text:
    Abraham Bernstein et al., Appellees, v. George Marinocus et al., Appellants.
    Gen. No. 25,243.
    Landlord and tenant, § 64

      —what is effect of lease when previous agreement exists. Where a lessor, after demising premises for a given period of time, grants, during the term of that lease, a second lease for a longer term, the latter lessee becomes an over-lessee and is looked upon in the light of a grantee of the reversion and entitled to have the rents which accrue upon the first lease.
    Appeal from the Circuit Court of Cook county; the Hon. George F. Barrett, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1919.
    Reversed.
    Opinion filed July 7, 1920.
    O’Donnell & O’Donnell, for appellants.
    Blum & Blum, for appellees.

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

   Mr. Presiding Justice Taylor

delivered the opinion of the court.

On June 1, 1916, the plaintiffs, Abraham Bernstein and Henry Wolf, caused judgment by confession to be entered in the circuit court, upon a written lease, against the defendants, George Marinocus and Peter A. Klomookas, in the sum of $540.75. On November 25, 1916, leave was given the defendants to plead to the plaintiffs’ declaration and an order entered that the judgment theretofore rendered by confession should stand as security. The defendants pleaded (1) nonassumpsit, (2) release by deed, and (3) payment in full.

The evidence shows substantially the following: On March 20, 1909, one Charlotte A. Hutchinson executed a written lease to the defendants of a store and basement at 458 Milwaukee avenue, to be occupied as a restaurant, from May 1, 1909, until April 30, 1912. The rent was $2,880, payable in monthly instalments of $80 each, in advance, upon the first day of each and every month. The lea:se contained, among other things, the following:

“It is understood that in the event of a sale of the building in which the above» demised premises are situated, said party of the first part reserves the right to cancel this lease by giving said party of the second part 60 days ’ notice in writing.

“In consideration of this privilege of cancellation said party of the first part agrees to charge no rent for 60 days and in addition agrees to reimburse said party of the second part, for any moneys expended by them for permanent repairs during the term of this lease.”

It is admitted that the rent pursuant to the terms of the lease was paid up to March 31, 1910. On March 7, 1910, Charlotte A. Hutchinson sold and conveyed the premises in question to the plaintiffs and on March 22, 1910, assigned to them the lease of March 20, 1909. On April 25,1910, the plaintiffs leased the entire building, including that portion occupied by the defendants, to Jacob Muller and Peter Muller as lessees, for a period, beginning May 1, 1910, and ending April 30, 1920. That lease contains the following:

“Tenth: It is further covenanted and agreed by the parties of the first part (the lessors) that the parties of the second part (the lessees) shall have the said demised premises free of any rent to July 1,1910, but said parties of the second part agree to assume all responsibility of eviction if necessary, of the present lessees of said demised premises, but parties of the first part agree to serve as witnesses should their testimony be required.”"

On June 28, 1910, the plaintiffs notified the defendants in writing that Charlotte A. Hutchinson had conveyed to them, the plaintiffs, the premises in question, 458 Milwaukee avenue, and that the plaintiffs “have elected to cancel and determine said lease and your tenancy of said premises as they are empowered to do under said lease and hereby notify you that the said lease is cancelled and determined on the 31st day of August, A. D. 1910, at which time you are required to surrender possession of said premises to the undersigned. ’ ’

On September 1, 1910, Jacob and Peter Muller notified the defendants in writing that they, Jacob and Peter Muller, “have a lease to the premises now occupied by you and known as” store and basement situated at 458 Milwaukee avenue and they demand immediate possession of said premises.

The plaintiff, Bernstein, testified that the defendants did not pay any rent for the months of April, May, June, July and August, 1910, during which time they occupied the premises; that he never authorized Jacob and Peter Muller to make any settlement of the claim of the plaintiffs ’ for their claim for rent against the defendants; that he tendered back to the defendants the rent which they had paid Charlotte Hutchinson for the month of March, 1910; that that was done pursuant to the notice which Mrs. Hutchinson served on them as of March 7, 1910, and which stated that they should have March and April to May 7 free of rent and which notified them that the property had been sold to the plaintiffs; that the defendants refused to accept it; that about 10 days later the defendants claimed that they were entitled—as a set-off—to be paid for a number of bills amounting to $250 for permanent improvements; that the Muller brothers paid rent to the plaintiffs for July, August and September, 1910, but that they gave them free rent for the months of May and June because they anticipated trouble in getting the defendants out.

The evidence of the witness Marinocus is to the effect that when the Muller brothers sent the defendants notice to move out they made a settlement with-them and received a written release dated September 21, 1910, which release recites that the Muller brothers released the defendants from any and all claims which the Muller brothers had against them for the use and occupation or rent of the premises and also released the Muller brothers from any claim which the defendants might have against them.

Marinocus testified further that the defendants had put in certain permanent repairs and made certain improvements which are as follows:

July, 1909, painting and decorating store......$105.00

April and May, 1909, lumber used for stairway and basement ............................ 10.75

July 15, construction of bulkheads in the show windows................................. 17.50

February 16, 1910, putting in door at head of stairway................................. 24.50

February 15, 1909, wiring:—

Removal and rewiring one electric fan $30.00)

One electric bell and "wire.......... 5.50) 38.20

Two snap switches.............l.. 1.20)

Three sockets for incandescent lamps 1.50)

February 15, 1909, work of carpenters, putting up stairway!going into basement...... 23.50

July 10, 1909, two swinging doors in the kitchen 25.00

Catch basin in the basement.................. 35.00

Total ......................................$279.45

On cross-examination he testified that the agreement with Mrs. Hutchinson was that if the defendants were permitted to remain in the premises 3 years she would not have to pay for the repairs and improvements, but if they were forced to move before 3 years then she had to return them the money that was expended for the improvements.

The witness Coorlas testified for the defendant that he was present at the time of a certain settlement between the Muller brothers and himself; that their attomeys were present and also Bernstein, one of the plaintiffs; that he made a settlement of his matter with the Muller brothers; that he, himself, had the next store to the plaintiffs’ and got $200 cash from Muller brothers besides his rent; that on that occasion Bernstein said, apparently referred to his own matter, “he was glad to settle the thing so the thing was settled.”

The plaintiff, Bernstein upon being recalled, referring to the settlement testified to by the witness Coorlas, said “I did not know there was a settlement.”

The trial judge allowed the plaintiffs 3 months’ rent at $80 a month and $100 interest, making a total of $340. From that he deducted $68.75, being for the following permanent improvements: Plumbing, $35, lumber $10.75, labor $23. He also allowed $27.50 for interest on the total amount of the permanent improvements. The final judgment was for $243.75, being $340 less a credit of $96.25. This appeal is from that judgment.

It is the contention of the defendants that when the plaintiffs made a lease of the premises to the Mullers that the defendants also became the tenants of the Mullers and gave the Mullers the sole right and title to call rents and profits to accrue or to become due from the defendants subsequent to May 7,1910.

It is the law that where a lessor, after demising premises for a given period of time, grants, during the term of that lease, a second lease for a longer period of time, the lessee in the latter lease becomes an overlessee and is looked upon in the light of a grantee of the reversion, so much so in fact that he is entitled to the rents which accrue upon the first lease. Cheatham v. J. W. Beck Co., 96 Ark. 230; 18 Amer. & Eng. Encyc. of Law (2nd Ed.) p. 283; Pendergast v. Young, 21 N. H. 234; sections 14, 15, ch. 80, Hurd’s Rev. St. p. 1633 (J. & A. fffl 7052, 7053). In 16 R. C. L. sec. 123, p. 638, the law is well stated as follows: “The lessor may convey to a third person his reversion, by a concurrent lease under seal, and the lessee thereunder becomes the landlord of the first lessee, with the right to collect the rent and enforce the covenants of the first lease until the expiration of the term of one or the other of the two leases.” It follows, therefore, that when on. April 25, 1910, the plaintiffs leased the entire building, including that portion occupied by the defendants, to Jacob Muller and Peter Muller, as lessees, for a period beginning May 1, 1910, and ending April 30, 1920, the Mullers, as overlessees, became grantees of the reversion and entitled to the rents accruing on the defendants ’ lease.

Accordingly, the judgment of the trial court must be reversed.

Reversed.

Mr. Justices O’Connor and Thomson concur.


source: Caselaw Access Project

author: Mr. Justice O’Connor

license: Public Domain

text:
    Mary Burgiel, Appellant, v. Andrew Aniol, Appellee.
    Gen. No. 25,096.
    Assault and battery, § 17

      —when instruction is erroneous. In an action to recover damages for personal injuries alleged to have been caused by defendant having violently assaulted, struck and kicked plaintiff, severely injuring her, it is error to give an instruction that plaintiff must prove her case beyond a reasonable doubt, as it is sufficient for her to prove it by a preponderance of the evidence.
    Appeal from the Superior Court of Cook county; the Hon. Joseph B. David, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1919.
    Reversed and remanded.
    Opinion filed July 7, 1920.
    Henry N. Miller, for appellant.

      Peden, Kahn & Murphy, for appellee.

      See Illinois Notes Digest, Vols, XI tp XV, and Cumulative Quarterly, same topic and spptiga number. .

   Mr. Justice O’Connor

delivered the opinion of the court.

Plaintiff brought suit against defendant to recover damages for personal injuries. There was a verdict and judgment in favor of defendant, to reverse which plaintiff prosecutes this appeal. The declaration which consisted of a single count alleged that defendant violently assaulted, struck and kicked plaintiff, severely injuring her.

The record discloses that plaintiff, on the evening of March 7,1918, went to defendant’s saloon in search of her husband who was there; that as she and her husband were leaving the saloon defendant came from behind the bar, told her to get out, and pushed and kicked her, as a result of which she was severely injured. There was evidence tending to sustain this version of the matter which was denied by defendant. He and other witnesses testified that he did not strike plaintiff, but that plaintiff attempted to strike him with a chair; that he ran away from her and that she struck and scratched him; that nobody kicked or struck plaintiff but that she fell down on the floor and some men who were in the saloon fell on her. So it appears that plaintiff was injured and the only point in controversy was whether defendant had struck and kicked her.

Complaint is made to the remarks of the court and to the fact that he unduly limited the cross-examination of the defendant, and that erroneous instructions were given. Since we have concluded that there must be a new trial, we will not discuss the evidence in detail, but we think the cross-examination was unduly limited. The case will be reversed for the reason that the court instructed the jury that plaintiff must prove her case beyond a reasonable doubt. We think this rule was not applicable to the- instant case, but that it was sufficient for her to prove her case by a preponderance' of the evidence. This question, however, is not free from difficulty and the decisions in this State in our opinion are irreconcilable.

In cases brought to recover under fire insurance policies where one of the defenses interposed was that plaintiff had set fire to the property, it was held that as this charg’ed plaintiff with the commission of a crime, it must be proved beyond a reasonable doubt. Germania Fire Ins. Co. v. Klewer, 129 Ill. 599; McInturff v. Insurance Co. of North America, 248 Ill. 92; Cottam v. National Mut. Church Ins. Co., 209 Ill. App. 404. It has also been held that in disbarment proceedings where the information charges a crime, it must be proved beyond a reasonable doubt. People v. Sullivan, 218 Ill. 419; People v. Olson, 258 Ill. 283; People v. Moseley, 278 Ill. 377. In the Klewer case the court said: “Where, in a civil action, a criminal act is charged, the authorities are in conflict upon the question whether the rule applicable to a criminal prosecution or that applicable to a civil suit should prevail in respect to the degree of proof required. In this State it has been held that where, in civil cases, a criminal offense is charged in the pleadings, • such offense must be proved beyond a reasonable doubt.” It will be noticed that the court makes no exception to any particular class of criminal cases.

In Robinson v. Randall, 82 Ill. 521, which was a suit brought against a liquor dealer for damages caused by selling strong liquor to one in the habit of getting intoxicated, it was held that plaintiff was not required to prove his case beyond a reasonable doubt, but only by a preponderance of the evidence. The court said (p. 522): “Under our statute the sale of spirituous liquors, under certain circumstances, is a crime for which a party may be indicted, fined and imprisoned,” and the court there in passing on the degree of proof required said (p. 523): “This was not a criminal or penal action but a civil action to recover damages, and the rule in relation to the proof in the former cases cannot control here. ’ ’

Miller v. Balthasser, 78 Ill. 302, was an action of trespass to recover damages for assault where it was claimed that defendant had raped plaintiff. In passing on the degree of proof necessary the court said (p. 305): “It is said, where the offense charged is of so grave a character, more than a bare preponderance of the evidence should be required to warrant a verdict. This is not, however, a criminal or penal action, but is merely a civil action, brought to recover damages for personal injury. The judgment involves neither the life nor liberty of the defendant, and we are aware of no authority that would require the plaintiff to establish her cause of action by more than a preponderance of the evidence. The rule that obtains in criminal cases has no application to this.”

In Flannery v. People, 225 Ill. 62, which was a contempt proceeding for the violation of a writ of injunction issued in a labor case, it was contended that before Flannery and others could be found guilty of contempt, their guilt must be established beyond a reasonable doubt. This contention was denied, and it was held that this rule applied in civil cases only where a crime is charged in the pleadings as the foundation for the civil action. The court there said (p. 70): “It also seems to be the recognized rule, at least in this State, that although an act charged in the pleadings might be a crime or criminal in its nature, yet unless charged as a crime, the rules of evidence applicable to civil cases would apply. * * * Their acts may have been criminal—that is, the entering into a conspiracy might be a crime indictable and punishable as such—but they could not be punished for the commission of a crime in this proceeding except in so far as they violated the injunction.” Continuing, the court quoted with approval from the ease of Grimes v. Hilliary, 150 Ill. 141, as follows: “It does not follow that because an element may have entered into the act which would have rendered it indictable as a crime, but which is not alleged or necessary to be proved to authorize a recovery in a civil action, the proof must be made beyond a reasonable doubt.”

Woods v. Dailey, 211 Ill. 495, was an action to recover damages for a violation of the Dramshop Act. The contention that plaintiff must prove her case beyond a reasonable doubt was denied, and it was held that a preponderance was sufficient. The court there said (p. 496): “This is an action to recover damages and not to recover a fine or penalty (Robinson v. Randall, 82 Ill. 521), and this court, in that class of cases, has uniformly approved instructions which have informed the jury that plaintiff need only establish his case by a preponderance of the evidence. ’ ’

Guthrie v. Empire Coal Co., 150 Ill. App. 530, was an action brought to recover damages for personal injuries claimed to have resulted from a wilful violation of the Mines and Miners’ Act by the defendant coal company. Section 33 of that act (J. & A. 7503) provides that a wilful violation of the act by a coal mine operator renders such operator guilty of a misdemeanor, and he may be punished by fine or imprisonment in the penitentiary or both. The court instructed the jury that plaintiff was not required to prove his case beyond a reasonable doubt, but that a preponderance was sufficient. It is there said (p. 536): “Appellant contends that this was error and relies upon People v. Sullivan, 218 Ill. 419. * * * The Sullivan case was a prosecution by information to enforce the penalty of a violation of sections 33 and 272 of the Criminal Code (J. & A. jfj[ 3519, 3964). While our attention has not been called to a case where this precise question has been decided, we feel compelled to be controlled by the rule announced in Woods v. Dailey, 211 Ill. 495.” The court then quotes from the Barnes case, 82 Ill. 228, the Robinson case, 82 Ill. 521, and the Miller case, 78 Ill. 302, and continuing said (p. 537): “The suit at bar is to recover damages for personal injuries resulting from a wilful violation of a provision of the Mines and Miners’ Act, and is not a criminal or penal action to recover or enforce a penalty for its violation, and the Sullivan case is not in point.”

In Pley v. Lavette, 167 Ill. App. 494, which was an action of trespass to recover damages which resulted from plaintiff being shot by defendant, it was held that since the pleadings did not specifically charge a criminal offense, plaintiff was not required to prove his case heyond a reasonable doubt, but that a preponderance was sufficient.

Arnold v. Dodson, 193 Ill. App. 62, was a suit to recover damages which plaintiff claimed to have suffered by reason of the defendant’s fraudulently selling to her certain stock in a corporation. The court said (p. 71): “Plaintiff was required to prove her case by a preponderance of the evidence, and the instruction to that effect was proper. This is not a criminal case, and proof beyond a reasonable doubt was not required. Grimes v. Hilliary, 150 Ill. 141; Flannery v. People, 225 Ill. 62; People v. Sullivan, 218 Ill. 419.”

In Glascock v. Gerold, 199 Ill. App. 134, where plaintiff brought suit to recover damages for personal injuries sustained by him by being struck with a brick thrown by defendant, the court held that in civil actions for assault and battery plaintiff need only prove his case by a preponderance of the evidence.

In Solomon v. Buechele, 119 Ill. App. 595, where plaintiff claimed he had been assaulted by being hit on the head with a.stone thrown by defendant, the court held that a preponderance of the evidence was sufficient to warrant a verdict for the plaintiff. It was there contended that since the defendant was charged with assault and battery, which was a criminal offense under the law of this State, plaintiff was required to prove his case beyond a reasonable doubt. This contention was denied. The court there discussed the authorities at length, and,, pointed out that in this State the rule in civil cases where a crime is charged in the pleadings, that plaintiff must prove his case beyond a reasonable doubt was limited to such cases as charged infamous crimes, such as perjury, arson, larceny and the like. The court said (p. 602) : “We are not disposed to extend the rule further than it has ever been applied in Illinois and enforce it in a case in which no felony or infamous crime is charged. ’ ’

The instant case was not a criminal or penal action but a civil action to recover damages, and as was said in Miller v. Balthasser: “The judgment involved neither the life nor liberty of the' defendant, and we are' aware of no authority that would require plaintiff to establish her cause of action by more than a pre: ponderance of the evidence. The rule that obtains in criminal cases has no application to this.”

The instruction was erroneous and since we are unable to agree with defendant’s contention, viz., that even if it was erroneous it worked no harm as no other verdict could be sustained, the judgment must be reversed and the cause remanded for a new trial. ^

Reversed and remanded.

Taylor, P. J. and Thomson, J., concur.


text:
    City of Chicago, Appellee, v. William E. Dee and Chicago Bonding & Surety Company, Appellants.
    Gen. No. 25,115.
    1. Municipal corporations, § 400

      —how hond of contractor is construed. In a suit by a city against the sureties on a bond given to insure the faithful performance of a contract for the construction of a local improvement, the bond, contract and specifications must be construed together as one instrument.
    2. Municipal corporations, § 400*—when suit on contractor’s hond may he maintained. In a suit by a city against the sureties on a bond given to insure the faithful performance of a contract for the construction of a local improvement to recover the advanced cost of completing the contract after the contractor’s default, where the specifications provide that the Board of Local Improvements may determine, and the city may retain a sufficient amount to pay damages “for failure properly to commence and prosecute or properly to construct said work * * * or for any other default,” and that if the city has not sufficient money of the contractor in its possession, such damages shall be recovered in the city’s name in an action on the bond or otherwise, suit may be maintained by the city on the bond to recover damages occasioned by the contractor’s default and failure to complete the contract, and the right to bring such suit is not affected by the further provision of the specifications authorizing the city to pay out of funds due the contractor any laborers employed by him on the work and not paid.
    3. Municipal corporations, § 400*—what is not defense in suit on contractor’s hond. In a suit by a city against the sureties on a bond given to insure the faithful performance of a contract for the construction of a local improvement to recover the additional cost of completing such contract after the contractor had defaulted, where the specifications provide that in case of .any damage suffered as a result of the contractor’s default suit may be brought in the city’s name and such damages shall be paid to the city, it is no defense that the damages caused by the default were sustained by the property owners and not by the city.
    Appeal from the Municipal Court of Chicago; the Hon. Hugh J. Kearns, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1919.
    Affirmed.
    Opinion filed July 7, 1920.

      Hollett, Sauter & Hollett and Sabath, Stafford & Sabath, for appellants.
    Samuel A. Ettelson, Albert L. Green and Otto W. Ulrich, for appellee; George P. Foster, of counsel.

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

   Mr. Justice O’Connor

delivered the opinion of the court.

The City of Chicago brought suit against William E. Dee and the Chicago Bonding and Surety Company, a corporation, as sureties on a bond given in a special assessment proceeding. There was a finding and judgment in favor of plaintiff for $7,700, to reverse which defendants prosecute this appeal.

The facts are undisputed and are as follows: A special assessment was confirmed by the county court of Cook county to defray the cost of constructing a system of sewers in certain streets in Chicago. The assessment confirmed aggregated $63,861.40, all of which was to be borne and paid by the property owners, none of it being assessed as public benefits against the city. The contract for the work was let by the Board of Local Improvements to one Nick Mancini for $50,624. For the faithful performance of- this contract Mancini, as principal, and the two defendants, as sureties, executed and delivered the bond in question. Mancini commenced the work, the assessment was put in collection, and there was collected and paid him $11,000. He abandoned the work and the city notified the two defendants, as sureties, of this fact and that they might within 10 days elect to finish the work. The two defendants notified the city that they elected not to complete the work. Thereupon the Board readvertised for bids for the completion of the work and entered into a contract for such work and at an advance cost of $7,820.70. After the work was completed, this fact and the cost thereof was reported to the county court. After reserving $5,416.70 for interest, being the balance of the assessment' confirmed, an order was entered by the county court in accordance with section 84 of the Local Improvement Act of 1897 as amended (J. & A. If 1477). All of the proceedings were in accordance with the Local Improvement Act. The additional cost of the work, $7,820.70, was occasioned by the failure of the original contractor, Mancini, to carry out his contract, for the faithful performance of which the sureties executed the bond in question. To recover this damage the city brought this suit.

Defendant contends that no recovery can be had for the reason that the city suffered no damage; that the only damage suffered was by the private property owners, and that the bond in suit1 does not cover them ;’ that the liability of a surety is measured by his contract and cannot be extended by construction. Whether the doctrine that a personal surety is a favorite of the law and that a claim against him is strictissimi juris, or whether the doctrine that a bond given by a surety company is a contract of insurance and strictly construed against the company (Lesher v. United States Fidelity & Guaranty Co., 239 Ill. 504) be applied here, is immaterial.

Section 82 of the Local Improvement Act (J. & A. li 1475) provides that all persons entering into a contract for the construction of a local improvement shall, at the time of the making of it, execute a bond with sureties satisfactory to the Board of Local Improvements, ‘ ‘ conditioned for the faithful performance of the contract.” The bond in question was accordingly executed by Mancini, the contractor, and the two defendants as sureties, conditioned that if Mancini should faithfully construct the work in accordance with the contract, and plans and specifications, which were made a part of the contract, then the obligation to be null and void, otherwise to remain in full force and effect. The plans and specifications which were expressly made a part of the contract provide inter alia: “If the work shall be wholly or in part improperly constructed, the Board of Local Improvements shall have the right to order the entire reconstruction of the same, and in case the contractor shall default or refuse to reconstruct any work improperly done, declare the contract for said work forfeited either as to a portion or the whole and to relet the same. In event of such default of forfeiture, the Board of Local Improvements shall have the right to adjust the difference of damages or price (if there be any) which according to a just and reasonable interpretation of these specifications and the contract as a whole, the contractor shall pay to the City of Chicago as damages, for failure properly to commence and prosecute or properly to construct said work in all respects according to the conditions hereinbefore specified, or for any other default; and it is hereby understood and agreed that for the amount of damage or price determined by the Board of Local Improvements to he paid to the City of Chicago by the contractor for any such default * * * there shall be applied in payment thereof a like amount of any money that may be due and owing to the contractor on account of said work, so far as there may be any such money, and so far as the same shall be sufficient, and if there shall not be sufficient amount retained from said contractor, then and in such case the amount to be paid to the City of Chicago in consequence of such default shall be a just claim against the contractor and be recovered from him at law, in the name of the City of Chicago before any court of competent jurisdiction either by suit upon his bond or otherwise. ” It is conceded, as indeed it must, that the bond, contract and specifications are to be construed together as one instrument and that the liability of the defendants, if any, must result from such construction, Counsel for defendants contend that the provisions of the specifications quoted only cover the question of damages where the work is improperly constructed and, therefore, can have no application to the instant case Avhere no claim is made that the work was improperly constructed. With this contention we cannot concur. It must be admitted that the drafting of the specifications was very bunglingly done. Yet Ave think it covers “a case where the contractor fails to commence, prosecute or construct the work in the manner required by the contract, and renders him liable to the city for such damages as may be occasioned by such default. For after providing that where the contractor’s default is the improper construction of the work and that for such default the Board of Local Improvements shall have the right to fix the damages which the contractor shall pay to the city, it continues “for failure properly to commence and prosecute or properly to construct said work * * * or fo? any other default” the Board of Local Improvements may determine the damages to be paid by the contractor to the city, and if at that time the city has money which belongs to the contractor, it may retain sufficient to pay this damage. It further provides that if the city has not sufficient money in its possession belonging to the contractor, such damages shall be recovered in the name of the city in an action upon the bond or otherwise. But counsel argue that another paragraph of the specifications expressly covers the situation where the work is abandoned by the contractor. That provision is that the city is authorized to pay out of any funds due the contractor any laborers who have been employed by him'upon the Avork and who have not been paid. We think this provision clearly applies only to laborers and is much narrower than the one which we haA'-e quoted. It is further argued, however, that no recovery can be had because the damages were not sustained- by the city but by the property owners. We think this is no concern of the defendants for the specifications expressly declare that in case of any damage suffered as a result of the default of the contractor, a suit may be brought in the name of the city, and that such damages shall be paid to the city. The case of City of St. Louis. v. G. H. Wright Contracting Co., 202 Mo. 451, we think is not in point for the reason that the condition in the bond there was not the same as in the instant case. There the condition of the bond was that if the contractor did the work in accordance with his contract “and shall, as. soon as the work contemplated by the contract is completed, pay to the proper parties all amounts due for materials and labor used and employed in the performance thereof, then this obligation to be void, otherwise of full force and effect, and the same may be sued on at the instance of any materialman, laboring man or mechanic, in the name of the City of St. Louis, to the use of sucji materialman, laboring man or mechanic for any breach of the condition thereof.” It was there held that the City of St. Louis could not recover the increased cost of the work paid by the property owners, for paving certain streets, occasioned by the refusal of the contractor to perform his contract and reletting of the work at an increased cost. The condition of the bond in that case was that as soon as the work was done materialmen, laboring men and mechanics should be paid, and that if they were not so paid, they could sue in the name of the city. Those three classes of men were the only ones covered by the bond, while in the instant case the bond is not so limited. Of course, this judgment when collected will be paid by the city to the property owners according to their respective rights.

The judgment of the municipal court of Chicago is affirmed.

Affirmed.

Taylor, P, J. and Thomson, J., concur.


text:
    M. N. Lettunich and Mateo Lettunich, trading as M. N. Lettunich & Company, Appellees, v. Southern Pacific Company, Appellant.
    Gen. No. 25,138.
    Carriers, § 139

      —when evidence is insufficient to warrant recovery for damage to shipment. In an action by a shipper of apples against a carrier to recover on its liability as warehouseman for damages to such apples by freezing, where the evidence is undisputed that the apples, which were consigned to plaintiffs’ order with directions to notify a third person, arrived at their destination, New York City, on December 7 in good condition and such third person was notified on three occasions of the arrival of the car and never advised defendant that he would not accept the shipment until January 13, and it further appears that railroads delivering apples in New York did not, at that time, furnish heater service, and there is nothing to show that defendant had such facilities, plaintiffs cannot recover.
    Appeal from the County Court of Cook county; the Hon. J. J. Cooke, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1919.
    Reversed.
    Opinion filed July 7, 1920.
    John A. Sheean, for appellant.
    Charles A. Butler, for appellees.

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

   Mr. Justice O’Connor

delivered the opinion of the court.

Plaintiffs brought an action of assumpsit against the Southern Pacific Company to recover $538.99 claimed as damages suffered by them by reason of defendant’s breach of duty as a common carrier in transporting apples from California to New York City. The suit was brought December 8, 1915, and the case went to trial January 15, 1919. When the case went to trial plaintiffs by leave of court filed an additional count seeking to hold defendant liable as a warehouseman and not as a common carrier. There was a verdict and judgment in plaintiffs’ favor for the amount of their claim, to reverse which defendant prosecutes this appeal.

The record discloses that defendant operates a railroad as a common carrier; that on November 25, 1911, it received from plaintiffs a carload of apples at Watsonville, California to be transported to New York City; that the car was consigned to plaintiffs’ order with directions to the railroad company to notify W. N. White of New York City of the arrival. The car of apples reached New York City on the morning of December 7, 1911, and the railroad company at once notified White; that in addition to this notice the railroad company wrote White on December 29 regarding this car and on the next day, December 30, White replied to the letter and stated that he was not then ready to effect a disposition of the apples. Nothing further appears to have been done until January 12, 1912, when White was again notified, and on the next day, January 13, White stated he would not accept the car. This was the first notice the railroad company had that the car was not to be accepted by White. Immediately it wired to California for instructions and upon receiving them turned the apples over to commission men in New York and on the 16th of January the apples were loaded on the S. S. Baltic and sent to Liverpool. The apples were damaged by being frozen while on track in New York City.

The bill of lading, which was the written contract entered into between the parties for the transportation of the apples, provided, inter alia-. “Property not removed by the party entitled to receive it within forty-eight hours (exclusive of legal holidays) after notice of its arrival has been duly sent or given, may be kept in car, depot or place of delivery of the carrier, or warehouse, subject to a reasonable charge for storage and to carrier’s responsibility as warehouseman only.” '

Most of the evidence was in the form of depositions and stipulations and was principally to the effect that defendant was liable as a common carrier, but during ffie trial counsel for plaintiffs expressly stated that he waived any claim against defendant as a common carrier, as the evidence showed without dispute that the apples arrived in New York City in good condition. Plaintiffs sought to hold defendant liable as' a warehouseman only, the claim being that heater service should have been furnished by defendant so as to prevent the freezing of the apples while the car was on track in New York City from December 7, 1911 until January 16, 1912. Plaintiffs put in evidence showing the maximum and minimum temperatures in New York City from January 1 to January 16, 1912, both inclusive. The defendant offered evidence showing the temperature in New York City from December 7, 1911 to January 16, 1912, both inclusive. After December 7, the highest temperature was 51 degrees and the lowest 22 degrees above zero. The first time the temperature went below 21 degrees was on January 5, when it was 8 degrees above. The lowest temperature during the month of January was 3 degrees below zero, which was on January 13. A witness for plaintiffs testified that apples in such a car as the one in question would not be damaged by frost until the temperature was about 14 or 15 degrees above zero. From this it appears that the apples in question were not frosted until January 5. At that time the car had been standing on track in New York 29 days. A witness for plaintiffs testified that he had been in the business of handling apples for a number of years and that he knew the custom prevailing in Detroit, Chicago and Minneapolis, and that he knew it was the custom in those cities during the winter of 1911-1912 for railroads to supply heater service in cars similar to the one involved in the instant case. He knew nothing, however, about the custom in New York City. Evidence on behalf of the defendant showed that no such custom existed at the time in question in New York City'.

Under the facts in this case, where the evidence is undisputed that the apples arrived in New York City in good condition, that White was notified of the arrival of the car on three occasions, and that he never advised the railroad company that he would not accept the apples until January 13, and where it further appears that the railroad companies delivering apples in New York City did not at that time furnish heater service, and there is no evidence to show that defendant had such facilities, it would be a strange rule of law that would require the railroad company to permit this car to remain' on track in New York City indefinitely, and this too during the dead of winter, and furnish heater service, and to render the railroad company liable for its failure to do so. The principal authority on which plaintiff relies is the case of Jennings v. Baltimore & O. R. Co., 194 Ill. App. 358, where a judgment for damages to apples which were frozen in transit was awarded. Of course, the liability of a common carrier and a warehouseman are entirely different. Therefore, this case is clearly not in point.

The judgment of the county court of Cook county is reversed.

Reversed.

Tatlob, P. J. and Thomson, J., concur.


text:
    Mary C. Rose, Appellee, v. J. H. Howenstein, Appellant.
    Gen. No. 25,154.
    1. Account, § 19

      —what may he considered in determining existence of fiduciary relation. While no fiduciary relation exists per se between two persons as to a transaction between them merely because they are brother and sister and tenants in common of the property involved, the fact that they occupy these relations to each other is to be considered together with all the other facts and circumstances in passing upon the question of the existence of the fiduciary relationship.
    2. Account, § 19*—when fiduciary relation exists. Even though one has not been legally appointed executor of a deceased sister’s estate, where he, in fact, acted as such and had entire charge of the estate and also acted as agent as to the property for a sister who was one of the heirs, a fiduciary relationship existed between him and the latter as to his dealings with such property.
    3. Account, § 19*-^what is effect of fiduciary relation as to accounting. The existence of a fiduciary relationship between a vendor and a purchaser does not entitle the former to an accounting from the latter for profits made on a resale where the transaction between them is shown by the purchaser to have been fair and reasonable and for an adequate consideration.
    Appeal from the Circuit Court of Cook county; the Hon. Merritt W. Pinckney, -Judge, presiding. Heard in the Branch Appellate Court at the March term, 1919.
    Affirmed.
    Opinion filed July 7, 1920.
    Rehearing denied July 19, 1920.
    John S. Huey, for appellant.
    A. A. Bole, for appellee; Alvin E. Stein, of counsel.

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

   Mr. Justice O’Connor

delivered the opinion of the court.

Complainant filed her bill against defendant for an accounting. The case was tried before the chancellor and a decree entered in complainant’s favor for $501.85.

The record discloses that complainant and defendant are brother and sister; that a sister of the parties died testate in .Ohio in 1905 leaving, personal and real property; that one-half of such property was bequeathed to defendant and the other one-half to another brother and three sisters, one of whom is complainant; that by the terms of the will defendant was named executor but was not formally appointed by the court; that the will was not filed for record in the probate court of Crawford county, Ohio, until April 17, 1911; that on November 9, 1910, complainant called on defendant for the purpose of obtaining money from him for her share of the estate. Thereupon complainant received from defendant $500 and executed the following receipt:

“Received of J. H. Howenstein ($500) Five Hundred Dollars in full payment of all claim or right in the estate of Mrs. Margaret A. Bowers, deceased. Said payment being made at my request and entirely satisfactory to me.

“Nov. 9, 1910, Chicago, Ill. Mary C. Rose.”

May 2, following, complainant and her husband at the request of defendant executed and delivered to defendant a quitclaim deed for her interest in the real property for which he gave her no additional consideration. About the same time he procured quitclaim deeds from the other heirs for their interests in the property, for which interest he paid each heir $600 September 9, 1915. More than 3 years afterwards, he sent complainant $100. Afterwards, March, 1917, the bill was filed asking for an accounting, complainant claiming she was entitled to her share of the proceeds of the property sold by the defendant in accordance with the terms of the will.

Defendant’s contention was that in November, 1910, he purchased complainant’s interest outright and that he owed complainant nothing.

The record further shows that there was some personal property in the estate that was distributed by the defendant to the heirs; that he took charge of the real estate in Ohio, paid the taxes, subdivided it into lots, built sidewalks, sold most of it and had control of it from the time of the testatrix’s death. Defendant also introduced evidence that in 1910 and 1911, when he claims to have purchased complainant’s interest, the property was not worth more than $4,000, on which basis complainant, under the will, would receive one-eighth or $500. Complainant contended that she did not sign the receipt in November, 1910, but the court held against her and we think such holding was clearly right. The court, however, held that there was a fiduciary relation existing between the parties and, therefore, complainant was entitled to one-eighth of the proceeds of the sale of the property and a decree was entered accordingly. Some years after 1910 the defendant sold most of the property and there is no dispute that after deducting all expenses incurred in the handling of it and if complainant was entitled to her one-eighth interest defendant would owe her $501.85, the amount for which the decree was entered.

Defendant, however, strenuously insists that no fiduciary relation exists per se between the parties merely because the parties are brother and sister and tenants in common. We think this contention as a matter of law is correct, but the fact that the parties are brother and sister and tenants in common is to be considered together with all the other facts and circumstances in determining whether such a relationship exists. The question whether there is a fiduciary relation between the parties depends upon all the facts and circumstances. Albrecht v. Hunecke, 196 Ill. 131. No hard and fast rule can be laid down that will apply to all cases. In the instant case defendant was not legally appointed executor, yet he, in effect, acted as such for he had complete charge of the entire estate, from the testatrix’s death in 1905 to date, and it may also be said that he acted as agent of complainant in the handling of the property. Of course, where one acts as executor or as agent for another a fiduciary relationship exists, and we think under all the circumstances in this case the court did not err in holding that there was such a relation between the parties here. However, even if such relationship did exist, it would not entitle complainant to an accounting if the defendant showed that the purchase by him of the property in 1910 was fair and reasonable and for an adequate consideration, and although defendant did offer evidence tending to show this fact, that point is not urged here and does not appear to have been urged in the trial court. On the contrary defendant took the position that if a fiduciary relation did exist between the parties complainant ivas entitled to an accounting, for in his brief counsel says: “If this court should hold with the trial court that said transaction of the payment of $500 by appellant to appellee for her interest in said property and the giving of the receipt by her in full payment for said interest as recited therein, was voidable by her and not binding upon her because of a confidential relation then existing between them, that, of course, would be the end of this case for appellant, whether said receipt is genuine or a forgery.

“If, on the other hand, this court should hold with us that there was no confidential relation between these parties at the time of the said transaction, then it seems equally clear to us that that will end the case for appellee, so that we believe we may safely say that the whole case turns upon this question of law. ’ ’ This being the position taken, we think the chancellor correctly decided the question of law.

The decree of the circuit court of Cook county was, therefore, proper and is affirmed.

Affirmed.

Taylor, P. J. and Thomson, J., concur.


author: Mr. Justice O’Connor Mr. Justice Thomson

text:
    Teresa Tarasek, Appellee, v. The Kosciuszko Building & Loan Association No. 3 of Chicago, Appellant.
    Gen. No. 25,203.
    • 1. Witnesses, § 212

      —when latitude in cross-examination may he allmved. In an action of assumpsit, where the truth of the case as made by plaintiff is open to grave doubt, considerable latitude should be allowed in cross-examination.
    2. Witnesses, § 224*—what cross-examination is proper. In an action against a building and loan association to recover money deposited by plaintiff in payment of stock therein, where plaintiff testifies that defendant gave her a check in payment thereof and that she presented it to the bank on which it was drawn and was told by the cashier that the bank had no money and she so reported to the officers of the association at a meeting of the association and was told not to worry, the check was good and she could get her money at any time, while defendant’s witnesses testify that the check was given plaintiff on the date stated and nothing further was heard from her until the day after the bank on which it was drawn failed, defendant, in cross-examining plaintiff’s witness who testified to having gone to the bank with plaintiff to assist her to get the money and deposit it in another bank and to having attended the association meeting with her, should be permitted to ask in what other bank the deposit was to have been made and to name the officers of the association who were present at the meeting.
    3. Banks and banking, § 133*—what evidence is proper as to payment of check. In an action against a building and loan association to recover money paid into it by plaintiff for stock therein, where plaintiff testified that she had received a check for the amount from defendant and had presented it to the cashier of the drawee hank and had been told by him that the bank had no money and the check was not paid, which fact she reported to the association’s officers who told her the check was good and she could get her money at any time, whereas defendant’s witnesses testified that nothing was heard of plaintiff by defendant from the day on which she was given the check until the day after the bank suspended, over 3 months later, defendant should be permitted to introduce in evidence its checks drawn on such bank between the date of plaintiff’s check and the date of the bank’s suspension, for the purpose of showing that its checks on such bank were paid by the bank.
    4. Appeal and error, § 1803

      —when case will he remanded for new trial. On reversing a judgment for error in unduly limiting the cross-examination of witnesses and in excluding evidence, which matters can be gone into on a new trial, there will not be a finding of fact but the cause will be remanded for a new trial.
    Thomson, J., dissenting.
    Appeal from the County Court of Cook county; the Hon. J. J. Cooke, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1919.
    Reversed and remanded.
    Opinion filed July 7, 1920.
    Rehearing denied July 19, 1920.
    Lighthall, Dankowski & Carlson, for appellant.
    Bose & Symmes, for appellee.

      See Illinois Notes Digest, Vole. 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 O’Connor

delivered the opinion of the court.

Plaintiff brought an action of assumpsit against defendant building’ and loan association to recover $528. There was a verdict and judgment in her favor for the amount of her claim with interest, aggregating $596.86, to reverse which defendant prosecutes this appeal.

The record discloses that for a number of years plaintiff was a member of the defendant building and loan association having paid money to the association for stock at the rate of $3 per week. Afterward she decided to withdraw the money and on June 12, 1916, defendant gave her its check drawn on the Industrial Savings Bank of Chicago for- the amount due her, $528. More than 3 months afterwards, viz., September 21, 1916, the bank being insolvent suspended business. Plaintiff not having received the money on the check demanded payment of it from defendant, and upon its refusal brought this suit.

Plaintiff, who was unable to speak English, testified through an interpreter that the day after she received the check she went to the home of a Mr. Finder to do some washing and cleaning as had been her custom for some time; that she showed Finder the check and asked him to go with her to the bank so that she could obtain her money; that Finder went with her to the bank on June 13; that she presented the check for payment and that the cashier stated the bank had no money and the check was not paid; that she then went to 'the home of the secretary of the association and told him what had occurred at the bank; that the secretary told her she should attend the next meeting of the association, which meetings were held every Monday evening; that she together with Finder attended the meeting on the following Monday and there laid the matter before the officers of the association; that they told her the check was good, for her not to worry about it and that she could get her money at any time she wanted to do so. Stanley Wenz testified on behalf of plaintiff that he appeared with her before the officers of the association and they told plaintiff that the check was good and that she could get her money at any time she wanted it. Witnesses for the defendant testified that they gave her the check on June 12 and that they never heard from her after that until September 22, the day after the bank failed; that she then called on the officers of defendant and demanded payment and that they told her since she had not presented the check to the bank, for payment they could not pay her. The evidence further shows without contradiction that at the time the check was drawn defendant association had in the bank subject to check $7,039.43, and that at all times from that time until the bank failed they had on deposit with the bank subject to check more than twice the amount of plaintiff’s check.

Defendant contends that the court unduly limited the cross-examination of plaintiff’s witnesses and that the court also erred in refusing to permit defendant to prove by canceled checks drawn on the Industrial Savings Bank subsequent to June 12 and prior to the failure of the bank that all the checks were paid by the bank. We think there is merit in both of these contentions. Where, as in this case, the truth of the case as made by plaintiff was open to grave doubt, considerable latitude should have been allowed in the cross-examination of witnesses. The witness' Finder testified that he went with plaintiff to the bank not to identify her, although she was unknown there, but for the purpose of assisting her in getting the money and depositing it in another bank. When asked what other bank, the court sustained an objection, which we think should not have been done. The Avitness was also asked to name the persons who Avere at the meeting of the building and loan association which he testified he attended Avith plaintiff, but objection was interposed and sustained. Other questions were asked him which the court on objection refused to permit him to ansAver. Rulings of the same import were made while the plaintiff Avas testifying. We think it would serve no useful purpose to specify the several rulings of the court in this particular. Suffice it to say that we are of the opinion that the court should have permitted the introduction of the canceled checks offered by defendant. ■

Defendant also complains of two instructions given on behalf of plaintiff which defined the law with reference to the presentation of checks for payment within 24 hours, etc., and notification to defendant of nonpayment. These instructions certainly did defendant no harm because in the instant case it was not necessary that plaintiff present the check within 24 hours after she received it for the reason that the bank did not fail for more than 3 months after she received the check, and if she had presented it for payment and notified defendant that the bank refused to pay it -within sufficient time before the failure to enable defendant to protect itself, that was all that was required.

In the instant case, while the plaintiff’s version of the matter is open to grave doubt and seems very improbable, yet we are constrained to hold that the judgment should not be reversed with a finding of fact. Since the court unduly limited the cross-examination of plaintiff’s witnesses and the introduction of evidence on behalf of defendant, these- matters can be gone into on a new trial and, therefore, the judgment of the county court of Cook county will be reversed and the cause remanded for a new trial.

Reversed and remanded.

Taylor, P. J., concurs.

Thomson, J., dissenting.

Mr. Justice Thomson

dissenting:

I am unable to concur in the foregoing decision. There is evidence in the record to the effect that the defendant association had an account with the Industrial Savings Bank of Chicago from the time it drew its check in favor of the plaintiff and delivered it to her in June until the bank failed in September; that during that time it continuously had a balance in the bank to its credit to the extent of several thousand dollars; that it drew checks on its account and that all such checks were paid by the bank. Some evidence along this line was objected to and the objections were erroneously sustained. But, evidence is in the record and stands uncontradicted and, in mv opinion therefore, the judgment appealed from should be reversed with a finding of fact to the effect that the plaintiff failed to present the cheek to the bank within a reasonable time after she received it and retained it in her possession from the time the defendant delivered" it to her in June until after the bank failed, during all of which time the defendant had a balance in the bank to its credit sufficient to meet the check.


author: Mr. Justice Thomson

text:
    William F. Obergfell, Appellee, v. Ford M. Booth, Defendant. Central Trust Company of Illinois, Garnishee, Appellant.
    Gen. No. 25,081.
    1. Garnishment, § 63

      —what is extent of garnishee’s rights. A garnishee has a right to all demands and set-offs as against the judgment creditor that it would have against the judgment debtor, as the garnisher’s rights are not fixed by the serving of the summons but are subject to the adjustment of the mutual demands between the garnishee and the debtor.
    2. Garnishment, § 105*—what judgment may he entered. Under J. & A. j[ 5948, permitting a garnishee to deduct from the debtor’s effects in his hands demands which he holds against the debtor, and J. & A. If 5959, giving the court power in garnishment proceedings to make an equitable adjustment in its orders as to the debtor’s property held by the garnishee, where a garnishee who has a deposit of the debtor also hold's a note of such debtor, secured by collateral, which provides that the debtor’s deposit in its hands may be applied thereon, the court may, under its equitable powers, require the garnishee to pay the deposit to the attaching creditor if the collateral is sufficient to pay the note, or may require that the collateral be sold, the garnishee paid and, if the proceeds are sufficient, the garnisher’s debt paid and any balance remaining returned to the debtor.
    3. Garnishment, § 63*—when garnishee loses right to apply deposit. A bank to which is executed a promissory note by a depositor, secured by collateral, authorizing the bank at any time at which it may have on deposit funds of such depositor to apply them to the payment of said note, loses, as against a garnisheeing creditor of such depositor, the right to apply the deposit where it renews the note, retaining the collateral, after the service upon it of the garnishee summons and the filing of its answer.
    Appeal from the Municipal Court of Chicago; the Hon. Edmund K. Jarecki, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1919.
    Affirmed.
    Opinion filed July 7, 1920.
    Winston, Strawn & Shaw, 'for appellant; T. J. Shaughnessy, of counsel.
    Walter J. Miller and Walter L. Wenger, for appellee.

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

   Mr. Justice Thomson

delivered the opinion of the court.

This is an appeal hy the garnishee from a judgment for $335.93 recovered by the plaintiff. The garnishee was summoned in an attachment suit begun on November 4, 1918, against Booth,. The attachment writ was returnable November 14. On the latter date the cause was continued to December 30, for service on Booth by publication, as he ivas shown to be a nonresident. ■ In the meantime the garnishee summons was served and the garnishee filed an answer on November 12, in which an indebtedness in the sum of $335.93 on the part of the garnishee to Booth was admitted. On December 30, the garnishee obtained leave to file an amended answer, which was duly filed on January 9, 1919. In its amended answer, the garnishee alleged that at and prior to the service of the writ of attachment upon the garnishee, Booth became indebted to the garnishee-in the sum of $1,000 and that it was agreed between, the garnishee and Booth that the garnishee, Central Trust Company, might at any time apply any moneys which it might havé on deposit for the said Booth toward the payment of said indebtedness whether due or not; and that “at the time oí the service of the said attachment writ” upon the garnishee there was $335.93 in Booth’s checking account, “and that thereafter” the garnishee pursuant to the authorization referred to “applied the said sum of $335.93 of the said account upon the said indebtedness of the said Booth,” and that the balance of the said indebtedness still remains owing and unpaid to the garnishee. This amended answer further set forth that the garnishee bank held 3,000 shares of the capital stock of the Liberty Silver Company, of the par value of $.l.per share, as collateral to said indebtedness which Booth had authorized it to sell at any time at public or private sale, and' apply the proceeds thereof to the said indebtedness.

It was stipulated by the parties that on October 23, 1918, Booth executed a promissory note in the sum of $1,000, to the order of Central Trust Company, payable in 30 days, which note became due November 22, 1918, and that said note contained the provisions referred to by the garnishee in its amended answer. It was further stipulated that on November 22, 1918, Booth, “executed a renewal note” in the sum of $1,000, payable in 90 days, and that the terms of this note were in other respects the same as those of the original note.

The garnishee has a right to all demands and set-offs, as against the judgment creditor, that it would have against the judgment debtor. As was said in Bank of Commerce v. Franklin, 90 Ill. App. 91: “The rights of a garnishor are not fixed by the serving of a garnishment summons. They are subject to the adjustment of the mutual demands between the garnishee and the judgment debtor.”

Our statute on garnishment (J. & A. jf 5948) says: “Every garnishee shall be allowed to retain or deduct out of the property, effects or credits in his hands, all demands against the plaintiff, and all demands against the defendant, of which he could have availed himself if lie had not been summoned as garnishee, whether the same are at the time due or not * * * and he shall be liable for the balance only after all mutual demands between himself and plaintiff and defendant are adjusted * * *.” By the terms of the notes given by Booth to the Central Trust Company, the latter was expressly authorized to apply any sum it might have to his credit towards the payment of the note “at any time, at its discretion,” whether the note was then “due or not.” Our Garnishment Act further provides (J. & A. 5959) that in such proceedings as this the court may make all orders in regard to “any goods, chattels, choses in action or effects” in the hands of the garnishee or under his control, belonging to the defendant, “which may be necessary or equitable between the parties,” and it has been held that a garnishment proceeding is one in which the court has equitable powers. Elzy v. Morrison, 180 Ill. App. 711. Under its equitable powers the court might, if it appeared that the garnishee had in its possession collateral sufficient to make it whole on its debt, require it to pay over the money on deposit to the attaching creditor, or it might require that the collateral be sold, the garnishee paid, and then the garnisher’s debt paid, if sufficient remained for that purpose, and if anything then remained that it be paid over to the judgment debtor. However, this point has not been raised by the appellee and it is not before us.

So far as the amount which the judgment debtor had on deposit and to his credit in the garnishee bank at the time the latter was served with the garnishee summons is concerned, we are of the opinion that such right as the garnishee may have had, to apply it towards the payment of the note it held, was lost when the garnishee took the renewal note of November 22, even though we do not consider the taking of that note as a payment of the debt. Although the taking of the renewal note did not extinguish the debt, it did have the effect of materially altering the relation of the parties involved. While the garnishee, under the provisions of the statute, has the right, upon being notified of garnishment proceedings, to adjust any demands it may have against the judgment debtor, it cannot enter into any new agreements with the debtor involving money or property which it holds to secure the debt, which agreements may operate to the detriment of the attaching creditor. Although the new note taken by the garnishee in the case at bar was a “renewal note,” extending the time of payment of the indebtedness 90 days, and in other respects similar in terms to the original note, the taking of the renewal note was the consummation of a new arrangement between the garnishee and the judgment debtor, the effect of which, in our opinion, was such as to require us to affirm the judgment of the trial court. If, instead of taking the renewal note, the garnishee, having been served with process in this case and filed its answer, had declined to enter into any new arrangement with the judgment debtor but had demanded payment of the note, it might have been paid. Or, if not, the bank could have sold the collateral in its possession, the value of which was then $1,500, as we may assume from the fact that the renewal note, then taken by the garnishee, so states. In either event the indebtedness would • have been paid and thereafter the amount of the deposit of the judgment debtor with the garnishee no longer subject to be used in connection with it.

■ Inasmuch as the garnishee chose to enter into this new arrangement with the judgment debtor, after it had been served with process in this case and had filed its answer as above set forth and had. thus postponed its use or right to use the collateral in bringing about the payment of the indebtedness, and continued to hold such collateral, we are of the opinion that the trial court did not err in entering judgment against the garnishee for the amount of the deposit,” and therefore the judgment of the municipal court is affirmed.

Affirmed.

Mr. Presiding Justice Taylor and Mr. Justice O’Connor concur.


text:
    Olga A. Crahe, Appellant, v. Mercantile Trust and Savings Bank, Appellee.
    Gen. No. 25,109.
    1. Signatures, § 3

      —when evidence is sufficient to show genumeness. Where plaintiff whose name appears on a document testifies, on examination by the court, that the signature resembles hers and may or may not be hers, that she does not remember signing the paper, that her previous statements, on examination by counsel, that the signature was not hers were based on the fact that she did not recollect signing the instrument and that the signature might or might not be hers and resembled hers, and a handwriting expert testifies, on comparing such signature with admittedly genuine signatures of plaintiff, that they were all made by the same person, such evidence is sufficient to support a special finding by the trial court that plaintiff had signed the document.
    2'. Attorney and client, § 61*—what is extent of attorney’s authority to sign client's name. An attorney at law cannot generally be said to have implied authority to indorse his client’s name in such a way as to bind the client as indorser.
    3. Attorney and client, § 61*—when power to sign client’s name in settlement is implied. Where an attorney at law is employed, whether by a local or a nonresident client, to bring suit on or adjust a claim for damages and collect the amount recovered or agreed upon in settlement, he has implied authority to indorse his client’s name for the purpose of accomplishing collection of the claim and as a proper means to that end, and where such indorsement is .made it will be sufficient to protect a bank paying a check given by the judgment debtor in settlement of the claim, and the application of such rule is not affected by the fact that the attorney misrepresents to the client the amount recovered or paid in settlement.
    Appeal from the Municipal Court of Chicago; the Hon. Leo J. Doyle, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1919.
    Affirmed.
    Opinion filed July 7, 1920.
    James J. Barbour and Edward H. S. Martin, for appellant.
    Adams, Childs, Bobb & Wesoott, for appellee; F. M. Hartman, of counsel.

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

   Mr. Justice Thomson

delivered the opinion of the court.

This is an appeal by the plaintiff, Olga A. Crabe, from a judgment for defendant—that plaintiff take nothing by her suit and for costs—in an action in tort for the alleged conversion of a check, based upon a finding of not guilty by the court without a jury.

The plaintiff had recovered a verdict in the sum of $1,000 in an action brought by her against the Chicago City Bailway Company. Some time later her attorney, J. Marion Miller, gave her a check for $212, telling her he was only able to collect $300 from the defendant and that he would use the difference between that amount and the amount of the check to defray certain expenses of the trial. The check referred to was dated June 4, 1915. The plaintiff testified that she subsequently learned that .Miller had died in the penitentiary and that she then suspected that he might have cheated her in handling her ease so she went over to the office of the street railway company and there for the first time learned that the company had on June 7, 1915, given Mr. Miller a check for $761.85 drawn to the order of “Olga A. Crahe, Judgment Creditor and J, Marion Miller, Atty. for Judg. Creditor.” This check was then exhibited to the plaintiff, indorsed “Olga A. Crahe, Judgment Creditor; J. Marion Miller, Att’y for Judgment Creditor; J. Marion Miller.” This occurred in August, 1918. The plaintiff then advised the defendant, being the bank on which the check was drawn, that her indorsement on the check was a forgery and that her attorney Miller was without any authority to indorse her name on the check and she brought this action to recover the proceeds of the check less the $300 for which Miller had accounted to her.

On cross-examination the plaintiff was shown a receipt dated June 5, 1915, acknowledging receipt of $761.85 “in full settlement for satisfaction of judgment in case of Olga A. Crahe v. Chicago City Railway Company * * * in which the judgment is for $750 and costs, which is herewith settled in full for the above amount. * * * Olga A. Crahe (Seal). Judgment Creditor; Signed: J. Marion Miller (Seal) Attorney for Judgment Creditor,” and she was asked if that was her signature on the receipt and, she replied, “I believe it is.” She later said she was not sure but she believed it was not,—it might be or it might not be. Still later she was recalled to the stand and again shown this receipt and asked whether what purported to be her signature on the receipt was in her handwriting and she said “it resembles my handwriting.” She was then asked whether she did sign the receipt and she said she did not.

The plaintiff was also shown a satisfaction of the judgment in question also purporting to be signed by her, which was not dated. She said she was positive that what purported to be her signature thereon was not her signature. She later testified as to this that it “resembles my signature. I cannot say whether it is my signature. I did not sign any such paper to my knowledge.” Upon being examined by the court as to her purported signature to the satisfaction of the judgment she said she believed it was not her signature,—“I am not positive. * * * It resembles my signature. That is all I can say about it. I do not remember signing any such paper.” She further testified, in reply to questions put by the court, that when she said what purported to be her signatures to' the receipt and the satisfaction of the judgment were not her signatures, those statements were based upon "the fact that she did not recollect signing such instruments but that so far as the signatures themselves were concerned, they might be hers or might not be,— they resembled her signature. A handwriting expert testified that upon a comparison of her purported signatures on the receipt and the satisfaction of the judgment with admittedly genuine signatures of the plaintiff, he was of the opinion that they were all made by the same person. On this evidence we are of the opinion that the special findings of the trial court that the plaintiff had signed the documents were fully warranted.

We are of the opinion that Miller had implied authority to indorse, the plaintiff’s name on the check in question for the purpose of collection. The plaintiff had employed him as her attorney to collect such damages as she might establish against the Chicago City Railway Company in connection with a suit she brought against that company. We believe the evidence warrants the inference that she signed the receipt and satisfaction of judgment and delivered those documents to Miller to be given to the Chicago City Railway Company when the claim was settled. Of course, it will not be denied that when she signed those documents and gave them to Miller and he took them to the railway company, he was clothed with full authority from her to receive $761.85 in full settlement of her claim, in cash, and if he had received that amount in cash and misappropriated it,. the plaintiff could have' no further claim against the railway company. If Miller received a check instead of the cash, drawn to the order of his client and himself, he was clothed with authority to indorse the plaintiff’s name on the check "for the purpose of collection, and if he did so and received the amount of the check in cash from the bank on which it was drawn, and misappropriated it, the plaintiff has no claim against the bank. While an attorney at law cannot generally be said to have implied authority to indorse his client’s name in such a way as to bind -the client as an indorser, we hold that where he is employed to bring-suit upon or adjust a claim for damages and collect the amount recovered or agreed upon in settlement, he has implied authority to indorse his client’s name for the purpose of accomplishing collection of the claim, and as a proper means to that end, and where such indorsement is made it will be sufficient to protect a bank paying a check given by the judgment debtor, in settlement of the claim. National Bank of the Republic v. Old Town Bank of Baltimore, 112 Fed. 726; National Fire Ins. Co. v. Eastern Building & Loan Ass’n, 63 Neb. 698; 65 Neb. 483; North End Paper Co. v. State Bank of Chicago, 198 Ill. App. 242.

We do not deem it essential to the application of this rule that the attorney be representing his client in a distant city. While the facts involved in the cases referred to are somewhat different from those involved in the case at bar, we believe that the principle which those cases followed is applicable here.

It can make no difference that the plaintiff did not know that her attorney either had collected or was about to collect $761.85 from the railway company instead of $300, or that she did not become aware of it until several years later, if such is the fact. It being established that she signed the receipt naming that amount, she must be charged with such knowledge. In any event, as her attorney Miller had implied authority to indorse her name on the check for the purpose of collection, the plaintiff had no right of action against the defendant at any time.

We- find no error in the record and therefore the judgment of the municipal court is affirmed.

Affirmed.

Mr. Pbesiding Justice Taylob and Mr. Justice O’Connob concur.


author: Mr. Presiding Justice Barnes

text:
    Julius Oppenheimer, Appellant, v. Mary Szulerecki and Annastazia Szulerecki, Appellees.
    Gen. No. 25,221.
    1. Liens, § 4

      —when equitable lien of lessee is not established. A bill which sets up provisions of a lease that in the event the demised building or any part thereof shall be rendered untenantable by fire, the lessor shall restore the same within 90 days, and that in the event of the lessor’s failure to restore it, the lessee may, at his option, but without prejudice to his other remedies, terminate the lease, and avers the destruction of the premises, the lessee’s election not to terminate the lease, the lessor’s refusal to restore the building and its restoration by the lessee and asking an accounting and that the lessor be restrained from disposing of the premises, from prosecuting a forcible detainer suit commenced after the termination of the lease and from otherwise interfering with the lessee’s possession until he is reimbursed, does not show that the lessee has a right to an equitable lien or any other equitable relief, and is properly dismissed.
    2. Liens, § 4*—what is effect of possession as to equitable lien. An equitable lien is not necessarily conditioned upon the possession of the thing sought to be charged.
    Appeal from the Circuit Court of Cook county; the Hon. Oscab M. Tobrison, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1919.
    Affirmed.
    Opinion filed July 14, 1920.
    Rosenthal, Hamill & Wobmseb, for appellant;

      Lessing Rosenthal and Harry Markheim, of counsel.
    Austin J. Rooney and Daniel Riley McMaster, for appellees.

      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.

This is an appeal from a final decree denying complainant’s motion for a preliminary injunction, sustaining defendant's’ demurrers to the bill of complaint, and dismissing it for want of equity.

The bill is predicated on the failure and refusal of Mary Szulerecki to perform a covenant, contained in her lease of certain premises to complainant, to restore, on its destruction by fire, a building included in the lease.

The specific clauses of the lease upon which the bill is based provide that in the event the demised building, or any part thereof, shall be rendered untenantable by fire the lessor shall restore the same within 90 days after any such loss, and that in the event of the lessor’s failure to restore the same, the lessee may at his option, but without prejudice to his other remedies, terminate the lease.

The lease also provides that at its termination, by lapse of time or otherwise, the lessee will yield up immediate possession.

It appears from the averménts in the bill that the building was destroyed by fire; that after its destruction the lessee saw fit not to terminate the lease; that on the lessor’s refusal to restore the building he restored it himself, and that on the termination of the lease he retained possession of the premises claiming an equitable lien for expense incurred in the restoration of the building and loss of profits consequent upon the lessee’s default, and the right to continue possession to enforce such lien,

Other averments are merely ancillary to, or an enlargement upon, those recited, upon which the claim of an equitable lien must rest if tenable.

The bill prays that the restoration of the building be decreed a performance of said covenant by the lessee in behalf and at the expense of the lessor, that an accounting be had, and that the lessor be restrained and enjoined from disposing of said premises, and from prosecuting a forcible detainer suit commenced after the termination of the lease, ánd from otherwise interfering with complainant’s possession until he is reimbursed and his lien discharged.

Whether the nonperformance of the covenant in question entitled the lessee to erect a new building and to recover damages incurred by reason thereof, we need not consider, if, assuming he had such right, no lien followed in consequence thereof. If there be an equitable lien it must arise by implication from the recited facts, for the lease contains no express provision for one. Unquestionably, if the party so intended, a lien might have been provided for upon the contingency of the lessor’s breach of the covenant and the lessee’s restoration of the building. The' contingency of such a default was at least contemplated, for the lease provided that “in the event of the lessor’s failure to restore * * * the lessee may at his option, but without prejudice to his other remedies, terminate the lease.” He elected not to terminate the lease but asserted his right to possession thereunder to the end of the specified term, as has been decided he had the right to do. (Szulerecki v. Oppenheimer, 283 Ill. 525.) But while the lease gave such option it contained no other provision respecting the lessee’s rights in case he did not exercise such option other than he need not pay rent for the part of the demised premises rendered untenantable while the same were not tenantable. The question arises, therefore, whether in view of contemplated contingencies, and the absence of any express provision to meet them other than those stated, it can be said that an equitable lien will be implied from the above circumstances.

In this connection reference should be made to certain covenants of the lessee. In section 2 of the lease, he agrees that he “upon the termination of this lease, in any way, will yield up said premises to said party of. the first part in good condition and repair (loss by fire and ordinary wear excepted),” and, in section 8, “at the termination of this lease, by lapse of time or otherwise, to yield up immediate possession to said party of the first part, and failing so to do, to pay as liquidated damages, for the w;hole time such -possession is withheld, the sum of five dollars per day.” Certainly these provisions are inconsistent with the attempted enforcement of such a lien by continued possession of the premises after the termination of the lease.

But recognizing that an equitable lien is not necessarily conditioned upon the possession of the thing sought to be charged (Gregory v. Morris, 96 U. S. 619; Hauselt v. Harrison, 105 U. S. 401), it remains to be determined whether there is anything in the lease—which represents the entire contract—from which such a lien can be implied. In most cases to which our. attention has been called, aside from those analogous to a vendor’s lien, where an equitable lien was implied, there was some provision in the contract to disclose an iqtent to create a security. In some cases there was an absolute promise to that effect, as where money was advanced, or some obligation incurred, on the express promise of a mortgage or bill of sale as security. (17 R C. L. p. 605.) In New York Dyeing & Printing Establishment v. DeWestenberg, 46 Hun (N. Y.) 281, where a. plaintiff was entitled to recover the value of improvements put upon the land of defendant, it was held that the decree went too far in adjudging him a lien upon the premises, the court saying:

“The lease does not provide for any lien and in the absence of some specific provision in that instrument on the subject, the effect of the agreement therein contained to pay the value of the buildings and improvements at the expiration of the term is merely to' render the lessors or their successors in interest liable to a simple money judgment for the amount at which such value should be assessed.”

In another case, where the lessors covenanted to pay for improvements and the lessees did not see fit to reserve the right in the lease, as they might have done, to retain possession of the leased premises as security for the performance of the lessors’ covenant to pay, the court said: “We have no power to supply the omission. The defendant must, therefore, look to his remedy by action. He has none other left to him.” (Speers v. Flack, 34 Mo. 102.)

The cases are not few in which the lessee has invoked the doctrine of an equitable lien to secure payment for improvements for which the lessor has agreed to pay. Some of them turn either upon an alternative provision in the leqse for the extension thereof for an additional term, or upon a provision giving the lessee the right to retain the ownership and possession of the buildings and improvements until the payment therefor is made by the lessor. Most of the cases cited in the briefs on this subject are referred to and distinguished in the case of Swift v. Sheehy, 88 Fed. 924. While in that case a lien was allowed by reason of an express provision for ownership and'possession of the buildings and improvements until payment therefor was made, the court approved of the rule laid down in Speers v. Flack, supra, holding that there was no such lien in the absence of such provision respecting the retention of possession until the performance of the covenant to pay for the improvements. In The Confiscation Cases, 1 Woods 221, Fed. Case. No. 3,097, where a similar lien was made and disallowed, the court said:

“It is difficult to see on what ground a lien for this claim can be maintained. The matter existed simply in covenant. The lease does not contain a word which looks like the creation or expectation of a lien upon the property itself.”

It was also said in Gardner v. Samuels, 116 Cal. 84:

“The parties could have inserted in their lease an agreement that the value of their improvements should be made a lien upon the land to be secured thereby, but their omission to do so implies that such was not the intention, and the plaintiff is thereby deprived of the right to such lien.”

And it was said in Richards v. Arms Shingle & Lumber Co., 74 Mich. 57:

“Courts of equity do not create liens upon lands to secure a party for a breach of contract, whether under seal or not, where there is no agreement for a lien between the parties.”

We think it unnecessary to prolong this opinion by an analysis of the authorities cited, or to quote further from them. There is nothing in the lease or contract which expressly gives the lessee the right to retain possession of the premises until the lessor compensates him for the value of his improvements, or that otherwise gives him security on the premises for his damages, assuming that he is entitled to recover, the same. Without entering into further discussion of appellant’s contention, we think the bill failed to show a right to an equitable lien or any other equitable relief, and therefore the decree should be affirmed.

Affirmed.

Mr. Justices Gridley and Matchett concur.


text:
    Mary Szulerecki, Appellee, v. Julius Oppenheimer, Appellant.
    Gen. No. 25,222.
    1. Forcible entry and detainer, § 64

      —when process is unimportant. The municipal court of. Chicago having been expressly given jurisdiction of forcible detainer cases by section 2 of the Municipal Court Act (J. & A. If 3314), where the defendant in such an action, without questioning the mode or process by which he was brought before that court, submitted to its jurisdiction, the process is unimportant.
    2. Process, § 78*—when defeats of process are waived. A defendant appearing and defending upon the merits before a court having jurisdiction of the subject-matter waives any objection to the original process.
    3. Forcible entry and detainer, § 60*—when description of premises is sufficiently alleged. Where the venue of the complaint in a forcible detainer proceeding is laid in the “State of Illinois, City of Chicago,” and plaintiff proceeds to complain that she is “entitled to the possession of the following described premises in said city, to-wit: 4708 South Ashland Avenue,” the location of the premises is sufficiently designated as in the City of Chicago.
    4. Forcible entry and detainer, § 60*—when description of premises is sufficient for restitution. In a forcible detainer suit the complaint and proof examined and held to designate the premises with sufficient certainty to enable the officer executing the writ of restitution, awarded on the judgment for “possession of the premises described in the complaint,” to identify them with certainty.
    Appeal from the Municipal Court of Chicago; the Hon. Bernard P. Barasa, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1919.
    Affirmed.
    Opinion filed July 14, 1920.
    Rosenthal, Hamill & Wormser, for appellant; Les-sing Rosenthal and Harry Markheim, of conns el.
    Austin J. Rooney and Daniel Riley MoMaster, for appellee.

      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.

This is an appeal from a judgment entered in a forcible detainer suit brought in the municipal court of Chicago to recover possession of premises leased by appellee to appellant. The case was tried without a jury. Error is urged in the court’s denying defendant’s motion at the conclusion of the evidence to find for the defendant, and overruling the motion in arrest of judgment.

Appellant’s first contention is that the municipal court was without jurisdiction to entertain a case of forcible detainer. While section 2 of the Municipal Court Act (J. & A. 3314) expressly confers upon said court jurisdiction of forcible detainer actions, it is urged that, as the amendment of June 25, 1917, to section 48 of said Act (Callaghan’s 1920 Stat. 3360), which before amendment prescribed the procedure as to the issuance of summons, entirely omits any provision governing the issuance, return or service of the “writ and summons” in such a case, the court is without authority to entertain actions of that character. A summons was issued in the case at bar in a form analogous to other cases of the municipal court, and after service of the same on defendant he entered his appearance and went to trial. Appellee urges that the issuance and service of the summons were in accord with the provision of the first paragraph of section 48, that the practice and proceedings in that class of cases “shall be the same, as near as may be, as that which is now prescribed by law for similar cases in courts of record.” Appellant’s reply to this contention is that the practice under the Forcible Detainer Act is inconsistent with the organization and procedure of the • municipal court, which has no stated terms. As, however, the court is expressly given jurisdiction in that class of cases, and defendant, without questioning the mode or process by which he was brought before it, submitted his person to its jurisdiction, we need not discuss the precise method of procedure resorted to. It is of no importance whether there was any process at all so long as the court had jurisdiction of the subject-matter, and appellant appeared and submitted himself to its jurisdiction (Grier v. Cable, 159 Ill. 29; Central Elevator Co. v. People, 174 Ill. 203 ; Yaeger v. City of Henry, 39 Ill. App. 21; Stryker v. Pendergast, 105 Ill. App. 413), and defendant by appearing and defending upon the merits waived any objection to the original process. (Hercules Iron Works v. Elgin, J. & E. Ry. Co., 141 Ill. 491; Rosenbleet v. Rosenbleet, 122 Ill. App. 408.)

It is next urged that the description of the premises in plaintiff’s complaint is defective, that the premises cannot be readily identified thereby, and also that the proof failed to show that the premises involved are within the City of Chicago, and county of Cook, and that, therefore, the jurisdiction of the court has not been established.

We. do not think the record sustains these contentions. The venue of the complaint is laid in the “State of Illinois, City of Chicago,” and the plaintiff proceeds to complain that she is “entitled to the possession of the following described premises in said city, to-wit: 4708 South Ashland Avenue.” This was sufficient to designate the location of the premises as in the City of Chicago.

As to the proof, it appears from the lease introduced in evidence that the premises demised were in the City of Chicago and known and described as follows: ‘ ‘ The entire first floor and basement of the three-story brick building known as No. 4708 South Ashland Avenue.” With this lease before the witnesses it was testified that defendant took possession “of the premises” under that lease, and was still in possession, that the building “on the premises” was destroyed by fire and another was erected by the plaintiff “on the premises” of which he was still in possession, claiming under the lease. To render these facts more certain, defendant’s own counsel, who said he was going to “put it all in one question,” asked his client if certain facts recited in the question were correct, to which the answer was in the affirmative. In that question he expressly referred to the building in the lease as “the three-story brick building, known as No. 4708 South Ashland Avenue, in Chicago, Illinois, and the fact that it was destroyed by fire and that plaintiff erected a new building on the premises, or to restore the building then on the premises,” and that he had “had possession of this new building standing upon the premises 4708 South Ashland Avenue ever since.”

The evidence tended clearly to show that the premises of which defendant retained possession included the land on which both the old and new buildings stood (Szulerecki v. Oppenheimer, 283 Ill. 525), which had a frontage of only 24 feet, and that said premises, including both the land and buildings, were known and described as 4708 South Ashland Avenue. We think, therefore, that both the complaint and proof designated the premises as not only in Chicago, but with sufficient certainty to enable the officer executing the writ of restitution, awarded on the judgment for “possession of the premises described in the complaint,” to identify them with certainty. 'Accordingly the judgment will be affirmed.

Affirmed.

Mr. Justices Gridley and Matchett concur.