text:
    Robert A. Schoenfeld, Defendant in Error, v. M. Kulwinsky, Plaintiff in Error.
    Gen. No. 21,494.
    1. Landlord and tenant, § 364

      —how word “immediately" in Landlord and Tendnt Act construed. The word “immediately” as used in section 17 of the Landlord and Tenant Act (J. & A. If 7055), requiring one levying a distress warrant to immediately file with the clerk of a court of record of competent jurisdiction a copy of the warrant together with an inventory of the property levied upon, does not require him to file them immediately, but only requires him to act promptly and to file them in such convenient time as is reasonably requisite for doing so.
    2. Landlord and tenant, § 398

      —when evidence sufficient to establish an immediate filing of copy of distress warrant and inven

      tory. Where within forty-four hours after the seizure, under a distress warrant, of goods which were removed, inventoried and stored, a copy of the warrant and the inventory were filed with the clerk of the court whose office was situated ten miles from the place of seizure, a jury may properly find that such filing was done “immediately” within the meaning of the statute.
    Error to the Municipal Court of Chicago; the Hon. Frank H. Graham, Judge, presiding.
    Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed January 17, 1916.
    Comerford & Cohen, for plaintiff in error.
    William H. Tatge, for defendant in error.

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

   Mr. Justice Baker

delivered the opinion of the court.

Plaintiff Schoenfeld issued a distress warrant to collect $100 of rent alleged to be due him from defendant Kulwinsky, and levied the same on 381 pairs of shoes, the property of defendant. The levy was made at four o’clock p. m., January 19, 1915. The goods were removed, stored, an inventory prepared, the suit begun, and a copy of the warrant and the inventory filed with the clerk of the Municipal Court before noon January 21st, about forty-four hours after the warrant was levied. .The jury by their verdict found the issues as to the right of plaintiff to levy the distress warrant arid as to the merits of the action against the defendant and assessed plaintiff’s damages at the sum of $100. The court denied defendant’s motion for a new trial and gave judgment on the verdict, to reverse which Kulwinsky prosecutes this writ of error. Section 17 of the Landlord and Tenant Act (J. & A. If 7055) provides that: ‘ ‘ The person making such distress shall immediately file * * * with the clerk of a court of record of competent jurisdiction a copy of the distress warrant, together with an inventory of the property levied upon.”

The only ground of reversal urged by plaintiff in error in the brief is that a copy of the distress war-' rant and inventory was not immediately filed with the clerk. The only instruction asked by defendant was that the court direct a verdict for the defendant.

In strict construction, the word “immediately” excludes the lapse of any interval of time, but that is not the meaning, of" the word as used in the statute. The goods must be removed, an inventory prepared and a copy thereof and of the distress warrant made and filed with the clerk of the court. In the case at bar the distress warrant was levied nearly ten miles from the office of the clerk of the Municipal Court. We think that the word “immediately” as used in the statute did not require the plaintiff to file the warrant instantly, but only required him to act promptly and to file a copy of the warrant and inventory in “such convenient time as is reasonably requisite for doing the thing.” Baron Alderson in Thompson v. Gibson, 8 Mees. & W. 281. In People’s Accident Ass’n v. Smith, 126 Pa. St. 317, where the policy provided that, “immediate written notice” should be given, it was said, p. 325: “The word ‘immediate’ in the contract must be construed to mean within a reasonable time thereafter under all the facts and circumstances of the case, and what is a reasonable time must be decided by the jury unless, as before observed, the delay has been so great that the court may rule it as a.question of law.” To same effect are:

McCormick Harvesting Mach. Co. v. Brower, 88 Iowa 607; Taber v. Royal Ins. Co., 124 Ala. 681; Knickerbocker Ins. Co. v. McGinnis, 87 Ill. 70.

We think that the jury from all the facts in the case might properly find that the plaintiff filed a copy of the distress warrant and inventory with the clerk of the Municipal Court “immediately” after .the levy within the meaning of the word “immediately” as used in the statute, and the judgment is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Baker

license: Public Domain

text:
    Andrews Allen and John A. Garcia, copartners, and Allen & Garcia Company, Defendants in Error, v. Arthur H. Swett, Plaintiff in Error.
    Gen. No. 21,508.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John C. Work, Judge, presiding.
    Heard in this court at the March term, 1915.
    Affirmed.
    Opinion filed January 17, 1916.
    Statement of the Case.
    Suit by Andrews Allen & John A. Garcia, copartners, and Allen & Garcia Company, a corporation, plaintiffs, against Arthur H. Swett, defendant, to recover for services rendered the defendant. On judgment for the plaintiffs, the defendant brings error.
    Suit was brought January 13, 1914, by Allen and Garcia, copartners as Allen & Garcia, against A. H. Swett. March 16, 1914, it was ordered that all papers and proceedings be and they thereby were amended by making Allen & Garcia Company, a corporation, co-plaintiff in the action. Garcia, a mining engineer, was asked by Swett to examine coal land in Iowa and make a report. He did so, and charged for his services and expenses $338.20, for which sum the plaintiff had judgment.- The Lucas Coal & Supply Company, a corporation of which Swett was president and treasurer and a director, was the owner of the mine, and the contention of the defendant was that the Lucas Company and not he was liable for the services rendered.
    Castle, Williams, Long & Castle, for plaintiff in error.
    Underwood & Smyser, for defendants in error; Charles R. Young and Arthur A. Basse, of counsel.

      Abstract of the Decision.
    Appeal and error, § 1714*—when question of misjoinder of parties waived. Where, on review on a writ of error, it does not appear that the plaintiff in error objected in the trial court on the ground of misjoinder of the plaintiffs below, and the propriety of such joinder is not questioned by any assignment of error, nor argued in the brief of the plaintiff in error except in his reply brief, such misjoinder, if any, must be considered as waived.
   Mr. Justice Baker

delivered the opinion of the court.


text:
    Lon G. Rand, Defendant in Error, v. William S. Bogle, Plaintiff in Error.
    Gen. No. 21,519.
    1. Divorce, § 172

      —token marriage of divorced person void. A marriage celebrated in disregard of the prohibition of the Divorce Act, prohibiting remarriage of a divorced person within one year after the time of the divorce, is void wherever celebrated.
    2. Husband and wife, § 14

      —when existence of legal relation condition precedent to maintenance of action for necessaries. Under the statute it is a condition precedent to a recovery from a husband for family expenses that there be a legal relation of husband and wife.
    3. Husband and wife, § 14

      —when existence of legal relation essential to recovery for services rendered alleged wife. In order to recover for the services of a dentist rendered to one alleged to be the wife of the defendant, it is essential that the legal relation of husband and wife exist between them.
    Error to the Municipal Court of Chicago; the Hon. Sheridan E. Fry, Judge, presiding.
    Heard in this court at the October term, 1915.
    Reversed.
    Opinion filed January 17, 1916.
    M. F. Gallagher and E. B. Wilkinson, for plaintiff in error.

      Joseph R. Burees, for defendant in error.

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

   Mr. Justice Baker

delivered the opinion of the court.

Plaintiff brought an action in the Municipal Court against plaintiff in error Bogle and Mrs. Cloe Barry and recovered for dental services rendered by plaintiff to Mrs. Barry. He recovered against both defendants and the writ of error was sued out in the ñamé of both, but Bogle only assigned errors. His codefendant was summoned and there was a judgment of severance and he prosecuted this writ of error to reverse the judgment.

Recovery was allowed on the theory that the claim of the plaintiff was family expenses, for which both defendants were liable under the statute. Mrs. Barry was divorced October 8,1912, and went through a marriage ceremony with Bogle November 4, 1912, and the parties lived together in Chicago from November, 1912, to September, 1913. Mrs. Barry filed a bill in December, 1913, for the annulment of her alleged marriage to Bogle, and a decree was entered January 6, 1914, declaring such marriage void and ordering that it be annulled. The Divorce Act prohibits either party from remarrying within one year from the time of the divorce, and a marriage celebrated in disregard of this prohibition is void wherever celebrated. Wilson v. Cook, 256 Ill. 460.

Under the statute it is a condition precedent to a recovery for family expenses that there be a legal relation of husband and wife. Schlesinger v. Keifer, 30 Ill. App. 253, affirmed in 131 Ill. 104; Houghteling v. Walker, 100 Fed. 253; Holnback v. Wilson, 159 Ill. 148.

There is in the record no evidence to support a recovery against plaintiff in error, and the judgment of the Municipal Court is reversed.

Reversed.


text:
    Mrs. F. G. Robertson, Defendant in Error, v. T. G. Warden, Plaintiff in Error.
    Gen. No. 21,547.
    1. Pleading, § 400

      —when liability of each defendant must be established. Where suit is brought against two defendants, the plaintiff, in order to recover,must prove the liability of both.
    2. Husband and wife, § 164

      —what does not constitute family expense chargeable on property of both husband and wife. Under section 15, ch. 68, Rev. St. (J. & A. K 6152), providing that expenses of the family shall be chargeable upon the property of both husband and wife, or of either of them, no recovery may be had against a husband for a dress made on the order of his wife which she has refused to accept, it not having been bought for family use and actually used or kept for use in the family.
    Error to the Municipal Court of Chicago; the Hon. John J. Rooney, Judge, presiding.
    Heard in this court at the October term, 1915,
    Reversed.
    Opinion filed January 17, 1916.
    Petition for rehearing struck from files January 31, 1916.
    Garnett & Garnett, for plaintiff in error; Cyrus L. Garnett, of counsel.
    Francis A. Harper and Ernest W. Clark, for defendant in error.

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

   Mr. Justice Baker

delivered the opinion of the court.

The plaintiff, Mrs. Robertson, brought an action in the Municipal Court against the defendant, Warden, and his wife for the price of a black dress made by plaintiff for Mrs. Warden by her order, and a purple dress ordered by her. Mrs: Warden was not served with process and the action proceeded against Mr. Warden. The black dress was sent to Mrs. Warden at her residence in November, 1913, and was returned by her to plaintiff for alteration. Plaintiff made certain alterations in the dress and sent it again to Mrs. Warden C. O. D., and she refused to accept it. Plaintiff sent the dress to Mrs. Warden again the next day, but she had gone to California and the dress was not delivered but was returned to plaintiff. The purple dress was not finished and both dresses remained in the possession of the plaintiff and were by her brought into court and tendered to Mr. Warden, who refused to receive them.

Having sued two defendants, plaintiff, in order to recover, was bound to prove that both were liable. The liability of the husband to plaintiff in error is claimed under section 15, ch. 68, Rev. St. (J. & A. j[ 6152), which is as follows:

“The expenses of the family and of the education of the children shall be chargeable upon the property of both husband and wife, or of either of them,- in favor of creditors therefor, and in relation thereto they may be sued jointly or separately.”

This section was copied from the Iowa statute. In Fitzgerald v. McCarty, 55 Iowa 705, it was held that to constitute a family expense chargeable on the property of both husband and wife, an article must not only have been bought for family use but actually used or kept for use in the family; that it was not sufficient that an article was purchased for or on account of and with the intent that it be used in the family, although never used therein or by any member of the family. To the same effect is Straight v. McKay, 15 Colo. App. 60, 60 Pac. 1106. The precise question here involved does not appear to have been decided by any court of review in this state, but we concur in the decisions above referred to. As-the conclusion thus reached is fatal to plaintiff’s right of recovery, it is unnecessary to consider the other grounds of reversal argued.

The judgment of the Municipal Court is reversed.

Reversed.


text:
    William R. Gibb, Appellee, v. Irving Park District, Appellant.
    Gen. No. 21,585.
    1. Parties, § 14*—when party to contract need not he joined as party plaintiff. Where in one instrument there are embodied two distinct contracts, one between the defendant and the plaintiff, and another between the defendant and the plaintiff and another, the plaintiff may sue on the former without joining his cocontractor in the latter, inasmuch as the contracts are as independent, for purposes of suit, as though embodied in separate instruments.

      2. Master and servant, § 11*—what constitutes satisfactory services. Where a contract provides that services to be performed must be satisfactory to the employer, such clause means that the services should be such that, as a reasonable person, the employer ought to be satisfied therewith.
    3. Architects and engineers, § 16*—when evidence sufficient to sustain judgment. In an action to recover for architect’s services in preparing plans for a field house, evidence held sufficient to sustain a finding and judgment for the plaintiff.
    Appeal from the Municipal Court of Chicago; the Hon. James C. Martin, Judge, presiding.
    Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed January 17, 1916.

      Certiorari denied by Supreme Court (making opinion final).
    Spencer Ward, for appellant.
    Tinsmak & Blocki, for appellee.
   Mr. Justice Baker

delivered the opinion of the court.

This is an appeal by the Irving Park District, a municipal corporation, from a judgment for $1,393.97 recovered against it by plaintiff Gibb for services as an architect in an action of the first class in the Municipal Court, which was tried by the court without a jury.

The contention that plaintiff cannot recover because the contract was by its terms between the plaintiff and Anderson, parties of the first part, and the defendant, party of the second part, cannot be sustained.

Two separate and wholly distinct subject-matters were agreed on—one the provision for all services except superintendency by Gibb, and the other the superintendency by Anderson under the supervision of Gibb. In Howe Mach. Co. v. Hickox, 106 Ill. 461, it was held that under a similar instrument there were two distinct contracts—one with A. and B., the other with B.—as much so as if written on separate papers, and that A. and B. should sue separately..

Where a contract provides that services to be performed must be satisfactory to the employer, such clause means that the services should be such that as a reasonable person the employer ought to be satisfied therewith. Keeler v. Clifford, 165 Ill. 544.

The contract did not fix or limit the cost of the field house for which Gibb was employed to draw plans. Plaintiff was employed as an architect by the board before February 5, 1912, and that day submitted to the board plans of a field house, with a showing that the approximate cost thereof would be $54,500. The members of the board suggested that he draw plans for a field house to cost $40,000, but afterwards they made repeated changes in the proposed field house, and plaintiff kept telling them that with such changes the field house would cost more than $40,000. Among the changes so suggested was to have two locker rooms in place of one. When told to prepare plans for a field house to cost $40,000, plaintiff asked if the board wanted an assembly hall and was told that they did not. Then President Ott told plaintiff that some of the ladies of the Club said they could not have a field house without an assembly hall; that such hall was one of the most essential things to have, and the president said they would have to have an assembly hall, and plaintiff included such hall in the new plans. This required the second story to be eighteen feet high in place of ten feet. President Ott testified that members of the board visited other field houses, and each member noticed something about those field houses that he'would propose and the architect subsequently incorporated such suggestion in the sketch he was to submit at the next meeting. He told the board that with the changes suggested the field house could not be built for $40,000 nor for $45,000, but would cost in the neighborhood of $50,000. Before the contract was made Gibb told the board that his estimate of the cost of the building according to the sketches was $54,500. He asked for bids, by direction of the board, and the lowest bids amounted to $55,917. August 26th the board resolved that because of the high figures of the bids all bids should be rejected, and the plaintiff was instructed to prepare plans for a field house to cost approximately $40,000. Plaintiff made changes in the plans which would reduce the cost of the field house to approximately $48,000, and submitted such plans to the board September 27, 1912. The board was dissatisfied with the plans so submitted and stated they preferred the old plans; that a field house built according to' such plans would have more the appearance of a factory, garage or livery stable, and was not at all what the board wanted. President Ott testified that the board made a contract with another architect in the fall of 1912 to prepare plans for and superintend the construction of the field house. November 18th, Gibb presented. to the board a bill for $1,393.97 for services in making plans, specifications and details for a field house and taking estimates on same, and December 2, 1912, the board instructed its secretary to notify Gibb that the board denied any liability under his bill of November 18th.

It is not disputed that the reasonable value of plaintiff’s services was equal to or greater than the amount of the recovery, and we think that from the evidence the court might properly find the issues for the plaintiff, and the judgment is affirmed.

'Affirmed.


author: Mr. Justice Holdom

text:
    James D. Williams, trading as Williams Grain Company, Defendant in Error, v. Joseph Krug, Plaintiff in Error.
    Gen. No. 21,134.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Edward T. Wade, Judge, presiding.
    Heard in this court at the October term, 1915.
    Reversed with judgment of nil capiat.

    Opinion filed January 17, 1916.
    Statement of the Case.
    Action by James D. Williams, trading as Williams Grain Company, plaintiff, against Joseph Krug, defendant, to recover the purchase price of goods sold and delivered. From a judgment for the defendant, the plaintiff prosecutes a writ of error.
    There was no personal equation between the parties to the transaction nor any prior dealings between them. The order on which the oats, etc., were delivered was by telephone, but the person who gave the order, if any was given, remains unidentified. No attempt was made to verify the order, but the oats, bran, etc., were delivered not to defendant but at a bam near 3927 Prairie avenue, Chicago, where three other Krugs—William, George and Henry—kept horses. The receipts for the oats offered in evidence were signed neither by defendant nor by any person authorized by or acting for him. Furthermore, the testimony demonstrated that at the time the oats, grain, etc., were delivered by plaintiff, defendant had a contract with another firm for these' commodities, which were supplied by said firm to defendant regularly during that time.
    L. A. Sherwin, for plaintiff in error.
    Pattison & Shaw, for defendant in error; Douglas C. Gregg, of counsel.

      Abstract of the Decision.
    1. Sales, § 329

      —when sending of Mils and retention thereof not evidence of liability for goods. Where, in an action for the purchase price of goods sold and delivered, there is no evidence that the defendant contracted therefor and it appears that he, in fact, did not receive them, the mere sending to him of bills therefor by the plaintiff and the defendant’s retention of them is of no value as evidence of the defendant’s liability to pay for such goods.
    2. Contracts, § 69

      —when no right of action exists at law. The law affords no relief for simply moral claims, as distinguished from legal claims.
    3. Sales, § 329

      —when ¡evidence insufficient to sustain judgment.' In an action for goods sold and delivered evidence held insufficient to sustain a judgment for the plaintiff.

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

   Mr. Justice Holdom

delivered the opinion of the court.


text:
    Joseph Guzik, Defendant in Error, v. Malgorzata Tomczak and John Tomczak, Plaintiffs in Error.
    Gen. No. 21,192.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John R. Caverly, Judge, presiding.
    Heard in this court at the March term, 1915.
    Reversed and remanded.
    Opinion filed January 17, 1916.
    Statement of the Case.
    Action by Joseph Guzik, plaintiff, against Malgorzata Tomczak and John Tomczak, defendants, owners of premises leased by plaintiff, for damages for unlawfully entering upon the leased premises and making repairs. From a judgment for plaintiff, defendants appeal.
    L. J. Haigler, for plaintiffs in error.

      Abstract of the Decision.
    1. Landlord and tenant, § 433

      —what does not constitute extension of lease. There was no extension of a lease where the landlord, before the expiration of the old lease, notified the tenant by letter that he would expect prompt surrender of the premises- at the expiration of the term, as he had made a lease to another person; that possession was necessary to make needed repairs and that if the tenant remained in possession after expiration of the term he would be charged double rent; and, after expiration of the term, the tenant vacated the premises after the landlord commenced making repairs, and the subsequent tender of double rent was refused.
    2. Contracts, § 8

      —necessity of certainty in terms of. A contract, in order to be binding, must be definite in all its provisions.
    3. Instructions, § 118

      —when instruction refused as not applicable to evidence. In an action for damages for unlawfully entering upon leased premises and making repairs, an instruction that it was the tenant’s duty to vacate the premises at the time of the expiration of the lease unless the jury found from the evidence that the tenant made arrangements with the landlord whereby he was to retain possession after the expiration of the lease,, held erroneous where there was no extension or renewal of the lease.
    Lee W. Carpenter, for defendant in error.

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

   Mr. Justice Holdom

delivered the opinion of the court.


text:
    Edward H. Sherburne, Appellant, v. Charles J. McGuire, Appellee.
    Gen. No. 21,346.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Appeal and error, § 1748

      —when judgment based upon verdict will be affirmed. The Appellate Court will not disturb a judgment resting upon the verdict of a jury unless it is apparent from all the evidence that the verdict is clearly contrary to its preponderating force, or that the rulings of the court in its procedure and in its instructions were calculated to mislead the jury to the complaining party’s injury.
    Appeal from the Superior Court of Cook county; the Hon. Clinton F. Irwin, Judge, presiding.
    Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed January 17, 1916.
    Statement of the Case.
    Action of trespass by Edward H. Sherburne, surviving plaintiff, against Charles J. McGuire, defendant, for breaking the close of plaintiff and digging and carting away the soil from his land. From a judgment for plaintiff for $34.20, plaintiff appeals.
    Defendant admitted the trespass and the carrying away from plaintiff’s land fifteen wagons of soil, containing two cubic yards per wagon, while plaintiff insisted that defendant carried away two hundred loads of soil. The admitted value of such soil was $1.14 per cubic yard.
    Judah, Willard, Wolf & Reichmann, for appellant.
    Charles P. Molthrop, for appellee.

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

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

   Mr. Justice Holdom

delivered the opinion of the court.

2. Trespass, § 49 —sufficiency of evidence as to amount of soil taken. In an action of trespass for breaking the close of plaintiff and digging and carting away soil from plaintiff’s land, evidence held sufficient to sustain a finding that the amount of soil taken and its value was as claimed by defendant.

3. Trespass, § 48 —when penal ordinance prohibiting removal of soil inadmissible. An ordinance of the City of Chicago, section 1495 of the Revised Municipal Code, providing for a penalty for the offense of unlawfully taking away earth from the land of another without first obtaining a permit, is inadmissible in evidence in an action of trespass for breaking the close of plaintiff and digging and carting away soil from plaintiff’s land.

4. Trespass, § 48 —when evidence of obtaining permit to dig and cart away soil immaterial. In an action of trespass for breaking the close of plaintiff and digging and carting away soil from plaintiff’s land, evidence that defendant obtained a permit to take away the soil is immaterial in the absence of proof that such permit was obtained from the owner of the land.

5. Appeal and error, § 1466 —when admission of immaterial evidence harmless error. The admission, in an action of trespass for breaking the close of plaintiff and digging and carting away soil from plaintiff’s land, of immaterial evidence as to having obtained permit from one other than the owner of the soil pilfered, was harmless error where the question involved was as to the amount of the soil taken.

6. Trespass, § 48 —when evidence of arrest of defendant’s employees for taking soil irrelevant. In an action of trespass for breaking the close of plaintiff and digging and carting away soil from plaintiff’s land, evidence that some of defendant’s employees were arrested for purloining soil from land of plaintiff was irrelevant, the only issue being the amount of the soil taken.

7. Trespass, § 48 —when evidence that person not employed by defendant took soil admissible. In an action of trespass for breaking the close of plaintiff and digging and carting away soil from plaintiff’s land, in which the issue is to the amount of soil taken, evidence that men who were not servants or agents of defendant dug and carted away soil of plaintiff’s is admissible to rebut any inference that such men were acting for defendant, so that he should be charged with the soil removed by them.

8. Appeal and error, § 524 —when objection to argument of counsel insufficient. A general objection to the argument of counsel at the end thereof is insufficient, as objections should be specific so that the court may be able to rule thereon.

9. Instructions, § 96 —when instruction on credibility of witness correct. An instruction that if the jury believed from the evidence that any witness had sworn falsely as to any material fact in issue then the entire testimony of the witness might be disregarded, except in so far as corroborated by other credible evidence or by facts or circumstances proved on the trial, approved.


author: Mr. Presiding Justice Holdom

text:
    Walter Katzoff, Defendant in Error, v. Morris Goodman, Plaintiff in Error.
    Gen. No. 21,417.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Appeal and error, § 1414

      —what weight to he accorded findings of court. The same weight must be accorded the finding of the trial court as is given to that of a jury.
    2. Appeal and error, § 1414

      —when findings of trial court conclusive. A judgment for the plaintiff upon a finding by the trial court will not be disturbed when the uncontradicted evidence of the plaintiff is sufficient to sustain the judgment.
    Error to the Municipal Court of Chicago; the Hon. Sheridan E. Fry, Judge, presiding.
    Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed January 17, 1916.
    Statement of the Case.
    Action by Walter Katzoff, plaintiff, against Morris Goodman, defendant, for commissions for procuring woolens. From a judgment for plaintiff for $503.50, defendant brings error.
    Breding & Gesas, for plaintiff in error.
    No appearance for defendant in error.

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

   Mr. Presiding Justice Holdom

delivered the opinion of the court.


text:
    O. C. Wilson Advertising Company, Defendant in Error, v. Edward A. Renwick, Plaintiff in Error.
    Gen. No. 21,499.
    1. Bills and notes, § 426

      —what evidence inadmissible to show payment of coupon notes. In an action upon two detached negotiable interest coupon notes payable to bearer without condition by the holders, held that evidence of payment by the maker of the interest upon the entire issue by indorsement of an architect’s certificate to the holder of the trust de,ed securing the bonds from which the coupons were detached was properly excluded where it was not shown that the trustee had any sum belonging to defendant in its possession or that the architects had authority to make such a certificate.
    2. Bills and notes, § 102

      —when interest coupon negotiable instrument. Interest coupons which are detached from bonds and are- payable to a bearer at a specific time and place, subject only to the limitation that the bond has not been paid before maturity of the interest coupon, are negotiable, and are free from any limitation "contained either in the bond from which they were detached, or the trust deed securing them.
    3. Bills and notes, § 84

      —how terms of interest coupon notes construed. The terms of interest coupons which are payable to bearer at a specific time and place, subject only to the condition that the bonds are not paid before maturity, must be construed strictly against the maker, without reference to the bond from which they were detached, or the trust deed securing them.
    Error to the Municipal Court of Chicago; the Hon. John J. Rooney, Judge, presiding.
    Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed January 17, 1916.
    Zeisler, Friedman & Zeisler, for plaintiff in error.
    Frank P. Mies, for defendant in error.

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

   Mr. Justice Holdom

delivered the opinion of the court.

This is a suit upon two coupon interest notes for $3, each being a half yearly instalment of interest due on two bonds for $100, each secured, with other bonds aggregating $650,000, by a trust deed to Simon W. Straus as trustee, conveying a leasehold for a term of ninety-nine years of certain land in the City of Chicago and the Fort Dearborn Hotel situate thereon. The coupon interest notes are in the following form:

“On the first day of October, A. D. 1913, Edward A. Benwick will pay the bearer, at the office of S. W. Straus & Co., incorporated, in Chicago, Illinois, Three ($3.00) dollars in gold coin of the United States of America, of the present standard of weight and fineness being six (6) months interest on his bond dated April 1, 1913, numbered 632 (unless said bond shall have been previously redeemed or have become subject to redemption) with interest on the amount of this coupon after its maturity at the rate of seven (7%) per annum.
Chicago, April, 1913.
Edward A. Renwick.”

The bonds and coupons are all payable at the office of S. W. Straus & Company, a corporation, in Chicago. On" a trial before court and jury the court instructed a verdict in favor of plaintiff and entered a judgment thereon for $6, and defendant brings the record here for review. In the bonds it is recited that reference is made to the trust deed “with the same effect as if herein fully set forth,” and that “said trust deed and this bond, as well as all the other bonds aforesaid, are to be taken and construed together as parts of one and the same contract.”

The trust deed recites that all of the bonds are to be issued, received and negotiated subject to certain conditions contained in forty of its sections, by section 7 of which it is provided that when the grantor, Ben-wick, shall deposit with the Straus Company the sum necessary to make a payment of principal or interest, the grantor’s liability to pay the principal and interest covered by such deposit was ipso facto discharged and the holders were relegated to the Straus Company for payment.

These provisions we think are novel, in that the maker of the bonds, coupons and trust deed attempts to make the Straus Company the collecting agent of the holders of the bonds and coupons secured by the trust deed, and to discharge the primary liability of the maker upon the payment of the amount due by him from time to time to the Straus Company. Whether the maker has succeeded in shifting his primary responsibility upon the holders of the bonds, we do not feel called upon, in the condition of this record, to decide.

It seems that defendant attempted to pay the interest maturing on the whole indebtedness on the first of October, 1913, to Straus & Company by an architect’s certificate for $19,500, the amount of interest due on that date. On the back of this architect’s certificate was the indorsement: “S. W. Straus & Co. Please pay the within order and charge the same to my Bond Issue Loan Account with you. Edward A. Renwick. ’ ’ This, we think, was properly excluded, as there was nothing in the record to show that Straus & Company had $19,500 or any other sum belonging to defendant in its possession. Neither is there any evidence-in the record that the architects had any authority to make such a certificate. One Wolff, cashier of the Straus Company and its employee for twelve years, testified that he sent to the defendant a letter reciting as follows:

“We beg to acknowledge receipt of your check for $19,500 in payment of the following items: * * *
“Interest coupons made by yourself for $19,500.00 Fort Dearborn Hotel.
“The above coupons cancelled will be mailed to you as soon as received by us.
Tours truly,
S. W. Straus & Co. W.”

Defendant followed this up by offering in evidence a check dated September 30, 1913, drawn by S. W. Straus & Company, to its order, for $19,500 on the Fort Dearborn National Bank of Chicago, which is indorsed by Straus & Company to the order of the Fort Dearborn National Bank. While, in the view we take of the case, this evidence was properly excluded, still we cannot understand, in the light of the foregoing’ admission by Straus & Company, why they did not pay the interest coupons in suit.

The interest coupons in evidence are detached from the bonds and are payable to bearer at a specific time and place, and therefore are negotiable, subject to the rules of law governing negotiable instruments. In discussing the negotiability of like coupons the court said in Bowman v. Neely, 137 Ill. 443:

‘ ‘ By commercial usage, such coupons, when payable to bearer, have the legal effect of promissory notes, by the law merchant, and possess the attributes of negotiable paper. * * * They are written contracts for the payment of a definite sum of money on a given day, and pass from hand to hand, by commercial usage, as negotiable paper.” Town of Eagle v. Kohn, 84 Ill. 292.

The holding in First Nat. Bank v. Bennington, 16 Blatchf. (U. S.) 53, is to the effect that a coupon not under seal, payable to bearer at a definite time and place, is a complete instrument within* itself and may be declared on without reference to the bond, and that assumpsit is an appropriate form of action.

It will be, observed from the copy of one of the coupons sued upon, above set out, that it is without condition or limitation (unless the bond to which it is attached is paid before maturity of the interest coupon) and does not refer to any provisions contained in the trust deed securing it. We therefore treat these coupons as independent claims and negotiable instruments, free from any limitation contained either in the bond from which they were detached or the trust deed securing them.

We are not permitted to indulge in any construction which does not reasonably arise from the literal terms of the interest coupons; we have no right to hark back to the bond or trust deed for aid in their interpretation. As the defendant is the maker of these interest coupons and created their terms and conditions, these terms must be construed strictly against him, and as they are by their terms payable without condition, the defense proffered is unavailing to prevent a recovery.

The judgment of the Municipal Court being without error, it is affirmed.

Affirmed.


text:
    City of Chicago, Defendant in Error, v. Henry Jacobi, Plaintiff in Error.
    Gen. No. 21,510.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John A. Mahoney, Judge, presiding.
    Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed January 17, 1916.
    Statement of the Case..
    Prosecution by the City of Chicago against Henry Jacobi, defendant, charging defendant with a violation of. section 2012 of the Revised Municipal Code of Chicago. To reverse a judgment of conviction entered on a verdict of guilty, with a fine of two hundred dollars, defendant prosecutes this writ of error.
    Cantwell & Smith, for plaintiff in error.
    Samuel A. Ettelson and Harry B. Miller, for defendant in error; Daniel Webster, of counsel.

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

   Mr. Justice Holdom

delivered the opinion of the court.

Abstract of the Decision.

1. Appeal and error, § 822 —when rulings on motions must he preserved in hill of exceptions. In order to preserve for review the rulings of the trial court on motions, the evidence of such rulings must be preserved in a bill of exceptions, and it is not sufficient that the rulings are copied into the statutory record.

2. Appeal and error, § 824 —when exceptions to rulings of trial court not part of record. Exceptions to the rulings of the trial court which appear in the record but are not preserved by the bill of exceptions are not a part of the record, and the errors assigned thereon cannot be considered on review.

3. Municipal Court of Chicago, § 28 —how rulings on petition for change of venue must he preserved for review. The rulings of the Municipal Court on a petition for a change of venue are not before the Appellate Court unless the petition and rulings thereon appear either by a bill of exceptions, stenographic report or a statement of facts as provided by section 23 of the Municipal Court Act (J. & A. H 3335).

4. Appeal and error, § 1751 —when judgment affirmed on writ of error. On a writ of error where the questions sought to be presented are not preserved in such manner that they can be reviewed by the Appellate Court, the judgment of the lower court must be affirmed.


text:
    H. Laskey, Defendant in Error, v. Samuel Mendelson and Benjamin Mendelson, trading as Mendelson Brothers, Plaintiffs in Error.
    Gen. No. 21,548.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Sheridan E. Fry, Judge, presiding.
    Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed January 17, 1916.
    Statement of the. Case.
    Action by H. Laskey, plaintiff, against Samuel Mendelson and Benjamin Mendelson, trading as Mendel-son Brothers, defendants, in the Municipal Court of Chicago, to recover for goods sold and delivered. This case was previously before this court (191 Ill. App. 597), where the judgment was reversed. To reverse a judgment for plaintiff, defendant prosecutes this writ of error.
    Abstract of the Decision.
    1. Sales, § 329

      —when evidence sufficient to establish sale. In an action to recover for goods sold and delivered, where the defense was that the goods sued for were sold to a corporation which later became bankrupt, and not to defendants individually, evidence held to sustain a finding that plaintiff had maintained his claim by a preponderance of the credible evidence, it appearing that defendants owned all the stock of such corporation with the exception of one share, and that the bankruptcy schedules filed by such corporation did not list plaintiff as a creditor.
    2. Sales, § 326

      —when evidence tending to show sale to third person immaterial. In an action to recover for goods sold and delivered, where the defense was that the goods sued for were sold to a corporation which later became bankrupt, and not to defendants individually, it is immaterial that defendants and such corporation were in the same line of business, or that defendants’ wagons were lettered with the name of the corporation, or that a fire destroyed the books and property of the corporation, since none of these conditions were chargeable in any way to the act of plaintiff.
    3. Account stated, § 4

      —when recovery not barred. Where it is undisputed that an account sued on has not been paid, recovery thereon is not barred by the fact that while the suit was pending plaintiff rendered other bills to defendants, which were paid by them, whether the delay in rendering the account sued on was due to accident or to design on the part of plaintiff.
    4. Sales, § 329

      —when fact that seller refused to prove claim

      in bankruptcy not evidence of liability of third person. In an action to recover for goods sold and delivered, where the defense was that the goods sued for were sold to a corporation which later became bankrupt, and not to defendants individually, the refusal of plaintiff, on request, to prove his claim in bankruptcy is consistent with his attitude in the action, that defendants and not the corporation were his debtors.

      Moses, Rosenthal & Kennedy, for plaintiffs in error; Sigmund W. David, of counsel.
    Isadore S. Blumenthal, for defendant in error.

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

   Mr. Justice Holdom

delivered the opinion of the court.


text:
    The Slaymaker Lock Manufacturing Corporation, Defendant in Error, v. Leon A. Olmsted, Plaintiif in Error.
    Gen. No. 21,578.
    1. Sales, § 18

      —what does not constitute acceptance of offer of sale of goods. Where a vendee orders good at specified prices, and vendor ships the goods invoiced at higher prices, with the privilege of returning the goods if vendee is not satisfied, there is no meeting of the minds of any valid acceptance of vendee’s offer by vend- or where it appears that vendee never accepted the goods at the prices fixed by vendor, although vendor subsequently sent vendee a new invoice of the goods at the prices named in vendee’s offer.
    2. Contracts, § 40

      —when acceptance of offer must be made. A vendor who has refused the offer of vendee to buy goods at named prices and made a counter proposition as to price, cannot without the consent of vendee, later withdraw his counter proposition and accept vendee’s original offer so as to bind vendee to the contract.
    3. Contracts, § 44

      —when offer must be unconditionally accepted. A mere proposal by one person to make a contract constitutes no bargain of itself, and the proposal must be unconditionally accepted by the person to whom it is made in order to make a contract.
    4. Contracts, § 44

      —what constitutes rejection of offer. If a party to whom an offer had been made accepts the offer conditionally, or requests modifications or changes in the offer, such action in law constitutes a rejection of the offer and amounts to a new proposal, which is ineffectual to complete the contract until accepted by the first proposer.

      Error to the Municipal Court of Chicago; the Hon. Joseph Z. UHlir, Judge, presiding.
    Heard in this court at the October term, 1915.
    Reversed and judgment here for defendant.
    Opinion filed January 17, 1916.
    William: A. Barnes, for plaintiff in error.
    Baker & Holder, for defendant in error; W. W. Hoover, of counsel.

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

   Mr. Justice Holdom

delivered the opinion of the court.

Defendant brings before us for review the record of a judgment against him for $135.19. The trial was before the court without a jury. The record shows without contradiction that defendant ordered of plaintiff certain brass padlocks, etc., at the total price of $139.39. Concerning this order plaintiff wrote defendant: “Your order Oct. 27th, No. A 9,003, specifies prices which, with the exception of $3,903, are not now in existence. We are giving you the best prices possible.” Then follows a list of goods by numbers and the prices for each and the letter continues: “We are shipping the goods at once, thinking you may be in immediate need, but please make no deductions from the prices given, and if our action in an effort to give you prompt service by shipping these at the best prices, without first waiting for confirmation of these prices from you, does not meet with your approval, you may return the goods, but do not make any deduction from the invoice.” The goods were received by defendant and he, in repudiation of the attempt of plaintiff to foist the goods upon him at its own price, notified plaintiff that he would return the goods and asked for a check for $2.46 for cartage, etc., which defendant had necessarily paid upon the goods.

Other correspondence ensued between the parties, in which was a letter from Slaymaker, the president of plaintiff, to defendant of November 16, 1914, in which he said:

“I am sorry you take the attitude you do; but we are enclosing a new invoice, putting these goods at the old prices, which we trust is satisfactory to you and will close the incident. We do not like to have you feel so you better have the goods. We are better off to put in new line now than later. Send along your check. ’ ’

Plaintiff then wrote defendant:

“Answering your note on our letter Nov. 16th, we regret we cannot meet your requirements. You ordered goods; we shipped them; you objected to the prices. We then adjusted the prices in accordance with your order, while the g’oods were yet in your hands. Under the circumstances there is nothing further to say than the bill is again returned to you, the transaction having been in entire accord with the requirements of your order and correspondence. Please see that the bill is passed and properly paid when it comes due.”

To this letter defendant replied:

“Your business intelligence is beyond our grasping. You occupy the most unique position in business that I have had the misfortune to discover in twenty-five years of cruising. Please read your letter of Oct. 29th and believe us no fools. Send along your check to cover our outlay or within ten days will send to Public Warehouse at your expense.”

Plaintiff then drew a draft on defendant for $135.39, the amount of its invoice, which was returned unpaid. Suit was then threatened by plaintiff and started. The foregoing evidence is that of plaintiff.

Plaintiff also read certain interrogatories propounded to defendant and his answers thereto, and it was then agreed between counsel that the parties to the action had been doing business together between three and four years prior to the transaction in dispute;' that the goods involved in this litigation were received by defendant, that the invoice accompanied the bill of lading, that defendant had paid certain freight charges and that the goods were packed in two cases and were then at the warehouse of defendant. The defendant offered no testimony hut moved for a finding in his favor.

The plaintiff has proven that the order of defendant was not accepted, that goods embraced in the order were billed at advanced prices, and that defendant had the privilege of returning them if he was not satisfied with the prices. Defendant refused to accept and pay for the goods and demanded to be reimbursed the amount he had paid out for freight and cartage. It is clear, therefore, that the minds of the parties never met, that the offer of defendant was never accepted by plaintiff and that defendant never accepted the goods at the prices fixed by plaintiff, although subsequently plaintiff sent defendant a new bill with the prices the same as in the original order. At no time during the negotiation between the parties was there an offer and an acceptance. Plaintiff could not, without the consent of defendant, withdraw his counter proposition and accept the original offer which defendant had made. As said by Mr. Justice Baker in Cheboygan Paper Co. v. Swigart Paper Co., 140 Ill. App. 314: “A mere proposal by one man obviously constitutes no bargain of itself. It must be accepted by another, and this acceptance must be unconditional. If a condition be affixed by the party to whom the offer is made, or any modification or change in the offer be requested, this constitutes in law a rejection of the offer, and a new proposal, equally ineffectual to complete the contract until assented to by the first proposer.”

It was held by this court in Goodridge v. Wood, 133 Ill. App. 483, that it is a principle of the law of contracts that an offer of a bargain by one person to another imposes no obligation upon the former until it is accepted by the latter according to the terms in which the offer was made. Any qualification of or departure from those terms invalidates the offer unless the same be agreed to by the person who made it. Until the terms of the agreement have received the assent of both parties, the negotiation is open and imposes an obligation upon neither.

The judgment of the Municipal Court is wrong and is reversed, and a judgment is entered in this court in favor of defendant on his counterclaim and against plaintiff for the sum of $2.46.

Judgment reversed and judgment here for defendant.


text:
    William H. Weber and Elsie Merckle, Trustees of the Estate of Henry Merckle, Deceased, Defendants in Error, v. American Posting Service, Plaintiff in Error.
    Gen. No. 21,591.
    1. Appeal and error, § 1712

      —when errors waived. Errors assigned but not argued are waived.
    2. Evidence, § 48

      —when burden of proof on defendant to establish affirmative defense. Where defendant pleads an affirmative defense, he has the burden of maintaining such defense hy a preponderance of the evidence.
    3. Contracts, § 289

      —how contract may be terminated. A written contract which by its terms is to operate until terminated by one of the parties in a manner provided for in the contract cannot be terminated by the verbal agreement of the representatives of the parties, or in any manner other than that provided in the .contract.
    4. Contracts, § 289

      —when parties bound by terms. A written contract binds the parties thereto as to ail its provisions, including the manner therein specified' as that in which the term of the contract might be terminated.
    5. Contracts, § 377

      —when evidence of notice of termination admissible. In an action to recover rent under a “billboard contract,” providing that the obligation of the contract might be terminated by either party on giving thirty days’ notice, evidence that plaintiff gave such notice is competent to show that the contract had been terminated in order to fix the time for which defendant was liable for rent in the action, being evidence in limitation of such liability.
    6. Contracts, § 220*—how agreement not to rent land to another for specified period construed. An agreement not to rent land to a third party for billboard purposes for one year is to be interpreted as being limited to the .time during which the contract is in force, since after the contract was terminated, it wholly lacked vitality and was in no part binding on the parties.
    7. Contracts, § 220*—when immaterial that terms of terminated contract violated. In an action to recover rent due under a “billboard contract,” the obligation of which had been terminated in a manner provided by the contract prior to bringing the action, the rights of the parties must be adjudged under the contract as it existed at the time it was terminated, and it is therefore immaterial that after such contract was terminated plaintiff rented land to a third person for billboard purposes in violation of the terms of the contract.
    Error to the Municipal Court of Chicago; the Hon. George J. Cowing, Judge, presiding.
    Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed January 17, 1916.
    Rehearing denied January 31, 1916.
    Chytraus, Healy & Frost and John Peter Barnes, for plaintiff in error.
    Lee J. Frank and Mary Lee Colbert, for defendants in error.

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

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

   Mr. Justice Holdom

delivered the opinion of the

court.

Plaintiffs recovered a judgment for $350 against defendant in the Municipal Court on the verdict of a jury, and defendant- has sued out this writ of error and asks a reversal of that judgment. The contract is what is colloquially known as a “billboard contract, ’ ’ plaintiffs being the owners of the land on which defendant was granted license and permission to erect and maintain billboards. The contract is in two parts and both parts are dated August 1,1913. ' By the terms of the contract defendant was to pay $50 per month in advance on the first day of each calendar month, beginning August 1, 1913, and the contract was terminable by either party giving to the other a thirty-day notice on the first day of any month.

^ The second part of the agreement provided that if plaintiffs should take advantage of the thirty-day clause within the first four months, viz., before the first of December, 1913, plaintiffs were willing to refund defendant whatever sum it may have paid on the contract. It was further stipulated that plaintiffs would not grant to anyone else for one year from August 1, 1913, the billboard advertising privilege.

Defendant on August 18, 1913, tendered plaintiffs a check for $50, which check recited on its face that it was for rental from August 15, 1913 to September 15, 1913—this upon the contention of defendant that August 15th was the earliest time after the receipt of the contract that he could procure a permit from the building department of the City of Chicago to erect billboards. This check was accompanied by a voucher, both of which were returned to defendant. After-wards one Robertson, representing the defendant, called upon Pfeiffer, representative of plaintiffs, with the check and voucher and offered the same to Pfeiffer, which he refused to accept. Defendant contends that at that interview the contract was canceled by the instruction of Pfeiffer and the agreement of Robertson.

Defendant paid no rent, nor tendered any, after the tender of the $50 check above mentioned. Thereupon, on February 1, 1914, plaintiffs gave thirty days’ notice of the termination of the lease, and thereafter commenced this suit for seven months’ rent, being from August 1, 1913 to March 1, 1914. On May 21, 1914, plaintiffs leased the premises in question to a third party for billboard purposes. Defendant claims that it did not receive the leasing contract until about August 12, 1913. Simmons, the witness on this point, admits that he left for his vacation on August 1st, and did not return until August 12th, when he opened his mail and found the leasing contract in it and stamped it with the receiving stamp as of that date; that this is all he knows as to the time when the contract was sent to defendant, and he admits that his only means of knowledge is the receiving stamp.

Defendant assigns as error and argues that the contract was canceled, that the thirty-day notice terminating the contract should not have been admitted in evidence, that the judgment is against the weight of the evidence and that the leasing within the year of the premises to a third party for billboard purposes was contrary to the covenant in the contract and defeated plaintiffs’ right to recover rent.

While errors are assigned upon the instructions of the court to the jury, they are not argued, and therefore such errors are waived. The defense interposed by defendant being an affirmative defense, the law cast upon it the burden of maintaining such defense by a preponderance of the evidence. This it failed to do.

The contract is dated August 1, 1913. Defendant promised to pay monthly rental for the premises in that contract leased, commencing with the date of the contract. There is no evidence that the" contract was not delivered upon the day of its date or that defendant was prevented from taking possession of the premises on the date which it had a right to do under the contract.

The contract could not be terminated except in the manner provided for by its terms. The conversation between Robertson and Pfeiffer, if it occurred, would not work such termination. The terms of the contract, it being in writing, bound the parties as to all its provisions, including the manner in which the term granted by it might be terminated. Either party to the contract had the right under its terms to terminate it by giving to the other party thirty days’ notice. The privilege so to do was the right of both parties. The receiving in evidence, therefore, of the notice terminating the contract was not error. It was necessary to show that the contract had been terminated in order to fix the time for which the defendant was liable to pay rent. It was evidence in limitation of the liability of defendant.

After the termination of the contract by plaintiffs and on May 21, 1914, a lease was granted to a third party for billboard purposes, and it is contended that this was a violation of the condition in the contract that “the privilege of billboard advertising will not be granted'anybody else for one year from date, August 1, 1913,” and that such violation extinguished plaintiffs’ right to recover rent.

The agreement not to rent to a third party for billboard purposes for one year is, by interpretation, limited to the time during which the contract was in force. After the contract was ended, all of its provisions lacked vitality and were no longer binding upon the parties. Plaintiffs terminated the contract in the manner provided by its terms and it ended more than two months prior to the time the property was again leased. The rights of the parties must be adjudged under the contract .as it existed at the time it was terminated.

We find no error in procedure. The trial was fair, the defendant was accorded all of its rights in such trial under the law, and the judgment of the Municipal Court is therefore affirmed.

Affirmed.


text:
    Clinton Company, Defendant in Error, v. Otto G. Stiles, Plaintiff in Error.
    Gen. No. 21,662.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Joseph E. Ryan, Judge, presiding.
    Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed January 17, 1916.
    Statement of the Case.
    Action by the Clinton Company, a corporation-, plaintiff, against Otto G. Stiles, defendant, in the Municipal Court of Chicag'o, to recover for printed matter sold and delivered. To reverse a judgment for plaintiff for five hundred and fifty dollars, defendant prosecutes this writ of error.
    One Gustave H. Knospe and defendant were doing business under the name of Northern Investment Company. Knospe contracted with plaintiff in the name of the Investment Company for printing matter designated as “Bank of Prosperity Certificates.” The whole order was for 4,250,000 certificates, 1,250,000 of which were delivered to and paid for by Knospe. Afterwards defendant bought from Knospe the business of the company, assuming its liabilities as part of the consideration and continuing to transact business in its name. Among other liabilities assumed was plaintiff’s claim in this action, although defendant contended otherwise. The certificates were delivered to defendant at his place of business, but he rejected them. Defendant wrote to plaintiff:
    “The sample of the Bank of Prosperity bills that you sent to me are not quite up to standard, either in regard to quality or color of the sample on which you contracted to furnish me. I hereby notify you that I shall refuse to accept same and look to you to reimburse me on any losses I may sustain by being delayed on the advertising matter.
    Northern Investment Co.,
    Per O. G. Stiles, Mgr.”

      Abstract of the Decision.
    1. Evidence, § 154

      —when letter constitutes admission of assumption of liability by third person. In an action to recover for printed matter sold and delivered, where the contract for such printed matter was made by one whose liabilities defendant assumed as part of the consideration by which he purchased such person’s assets and business, and where the defense was that defendant never assumed liability to plaintiff, a letter written by defendant to plaintiff, complaining of the quality of the printed matter delivered as being in breach of a contract, and threatening to hold plaintiff liable for such breach, held to he an admission of defendant’s assumption of liability on such other person’s contract with plaintiff.
    2. Frauds, Statute of, § 22

      —when contract assuming debts not within statute. In an action to recover for printed matter sold and delivered, where plaintiff’s cause of action was based on the assumption by defendant of the liabilities of one who had contracted for the sale and delivery of the printed matter sued for, such assumption being part of the consideration of the purchase of such third person’s assets and business, contract held not void under the Statute of Frauds as being a promise not in writing to pay the debt of another, the statute having no application to such a case.
    3. Contracts, § 349

      —when action maintainable by party in in

      terest. A third person for whose benefit a contract has been made may maintain an action for breach of the contract.

      The case was tried by jury. At the close of plaintiff’s evidence defendant moved for a peremptory instruction in its favor, which was denied, and the case went to the jury on plaintiff’s evidence, defendant not offering any evidence. The jury found a verdict for plaintiff.
    Charles R. Napier and Charles S. McIlvaine, for plaintiff in error.
    Daniel P. Trude, for defendant in error; M. Marso, of counsel.

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

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

   Mr. Justice Holdom

delivered the opinion of the court.

4. Frauds, Statute of, § 13 —what constitutes original undertaking. A contract made for the benefit of a third person is an original undertaking and is not required to be in writing under the Statute of Frauds, such a contract not being within the statute.

5. Contracts, § 349 —when third person may maintain action on contract for his benefit. In order that a third person may maintain an action on a contract made for his benefit, it is not necessary that the consideration of the contract move from such third person, providing he elects to affirm the promise made in his behalf.

6. Contracts, § 349 —what constitutes affirmation by third person of promise on his behalf. A third person who brings suit on a contract made for his benefit thereby affirms the promise made in his behalf.

7. Municipal Court of Chicago, § 13 —what constitutes waiver of objection to statement of claim. A defendant waives objection to plaintiff’s statement of claim in that such claim does not state a cause of action by pleading and proceeding to trial on the merits.

8. Municipal Court of Chicago, § 13 —when defense not pleaded in affidavit of merits unavailable. In. an action to recover for goods sold and delivered, the defenses that the goods delivered are unsatisfactory or not in accordance with the contract are not available to defendant on the trial if he has not pleaded such defenses in his affidavit of merits, since defendant on the trial is limited to the defenses made by his pleading.

9. Trial, § 204 —when verdict properly directed. Where defendant offers no evidence and plaintiff’s evidence establishes his claim, it is proper to direct a verdict for plaintiff for the amount claimed.

10. Appeal and error, § 1523 —when verdict not reversed on appeal. Where defendant offers no evidence and plaintiff’s evidence establishes his claim, a court of review will not reverse although there were errors in instructions.


text:
    The People of the State of Illinois, Defendant in Error, v. Max Glabman, Plaintiff in Error.
    Gen. No. 21,762.
    1. Husband and wife, § 274

      —when State need not prove that wife at time of abandonment was “in destitute or necessitous circumstances.” Hurd’s Rev. St., ch. 68, sec. 24 (J. & A. If 3431), providing that “every person who shall without good cause abandon his wife and neglect and refuse to maintain and provide for her, or who shall abandon his or her minor child or children under the age of 12 years, in destitute or necessitous circumstances,” shall be guilty of a misdemeanor, does not require the State to prove, in order to obtain a conviction for wife abandonment under the statute, that at the time of the abandonment charged the wife was in “destitute or necessitous circumstances,” the statute being disjunctive, providing two classes of cases, the abandonment of the wife and the abandonment of the children, so that the words “in destitute and necessitous circumstances” apply only to the second class of cases, leaving the first class to consist of abandonment of the wife without good cause, and refusing and neglecting to provide for her.
    2. Husband and wife, § 272

      —statute on wife abandonment not retroactive. The Act of 1915 providing that every person who shall, without any reasonable cause, neglect or refuse to provide for the support of his wife, said wife being in destitute or necessitous circumstances, shall be guilty of a misdemeanor, has no retroactive effect and cannot apply to a prosecution for a similar misdemeanor commenced before the act went into effect.
    3. Statutes, § 252

      —when criminal statutes not retroactive. In a criminal case a conviction must be measured by the statute as it existed when the information was filed.
    4. Husband and wife, § 272

      —what are elements of offense of wife abandonment. Under Hurd’s Rev. St., ch. 68, sec. 24 (J. & A. If 3431), the elements necessary to a conviction are abandonment of the wife and neglect and refusal to maintain her.
    5. Husband and wife, § 275

      —when judgment of conviction for wife abandonment sustained. A conviction is proper in an information charging defendant with wife abandonment, under Hurd’s Rev. St., ch. 68, sec. 24 (J. & A. If 3431), where the information charges all which is necessary to constitute the crime alleged under the statute then in force and where the evidence sustains the charge in the information.

      Error to the Municipal Court of Chicago; the Hon. Joseph Sabath, Judge, presiding.
    Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed January 17, 1916.
    Roderick & Roderick, for plaintiff in error.
    Maclay Hoyne, for defendant in error; Edward E. Wilson, of counsel.

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

   Mr. Justice Holdom

delivered the opinion of the court.

Plaintiff in error was convicted under an information filed October 9,1914, charging him with wife abandonment. The charge was that plaintiff in error wrongfully and without good cause abandoned his wife and neglected and refuses to maintain and provide for her. The information was in the terms of the statute then in force, being section 24, ch. 68, Rev. St. (J. & A. 3431). This conviction is before us for review.

Plaintiff in error contends that it was necessary for the State to allege and prove that his wife was “in destitute or necessitous circumstances,” and cites People v. Bos, 162 Ill. App. 454, as sustaining authority. The statute cited in the Bos case, supra, is the same as that under which Glabman was convicted. That statute provides for two classes of cases, one the abandonment of the wife and the other the abandonment of children. The statute is in the disjunctive, and reads as to the wife, “every person who shall without good cause abandon his wife and neglect and refuse to maintain and provide for her, ’ ’ and as to the children continues, “or who shall abandon his or her minor child or children under the age of 12 years, in destitute or necessitous circumstances.” The leaving “in destitute or necessitous circumstances” applies to the abandonment of child or children, and the abandoning of the wife and the refusing and neglecting to provide for her without good cause constitute the crime of wife abandonment under the Act of 1903.

The Bos case, supra, is not binding upon us on this review, and as it was not in our opinion well decided it has no appealing force. The Act of 1915, which does require that the wife be in necessitous or destitute circumstances to constitute the crime of abandonment, has no application to Gflabman’s prosecution, as it has no retroactive effect. Clubman’s conviction must be measured by the statute as it existed at the time the information was filed.

The People v. Heise, 257 Ill. 443, governs this case. In that case it was held that to constitute the crime of wife abandonment three things must concur— abandonment of the wife, and neglect and refusal to maintain her. The information charged all that was necessary to constitute the crime of wife abandonment under the statute then in force, and the proof sustaining the charge in the information, the trial Judge rightfully convicted Glabman.

The judgment of the Municipal Court being without error, is aErmed.

Affirmed.


author: Mr. Presiding Justice Pam

text:
    In the Matter of the Estate of Francis A. Barnes, Deceased. On Appeal of Vilena H. Barnes, Administratrix, Appellant, v. The People of the State of Illinois for use of George Earle et al., Appellees.
    Gen. No. 20,301.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Adelor J. Petit, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1914.
    Affirmed.
    Opinion filed January 27, 1916.
    Statement of the Case.
    Appeal by Vilena H. Barnes, administratrix of the estate of Francis A. Barnes, from an order of the Circuit Court directing her to distribute cash remaining in her hands among the creditors of the estate, in proportion to the amount of their claims.
    It appeared that Francis A. Barnes and 'Samuel M. Parish were copartners, doing business under the firm name of Barnes & Parish, as real estate brokers; that Samuel M. Parish having died, Francis A. Barnes as surviving partner succeeded to the business, and possessed himself of the assets and the good-will thereof, the business thereáfter being conducted under the name of F. A. Barnes & Company; that Francis A. Barnes having later died, his widow was appointed administratrix of her deceased husband’s estate; that Percy C. Barnes, a son of F. A. Barnes and the appellant, continued the business.
    It is maintained by the appellant that Percy C. Barnes became a partner in the business and she claims to have paid him $350 for his share thereof, including the good-will, which she claims he had succeeded to as surviving partner upon the death of Francis A. Barnes. It further appeared from the evidence that later the appellant, in consideration of $1,550, sold to Gr. H. Schneider & Company the real estate business of F. A. Barnes & Company, including the good-will.
    In reporting said sale to the Probate Court, the appellant accounted only for the sum of $165.55, which represented the inventoried value of the fixtures and furniture belonging to said real estate business, leaving unaccounted for the sum of $1,383.45. At this time the said estate of Francis A. Barnes was insolvent to an amount upwards of $10,000.
    Thereafter in the Probate Court of Cook county the appellant was ruled to show cause why she should not account for the said $1,383.45. Appellant’s reply was to the effect that the said sum of $1,383.45 represented the amount paid by Gr. H. Schneider & Company for the good-will of the business of F. A. Barnes & Company; that the said good-will sold to Gr. H. Schneider & Company was her own personal property by purchase from Percy C. Barnes, and had never been vested in the estate.
    The Probate Court on hearing allowed appellant credit for the $350 paid to Percy C. Barnes, which expenditure was approved as a purchase of an outstanding claim in the interest of said estate, and as an expense of administration; and ordered the appellant to account to the estate of said Francis A. Barnes for balance, viz., $1,033.45. Appellant refused, and failed to account for the aforesaid $1,033.45, and therefore the Probate Court stated an account for her, showing a credit to the estate of the said $1,033.45, from which credit and accounting appellant took an appeal to the Circuit Court, where, upon a hearing, the order complained of on this appeal was entered.
    After affirmance of the judgment below, a rehearing was granted.
    Daniel S. Wentworth, for appellant.

      Abstract of the Decision.
    1. Executors and administrators, § 62

      —what constitutes assets of the estate. Where, in the account of an administratrix, there appears an item showing an expenditure for the purchase of the interest of the deceased’s surviving partner in a partnership business owned by the deceased and the seller of such interest, the interest so purchased must be considered as an asset of the estate for the proceeds of the sale of which the administratrix must account, and cannot be considered as her individual property.
    2. Appeal and error, § 1276

      —when presumed administratrix acquired property in representative capacity. Where, on there appearing in the account of an administratrix, an item of expenditure for the purchase of an outstanding interest in the estate, and on the administratrix’s failure to account for the proceeds of the subsequent sale thereof, the Probate Court states an account for her, crediting the estate with such proceeds and debiting it with the amount expended therefor, from which action she appeals but, being ordered to file a bill of particulars, limits the appeal to an objection as to the credit, thereby acquiescing in the allowance of the debit, it must be considered that she acquired the property in her representative capacity and not as an individual.
    3. Executors and administrators, § 119

      —when claim against estate purchased by administratrix inures to benefit of estate. Where an administratrix uses the funds of the estate in the purchase of a claim against it, the benefits thereof must inure to the estate.
    On Rehearing.
    Executors and administrators, § 553

      —zohen administratrix on appeal from an account stated limited to points raised in bill of particulars. On an appeal from an account stated for her by the Probate Court, an administratrix is limited to a hearing on those points raised in her bill of particulars.
    Adams & Wenner, for appellee Lucy A. Salisbury.

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

   Mr. Presiding Justice Pam

delivered the opinion of the court.


text:
    Edward J. Jefferys, Defendant in Error, v. James C. Hart, Plaintiff in Error.
    Gen. No. 20,476.
    1. Landlord and tenant, § 464

      —when noncompliance of tenant •with demand for payment of rent does not terminate lease. Section 8 of the Landlord and Tenant Act (J. & A. If 7046), providing for demands by landlords for nonpayment of rent by tenants, notifying such tenants that in case of nonpayment within five days the lease will be terminated, and further providing that “if the tenant shall not within the time mentioned in such notice, pay the rent due, the landlord may consider the lease ended,” does not of necessity terminate the lease on the noncompliance by the tenant with the demand, but merely gives to the landlord the right to consider the lease ended, or in force, at his option, the words “may consider the lease ended” presupposing the existence of the lease, and such words being superfluous if the intention of the Legislature was to terminate the tenancy by serving a five-day notice.
    2. Landlord and tenant, § 464

      —how statute relative to termination of lease by landlord construed. If section 8 of the Landlord and Tenant Act (J. & A. If 7046) were construed as terminating the lease on the noncompliance by the tenant with a notice under the statute, such construction would enable the tenant to forfeit the lease by committing a breach requiring the notice, and thereby take advantage of his own wrong, which forfeiture would be no more favored by the law than a forfeiture by the landlord against the tenant.
    3. Landlord and tenant, § 464

      —what constitutes exercise of option by landlord under statute to terminate lease. After the service by a landlord on a tenant of notice and demand under section 8 of the Landlord and Tenant Act (J. & A. If 7046), which is not complied with by the tenant, the action of the landlord in bringing either forcible detainer proceedings or ejectment would be an affirmative act showing his intention to exercise his option under the statute to consider the lease as ended.
    4. Landlord and tenant, § 456

      —what constitutes an abandonment by tenant. A tenant on whom a notice and demand has been served by the landlord under section 8 of the Landlord and Tenant Act (J. & A. If 7046), has no right to consider his lease as terminated prior to some affirmative act showing an election by the landlord so to treat the lease, and a vacation of the leased premises prior to such affirmative act is an abandonment.

      Error to the Municipal Court of Chicago; the Hon. Edward T. Wade, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Reversed and remanded.
    Opinion filed January 27, 1916.
    Statement by the Court. Defendant in error (plaintiff below) sued plaintiff in epror (defendant below) for the recovery of money alleged to be due on a deposit under a lease between the parties. The court upon a trial of the case without a jury found the issues against the defendant, assessing plaintiff’s damages in the stum of $270.65 for which amount and costs, judgment was entered, to reverse which "defendant "has sued out this writ of error.
    William J. Ammen, for plaintiff in error.
    Louis J. Pierson, for defendant in error.

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

   Mr. Presiding Justice Pam

delivered the opinion of the court.

Under a lease dated June 25, 1913, defendant rented to plaintiff the store on the first floor of the building known as 5547 South Halsted street, Chicago, Illinois, from July 1, 1913, until April 30, 1918, at a monthly rental of $50 for the first twenty-two months of said lease and $55 for the remainder of the term, which rent was payable in advance upon the first day of every month of said term.

Said lease also contained the following clause:

“It is expressly understood and agreed that said lessee shall pay to said lessor, upon the execution of this lease, the sum of Three Hundred ($300.00) to be by him held to secure the payment of said rent and the performance by said lessee of his obligations hereunder ; and in case said lessee, on November 1st, 1917, shall have paid to said lessor all rent theretofore due and shall have performed all the other obligations herein set out to be by him performed and shall also pay to the said lessor the further sum of Thirty Dollars, then said payment of Three Hundred Dollars shall be held by the said lessor as a balance of the rent for the final six months of said term and said lessee credited accordingly.
“It is further understood and agreed that the giving and acceptance of said sum of three hundred dollars, as security, as aforesaid shall in no manner or degree effect or alter any right of action hereunder which said lessor might otherwise have against said lessee.”

Plaintiff not having paid the rent due October 1, 1913, defendant served the following notice on him:

“Chicago, Ill., Oct. 16,1913.
“To Edwin J. Jeffery:
“You are hereby notified that there is now due the sum of Fifty Dollars being rent due for the premises situated in the city of Chicago, County of Cook, and State of Illinois, and known and described as follows, viz., the store on the first floor of the building at No. 5547 So. Halsted street.
“And you are further notified that payment of said sum so due, has been and is hereby demanded of you, and that unless payment thereof is made on or before the 21st day of October, A. D. 1913, your lease of said premises will be terminated. * * * at * * * is hereby authorized to receive said rent for me.
(Signed) James C. Hart,
Landlord,
By C. D. Eulette,
Agent. ’ ’

The foregoing facts are uncontradicted. There is, however, a conflict in the evidence as to what took place after defendant served the aforesaid notice.

Plaintiff introduced evidence that on October 21, 1913,—five days after he received the notice—he vacated said premises and turned over the key to a person duly authorized to receive same by defendant, and that he tendered the sum of $33.88 to defendant. for rental of the premises for twenty-one days in October, which, however, was refused.

Defendant introduced evidence that plaintiff did not vacate the premises until either the 26th or 27th of October, 1913, and that the keys were not delivered until the 28th or 29th of October; and also offered evidence to show that after -the vacation of said premises by plaintiff on the 26th or 27th“ of the month, he re-entered the premises for the purpose of putting them in shape to rent to the best possible advantage, as he claimed was his duty under the law; that the premises remained vacant until the first of March, 1914; that the damages sustained by him by reason of the abandonment of the premises by plaintiff exceeded the $300 deposited with defendant under the lease as security for the faithful performance of the terms thereof.

Upon this record, plaintiff claims that by the serving of the aforesaid notice, under the provisions of section 8 of our Landlord & Tenant Act, ch. 80 of Hurd’s Rev. St. of Illinois for 1911 (J. & A. 7046), plaintiff not having paid the rent within five days as required in said notice, the lease was terminated; that because of the termination of said lease, he was entitled to the return of the $300 deposited under the clause hereinabove set forth, less the amount tendered as the rent due for the use of said premises for the twenty-one days in October that the premises were occupied by him.

Defendant contends that said lease was not thereby terminated, but that plaintiff abandoned the premises demised under said lease, and that by reason of suqh abandonment, defendant sustained damages in a sum greater than the amount deposited as security for the faithful performance of the covenants in the lease.

If the foregoing facts established a termination of the lease, then the judgment of the Municipal Court must be affirmed; if not, we must reverse it.

If the position of plaintiff is tenable, then the mere serving of the five-day notice, followed by plaintiff’s noncompliance therewith, constituted a termination of the lease.

'Section 8 of our Landlord & Tenant Act (J. & A. Tf 7046) provides as follows:

“Demand of rent—Suit for possession—Joinder of claim for rent in complaint. That a landlord or his agent may, at any time after rent is due, demand payment thereof and notify the tenant, in writing, that unless payment is made within a time mentioned in such notice, not less than five days after service thereof, the lease will be terminated. If the tenant shall not within the time mentioned in such notice, pay the rent due, the landlord may consider the lease ended, and sue for the possession under the statute in relation of (to) forcible entry and detainer, or maintain ejectment without further notice or demand. And a claim for rent may be joined in the complaint, and judgment obtained for the amount of rent found due, in any action or proceeding brought, in an action of forcible entry and detainer for the possession of the demised premises, under this section. ’ ’

Under the facts in evidence, plaintiff defaulted in the payment of the rent due October 1st. The landlord, therefore, as provided under section 8 supra, notified the tenant that unless the rent was paid within five days, the lease would be terminated; but section 8 does not provide that the serving of such notice shall itself constitute a termination, for that section provides :

“If the tenant shall not within the time mentioned in such notice, pay the rent due, the landlord may consider the lease ended, and sue for the possession under the statute in relation of (to) forcible entry and detainer, or maintain ejectment without further notice or demand. ’ ’

In our opinion, the words “may consider the lease ended” necessarily presuppose the existence of the lease, after the serving of the five-day notice,—or why would they be there? If the intention of the Legislature was to terminate the tenancy by the serving of a five-day notice, the words “may consider the lease ended” are superfluous. We believe these words were inserted for a purpose, and for but one purpose, viz., to indicate that it is optional with the landlord, after serving a five-day notice, to consider the lease still in force, or ended, as he sees fit.

Plaintiff had committed a breach of one of the covenants of the lease. The landlord had called his attention to the breach and warned him, by serving said notice, that unless said breach was corrected, he (the landlord) could consider the lease ended.

Under the contention of the plaintiff, not only could the tenant commit a breach, but he could use that breach to compel a forfeiture, thereby taking advantage of his own wrong. Such a forfeiture is no more favored in law than is a forfeiture by the landlord against the tenant. '

In support of his contention, plaintiff cites Wm. J. Lemp Brewing Co. v. Lonergan, 72 Ill. App. 223. This case, however, refers to Dickenson v. Petrie, 38 Ill. App. 155, as holding to the contrary.

After a careful examination of section 8 of our Landlord and Tenant Act, supra, we are impelled to' adopt the reasoning set forth in Dickenson v. Petrie, supra, and to hold that under said section it is the privilege of the landlord, after serving the five-day notice followed by the tenant’s noncompliance, to say whether or not he wishes to forfeit the lease, and'to bring forcible entry and detainer proceedings or an action in ejectment; His election to do either would be an affirmative act showing that he considered the lease ended. Until an act is performed by the landlord in pursuance to said notice, which could be regarded as an election to consider the tenancy ended, the tenant has no right to vacate the premises; therefore, the act of plaintiff in vacating the premises, whether he did so on October 21st or later, must be regarded as an abandonment thereof.

In this view of the case, the only question that remains for the court to determine is whether or not the damages sustained by defendant because of said abandonment were greater than the amount deposited by plaintiff with defendant to secure the faithful performance of the covenants of the lease.

For the reasons hereinabove assigned, the judgment will be reversed and the cause remanded for further proceedings not inconsistent with the views hereinabove expressed.

Reversed and remanded.


text:
    Augusta Voelkner, Plaintiff in Error, v. Louis A. Ott et al., Defendants in Error.
    Gen. No. 20,524.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Feed C. Hill, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed January 27, 1916.
    Statement of the Case.
    Action by Augusta Voelkner, plaintiff, against Louis A. Ott, Mabel C. Ott, Henry Shrik and Lucy Shrik, defendants, in the Municipal Court of Chicago, to recover on a promissory note. To reverse a judgment for defendants, plaintiff prosecutes this writ of error.
    On July 18, 1911, the Shriks owned certain realty, upon which a loan of $3,000 was negotiated by John P. Foerster & Company, mortgage bankers. The Shriks executed a principal promissory note of $3,000, due in five years, with interest semiannually at six per cent, per annum, and evidenced by ten interest notes or coupons. All were made payable to and indorsed by the makers, and provided that unless otherwise specified in writing by the holder, they should be payable at the office of John P. Foerster & Company, Chicago.
    On May 16, 1912, the Shriks sold the real estate to the Otts, subject to the incumbrance of $3,000.
    The evidence further showed that during December, 1913, the Shriks received notice from John P. Foerster & Company that interest coupon No. 5 for $90 would be due January 18, 1914; that on January 6, 1914, one Thies, a brother-in-law of defendant Louis Ott, paid the cashier of John P. Foerster & Company $90 to take up the interest coupon; that the cashier stated that the note had not yet been received, but he gave him a receipt in the following form:
    “No. 468.
    Chicago, Jan. 6,1914.
    “Received of Louis A. Ott, $90.00 in payment of his interest coupon due January 18, 1914, same to be can-celled and mailed as soon as received by us.
    John P. Foerster & Go.,

    By U. M. Foerster.”
    that on January 9,1912, John P. Foerster & Company were forced into involuntary bankruptcy and did not pay the $90 to plaintiff; that the interest coupon, at the time payment was made by the Otts, and since then, was in possession of the plaintiff.
    The evidence further showed that prior to this payment, four other interest coupons had matured and were paid to John P. Foerster & Company in a similar manner. All of said interest coupons were stamped across the face with the words, “Paid, John P. Foerster & Company,” and the respective dates upon which payments were made.
    It also appeared that counsel for the plaintiff were also counsel for John P. Foerster & Company in the bankruptcy proceedings, and that the claim of plaintiff’s, based upon this same interest coupon, was proved in bankruptcy.

      Abstract of the Decision.
    1. Principal and agent, § 134

      —when agent no authority to receive payment of debt before maturity. Authority to an agent to receive payment of a debt is not of itself authority to receive payment thereof before maturity.
    2. Principal and agent, § 134

      —when usage validates act of agent in receiving payment of debt before maturity. Where a known usage of trade or course of business in a particular employment extends the ordinary scope of the authority of one authorized to receive payment of a debt, such usage or course of business may be held to give validity to the act of such agent in receiving payment of the debt before maturity.
    3. Principal and agent, § 8

      —when evidence sufficient to sustain finding that payment of note made to duly authorized agents. In an action to recover on an interest coupon note which was paid to brokers, evidence held sufficient to sustain a finding that payment was made to duly authorized agents of the plaintiff.
    4. Bills and notes, § 378

      —when possession of notes by holder merely presumptive evidence of nonpayment. The possession of notes by the holder is merely presumptive and not controlling evidence of their nonpayment, and such evidence may always be overcome by clear proof that the notes were in fact paid to a person having authority to receive payment.
    The case was tried by the court without a jury, and the court found for defendant.
    Caswell & Healy, for plaintiff in error.
    Frank F. Tollkuehn, for defendants in error.

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

   Mr. Presiding Justice Pam

delivered the opinion of the court.