal from a decree dismissing a bill filed by appellant against appellees for an accounting, growing out of a partnership alleged to have existed between all the parties. There are no errors assigned other than the entering of the order dismissing the bill for want of equity, and appellant contends that the proofs show he was entitled to equitable relief and his bill should not have been dismissed.

The evidence introduced on the trial shows that Noah C. Bainum desired to open up an addition to Mt. Carmel, Illinois, having just finished selling an addition to Bicknell, Indiana; that he knew appellant, who lived in Carmi, had some ready money and asked him to join in an enterprise. After Noah C. Bainum had interviewed the agents of the tracts of land he contemplated buying and platting, a written agreement was entered into between complainant, appellees and one J. S. Sweeney, concerning the enterprise. Sweeney afterwards died and his interest was acquired by appellee Charles A. Bainum. The contract dated November 21, 1906, recited that Noah C. Bainum had for the benefit of all the parties contracted to purchase of Bernard S. Landes of Mt. Carmel, Illinois, certain real estate, owned by him at that place, consisting of thirty or more acres at $460 an acre; that appellant was to furnish the money to pay for the land and appellee and Sweeney were to execute to him their promissory note for their part of the purchase money; that the title to the land should be taken in the name of Noah C. Bainum for the convenience of all parties and as their trustee, who should subdivide and sell the property upon such terms as should be agreed upon by the parties; that he should be paid for his services ten per cent, of the gross amount of the sales, out of which he was to pay any assistance employed by him; that after the payment of all expenses, the money derived from the sale of lots should be applied to the satisfaction of the note of appellant and the balance divided among the parties as follows: One-sixth to Charles A. Bainum, one-sixth to J. S. Sweeney, two-sixths to Noah C. Bainum and two-sixths to Francis M. Parish; that when lots were sold Noah C. Bainum was to execute and deliver to the purchaser a sufficient deed on behalf of all the parties. It was found when the land was measured that it contained about forty-five acres and the purchase price amounted to $20,092.80. Appellant, when applied to for the money required to purchase the land, stated that he could raise but $15,000, for which amount he gave his check, and the balance was procured by appellees and Sweeney, who also executed their note payable to appellant, in one year from date with interest at the rate of six per cent, per annum. The deed was taken in the name of Noah C. Bainum, as trustee, and he thereupon caused the purchased land to be surveyed, platted into lots and put upon the market as contemplated by the agreement. On January 12, 1907, which wás about a month before the $15,000 note to appellant became due, arrangements were made by which the same was surrendered to the makers thereof, and the balance due thereon, amounting to $11,378.92, was divided into two notes payable to appellant, each for the sum of $5,689.46, payable in six months with interest at the rate of six per cent, per annum and executed by the same parties. These notes were afterwards indorsed by appellant and sold to two banks in Carmi, and after having been renewed a number of times were paid off by appellee Noah C. Bainum. Differences having arisen between appellant and the other parties, appellant filed a bill against appellees, the only other parties claiming interest in the enterprise, claiming that there was due him a considerable sum of money under said contract for the profits derived from the sale of lots and asking that the partnership be dissolved and an accounting had. The answer of appellees set out a history of the transaction according to their views of it, admitted that all the expenses of said business and alleged partnership had been paid but denied that appellant had any interest in said business or that there was anything due him on an accounting and settlement of the affairs thereof. They further denied that appellees or either of them had ever been a partner of or trustee for appellant in this matter, or that they had any account, money or contract, books or other things relating to said business or alleged copartnership in which appellant has now or ever had any interest or claim. The answer further stated that at the time the balance of $11,378.92 was divided into two notes, appellant agreed with appellee Noah C. Bainum, acting for himself and the other makers of the note, that if they would allow him to withdraw his money from said investment and business, he would in consideration thereof, and did, withdraw from said business, and agreed that the same should be terminated, dissolved and the business settled. Appellees also set up as a defense the statute of limitations and laches on the part of appellant in prosecuting his suit. Upon the hearing the court dismissed appellant’s bill for want of equity and he has brought the record to this court for review.

The matters of defense urged by appellees are: First, that as appellant failed to furnish the whole amount he had agreed to provide by the contract he is not entitled to one-third of the profits; second, that if he was originally entitled to a share in the profits he abandoned such right by the agreement made by him when the balance due on the large note was divided into two notes; and third, that he lost any interest he may have had by operation of law when he took up the $15,000 note. It is true that the contract provided that appellant was to furnish the money to pay for the land subdivided, which called for $20,092.80, and that he in fact furnished a less amount, to wit, the sum of $15,000. The parties associated with appellant, however, accepted from him the amount furnished and procured the balance necessary to complete the purchase elsewhere without, so far as the proofs show, requiring appellant to forfeit any of his rights under the contract. The consideration which induced appellant to furnish the money was not alone the repayment to bim by his associates of the amount furnished with six per cent, interest, but that which induced him to furnish the money and enter into the contract was that, in addition to such repayment and interest, he was to have a share in the profits of the enterprise. Appellee Noah C. Bainum was to be paid for bis services ten per cent, of the gross amount of the sales, and the services which Charles A. Bainum and J. S. Sweeney were to render, according to the contract, consisted only of the execution of a note with Noah C. Bainum to appellant for their part of the necessary money to pay for said land. It turned out that for about one-fourth of the purchase money, the last three executed their note payable to another party than appellant and they might well have required him to lessen his interest somewhat in the possible profits, but they did not require him to do so, and notwithstanding the fact that he furnished less money than he originally agreed to do, he retained his rights under the contract and his interest in the profits was not curtailed. He was therefore entitled to a share in the fruits of the undertaking unless subsequent to the time he furnished the money he abandoned the contract or did something to forfeit his rights. The testimony on the part of appellees does not show a direct promise on the part of appellant when he requested that the balance of the $15,000 note be divided into two notes, that in consideration of such a division he would release his interest under the contract, nor was anything said at that time so far as shown by the proof on the part of appellees from which the inference could reasonably be drawn that appellant intended to release his rights at that time. On,the other hand, appellant’s own testimony shows that he did not intend to release his rights by such transaction, and he also introduced proof tending to show that appellees afterwards recognized his rights under the contract. The proof, as a whole, failed to sustain appellees’ defense of an actual surrender on the part of appellant. Nor does it appear to us that the division of the balance due on the original note into two notes, signed by appellant’s associates, operated as a release of his interest in the enterprise under the contract. By the division of the one note into two and the sale of the same by appellant to other parties, no additional hardship was imposed upon the signers, and they in fact obtained an extension of time for the payment of the amount due. The notes were indorsed by appellant, and while he obtained the money on them he of course lost the right to collect interest from his associates as provided by the original notes. Upon the whole we have concluded that the proofs in the case show the equities to have been with appellant.

A former bill had been filed by appellant for substantially the same relief asked for here, not waiving answer under oath, to which an answer under oath had been filed and the bill was afterwards dismissed on motion of complainant. Appellees raise the question as to whether the dismissal of that suit did not render the matters alleged in the bill and denied in the answer res adjudicata between the parties, and rely on the statement made by our Supreme Court in Mey v. Gulliman, 105 Ill. 272, that: “In a suit in chancery, where the bill calls for answers under oath, and where sworn answers have bqen filed denying the equities of the complainant, and where no replication has been filed, and where, after answers are so filed, it is,, on motion of complainant, ordered by the court that the bill be dismissed at the' costs of the complainant, and no other words of the order indicate that the bill is to be dismissed without prejudice, it is a very grave question whether such an order can be set up successfully as a complete bar to a subsequent suit by the same complainant against the same defendants, seeking the same relief, and upon the same alleged equities.” It is sufficient answer to this question, however, to say that the record in this case shows that the former case was dismissed upon motion of the complainant “without prejudice,” consequently the doctrine referred to does not apply.

In considering the weight of the proofs in this case, however, we have taken into consideration the sworn answer filed in that case and given full credit to it as evidence in this case. The defense of the statute of limitations and laches set up by appellees does not apply under the facts in this case for the reason that the partnership business, or the business to be accomplished under the contract, does not yet appear to have been completed. For the reasons above given, the decree will be reversed and the cause remanded for further proceedings in the court below, which will afford the appellant the right to the accounting prayed for in his bill of complaint.

Reversed and remanded.


text:
    Christ Knebelkamp, Appellee, v. Wiskamp Brothers et al., Appellants.
    (Not to be reported in full.)
    Appeal fro-m the Circuit Court oí St. Clair county; the Hon. George A. Crow, Judge, presiding. Heard in this court at the March term, 1916.
    Affirmed.
    Opinion filed November 13, 1916.
    Statement of the Case.
    Action by Christ Knebelkamp, plaintiff, against Wiskamp Brothers, Louis C. Wiskamp and Walter F. Wiskamp, defendants, on a certain promissory note given by defendants to plaintiff. From a judgment for $191.10 for plaintiff, defendants appeal.
    James O. Miller, for appellants.
    C. H. G-. Heinfelden, for appellee.

      Abstract of the Decision.
    1. Building and construction contracts, § 103

      —when evidence is insufficient to sustain counterclaim. In an action upon a promissory note given for the balance claimed to be due for the construction of a building, to which a counterclaim was presented, where the evidence showed said note had been renewed from time to time for several years, during which time no claim had been made of the offset, and the bill presented for the work showed a charge for such offset, and the testimony of the parties was conflicting, held that the finding of the court rejecting such counterclaim should not be disturbed.
    2. Building and construction contracts, § 97*—when plans and specifications offered in support of counterclaim are properly excluded. Where a counterclaim was presented in an action upon a promissory note given for the balance claimed to be due for the construction of a building, the basis of such counterclaim being that by a change in the plans and specifications the payee of the note was relieved of the expense of trussing the roof, and this was to offset the expense of an extra ceiling, held that there was no error in excluding from the evidence such plans and specifications offered in support of such counterclaim.

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

   Mr. Presiding Justice Higbee

delivered the opinion of the court.


text:
    A. J. Mangis, Appellee, v. Thomas H. Jones, Appellant.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Hamilton county; the Hon. Charles H. Miller, Judge, presiding. Heard in this court at the March term, 1916.
    Affirmed.
    Opinion filed November 13, 1916.
    Rehearing denied January 13, 1917.
    Statement of the Case.
    Action by A. J. Mangis, plaintiff, against Thomas H. Jones, defendant, to recover damages for trespass on land owned by plaintiff and occupied by another person as tenant. From a judgment for plaintiff for five dollars in the Circuit Court, on appeal from the Justice’s Court, defendant appeals.
    J. Wilson Jones, D. J. Underwood and H. Andes-son, for appellant.
    J. H. Lane, for appellee.
    Abstract of the Decision.
    1. Justices of the peace, § 60

      —when have jurisdiction of action for damages for trespass on land. Where suit for damages was brought before a justice of the peace for trespass upon land in possession of another as tenant of the plaintiff, who claimed ownership of the land through twenty years’ adverse possession thereof, the defendant claiming ownership of the same land through survey and deeds to his adjoining tract, held that it was not necessary to determine in such suit the legal title to the land in controversy, and the justice had jurisdiction under Rev. St. ch. 79, art. II, sec. 1, cl. 2 (J. & A. H 6877), giving justices of the peace jurisdiction in actions for damages to realty.

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

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

   Mr. Presiding Justice Higbee

delivered the opinion of the court.

2. Trespass, § 27 —when reversioner may maintain action for damages for. Where land was in the possession of one as tenant of another who claimed to be the owner thereof by twenty years’ adverse possession under claim of ownership, and a third person built a fence and took possession of the land, claiming ownership thereof through survey and deeds of adjoining land, held that under the Practice Act, sec. 36 (J. & A. If 8573), giving a right of action to one not in possession for injury to a remainder or reversion, the lessor had a right to sue for the damages which accrued to him as reversioner by reason of such injury.

3. Trespass, § 62*—what damages are recoverable by reversioner. Where a person went upon land in possession of the tenant of another, built a fence thereon and took possession thereof, held that the party whose tenant was in possession of the land was entitled to recover at least nominal damages and a judgment for five dollars in his favor was not excessive.


author: Mr. Presiding Justioe Higbee

text:
    Edward Herschi, Appellant, v. H. Albrecht & Company, Appellee.
    1. Appeal and error, § 1265*—what is presumed in absence of propositions of law. Where, upon trial by the court without a jury, no propositions of law were presented to the court to be passed upon, it must be assumed on appeal that the law was rightly applied to the facts in the case, but that does not prevent the correctness of the ruling of the court upon the admission or rejection of evidence from being questioned on such appeal.
    2. Attachment, § 318*—when evidence as to exemption of personalty is wrongfully excluded upon trial of right of property. Where a vendee purchased certain saloon property, including stock and articles belonging to the saloon, without complying with the Bulk Sales Law of 1913 [Cal. III. St. Supp. 1916, ff 10,021(1) et seq.J, and payment of the purchase money was made and possession of the property taken by the vendee, and thereafter the property was attached in an action against the vendor upon an affidavit that he had within two years fraudulently conveyed or attempted to convey his property so as to hinder and delay his creditors, held that the court erred upon trial of the right of property, in excluding evidence offered to show that such property was exempt to the vendor as the head of a family.
    3. Attachment, § 68

      —when lien of attaches to previously transferred property. No lien attaches under a writ of attachment sworn out against a vendor of property after he has transferred the same unless the transfer was fraudulent, regardless of the amount of property.
    4. Attachment, § 318*—when proof of value of transferred personalty is erroneously excluded on trial of right of property. Upon trial of the right of property alleged to have been fraudulently conveyed, taken under a writ of attachment against the vendor of such property after sale and delivery thereof to the vendee, where claim was made that such property was exempt to the vendor as the head of a family, held that proof of the value of the property transferred should have been admitted in evidence, and the court should not have been controlled as to the value of such property by the amount named in the bill of sale thereof and paid by the vendee.
    Appeal from the City Court of St. Louis; the Hon. W. M. Vandeventeb, Judge, presiding. Heard in this court at the March term, 1916.
    Reversed and remanded.
    Opinion filed November 13, 1916.
    T. M. Webb 'and W. E. Knowles, for appellant.
    Dan McGlynn, for appellee.

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

   Mr. Presiding Justioe Higbee

delivered the opinion of the court.

This is an appeal from a judgment in a suit involving a trial of the rights of property, and is shown by the proofs to have grown out of the following state of facts: On June 17, 1915, .Clem Foppe owned a saloon m East St. Louis, Illinois, and on that day sold out to appellant for the sum of $575. A. bill of sale was executed by Foppe to appellant in which the property sold was therein described as follows: “The saloon located in the City of East St. Louis, and known as 2500 State street, all liquors and cigars, one cash register, glassware, desk fan, cuspidors and all other artides belonging to said saloon.” After appellant had taken possession of the property and paid the $575 called for by the contract, appellee swore out a writ of attachment against Foppe to collect $153 claimed by appellee to be due from Foppe, and the stock and fixtures in the saloon were attached and taken possession of under the writ by a constable. Appellant filed notice of his claim to the property with the constable and, on the trial of the rights of property in a Justice’s Court, the property was awarded to appellant. On appeal to the City Court of East St. Louis, a jury was waived and the court, having found the issues for appellee, sustained the attachment writ and from the judgment there entered this appeal is taken.

No propositions of law were presented to the court to be passed upon, so that it must be assumed that the law was rightly applied to the facts in the case, but that does not prevent the correctness of the ruling of the court upon the admission or rejection of evidence from being questioned here. In Cream v. Hourigan, 158 Ill. 301, it was said by our Supreme Court upon this question: “In a cause tried before the court without the intervention of a jury, the parties may obtain from the court rulings upon written propositions of law submitted to it, and thereby preserve in the record, for the purposes of review, any erroneous view of the law, or erroneous application of the law to the facts of the case, by the trial court. And unless questions of law, or mixed questions of law and fact, are thus preserved, the record will present no questions for the consideration of this court, other than such as are raised by the admission or exclusion of evidence, or incidentally otherwise, during the progress of the proceedings. (Tibballs v. Libby, 97 Ill. 552; Hardy v. Rapp, 112 id. 359; Exchange Nat. Bank v. Chicago Nat. Bank, 131 id. 547; Kern v. Chicago Brewery Ass’n, 140 id. 371; Home Ins. Co. v. Bethel, 142 id. 537; Consolidated Coal Co. v. Peers, 150 id. 344.) ”

One of the errors assigned by appellant on this appeal was that the court refused to admit competent, evidence offered on his behalf. It was shown on the trial that Foppe was a married man and the head of a family. Appellant sought to prove by him that the property attached was all he had and that he conveyed it as exempt property, and also sought to show the real value of the property, notwithstanding the consideration named in the bill of sale and paid by appellant was the sum of $575. The evidence so offered was objected to by appellee and the objection was sustained by the court. The grounds for the attachment named in the affidavit were that Foppe had within two years fraudulently conveyed or attempted to convey his property so as to hinder and delay his creditors. Section 1 of the Bulk Sales Law of 1913 [Cal. Ill. St. Supp. 1916, ¶ 10,021 (1)] provides that a sale in bulk of the major part or the whole of a stock of merchandise and fixtures shall be void as against creditors of the vendor, unless the vendee shall demand and receive of the vendor a written statement, under oath, containing a complete list of the creditors of the vendor, and unless notice in writing of said proposed sale shall be sent to each of the creditors of the vendor within certain time fixed by the act; and section 3 of said Act [Cal. Ill. St. Supp. 1916, ¶ 10,021(3)] provides that the same shall not apply to sales of exempt property. The list of creditors was not furnished, nor were the notices required by law given in this case, but appellant claims that Foppe, who as a married man and the head of a family was entitled under the statute to $400 worth of property to be selected by him, had a right to the property sold to appellant as exempt property.

Appellee to meet this claim, takes the position that even though Foppe could have claimed the property as exempt, he had not done so, and that proof of its value was properly refused both on that account and also because the value was fixed by the amount recited in the bill of sale and paid by appellee. The distinction must be borne in mind between an execution the hands of an officer at the time of transfer and writ of attachment sworn out after transfer. In the former, the debtor must claim his exemptions according to the statute in order to hold them. In the latter, no lien attaches unless the transfer was fraudulent, regardless of the amount of property. The only grounds of fraud relied on by appellee were that the property conveyed was a stock of merchandise and that Foppe had not complied with the provisions of the Bulk Sales Law before making the transfer, and that, by reason thereof, the sale was fraudulent. The question, therefore, as to whether the property was in fact exempt property or not was of first importance, and it was error for the court not to admit evidence upon that question. It is contended, however, by appellee that as the bill of sale fixed the consideration at $575, and appellant paid that amount for what was transferred to him by Foppe, that the value of the property is established thereby and appellant is precluded from showing that the goods and fixtures turned over to bim were in fact of less value than the price named. It appears from the proof that some articles of small moment taken by the constable, under the writ, were not really included in the goods sold by Foppe to appellant, but were otherwise acquired by appellant, and of course appellee could not rightfully claim these. The bill of sale provided among other things for the sale of the “saloon located in the City of East St. Louis, and known as 2500 State street.” Just what is meant by the “saloon” it is impossible to say, but it might have included a favorable location to carry on the dramshop business and the good-will of a business already established. As a matter of fact, the property transferred to appellant might have been actually worth less than $400. For this reason, also, it was important that proof of the value of the property transferred should have been admitted in evidence, and the court should not have been controlled as to the value of the stock and fixtures by the amount named in the bill of sale, and paid by appellant. The judgment of the trial court will therefore be reversed and the causo remanded.

Reversed and remanded.


text:
    Union Trust & Savings Bank, Appellee, v. John C. Hall et al., Appellants.
    1. Moetgages, § 457

      —when corporation which is sublessee is necessary party to suit to foreclose mortgage on leasehold. Where part of a building erected upon a leasehold estate was leased to a corporation for a term, with provision for renewal at its option upon notice to be given six months prior to termination of said term, held, in a suit to foreclose a mortgage given upon said leasehold estate in which the president of said corporation was individually made a party defendant, but not/said corporation, and in which there was a controversy between the parties interested as to whether the required notice of renewal of said lease to said corporation had been given, that the court erred in not requiring the complainant in said suit to make said corporation a defendant to the proceeding.
    2. Cobpojrations, § 284*—when compensation is improperly allowed to firm of attorneys of which .<officer is member. A director of a corporation is not entitled to compensation for services rendered to it as solicitor where no provision has been made by a resolution of such corporation to pay for his services as its solicitor, and where such director performing such services as solicitor was a member of a firm appearing of record as solicitors in a suit, the other member of which was not a director or officer of such corporation, a decree in such suit allowing such firm compensation for such services was erroneous.
    3. Mortgages, § 464

      —when suit should he dismissed as to party disclaiming interest. It is error for a trial court not to dismiss a bill for the foreclosure of a mortgage as to a defendant who, by answer, has disclaimed any interest in the subject-matter of the suit and who is shown by the proofs to have no interest therein.
    Appeal from the City Court of East St. Louis; the Hon. Robert H. Flannigan, Judge, presiding. Heard in this court at the March term, 1916.
    Reversed and remanded.
    Opinion filed November 13, 1916.
    C. B. Thomas, E. J. Yerlie and M. Millard, for appellants.
    Keefe & Sullivan, for appellee.

      See Illir.ois Notes Digest, Veis. XI to XV, and Cumulative Quarterly, same topic and section number.

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

   Mr. Presiding Justice Higbee

delivered the opinion of the court.

This is an appeal from a decree in a suit to foreclose a mortgage on certain property in East St. Louis, Illinois. There appears to be no substantial controversy as to the facts, which are shown to be as follows: Jacob D. G-oldman owned a parcel of land in fee in said city, and executed to appellant John G. Hall a ninety-nine year lease on the same. A large four-story building was afterwards erected upon the property. Some of the rooms on the lower floor were used for storerooms and a bank, while the rest of the lower floor and the upper stories were used as a hotel. John C. Hall deeded his leasehold to Thresher Hall, who conveyed it back to him and Charles Neustadt, as trustees, for the benefit of a number of persons. Later a lease was made to the C. O. Clark Hotel Company for that part of the building devoted to hotel purposes, at a rental of $650 a month. The bank and stores paid $905 a month additional. The Clark Company afteiwards changed its name to the Illmo Hotel Company and the corporation continued business under that name. The lease made with said corporation was for five years, with a provision for its renewal at the option of the hotel company, provided it gave six months’ written notice in advance of the expiration of the lease, the renewal was desired. There is a controversy between the parties interested in the lease as to whether the notice was given and the lease thereby extended. There were three mortgages on the leasehold and building, each for the sum of $50,000. Only one of these, the third mortgage which belonged to appellee, had matured and on this foreclosure proceedings were brought.

Charles B. Grillen, who was president of the Illmo Hotel Company, was individually made a party defendant to the suit, but the hotel company itself was not made a party. In the decree of foreclosure it was found that in addition to the debt there was due to appellee a further sum of $3,000 as a reasonable solicitors’ fee, for the services of Keefe and Sullivan, complainant’s solicitors, and it was decreed, among other things, that the costs of this suit should “include a solicitors’ fee of $3,000 to .Keefe and Sullivan.” It was shown by the proofs that Judge Keefe, one of the solicitors for complainant and a member of the firm to whom the allowance for solicitors’ fees was made in the decree, was a director of the appellee bank, but the record failed to show any by-law or resolution of the complainant directing that Judge Keefe be paid for his services in foreclosing the mortgage.

The two questions raised by appellants on this appeal and upon which they rely to reverse the decree are, that the court erred in not requiring appellee to make the Illmo Hotel Company a party to the suit, so that its right in the .property as lessee could be determined, and in allowing a solicitors’ fee to Keefe and Sullivan, for the reason that the former was a director of appellee and no resolution or by-law had been passed by complainant that he be paid for his services. The Illmo Hotel Company, as tenant, was paying a little over two-fifths of the rent for the entire property, and it was a disputed question whether it was a tenant from month to month, or was entitled to hold the property under an extension of the lease until July, 1919. The rights of the hotel company and whether or not it was entitled to the extension of the lease claimed by it were not and could not be determined in the decree, as it was not a party to the suit. It is rightly claimed by appellants that the price of the property might be affected by a sale under these conditions. One prospective bidder might want possession of the property at the expiration of the period of redemption and be restrained from bidding for fear that the tenant would not remove for a number of years. Another who wished to purchase the property, as an investment, might fear thai his tenant would leave at the end of any month, and in any event the purchaser would probably be subject to a lawsuit to determine the rights of the hotel company, as lessee. It is a general rule, not without exception, that all parties having interest in the property should be made parties to a proceeding foreclosing the same. It is essentially desirable that this rule should be adhered to in cases where the rights of parties claiming an interest in the property are undetermined and the subject of dispute, and where additional litigation might become necessary to determine the conflicting claims, as in the present case. The value of the property seems to have been largely conjectural, it having been estimated by the several witnesses at from $200,000 to $400,000 and appellants were entitled to have it sold under the most favorable circumstances that due observance of appellee’s rights would permit of, which could not have been the case here where the hotel company was not made a party and its rights and interests were not determined in the decree. The court below therefore erred in not requiring appellee to make the hotel company a defendant to the proceeding, as insisted upon by appellants.

While it is true that the bill for foreclosure is signed in the name of Keefe and Sullivan as solicitors and the $3,000 was allowed appellee for their services, the record discloses the fact that the services were in fact rendered by Judge Keefe, the senior member of the firm, who was, at the time, a director of appellee. The record fails to show that any resolution or by-law had been passed by appellee bank empowering Judge Keefe to render these services or providing for paying him for the same, and under these conditions the case falls within the rule laid down in Gale v. Carter, 154 Ill. App. 478. It was there held that directors or other officers of a corporation are not entitled to compensation for services rendered to it as solicitors, where no provision has been made by a resolution of such corporation to pay for their services, as its solicitors. The rule above expressed appears to us to be correct in principle and we adopt it as the governing rule in this case. When officers of a corporation act as solicitors for the same, the presumption must be, in the absence of a by-law or resolution employing them and providing for their compensation, that the services are gratuitous. The fact that only one member Of the firm to which the allowance of solicitors’ fees was made was an officer of the corporation in this case does not appear to us to effect the principle laid down. No officer of the corporation bringing the suit could, under such circumstances, receive any compensation for his labors and profit thereby, and a decree permitting him to do so would be and is erroneous in that regard.

Charles E. Grillen, who was made a party defendant to the bill herein, filed an answer disclaiming any interest in the subject-matter involved and asking that he be dismissed out of the case. It appeared from the proofs that he had no interest, but the bill was not dismissed as to him, and he has assigned as error in this court the failure of the trial court to dismiss bim from the suit. This assignment of error is plainly well founded and the decree of the court below should have dismissed the bill as to such defendant. The decree will be reversed and the cause remanded for further proceedings in conformity with the views herein expressed.

Reversed and remanded.