text:
    The Fehr Construction Company, Appellee, v. Postl System of Health Building et al., on appeal of Chapin & Gore, Appellant.
    Gen. No. 19,950.
    1. Mechanics’ liens, § 17

      -—improvements for which lien is given. There can be a mechanic’s lien for only such work as constitutes a permanent improvement to the building or articles furnished which might be considered permanent fixtures.
    2. Mechanics’ liens, § 17

      —items not lienable. Lockers and such extras as racks for letter files, shelves for stenographer’s desk, oak shelf, etc., placed in a building under a contract with a tenant to be used for its convenience and business, held to partake of the nature of trade fixtures and therefore not items for which a mechanic’s lien could be given.
    3. Mechanics’ liens, § 212

      —when court of review cannot apply payments to nonlienable items. On appeal from a mechanic’s lien decree, the Appellate Court cannot apply payments made on the contract to the nonlienable items, where the value thereof is included in the contract price and there is no evidence in the record to show what part of the contract price was represented by the lienable or nonlienable items.
    4. Mechanics’ liens, § 212

      —when court of review cannot enter judgment. On appeal from a mechanic’s lien decree declaring a lien for some nonlienable items, the Appellate Court cannot enter judgment for the lienable items, where the items are included in the contract price and there is no evidence in the record as to the value of the different items from which value of the lienable or nonlienable items can be determined.
    5. Mechanics’ liens, § 24

      —items not lienable. Electric cabinets, curtains, hooks and labor necessary for their installation, held not to constitute permanent fixtures or improvements to the building so that a mechanic’s lien could be given therefor.
    6. Mechanics’ liens, § 24

      —when item constitutes permanent fixture. Marble and work furnished in connection with the installation of a shower bath in a building for a tenant, held to constitute a permanent fixture rather than a trade fixture, where the lease provided that no alterations nor additions were to be made except with the consent of the lessor, and such consent was given to the installation of the shower bath, and the lease further provided that all alterations and additions should remain for the benefit of the lessor.
    Appeal from the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed in part, reversed in part and and remanded.
    Opinion filed November 19, 1914.
    William S. Newburger and Benjamin P. Ruekberg, for appellant.
    Bulkley, Gray & More, for Harty Bros. & Harty Co.
    Ashcraft & Ashcraft, for appellees Davidson Bros. Marble Co. and Benjamin Hansen; Charles F. Rathbun, of counsel.

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

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

   Mr. Justice Pam

delivered the opinion of the court.

This is a proceeding to enforce claims for mechanics’ liens against the leasehold interest of Chapin & Gore, a corporation which has a ninety-nine year lease on the premises at 61-67 East Adams street in the city of Chicago. The complainant in the original bill was the Fehr Construction Company, and the original defendants were the Postl System of Health Building and Chapin & Gore, both being corporations. Afterwards leave was given to Harty Brothers & Harty Company, a corporation, James H. Roche, E. J. Pickett & Felden, Davidson Brothers Marble Company, a corporation, Benjamin Hanson, to become parties defendant, and leave having been obtained, they all respectively filed their answers, which also were intervening petitions to enforce their liens. The original defendant, Chapin & Gore, filed its answer, but the Postl System of Health Building did not answer, and default was entered against it.

The cause was referred to a master, evidence was heard upon the bill and the various answers, hereinafter referred to as petitions, and the report of the master recommended a decree for liens in favor of the complainant and all the petitioners. The objections on behalf of the appellant, hereinafter referred to as defendant, were filed before the master and overruled, and by order of the court stood as exceptions in said cause, which upon argument before the court were overruled and a decree entered in conformity to the recommendations of the master, directing a sale of said leasehold estate, from which decree the defendant has prayed this appeal.

Defendant is the owner of a 99-year lease upon the aforementioned premises, upon which stands a completed eight-story building. In January, 1912, it leased to the Postl System of Health Building a large part of the seventh floor in said building, for a period of. five years, at a rental of $300 per month. The premises demised in this lease were to be occupied as a physical culture institute to provide for business men a “System of Health Building.”,

To render these premises suitable for this purpose it was necessary for the Postl System to install certain apparatus and make certain alterations and additions in and to the premises. Accordingly, the Postl System entered into contracts with the complainant and the aforesaid petitioners for the installation of a shower bath, electric cabinets, office partitions, lockers and other equipment necessary to carry on said business. All the material and work called for in these contracts were furnished and performed.

Subsequently, a petition in bankruptcy was filed against the Postl System, and it was duly adjudicated a bankrupt, following which complainant’s bill and the petitions were filed upon defendant’s (Chapin & Gore) leasehold interest, seeking mechanics’ liens for the labor and" material furnished. The complainant and the intervening petitioners alleged that the said defendant, Chapin & Gore, had knowingly permitted, or knowingly. authorized, the labor and material to be furnished for the improvement of the premises leased to the Postl System, and that thereby they were entitled to liens, within the provisions of section 1 of the Act in relation to mechanics’ liens. (J. & A. ¶ 7139.)

Defendant contends that it did not authorize the said material or labor to be furnished, nor did it knowingly permit the material to be furnished and the labor performed as charged, with the exception of the installation of the shower bath. It contends that whatever apparatus or fixtures were furnished under the various contracts were in the nature of trade fixtures ; and further, that any labor furnished in connection with their installation could not be made the subject of a mechanic’s lien; also, that any additions or alterations made in the premises in connection therewith were not permanent improvements to the building.

Defendant first takes up the various questions generally, and then specifically, as to the bill and the several petitions; but in view of the conclusion we have arrived at with reference to the decree, we shall take up the bill and the various petitions individually.

Complainant, the Fehr Construction Company, did not file any brief in support of the decree in its favor. The evidence in the record shows that it entered into a written contract with the Postl System to furnish and install on the premises in question, partition work, railings, shelving, etc., for the contract price of $989. The contract, which was in the form of a letter and an acceptance, was offered in evidence. In addition, it furnished extra work and material, so as to make the total amount of its claim $1,098.65. Included in its claim was a bill for material furnished by Harty Brothers & Harty Company, a corporation, also an intervening petitioner, for the sum of $346.05. The evidence shows that this contract was completed satisfactorily.

But a serious question arises as to whether or not, under the allegations in the bill and the evidence, the master was warranted in finding that the complainant was entitled to mechanics’ liens for all the material furnished and work performed under this contract.

Even though the master found that the defendant had knowingly permitted this contract to be made and material furnished and work performed thereunder, yet there could be a mechanic’s lien for only that part of the work that constituted a permanent improvement to the building, or articles furnished under said contract which might be considered permanent fixtures. Baker v. McClurg, 198 Ill. 28; McAlear v. New York Life Insurance & Trust Co., 177 Ill. App. 339.

The evidence introduced by the Fehr Construction Company shows that, as part of the contract, there were built on the premises in question, 23 lockers. The claim for extras shows such items as: Back for letter file; furnishing and laying muslin; two shelves for stenographer’s desk; oak shelf; visitors’ register; shelves in lockers; shelving in buffet kitchen; keyboard. These lockers and these extra items enumerated could not be considered permanent improvements to the premises, nor even permanent fixtures. They were necessary for use of the premises by the Postl System. They might easily have been removed, in fact, the testimony of the superintendent of the Fehr Construction Company shows such to be the fact. It is clear that the intention of putting in these lockers and these extra items was for the convenience and business of the Postl System, and not as permanent improvement to the building. They partook of the character of trade fixtures.

In the contract price of $989 was included the value of the material furnished and work performed with reference to the building of the 23 lockers, but there is no evidence as to what part of the contract price was represented in the making of these 23 lockers; and while on the statement for extra items there appears opposite each item a figure which might be said to represent its value, yet there is no competent evidence as to the reasonable value of these various items. The question of value is material because there was paid on this contract the sum of $350; and a court of equity, if it could distinguish between lienable and nonlienable items in a bill for mechanic’s lien, would apply that payment to the nonlienable articles under the contract so as to leave the creditor with his security of a mechanic’s lien for the lienable items.

But there being no evidence as to the value of these items, we cannot arbitrarily say that this payment should be applied to the nonlienable items in the complainant’s bill.

The Court, in the case of Haas Elec. & Mfg. Co. v. Springfield Amusement Co., 236 Ill. 465, cited by all the parties in the case at bar, stated with reference to section 1, that where a mechanic’s lien is endeavored to be recovered for material, fixtures, apparatus or machinery, it must be established that they were connected with the real estate upon which it is sought to establish a lien; and the Court went on to say:

“The state of.the record is such that it is impossible to separate the lienable from the nonlienable items, and until such items are separated we cannot tell what the amount of either is.” And the court accordingly reversed the decree which permitted a mechanic’s lien for these items.

Were there any evidence in this case whereby this court could determine the value of the lienable and nonlienable items, we should not hesitate to enter a judgment here for mechanic’s lien in favor of complainant, for such as could be properly held subject to mechanic’s lien. But inasmuch as the record is barren of any proof of the value, we are compelled to reverse the finding of the master and the decree of the court entered thereon, as to the complainant, the Fehr Construction Company.

Our decision with reference to the Fehr Construction Company is determinative also of the contentions raised on this appeal with reference to the intervening petitions of Harty Brothers & Harty Company, E. J. Pickett & Felden and James H. Roche.

The answer of Harty Brothers & Harty Company shows that the material it furnished was in connection with the contract between the Fehr Construction Company and the Postl System. The exhibits^ also show this fact.

The testimony of the superintendent of the Fehr Construction Company shows that part of the material furnished by Harty Brothers & Harty Company was used in the construction of 23 locker rooms, and certain additional items, partly making up the claim for extra work. The finding in the decree covered this material. The evidence does not distinguish with reference to the value of the material that went into the 23 lockers, and certain additional items in the claim for extra work.

The intervening petition of E. J. Pickett and Felden sets forth that they are in the painting and decorating business; that they had a contract with the Postl System, which they claim was with the knowledge of the defendant, Chapin & Gore, to do certain labor and furnish certain material. Their claim for lien shows that they furnished the material and performed the labor necessary to paint the woodwork, walls, partitions, lockers, etc., on the premises. The contract price was for one lump sum, without enumerating the price for any individual part of the work.

The petition, testimony and the exhibits show that the finding in their favor for the total amount due on their contract included the material and work furnished with reference to the locker rooms and certain other items for extra work furnished by the Fehr Construction Company. There is nothing in the evidence showing the value of this particular part of the material and the labor. While it is true that there was $100 paid on this claim of $365, yet we cannot arbitrarily say that that payment would represent the value of the labor and the work furnished with reference to the lockers, etc.

We have already held that the material furnished and the work performed in the installation of these 23 lockers, and certain additional items for extra work by the Fehr Construction Company, were not properly the subject-matter of a mechanic’s lien. In reviewing the findings of the decree in favor of Harty Brothers & Harty Company and E. J. Pickett & Felden, we are confronted with the same situation as applies to the findings in favor of the Fehr Construction Company, viz., that there is no evidence in the record whereby this court can determine the value of the material and labor furnished by the said Harty Brothers & Harty Company and the said E. J. Pickett & Felden, in connection with the 23 lockers and the certain extra items. We are therefore compelled to reverse the findings of the decree in their favor against the defendant Chapin & Gore.

The petition of James H. Roche sets forth the contract with the Postl System that he entered into, with the knowledge and consent of the defendant to furnish all labor and material for the plumbing work in and about the premises demised, and in the basement of the building; that it included the furnishing of pipes, faucets, tanks, shower bath equipment and electric bath cabinets; that the Postl System agreed to pay for the material and labor the sum of $3,495; that he received $100 on account, and that there was a balance due of $3,395. A claim for lien was duly filed for this amount, and the record shows the itemized statement filed as exhibit “A.”

The defendant contends that the entire material, apparatus and fixtures called for in this contract, including the labor performed in their installation, constituted trade fixtures.

The finding of the decree in favor of James H. Boche allows a mechanic’s lien for $3,395; this represePts the entire contract price less the $100 payment. This allowance is inclusive of every item set forth in petitioner’s exhibit “A.” Among these items are the following:

Two electric cabinets; curtains and hooks; standard bolts for curtains; and in addition, all items for labor were allowed.

The evidence shows that the curtains, hooks, bolts for curtains and the electric cabinets were purchased by the petitioner and installed in the premises in question, under the contract with the Postl System. Considering the character of the business for which these premises were occupied, there can be no question that these cabinets were to be used in giving treatment to its patrons. While wires and conduits supplying the electric current may have been attached to the building, or the cabinets themselves were attached to the floor or walls, yet that situation would not constitute the cabinets’ permanent fixtures or an improvement to the building.

We are of the opinion that the electric cabinets, curtains, hooks and labor necessary for their installation are not properly the subject-matter of a lien under the evidence submitted on the Roche petition.

The record is barren of any competent evidence as to the value of these items. Nor can we subscribe to an argument that the exhibit introduced in evidence has certain figures opposite these various items from which the value might be inferred. Every item for labor in the claim was allowed by the master in his findings, yet there is no evidence from which we can tell what the value of the work was in connection with the installation of these cabinets.

For the error of the court in entering its finding in the decree allowing a mechanic’s lien for the entire sum, the decree must be reversed as to the petition of James H. Roche.

In addition to the foregoing mechanic’s lien, intervening -petitions were filed on behalf of the Davidson Brothers Marble Company and Benjamin F. Hanson.

The petition of Davidson Brothers Marble Company set forth that it had a written contract with the Postl System to furnish certain marble to be used in connection with the installation of the shower bath in these premises; that the marble was furnished and was of the value of $102.20.

The petition of Benjamin F. Hanson was for the labor performed in setting the marble furnished- by Davidson Brothers Marble Company, and that the value of said services was $20.03.

The lease that was offered in evidence in this case between the Postl System and the defendant had' a covenant that no alterations nor additions were to be made, save with the consent of the lessor; there was an express consent to the installation of the shower bath; and the lease further provided that all additions and alterations made should remain for the benefit of the lessor.

The defendant also contends that said shower bath should be regarded as a trade fixture. We cannot subscribe to that contention, in view of the terms of the lease. The alterations and additions to the premises by the installation of this shower bath were expressly consented to, and, by the terms-of the lease, inured to the benefit of the lessor. The shower bath, under the evidence as to the manner in which it was attached to the building, and under the express covenants in the lease, must be regarded as a permanent fixture or improvement, and not as a trade fixture, and was therefore properly the subject-matter of a mechanic’s lien. The benefit of the mechanic’s lien would also extend to the labor in connection therewith. We are therefore of the opinion that the court properly entered a lien ■in favor of the Davidson Brothers Marble Company and Benjamin F. Hanson.

In affirming the finding of the court on these two last intervening petitions, this court does not wish to be understood as passing upon the question whether or not the defendant, Chapin & Gore, knowingly permitted the material to be furnished or the work to be performed under the other contracts involved herein.

The decree of the Circuit Court will be affirmed in favor of the Davidson Brothers Marble Company and Benjamin F. Hanson; and in so far as it relates to the findings in favor of the Fehr Construction Co., Harty Brothers & Harty Company, James H. Roche and E. J. Pickett & Felden, it will be reversed and the cause remanded for further proceedings not inconsistent with the views herein expressed.

Affirmed in part, reversed in part and remanded.


source: Caselaw Access Project

author: Mr. Justice Scanlan

license: Public Domain

text:
    Oliver F. Smith et al., Executors, Appellees, v. R. J. McLaughlin, Impleaded, Appellant.
    Gen. No. 19,766.
    1. Mechanics’ liens, § 150

      —time of bringing suit or filing claim as against owner. As against the owner only, section 7 of the Mechanics’ Liens Act, J. & A. ¶ 7145, requires suit to be brought or claim filed within two years after the completion of the work.

      2. Mechanics’ liens, § 93

      —necessity of filing claim before suit. Section 7 of the Mechanics’ Liens Act, J. & A. ¶ 7145, does not require a contractor to file his claim for lien before bringing suit to enforce his lien against the owner.
    3. Appeal and error, § 966

      —when questions not presented for review. A question predicated on a clause in an alleged contract between appellant and appellee cannot be considered by the Appellate Court where such contract was not introduced in evidence.
    Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed November 19, 1914.
    Statement by the Court. This is a bill to foreclose a mechanic’s lien, brought in the Circuit Court of Cook county, by B. J. Busch, appellee, a contractor, against B. J. McLaughlin, impleaded, etc., appellant, the owner of the premises in question. The bill alleges that the appellant is the owner of certain real estate, improved with apartment buildings; that the appellant-entered into a written contract with the appellee on November 10, 1911, by the terms of which the appellee was to complete certain porches then in course of construction on said buildings, for $4,880; that the work under the said contract was commenced November 14, 1911, and was completed May 4, 1912; that the appellee furnished extra labor and materials to the amount of $35; that the appellant accepted the work on the said contract on May 4, 1912; that there is due to the appellee under the contract, $1,277; that the appellee filed a statement of claim of lien in the Circuit Court of Cook county on September 24, 1912; that on the last mentioned date the appellant paid the appellee $672, but has refused to pay the balance of $605; that the appellee is entitled to a lien on the said premises for the said balance due. The appellant answered, admitting the ownership of the premises, the making of the contract and the furnishing of the extras; denied that the appellee completed the contract according to the true meaning and import of the plans and specifications, and denied that there was any sum due the appellee; alleged that the architect of the appellant, under the terms of the contract, was the umpire of all disputes, and that a question arose as to whether it was the duty of the appellee under the contract to furnish frames for certain screens; that the architect decided that it was the duty of the appellee to furnish the same; that the appellee refused to do so, and appellant thereupon had another contractor complete the work at a cost of $505, which amount the appellant charged to the appellee, and thereby fully paid him under the contract. The appellant further answered that under the contract an architect’s certificate was a condition precedent to the right of the appellee to demand any money of the appellant; that the appellee did not receive an architect’s certificate at the completion of the work done by him, nor any certificate for any amount alleged to be due, and not paid. The chancellor entered a decree in favor of the. appellee, and found that there was due him from the appellant $505, with interest from September 24, 1912, and that the appellee was entitled to a lien on the premises for the said amount. The appellant, McLaughlin, appeals from this decree.
    The death of R. J. Busch has been suggested to this court, and on motion, Oliver F. Smith, Edward Sonnenschein and Hugo Sonnenschein, executors of the estate of said Busch, were substituted.
    Lyman M. Paine, for appellant.
    Sonnenschein, Berkson & Fishell, for appellees.

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

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

   Mr. Justice Scanlan

delivered the opinion of the court.

The appellant contends: (1) That under section 7 of the Mechanic’s Lien Act of 1903 (J. & A. ¶ 7145), “the filing of a claim for a lien is a condition precedent to the successful prosecution of a suit to foreclose a mechanic’s lien, unless such suit is begun within four months after the completion of the work. * * *

Since appellee did not aver in his bill and prove upon the hearing that he had filed a claim for lien with the clerk of the Circuit Court, the decree in his favor is erroneous and must be reversed.” (2) That the appellee did not complete his contract to the satisfaction of the architect, and did not obtain from the architect a final certificate for the amount alleged to be due, and such certificate is a condition precedent to his right of recovery in this case.

The first contention of appellant requires a construction of section 7 of the Mechanic’s Lien Law of 1903. This section, so far as it is material to the present contention, reads as follows:

“No contractor shall be allowed to enforce such lien against or to the prejudice of any other creditor or incumbrancer or purchaser, unless within four months after completion, or if extra or additional work is done or material is delivered therefor within four months after the completion of such extra or additional work or the final delivery of such extra or additional material, he shall either bring suit to enforce his lien therefor or shall file with the clerk of the Circuit Court in the county in which the building, erection or other improvement to be charged with the lien is situated, a claim for lien, verified by the affidavit of himself, or his agent or employe, which shall consist of a brief statement of the contract, the balance due after allowing all credits, and a sufficiently correct description of the lot, lots or tracts of land to identify the same. Such claim for lien may be filed at any time after the contract is made, and as to the owner may be filed at any time after the contract is made and within two years after the completion of said contract, or the completion of any extra work or the furnishing of any extra material thereunder, and as to such owner may be amended at any time before the final decree.”

In passing upon the present contention, it is necessary to keep in mind that the appellee in his bill is not seeking to enforce Ms lien against a third party, but only against the owner of the property. The question raised by the appellant in his first contention has been heretofore presented to an Appellate Court but once, so far as we are aware, namely, in the case of Zander Reum Co. v. Congregation B’Nei Moshe, 159 Ill. App. 371. In that case the Court construed section 7 to mean, “that the lien may be perfected as against a creditor, encumbrancer or purchaser by either suing or filing a claim within four months, but as against the owner by either srnng or filing a claim within two years after the completion of the work.” The Supreme Court of tMs State has held that, “the purpose of requiring the claim to be filed within a stated time is, that third persons dealing with the property may have notice of the existence, nature and character of the lien as well as the times when the material was furnished and labor performed, and thus be enabled to learn from the claim itself whether it was such as can be enforced.” Schmidt v. Anderson, 253 Ill. 29-32. As against creditors, etc., section 7 does not require the contractor to file a statement of claim before he brings sMt. When the purpose of the section is kept in mind, there would seem to be no good reason why a contractor should be required to file a statement of claim before bringing suit to enforce Ms lien against the owner oMy. Appellant’s interpretation of the section would reqMre the contractor to perform a useless act. While section 7 of the present act differs materially from the same section of the prior act construed by the Supreme Court in Bloomington Hotel Co. v. Garthwait, 227 Ill. 613, and Kelley v. Springer, 235 Ill. 493, nevertheless, we find nothing in these cases that supports the present contention of the appellant.

After a careful consideration of section 7, in the light of the plain purpose of the act in requiring a claim to be filed within a stated time, we concur in the interpretation of the section expressed by the Court in the case of Zander Reum Co. v. Congregation B’Nei Moshe, supra.

The second contention of the appellant cannot be considered by ns, for the reason that it is predicated upon an alleged clause in an alleged contract between the appellant and the appellee, not introduced in evidence.

Finding no error in this record, the decree of the Circuit Court of Cook county will be affirmed.

Affirmed.


text:
    Leonardo Calabrease, Appellee, v. City of Chicago Heights, Appellant.
    Gen. No. 19,799.
    (Not to be reported in full.)
    Appeal from the City Court of Chicago Heights; the Hon. Charles H. Bowles, Judge, presiding. Heard in in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed November 19, 1914.
    Statement of the Case.
    Action by Leonardo Calabrease against the City of Chicago Heights to recover damages sustained by plaintiff through the loss of the services of his thirteen-year-old son and for expenses incurred in curing the son of personal injuries sustained by him on account of a defective sidewalk. The case was tried before a court and jury and the latter returned a verdict in favor of plaintiff and assessed his damages at five hundred dollars. The plaintiff entered a remittitur of one hundred dollars and judgment was entered for four hundred dollars. To reverse the judgment, defendant appeals.

      Abstract of the Decision.
    Municipal corporations, § 1224

      —when statutory notice to city of claim for personal injuries unnecessary. Section 7, ch. 70, Hurd’s R. S. 1912, J. & A. ¶ 6190, requiring a person who is about to sue a city for personal injuries to file a notice of the accident, held to apply only to the case of a person who intends to bring an action for an injury to his person and not to apply to a case where a father intends to bring suit for the loss of services and the expenses of curing his minor son who sustained the injuries.
    Edward J. Kloss, for appellant; George A. Brinkman, of counsel.
    Daniel L. Cruice and A. S. Langille, for appellee.

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

   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    Frederick Lundquist, Appellant, v. Albert L. Quist, Administrator, et al., Appellees.
    Gen. No. 19,813.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. William E. Dever, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed November 19, 1914.
    Statement of the Case.
    Bill by Frederick Lundquist against Andrew M. Quist, E. P. Nelson and Albert L. Quist to restrain defendants from prosecuting a suit in the Municipal Court of Chicago, in which defendant E. P. Nelson was the plaintiff and the complainant was the defendant, and in which suit E. P. Nelson sought to recover on a promissory note for $781.67 given by complainant to the defendant Andrew M. Quist, and by the latter indorsed to said Nelson. To reverse a decree dismissing the bill for want of equity, complainant appeals.
    Abstract of the Decision.
    1. Account stated, § 3

      —when evidence sufficient to establish. On a bill filed by a maker of a note to enjoin the indorser of the payee from prosecuting a suit thereon on the ground that there was a mistake as to the amount due the payee when the note was given, and that said note had been fraudulently indorsed to deprive complainant of his lawful and equitable defense to said note, held that a finding that there was an account stated at the time the note was given was sustained by a preponderance of the evidence, it appearing that there was a full and fair discussion between the parties of the account between them before the note was given, that complainant had never complained of the statement of account until shortly before the suit at law was brought, and that complainant had given money to the payee on several occasions to apply on the note.
    2. Account stated, § 17

      —when will not be reopened for fraud or mistake. It is the law of this State that where parties, after a full and fair opportunity of examining and deciding upon their mutual accounts, have adjusted and settled them, the law will not permit a deliberate settlement thus made to be reopened, except upon the clearest evidence of fraud or mistake in the settlement, and the burden of proving fraud or mistake rests upon the party asserting it.
    G. A. Buresh, for appellant.
    Helmer, Moulton, Whitman & Whitman, for appellees; Charles R. Holton, of counsel.

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

   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    Chester A. Cook and Raymond C. Cook, Trustees, Appellees, v. Helen M. Newbold and Thomas G. Newbold, Appellants.
    Gen. No. 19,827.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Lockwood Honore, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed November 19, 1914.
    Statement of the Case.
    Bill by Chester A. Cook and Raymond C. Cook, trustees, against Helen M. Newbold and Thomas G. Newbold to enjoin the alleged violation of certain negative covenants in a lease covering a certain building in the city of Chicago. One Ira B. Cook leased the building in question to.Helen M. Markham (now Newbold), one of the defendants, for a period of ten years. After the. making of said lease the said Cook conveyed his interest in the premises to complainants in trust and assigned to them, as trustees, the said lease. The léase provides that the first floor of the building may be used as a buffet and restaurant and for other commercial purposes, and that the remaining portion of the building may be used as a hotel, and the lessee covenants that she “will not permit said premises or any part thereof to be used for any unlawful or immoral purpose or for any purpose in violation of the laws of the United States, the State of Illinois, or the ordinances of the City of Chicago, or for any purpose that will tend to injure the reputation of said premises or of the building of which they are a part, or disturb the tenants of such building or the neighborhood and especially said second party will not permit or allow any women to frequent or congregate in that part of said demised prémises used exclusively as a saloon.”

      The bill alleged a violation of said covenant and prayed that the damages sustained by complainants may be ascertained; and that the defendants may be enjoined from permitting the premises to be used for immoral purposes, in violation of the laws of the United States, the State of Illinois or the ordinances of the city of Chicago. The defendants filed separate answers, denying every material averment of the bill, and asserting that the proceedings were instituted by the complainants for the purpose of obtaining possession of the premises because of the enhancement in the rental value of the property. A replication was filed to the answers; the cause was heard by the chancellor, and a decree was entered, the material parts of which were as follows: “* * * and 'that the equities of this cause are with said complainants. * * * The court finds from the evidence that the said hotel has not been used for purposes of prostitution, that is to say, it has not been devoted to the practice of prostitution or lewdness, nor have the defendants kept upon said premises a house of assignation, that is to say, a house devoted to that purpose, nor have they kept a house devoted to the practice of fornication, prostitution and lewdness, but have kept it as a house devoted to hotel purposes. The evidence does not disclose any instance in which the defendants knowingly and willingly permitted said premises to be used for any immoral purpose. But the court does find that on numerous occasions, acts of fornication and prostitution have taken place in said hotel, and that these occasions have been so numerous that the court must find that the defendants have not exercised sufficient diligence to guard against these immoral practices, and that the complainants are entitled to a greater degree of diligence on the part of the defendants in this respect. And the court further finds that complainants have not knowingly or intentionally permitted said premises to be used or occupied for any such illegal or immoral purposes. In consideration of the foregoing, it is therefore ordered, adjudged and decreed that the defendants, Helen Markham Newbold and Thomas Newbold, their attorneys, agents and employees, be and they are each of them enjoined at all times during the term of said lease from said Ira B. Cook to said Helen M. Markham, from permitting the said hotel or any part thereof to be used or occupied for any immoral purpose, or for any purpose that would tend to injure the reputation of said premises, and that the costs of this proceeding be paid by the defendants.” To reverse the decree, the defendants prosecute an appeal.
    The defendants contended that the findings of fact of the chancellor, incorporated in the decree, that relate to the alleged violations by the defendants of the covenants of the lease, are adverse to the allegations of the bill in reference thereto, and that the law, applicable to the facts as found, required that the suit be dismissed for want of equity, and that therefore the decree of the Circuit Court should be reversed and the cause remanded with directions to the chancellor to enter a decree dismissing the bill. The complainants contended that the evidence in the case conclusively shows that the defendants kept and maintained the hotel in question as a place for the practice of prostitution and lewdness, as alleged in the bill, and that it is not material whether the ordering part of the decree is consistent with the chancellor’s findings; that the important and controlling question is, does the evidence justify the decretal order? The defendants in reply to this contention say, that the complainants have not assigned cross-error, and that therefore the correctness of the findings of fact of the chancellor cannot now be assailed by them and that the findings are conclusive on the Appellate Court.
    George W. Miller and Joseph B. Fleming, for appellants,

      Abstract of the Decision.
    1. Appeal, and error, § 1077

      —cross errors. The assignment of cross-errors in a chancery case is the pleading of the party and sets forth the ground upon which appellee or defendant in error seeks a reversal of the decree in whole or in part.
    2. Appeal, and error, § 1078

      —when assignment of cross-errors improper and unnecessary. An assignment of cross-errors is not necessary or proper in a chancery case where the appellee or defendant in error has obtained everything that he claims; he cannot assign cross-errors merely because he is dissatisfied with all or some of the findings of facts of the chancellor embodied in the decree.
    3. Equity, § 543

      —effect of inconsistent findings in decree. Where the ordering part of a decree is inconsistent with the findings of the chancellor embodied in the decree, the decretal order will be sustained if it is in accord with the allegations of the bill and the evidence.
    Donald L. Morrill, for appellees; Robert W. Millar, of counsel.

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

   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    Peter J. Stozky, Appellant, v. Edward Robe and Cornelia Robe, Appellees.
    Gen. No. 19,840.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Charles H. Bowles, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Reversed and remanded.
    Opinion filed November 19, 1914.
    Statement of the Case.
    Action on certain promissory notes, secured by a chattel mortgage and given for a shoe repairing shop, by Peter J. Stozky against Edward Kobe and Cornelia Robe. The notes were so drawn that one of them fell due each month in succession. Three of the notes were paid and, on the defendants refusing to pay the remainder, judgment by confession was entered for $965. On motion of the defendants, leave was given them to plead and they filed joint pleas, alleging that the notes were obtained by fraud in that they were represented to be • simple promissory notes and not judgment notes. The case was tried by a court and jury and a verdict was rendered in favor of the defendants. A motion for new trial was overruled, judgment was entered on the verdict and the plaintiff appealed.
    Abstract of the Decision.
    1. Instructions, § 87

      —when instruction as to burden of proof is misleading. An instruction in an action on promissory notes that the burden of proof was upon the plaintiff to establish the facts necessary to recovery, by a preponderance or greater weight of evidence, held misleading where the facts necessary to make out a prima facie case for the plaintiff were not disputed and the defendants relied on affirmative defenses, since the jury might conclude that the plaintiff was bound by law to establish the negative of the special defenses before he could recover.
    2. Fraud, § 21

      —what false representations constitute fraud. The mere misrepresentation of a person as to the legal effect of the signing of notes does not constitute fraud at law and cannot be availed of as a defense to the notes.
    3. Judgment, § 66

      —what will warrant setting aside of judgment by confession. The fact that a person was induced to sign judgment notes instead of simple promissory notes is not such fraud as will constitute a good defense, in an action where it is sought to set aside a judgment by confession, for if the amount of the judgment is owed it will not be set aside.

      Rudolph Frankenstein and H. P Tuchscherer, for appellant.
    George W. Wilbur, for appellees.

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

   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    J. F. O’Brien, Appellee, v. Isabella Curran, Appellant.
    Gen. No. 19,855.
    (Not to be reported in full.)
    Abstract of the Decision.
    Brokers, § 88

      —when verdict mil not he set aside. Where a real estate broker made a prima facie showing that a married woman authorized her husband to employ such broker as her agent in procuring a purchaser for a leasehold, and two juries decided the question of the husband’s authority in favor of the broker, the finding of the second jury being indorsed by the trial judge, such finding held not to be against the weight of the evidence.
    Appeal from the Municipal Court of Chicago; the Hon. Rufus F. Robinson, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed November 19, 1914.
    Statement of the Case.
    Suit of the first class in the Municipal Court of Chicago by J. F. O’Brien against Isabella Curran for services rendered as a real estate broker in procuring a customer for a ninety-nine year leasehold. The case was tried before -a court and jury and a verdict was rendered in favor of the plaintiff for fifteen hundred dollars.
    A new trial was granted and resulted in a verdict for the same amount. Judgment was entered on the verdict and the defendant appealed.
    Edward Maher, for appellant.
    Frank & Lurie, for appellee.

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

   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    Auto light & Manufacturing Company, Appellee, v. 35% Automobile Supply Company, Appellant.
    Gen. No. 19,866.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Sales, § 329

      —when finding will not be set aside. In an action for merchandise sold to an Illinois corporation, where the defense was that the transaction was with another corporation, and it appeared that the goods were ordered by the defendant’s president at the office of the Illinois corporation, which accepted and used such goods, a finding of the jury that the transaction was with the Illinois corporation was not manifestly against the weight of the evidence.

      Appeal from the Municipal Court of Chicago; the Hon. Harry M. Fisher, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed November 19, 1914.
    Statement of the Case.
    Suit of the first class in the Municipal Court of Chicago by the Auto Light & Manufacturing Company, a corporation, against the 35% Automobile Supply Company, a corporation, to recover $1,500 for merchandise alleged to have been delivered by the plaintiff to the defendant npon a written contract.
    The defendant’s affidavit of merits alleged that the transaction was with the 35% Automobile Supply Company of New York, another corporation. A verdict was returned finding the issues against the defendant and assessing the plaintiff’s damages at $1,554.27. After verdict the ad damnum was increased to $1,600, on motion of the plaintiff. A motion for new trial was overruled, the judgment followed and the defendant appealed.
    Edward R. Litzinger, for appellant.
    John T. Richards, for appellee.

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

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

   Mr. Justice Scanlan

delivered the opinion of the court.

2. Appeal and error, § 573 —when exception is necessary to preserve right of appeal. A defendant who does not specifically except to a portion of an oral charge cannot complain of it on appeal.

3. Instructions, § 81 —when instruction is erroneous as unduly emphasizing facts. In an action for goods sold to a corporation, where the defense was that the transaction was with another corporation, an instruction that the jury could consider that the contract was made at the office of the Illinois corporation was erroneous, since the court had no right to- single out certain portions of the evidence bearing on a controverted question of fact and tell the jury to consider them; but the error was harmless where it appeared that under the facts a new trial would not change the result.

4. Sales, § 330 —when instruction as to implied contract is proper. In an action for goods sold to an Illinois corporation, where the defense was that the transaction was with another corporation, an instruction based on the theory that the goods were accepted and used by the defendant held not erroneous as against an objection that there was no evidence to support it.

5. Interest, § 6 —when allowed. In an action for goods sold on a written order, the sale being for cash and for a certain and definite sum, due at a specified time, the plaintiff was entitled to interest regardless of the question whether there had been an unreasonable and vexatious delay of payment of the money due.


text:
    Charles Blodgett, Appellant, v. George W. Nevius, Appellee.
    Gen. No. 19,877.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. John A. Dowdall, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed November 19, 1914.

      Abstract of the Decision.
    1. Appeal and error, § 474

      —when objection is necessary to preserve right of review. A plaintiff cannot complain on appeal of improper and prejudicial remarks of the defendant’s counsel in his closing argument when the record shows that no objection was made to the same and that the court’s attention was not called to the remarks.
    2. Dentists, § 3

      —what instructions are proper in action for malpractice. In an action for alleged malpractice in extracting a tooth, instructions announcing familiar rules of law as to the degree of skill and care required of dentists but not directing a verdict or undertaking to state what facts would constitute negligence, cannot be considered erroneous.
    3. Dentists, § 3

      —when burden of proof rests on plaintiff. In an action for alleged malpractice in extracting a tooth, whereby a fracture of the jaw resulted, the burden rested on the plaintiff to show want of care or skill in the treatment, and that the bad result following the treatment was the result of such want of care and skill, and no presumption that the defendant was unskilful or negligent would follow from the mere fact that the jaw was fractured and that the plaintiff was otherwise injured.
    Statement of the Case.
    Action on the case by Charles Blodgett against George W. Nevius and Laird W. Nevius, as copartners, for alleged malpractice in extracting a tooth, whereby a fracture of the jaw resulted. At the close of the evidence the plaintiff discontinued the suit as to the defendant Laird W. Nevius. A verdict was rendered finding the defendant not guilty, motion for a new trial was overruled, judgment followed and the plaintiff appealed.
    Elmer D. Brothers, Clyde C. Colwell and Emery S. Walker, for appellant.
    Robert J. Folonie, for appellee.

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

   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    Anna Gilmore, Appellee, v. S. A. Lewinsohn, Appellant.
    Gen. No. 19,886.
    1. Appeal and error, § 1851— what is essential to validity of appeal bond. The provision for appeal bonds, sections 92, 93 of the Practice Act, J. & A. ¶¶ 8629, 8630, is for the benefit of an appellee and is. directory and not mandatory, and an appellee has the right to waive approval by the trial court without thereby invalidating the bond or the appeal.
    2. Appeal and error, § 1877

      —when obligor on appeal bond is estopped to deny validity. Where a bond is filed for the express purpose of taking an appeal and is treated as valid by both parties, it is valid as a voluntary contract, and the expenses incurred by the appellee in defending the appeal, on the faith of the bond, afford a sufficient consideration for entering into it; and in a suit on such appeal bond the obligor will not be heard to say that no valid appeal was ever taken, nor will he be permitted to question the truth of the recitals in the bond.
    Appeal from the Municipal Court of Chicago; the Hon. James C. Martin, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed November 19, 1914.
    Statement by the Court. This is a suit on an appeal bond given by The Modern Protective Association, a corporation, on an appeal to reverse a judgment for $1,427, against said Association and in favor of Anna Gilmore, the appellee, hereinafter called the plaintiff, entered July 23, 1910, in the Municipal Court of Chicago, from which judgment The Modern Protective Association prayed an appeal to the Appellate Court and gave bond in the sum of $2,000, which bond, S. A. Lewinsohn, also known as S. Adam Lewinsohn, appellant, hereinafter called the defendant, executed as surety. The judgment of the Municipal Court on said appeal was affirmed in the Appellate Court and the said Association and the defendant, having failed to pay said judgment, this suit was instituted against the defendant to collect on said bond. The statement of claim filed on behalf of the plaintiff alleges the execution of the bond and the conditions of the same; alleges further that, although the said Appellate Court on July 9, 1912, affirmed the said judgment of the Municipal Court, the said Association and the said defendant have not paid to the plaintiff the amount of the said judgment, whereby an action has accrued to the plaintiff to demand of the defendant the sum of $2,000; that the defendant has not paid the said sum of money and refuses to do so, to the damage of the plaintiff of $2,000. A copy of the bond is attached to the said statement. One of the recitals in the said bond is: “The said The Modern Protective Association has prayed for and obtained an appeal to the Appellate Court of the First District of the State of Illinois.” The defense of the defendant is thus stated in his affidavit of merits:
    “That the defense of the defendant to said suit is as follows: Said instrument sued on being the alleged writing obligatory or bond set up in plaintiff’s statement of claim and affidavit was and is null and void, and is not such an instrument as can be made the basis of an action against this defendant in that said alleged instrument, to-wit, said alleged appeal bond never became such an appeal bond, in that the same was never approved by the court or the Clerk of said court, or any person authorized by law to approve the same, nor was any order entered of record approving said alleged bond or accepting the same, and said instrument is not an appeal bond as required by the statutes of this State in such cases made and provided.”
    A jury was waived and the case was submitted to the court. On the hearing the plaintiff moved to strike defendant’s affidavit of merits on the ground that it did not set up any legal defense, and the defendant moved to strike plaintiff’s statement of claim and affidavit. It was conceded by the parties that there was no question of fact involved in the suit. It was admitted that the facts set up in the affidavit of merits were true, in that, viz., the appeal bond sued on had never been approved by the Municipal Court or by any judge thereof, nor by the clerk of said court, nor by any order of court entered of record and that no order of court had ever been entered approving said bond or directing the clerk of said court to approve said bond. It was stated to the court by the parties that the only question in the case was whether or not there was any liability of the defendant on said appeal bond, in view of the fact that said bond had never been approved by the court or any judge thereof, nor by any order of court or by the clerk of said court. The court found that the defense set up in the affidavit of merits was not a legal defense to the suit, and the motion of the defendant to strike the plaintiff’s statement of claim and for a dismissal of the suit was overruled, and the motion of the plaintiff to strike the affidavit of merits of the defendant was sustained. The defendant elected to stand upon his affidavit of merits, and the court found the issues for the plaintiff in debt in the sum of $2,000 and assessed-the plaintiff’s damages at the sum of $1,648.15. Judgment was entered on the finding, and this appeal followed. It appears from the record that the appeal bond was 0. K.’d by the attorneys for the plaintiff in the suit of Anna Gilmore v. Modern Protective Association in the Municipal Court, and it has been conceded by the counsel for both sides in this court that the said O. K. was made by. the said attorneys prior to the filing of the said bond in the office of the clerk of the Municipal Court.
    David & Zillman, for appellant.
    Edgar L. Masters and Edward J. Stevens, for appellee.

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

   Mr. Justice Scanlan

delivered the opinion of the court.

The defendant contends: “ (1) That the bond never having been approved according to the requirements of the statute, became a nullity and no action can be maintained thereon. (2) There was no consideration for the giving of the bond, in that such bond never having been approved, the defendant in the judgment appealed from as a matter of law obtained nothing by the giving of the bond, since such bond did not legally stay execution on such judgment. (3) The bond being either void or not founded on any adequate consideration cannot be sued on as a common law obligation. (4) The Appellate Court never had jurisdiction of the appeal.”

The plaintiff contends: (1) The appeal bond was for the sole benefit of the plaintiff, and the approval of the same by the court may be and was waived by him, and because of the said waiver, the approval of the bond by the court or the clerk of the court, under the order of the court, was not necessary to its validity; (2) the obligor on a bond, in a suit on the bond, is estopped from denying the truth of any of the recitals of the bond; (3) in the present suit, under the facts in the case, the defendant, an obligor on the bond in question, will not be heard to say that no valid appeal was ever taken; (4) a bond, under the facts of the present case, is valid as a voluntary contract, and the expenses incurred by the plaintiff in defending the appeal on the faith of the bond afford a sufficient consideration to support the contract.

Sections 92 and 93 of the Practice Act (J. & A. ¶¶ 8629, 8630) read as follows:

“92. Appeals shall be prayed for and allowed at the term at which the judgment, order or decree is rendered, and the party praying for such appeal shall, within such time, not less than twenty days, as shall be limited by the court, give and file in the office of the clerk of the court from which the appeal is prayed, bonds, in a reasonable amount, to secure the adverse party, to be fixed by the court, with sufficient security, to be approved by the court. If the appeal is from a judgment or decree for the recovery of money, the condition of the bond shall be for the prosecution of such appeal and the payment of the judgment, interest, damages and costs in case the judgment is affirmed. In all other cases the condition shall be directed by the court with reference to the character of the judgment, order or decree appealed from. The obligee in such bond may at any time, on a breach of the conditions thereof, have and maintain an action-at law as on other bonds.
“93. The clerk of the court may, by order of the court, made at the time of praying the appeal, and entered of record approve of the security offered upon such bond, and such approval may be made in term time or vacation. ’ ’

The first question for us to decide is, is the approval of the trial court, or the clerk of the court under the order of the court, entered of record, a sine qua non to the validity of a bond in an appeal case, or, to state the question in another way: If the trial court, or the clerk of the court, under an order of the trial court entered of record, has not approved an appeal bond, is the appeal thereby invalidated, even though all the parties in interest have affirmatively approved the bond! The defendant insists, that as the right of appeal is a matter of statutory creation, strict conformity to the statute is essential and a lack of it is jurisdictional, and that as the alleged bond was not approved in the manner required by the statute, the appeal was not legally perfected, and the defendant in the case obtained no benefit by the giving of the bond, because the said bond did not legally stay execution on the judgment; that the alleged bond, under the circumstances, was a nullity and no action can be maintained thereon.

It will be conceded that the mandatory provisions in a statute creating the right of appeal—that is, provisions which relate to the jurisdiction of the Appellate Court—must be complied with and cannot be waived, and it will be further admitted that where the legislature in clear and unmistakable terms has made the performance of a certain act a sine qua non to the validity of an appeal bond or of an appeal, the performance of the said act cannot be waived. It seems clear to us that it cannot be held that the legislature of this State has in clear and unmistakable terms made the approval of an appeal bond by the court or the clerk of the court a sine qua non to the validity of the bond. It is necessary for us to determine, therefore, whether the provision in question is mandatory or directory. If mandatory, it must be followed; if directory merely— that is, if it is intended solely for the benefit of the obligee in the bond—it may be waived by him.

In the late case of Krone v. Halbert, 263 Ill. 172, it is said that: “In the construction of a statute the courts are not confined to a literal meaning of the words, but the intention may be collected from the necessity or objects of the act and its words may be enlarged or restricted according to its intent. A thing which is within the intention is regarded within the statute though not within the letter, and a thing within the letter is not within the statute unless within the intention.” “The principle that remedial statutes will be liberally construed applies to statutes granting a right of appeal.” Encyc. of Pleading and Practice, vol. 2, p. 20.

We must, therefore, interpret the provision in question in the light of the rule announced by our Supreme Court. The bond in question was for the individual and sole benefit of the appellee. It is conceded that the plaintiff approved the bond before it was filed with the clerk. It is very plain that the purpose of the provision we are now considering is to secure to the appellee in an appeal case a good bond. The trial court is designated' as the official to decide on the amount of the bond and the qualifications of the sureties. Must the trial court always approve the bond or is this part of the provision intended merely to protect the judgment defendant, the principal obligor on the bond, from unreasonable demands and captions objections from the judgment plaintiff, the obligee on the bond, in the matter of the bond? Cannot the parties to the appeal, where their own individual interests are alone at stake, mutually agree upon a bond without being required to have the court pass upon the same? Does not the statute intend that the trial court shall act as an arbiter in case the parties in interest are unable to agree upon the bond? It seems to us that the construction of the provision in question contended for by the defendant is an extremely technical one, and one not in accord with the purpose of the act. It fixes a sine qua non that is entirely unnecessary to carry out the object of the law—in fact, in practice, it would tend to defeat it, to the injury of an appellee for whose benefit the provision was intended. It is' an interpretation predicated largely upon the theory that an appeal statute must always be followed in the letter, instead of the spirit. Such, as wé have seen, is not the law.

After a careful consideration of the question, we believe the true interpretation of the provision now under consideration to be, that an appellee, who is the sole person interested in the appeal bond, may agree with the appellant on the appeal bond, and that where this is done it is not necessary for the trial court to approve the same; that the said provision is for the benefit of an appellee and is directory and not mandatory, and an appellee has the right to waive the same without thereby invalidating the bond or the appeal. The exact question now before us has never, to our knowledge, been passed upon by the courts of this State, but the following cases in other States are in point and support the conclusion we have reached: Jones v. Droneberger, 23 Ind. 74; Smock v. Harrison, 74 Ind. 348; Easter v. Acklemire, 81 Ind. 163; Buchanan v. Milligan, 125 Ind. 332; Murdock v. Brooks, 38 Cal. 596; Dore v. Covey, 13 Cal. 502; Blair v. Hamilton, 32 Cal. 50; Irwin v. Crook, 17 Colo. 16; Gopsill v. Decker, 67 Barb. (N. Y.) 211. See also Cyc. Law and Practice, vol. 2, pp. 921,922, and cases cited therein. In the case of Blair v. Hamilton, supra, an appeal was taken by the plaintiff to e the County Court from a judgment rendered by a justice of the peace in favor of the defendant. In accordance with the Practice Act of California a notice of appeal was served upon the defendant and a bond was filed in due time. Under the said act, the defendant had the right to except to the sufficiency of the sureties, and he did so, and when the matter came on for hearing, the justice, of his own will, in the presence of the defendant, refused to swear the sureties, on the ground that both he and the defendant knew them to be good. The defendant assented to this saying that he knew the sureties to be good, and that he had only served the notice requiring them to justify because his attorney had prepared it and directed him to do so. And thereupon the parties all left the court without any justification being taken in the manner provided by the act. The justice transmitted the case to the County Court, and the defendant thereupon moved that court to dismiss the appeal upon the ground that the failure of the sureties to justify, on notice, rendered the bond inoperative, and left the appeal without the support of a bond. The County Court held that the defendant had waived a compliance with the act in reference to justification, and the motion to dismiss the appeal was denied. The defendant then brought the case to the Supreme Court of California by certiorari and asked that court to reverse the order of the County Court and to dismiss the appeal upon the ground that the latter court had exceeded its jurisdiction. In passing upon this question, the Supreme Court said: “That the facts show a waiver on the part of the defendant of a justification on the part of the sureties, does not admit of° argument. To hold otherwise would enable the defendant to take advantage of his own wrong. Nor does the capacity of the defendant to make the waiver admit of debate. A party may waive the performance of an act intended for his benefit and security. He might have waived a bond altogether, an act which is frequently done, much more a justification of the sureties.”

The case of Harding v. Harding Incandescent Co., 98 Ill. App. 141, and other Illinois Appellate Court cases cited by the defendant in support of his contention, do not, in our judgment, sustain the contrary of our conclusion. These cases simply announce the general rule that the right of appeal is a matter of statutory creation, and that conformity to the statute is necessary and a lack of it is jurisdictional. None of these cases are directly applicable to the exact question now before us, and it is to be specially noted that in none of them was the question of waiver involved. What we have said as to these cases applies with equal force to the case of Dobson v. Hughes, 168 Ill. 148, also cited by the defendant.

The defendant has also cited a number of decisions of the courts of the sister States. None of these, in our judgment, is directly applicable to the present case. The defendant argues that one of these, Manning v. Gould, 90 N. Y. 476, is decisive of the question now before us. We do not think that case sustains defendant’s contention. By strong inference, at least, it" supports the conclusion we have reached.

But aside from the question as to whether the bond in question was a valid one under the appeal statute, there is a well recognized principle of law in this State that estops the defendant from asserting in a case of this kind—a suit on the appeal bond—that the said bond was and is an absolute nullity. The bond was filed by the parties executing it for the express purpose of taking an appeal from the judgment of the Municipal Court. The bond recites that the appeal had been' prayed for and obtained, and it provides that the bond is void in case the appeal is prosecuted with effect. Both parties treated the action in the Appellate Court as a valid appeal from the judgment of the Municipal Court, and it was so regarded and characterized by the Appellate Court. It has been repeatedly held in this State that in a suit upon a bond under such circumstances the question as to whether the appeal was properly taken is not controlling or important, for the reason that the obligor will not be heard to say that no valid appeal was ever taken; nor will he be permitted to question the truth of the recitals in the bond. A bond under such circumstances is valid as a voluntary contract, and the expenses incurred by the appellee in defending the appeal, on the faith of the bond, afford a sufficient consideration for entering into it. Meserve v. Clark, 115 Ill. 580; McCarthy v. Chimney Construction Co., 219 Ill. 616; Koelling v. Wachsning, 174 Ill. App. 321; Portis v. Illinois Surety Co., 176 Ill. App. 590.

The judgment of the Municipal Court of Chicago is affirmed.

Affirmed.


text:
    John F. Devine, Administrator, Appellee, v. Johnston & Jennings Company, Appellant.
    Gen. No. 19,900.
    1. Evidence, § 111

      —when verdict of coroner’s jury is admissible. A verdict of a coroner’s jury is competent evidence to be considered in another proceeding as tending to prove any matter properly before the said jury which appears on the face of the inquest for the reason that it is a public record of the county.
    2. Witnesses, § 281

      —when witness may be impeached. A party to a suit cannot impeach a witness voluntarily called by him, except as that result may be incidentally accomplished by proving a state of facts differing from that sworn to by the witness in question.
    3. Witnesses, § 327

      —when testimony at another proceeding may be admitted. In an action for the death of an employee, where a witness unexpectedly gave testimony at variance with that which he gave before the coroner, the plaintiff had the right to call the attention of the witness to the statements he made at the inquest, for the purpose of quickening his memory and awakening his conscience, but it was not proper to admit the testimony of the witness before the coroner, either for the purpose of having the jury consider it as independent evidence or for the purpose of impeaching the witness, there being no claim that the witness had perpetrated a fraud upon the party calling him.
    4. Negligence, § 175

      —what evidence is admissible to show negligence. The question of negligence should be determined only by what occurred before and at the time of the accident, and evidence of changes made after the accident is not admissible.
    5. Master and servant, § 623

      —what evidence is admissible to show negligence. In an action for the death of an employee caused by the fall of a large piece of slag while such employee was cleaning a furnace, the admission of evidence that several men cleaned the cupola of slag after the accident was erroneous, though the plaintiff had the right to show the condition of the cupola at the time of the accident by proving its condition shortly afterwards where there was nothing to indicate that a change had occurred.
    Appeal from the Superior Court of Cook county; the Hon. Charles A. McDonald, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Reversed and remanded.
    Opinion filed November 19, 1914.

      Statement by the Court. This was an action on the case in the Superior Court of Cook county, brought by John F. Devine, as administrator of the estate of John Gradowski, deceased, appellee, hereinafter called the plaintiff, against Johnston & Jennings Company, a corporation, appellant, hereinafter called the defendant. The action was brought to recover damages for the death of plaintiff’s intestate, alleged to have been caused by the negligence of the defendant. The declaration as amended alleges, in substance, that on or about February 1, 1911, plaintiff’s intestate was in the employ of the defendant and was in charge of a certain foreman, who was also a servant of the defendant; that plaintiff’s intestate was, at all times mentioned in the declaration, in the exercise of ordinary care for his own safety; that on the date-last mentioned, plaintiff’s intestate was carelessly and negligently ordered by his said foreman to enter a certain furnace to remove certain clinkers and slag from the bottom thereof; that around the sides and near the top of said furnace were certain large lumps of slag and slag formations which were liable- to fall, all of which was known to the defendant and "unknown to plaintiff’s intestate; that while plaintiff’s intestate was doing as directed by his said foreman, a certain large piece of slag fell down to and upon plaintiff’s intestate, then and thereby severely, dangerously and permanently injuring him; that as a direct result of said injuries, inflicted as aforesaid, he died on or about February 1, 1911; that plaintiff’s intestate left surviving him his father, mother and six brothers and sisters, naming them, his heirs at law and next of kin. The defendant filed a plea of the general issue. The plaintiff later filed an additional count setting up the facts stated in the original declaration and, in addition thereto, charging negligence on the part of the defendant by reason of the fact that said cupola was a dangerous and unsafe place in which to work. To this additional count the defendant pleaded the general issue and the statute of limitations. The plaintiff demurred to the plea of the statute of limitations, and the court sustained the demurrer. The case was tried by a court and jury, and a verdict finding the defendant guilty and assessing the plaintiff’s damages at three thousand dollars was returned. Motion for a new trial was overruled and judgment was entered on the verdict, and this'appeal followed.
    Willis G. Shockey and Mills & Holly, for appellant.
    Gallagher & Messner, for appellee.

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

   Mr. Justice Scanlan

delivered the opinion of the court.

The defendant complains that the court erred in admitting the testimony given by the witness Novak before the coroner’s jury, called to inquire into the death of the plaintiff ?s intestate. On the present trial the witness Novak was called by the plaintiff and his testimony was of an important character. Counsel for the plaintiff insisted that he was a hostile witness and the court thereupon allowed the counsel the widest latitude in his examination of the witness. The examination in chief and the redirect examination of this witness is, from beginning to end, in the nature of a cross-examination. Counsel for the plaintiff was allowed to call the attention of the witness to various statements he made before the coroner’s jury. It would be hard to imagine a more liberal examination of a party’s own witness than was allowed in this case. On the redirect examination of the witness, the counsel for the plaintiff offered in evidence the entire evidence given by all the witnesses before the coroner’s jury. Objection was made to the admissibility of the same, but it was admitted on the ground that evidence taken before the coroner’s jury, as well as the verdict, was a public record, required to be kept by law. However, it appears from the record that the evidence of the witnesses before the coroner’s inquest—save that of Novak —was, for some reason not disclosed by the record, not read to the jury. Counsel for the plaintiff, after the entire evidence given before the coroner had been admitted, then offered separately the testimony of the witness Novak, to which his signature was attached, -and this was admitted over the objection of the defendant, and the same was then read to the jury. The entire testimony of the witness before the coroner’s jury was given to the jury when they retired to deliberate on their verdict, but the court ruled, however, that any statements that the said Novak made before the coroner relating-to what any person other than he, the said Novak, said, was not competent, and the Court in his instructions to the jury gave one as follows:

“You are further instructed, gentlemen of the jury, that the alleged statement or deposition signed by the witness, Stephen Novak, at the inquest held by the Coroner of Cook County, Illinois, over the body of the deceased, John Gradowski, is a public document and that it has been admitted in evidence by the court because some of its contents, that is, some of the statements therein contained are deemed by the court to be competent evidence in this case. However, other parts of said statement or deposition are not deemed by the court to be competent evidence in this case. You are therefore instructed to wholly disregard and not consider as evidence of any kind or character in this case any statements of said Stephan Novak in said deposition contained relating to what any person other than he, the said Stephan Novak and the deceased did or said and particularly the following statement: 'He (meaning the witness Carlin) never reprimanded us for doing so.’ ”

It has been held that the verdict of a coroner’s jury is competent evidence to be considered in another proceeding as tending to prove any matter properly before the said jury which appears on the face of the inquest, for the reason that it is a public record of the county. Foster v. Shepherd, 258 Ill. 164; United States Life Ins. Co. v. Vocke, 129 Ill. 557. But it has never been held in this State that the depositions taken at a coroner’s inquest were competent evidence in other proceedings; on the contrary, it has been held that they were not competent for any purpose other than contradiction. Knights Templars & M. L. Indemnity Co. v. Crayton, 209 Ill. 550; Pittsburgh, C., C. & St. L. Ry. Co. v. McGrath, 115 Ill. 172. The plaintiff insists, however, that the testimony of Novak before the coroner was admissible for the purpose of contradicting him, and that the'admission of the evidence cannot be considered as error merely because the reason assigned for its admissibility by the trial court and by counsel for the plaintiff at the time of the admission of the same was not a good one.

‘‘ The law is well settled that a party to a suit cannot impeach a witness voluntarily called by him, except as that result may be incidentally accomplished by proving a state of facts differing from that sworn to by the witness in question.” Chicago City Ry. Co. v. Gregory, 221 Ill. 591. There was no pretense that the witness Novak had perpetrated a fraud upon the plaintiff by representing to him or his counsel that he would give evidence in his favor that he did not testify to at the trial. If the witness unexpectedly gave testimony at variance with that he gave before the coroner, the plaintiff had the right to call the attention of the witness to the statements he made at the inquest, for the purpose of quickening his memory and awaking his conscience. It was not proper, however, to admit the testimony of the witness before the coroner, either for the purpose of having the jury consider it as independent evidence or for the purpose of impeaching the witness. Chicago City Ry. Co. v. Gregory, supra. If the plaintiff had claimed that the witness had perpetrated a fraud upon him by pretending that he would give evidence in his favor, and if it further appeared that the witness gave evidence opposed to that which he said he would give, a different question would have been presented. Chicago City By. Co. v. Gregory, supra. But no such fraud on the plaintiff was claimed or suggested, and the evidence before the coroner was admitted solely on the grounds that it was a public record and therefore competent. The plaintiff cites the following Illinois cases in support of his contention that the testimony of Novak before the coroner’s jury was properly admitted: Rockwood v. Poundstone, 38 Ill. 199; Rindskoph, Stern, Lauer & Co. v. Kuder, 145 Ill. 607; Highley v. American Exch. Nat. Bank, 185 Ill. 565; United States Brewing Co. v. Ruddy, 203 Ill. 306; People v. Lukoszus, 242 Ill. 101; Illinois Cent. R. Co. v. Wade, 206 Ill. 523; Chicago City Ry. Co. v. Matthieson, 212 Ill. 292; Hirsch v. Coleman, 227 Ill. 149. None of these cases are in point. It was prejudicial error to admit the evidence in question.

The defendant contends that the court erred in allowing the plaintiff to show, over its objection, that several men were ordered by the foreman of the defendant on the Sunday following the accident to clean the cupola of slag from top to bottom, and that the order was carried out. The defendant complains that the purpose of the evidence was clearly to show an implied admission of negligence on the part of the defendant, and that it was error to allow this evidence of changes made in the condition of the cupola after the accident. There is merit in the defendant’s complaint. The rule is that the question of negligence should be determined only by what occurred'before and at the time of the accident, and evidence of changes made after the accident is not admissible. Howe v. Medaris, 183 Ill. 288. The plaintiff contends that the evidence in question was competent in order to prove the conditions of the cupola prior to the accident. It is undoubtedly true that the plaintiff had the right to show the condition of the cupola at the time of the accident by proving a condition shortly after the accident, where there is nothing to indicate that a change had occurred between the time of the accident and the time the investigation was made, and the plaintiff was allowed in this case the full advantage of this rule, but this rule is not a warrant for the admission of the particular evidence now complained of by the defendant.

A number of other errors have been assigned by the defendant, but we do not deem it necessary to refer to these. The judgment of the Superior Court of Cook county will be reversed and the cause remanded.

Reversed and remanded.


author: Mr. Presiding Justice Baume

text:
    Edward Rector et al., Appellees, v. Duntley Manufacturing Company, Appellant.
    Gen. No. 18,913.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon John Gibbons, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed November 25, 1914.
    Statement of the Case.
    Suit by Edward Rector, Samuel E. Hibben, Frank Parker Davis, John B. Macauley and Louis B. Erwin, copartner under the firm name of Rector, Hibben, Davis & Macauley, against the Duntley Manufacturing Company to recover a balance of $8,279.39 alleged to be due for professional services as patent attorneys.
    The declaration consisted of the common counts and the plaintiffs filed therewith a bill of particulars containing about two hundred and fifty separate items.
    The trial resulted in a verdict and judgment against defendant for $8,800.95, being the full amount claimed by the plaintiffs, and interest for alleged unreasonable and vexatious delay in payment, and the defendant appealed.
    Abstract of the Decision.
    1. Partnership, § 43

      —when inquiry as to partnership is improper. In an action by copartners, the names of such copartners are presumed to be truly set forth in the declaration under section 53 of the Practice Act, J. & A. ¶ 8590, and it is not necessary to prove the copartnership, and when the copartnership is established an inquiry as to its terms is irrelevant and not proper cross-examination.
    2. Attorney and client, § 134

      —what evidence is proper to show amount of compensation. In an action by copartners for a balance due for professional services as patent attorneys, where the plaintiffs supplied the defendant with a typewritten statement of the entire account, it could not be contended by defendant that objections were improperly sustained to questions propounded to witnesses as to what certain sums were in the statement, and as to amounts paid, since the statement was the best evidence of what it contained and could have been offered in evidence.
    3. Set-off and recoupment, § 13

      —what debts are subject of set-off. Debts to be the subject of set-off must be mutual between the parties to the action, and in an action by a copartnership for professional services rendered as patent attorneys, the defendant could not avail itself by way of set-off of payments made to another copartnership, to which the plaintiffs succeeded.
    4. Attorney and client, § 133

      —what must be proved to recover compensation. In action for professional services as patent attorneys, the plaintiffs were bound to prove their employment to perform the services sued for.
    5. Partnership, § 228

      —when defense that partnership was changed is available in action on contract. In an action by a co-partnership for professional services as patent attorneys, a contention that the defendant did not employ the plaintiffs hut employed another copartnership to which they succeeded could not be sustained when it appeared that the defendant had actual notice of the change in the firm by the addition to it of two other attorneys, and continued to avail itself of the services of such firm.

      Steers & Steers and Edwin White Moore, for appellant.
    Albert H. Meads, for appellees.

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

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

   Mr. Presiding Justice Baume

delivered the opinion of the court.

6. Attorney and client, § 79 —when defense of improper advice not available in action for compensation. In an action by a copartnership for professional services rendered as patent attorneys, a contention of the defendant that the plaintiffs’ improper advice prevented a settlement of litigation instituted for infringement of certain patents had no substantial basis in the evidence, it appearing that the advice in question was sound in law and in fact.

7. Interest, § 23 —when allowed. In an action by copartners for professional services rendered as patent attorneys, the allowance of interest because of unreasonable and vexatious delay in the payment of the claim was proper, it appearing that the good faith of defendant in finally refusing and resisting payment was discredited by the evidence.


text:
    Mandel Brothers, Defendant In Error, v. Charles J. Ringstrom, Plaintiff in Error.

      Gen. No. 19,178.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Harry M. Fisher, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1918.

    Affirmed.
    Opinion filed November 25, 1914.
    Statement of the Case.
    Suit by Mandel Brothers against Charles J. Ringstrom to recover the price of certain goods sold by plaintiff to the wife of the defendant. A trial by jury resulted in a verdict and judgment against defendant for $106.71, and he brought error.

      Abstract of the Decision.
    1. Husband and wife, § 8

      —what is nature of liability for family expenses. Section 15 of the Act relating to husband and wife, J. & A. ¶ 6152, as to family expenses, is in derogation of the common law and enlarges the liability of husband and wife, either jointly or severally, for family expenses, and such liability is not dependent upon an authorization by the party sought to be held liable.
    2. Husband and wife, § 8

      -—what is meaning of term “expenses of the family." The term “expenses of the family” as employed in section 15 of the Act relating to husband and wife, J. & A. ¶ 6152, is not synonymous with “necessaries.”
    Chytraus, Healy & Frost and Edwin White Moore, for plaintiff in error.
    Ringer, Wilhartz & Louer, for defendant in error.

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

   Mr. Presiding Justice Baume

delivered the opinion of the court.


text:
    Lawndale Steam Dye Works, Appellee, v. Chicago Daily News Company, Appellant.
    Gen. No. 19,210.
    (Not to be reported in full.)
    Appeal from the County Court of Cook county; the Hon. Isaac Hudson, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1913.
    Reversed and remanded.
    Opinion filed November 25, 1914.
    Statement of the Case.
    Suit by the Lawndale Steam Dye Works against Chicago Daily News Company to recover damages to plaintiff’s delivery automobile occasioned by a collision with defendant’s motor truck, alleged to have been negligently operated by a servant .of defendant. There was a verdict and judgment against defendant for five hundred dollars, and it appealed.

      Abstract of the Decision.
    1. Automobiles and garages, § 3

      —what evidence as to collision is admissible. In an action for damages to an automobile caused by a collision with a motor truck, statements made by servants of the defendant from two to five minutes after the collision occurred to the effect that the brakes of the motor truck were out of order and they could net stop it, that they had seen the driver of the plaintiff’s automobile hold out his hand as a signal that he was going to turn, and that the motor truck was going at the rate of forty miles an hour, were merely narratives of completed past events and were not a part of the res gestae, and the admission of such statements as evidence was erroneous and prejudicial, the question as to negligence and contributory negligence being closely conflicting.
    2. Automobiles and garages, § 3

      —what damages are recoverable in case of collision. In an action for damages to an automobile caused by a collision with a motor truck, the proper measure of damages was the cost of the repairs necessary to be made on the plaintiff’s automobile, and the reasonable value of the loss of the use of it while being repaired.
    3. Instructions, § 20

      —when cautionary instruction may be given. The giving or refusing of an instruction cautionary in character is largely within the discretion of the trial court.
    Matz, Fisher & Boyden, for appellant.
    Max Krauss, for appellee.

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

   Mr. Presiding Justice Baume

delivered the opinion of the court.


text:
    Harry C. Moir, Defendant in Error, v. Austin H. Hart, Plaintiff in Error.
    Gen. No. 19,233.
    (Not to be reported in full.)
    Error to the Muncipal Court of Chicago; the Hon. Edward T. Wade, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1913.
    Abstract of the Decision.
    1. Automobiles and garages, § 2

      -—when injury in collision is result of accident. Where a person operating an automobile at a street crossing in a proper manner and at a slow rate of speed, applied the brakes suddenly to avoid striking a pedestrian who ran in front of the car and the act caused the car to skid slightly and to come in contact with another car standing at the curb, injuring a portion of the top of such car, such injury was the result of an accident for which the person operating the automobile could not be held liable to respond in damages.
    2. Negligence, § 1

      —what is negligence. Negligence is the failure to bestow the care and skill which the situation demands, and if one exercise the degree of care required of a reasonably prudent man under the circumstances, he is not negligent.
    Reversed with finding of fact.
    Opinion filed November 25, 1914.
    Statement of the Case.
    Suit by Harry C. Moir against Austin H. Hart to recover damages for injuries to an automobile top alleged to have been occasioned by the negligence of defendant. There was a finding and judgment against defendant for one hundred and twenty five-dollars, and he brings error.
    James Turnock, for plaintiff in error.
    John D. Peterson and Jacob L. Fox, for defendant in error.

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

   Mr. Presiding Justice Baume

delivered the opinion of the court.