text:
    Richard M. Saltonstall et al., Plaintiffs in Error, v. George H. Mead and The George H. Mead Agency, Inc., Defendants in Error.
    Gen. No. 19,718.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Erank C. Graham, Judge, presiding. Heard in this court at the October term, 1913.
    Reversed and judgment here with finding of fact.
    Opinion filed January 25, 1915.
    Statement of the Case.
    Action of distress for rent, brought in the Municipal Court of Chicago by Richard M. Saltonstall and others against George H. Mead and The George H. Mead Agency, Inc. The defense was that the property levied upon was the sole property of The George H. Mead Agency, a corporation, and that no relation of landlord and tenant existed between this Company and the plaintiffs. Upon trial without a jury the court found against the plaintiffs on the issue as to the right to levy the distress warrant and dismissed the suit as to The George H. Mead Agency. On the same date on which the distress warrant was levied the Mead Agency commenced replevin proceedings, in which the goods levied upon in the distress proceedings were delivered to it. By a stipulation both the distress proceedings and the replevin suit were heard by the judge of the Municipal Court to whom the distress proceeding had been assigned, the evidence being the same in both cases. The court found in the replevin suit that the right of possession in the property was in The George H. Mead Agency, the plaintiff.
    This writ of error is prosecuted by plaintiff to reverse the judgment of the court in the action for distress for rent. A writ of error was also prosecuted to reverse the judgment in the replevin suit. See The George H. Mead Agency v. Saltonstall, p. 176, post.

    The facts of the case were substantially as follows: In January, 1911, the premises occupied by defendant were leased to George H. Mead by a written instrument for a term beginning May 1, 1911, and ending April 30,1914. At the time of making this instrument George H. Mead occupied an office on the seventh floor of the same building (the Marquette Building), where he was engaged in the advertising business under the name of The George H. Mead Agency. In February, 1911, he caused his business to be incorporated under the same name, to wit, The George H. Mead Agency. In this corporation George H. Mead subscribed for all of the capital stock except two shares, which were subscribed for by other persons but not paid for. By a resolution George H. Mead turned over to The George H. Mead Agency in payment of his subscription to its capital stock a certain amount of cash and the “assets and good will of the business heretofore conducted by me under the name of The George H. Mead Agency.” Among these assets was the office furniture which was subsequently levied upon by the plaintiffs in this proceeding. The resolution further provided that the corporation was to assume all bills payable, consisting of the current bills. On or about May 1,1911, Mead and the corporation took possession. of the demised premises and the business was conducted as before, but under the name of “The George H. Mead Agency, Inc.,” of which George H. Mead was the president and general manager. No other officers of the corporation or employees occupied or used any portion of the demised space. The monthly rental under the lease was thereafter paid regularly and continuously for some. time by The George H. Mead Agency through its checks.
    Abstract of the Decision.
    Landlord and tenant, § 366

      —when property of corporation organized by lessee subject to distress for rent. Where a person leased premises for his business in his individual name, and thereafter incorporated his business, subscribed for nearly all the capital stock, and conducted the business on the premises as president and general manager and paid the rent through the checks of the corporation, held that the conduct of the parties constituted an acceptance by the corporation of the lease and that it became bound by provisions thereof so that its office furniture might be seized under a distress warrant for rent.
    Allen G. Mills, for plaintiffs in error.
    No appearance for defendants 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.


source: Caselaw Access Project

author: Mr. Justice McSurely

license: Public Domain

text:
    The George H. Mead Agency, Defendant in Error, v. Richard M. Saltonstall et al., Plaintiffs in Error.
    Gen. No. 19,719.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Fbank C. Gbaham, Judge, presiding. Heard in this court at the October term, 1913.
    Reversed.
    Opinion filed January 25, 1915.
    Statement of the Case.
    This case is the replevin suit referred to in the statement of facts in the case of Saltonstall v. George H. Mead and The George H. Mead Agency, Inc., reported on p. 173, ante, and the decision in that case held controlling.
    Allen G. Mills, for plaintiffs in error.
    No appearance for defendant in error.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    American Credit & Trust Company, Appellee, v. John Worthington, trading as American Bank, Appellant.
    Gen. No. 19,940.
    1. Corporations, § 344

      —When question of ultra vires cannot be raised. Where an act of a corporation is at most only an abuse or excessive use of a general power conferred by its charter, in a suit by the corporation to enforce its rights with reference thereto, the question of ultra vires cannot be raised by the defendant, but can be raised only in a direct proceeding by the State.
    2. Corporations, § 344*—when right to purchase certificates of deposit cannot be questioned by plea of ultra vires. Where a corporation has power under its charter to buy and hold property of any kind except real estate and corporate stock, and to borrow money, etc., a purchase by it of certificates of deposit is not wholly without the scope of its powers, and in a suit by it to recover' on the certificate a plea of ultra vires cannot be maintained.
    Appeal from the Superior Court of Cook county; the Hon. Denis E. Sullivan, Judge, presiding. Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed January 25, 1915.
    Adams, Crews, Bobb & Wescott, for appellant.
    Frank Schoenfeld, for appellee.; George F. Ort, of counsel.

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

   Mr. Justice McSurely

delivered the opinion of the court.

This is an action in assumpsit to recover on two certificates of deposit dated July 9, 1912, payable to the order of J. F. Conant, each for the sum of $1,000, due six months after date with interest. There was a verdict and judgment for plaintiff for $2,040, from which judgment defendant has appealed.

It seems to have been proven that the certificates were executed and delivered on their dates by defendant to Conant; that subsequently, before maturity, they were acquired by indorsement and delivered in the ordinary course of business, for value, to Wolff Adolphus, who in the same manner, after maturity, sold and transferred them for value to plaintiff.

The main question urged upon our consideration is raised by the plea of ultra vires. It is said that the .plaintiff, a corporation formed under the general incorporation law, cannot engage in banking and the .business of loaning money (chapter 32, sec. 1, R. S. 1911, J. & A. ¶ 2418), and it is contended that when plaintiff acquired the certificates in the manner it did, it by that act was engaged in the prohibited business of banking and loaning money. Hence it is argued plaintiff cannot maintain this action.

We do not think it necessary for us to determine whether this act of' acquiring the certificates was the exercise of the function of banking or was, in the eye of the law, loaning money. Neither is it necessary to 'inquire as to the absolute legal integrity of this transaction. It is' sufficient for us to consider its character under the powers granted by charter, only so far as is necessary to determine whether defendant will be .permitted to question it in this suit. The law is that ■ if the act in question is unauthorized under any circumstances, the plea of ultra vires by a defendant in s.uch a case as this may be successfully maintained, but if the act'is at most only an abuse or excessive use of a general power conferred by charter, the question ' of ultra vires cannot be raised by the defendant in such a case but it can be raised only in a direct proceeding "by the State to oust the corporation. This has been so clearly held in the following cases as to require no ‘ further statement. In re Humphrey Advertising Co., 101 C. C. A. 1,177 Fed. 187; Rector v. Hartford Deposit Co., 190 Ill. 380; Western Telephone Mfg. Co. v. Foley, 150 Ill. App. 343; Chicago Building Society v. Crowell, 65 Ill. 453; McIntire v. Preston, 10 Ill. 48. We find in the cases from our Supreme Court cited by defendant's counsel nothing in conflict or inconsistent with this view. Turning then to the power conferred by its charter upon this plaintiff we find that it has power to “buy, hold and own books, pianos, furniture, machinery and property, except real estate, and corporate stock, of any and every kind and description, to borrow money, assign, mortgage, pledge or otherwise charge any or all property rights owned or held by this corporation, to issue corporate obligations, to secure the payment of moneys, borrow and do a general brokerage commission, manufacturing and merchandise business.” With these powers, and particularly with the authority to buy and hold “property * * * of any and every kind and description,” it is self-evident that there is no merit in the claim that the purchase of these certificates was wholly without the scope of the powers conferred by charter, and unauthorized under any and all circumstances. At most it might possibly be claimed to have been an excessive use of power, but even this is not wholly free from doubt. We are of the opinion that this case falls within the rule announced above and that under the decisions there cited this defendant cannot be permitted in this suit to question the power of plaintiff to acquire these certificates and to bring suit thereon.

Under the evidence and the law the verdict was proper and the judgment is affirmed.

Affirmed.


text:
    Edward Smith, Defendant in Error, v. Chicago City Railway Company, Plaintiff in Error.
    Gen. No. 20,052.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John J. Sullivan, Judge, presiding. Heard in this court at the March term, 1914.
    Affirmed.
    Opinion filed January 25, 1915.
    Statement of the Case.
    Action by Edward Smith against Chicago City Railway Company to recover for personal injuries received by plaintiff when a wagon he was driving was struck by one of defendant’s cars. Plaintiff had verdict and judgment for nine hundred dollars. To reverse the judgment, defendant prosecutes a writ of error.
    The place of the accident was at the intersection of a north and south street and an east and west street, and a street running northeasterly and southwesterly. Plaintiff was driving a loaded wagon north on the first mentioned street and when he reached the intersection he attempted to cross the street car tracks of defendant for the purpose of turning west on the second named street on which a car was approaching from the west. There was evidence tending to show that when plaintiff started to cross the tracks the street car was about two hundred or three hundred feet away coming at full speed and that it did not slacken until it struck the wagon. There was also testimony that no bell or gong was sounded and that the car ran by the point at the intersection where passengers were waiting to board the car.
    A. C. Wild, for plaintiff in error; Leonard A. Busby, Warner H. Robinson and Warren D. Bartholomew, of counsel.
    John Stelk, for defendant in error; James D. Power, of counsel.

      Abstract of the Decision.
    1. Street Railroads, & 133

      —when negligence and contributory ,negligence questions for jury. In an action against a street railway company for personal injuries resulting from a collision between a wagon he was driving and one of defendant’s cars at a street intersection, held under the evidence that the question whether plaintiff was guilty of contributory negligence and whether defendant was guilty of negligence was for the jury, and that a verdict for plaintiff was sustained by the evidence.
    2. Damages, § 115*—when recovery for personal injuries not excessive. A verdict for nine hundred dollars for personal injuries held not excessive, when it appeared that plaintiff was thrown from his wagon and was apparently unconscious for a time, that there .was an injury to his chest and knee, that he was confined to his bed for thirty days, that the knee was badly swollen and that certain functional disorders appeared which gradually diminished. •
    3. Damages, § 188*—sufficiency of evidence to- prove disorders resulting from accident. In an action for personal injuries, it is not necessary to prove disorders resulting from the accident by direct and specific evidence that the injury produced the ailments or how the injury produced them; it is proper practice to prove the condition of plaintiff’s health at and prior to the time of the accident and to follow that up by proof showing the physicial condition after the injury, and leave it to the jury to determine the cause of the subsequent physicial condition as a question of fact.
    4. Witnesses, § 220*—limits of cross-examination. In an action for personal injuries, a question put to a physician with reference to the existence of ailments which he could not see, held to be within the reasonable limits allowed by cross-examination.

      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:
    Louis Rees, Plaintiff in Error, v. Carl S. Johnson, Defendant in Error.
    Gen. No. 20,167.
    1. Evidence, § 352

      —admissibility of parol evidence to explain patent ambiguities. Though a latent ambiguity in a written contract may be explained by parol evidence, a patent ambiguity cannot be so explained.
    2. Vendor and purchaser, § 27*—when contract nonenforceable for patent ambiguity as to price. Where one provision of a contract for the sale of real estate showed the price to be $10,000 and another provision showed the price to be $5,000, held that the contract was patently ambiguous and therefore could not be the basis of an action for damages for an alleged breach thereof.
    Error to the Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding. Heard in this court at the March term, 1914.
    Affirmed.
    Opinion filed January 25, 1915.
    Rehearing denied February 8, 1915.
    Moses, Rosenthal & Kennedy, for plaintiff in error; Julius Moses and Arthur E. Manheimer, of counsel.
    John C. Trainor, for defendant in error.

      Sea Illinois Notes Digest, Vols, XI to XV, and Cumulative Quarterly, feame topic and section number.

   Mr. Justice McSurely

delivered the opinion of the court.

This is a suit for damages for the alleged breach of a written contract concerning the sale of real estate. This contract is as follows:

‘‘ Chicago, Aug. 5th, 1910:
Received of L. Rees Five Hundred and no/100 ($500.00) dollars as deposit on sale of building known as 10901 Mich. Ave. located at corner of Mich. Ave. & 109th St. to he sold for ($10,000.00) Ten Thousand dollars clear of all expense, the building to be turned over clear of all claims except ($5,000) Five Thousand dollars first mortgage. Fifteen Hundred ($1500.00) dollars to be paid on the first day of September, 1910 and the balance, Three Thousand (3000.00) dollars to be paid the 2nd day of January, 1911.
C. S. Johnson,
L. Ebbs
Witness, Carl Gr. Johnson.”

Plaintiff, Eees, alleged the subsequent failure and refusal of the defendant to perform his promises under the contract, and claimed as damages the difference between the market price and what plaintiff says is the contract price. Upon trial the jury returned a verdict finding the issues against the plaintiff, upon which judgment was entered.

The plaintiff upon the trial claimed that the contract was ambiguous as to the property to be sold, and testimony was heard to the effect that it was the intention of the parties to contract for the sale not only of the “building” but also the lot upon which it stood, including another building located on the lot. The defendant, in his turn, claimed that the contract was ambiguous as to the interest to be sold and, over the objections of plaintiff, introduced testimony to the effect that he was the owner of only a one half interest in the property, the other half being owned by his wife, that this was known to the plaintiff, and that it was the intention of the parties by this instrument to contract with reference only to defendant’s half interest in the property.

The presence of these ambiguities may be conceded by us, and there are persuasive reasons for considering them to be latent ambiguities which parol testimony is admissible to explain, but we are of the opinion that there is also present in this contract a patent ambiguity as to the purchase price. The first provision as to price is, “to be sold for ($10,000.00) Ten Thousand dollars clear of all expense, * * * to be turned over clear of all claims except ($5,000) Five Thousand dollars first mortgage.” Standing alone this means that the seller is to receive $10,000, the buyer to take the property subject to a $5,000 mortgage; as it would be ordinarily understood and expressed, the seller is to receive $10,000 for his equity. Provisions like this have been in such constant use in a very large number of transactions in this county that there is no room for reasonable difference of opinion as to their meaning.

The next provision is as follows: “Fifteen Hundred ($1500.00) dollars to be paid on the first day of September, 1910 and the balance, Three Thousand (3000.00) dollars to be paid the 2nd day of January, 1911.” Bearing in mind the cash payment of $500, this provision can mean only one thing, namely, a sale of the equity for $5,000, and hence there is a direct conflict with the prior provision; that the buyer is to take the property subject to the $5,000 mortgage is certain, but whether the seller is to receive for his equity $10,000, as agreed upon in the first provision, or $5,000, as agreed upon in the second provision, is patently uncertain.

In Parsons on Contracts, secs. 558-559, the author quotes from Lord Bacon thus: “There be two sorts of ambiguities of words; the one is ambiguitas patens, and the other latens. Patens is that which appears to be ambiguous upon the deed or instrument; latens is that which seemeth certain, and without ambiguity, for any thing that appeareth upon the deed or instrument; but there is some collateral matter out of the deed that breedeth the ambiguity.” And the comment of the author is that “the rules of Lord Bacon rest entirely upon the principle that the law will not make, nor permit to be made, for parties, a contract other than that which they have made for themselves.” It is a legal maxim that “a patent ambiguity cannot be cleared up by extrinsic evidence.” 2 Cyc. 278. In Panton v. Tefft, 22 Ill. 367, the court held that parol evidence is inadmissible to explain a patent ambiguity, saying: “While a latent ambiguity may be so explained, it is because it is made to appear by evidence outside of the instrument, yet a patent ambiguity is not susceptible of any other explanation than that furnished by the instrument itself.”

It is obvious that any parol testimony tending to show that it was intended that the equity in the property in question should be bought and sold for $5,000 would tend to vary and contradict that provision of the contract which, as we have seen, provides that it should be bought and sold for $10,000; and equally is it true that testimony tending to establish- the price named in the first provision would tend to contradict and vary the price named in the second provision of the contract. It follows, therefore, that a contract for the sale of property, patently ambiguous as to the price, cannot be the basis of an action for damages for its alleged breach. “No contract will be enforced, as a contract, if it have no plain and natural or legal meaning, by itself; * * * the supposed contract being set aside for such reasons as these, the parties will be remitted to their original rights and obligations.” 2 Parsons on Contracts, sec. 566.

In the case before us, plaintiff cannot recover damages on the contract. While we are not prepared to approve all the rulings on the evidence upon the trial, or the instructions to the jury, yet, as under our construction of the contract and the law applicable thereto there can be no recovery in this case, we shall not disturb the judgment, which was favorable to the defendant. We do not wish to be understood as indicating any opinion as. to the right of plaintiff to recover the $500 earnest money paid by him, in a proper suit. For the reasons above indicated the judgment is affirmed.

Affirmed.


text:
    Andrew Goyt, Plaintiff in Error, v. National Council, Knights and Ladies of Security, Defendant in Error.
    Gen. No. 20,381.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the .Hon. Hosea W. Wells, Judge, presiding. Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed January 25, 1915.
    Statement of the Case.
    Action by Andrew Goyt against the National Council, Knights and Ladies of Security, a corporation, on a benefit certificate issued by the defendant on the life of plaintiff’s wife. The original certificate was issued December 19, 1900, and was at that time payable $700 to the husband and $300 to Elizabeth Spring, the mother of Mrs. Goyt. On August 27,1908, the original certificate was returned to the defendant with a request from Mrs. Goyt to have the benefits all made payable to the plaintiff, thus leaving out the mother. Mrs. Goyt had been declared insane by the County Court on April 21, 1908, and this finding was in force when the certificate was changed. At the death of Mrs. Goyt the plaintiff claimed the entire proceeds of the certificate. Elizabeth Spring claimed the amount provided in the first certificate, on the ground that the insured was insane when the beneficiary was changed. The face value of the certificate at the time of the death of Mrs. Goyt was $960. Plaintiff would not accept as full settlement $672, being his proportion of the original certificate, and brought this suit for the whole amount.
    The case had been tried twice. Upon the first trial the trial court directed a verdict for plaintiff, but this was held to be reversible error by the Branch Appellate Court, in 178 Ill. App. 377. Upon the first trial it was claimed by plaintiff that the issuance of the second certificate, changing the beneficiary, was a new contract, and also that the defendant could not set up as a defense that Mrs. Goyt was insane. The Appellate Court held against plaintiff on both these propositions. The court also held that the evidence introduced by the defendant made at least a prima facie case that Mrs. Goyt was not sane at the time the change was made and that the burden of proof was thus shifted to the plaintiff to show that the change was made during a lucid interval. The law of the case being thus settled adversely to the contentions of plaintiff, the issue tried before the jury on the second trial was as to the sanity of Mrs. Goyt on August 27, 1908, at the time she directed defendant to issue the new certificate. The jury was of the opinion from consideration of the evidence before it that she was without sufficient mental understanding to transact business at this time, and a verdict adverse to plaintiff was returned upon which judgment was entered. To reverse the judgment, plaintiff prosecutes error.
    Abstract of the Decision.
    Insane persons, § 5

      —when finding as to sanity of member of benefit society sustained by evidence. In an action on a benefit certificate issued by a benefit society on the life of plaintiff’s wife, where the issue was whether plaintiff’s wife was sane or insane when she requested a change of beneficiaries, a finding of the jury that she was insane, held sustained by the evidence.
    Charles R. Napier and Charles S. McIlvaine, for plaintiff in error.
    A. W. Fulton, 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.


author: Mr. Presiding Justice Barnes

text:
    Solomon Segal, Defendant in Error, v. Joseph Goldberg, Plaintiff in Error.
    Gen. No. 18,497.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Habby P. Dolan, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.
    Affirmed.
    Opinion filed January 26, 1915.
    Statement of the Case.
    Action by Solomon Segal against Joseph Goldberg for the return of $350 alleged to have been deposited with defendant under the terms of a lease by which said sum was to be held by defendant, as lessor, until the termination of said lease as security for the purpose of indemnifying the lessor for the removal of the front of the building, and was to be returned with three per cent, interest per annum unless the lessee failed to restore the said front “at the expiration of the lease,” in which event it was to be retained as fixed and liquidated damages. The lease also provided for a penalty of $10 each day the tenant held over. The case was tried before .the court without a jury and there was a finding and judgment in favor of plaintiff for $235; To reverse the judgment, defendant prosecutes a writ of error.
    The testimony tended to show that at the expiration of the lease, the lessee offered to make the restoration but was deterred from so doing by the lessor, that the cost of restoration would have been $150, and that the lessee surrendered the keys five days after the lease expired. The court evidently arrived at its finding by deducting from the amount of the deposit and three per cent, interest thereon to the date of the expiration of the lease the estimated cost of restoring the building and $50 for holding over, thus leaving $200, on which the statutory interest to the date of judgment was $35.

      Abstract of the Decision.
    ' Damages, § 85

      —when deposit under terms of lease treated as penalty. A deposit made by the lessee with the lessor which by the terms of the lease was to be retained by the lessor in case the lessee failed to restore the front of the building at the expiration of the lease, held properly treated by the court as a penalty rather than liquidated damages in a suit to recover it, where the only competent evidence on the estimated cost of restoring the building was offered by plaintiff, from the nature of which it appeared the cost could be computed with approximate certainty.
    Harry Brown, for plaintiff in error; L. M. Ackley, of counsel.
    Douglas C. Gregg, for defendant in error.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    City of Chicago, Plaintiff in Error, v. E. H. Allen, Defendant in Error.
    Gen. No. 20,006.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. David Sullivan, Judge, presiding. Heard in the Branch Appellate Court at the April term, 1914.
    Affirmed.
    Opinion filed January 26, 1915.
    Statement of the Case.
    Prosecution by the city of Chicago against E. H. Allen in which defendant was charged with disorderly conduct in violation of a city ordinance. Upon a trial by the court without a jury defendant was acquitted. To reverse the judgment, plaintiff prosecutes a writ of error.

      Abstract of the Decision.
    1. Disorderly conduct, § 1

      —when finding of not guilty sustained by evidence. On a prosecution for disorderly conduct in violation of a city ordinance, a finding of not guilty held not contrary to the evidence where the weight thereof depended mainly upon the credibility of witnesses.
    2. Appeal and error, § 472*—when limiting number of witnesses not preserved for review. Action of court in limiting the number of witnesses, held not preserved for review, where no objection was taken to the court’s suggestion to that effect, but on the contrary it appeared that counsel appeared to have acquiesced in it.
    3. Appeal and error, § 1512*—when action of court in taking judicial notice of character of place witness worked not reversible. In a prosecution for disorderly conduct, the fact that the court improperly took judicial notice of the bad character of a place in which one of the witnesses at one time worked, held not reversible error, where the material fact in controversy was as to who were the aggressors in the fight.
    . The same charge was also preferred and prosecuted at the same time against one Charles E. Selleck, growing out of the same occurrence and with the same result. The evidence and questions being the same, both cases were consolidated in the Appellate Court for hearing. For the decision of the court on the writ of error sued out by Charles E. Selleck, see City of Chicago v. Selleck, p. 191, post.

    William H. Sexton and James S. McInerney, for plaintiff in error; Albert J. W. Appell, of counsel.
    Francis E. Croarkin, for defendant in error; Francis W. Walker, of counsel.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    City of Chicago, Plaintiff in Error, v. Charles A. Selleck, Defendant in Error.
    Gen. No. 20,007.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. David Sullivan, Judge, presiding. Heard in the Branch Appellate Court at the April term, 1914.
    Affirmed.
    Opinion filed January 26, 1915.
    Statement of the Case.
    This case was consolidated for hearing with the case of City of Chicago v. Allen, reported on p. 189 ante, and the decision in that case held controlling in this.
    William H. Sexton and James S. McInerney, for plaintiff in error; Albert J. W. Appell, of counsel.
    Francis E. Croarkin, for defendant in error; Francis W. Walker, of counsel.
   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    A. Yuckman, Defendant in Error, v. J. J. Considine, Plaintiff in Error.
    Gen. No. 20,103.
    (Not to be reported in full.)
    Error to the Municipal Court oí Chicago; the Hon. William N. Gemmill, Judge,' presiding. Heard in the Branch Appellate Court at the March term, 1914.
    Reversed and remanded.
    Opinion filed December 22, 1914.
    Rehearing allowed and additional opinion filed January 26, 1915.
    Statement of the Case.
    Action by A. Yuckman against J. J. Considine to recover commissions claimed to have been earned by him under a verbal agreement with the latter to procure a purchaser ready, willing and able to buy certain real estate owned by defendant’s mother.
    Plaintiff claimed that defendant agreed to pay him two and one-half per cent, commission, and that the parties he was negotiating with subsequently accepted defendant’s terms but defendant would not close the deal. On the other hand, defendant claimed that on plaintiff’s first visit he told him the property was for sale, and that his mother and not he was the- owner thereof; that after the offer aforesaid was rejected, plaintiff requested him to see if his mother would not take a less sum, and that he did not see plaintiff thereafter until he came claiming a commission.
    Three important matters were in dispute: (1) The. terms of sale; (2) whether defendant personally promised to pay a commission fee; (3) whether he held himself out as the owner or as authorized to sell.
    In an instruction on the last matter the Court said:
    “The question of ownership of the property is altogether immaterial; that is, if you should find from the evidence in the case that the defendant held himself out to be the duly authorized agent of the owner of the property, and that he had the proper authority to sell this property, then he would be liable whether or not he owned the property.”
    Abstract of the Decision.
    Bbokees, § 95

      —when instructions misleading. In an action to recover brokerage commissions for procuring a purchaser ready and able to buy real estate belonging to defendant’s mother, an instruction given for plaintiff telling the jury that the question of ownership of the property was “altogether immaterial,” held misleading when the controverted issues of fact were whether plaintiff did not know that defendant was acting merely as agent of the owner in the transaction, and whether defendant made any personal promise to pay the commissions.
    Thereupon defendant requested the Court to instruct as follows:

      ‘ ‘ The court instructs the jury that if you find from the evidence that the defendant, J. J. Considine, was not the owner of the real estate in question, and was not authorized by the owner thereof to sell or offer the same for sale, and that the plaintiff had knowledge of this fact prior to or at the time he began negotiations with the prospective purchasers, he cannot recover, and your verdict must be for the defendant. ’ ’
    The court refused so to instruct the jury and defendant excepted thereto and to that part of the given instruction saying that the ownership was immaterial. To reverse a judgment in favor of plaintiff, defendant prosecutes error.
    Joseph P. Mahoney, for plaintiff in error; Howard M. Harpel and J. Kentner Elliott, of counsel.
    Adler & Lederer, for defendant in error.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    Harry A. Sell, Appellant, v. Charles H. Fisk, Appellee.
    Gen. No. 20,273.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Tbiax, § 212

      —insufficiency of pleadings as ground for direction . of verdict. The insufficiency of the declaration cannot he tested on a motion to direct a verdict, even though it is fatally defective, for by pleading to the merits the defendant admits its sufficiency and elects to proceed to the trial of an issue of fact. The fact that a defendant by pleading does not waive substantial defects in the declaration and may take advantage thereof by a motion in arrest of judgment does not affect the rule.
    2. Negligence, § 204*—right to direction of verdict. Where plaintiff’s exercise of due care becomes a question of fact for the jury, a directed verdict for defendant is improper even though the declaration did not allege the exercise of due care, since the verdict might cure such defect.
    Appeal from the Superior Court of Cook county; the Hon. M. L. MoKinxet, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.
    Reversed and remanded.
    Opinion filed January 26, 1915.
    Statement of the Case.
    Action by Harry A. Sell against Charles H. Fisk to recover damages for personal injuries. At the close of plaintiff’s case the court, on motion of defendant, excluded the testimony and directed a verdict because of the insufficiency of the declaration. To reverse a judgment entered on the verdict, plaintiff appeals.
    Albert H. Fry, for appellant.
    Brundage, Landon & Holt, for appellee; Robert N. Holt, of counsel.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    Peter L. Flodin, Appellee, v. W. H. Lutes Company, Appellant.
    Gen. No. 20,334.
    1. Sales, § 373
      —sufficiency of evidence. Evidence held sufficient to show that the seller of notes was the ostensible owner thereof, that they were sold for an undisputed amount upon condition that it would repurchase them on the buyer’s request, and that the seller, after request duly made, failed to. comply with such promise.
    2. Corporations, § 370*—when cannot question authority of president to make a conditional sale of notes. Where a corporation through its president sold notes and received the money paid therefor, it is in no position to question the authority of its president to sell the notes or the validity of his agreement to repurchase them, where the transaction appears to have been in furtherance of its corporate interests.
    3. Corporations, § 412*—power to make conditional sale of notes. Where a sale of notes is made by a corporation to obtain money for corporate purposes, there is an implied and incidental power to make the sale conditional upon an agreement for repurchasing the notes.
    4. Appeal and error, § 966*—when no question of law presented , for review. Abstract of the record held to present no question of law but only a question whether the evidence was sufficient to sustain the trial court’s finding, where it did not show any objections to the rulings on the evidence or that any propositions of law were submitted, and the only motion made during the progress of the trial was a motion at the close of the plaintiff’s case to find for defendant.
    Appeal from the Municipal Court of Chicago; the Hon. Oscar M. Tobrison, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.
    Affirmed.
    Opinion filed January 26, 1915.

      Certiorari denied by Supreme Court (making opinion final).
    Mather & Hutson, for appellant; William A. Sheehan, of counsel.
    Brecher & Chindblom, for appellee; Lambert Kaspers, of counsel.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.

. Appellant sold certain laundry machinery to a firm composed of one Haynes and one Hennessey. They paid part of the account and gave appellant their promissory notes for the balance, aggregating $2,065, payable to appellant’s order and secured by a chattel mortgage on the property sold. Later Flodin, appellee, became a partner of Haynes and Hennessey and purchased the above notes through negotiations with W. H. Lutes, president of appellant, on condition, as he claims, that appellant would, on his request, repurchase them on the same terms on which they were sold. The agreement, whatever it was, was oral. A few months later he returned the notes to said Lutes and demanded compliance with the agreement, the nature and character of which does not at that time appear to have been discussed or questioned. Later, appellant failing to comply therewith, this suit was brought upon appellant’s alleged promise to repur- ' chase.

The case was tried before the court without a jury and there was a finding and judgment in favor of appellee for $2,101.90.

The defense set up in appellant’s amended affidavit •of merits was that it did not deliver the notes to plaintiff for a valuable consideration; that it did not receive the amount therefor claimed by plaintiff; that it made no agreement to repurchase the notes; that no tender of them was made, and that the promise made was made by Lutes in his personal capacity, and if made by an agent of the company was ultra vires and not binding on it. Except as to the last mentioned ground of defense, the issues thus raised were wholly as to questions of fact".

We have thoroughly examined the evidence, documentary and otherwise, covering sixty-nine pages of the abstract and two hundred sixty-nine pages of the record, and deem it unnecessary to discuss the controverted facts in detail. The evidence was abundantly sufficient, we think, to show that appellant, as the ostensible owner of the notes, sold them to appellee for an undisputed amount, upon condition that it would repurchase them on his request, and that appellant after request duly made, failed to comply with such promise. Besides, appellant having received the money paid therefor, we think it is in no position to question the authority of its president to sell the notes for it or the validity of the agreement to repurchase them, especially as the transaction appears to have been in furtherance of its corporate interests. George E. Lloyd & Co. v. Matthews, 223 Ill. 477. In such a case, where the sale is made to obtain money for corporate purposes, we think there is an implied and incidental power to make the sale conditional, as in the ■ ease at bar, upon an agreement for repurchase.

Many questions of law are argued by appellant that • are in no way presented as such on this record, namely: the authority of the president of appellant corporation to bind the company by such a promise; whether, if he had such authority, it was not ultra vires; whether it was not within the statute of frauds; whether the demand for repurchase was made within a reasonable time; whether there was a sufficient tender; whether appellant was not released from all liability by failure to foreclose the mortgage,o or by merger thereof as a result of appellee’s purchase thereof after he became a member of the firm owning the mortgaged property; whether the court applied the proper rule of damages, and other questions including those pertaining to the rights of an indorser or guarantor.

So far as the abstract shows, the record presents nothing for us to decide except as to whether the evidence was sufficient to sustain the court’s finding, for there were no objections to the rulings upon evidence, no propositions submitted to the court to be held as law of the case, and no motion made during thé progress of the trial, except at the close of plaintiff’s case, to find the issues for the defendant, which merely raised the question whether plaintiff’s evidence tendéd to establish his claim, namely, a conditional sale by appellant to appellee and breach of the condition. The motion being denied, defendant proceeded to put in its defense and submitted the case on questions of fact alone, in no way raising a question of law. In such a case we do not understand that the record presents any question of law for review. The same rule obtains here in our opinion that does in a case which goes ■ directly by appeal or writ of error from the trial to ■ the Supreme Court. In such a case (West Chicago Park Com’rs v. Metropolitan West Side R. Co., 182 Ill. 246) the Court said that, in the absence of rulings on propositions of law, it would be assumed that the trial court entertained correct views of the law, and the : only question left open was whether the court erred in • its findings of fact. We think the same rule must prevail here where no questions of law are directly raised by submission of propositions of law, or rulings upon evidence or some motion. We so construe Chicago Union Traction Co. v. City of Chicago, 202 Ill. 576.

What questions of law, if any, upon such state of the record, were considered by the court below, we have no means of determining. So far as the abstract shows these questions of law are raised here for the first time, and we are, therefore, not required to con- - sider them. Finding no occasion to disturb the court’s findings of fact, the judgment will be affirmed.

Affirmed.


text:
    William J. Sandberg, Administrator, Appellee, v. Chicago Railways Company, Appellant.
    Gen. No. 20,346.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Marcus A. Kavanagh, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.
    Reversed and remanded.
    Opinion filed January 26, 1915.
    Statement of the Case.
    Action to recover damages on account of the death of one Schirmer, resulting from a collision with one of appellant’s street cars while deceased was crossing its tracks after dark. The case was submitted to the jury on plaintiff’s evidence alone, defendant offering none but relying on the insufficiency of plaintiff’s evidence to show either negligence on its part or the exercise of due care by deceased. To reverse a judgment in favor of plaintiff for four thousand dollars, defendant appeals.
    Deceased was walking with his head down as testified to by his widow. She last saw him at the first rail of the east tracks while so walking, and said that when he left the sidewalk the car was about two hundred feet north. She did not see the collision and the testimony of the only witness who did throws little light on the main questions. A passenger on the car testified that he felt the brakes put on suddenly and a jolt immediately afterwards. Another testified that the car was going slower and slower before the collision. The several witnesses testified that they heard no bell, and that the car was going at the rate of about six or eight miles an hour. There was no obstruction to a view of the car.

      Abstract of the Decision.
    . 1. Street railroads, § 149

      —when requested instruction improperly refused. In an action against a street railway company to recover for the death of plaintiff’s intestate caused by being struck by a car when he was crossing the street car tracks, a requested instruction on behalf of defendant to the effect that the mere happening of the accident together with the proof of the exercise of ordinary care on the part of the deceased does not raise a pre^ sumption of negligence on the part of defendant, held improperly refused, where the defendant offered no evidence in the case and there was danger that the jury might supplement the meagerness of the evidence with such presumption.
    2. Street railroads, § 152*—when argument of plaintiff’s counsel prejudicial error. In an action against a street railway company to recover damages for the death of plaintiff’s intestate, where the. defendant relied wholly on the insufficiency, of plaintiff’s case and introduced no evidence, action of court in permitting plaintiff’s counsel in his argument, over objection, to allude to the fact that the defendant, though pleading not guilty, had not produced as witnesses persons whom its counsel in his opening statement said were on the car and knew how the accident happened, and thereafter permitting him to continue to dwell on the fact, comparing the attitude of the two sides in respect to producing witnesses to the occurrence, and also to say that defendant was afraid to put its motorman on the witness stand for cross-examination, held prejudicial error as encouraging plaintiff’s counsel to argue, in effect, that defendant was guilty because it did not call witnesses in its power to produce.
    Weymouth Kirkland and Frank L. Kriete, for appellant; W. W. Gurley and J. R. Guilliams, of counsel.
    Gustav E. Beerly, for appellee; Edward .Maher, of counsel.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    Hydraulic-Press Brick Company, Appellant, v. Samuel Miller et al., Appellees.
    Gen. No. 20,357.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.
    Affirmed.
    Opinion filed January 26, 1915.
    Statement of the Case.
    Bill by Hydraulic-Press Brick Company praying for a mechanic’s lien on the premises of Samuel Miller. To reverse a decree dismissing the bill for want of equity, complainant appeals.'
    It appeared that Miller, the owner of the premises, entered into a contract with one Warshavsky by which the latter agreed to construct and deliver buildings on said premises free and clear of all liens, waiving all right thereto under and by virtue of the Mechanics’ Liens Act and that Warshavsky applied to complainant for brick to be used in the building. Thereupon complainant wrote Miller as follows: “Dear Sir:
    Mr. Louis Warshousky has placed an order with us for: (here follows the amount and price of the brick required)—to be delivered to your property 3742-6 Fullerton Avenue. We do not know very much about Mr. Warshousky’s financial responsibility and do not wish to do him any injustice, but before accepting this order, we wish to inquire whether you will agree to see that our account is paid before final settlement is made with Mr. Warshousky.
    Please kindly let us hear from you by return mail, so as not to delay the delivery of the brick.
    Very truly yours,
    Hydraulic-Press Brick Company.”
    The next day, Miller replied:

      Abstract of the Decision.
    I. Mechanics’ liens, § 62

      —when provision of original contract deprives subcontractor of right to lien. A provision in a building contract between the owner and the general contractor, whereby the latter agrees to deliver the building free of liens and waives all right thereto by virtue of the Mechanic’s Lien Law, prevents .a subcontractor from asserting a .lien.
    • 2. Guaranty, § 1*—when contract constitutes. Where a letter written by the owner -to a' subcontractor constituted an agreement to see that materials furnished to the general contractor Would be paid out of any moneys that might be due to the latter on final settlement, held that the undertaking was, at most, that, of a guarantor to the extent of moneys that might be so due and not a contract to pay for the materials in any event.
    ‘‘ Gentlemen :
    Kindly send the bricks for my building at 3740-6 Fullerton Av. as per receipt of your letter of the 9th inst., and oblige,
    Yours truly,
    Samuel Miller.”
    Benjamin F. J. Odell, for appellant.
    Soboroff & Newman, for appellee Samuel Miller; Samuel W. Newman, of counsel.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    The People of the State of Illinois, Appellee, v. Bowman Dairy Company, Appellant.
    Gen. No. 20,803.
    (Not to be reported in full.)
    Abstract of the Decision.
    Criminal law, § 487

      —when appeal will he dismissed. On appeal from a judgment in-a criminal case, the appeal may he dismissed on appellee’s motion, where the case is one in which no appeal lies and there having heen.no joinder in error or the equivalent thereof.
    Appeal from the County Court of Cook county; Hon. John E. Owens, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.
    Appeal dismissed.
    Opinion filed January 26, 1915.
    Statement of the Case.
    Prosecution by the People of the State of Illinois against' Bowman Dairy Company, a corporation. To reverse a judgment of guilty, defendant appeals.
    Montgomery, Hart, Smith & Steere, for appellant.
    Maclay Hoyne, for appellee.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.


author: Mr. Justice Gridley

text:
    Frank R. Thompson, Appellant, v. J. S. Frelinghuysen, Appellee.
    Gen. No. 20,274.
    1. Pbincipal and agent, § 69
      —when agent entitled to commissions. In an action for contingent commissions under a written contract by which a plaintiff was to act as insurance agent for sev-. eral companies, held that the plaintiff’s right to such commissiops1 became vested at the end of the year, although the total amount could not be ascertained until the expiration of another year, and such right was not affected by a contract relating to future relations between the parties.
    2. Pbincipal and agent, § 83*—what amount of agent’s commission. In an action for insurance commissions, a contention that office expenses of the plaintiff were not considered in determining the amount of the plaintiff’s claim was not maintainable, it appearing that all expenses were satisfied, being charged against premiums, and the contention was contrary to the previous practice of the parties.
    3. Appeal and ebbob, § 1810*—when Appellate Court may include interest in judgment. In an action on an instrument in writing tried before the court without a jury, the court may include interest on the judgment rendered on appeal.
    Appeal from the Superior Court of Cook county; the Hon. William E. Deveb, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.
    Reversed and judgment here with finding of facts.
    Opinion filed January 26, 1915.

      Certiorari denied by Supreme Court (making opinion final).
    Bates, Harding, Edgerton & Bates, for appellant.
    W. S. Johnson and George Gillette, for appellee.

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

   Mr. Justice Gridley

delivered the opinion of the court.

Frank B. Thompson commenced an action in assumpsit in the Superior Court of Cook county upon a written contract to recover of the defendant, J. S. Frelinghuysen, an unpaid balance for certain “contingent commissions” earned by Mm under said contract. On the trial the plaintiff claimed that he was entitled to the total sum of $3,080.85, together with interest thereon, at five per cent, per annum, from January 1, 1907. It does not appear that the amount of plaintiff’s claim was disputed. The defense was that under the evidence the plaintiff was not legally entitled to recover any sum whatsoever from the defendant. The cause was heard before the court without a jury, resulting in a finding and judgment in favor of the defendant. It is here contended by the plaintiff that the judgment of the trial court should be reversed and that a judgment should be entered in this court against the defendant for said amount and interest.

The facts as disclosed from the evidence are substantially as follows: The defendant, .Frelinghuysen, had been for many years the general agent in the city of New York for a number of fire insurance companies. His business required that he have a representative at Chicago, and plaintiff acted in that capacity during the year 1905 under the terms of the written contract sued upon. For several years prior to 1905 plaintiff had acted as defendant’s representative at Chicago, and during the year 1904 he was so acting under a contract substantially the same as the contract sued upon, there being a slight difference in the percentage to be paid plaintiff as contingent commissions. The contract sued upon is in the form of a letter, dated August 3, 1905, signed by defendant in New York and addressed to plaintiff at Chicago. It is therein stated that plaintiff is appointed the representative of defendant at Chicago, “as of January 1, 1905,” for Certain named states, including the state of Hlinois, and that the contract is “to continue in full force and effect until terminated by either party by written notice of sixty days.” It is further stated that nothing in the agreement is to be construed as entitling plaintiff to the sole representation of defendant’s companies in the district named, or to entitle plaintiff “to contingent commission on business not written, secured or approved” by plaintiff in said district, or to prevent defendant from establishing such other agencies or representatives as may seem expedient to him. The paragraph of the contract headed “Remuneration” is as follows:

“Tour salary will be $175.00 per month, paid monthly, and $100.00 per annum for each $10,000.00 of premiums over $80,000.00 in the Manufacturers Lloyds, Merchants Fire Lloyds, Wilmington National, Stuyvesant, Pacific, Insurance Underwriters and Spring Garden, and the actual disbursements made by you for office rent and office expenses.
“In addition to,this we will pay you a contingent commission of on the net profits up to July 1, 1905, and 9% on the balance of the year on the combined business of the National, Stuyvesant, Pacific, Insurance Underwriters and Spring Garden, and a contingent commission of 5% on the net profits of the Manufacturers Lloyds, Merchants Fire Lloyds and Wilmington. These profits to be calculated annually by deducting all losses, commissions, and all other expenses from the EARNED PREMIUM on risks written and/or approved by you in said companies. The commissions on business placed direct with Jameson & Frelinghuysen, Chicago, and the commissions received from outside companies on business placed by Jameson & Frelinghuysen, Chicago, to be placed as an offset against the expenses of the Chicago office in calculating the contingent commission.
“We will also pay you one-third of the excess brokerage commission on all business placed by you in the companies in our office as well as all other companies, being the excess of the total commissions received on such brokerage business over the expenses of Jameson & Frelinghuysen’s Chicago office, said expenses not to include the commissions paid to other brokers for business of the various companies. The excess brokerage to be figured at the end of each year.”

Prior to August 3, 1905, and from January 1, 1905, plaintiff had been working under a verbal arrangement with defendant, substantially the same as stated in said contract. It is to be noticed that the net profits, upon which plaintiff’s contingent commissions depend, are to be “calculated annually.’’ This provision, together with the further provision that the contract is to continue in full force until terminated by either party by a sixty days’ written notice, suggests that it was contemplated at the time of the making of the contract that the relation of principal and agent between the parties should continue through a term of years. Plaintiff continued to work under said contract up to and including December 31,1905. Early in December, 1905, however, by mutual agreement, a new contract was entered into between the parties, to commence January 1, 1906, and to continue in force until terminated by either party. This contract is evidenced by a letter written by defendant to plaintiff, dated December 4, 1905, and hereinafter referred to, and under this contract plaintiff worked throughout the year 1906.

It is also to be noticed that in the contract of August 3, 1905, no special provision is made for a settlement of plaintiff’s contingent commissions, in the event" of the termination of said contract by notice or by mutual agreement. It is further to be noticed that the net profits, upon which plaintiff’s contingent commissions depend, are to be calculated “by deducting all losses, commissions, and all other expenses from the earned premium on risks written and/or approved” by plaintiff in the companies named. The words “earned premium” were emphasized by being written in the contract in capital letters, and, as stated by counsel for defendant in their printed argument here filed, the present suit turns upon the construction of the clause of the contract in which those words appear.

There is no controversy in this case as to the meaning of the words “earned premium” as used in said contract. Counsel agree that the earned premium on a policy of fire insurance is “that portion of the whole premium which the time the policy has run bears to the whole term; that is, if a policy issued for a year, upon which the whole premium is $.100, has run for three months, the earned premium would be $25; if it has run for six months, the earned premium would be $50.” Counsel also agrees that the policies written or approved during the year 1905 by plaintiff in the various companies named in the contract were all one-year policies, i. policies which expired, if not sooner terminated by a fire loss or by cancellation, one year from the date on which they were issued. By the terms of the contract the net profits were to be calculated, not only by deducting “commissions and all other expenses” from the earned premium on said risks, but also by deducting “all losses” on said risks. It is apr parent that, on a one-year policy written or approved by plaintiff on December 31, 1905, a fire loss might occur on the last day of the life of the policy, viz., December 31, 1906. It is also apparent that it would be impossible to ascertain whether there would be any profit on the writing of a particular policy until the policy had expired; and it would also be impossible to ascertain whether there would be any profit, or if some profit how much, upon the aggregate premiums received from all the policies written or approved by plaintiff during the year 1905, until the expiration of all such policies, which, as to policies bearing date December 31, 1905, would not occur until December-31, 1906. Of course, it is not difficult to compute the amount of the premium “earned” at any particular time on a policy of fire insurance, but to compute the premium earned at the end of a year on each of many policies written from time to time during the year, in order to ascertain the aggregate “earned premiums” on the year’s business, involves considerable labor and is seldom done. Where, as in this case, the policies are all one-year policies a much simpler method is usually adopted, viz., one-half of the aggregate premiums of policies written during the year is treated as earned premiums and the other half as unearned premiums. This latter half is sometimes called “re-insurance reserve,” and is that portion of the aggregate premiums received during the year which is kept as a fund for the protection of outstanding policies. That the parties agreed to this method of computing the earned premiums and the “re-insurance reserve” on the policies written or approved by plaintiff under the contract sued upon, as well as under the prior contract for the year 1904, is apparent from the facts and circumstances in evidence, and particularly from certain letters. About a month after the making of the written contract of August 3, 1905, plaintiff wrote defendant requesting the latter’s interpretation of the last two lines of the first clause of the paragraph entitled “Remuneration,” which reads, “and the actual disbursements made by you for office rent and, expenses,” and stating, “I take it for granted that you intend this to read in connection with the balance of this paragraph. The only change to be made was in the contingent.” To this letter defendant, on September 8,1905, wrote plaintiff in reply, as follows:

“Our understanding of your contract is as follows:
“From the premiums is deducted the commission paid brokers and all the expenses of your office of every kind and description, including your own salary and traveling expenses; in fact every expense of whatever nature that pertains to the Chicago business incurred at your office.
“Also deduct all losses incurred during the year and any increase in settlement of losses incurred in. previous years.
“Also 50% reinsurance reserve.
“There is added to your business the earned premiums of the previous year, being the amount of reinsurance reserve deducted.
“Also the amount of commissions on direct business, and all commissions on business placed outside up to but not exceeding the amount of the .Chicago ex- • penses.”

In accordance with this construction of the contract plaintiff, during the spring of 1906, prepared a statement of the business done by him, showing the net profits thereon as of January 1, 1906, and his earnings on contingent commissions. This statement was forwarded to defendant by letter, dated May 3, 1906, in which plaintiff referred to said statement as his “contingent statement for the year 1905,” and requested a “check to cover.” After some correspondence plaintiff, on June 18, 1906, forwarded a corrected statement showing the amount due him, as of January 1, 1906, to be $4,704.90. This latter statement was introduced in evidence. The periods from January 1 to -June 30 and from July 1 to December 31, 1905, were separated in the statement because of the slight difference in the per cent, of contingent commission stipulated in the contract for the first and the second six months’ business. It appears from the statement that the aggregate premiums written and collected by plaintiff during the first six months ’ period were $50,441.44, and during the second six months’ period $50,175.84, or a total for the year of .$100,617.28. It further ap- . pears that, in arriving at the net profits, plaintiff in said statement deducted from the aggregate premium receipts for each six months’ period, in addition to commissions paid agents all losses and all expenses, one-half of said premium receipts for each period, designating the same as “50 per cent, re-insurance reserve,” or a total “re-insurance reserve” on the ■business for the year 1905 of $50,308.64. After making these deductions plaintiff computed his contingent commissions for each six months’ period, at the percentages stipulated in the contract, from the remainder. In other words plaintiff, as to the contingent commissions becoming due him, then requested a payment on account, and that he then be paid on the basis of one-half for the net premium receipts procured through his efforts during the year 1905, both parties then knowing that other losses might or would occur on the unexpired policies, which would reduce the amount of the net profits on the policies written by plaintiff during said year. It further appears from said statement, and from other evidence, that plaintiff claimed that there was then due him, on account of his contingent commission on policies written in 1905, the sum of $1,686.99. At this time it also appears that there was due him a certain balance for other contingent commissions on policies written by him for defendant, under and by virtue of his 1904 contract, during the year 1904, which policies had all expired on December 31, 1905. This was so because a “re-insurance reserve” had similarly been deducted from the amount of the net premiums received on policies written by plaintiff for defendant during said year 1904. Accordingly, as appears from said statement contained in plaintiff’s said letter of June 18, 1906, plaintiff then claimed the additional sum (as subsequently corrected) of $3,017.91, for contingent commissions on “re-insurance reserve brought forward from 1904.” These two amounts, viz., $1,686.99 and $3,017.91, added together make the total sum of $4,704.90, as then claimed by plaintiff. On June 26, 1906, the defendant forwarded to plaintiff at Chicago seven checks, each payable to plaintiff’s order, aggregating the said sum of $4,704.90. These checks were received by plaintiff and deposited and subsequently paid, and plaintiff on June 29, 1906, wrote defendant acknowledging the receipt of “checks for my 1905 contingent.”

As previously stated, a new written contract was entered into between the parties by mutual agreement in December, 1905. This contract is also in the form of a letter written by defendant to plaintiff, dated December 4, 1905, one clause of which provides that the contract is to continue in force until terminated by either party, and another clause refers to the payment by defendant to plaintiff of one-half of certain “excess brokerage commission, ’ ’ which is to be figured ‘‘ at the end of each year.” The other clauses are as follows:

“In consideration of the fact that you are to make your headquarters in the office of Messrs. Rollins & Burdick at Chicago for the purpose of overseeing and regulating the business of our companies outside of CooJc County, we propose to make the following arrangements with you: We will pay you a salary of one hundred and seventy-five ($175.00) dollars per month, paid monthly, and one hundred ($100.00) dollars per annum for each $10,000 in premiums over $60,000.00 in the Manufacturers Lloyds, the Merchants Fire Lloyds, Wilmington, Stuyvesant, Pacific and Insurance Underwriters, and we will also pay such traveling expenses as you may incur in taking care of our outside business.
“In addition to this we will pay you a contingent commission of 10% on the combined net profits of the Stuyvesant, Pacific, Insurance Underwriters and Wilmington, and a contingent commission of 5% on the combined net profits of the Manufacturers Lloyds and the Merchants Fire Lloyds. These profits are to be calculated annually by deducting all losses, commissions and other expenses from the EARNED PREMIUM on risks written and/or approved by Messrs. ■ Rollins & Burdick in said companies, the commissions on business placed direct with you and the commissions received from outside companies on business placed by you, to be placed, as an off-set against the expenses of the Chicago office in calculating the contingent commission.”

It will be noticed that in this contract there is no-provision that plaintiff relinquishes any claim he may have to the unpaid balance of his contingent commissions on the net profits on the policies written by him during the year 1905. And the evidence does not disclose that he at any time, either verbally or in writing, relinquished such claim, which, as we have seen, arises because of the deduction required to be made on account of said ‘‘re-insurance reserve.”

On February 26, 1907, plaintiff wrote defendant a letter in which he inclosed a “final contingent statement on business written during the year 1905”; and also a “contingent statement on business written during the year 1906,” and requested a check. On March 7, 1907, defendant wrote plaintiff in part as follows: “We have nearly finished checking up this account. * * * We understand from our Mr. Meserole that in consideration of the new arrangement made on the termination of your contract on December 31-05, there was to be no contingent paid on the unearned premium on business written in 1905. * * * Documents in our possession show distinctly that our understanding of the matter given above is the case.” On March 9th plaintiff replied: “The subject of my relinquishing my rights under the old agreement pertaining to the 1905 business was not even mentioned in any conversation which I had with your Mr. Meserole or any one else. Whatever documents you may have in your possession are entirely foreign to me.” Several other letters passed between the parties, the plaintiff insisting that he was entitled to said commissions, and the defendant taking the position, as stated in one of the letters, that “there is no contingent commission due you on unearned premiums for 1905, the agreement of 1905 having been cancelled and abrogated upon the new agreement for 1906.” On June 22, 1907, plaintiff forwarded to defendant a corrected statement “for the balance of contingent commission due under the 1905 agreement,” showing the sum of $3,231.73 to be due him. The defendant refused to pay the same or any part thereof, and on June 28, •1907, plaintiff commenced the present suit. On the trial ..plaintiff, introduced a further corrected statement, showing the sum of $3,080.25 to he due him. The correctness of this amount does not appear to have been disputed by the defendant on the trial, nor is it here disputed.

At the conclusion of all the evidence plaintiff submitted to the court the following proposition, to be held as the law applicable to the case, but the court marked the same “Refused,” and plaintiff excepted:

“The court finds as a matter of law that, under the contracts introduced in evidence in this case, the plaintiff is entitled to receive and recover from defendant that portion of the profits of the business written or placed by him in the year 1905 as is designated in the contract dated August 3rd, 1905, and covering from January 1st, 1905, as soon as said profits could be ascertained, and that said profits could not be ascertained until January 1st, 1907.”

Counsel for defendant here contend, in substance, that all contingent commissions due plaintiff under the 1905 contract sued upon were paid to him on June 26, 1906, by said checks aggregating the sum of $4,704.90; that it was not contemplated by the parties that plaintiff was to be paid contingent .commissions on the “unearned” premiums as of January 1,1906, which unearned premiums, or a portion of them, might become “earned” premiums on January 1, 1907; and that the “unearned” premiums as of January 1, 1906, which were carried forward as “re-insurance reserve” and upon which plaintiff now claims commissions, were hot earned in the year 1905 (i. e., during the life of the. contract sued upon) but became earned during the year 3.906, after the 1905 contract had ceased to exist, it having been terminated by the making of' the new 1906 contract. Counsel however admit, in their printed argument, that if the 1905 contract sued upon had not been terminated at the end of that year, and plaintiff had continued to work under said contract during the year 1906, plaintiff at the end of the year 1906 would have been- entitled to contingent commissions on the “unearned” premiums as of January 1, 1906, and this because said premiums would have become earned in 1906 and during the life of the contract.

Counsel for plaintiff contend, in substance, that the commissions for which plaintiff sues were earned during the year 1905 when, through his efforts, the policies were written and the premiums paid; that his right thereto became vested on January 1, 1906; that the value of that right, i. e., the amount to be paid him, alone remained uncertain or contingent, which could not be determined until January 1, 1907, when all the policies written in 1905 had expired and all losses could then be figured and the net profits on the 1905 business determined, and that payment of the correct amount of commissions was merely postponed until it could be ascertained; that this vested right was not affected or relinquished by anything contained in the new contract of December 4, 1905, which related solely to the future relations between the parties from and after January 1, 1906, and that it is not shown by the evidence that said right was relinquished by any other act or agreement of the plaintiff and that by defendant’s construction of the contract sued upon, as contained in his letter of September 8, 1905, and by his paying plaintiff, on June 26,1906, the sum of $3,017.91, as commission on business done by plaintiff in the year 1904, which sum was based on the “re-insurance reserve” previously deducted from the premium receipts during said year 1904, defendant recognized the right of plaintiff to the balance of* commissions here in question.

After careful consideration of the evidence and of the arguments of respective counsel in support of their contentions, we have reached the conclusion that the trial court erred in entering the judgment appealed from and in not entering a judgment in favor of plaintiff for the sum of $3,080.85, together with interest thereon. We are of the opinion that, under all the facts and circumstances in evidence, plaintiff’s right to the commissions here in question became vested in him at the end of year 1905, although the total amount of' commissions to be ultimately paid him on account of premiums written and collected by him during’ said year could not definitely be determined until the expiration of the year 1906, and that his right to said commissions was not affected or relinquished by said new contract of December 4,1905, or by his acts thereunder or by any other acts of his.

In the case of Alabama Oil & Pipe Line Co. v. Sun Co., 99 Tex. 606, a contract under which certain rights, had accrued was canceled by a new agreement, and •the question before the court was whether the new agreement so far abrogated the old as to defeat a recovery on certain rights vested thereunder. The Court said (p. 611):

“It is true that parties to a contract may agree to cancel it and, if there be nothing to indicate a different intention, each party will be fully discharged from all liability under such contract. But the use of the word ‘rescind-’ or ‘cancel,’ will not necessarily have that effect. The liability in .this, case must be referred 'to the.terms of the agreement to cancel and, in order to interpret that agreement, we must look to the intention of the parties, the character of the contract to be cancelled and to the situation of the parties at the time as well as to the attending facts and circumstances which throw light upon the question of intent. If it appears from these facts and circumstances that it was not the intention of the parties that the act of cancellation should have a retroactive effect to destroy previously vested rights, then the contract will be so construed as to preserve those rights.” See also City of New York v. New York Refrigerating Const. Co., 146 N. Y. 210, 215; Hayes v. City of Nashville, 26 C. C. A. 59, 80 Fed. 641, 646; Dibble v. Dimick, 143 N. Y. 549, 553; Greene & Sons v. Freund, 80 C. C. A. 387, 150 Fed. 721; Singer Mfg. Co. v. Brewer, 78 Ark. 202, 204; Sackett v. Centaur Motor Co., 189 Ill. App. 372.

It is also contended by counsel for defendant that plaintiff is not entitled to a judgment in any amount because no office expenses, incurred by plaintiff in the year 1906 in giving the necessary attention to the risks on policies written in 1905, are considered by plaintiff in figuring the amount of his present claim, which is based on the “re-insurance reserve” of 1905. We do not think there is any merit in the contention. All the expenses of getting the business or premiums, contained in said “re-insurance reserve,” had been charged against the entire premiums received during 1905' in plaintiff’s account rendered on June 18, 1906, and by the settlement of that account on June 26,1906, said expenses were satisfied. Furthermore, the contention of counsel is contrary to the previous practice of the parties, as is shown in the item of the account of June 18, 1906, relative to the 1904 “reinsurance reserve.” Furthermore, by both the 1905 and the 1906 contracts it was provided that office expenses should be paid out of “excess brokerage commissions,” etc., which the evidence shows more than covered all office expenses. Furthermore, by the 1906 contract it was provided that plaintiff should “oversee and regulate” the business of defendant’s companies “outside of Cook County, ”• and the evidence shows that after January 1, 1906, he did so, as he formerly had done, and that, as to the- unexpired 1905 policies, he did whatever had to be done in precisely the same manner as he would have done had the 1905 contract been continued in force.

Counsel for defendant place great reliance on the 'case of Mississippi Home Ins. Co. v. Adams & Boyle, 84 Ark. 431, as sustaining- their construction of the contract in question. The facts of the present case appear to be materially different from those in that case. Furthermore, in the contract here in question no special provision is made as to the settlement of plaintiff’s contingent commissions in the event of the termination of the contract, while in said Adams case there was the following provision: “This agreement may be terminated at any time by either party after giving thirty (30) days’ written notice to the other, in which event payment of compensation as above provided shall be made, and will be in liquidation of all payments to the party of the second part by the party of the first part.” And we do not think that any of the other cases cited by counsel sustain their position taken in this case. In those cases the facts are so at variance with those , of the present case as not to be applicable.

By virtue of the instrument of writing or contract sued upon and under the facts in evidence, we think that the judgment to be here entered in favor of the plaintiff and against the defendant should not only be for said amount of $3,080.85, but should also include interest thereon, at the legal rate of five per cent, per annum, from June 22, 1907, to the present date. Section 2, ch. 74, Hurd’s R. S. (J. & A. ¶ 6691); A. B. Dick Co. v. Sherwood Letter File Co., 157 Ill. 325, 338; Bauer v. Hindley, 222 Ill. 319, 323. In a case tried before the court without a jury we can include interest in the judgment here entered. Dean & Son, Ltd. v. W. B. Conkey Co., 180 Ill. App. 162, 183, and cases there cited. The interest on $3,080.85 at said rate from June 22, 1907, to January 22, 1915, is $1,168.15, which added to $3,080.85, makes the total sum of $4,249.

The judgment of the Superior Court of Cook county is reversed and judgment is entered in this court in favor of the plaintiff, Frank B. Thompson, and against the defendant, J. S. Frelinghuysen, in the sum of $4,249.

Judgment reversed and judgment here.

Finding of facts.—We find as facts that the plaintiff, Frank B. Thompson, made the contract or agreement sued upon, dated August 3, 1905, with the defendant, J. S. Frelinghuysen; that he performed all services required to be performed by him thereunder as agent or representative of the defendant; that he acted as such representative thereunder until and including December 31, 1905; that he acted as the agent or representative of the defendant during the year 1906, but under another contract, dated December 4, 1905; that on January 1, 1907, there became and was due plaintiff from defendant a balance of $3,080.85 for certain commissions for services performed by plaintiff for defendant during the year 1905 and up to and including December 31, 1905, under the contract or agreement sued upon; that plaintiff at no time waived or relinquished the payment to him of said balance for commissions; and that no part of said sum has ever been paid plaintiff.