text:
    Josiah Burnham, Defendant in Error, v. Willis P. Dickinson, Plaintiff in Error.
    Gen. No. 20,451.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Joseph S. La Buy, Judge, presiding. Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed March 8, 1915.
    Rehearing denied March 22, 1915.
    Statement of the Case.
    Action by Josiah Burnham against Willis P. Dickinson for professional services rendered as a lawyer. From a judgment for two hundred dollars against defendant in favor of plaintiff, defendant brings error.
    Plaintiff’s claim was for legal services rendered in prosecuting a writ of error in the Appellate Court to reverse a judgment recovered by O’Brien against .the Concord Apartment House Company and in prosecuting an appeal in that case to the Supreme Court. Plaintiff testified that after the expiration of five years from the rendering of the services defendant said to him that he would pay him the balance of his account; “that he would pay me what was due me.” Defendant contended that the claim of plaintiff for the services in question was paid and discharged by Claney interested as a surety. Plaintiff testified that he told Claney when he made his last payment that he would let him off on payment of seventy-five dollars, as he was only interested as a surety in the appeal bond, but he would not abate a penny from the amount of his bill.
    Abstract of the Decision.
    1. Limitation of actions, § 79

      —when new promise sufficient to prevent statutory bar. In an action to recover for professional services rendered as a lawyer in prosecuting a writ of error and an appeal against a third party, evidence held sufficient to take the case out of the statute of limitations, where it appeared defendant, after the expiration of five years from the rendering of the last services, made a new promise to pay for the same.
    2. Payment, § 29*—insufficiency of evidence to establish. In an action for professional services rendered as a lawyer in prosecuting a writ of error and appeal, evidence held insufficient to show payment for such services.
    W. O. Robinson, for plaintiff in error.
    Edward T. Barnard, 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.


source: Caselaw Access Project

author: Mr. Justice Baker

license: Public Domain

text:
    Taufick N. Kotite and Naman S. Farhood, trading as Kotite & Farhood, Defendants in Error, v. The Title Guaranty & Surety Company, Plaintiff in Error.
    Gen. No. 20,515.
    1. Appeal and ebbob, § 1870

      —ineffectiveness of delivery of property to execution debtor to release surety on stay bond. Where under the Municipal Court Act, sec. 23, par. 1 (J. & A. j[ 3335), a judgment debtor files a stay of execution bond, conditioned for the prosecution of a writ of error with effect, and to pay the amount of the judgment, costs, interest and damages rendered and to be rendered in case of affirmance, held that the fact that the bailiff on the filing of the bond delivered property levied upon to the execution defendant did not release the surety.
    2. Appeal and ebbob, § 1859*—when surety is estopped to deny binding effect of stay bond. In an action upon a stay bond used by a judgment debtor to procure a review in the Appellate Court of a judgment against him, the principal and his surety are estopped from denying the binding character of the obligation.
    3. Appeal and ebbob, § 1852*—sufficiency of consideration for stay bond. A stay bond on an execution given to secure the review of a judgment in a higher court is supported by a sufficient legal consideration, the execution of the bond not being contrary to statute or the policy of the law.
    4. Appeal and ebbob, § 1850*-—when validity of statute cannot be raised. Where a stay bond is given under the Municipal Court Act, see. 23, par. 1, (J. & A. ¶ 3335), to review a judgment by a judgment debtor in an action on a bond, the surety cannot raise the question of the unconstitiitionality of the statute.
    5. Municipal Coubt of Chicago, § 13*—when judgment may be entered on striking affidavit of defense. Where an affidavit of merits filed in the Municipal Court fails to state a good defense to an action, the proper procedure is to strike the affidavit from the record and to enter judgment on the plaintiff’s affidavit of claim as in case of default.
    6. Costs, § 8*—when damages permissible for prosecution of writ of error for delay. Where a writ of error is prosecuted for delay, the Appellate Court may affirm the judgment with an assessment of damages and costs.

      Error to the Municipal Court of Chicago; the Hon. James C. Marten, Judge, presiding. Heard in this court at the October term, 1914.
    Affirmed with damages and costs.
    Opinion filed March 8, 1915.
    George D. Kimball, for plaintiff in error; Francis E. Hinckley, of counsel.
    Harry J. Myerson and Don C. Wray, for defendants 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.

Plaintiffs Kotite and Farhood recovered a judgment in the Municipal Court against one Gazelle for $297.55 and costs April 11, 1912. Gazelle then gave a stay bond with the defendant as surety in the penal sum of $500, conditioned that if Gazelle “shall duly prosecute said writ of error with effect, and moreover pay the amount of the judgment, costs, interest and damages rendered, and to be rendered, against him in case the said judgment shall be affirmed in said Appellate Court, then the above obligation to be void, otherwise to remain in full force and virtue.” The judgment against Gazelle was affirmed by this court February 2, 1914. This action was then brought against plaintiff in error, the surety in the bond, and plaintiff had judgment for $342.30. The only ground of reversal argued in the brief of plaintiff in error is that the surety was released from the obligation because the bailiff, on the filing of the stay bond, delivered possession of the property levied on to the defendant in the execution. We think it was the duty of the bailiff to return the property to the judgment debtor when the stay bond was given. Paragraph 1 of section 23 of the Municipal Court Act (J. & A. K 3335) provides that a party who may desire to obtain a review of a judgment and also desires a stay of execution may obtain a stay of execution for ninety days by the giving of a bond with surety conditional for the prosecution of such writ of error, and otherwise as near as may be as an appeal bond in case of an appeal from a judgment of a Circuit Court.

The judgment debtor used the bond here sued on to procure a review by this court of the judgment against him, and the surety by joining in the bond enabled him to do so, and having obtained all the benefit of the bond, they should be estopped from denying that it is a binding obligation.

Mix v. People, 86 Ill. 329, where it was said:

“The bond was voluntarily executed. It was executed in consideration of the appeal, and the effect of the appeal was to stay proceedings on the judgment. This was a sufficient legal consideration; and, since the execution of the bond was neither prohibited by statute nor is contrary to the policy of the law, it is a good common law obligation. As we said in Courson v. Browning, 78 Ill. 210, Mix ‘used this appeal bond to procure a trial in this court, and his security enabled him to do so by joining in its execution; and, having obtained all the benefits of the bond, they should be estopped from denying that it is a binding obligation, unless it contravenes some statute or some rule of public policy, neither of which was done by the execution of this bond. ’ ”

See also Meserve v. Clark, 115 Ill. 580; Daniels v. Tearney, 102 U. S. 415.

The case is not one where the plaintiff in the execution releases property levied on. Admitting that the law providing for the giving of a stay bond is unconstitutional, the plaintiff in error cannot aver its ixnconconstitutionality as a defense. Mix v. People and Daniels v. Tearney, supra.

Our conclusion is that the amended affidavit of defense fails to show a defense to the action and was properly stricken from the record and judgment entered on plaintiff’s affidavit of claim as in case of default. We further think that this writ of error is prosecuted for delay.

The judgment is affirmed with $22 damages and costs.

Affirmed with damages and costs.


text:
    City of Chicago, Defendant in Error, v. Charles Montgomery, Plaintiff in Error.
    Gen. No. 20,536.
    1. Druggists, § 6

      —when burden of showing sale of cocaine not unlawful on defendant. In a proceeding under Chicago Code of 1911, sec. 808, for the sale of cocaine, the burden of proving that the sale was within the exception of the provision because made upon a physician’s prescription is upon the defendant.
    2. Municipal Court op Chicago, § 13*—when error in complaint in quasi criminal case not ground for reversal. A proceeding under Chicago Code of 1911, sec. 808, is a quasi criminal case belonging to the fifth class, in which no written pleadings are necessary, and a typographical error in the complaint in stating the year in which the sale was made as “194” instead of “1914” is not ground for reversal, where the evidence shows that the sale was made in 1914 and objection on the ground of variance was made at the trial.
    Error to the Municipal Court of Chicago; the Hon. Harry M. Fisher, Judge, presiding. Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed March 8, 1915.
    Edward H. Morris, for plaintiff in error.
    John W. Beckwith and Albert J. W. Appell, for defendant in error; Ulysses S. Schwartz, of counsel.

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

   Mr. Justice Baker

delivered the opinion of the court.

This writ of error brings in review a judgment for one hundred and fifty dollars against plaintiff in error, Charles Montgomery, for a violation of section 808 of .the Chicago Code of 1911, which is as-follows:

“Sec. 808. No druggist or other person shall sell or give away any morphine, cocaine, alpha or beta eucaine, chloral hydrate, or any salt or compound or derivative of any of the foregoing substances, or any substance, preparation or compound containing any of the foregoing substances, or any of their salts or compounds or derivatives, except upon the written prescription of a duly registered physician.

Any person who shall violate any of the provisions of this section shall he fined not less than fifty dollars nor more than two hundred dollars for each offense. ’

The contention of plaintiff in error is that the burden was on the defendant to prove that the.sale of cocaine was made without a written prescription signed by a duly registered physician, and that the evidence failed to prove that the sale was made without such prescription. This contention cannot be sustained. The burden of proof was on the defendant to show that the sale was within the exception stated in the ordinance —not on the plaintiff to show that it was not within such exception. The Dramshop Act of this State provides that:

“Whoever, by himself, or his ag’ent or servant, shall sell of give intoxicating liquor to any minor without the written order of his parent, guardian or family physician, * * * shall be fined not less than twenty dollars,” etc. (J. & A. ¶ 4605).

In prosecutions under this act it was held in the following cases that when a sale is shown by the prosecution, the burden is shifted upon the accused to show that the sale proven was' made on the written order of the parent, guardian or family physician; Birr v. People, 113 Ill. 645; Harbaugh v. City of Monmouth, 74 Ill. 367. See also, State v. Clinkenbeard, 142 Mo. App. 146; State v. Elam, 21 Mo. App. 291; State v. Miller, 24 Conn. 522; Shelp v. U. S., 26 C. C. A. 570, 81 Fed. 694.

People v. Hustion, 178 Ill. App. 293, does not support the contention of plaintiff in error. That was a criminal prosecution. The information charged the sale of cocaine to a certain person without such person “having in his possession a written prescription signed by a duly registered physician. ’ ’ The statute did not require that the person purchasing the cocaine should have the prescription in his possession, and the court held that the information did not therefore set out an offense. In this case the burden of proof was on the defendant to show that the sale of cocaine was within the exception stated in the ordinance.

The court did not err in refusing to strike plaintiff’s statement of claim. Quasi criminal cases belong to the fifth class, and cases of that class are determined without written pleadings. Municipal Court Act. sec. 2, par. 5, and section 3 (J. & A. ¶¶ 3314, 3315); Hopkins v. Levandowski, 250 Ill. 372.

The manifest mistake in alleging in the complaint that the sale was made March 23, “194,” is no ground for reversal. No written complaint was necessary. The evidence shows that the sale was made March 23, 1914, and no objection on the ground of variance was made on the trial, and such typographical errors are hot ground for reversal. Russell v. Brown, 41 Ill. 183.

We find no error in the record and the judgment is affirmed.

Affirmed.


text:
    George L. Williams, Appellee, v. Assets Adjustment Company, Appellant.
    Gen. No. 20,562.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. John M. O’Connor, Judge, presiding. Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed March 8, 1915,
    Rehearing denied March 22, 1915.
    Statement of the Case.
    Bill by George L. Williams against Assets Adjustment Company, a corporation, to compel the defendant to deliver to complainant two promissory notes made by complainant and one Osby and to enjoin defendant from disposing of said notes or attempting to collect complainant’s wages under an assignment thereof, and that his employer be directed to pay such wages to complainant.
    Abstract of the Decision.
    I. Equity, § 295

      —when filing of replication waived. When the record does not show that a cause was formally set for hearing on the bill and answer, and it was heard on bill, answer and proofs, the filing of a replication is waived.
    2. Trim,, § 13*—when cam.se treated as at issue. Where, after a hearing on the bill answer and proofs taken in court, defendant’s attorney gives notice that he will ask that the cause be set down for rehearing and for leave to introduce evidence for defendant, ke treats the cause at issue.
    3. Equity, § 366*—when cause treated as heard on hill and answer. A cause will be treated as heard on bill and answer only when the decree shows that it was so heard or the record shows that the defendant gave complainant notice of the filing of his answer.
    4. Equity, § 207*—what effect of waiver of replication. When the replication is waived, the findings of the decree are taken as true on appeal, and the decree will be affirmed if the findings of fact are sufficient to support it.
    From a decree granting the relief sought which recited that the cause was heard on the bill, the answer and the proofs taken in court, the defendant not appearing by counsel or otherwise, defendant appeals.
    Julian C. Ryer, for appellant.
    H. C. Dawson, for appellee.

      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.


text:
    Charles Branderslev, Plaintiff in Error, v. Anna Branderslev, Defendant in Error.
    Gen. No. 20,585.
    (Not to be reported in full.)
    Abstract of the Decision.
    Divobce, § 45

      —when evidence sufficient to warrant dismissal of "bill for divorce on ground of impotency. Evidence in suit for divorce on the ground of impotency examined and held to warrant a dismissal of the hill for want of equity.
    Error to the Circuit Court of Cook county;, the Hon. Thomas G. Windes, Judge, presiding. Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed March 8, 1915.
    Statement of the Case.
    Bill by Charles Branderslev against Anna Branderslev, for divorce on the ground of impotency 1
    The evidence shows that defendant’s left hip joint is fixed whereby it is impossible for the parties to have sexual intercourse in the natural and normal way, but that by lying in a certain attitude, complete intercourse could be had. Defendant testified that her hymen had been ruptured by intercourse with complainant and the medical evidence showed the existence of the rupture.
    From a decree dismissing the bill for want of equity, •complainant appeals.
    McMahon & Cheney and J. Walter Nielsen, for plaintiff in error
    Hugh O’Neill, 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.


text:
    Sanitary Hair Goods Company, Plaintiff in Error, v. John G. Elliott, Defendant in Error.
    Gen. No. 20,593.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Attorney and client, § 81

      —when burden of proof is on client charging attorney with negligence and fraud. Where an action is brought against an attorney to recover fees paid him, on the ground that he was guilty of negligence and fraudulent conduct in prosecuting litigation for plaintiff, the burden is on plaintiff to establish such negligence and fraud, and the evidence examined and held that the burden was not sustained.
    2. Attorney and client, § 81*—what good faith and diligence owed to client. All that an attorney owes his client is good faith and reasonable skill and diligence in the prosecution of the case.
    Error to the Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding. Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed March 8, 1915.
    Statement of the Case.
    Action by Sanitary Hair Goods Company, a corporation, against John G. Elliott to recover one thousand five hundred dollars paid defendant as attorney’s fees for the prosecution of litigation for plaintiff, on the ground that defendant was negligent, unfaithful and fraudulent in conducting and prosecuting such litigation.
    To reverse the judgment on a verdict directed for defendant, plaintiff prosecutes this writ of error.
    Sidney E. Levy, Julius Limbach and George F. Ort, for plaintiff in error.
    Ashcraft & Ashcraft, for defendant in error; Charles F. Rathbun, of counsel.

      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.


text:
    Lizzie G. Hastings and Catherine K. Heron, Defendants in Error, v. Henry Bigaro, Plaintiff in Error.
    Gen. No. 20,608.
    Landlord and tenant, § 200

      —when covenant requiring payment of taxes by tenant not broken. A lease cannot be forfeited on the ground of the failure of the tenant to comply with covenant therein that he shall pay the current taxes, where he pays such taxes before any attempt is made to enforce any personal liability against the owner of the property or his assigns, although the taxes were not paid until after they had become delinquent and were bearing interest.
    Error to the Municipal Court of Chicago; the Hon. Robert H. Scott, Judge, presiding. Heard in this court at the October term, 1914.
    Reversed with judgment here.
    Opinion filed March 8, 1915.
    Statement by the Court. This writ of error brings in review a judgment for the possession of certain premises recovered by plaintiffs Hastings and Heron against 'defendant Bigaro in an action of forcible detainer in the Municipal Court. Hudson demised by written lease the premises in question to defendant for a term of ten years from April, 1911, at a rental of $16.67 per month, payable in advance on the first day of each month. The lease contains a covenant by the lessee to pay in addition to the rent specified ‘‘ current general taxes” on the demised premises. Hudson assigned the lease to the plaintiffs. The plaintiffs put in evidence a notice in writing signed by them to defendant, wherein they state that owing to the defendant’s failure to pay “all general taxes” for the year 1913 on the demised premises on or before the first day of May, 1914, defendant’s lease “was forfeited Ibis 29th day of May, 1914,” and possession of the demised premises is demanded “within two days from this 1st day of June, A. D..1911.” The evidence does not show when this notice was served. Defendant sent plaintiffs a check for the June, 1914, rent, which they received June 1st and retained but did not deposit the same for collection. On the same day defendant paid the general taxes for 1913 on the demised premises, amounting to $492.23.
    Otto G. Knecht, for plaintiff in error.
    John Heron, for defendants in error.

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

   Mr. Justice Baker

delivered the opinion of the court.

The only question we deem it necessary to consider is as to the right of the plaintiffs to forfeit the lease May 29,1914, for defendant’s failure to pay, up to that time, the general taxes of 1913. Those taxes became a lien April 1, 1913. They became delinquent March 10, 1914. From May 1st the taxes bore interest at the rate of one per cent, per month. The statute provides that application for judgment and order of sale for taxes on delinquent lands and lots shall be made at the June term of the County Court. Section 189 of chapter 120, R. S. (J. & A. ¶ 9408) provides that the owner of any lot upon which judgment is prayed may pay the ‘ taxes, special assessments, interest and costs due thereon to the county collector at any time before sale.” Section 203 (J. & A. ¶ 9422) provides that when a lot is offered for sale and there is no bidder, it shall be forfeited to the State.

In McFarlane v. Williams, 107 Ill. 33, it was said by Mr. Justice Scholfield:

“The taxes were to be paid when due, and this is fixed by law. They must be paid so as to avoid a sale of the property for their non-payment, or the enforcement of any personal liability against the lessor on account thereof.”

Here there could be no sale of the lot in question for taxes until after the second Monday of June, 1914. The statute in terms provides that the owner may pay the taxes at any time before sale. There was. no attempt to enforce any personal liability against the owner of the lots, the lessor or his assigns. The fact that the taxes bear interest after May 1st is not, in our opinion, material to the inquiry as to when the plaintiffs could forfeit the lease for the failure of the lessee to pay the taxes. We think that under the rule stated in McFarlane v. Williams, supra, in the absence of any attempt to enforce the personal liability of the owner of the premises or his assigns, the lessee could pay. the taxes at any time before sale, and that the lessor or his assigns could not forfeit the lease for failure to pay taxes before sale.

It follows from what has been said that in our opinion the judgment should have been a judgment of nil capiat, and the judgment is reversed and a judgment of nil capiat entered here and for the costs in this court and in the Municipal Court.

Reversed with judgment here.


text:
    Harry W. Craven, trading as The Hollister Drug Company, Defendant in Error, v. Stone Store & Office Fixture Company, Plaintiff in Error.
    Gen. No. 20,640.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Henry C. Beitler, Judge, presiding. Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed March 8, 1915.
    Statement of the Case.
    Action by Harry W. Craven, trading as The Hollister Drug Company, against Stone Store & Office Fixture Company to recover $105, the amount paid by plaintiff to defendant for certain goods.
    Abstract of the Decision.
    1. Sales, § 124

      —when reasonable time for delivery a question of fact. In an action by a purchaser to recover the purchase price of goods, where it appears that he had bought them on November 13,1913, the defendant stating that they would be shipped in a week, and that on February 18, 1914, plaintiff informed defendant that if they had not been shipped he did not wish them, the question whether a reasonable time for the delivery had elapsed before the countermand is one of fact.

      The evidence showed that the goods were purchased at an agreed price of $105 on September 13, 1913, and that defendant stated that they would be shipped to him in Idaho in a week; that plaintiff paid $30 on account; that in November, 1913, or February, 1914, the remainder of the contract price was paid on the representation that the payment was necessary in order to secure from the forwarding company a rate less than the railroad rate; that in reply to plaintiff’s inquiry on February 18,1914, defendant informed him that the goods had been shipped; that plaintiff at the time told the defendant that if they had not been shipped he did not wish them, and was again informed that they had been shipped; that he requested the invoice and was told it had been mislaid; that the goods were not delivered to the forwarding company until February 19, 1914, that on February 19, 1914, defendant, after having asked for the invoice, was told it had been sent to Idaho; that thereafter he found the goods in the possession of the forwarding company and directed that they be not shipped.
    To reverse a judgment for plaintiff for $105, defendant prosecutes this writ of error.
    Blum & Blum, for plaintiff in error.
    Elmer M. Liessmann, for defendant in error.

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

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

   Mr. Justice Baker

delivered the opinion of the court.

2. Sales, § 128 —what delivery not sufficient to vest title in purchaser. The delivery of goods by the seller to a forwarding company to be shipped to the purchaser does not vest title in the purchaser, where such delivery is not made in a reasonable time.

3. Sales, § 117*—when demand not necessary in action to recover hack purchase price. In an action to rescind a contract and recover the purchase price, where the goods were not delivered! in a reasonable time, no demand is prerequisite. '

4. Contracts, § 261*—when evidence sufficient to show right to rescind. Evidence examined and held to show that plaintiff had the right to rescind and did rescind before bringing an action to recover the purchase price paid for goods.


text:
    P. R. Quinlan, Defendant in Error, v. The Almini Company, Plaintiff in Error.
    Gen. No. 20,654.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Joseph P. Rafferty, Judge, presiding. Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed March 8, 1915.
    Rehearing denied March 22, 1915.
    Statement of the Case.
    Action by P. E. Quinlan against The Almini Company, a corporation, to recover a balance of $68.05 for flowers purchased by defendant.
    The facts showed that the flowers were purchased on October 1, 1912, by one Hahn, who was the manager of a branch of the original Almini Company, for the carrying out of a contract which his company had in the city in which the branch was located.

      Abstract of the Decision.
    1. Corporations, § 380

      —when evidence sufficient to show ratification of act of agent. In an action against a corporation to recover the purchase price of flowers bought by an agent of its predecessor to fulfil a contract which such predecessor had for the decoration of a hotel, evidence of one who was the president of the predecessor when the contract was made that the agent had made the contract for the decorating, that he had authority to buy what wa.s necessary to fulfil the contract and that the principal office of the predecessor had received payment from the hotel under the contract of the agent, is sufficient to show that the purchase by the agent had been ratified by his principal.
    2. Corporations, § 597*—when debt assumed hy succeeding corporation. Where the holders of all the stock of a succeeding corporation agree to assume all the debts incurred by a branch of its predecessor before October 1, 1912, and that a third person should assume the debts incurred after that date, a debt incurred by such branch on October 1, 1912, is assumed by the corporation.

      There was evidence that the charter, of the defendant states that it “is formed for the purpose of continuing and taking over one of the same name.” The evidence also showed that the president of the defendant, who owned seventy-four per cent, of its stock, was also president of the original company. It was also shown that by an agreement between the three stockholders owning all of the stock in defendant, made February 17,1913, it was recited that the original company was owner of the goods, accounts, etc., in the branch store and it was agreed that defendant should pay the debts incurred by the branch store before October 1,1912, and that Hahn should assume those incurred thereafter.
    To reverse a judgment for plaintiff for $68.05, defendant prosecutes this writ of error.
    George W. Wilbur, 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.

      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.

3. Corporations, § 597 —where evidence sufficient to show succession to another corporation. Evidence which shows the identity of name of a second corporation with a first, that the second had the same president as the first, that it carried on a business of the same character as the first and by agreement of the stockholders took the goods, accounts, etc., and assumed the debts of a branch of the first from a certain date, and that the charter of the second recited that it was “formed for the purpose of continuing and taking over one of the same name,” is sufficient to warrant a finding that the second was a successor of the first.

4. Corporations, § 325*—when contract intra vires. Where the charter of a corporation authorizes it to carry on all kinds of interior decorations, it may if necessary to complete a contract for decorating, buy flowers to be used for that purpose.


text:
    Simon Lukasik, Appellee, v. International Harvester Company et al., on appeal of International Harvester Company, Appellant.
    Gen. No. 20,692.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Mazzini Slusser, Judge, presiding. Heard in this court at the October term, 1914.
    Reversed with finding of facts.
    Opinion filed March 8, 1915.
    Rehearing denied March 22, 1915.
    Statement of the Case.
    Action on the case by Simon Lukasik against International Harvester Company and others for alleged negligence whereby plaintiff, who was in defendant’s employ, sustained a personal injury.
    The declaration; in a single count, averred that the defendant was engaged in the manufacture of harves
      ters; that plaintiff was in its service; that defendant negligently failed to provide a sufficient number of competent servants to assist the plaintiff in rolling and placing a certain wheel, and negligently ordered the plaintiff and one other servant to take the wheel, which was large and heavy, and roll, it from the workshop and place it up against other wheels in defendant’s yard, all of which dangerous and unsafe, condition was known to the defendant, or by the exercise of reasonable care could have been known to it, and was not known to the plaintiff, nor by the exercise of reasonable care could he have known it; that in consequence, when the foreman of defendant ordered plaintiff to take the wheel from the shop and place it against other wheels in the yard, and when plaintiff and one other servant of the defendant took the wheel and rolled it out of the workshop and up to where such other wheels were stacked and attempted to let the wheel down to rest against the other wheels, owing to the great weight of the wheel they were unable to hold the wheel and it fell, slipped and glided upon the plaintiff’s foot and leg, and the narrowness of the place hindered and prevented the plaintiff from getting out of the way of the falling wheel, whereby plaintiff was injured.
    From the evidence it appeared that the wheel plaintiff and the other man were ordered to take from the shop was a fly wheel that had been rejected, and weighed about 1,000 pounds. Rejected gear wheels of about the same weight had been taken from the shop to the platform by plaintiff and another man. The difference between the two kinds of wheels was that the gear wheels had teeth or cogs in the surface of the rim, while fly wheels were smooth. In both kinds of wheels a hub projected from the wheel two or three inches. There was an abundance of wall space in the yards, but five or six wheels were placed one in front of another just outside the door of the shop. The first wheel was so placed as to lean against the wall and the second so as to lean against the first, and so on to the sixth. Because of the projecting hubs it was necessary to place the rim of a wheel some little distance from the wheel against which it was to lean, and necessarily the angle of inclination increased with each wheel so placed. It was not alleged in the declaration that the wheels were negligently or improperly placed, but only that owing to the great weight of the wheel which plaintiff and the other man were attempting to put in place they were unable to hold the wheel and it fell on plaintiff’s foot and injured him. Plaintiff contended that defendant was guilty of negligence in not furnishing one or more additional men to assist in placing the wheel.
    Abstract of the Decision.
    1. Master and servant, § 347

       -—when servant assumes risk of known danger. In an action by a servant for injuries alleged to have been caused by the master’s failure to furnish sufficient assistance to the servant to aid him in his work of moving a fly wheel whereby the wheel fell and inflicted the injury complained of, where the evidence shows that plaintiff had previously moved similar wheels, that he knew the character and weight of such wheels and the strength and efficiency of the employee who was assisting him, he will be held to have assumed the risk of the injury.
    From a judgment for plaintiff for five hundred dollars, defendant International Harvester Company appeals.
    David A. Orebaugh, for appellant; Edgar A. Bancroft, of counsel.
    S. P. Douthart and Guerin & Barrett, for appellee.

      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.

2. Master and servant, § 537*-—when failure to inspect cannot be urged when not alleged in declaration. In an action by a servant against a master to recover for personal injuries, where the declaration does not allege any failure of the master to inspect, plaintiff cannot contend that defendant 'was negligent in that regard.


text:
    Max Luster, Plaintiff in Error, v. Arthur Steingard, Defendant in Error.
    Gen. No. 20,710.
    (Not to be reported in full.)
    Abstract of the Decision.
    Attorney and client, § 133

      —when burden on defendant to show negligence in action by attorney for services. In an action by an attorney to recover for services rendered in defending an action against defendant, where the defense is plaintiff’s negligence, the burden of showing such negligence is on defendant; and where no evidence of negligence is offered, but the jury finds a verdict for defendant, plaintiff’s motion for a new trial should be granted.
    Error to the Municipal Court of Chicago; the Hon. Hugh X Kearns, Judge, presiding. Heard in this court at the October term, 1914.
    Reversed and remanded.
    Opinion filed March 8, 1915.
    Statement of the Case.
    Action by Max Luster against Arthur Steingard to recover for services rendered in defending an action against defendant.
    To reverse a judgment for defendant for two thousand dollars on the verdict of the jury, plaintiff prosecutes this writ of error.
    Ernest C. Reniff, for plaintiff in error.
    No appearance for defendant in error

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

   Mr. Justice Baker

delivered the opinion of the court.


text:
    Antonio Mennella for use of Joe Mennella, Defendant in Error, v. Michael Bottigliero, Plaintiff in Error.
    Gen. No. 20,740.
    1. Garnishment, § 9

      -—when record on writ of error insufficient for failure to show judgment and return of execution. On a writ of error by a garnishee, the judgment will be reversed where there is no evidence in the record of a judgment against the nominal plaintiff or of the issue of an execution and the return thereof by the proper officer, “no property found.”
    2. Appeal and error, § 13*—when sufficiency of evidence to support judgment reviewable on writ of error to reverse judgment against garnishee. Section 81 of the Practice Act as amended by the Act of May 31, 1911 (J. & A. IT 8618), does not prevent the Appellate Court from reviewing, on a writ of error to reverse a judgment against a garnishee, the sufficiency of the evidence to support the judgment, where the stenographic report shows that defendant submitted to the court the question whether, on the evidence, plaintiff was entitled to judgment against him, even though there was no formal exception to the judgment.
    Error to the Municipal Court of Chicago; the Hon. John K. • Prindiville, Judge, presiding. Heard in this court at the October term, 1914.
    Reversed and remanded.
    Opinion filed March 8, 1915.
    Rehearing denied and opinion modified March 22, 1915.
    Morgan, McFarland & Goodman, for plaintiff in error; James H. McFarland, of counsel.
    Blum & Blum, 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.

In an action in garnishment in the Municipal Court hy Mennella, plaintiff, against Bottigliero as garnishee, tried hy the court without a jury, plaintiff had judgment for $862 and the garnishee sued out this writ of error. There is in the record what is certified by the trial judge to be a “full, true and correct stenographic report of all the evidence introduced or offered and of all the proceedings in the cause.” There is no evidence in the record of a judgment against the nominal plaintiff or of the issue of an execution and the return thereof by the proper officer, “no property found.” As was said by Mr. Justice Adams in Farnum v. North Chicago Safety Deposit Vault Co., 97 Ill. App. 439,. after quoting section 1, chap. 62, R. S. (J. & A. ¶ 5936).

‘‘ The proceeding is statutory and can not be extended beyond the plain provisions of the statute.” Illinois Cent. R. Co. v. Weaver, 54 Ill. 319; Webster v. Steele, 75 Ill. 544, 546; Bartell v. Bauman, 12 Ill. App. 450; Netter v. Board of Trade, 12 Ill. App. 607; Drake on Attachments (5th Ed.) 451a. “By the statute quoted supra, it is clearly necessary that before process of garnishment on a judgment can legally issue there shall be a return of the execution issued on the judgment, ‘no property found.’ ”

Defendant in error does not controvert the rule that to maintain a proceeding in garnishment it is incumbent on the plaintiff to prove a judgment and the issue and return of an execution “no property found,” but contends that as the record shows no exception to the judgment by the garnishee, the question of the sufficiency of the evidence to support the judgment cannot now be inquired into by this court. This was the rule prior to the amendment to the Practice Act, which took effect July 1,1911. Blake v. De Jonghe Hotel & Restaurant Co., 263 Ill. 471; Lassers v. North-German Lloyd Steamship Co., 244 Ill. 570; Climax Tag Co. v. American Tag Co., 234 Ill. 179.

The stenographic report not showing an exception to the judgment in the present case, the question whether we can consider the question whether the evidence is sufficient to support the judgment depends on the Amendment of' 1911 to section 81 of the Practice Act (J. & A. ¶ 8618), for if we can consider that question we can do so only under and by virtue of such amendment. In the Amendment to section 81 of the Practice Act approved May 31, 1911, the following new clause appeared as the first clause of the section:

“If, during the progress of any trial in any civil or criminal cause, either party shall submit to the court any matter for a ruling thereon and the court shall rule adversely to the party submitting the same, such ruling shall be deemed a matter for review in any court to which the same cause may be thereafter taken upon appeal or by writ of error without formal exception thereto, and after judgment, at any time during the term of the court at which judgment was entered or within such time thereafter as shall, during such term, ■be fixed by the court, any party desiring to prosecute a writ of error to or appeal from any such judgment, may submit to the court a stenographic report of the trial containing the evidence and the rulings of the •court upon all or any of the questions submitted to and ruled upon by the judge thereof, and he shall examine the same, and, if correct, officially certify to the correctness of such report, and the same shall thereupon be filed in said court and become a part of the record in said cause, and all matters and things contained in such stenographic report shall become as effectually a part of said record as if duly certified in a formal bill or hills of exceptions, or * *

The record in the present case contains a stenographic report, and the question whether we may review the evidence in the absence of a formal exception to the judgment in a case where there is a bill of exceptions and not a stenographic report, is not before us. The stenographic report states that the plaintiff to maintain the issues on his part introduced certain evidence; that the defendant to maintain the issues on his part introduced certain evidence; and that when defendant rested, the court gave judgment for the plaintiff. This shows that the defendant submitted to the court the question whether on the evidence the plaintiff was entitled to judgment against him, and that the court on that matter ruled adversely to the defendant. We think that under the statute above quoted the ruling of the court on the question so submitted to it was a matter of review by this court without any formal exception to the judgment. Some of the questions here presented are involved in the following cases: Photo Cines Co. v. American Film Mfg. Co., 190 Ill. App. 124; Miller v. Anderson, 189 Ill. App. 72; Meek v. Chicago Rys. Co., 183 Ill. App. 256.

The evidence touching the question whether the garnishee had any funds in his hands due to the nominal plaintiff is conflicting and unsatisfactory; but as the judgment must be reversed for want of evidence of the judgment and the return of execution “no property found,” it is not necessary for us to decide whether the evidence shows or fails to show any money due to the nominal plaintiff from the garnishee.

For the reason indicated the judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    John Abhau and Herbert Whittaker, Appellees, v. James E. Grassie, Trustee, and James E. Grassie, Individually, Appellant.
    Gen. No. 20,751.
    1. Mechanics’ liens, § 196

      —when evidence sufficient to support findings of master. Evidence in proceeding to enforce mechanic’s lien held to support findings of master.
    2. Mechanics’ liens, § 128*—how far mortgage lien preferred. Under section 16 of the Lien Act (J. & A. If 7154) a prior mortgage lien is entitled to preference to the extent of the value of the land at the time of the making of the contract, the mechanic’s lien creditor being preferred to the value of the improvements erected on the premises.

      Appeal from the Superior Court of Cook county; the Hon. William E. Dever, Judge, presiding. Heard in this court at the October term, 1913.
    Reversed and remanded with - directions.
    Opinion filed March 8, 1915.
    Rehearing denied March 22, 1915.
    Jule F. Brower and Samuel B. King, for appellant.
    Robert W. Dunn, for appellee John Abhau.

      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 appeal in this case was taken to the Supreme Court on the alleged grounds that section 4 of the Mechanic’s Lien Act of 1903 (J. & A. ¶ 7142) was unconstitutional and the ordinance requiring a contractor to take a contractor’s license invalid. Abhau contended on the hearing that said ordinance was invalid, but contended further that conceding its validity, the burden of proving that he had not procured such a license was on Grassie. Abhau v. Grassie, 262 Abhau v. Grassie. 636. No evidence was offered to show either that Abhau had or did not have a license.

While other lots are mentioned in the pleadings and other parties appeared in the court below, the only property involved in this appeal are Lots 24, 25 and 27 in Block 1 in Huling’s Subdivision, and the only parties now interested in the case are appellee Abhau and appellant Grassie. The amount due the intervening petitioner Whittaker is included by the decree in the amount found due Grassie, and Grassie and Whittaker are given a concurrent lien on said three lots therefor. The chancellor certified that the validity of the ordinance was in issue and that the appeal should go direct to the Supreme Court.

Section 4 of the Lien Act prescribes the conditions under which a contractor may abandon the work and enforce his lien for the value of the work done.

It was held by the Supreme Court that Ida Rahn, the owner of the premises, and Abhau, the contractor, agreed that the work be stopped; that this was not an abandonment or discontinuance of the work as those terms are used in said section 4, and that the question of the validity of the provisions of section 4 relating to abandonment or discontinuance was not involved. It was further held by the Supreme Court that the question of the existence of the license being only collaterally involved, the license will be presumed unless proof to the contrary is presented, and that the validity of the ordinance above mentioned was not involved in the case. The master by his report found that the value of the work done by Abhau on each of said Lots 24, 25 and 27 was $3,020; that the proportionate share of general payments applicable to each of said lots was $1,056.32, leaving the sum of $1,963.68 unpaid for work done on each of said lots; that the value of each of said lots at the time the work thereon was begun was $400; that each of said lots was subject to the lien of a trust deed given by Ida Rahn to Grassie as trustee to secure her note for the sum of $2200, and that Grassie is the owner of said notes. The court overruled the exceptions to the master’s report and we think the report is in accordance with the proofs. The court by the decree found that the complainant Abhau has a first lien on each of said Lots 24, 25 and 27 for $1,963.68.

The decree denies any relief to appellant Grassie under his mortgage lien on said lots.

In this we think the court erred. Under the provisions of section 16 of the Lien Act (J. & A. 7154), Grassie’s lien should be preferred to the extent of the value of the land at the time of the making of the contract, and Abhau, the lien creditor, should be preferred to the value of the improvements erected on said premises. The decree as to all other matters is affirmed.

The decree of the Superior Court is reversed and the cause remanded to that court with directions to enter a decree in accordance with the views here expressed.

Reversed and remanded with directions.


text:
    Tillie Ciemelowski, Defendant in Error, v. John Novak and Jennie DeRocher, Plaintiffs in Error.
    Gen. No. 20,767.
    1. Judgment, § 146

      —when engagement of counsel in another court not ground, for setting aside judgment by default. The fact that defendant’s counsel was engaged in another court when the case was reached for trial is not ground for setting asidé a judgment by default.
    2. Appeal and error, § 1858*—when obligors on appeal bond liable. Where the defendant in whose behalf an appeal hond is given under the Insolvent Debtors’ Act (J. & A. If 6223) fails to prosecute his appeal with effect, but permits it to be dismissed and, after the dismissal, does not appear and surrender himself into custody at the proper time, there is a breach of these conditions of the bond which renders the obligors liable on the bond for the amount of the damages sustained by the plaintiff.
    3. Appeal and error, § 1886*—what judgment on appeal bond proper. On a breach of the conditions of an appeal bond, both the surety and the principal become absolutely liable for the damages, and on a verdict for debt and damages for the plaintiff, it is proper to enter a judgment for debt and damages, the judgment for debt to be discharged on payment of judgment for damages and costs.
    Error to the Superior Court of Cook county; the Hon. Clarence N. Goodwin, Judge, presiding. Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed March 8, 1915.
    George Remus, for plaintiffs in error; Morris K. Levinson, of counsel.
    Robert F. Munsell, for defendant in error; L. J. Haigler, of counsel.

      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.

This writ of error brings in review a judgment of the Superior Court on an appeal hond given by Novak as principal and DeEoeher as surety to Ciemelowski, plaintiff, in the Superior Court. The plaintiff recovered in the Superior Court, December 21, 1912, a judgment in trespass for assault and battery against Novak and he was arrested March 7, 1913, on a ca. sa. issued on the judgment. He then filed a petition in the County Court for release under the Insolvent Debtors’ Act, his petition was denied and he prayed and was allowed an appeal on giving bond, and the bond sued on was given. Novak filed a plea of nonassumpsit and June 30, 1914, asked leave to file pleas puis darrein continuance. The next day, July 1st, when the case was reached for trial, Novak failed to appear and the trial proceeded in Ms absence and resulted in a judgment for $509.80 damages. July 16th the court denied his motion to file said pleas on the ground that neither of them stated a defense to the action.

We think the court did not err in refusing to set aside the judgment on the ground that defendant’s counsel was engaged in another court. Schultz v. Meiselbar, 144 Ill. 26.

The bond sued on is not a bail bond but an appeal bond given under the Insolvent Debtors’ Act. The condition of the bond is as follows:

“Now Therefore, if the said John Novak will prosecute his said appeal with effect and in case the appeal is dismissed, or the order or judgment of the said County Court is affirmed, in whole or in part, he will perform the same, and will appear before and abide whatever decision the said Appellate Court shall make in the premises, and pay all costs that may be awarded against him, the said John Novak, and also, that he will not sell or dispose of any of his estate pending • the order of the said County Court, then the above obligation to be void, otherwise to remain in full force and effect.”

Novak did not prosecute his appeal with effect, but permitted it to be dismissed. This was a breach of the condition of the bond. He did not, after the dismissal of his appeal, appear and surrender himself into custody at the proper time. We think that- the obligors were liable on the bond for the amount of damages sustained by the plaintiff. Strohn v. Fachet, 185 Ill. App. 127; Maher v. Huette, 89 Ill. 495.

The surety on the appeal bond, as well as the principal, became absolutely liable to the plaintiff for the damages, and the jury properly found a verdict for plaintiff for $800 debt and $509.80 damages. The court properly entered judgment on the verdict for debt and damages, judgment for debt to be discharged on payment of judgment for damages and costs, and the judgment is affirmed.

Affirmed.


author: Mr. Justice McSurely

text:
    Krause & Managan Lumber Company, Defendant in Error, v. Consolidated Adjustment Company, Plaintiff in Error.
    Gen. No. 20,369.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Chables A. Williams, Judge, presiding. Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed March 8, 1915.
    Rehearing denied March 22, 1915,
    Statement of the Case.
    Action of the fourth class in the Municipal Court of Chicago by Krause & Managan Lumber Company, a corporation, against Consolidated Adjustment Company, a corporation, on a contract substantially like those considered in Pritz v. Consolidated Adjustment Co., 189 Ill. App. 287, and Baltimore Trust Co. v. Consolidated Adjustment Co., 190 Ill. App. 30.
    The ground of recovery alleged by plaintiff is defendant’s failure to perform the service which it contracted.

      Abstract of the Decision.
    1. Courts, § 149

      —when decision in other actions on similar contracts followed. Contracts involved in Pritg v. Consolidated Adjustment Co., 189 111. App. 287, and Baltimore Trust Co. v. Consolidated Adjustment Co., 190 111. App. 30, examined and held substantially like the contract in suit and the decisions in those cases, in so far as applicable, reaffirmed.
    2. Contracts, § 323*—when default in performance warrants recovery. In an action on a contract, where the evidence justifies the finding of the jury that the defendant failed to give plaintiff the service which, under the contract, it agreed to give, whereby the object of the contract was defeated, the finding of the jury for the plaintiff will not be disturbed.
    3. Municipal Court of Chicago, § 13*—when statement of claim in fourth-class case sufficient. The statement of claim in a case of the fourth class in the Municipal Court of Chicago is sufficient if it shows the nature of the demand even though it does not designate the character of the action with technical accuracy.
    To reverse a judgment for plaintiff on the verdict of the jury, defendant prosecutes this writ of error.
    Delavan B. Cole, for plaintiff in error.
    Harry A. Brossat, for defendant in error.

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

   Mr. Justice McSurely

delivered the opinion of the court.


text:
    A. C. Heister, Defendant in Error, v. Crane Company, Plaintiff in Error.
    Gen. No. 20,432.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Joseph S. La But, Judge, presiding. Heard in this court at the October term, 1914.
    Reversed and remanded.
    Opinion filed March 8, 1915.

      Abstract of the Decision.
    1. Automobiles and gabages, § 2

      —when verdict for injury by collision excessive. In an action to recover for damages to plaintiff’s automobile by collision with defendant’s motor truck and for loss to plaintiff’s business while his car was being ■ repaired, where the evidence shows that the cost of the repairs occasioned by the accident did not amount to sixty dollars and no actual monetary loss to his business by inability to use the car is shown, a verdict for three hundred and fifty dollars is excessive.
    2. Evidence, § 420*—when opinion evidence insufficient to show injury to business. In an action to recover for losses alleged to have been caused to plaintiff’s business by his inability to use his automobile while it was being repaired after a collision with defendant’s truck, it is error to permit plaintiff to give an estimate of the value per day of the car to his business, but actual monetary loss must be shown.
    Statement of the Case.
    Action by A. G. Heister against Crane Company, a corporation, for damages alleged to have been caused to plaintiff’s automobile by defendant’s motor truck skidding into it.
    Plaintiff’s claim was for damages and for loss to his business while his automobile was being repaired.
    The automobile repairer by whom plaintiff’s car was repaired testified as to the damage and that his bill for the repairs and two other items not connected with the accident was sixty dollars.
    There was evidence as to other troubles with the car arising subsequently, but their character and the causal connection of the accident with them was not clearly shown.
    Plaintiff’s damages were assessed at three hundred and fifty dollars, and to reverse the judgment entered therefor defendant prosecutes this writ of error.
    Alden, Latham & Young, for plaintiff in error.
    No appearance for defendant in error.

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

   Mr. Justice McSurely

delivered the opinion of the court.


text:
    C. W. Kennedy, Defendant in Error, v. Great Lakes Dredge & Dock Company, Plaintiff in Error.
    Gen. No. 20,456.
    1. Shipping, § 7

      —what sufficient compliance with requirement of Federal statutes as to navigation by ticensed pilot. Section 4426 of the Federal statutes providing that no small craft of specified kinds shall be navigated without a licensed engineer and a licensed pilot is not violated by the fact that a licensed master of such a craft, in control of its navigation, intrusts the physical handling of the wheel to a wheelsman not having a license as pilot or engineer.
    2. Shipping, § 7*—when evidence not sufficient to show contributory negligence. In an action to recover for loss of wearing apparel caused by the collision of the steamer of which plaintiff was captain with a scow in tow of defendant’s tug, evidence that as the steamer was approaching the tug, which was on the wrong side of the channel, it signaled that it would hold its course and pass to the right, which was according to the rules of navigation, and that later on it repeated these signals, and that it did so hold its course, is not sufficient to show contributory negligence, even though the signals were not answered by the tug.
    Error to the Municipal .Court of Chicago; the Hon George J. Cowing, Judge, presiding. Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed March 8, 1915.
    Krember & Greenfield, for plaintiff in error.
    Menz I. Rosenbaum and Maurice Alschuler, for defendant in error.

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

   Mr. Justice McSurely

delivered the opinion of the court.

Plaintiff brought suit for loss of wearing apparel caused by the sinking of the steamer B. & 0., of which he was captain, in a collision in the sanitary canal with a scow in tow of the tug McCarthy belonging to the defendant. Plaintiff had judgment for $175.

About eleven o’clock at night, in June, the B. & C. with scows in tow was going down the canal from Chicago, while the McCarthy with two scows in tow was going up the canal towards the city. The canal at the place of the collision runs in a northeasterly and southwesterly direction, and counsel and the witnesses describe a vessel going northeast towards Chicago as going up, and when going in the opposite direction as going down the canal. It appears from the evidence that the rule of the road for vessels navigating the canal is that each vessel shall keep to its right. In violation of this rule the McCarthy with its tows was on the northerly side of the canal, that is, the McCarthy was ascending on the left side of the canal. It was thus in the direct path of the descending B. & C., which struck the McCarthy a glancing blow on its southerly side and collided almost head-on with the first scow following, and sank.

It is conceded by the defendant that a cause of the collision was the negligence of the McCarthy in being on the wrong side of the canal. Counsel for defendant say that the sole question for this court to determine is whether the plaintiff or any member of the crew of the B. & C. was guilty of any negligence which in any way contributed to the collision. That any contributory negligence by any of the crew would, bar a recovery is not controverted.

Plaintiff, a licensed master, about ten o’clock on the evening in question left the wheel in charge of James Doherty, who was not a licensed pilot but was a wheelsman with an experience of a great many years. Plaintiff went to different parts of the boat, the cabin, deck, toilet room, and was in the engine room at the time of the collision. Defendant contends that plaintiff in so doing was acting in violation of section 4426 of the Federal statutes. This section provides for the inspection of certain kinds of small craft propelled by steam, and also that “no such vessel shall be navigated without a licensed engineer and a licensed pilot, ’ ’ and also that in open steam launches of ten tons burden and under, one person may be both the pilot and the engineer. This statute is evidently intended to fix the official equipment as a condition under which the kinds of vessels named shall be permitted to sail. It is not asserted that the B. & C. was not equipped officially in compliance with this statute; it had both a licensed engineer and a licensed pilot. We cannot see that this statute was intended to or does in terms cover the act of the plaintiff in leaving an experienced man at the wheel temporarily. We have examined other sections of the Federal statute but they do not seem applicable to this situation. A provision that no person shall be employed or serve “asa master, chief mate, engineer or pilot * * * who is not licensed,” does not apply. It is evident that while Doherty may have had the physical handling of the wheel, plaintiff, as captain or master, was all the time in control of the navigation of the steamer, and Doherty was in no sense employed or serving as the master or pilot.

We fail to see any contributory negligence in the conduct of the plaintiff. Neither do we find such negligence on the part of the wheelsman, Doherty. The B. & 0. was keeping in its proper path, and shortly before the collision had signaled to another ascending steamer, the Heath, that it would keep to the right in passing. It is a fair inference that the wheelsman of the McCarthy heard this and had notice of the approach of the B. & C. on the right side of the canal. A later signal was given by the B. & C. of its intention to pass the McCarthy on the right, but the McCarthy did not answer these signals. Under such circumstances the B. & C. would be justified in continuing in its course upon the assumption that the McCarthy would make way, but even if this were not so it certainly would have been an error, in the absence of any contrary signals from the McCarthy, for the B. & C. to have changed its course and attempted to pass on the wrong side.

Other points have been considered, but we see no reason to conclude that the finding is improper. Hence the judgment is affirmed.

Affirmed.


text:
    Mrs. C. W. Kennedy, Defendant in Error, v. Great lakes Dredge & Dock Company, Plaintiff in Error.
    Gen. No. 20,457.
    (Not to be reported in full.)
    Abstract of the Decision.
    Shipping, § 7

      —when recovery allowed for the loss of personal effects. The judment below is affirmed for the reason stated in Kennedy v. Great Lakes Dredge & Dock Go., No. 20,456, ante, p. 585.
    Error to the Municipal Court of Chicago; the Hon. George J. Cowing, Judge, presiding. Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed March 8, 1915.
    Statement of the Case.
    Action by Mrs. C. W. Kennedy against the Great Lakes Dredge & Dock Company to recover the value of personal effects lost in the collision of a steamer • and a scow in tow of defendant’s tug.
    Plaintiff in this case is the wife of C. W. Kennedy, defendant in error in Kennedy v. Great Lakes Dredge & Dock Co. (No. 20,456), ante, p. 585, and the collision out of which the two actions arose and the facts involved are the same.
    To reverse a judgment for plaintiff for $225, defendant prosecutes this writ of error.
    Kremer & Greenfield, for plaintiff in error.
    Menz I. Rosenbaum and Maurice Alschuler, for defendant in error.

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

   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Mrs. E. Perelson, Defendant in Error, v. Charles F. Podolsky and Mrs. Charles F. Podolsky, Plaintiffs in Error.
    Gen. No. 20,498.
    1. Bills and notes, § 441

      —when evidence sufficient to show execution of note. Evidence held to he sufficient to show a loan ot money hy plaintiff to defendant and the execution therefor by defendant of the note in suit.
    2. Infants, § 19*—when infancy defense to action on note. The infancy of one of the makers of a judgment note not given for necessaries is a defense as to such infant in an action on the note brought during the continuation of his infancy.
    3. Infants, § 23*—when not deprived of right to disaffirm contract. In an action against the makers of a judgment note for a loan, one of the makers being an infant, where it does not appear that the defendants have in their possession the money loaned, the infant defendant is not deprived of his right to disaffirm the obligation by the fact he received benefit from the transaction.
    4. Judgment, § 199*—when setting aside as to one defendant does not affect validity as to other. The setting aside against one defendant of a judgment against two defendants in an action on a judgment note on the ground of his infancy does not affect its validity as against the other.
    Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in this court at the October term, 1914.
    Affirmed in part and reversed in part.
    Opinion filed March 8, 1915.
    Rehearing denied March 22, 1915.
    Joseph H. Edelson, for plaintiffs in error; Lewis F. Jacobson, of counsel.
    No appearance for defendant in error.

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

   Mr. Justice McSurely

delivered the opinion of the court.

Judgment by confession was entered against the defendants on a judgment note signed by them. On motion to vacate, the court, after hearing testimony, denied the motion.

By their testimony defendants sought to prove that the money for which they signed the note was a present to them from the plaintiff and that they thought they were signing simply a receipt instead of a note. Plaintiff denied that she gave the money as a gift to the defendants, and said it was a loan to them. We see no sufficient reason to disagree with the conclusion of the trial court in finding with the plaintiff on this question of fact. While the judgment is proper as to the defendant Mrs. Charles F. Podolsky, there was an adequate defense shown by Charles F. Podolsky, namely, his infancy when he signed the note. That he was a minor at this time, and still was a minor at the time of the trial, is undisputed. In the opinion in Cole v. Pennoyer, 14 Ill. 158, is a discussion as to what contracts by an infant are void or only voidable and the conclusion is stated thus: 11 The only contract binding on an infant is the implied contract for necessaries; the only act which he is under a legal incapacity to perform, is the appointment of an attorney. All other acts and contracts, executed or executory, are voidable or confirmable, by turn, at his election.” No later decision has changed this rule, but rather it has been followed in numerous cases. It follows, therefore, that the power of attorney in the note was absolutely void as to Charles F. Podolsky.

We are hot favored with any brief on behalf of the defendant in error, but if it should be said that the trial court was moved to hold the judgment good as to Charles F. Podolsky because no equitable reason appeared for relieving him from his undertaking, it is sufficient to reply that this is not a case for the application of equitable considerations. The defendants did not have in their possession the money obtained from plaintiff and, as is said in Wuller v. Chuse Grocery Co., 241 Ill. 398, “the consideration, or such part of it as remains in the possession or control of the minor, must be returned, but if he has lost or expended it, so that he cannot restore it, he is not obliged to make restitution. ’ ’ And the same case is authority for the statement that while a minor’s disaffirmance of his obligation may operate injuriously and unjustly against the other party, the right to disaffirm exists for the protection of the infant against his own improvidence and may be exercised entirely at his discretion. The reason why the fact that an infant has received benefit should not deprive him of his right to disaffirm his obligation is stated in the opinion in Coe v. Moon, 260 Ill. 76, 83: “To give effect to an infant’s disaffirmance of his contract it is not necessary that the other party he placed in statu quo, for if the law in every case required restitution of the consideration as a condition precedent to the disaffirmance of a contract, it would often result in accomplishing indirectly what it expressly says shall not be done directly, and the purpose of permitting infants to avoid their contracts might often be thus defeated.”

Charles F. Podolsky having elected to disaffirm his obligation on the ground of his infancy, the trial court should have vacated and set aside the judgment against him. However, it does not follow that the judgment must be regarded as a unit, and if set aside as to one defendant must he set aside as to all. The exception to the usual rule in this respect is where one of the defendants pleads a personal defense, such as infancy, coverture, lunacy and the like. In such a case the judgment will be set aside as to him who pleads such defense, but will be held good against other defendants. Briggs v. Adams, 31 Ill. 486. Where a judgment is entered against an adult and an infant, the fact that the judgment is void as to the infant cannot invalidate the judgment against the adult. Reid v. Degener, 82 Ill. 508. See also Lowis v. Conrad Seipp Brewing Co., 63 Ill. App. 345. The judgment against Mrs. Charles F. Podolsky is affirmed, and the judgment against Charles F. Podolsky is reversed.

Affirmed in part and reversed in part.


text:
    Maurice McKinney, Defendant in Error, v. Metropolitan Life Insurance Company, Plaintiff in Error.
    Gen. No. 20,520.
    1. Insurance, § 232

      —when error to direct verdict for plaintiff in action on life policy. In an action by the husband of a deceased policy holder to recover on the policy, where the defense is fraudulent representation by the deceased as to her health and history and a breach of a condition in the policy rendering it void if the insured had been attended before its date by a physician for any serious disease or had had before the date of the policy any pulmonary disease, and defendant introduces evidence tending to show that a year before the date the deceased had been suffering from tuberculosis and that she continued to suffer therefrom until she died, it is error to direct a verdict for plaintiff, even though he testifies that he made a demand upon defendant for the amount of the policy, but payment was refused and he had never been paid anything by defendant.
    2. Insurance, § 363*—when husband or beneficiary not entitled to premiums in action on life insurance policy. In an action on a life insurance policy brought by the husband of deceased, the defense interposed to which is fraudulent representation by deceased as to her health and history and a breach of the condition of the policy as to the health of deceased before the date of the policy, the failure of defendant to tender the premiums to plaintiff does not estop defendant from questioning their validity, the title to the premiums not being in plaintiff, either as husband or beneficiary, but in the personal representative of deceased.
    Error to the Municipal Court of Chicago; the Hon. Henry C. Beitrer, Judge, presiding. Heard in this court at the October term, 1914.
    Reversed and remanded.
    Opinion filed March 8, 1915.
    Hoyne, O’Connor & Irwin, for plaintiff in error; Carl J. Appell, of counsel.
    Cooney & Verhoeven, for defendant in error; William Feather, of counsel.

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

   Mr. Justice McSurely

delivered the opinion of the court.

This is a suit brought by the husband of Sadie McKinney, now deceased, on two policies on her life issued by the defendant. Under a peremptory instruction a verdict was returned and judgment entered against defendant for $321. The policies were dated September 11, 1911 and November 20, 1911, respectively, and each contained the following provision:

“Unless otherwise stated in the blank space below in a waiver signed by the Secretary, this policy is void if the insured before its date has been rejected for insurance by this or any other company, or has been attended by a physician for any serious disease or complaint; or has had before said date any pulmonary disease, or chronic bronchitis, or cancer, or disease of the heart, liver, or kidneys.”

The defense interposed by the Company was, fraudulent representation by the deceased concerning her health and history, and breach of the above condition in the policies. To support this defense physicians gave testimony tending to show that the year before the issuance of the policies Sadie McKinney had been suffering from tuberculosis and that she continued to suffer therefrom until she died in May, 1912, in consequence of this disease.

Plaintiff testified that after the death of the deceased he made a demand upon the Company-for the amount of the policies but that payment was refused, and that the Company never paid him anything. The court thereupon struck out all the evidence for the defendant and peremptorily instructed the jury to find the issues for the plaintiff.

We hold that in so doing the court was in error and that the. ease should have been submitted to the jury. Apparently the court was of the opinion that as the evidence failed to show that the defendant had tendered to the plaintiff the amount of premiums paid on the policies, it was estopped from questioning their validity. This is a misapprehension as to the law. The plaintiff, either as husband or beneficiary, was not entitled to the premiums; the title to them was in the personal representative of the deceased. Heubner v. Metropolitan Life Ins. Co., 146 Ill. App. 282; U. S. Life Ins. Co. v. Ludwig, 103 Ill. 305; Massachusetts Mut. Life Ins. Co. v. Robinson, 98 Ill. 324; Wright v. Vermont Life Ins. Co., 164 Mass. 302; Bailey v. New England Mut. Life Ins. Co., 114 Mass. 177. A large number of cases has been cited touching the question as to whether there must be a return of premiums as a condition precedent to defending against the validity of a policy void ab initio. We do not feel called upon to express an opinion on this point, as it is not directly involved in or necessary to a decision in this case, and for the further reason that the defendant, according to statements of its counsel in its briefs, does not claim the premiums in this case and is ready to return them to the person authorized to receive them.

The defendant should have been permitted to make its defense, and the judgment is reversed and the cause remanded for a new trial.

Reversed and remanded.


text:
    William C. Gibons, Defendant in Error, v. Williams, Monicer & Company, Plaintiff in Error.
    Gen. No. 20,541.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John D. Thbnbahgh, Judge, presiding. Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed March 8, 1915.
    Statement of the Case.
    Action by William C. G-ibons against Williams, Monicer & Company, a corporation, on a verbal contract for services rendered in negotiating a real estate transaction.
    Defendant, while admitting that the services were rendered, denied that it had agreed to pay the amount claimed by plaintiff.

      Abstract of the Decision.
    1. Brokers, § 92

      —when finding of jury as to amount due for services rendered not disturbed. Where in an action for services rendered in negotiating the sale of realty, the rendering of the services is not disputed, but only the amount agreed to be paid therefor, and there is evidence tending to corroborate plaintiff’s testinmny as to the amount, the verdict will not be disturbed.
    2. Brokers, § 5*—when want of license not defense in action for services in negotiating real estate transaction. Where an action is brought on a promise to pay for services rendered for negotiating a real estate transaction, the fact that plaintiff is not a licensed broker is no defense.
    3. Appeal and error, § 1034*—the Appellate Court will not take judicial notice of city ordinances.
    To reverse a judgment on the verdict of the jury for two hundred and fifty dollars, defendant prosecutes this writ of error.
    Harry B. Miller, for plaintiff in error.
    William C. Gibons its, for defendant in error.

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

   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Herbert L. Joseph & Company, Defendant in Error, v. Sidney E. Levy, Plaintiff in Error.
    Gen. No. 20,578.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding. Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed March 8, 1915.

      Abstract of the Decision.
    1. Guaranty, § 7

      —what consideration sufficient. The settlement of the account of the person in whose behalf a guaranty is given with the person receiving the guaranty is a sufficient consideration for the undertaking of the guarantor.
    Statement of the Case.
    Action by Herbert L. Joseph & Company, corporation, against Sidney E. Levy as guarantor on a written contract which provided for certain payments to be made to plaintiff.
    The contract involved was, in part, as follows:
    “In consideration of the settlement of the account of Mamie Ward, I promise to pay to Herbert L. Joseph & Co. Stock No.-Price $65.00 I hereby agree to pay Herbert L. Joseph & Co., at Chicago, 111., or their authorized agent, the sum of $65.00 as follows: $5.00 on 6-9-13 down and the balance in wkly installments of $5.00 each, payable on Monday of each and every wk until paid in full.”
    This was followed by provisions concerning the sale and purchase of and the title and right of possession to “said property.” The execution of the contract was in the following form:
    “Witness my hand and seal this 4th day of June, 1913. .
    (Customer) Mrs. May Baker (Seal)
    Address 428 S. Morgan......Flat
    (Guarantor) Sidney E. Levy (Seal)
    Address 105 W. Monroe St. ’ ’
    Plaintiff had judgment for $50.50, to reverse which, defendant prosecutes this writ of error.
    Joseph D. Irose, for plaintiff in error.
    Sidney Lyon, for defendant in error.

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

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

   Mr. Justice McSurely

delivered the opinion of the court.

2. Guaranty, § 3 —when signature of guarantor sufficient. The signature of a guarantor helow and to the left of the signature of the person making a contract is sufficient to make him a guarantor without the addition of other words.

3. Municipal Court of Chicago, § 13*—when filing of amendment to statement of claim not necessary. In a case of the fourth class in the Municipal Court of Chicago, where leave is given a plaintiff to amend his statement by increasing the amount claimed, the filing of an actual literal amendment is not necessary to support a finding for the increased amount.


text:
    H. Laskey, Defendant in Error, v. Samuel Mendelson and Benjamin Mendelson, trading as Mendelson Brothers, Plaintiffs in Error.
    Gen. No. 20,590.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Joseph S. La Buy, Judge, presiding. Heard in this court at the October term, 1914.
    Reversed and remanded.
    Opinion filed March 8, 1915.
    Statement of the Case.
    Action by H. Laskey, plaintiff, against Samuel Mendelson and Benjamin Mendelson, trading as Mendel-son Brothers, defendants, to recover the purchase price of goods alleged to have been sold defendants.
    Defendants’ offer of evidence tending to show that the goods had been sold to other than defendants was objected to by plaintiff on the ground that the affidavit of defense contained nothing concerning a sale to another than defendants and the objection" was sustained.
    ■Judgment was rendered for plaintiff and to reverse the judgment, defendants prosecute this writ of error.

      Abstract of the Decision.
    Pleading, § 28

      —when statement of evidence in affidavit of defense not required. In an action for the purchase price of goods alleged to have been sold, it is error to refuse to permit defendants to introduce testimony tending to show that the goods were sold to another than defendants, even though the affidavit of defense did not set up the sale to other than defendants.
    Moses, Rosenthal & Kennedy, for plaintiffs in error; Julius Moses and Sigmund W. David, of counsel.
    Isadore S. Blumenthal, for defendant in error.

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

   Mr. Justice McSurely

delivered the opinion of the court.


text:
    T. Anthony Kreuser, Defendant in Error, v. The Thomas B. Jeffery Company, Plaintiff in Error.
    Gen. No. 20,594.
    (Not to be reported in full.)
    ' Error to the Municipal Court of Chicago; the Hon. James C. Mabtin, Judge, presiding. Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed March 8, 1915.
    Statement of the Case.
    Action by T. Anthony Kreuser, plaintiff, against The Thomas B. Jeffery Company, a corporation, defendant, on an agreement alleged to have been made by defendant to sell plaintiff’s automobile.
    For plaintiff, evidence was introduced to show that in the spring of 1911 he purchased a 1910 car from •defendant, a manufacturer and seller of automobiles, for which plaintiff agreed to pay one thousand five hundred dollars, and paid one thousand dollars thereof in cash and gave his notes for five hundred dollars, due in one year, for the balance; that defendant agreed to overhaul the chassis thoroughly and to give it the same guaranty as its 1911 cars. Plaintiff also introduced testimony that the car was defective and had not been repaired or altered as defendant had agreed; that he had made many complaints to defendant’s manager and had taken the car to defendant’s shops many times and finally, in May, 1911, left it in defendant’s garage. He further testified that in November, 1911, the manager, acting for defendant, agreed to sell the car for plaintiff for not less than one thousand two hundred dollars, and out of the proceeds to cancel the notes and pay plaintiff the balance of seven hundred dollars, or any balance that the car might bring in excess of one thousand two hundred dollars.
    Defendant contended that no such agreement had been made, and correspondence of plaintiff, subsequent to the date of the alleged agreement purporting to tell the “entire story,” was introduced in which no mention was made of the agreement.
    Defendant’s manager, who testified, made no definite denial of plaintiff’s version of the conversation in which the agreement was alleged to have been made.
    A former employee of defendant testified, as did plaintiff, that the car had not been given the agreed overhauling.
    To reverse a judgment for plaintiff for seven hundred dollars, defendant prosecutes this writ of error.
    Parker & King, for plaintiff in error.
    H. G. Colson, for defendant in error.

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

   Mr. Justice McSurely

delivered the opinion of the court.

Abstract of the Decision.

1. Contracts, § 372 —When evidence sufficient to establish agreement for sale of automobile. In an action to recover on an agreement alleged to have been made for the sale of plaintiff’s automobile, where the plaintiff’s evidence as to the agreement is not only substantially uncontradicted, except in so far as it is weakened by the fact that in his letters to defendant, subsequent to the date of the alleged agreement, in which he undertook to state the circumstances of the transactions between them, plaintiff made no mention of such an agreement, but there are other facts tending to support his contention, and defendant’s evidence contains no definite denial of plaintiff’s evidence of the circumstances of the making of the agreement, a verdict for the plaintiff will not he disturbed.

2. Sales, § 17*—when consideration sufficient. Where plaintiff purchased from defendant an automobile which was manufactured the year before, paying part of the price in cash and giving his notes due in one year for the balance, and defendant gave him the same guaranty for the car as was given for its cars for the current year, either the payment of the notes before due or release by plaintiff of defendant’s guaranty would be sufficient consideration to support an agreement by defendant to sell the car for plaintiff for a minimum price and apply the proceeds to the cancellation of plaintiff’s notes and pay him the balance.

3. - Appeal and error, § 1466*—when admission of evidence in corroboration not error. Even though certain evidence tending to prove the consideration for a contract may not be competent, its admission is not error where plaintiff has testified fully to the same fact without objection.

Brown, P. J. dissenting.


text:
    Frank Benko, Defendant in Error, v. Kate Lenard, Plaintiff in Error.
    Gen. No. 20,613.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Fred C. Hill, Judge, presiding. Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed March 8, 1915.

      Statement of the Case.
    Action by Frank Benko, plaintiff, against Kate Lenard, defendant, to recover two hundred dollars paid by plaintiff to defendant as earnest money upon a contract for the purchase and sale of real estate. The contract -is in part as follows:
    “THIS' MEMORANDUM WITNESSETH, That Kate Lenard hereby .agrees to sell, and Frank Benko agrees to purchase at the price of Eighteen Thousand Dollars, the following described real estate, situated in Cook County, Illinois.
    (Here is given description of the property.)
    “Said purchaser, Frank Benko, has paid Two Hundred ($200.00) Dollars as earnest money, to be applied on said purchase when consummated, and agrees to pay the sum of Seventeen Thousand Eight Hundred ($17,800.00) Dollars, sixty days after the date hereof, provided that the said Kate Lenard at that time delivers to him a good and sufficient Warranty Deed with release of dower, conveying to said purchaser a good title to said premises, and upon the further condition that the abstract of title to said premises shows a good title.
    “A complete Abstract of Title or merchantable copy to be furnished within a reasonable time, with a continuation thereof brought down to this date. In case the title upon examination is found materially defective within ten days after said Abstract is furnished, then unless the material defects be cured within a reasonable time after written notice thereof, the said earnest money should be refunded to the said Frank Benko, and in addition to said earnest money the said Kate Lenard shall pay to him, the amount of his expenditures and loss that he has sustained by reason of this contract.
    “Should Said purchaser fail to perform this contract promptly on his part, at the time and in the manner herein specified, the earnest money paid as above shall, at the option of the vendor, be forfeited as liquidated damages, including commissions payable by vendor, and this contract shall be and become null and void. Time is of the essence of this contract, and of all the conditions thereof.
    Abstract of the Decision.
    1. Principar and agent, § 8

      —when evidence sufficient to establish relation. Eviáence examineá in action to recover earnest money p'aiá upon a contract for the purchase aná sale of real estate aná held to warrant a fináing that the attorney árafting the contract was acting as áefenáant’s agent.
    2. Vendos and purchaser, ' § 121*—when delivery to vendor's agent not delivery to purchaser. Delivery of an abstract of title by the venáor of the laná to such venáor’s agent áoes not constitute a áelivery to the purchaser;
    3. Vendor and purchaser, | 121*—when tender of warranty deed does not cure default in giving abstract of title. Where a contract for the purchase aná sale of realty proviáes that an abstruct of title shall be delivered to the purchaser in a reasonable time and that it shall show a good title and that the vendor shall deliver a warranty deed sixty days after the date of the contract, a tender of the deed after the expiration of the sixty-day period and while the vendor is in default as to the abstract is insufficient where the purchaser demanded a return of the earnest money and showed his intention to rescind.

      “IN TESTIMONY WHEREOF, said parties hereto set their hands this 8th day of June, A. D. 1912.
    Kate Lenard,
    Frank Benko.”
    The evidence showed that defendant brought the abstract to the attorney in whose office the contract was drawn and that it remained there until after the expiration of the sixty-day period. After the period expired, defendant tendered a warranty deed to plaintiff who declined to receive it and demanded the return of the earnest money.
    Judgment for plaintiff for two hundred dollars was rendered and to reverse this judgment, defendant sues out this writ of error.
    Burres & St. George, for plaintiff in error; Maximilian J. St. George, of counsel.
    Thomas J. Peden and Roy C. Merrick, for defendant in error.

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

   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Elmer S. Eppstein, Defendant in Error, v. M. & M. Hotel Company, Plaintiff in Error.
    Gen. No. 20,628.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Hugh J. Keabns, Judge, presiding. Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed March 8, 1915.
    Statement of the Case.
    Action by Elmer S. Eppstein, plaintiff, against M. & M. Hotel Company, a corporation, defendant,- to recover judgment for clothes and a handbag alleged to have been stolen from plaintiff’s room in defendant’s hotel.
    Defendant’s contention was that plaintiff was a permanent lodger and not a transient guest and that therefore it was not to be held to the liability of an innkeeper but that its relation was. merely that of lodging house keeper.
    On the submission to the jury of a special interrogatory embodying this issue, it found that plaintiff was not a permanent lodger and judgment was rendered for plaintiff. To reverse this judgment, defendant prosecutes this writ of error.

      Abstract of the Decision.
    1. Innkeepers, § 3*—when evidence sufficient to show guest not permanent lodger. Evidence examined and held sufficient to warrant finding that plaintiff was a transient guest and not a permanent lodger.
    2. Municipal Court op Chicago, § 26*—when exclusion of statement not error. In an action in the Municipal Court of Chicago it is not error to exclude as evidence an amended statement of claim not signed by plaintiff and subsequently withdrawn.
    Joseph D. Irose, for plaintiff in error.
    Aaron B. Eppstein, for defendant in error.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Frank N. Derby, Defendant in Error, v. Herman Gudichsen and Matilda P. Gudichsen, Plaintiffs in Error.
    Gen. No. 20,646.
    Brokers, § 90

      —when evidence sufficient to show performance of contract. In an action by a real estate broker to recover commissions for'services in negotiating a contract for the exchange of defendants’ real estate where the evidence shows that the other party to the contract owned the property which he offered in exchange, though he had the title taken in the name of another when he purchased it, it is sufficient to show that plaintiff had procured the execution of a valid and enforceable contract and to support a recovery of the commissions provided for in the contract.
    Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed March 8, 1915.
    Chytraus, Healy & Frost and Edwin White Moore, for plaintiffs in error.
    Arthur A. Basse, for defendant in error.

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

   Mr. Justice McSurely

delivered the opinion of the court.

This is a suit for commissions under a contract made between the defendants and Edward J. Novak providing for the exchange of real estate. Upon trial plaintiff had judgment for two hundred dollars, which is the amount provided for by the contract to be paid by the defendants. The property which Novak agreed to give in exchange for defendants’ property was a farm in the county of Marinette and State of Wisconsin. That the services in the negotiation of the contract were rendered by plaintiff is not disputed, but the point defendants made upon the trial and now present to this court as a basis for a reversal is that the plaintiff is required to prove that Novak “had a good and sufficient title” to the farm, and that no proof of such fact was offered.

It is urged by the defendants that the law is that a real estate broker suing for commissions for procuring an exchange of pieces of real estate must prove that the opposite party has a good and sufficient title to the lands agreed by him to be conveyed, and in case of failure to make such proof no recovery can be had. Whether or not this is the law we do not feel called upon to determine, for the reason that in our opinion the evidence sufficiently shows that Novak had the right to sign the contract in question and that the defendants could, if they had seen fit, have enforced its performance by him. It is not denied that Novak, as he testified, owned the Wisconsin farm, and when he bought it he had the title taken in the name of “James J-.” These facts bring the case exactly within the decision in the case of Kuhn v. Eppstein, 219 Ill. 154, where it was held that the person holding the title held it merely as an agent of the owner and subject to his order, the court in its opinion saying: ‘ ‘ The contract was signed by the real equitable owner of the premises. It cannot be disputed that he had full power and authority to make the contract of sale, or to make any other disposition of his own property as lie might see fit * * * we see no reason why the contract was not mutual and could not he enforced by either of the parties thereto, one against the other.” We think this opinion is decisive of the point before us. It follows therefore that the plaintiff, having been the means of procuring the execution of a valid and enforceable contract between the parties was entitled to the commission as therein provided.

We do not think there is any merit in the point that Harold J. Derby, an alleged copartner of the plaintiff, should also have been made a plaintiff. An examination of the record does not sustain the contention of the defendants that there is a copartnership consisting of Frank N. Derby and Harold J. Derby.

We see no reason to disturb the finding and judgment, and the judgment is affirmed.

Affirmed.