text:
    Overland Motor Company, Plaintiff in Error, v. W. G. Tennant, Defendant in Error.
    Gen. No. 20,788.
    1. Contracts, § 389

      —when construction a question for jury. The question of the construction of a written contract is a question of law.
    2. Certiorari, § 54

      —what effect of denial of writ. Denial of the Supreme Court of a writ of certiorari to review a judgment of the Appellate Court may in a particular case be regarded as an affirmance of the views expressed by the Appellate Court in the case sought to be reviewed.
    3. Appeal and error, § 528

      —where writ of error presents no question for review. Where questions of law which govern a case are not raised either by objections to rulings on evidence or on some motion, and no propositions of law are submitted to the trial court, an appeal or writ of error will present no questions for review.
    4. New trial, § 124

      —when assignment of error on denial of motion insufficient. Assignments of error based on the denial of a motion for a new trial in a case tried by the court without a jury, or on the denial of a motion in arrest of judgment, where the record shows no ground for such motion, are not well taken and a writ of error based thereon will present no questions for review.

      5. Appeal and error, § 1040

      —when assignment of error not sufficient. Assignments of error which do not point out the particular errors on which the assignments are predicated, which errors are not apparent from the record, are not well taken, and a writ of error based thereon presents no question for review.
    Error to the Municipal Court of Chicago; the Hon. John J. Rooney, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed October 5, 1915.
    William A. Jennings, for plaintiff in error.
    Henry Roth and Charles P. R. Macauley, for defendant in error.

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

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

   Mr. Justice Barnes

delivered the opinion of the court.

This was an action upon a written contract tried before the court without a jury. Whether the plaintiff, who is plaintiff in error here, was entitled to recover depended upon the construction the court put upon the contract, as practically admitted by the parties at the close of the evidence. That involved a question of law, but no propositions of law were submitted to the court to be held as such, nor were there any rulings on evidence that present the questions of law argued. We have no means, therefore, of determining what principles of law the court applied to the contract herein.

We held in Flodin v. W. H. Lutes Co., 191 Ill. App. 195, that the necessity for submitting propositions of law to the trial court, in order to bring up for review the principles of law governing the ease, obtains here as well as in the Supreme Court. Denial of a writ of certiorari in that case by the Supreme Court must be regarded as sustaining that view. The rule has been frequently applied in that court. Swain v. First Nat. Bank of Hutchinson, 201 Ill. 416; Chicago, B. & Q. Ry. Co. v. City of Ottawa, 165 Ill. 207; Grabbs v. City of Danville, 166 Ill. 441; Jacobson v. Liverpool-London & G. Ins. Co., 231 Ill. 61. In the Grabbs case, supra, the court said that where on a trial before the court without a jury a party desires to protect himself against any erroneous view the court may entertain in regard to the law which governs the case, he should pursue the mode provided in the statute for submission of written propositions of law, and that “unless this course is pursued, no question of law will be-presented by the record for review on appeal or writ of error.” This is a well-settled rule and obtains where the question of law is not raised othérwise by objections to the rulings of the court on the admission or exclusion of evidence or on some motion. Chicago Union Traction Co. v. City of Chicago, 202 Ill. 576. In the case before us there were no such rulings, and the only motions made by plaintiff in error were a motion for a new trial, which in a case tried by a court without a jury preserves no question for review (Climax Tag Co. v. American Tag Co., 234 Ill. 179), and a motion in arrest of judgment, which there is nothing on the face of the record to justify. The assignments of error as to the refusal to grant these motions are, therefore, not well taken.

The other assignments of error are that the court erred in finding the issues for the defendant below,, and in entering judgment against plaintiff in error, but the particular errors committed upon which these assignments were predicated are not pointed out, nor apparent from the record. There is, therefore, nothing presented for review, and the judgment will have to be affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Barnes

license: Public Domain

text:
    Weber Chimney Company, Appellant, v. Brunswick-Balke-Collender Company, Appellee.
    Gen. No. 20,813.
    (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, 1914.
    Reversed and remanded.
    Opinion filed October 5, 1915.
    Statement of the Case.
    Action by the Weber Chimney Company, a corporation, plaintiff, against the Brunswick-Balke-Collender Company, a corporation, defendant, in the Circuit Court of Cook county, to recover on a contract for building a chimney.
    The action was for damages for a breach of contract, plaintiff averring, and introducing evidence tending to show that defendant broke the contract in not permitting plaintiff to proceed with the erection of a chimney, and defendant pleading as a defense that plaintiff had totally renounced the terms of the contract and its obligation to complete the construction of the chimney according thereto. The verdict was directed evidently on the theory that plaintiff’s own evidence established such defense. The contract consisted of a written proposal and acceptance. Plaintiff’s proposal was to erect a chimney at Dubuque, Iowa, of reinforced concrete construction 185 feet above the base of a foundation 12 feet below grade. The excavation and preparation of the ground therefor were to be made by defendant. The proposal was dated July 10,1911, and called for prompt acceptance, which was given by letter two days later stating that the excavation would be completed about August 1st, but it was not in fact done until December 12th. In a letter in September, plaintiff expressed anxiety to do the work before cold weather. However, it undertook to perform its contract without any express modification of its terms. It laid the foundation in the four days following December 12th, when freezing weather set in. The evidence showed that cement will not set in a temperature below 26 degrees above zero without employing artificial heat, and that its use would have required much expense and the erection of a building around the chimney structure. It also showed that owing to delays in transporting the “form units” required for cement construction and increasing cold weather—the mean temperature most of the rest of December being below 26 degrees above zero, and in January below zero—no further work in actual construction was done. But the material therefor had already been shipped to Dubuque. The proposal contained these provisions: “Material will be. shipped in five days from receipt of order to ship, and about fifty working days are required for the completion of the work. * * * The delivery, erection and completion promised are contingent upon strikes, accidents or other causes of delay beyond our control.” On January 4th representatives of the parties had an interview in which the causes of delay as aforesaid were explained by plaintiff’s representative, he saying, “we are going to do the best we can to get it done, and the fact that it has got into winter is not our fault.” Defendant’s representative asked if plaintiff would agree to complete the chimney by February 20th. Plaintiff’s representative said it depended on the weather, that they were going to get the job done as soon as they could, but were not going to promise impossibilities. Defendant’s representative expressed a purpose to cancel the contract against which plaintiff’s representative protested. Two days later defendant’s attorney called up the latter by telephone and asked if he would agree to complete the chimney by March 1st, to which he replied, “we will if we can, but it all depends on the weather.” On January 9th defendant wrote plaintiff a letter referring .to such conversation and saying it left no alternative but to cancel the contract, and taking the position that plaintiff had practically abandoned the contract. Plaintiff declined to accept the cancellation and evinced its readiness to proceed with the work. Plaintiff undertook to prove that the term “working days” had by usage a special meaning in the trade or commerce of concrete construction. Defendant contended that the words have a definite and settled meaning in commerce and jurisprudence, that of days as they succeed each other exclusive of Sundays and holidays; that the language of the contract was clear and unambiguous, and that parol evidence of its meaning was incompetent. While the court took defendant’s view it nevertheless heard evidence on the subject out of the hearing of the jury, but in directing the verdict treated it as received. Plaintiff’s evidence tended to show the expense it had incurred in preparation for and partial performance of the contract, its readiness^to complete the same, and the cancellation thereof by defendant because, plaintiff would not guarantee completion of the structure by February 20th or March 1st. From a judgment for defendant, plaintiff appeals.
    Abstract of the Decision.
    1. Contracts, § 301

      —when extension of time for performance Should he granted. A contract whereby plaintiff agreed to construct a chimney for defendant in “about fifty working days,” and which expressly provides that delivery within the time named is contingent upon causes of delay beyond the control of plaintiff, entitles plaintiff to a reasonable extension of such period depending upon causes which may excuse such delay, and such contract does not limit plaintiff to exactly fifty days in which it must complete such construction.

      Rankin, Howard & Donnelly and J. S. Dudley, for appellant.
    Ryan & Condon, for appellee; Irvin I. Livingston, 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 Barnes

delivered the opinion of the court.

2. Contracts, § 322 —what not equivalent to breach. Where a contract provided that plaintiff should construct a chimney for defendant “in about fifty working days,” and also expressly provided that the time named shall be contingent upon causes of delay beyond the control of plaintiff, and where plaintiff refuses to agree to complete the construction within a named time at the request of defendant, such refusal does not amount to a renunciation or abandonment of the contract by plaintiff, for the reason that plaintiff had a right to anticipate that the character of the work and the season of the year, which was winter, may cause delays which are excusable under the provisions of the contract and which may prevent the completion of construction within such named time.

3. Contracts, § 319 —when breach does not arise before time for performance. In an action to recover on a contract whereby plaintiff agreed to construct a chimney for defendant in “about fifty working days,” and where defendant sought to cancel the contract claiming breach by plaintiff, the question whether evidence that a special meaning of the term “working days” obtained in the construction trade was competent as bearing on the question of a breach is immaterial where it appears by applying defendant’s construction of the words to the facts in the case that no breach had taken place when defendant canceled the contract.

4. Appeal and error, §1392 —when refusal of peremptory instruction not error. In an action to recover on a contract whereby plaintiff agreed to construct a chimney for defendant in “about fifty working days,” where the facts proved did not amount as a matter of law to a renunciation of the contract by plaintiff, peremptory instruction for defendant held erroneous.


text:
    Eugene A. Bournique, Appellee, v. John B. Drake et al., on appeal of John B. Drake, Appellant.
    Gen. No. 20,830.
    (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, 1914.
    Reversed and remanded.
    Opinion filed October 5, 1915.
    Rehearing denied October 15, 1915.

      Abstract of the Decision.
    Bbokebs, § 37

      —when broker not procuring cause of sale. Evidence held insufficient to show that a broker was the procuring cause of a sale of real estate, where the sellers had submitted the property to the buyer at the same price before the broker, and the vendee told the latter that knowing the seUers, the buyers would probably deal directly with the vendor, and thereafter without the broker’s aid or influence purchased directly from the sellers.

      Statement of the Case.
    Suit by Eugene A. Bournique against John B. Drake and others for broker’s commissions based upon the claim that plaintiff was the authorized agent of defendant to find a purchaser of certain real estate belonging to the estate of John B. Drake, Sr., and that he was the procuring cause of the sale thereof. It appeared that the property in question was purchased by the trustee of the estate of Marshall Field for $1,100,000, that the property was first offered to the Field estate by Drake, but that the trustees were not then in a position to purchase it, that such property was located near the retail store of Marshall Field & Company and was desirable for the Field estate and that the purchasers and seller were acquainted with each other. The plaintiff had nothing to do with the negotiations in which the terms of sale were discussed, and though the evidence was conflicting, it tended to show that the purchasers treated the plaintiff’s efforts with courtesy but finally took up the matter of purchasing directly with Drake. At the trial the plaintiff recovered a judgment for $27,500, two and one-half per cent, of the selling price, and the defendant appeals.
    Wilson, Moore & McIlvaine, for appellant; N. G. Moore, of counsel.
    Miller, Gorham & Wales, for appellee.

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

   Mr. Justice Barnes

delivered the opinion of the court.


text:
    Charles J. Errant, trading as Chicago Special Construction Company, Appellee, v. Columbia Western Mills, Appellant.
    Gen. No. 20,847.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Harry P. Dolan, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Reversed.
    Opinion filed October 5, 1915.
    Statement of the Case.
    Action by Charles J. Errant, trading as Chicago Special Construction Company, against Columbia Western Mills, a corporation, to recover a balance claimed to be due under a written contract between plaintiff as contractor and defendant as owner. Such contract called for the construction of a large concrete tunnel for carrying steam pipes and conduits for carrying electric cables, and some incidental work at the price of $8,000, of which $6,000 was paid. The contract price was payable only upon certificates signed by the architect, and ninety per cent of the value of the work was payable on satisfactory completion. On completion of the tunnel, the plaintiff demanded payment of the “balance,” but the architect notified him to complete the back-filling and replace fences as required by the contract. Later a portion of the tunnel caved in which the architect claimed the plaintiff should restore. The plaintiff continued his demands for a final certificate and on refusal commenced this action for the balance and some extras. Defendant denied legal liability and claimed grounds for recoupment. After the action was commenced the defendant performed the uncompleted work of hack-filling, etc., for $177.71 and repaired the tunnel for $1,682.33. A judgment was rendered for the. plaintiff, and defendant appeals.
    Abstract of the Decision.
    1. Building and construction contracts, § 95

      —what plaintiff must prove in action on contract. In an action by a contractor on a building contract where the plaintiff alleged full performance and a fraudulent refusal of the architect to issue a final certificate, it was incumbent on him to prove such allegations by a preponderance of the evidence.
    2. Building and construction contracts, §21

      —when construction of contract is for court. In an action on a building contract where the evidence was undisputed as to the work left undone, and the contractor claimed substantial compliance with the contract, the question of substantial compliance became a question of construction of the contract which was for the court.
    3. Building and construction contracts, § 4

      —how construed. In construing a building contract, the court cannot ignore its express provisions.
    4. Building and construction contracts, § 25

      —when completed. A building contract is not substantially completed when a substantial sum is required to complete the work.
    5. Building and construction contracts, § 25

      —how substantial performance is determined. Where a contractor contends that a building contract was substantially completed, the importance of the uncompleted work is not to be tested by the proportion of its cost to the full contract price when, considered by itself, it was a material and substantial part of the work the contractor agreed to perform.
    6. Building and construction contracts, § 94

      —when matters pleaded must be proved. In an action on a building contract where the contractor pleads full performance, he cannot recover on proof of waiver of performance.
    James B. Keogh and M. Paul Noyes, for appellant.
    Charles R. Napier, Arthur C. Bachrach, and Oscar Blumenthal, 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 Barnes

delivered the opinion of the court.

7. Building and construction contracts, § 100 —what is income petent evidence as to deduction front price. In an action on a building contract, proof of an agreement between the plaintiff, a contractor, and an architect for deduction of the cost of unfinished work from the contract price was not competent on the amount to be deducted, as the actual cost of finishing the work was the best evidence of what should be deducted, unless it was a matter of express agreement and relied on as such.

8. Building and construction contracts, § 83 —when suit is premature. In a suit by a contractor for a balance due on a building contract, where the contract provided that the balance was not due until thirty days after completion of the work, and only on certificates signed by the architect, a suit commenced before the expiration of such time was premature, and the plaintiff could not contend that the refusal of the architect to issue certificates before the expiration of such time was fraudulent.

9. Building and construction contracts, § 83 —what is condition precedent to suit. Where a contractor’s right to recover a balance due on a building contract depended upon obtaining an architect’s certificate showing the amount due, the obtaining.of such certificate was a condition precedent to any right of action which condition was to be strictly complied with, or good and sufficient excuse shown for noncompliance.

10. Building and construction contracts, § 83 —when arbitration is condition precedent to suit. Where a building contract provided for arbitration in case of dissent from a decision of an architect, the refusal to issue a final certificate for the balance due under the contract was a decision by the architect, and in such ease arbitration was a condition precedent to a right of action for the balance.

11. Building and construction contracts, § 80 —when suit is premature. Where a building contract provided for payment of ninety per cent of the contract price on completion of the contract, and.the balance thirty -days afterwards, but the contractor demanded the entire balance on completion of the work, his demand was premature.


text:
    Edward J. Baker, Appellee, v. J. Verne Benjamin and Fred Meyer, Defendants, on appeal of Fred Meyer, Appellant.
    Gen. No. 20,860.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Clarence N. Goodwin, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed October 5, 1915.
    Rehearing denied October 11, 1915.
    Statement of the Case.
    Bill in equity to cancel a note and chattel mortgage by Edward J. Baker against J. Verne Benjamin and Fred Meyer. Plaintiff conducted a tin shop and went to Benjamin, a loan broker, to obtain a loan of five hundred dollars. The latter agreed to procure it, and Baker executed a note and chattel mortgage on the property in the tin shop which were delivered to Benjamin together with an assignment of accounts. Later, Benjamin gave his note to Meyer to cover an indebtedness and, as collateral thereto, Baker’s note and mortgage. Meyer was advised that the Baker note was non-negotiable and called at the tin shop to inquire about the same but Baker was absent and his conversation was with Baker’s brother. The Baker note was for five hundred and fifty dollars, but he was to receive only five hundred dollars. Baker signed and received a receipt for fifty dollars, but he claimed that no money was paid and the transaction was merely to cover up usury. This bill was filed because the loan was not consummated, and a receiver was appointed to take possession pf the note, mortgage and assignment. The case was referred to a master who found that the fifty dollars for which the receipt was given was not paid, and that the assignment of accounts, note and mortgage were without consideration.
    Charles E. Selleck, for appellant.

      Abstract of the Decision.
    1. Appeal and error, § 1399

      —when findings of master will not be disturbed. A court’s approval of a master’s finding will not be disturbed on appeal unless obviously incorrect.
    2. Cancellation of instruments, § 12

      —when note and mortgage may be canceled. A maker of a note and chattel mortgage is not estopped from having same canceled, after being transferred to a third person, when such note and mortgage are without consideration and no statement is made by the maker to the third person that there was a valuable consideration.
    3. Appeal and error, § 499

      —when question of receiver's compensation will not be reviewed on appeal. Where a decree approves a receiver’s report and discharges him, and there is nothing to indicate that the question of compensation was brought before the court, error cannot be assigned because the court did not take up such matter on its own motion.
    Samuel G. Hamblen, for appellee.

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

   Mr. Justice Barnes

delivered the opinion of the court.


text:
    DeWitt C. Cregier, Custodian, Appellee, v. George Remus et al., Defendants. A. J. Bedard, Appellant.
    Gen. No. 20,863.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Reversed and remanded.
    Opinion filed October 5, 1915.
    Statement of the Case.
    Bill of interpleader by DeWitt C. Cregier, as custodian of lost and stolen property for the department of police of the city of Chicago against George Bemus and A. J. Bedard, attorneys at law, who claimed title to jewelry taken from the person of a prisoner named Stone. It appeared that in July, 1912, Stone was arrested in Chicago, and gave Eemus one hundred dollars to procure a bondsman for him. Later he became a fugitive from justice and was arrested in Kansas City. Feeling under obligation to procure his return, Eemus paid the expenses of Higgins, a Chicago policeman, to bring the prisoner back to Chicago. The jewelry found on Stone when rearrested in Kansas City was handed over to Higgins and, on his return to Chicago, he delivered it to Cregier as such custodian. Eemus testified that when Stone was first arrested he agreed to pay him two hundred dollars as retainer out of which he was to pay the bondsman and expenses in the criminal case, and that after Stone paid the one hundred dollars aforesaid, he went to see Stone about the balance and Stone said that if Eemus would get him out of jail, he would pay the balance of one hundred dollars upon getting out, and he would give him the jewelry in question, but Eemus did not receive the jewelry from Stone at any time. On the contrary, it appears that Stone left the State when released from jail and took the jewelry with him, evidently with no intention of keeping his promise. After he was brought back to Chicago and lodged in jail, he engaged Bedard as his attorney and gave him a bill of sale of the jewelry of which Bedard promptly notified said custodian and the chief of police. Higgins testified that, while returning from Kansas City, the prisoner said the jewelry in question, then in custody of Higgins as officer, belonged to Eemus and directed him to deliver it to Eemus, but that later he offered it to him as the price of escape. Later still, Stone claimed the jewelry belonged to his wife. Eemus testified that he asked Stone why he “jumped” his bond, and that he replied that Eemus was secured by the jewelry fdr what he owed him. The prisoner denied both Higgins’ and Eemus ’ testimony. Before Higgins delivered the jewelry to Cregier, Remus gave Mm notice of Ms ownersMp. There was a finding and decree in Remus ’ favor, and Bedard appeals.
    Abstract of the Decision.
    1. Assignments, § 36

      —when assignment not shown. Evidence held not to show an assignment, legal or equitable, of personal property by a client to an attorney, but rather a mere unfulfilled promise to deliver such property in the future.as security.
    2. Interpleader, § 19

      —when allowance of attorney’s fees erroneous. Allowance of a portion of complainant’s attorney’s fees on a bill of interpleader, which fees were taxed to one of the defendant’s, held error.
    King, Brower & Hurlbut, for appellant.
    George Remus, pro se; Morris K. Levinson, of counsel.

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

   Mr. Justice Barnes

delivered the opinion of the court.


text:
    Lillian MacNeel, Appellee, v. N. J. Eisendrath, Appellant.
    Gen. No. 20,866.
    (Not to be reported in full.)
    Appeal from County Court of Cook county; the Hon. J. J. Barnes, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed October 5, 1915.
    Statement of the Case.
    Action by Lillian MacNeel against N. J. Eisendrath on an oral contract for employment for one year at twenty-five dollars per week, to recover for a portion of the year plaintiff was not given employment. The defense was that the contract was for service in a particular building afterwards destroyed by a flood, that the contract contemplated its continued existence, e and that the destruction of the building terminated the contract and excused further performance. From a judgment for the plaintiff, defendant appeals.
    Abstract of the Decision.
    1. Appeal and error, § 601

      —when motion for new trial necessary. The sufficiency of evidence to sustain a judgment will not be inquired into where the record does not show a motion for a new trial.
    2. Appeal and error, § 768

      —what record must show. The question of error in the giving of an instruction will not be reviewed on appeal where the record does not show at whose instance any of the instructions were given.
    3. Master and servant, § 82

      —what evidence is inadmissible in suit for wages. In a suit on a contract of employment claimed to have been terminated by the destruction of the building where the plaintiff was employed, there was no error in rejecting proof of the defendant’s contract for the building in question, as the only effect of the proof would have been to corroborate an undisputed "question of fact.
    David S. Eisendrath, for appellant.
    Morse Ives, for appellee.

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

   Mr. Justice Barnes

delivered the opinion of the court.


text:
    P. Karen, L. Karen and Mendel Mandel, Appellees, v. Bartholomae & Roesing Brewing and Malting Company, Appellant.
    Gen. No. 20,898.
    1. Contracts, § 129*—when contract void. A contract made in violation of statute is void, and when a plaintiff cannot establish his cause of action without relying on an illegal contract he cannot recover.

      2. Intoxicating liquors, § 52

      —when party cannot claim right of action for breach of contract to assign license. An action for damages for breach of an alleged contract to reassign rights to the renewal or reissuance of a dramshop license, based on an invalid ordinance attempting to give a right of renewal to the licensee or his assignee, cannot be maintained, since the contract based on the invalid ordinance is void as against the statute, and in such case neither the exercise of official discretion nor a practice in renewing such licenses could form the basis of a contract right.
    Appeal from the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Reversed.
    Opinion filed October 5, 1915.
    Winston, Payne, Strawn & Shaw, for appellant; George A. Kelly, of counsel.
    Sabath, Stafford & Sabath, for appellees.

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

   Mr. Justice Barnes

delivered the opinion of the court.

This is an action brought against appellant by appellee for damages for breach of an alleged contract to reassign the “rights to the renewal or reissuance of a dramshop license” issued by the city of Chicago. The jury returned a verdict for $2,500. This appeal seeks reversal of the. judgment entered thereon.

Appellees alleged that they were the owners of a license to conduct a dramshop in certain premises in Chicago; that by virtue of an ordinance under which said license was issued, they had a right to have it renewed or reissued to them for an additional term, and the right to assign such right of renewal or reissuance to some other person; that they made a contract with appellant whereby they assigned such right to appellant as security for the performance of certain obligations and whereby appellant, on performance of the same, was to reassign to them said rights, and that appellant refused to reassign them on demand and fulfillment of their obligations. Over defendant’s objections proof of said ordinance, known as the Harkins ordinance, which attempts to confer the right of renewal or reissue of a license, was received and also proof of the commercial or market value of such rights in the city of Chicago, based on the custom or practice of the mayor to recognize such rights.

But it is a settled question in this State that there is no such right as that alleged to be the subject-matter of the contract, and upon the existence of which the cause of action depends. It was held in People v. Harrison, 256 Ill. 102, that the ordinance in question was invalid so far as it attempts to give a right of renewal to the licensee or his assignee, on the ground that it, in effect, authorized the issuance of a license to continue indefinitely contrary to public policy as expressed in the Dramshop Act prohibiting the issuance of a license to extend beyond the municipal year in which it may be granted.

The same questions are presented here that were raised in Bartkowiak v. Malinowski, 256 Ill. 119. There a decree to compel a specific performance of an agreement to reassign the right to the renewal and reissuance of a saloon license was reversed because! said ordinance was held to be invalid so far as it attempted to confer such a right. There, as here, it was insisted that said right was a privilege of real value, but the court said: “No such right or privilege did, in fact, exist and any reassignment of this right * * * would be useless and of no effect.” In view of this language, we think that the contention that such right was one of value because it was recognized by the custom and practice of the mayor of the city of Chicago is wholly untenable. Whether in all cases showing such practice there was a due exercise of a sound discretion we cannot tell, but it was not obligatory on the mayor to recognize such a practice, and the fact that new licenses have been issued to the same parties or their assignees for the same premises, under the circumstances then existing, may have been entirely consistent with the exercise of a proper discretion. But whether so or not, neither the exercise of official discretion nor a practice contrary to public policy can form the basis of a contract right.

It is manifest, therefore, that not only the alleged right which forms the basis of this suit never existed, but that the contract, so far as it rested on the invalid provisions of the ordinance, was void as against the statute (Penn v. Bornman, 102 Ill. 523), and gave no cause of action (Bishop v. American Preservers’ Co., 157 Ill. 284; Ellison v. Adams Exp. Co., 245 Ill. 410; McMullen v. Hoffman, 174 U. S. 639). As said in the Bishop case, supra: “The general rule of law is that a contract made in violation of a statute is void, and that when a plaintiff cannot establish his cause of action without relying upon an illegal contract, he cannot recover.”

As plaintiff cannot recover in law, defendant’s motion for a directed verdict should have been, granted, and the judgment will be reversed.

Reversed.


text:
    Assets Adjustment Company, Appellant, v. John P. O’Brien, Appellee.
    Gen. No. 20,903.
    (Not to be reported in full.)
    Appeal from the County Court of Cook county; the Hon. David T. Smiley, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed October 5, 1915.
    Statement of the Case.
    Action by Assets Adjustment Company, a corporation, against John P. O’Brien. The declaration was upon an assignment of wages made to secure two certain notes described therein. It averred that the plaintiff corporation acquired title to said notes in due course of business; that to secure them one of the makers thereof, then in the employ of the defendant, 0 ’Brien, executed an assignment of his salary in writing, of which O’Brien was duly notified, and that said maker of the note had since such notification, while in the employ of said defendant, earned a sum in excess of the amount due on said notes. From a judgment sustaining a demurrer to the declaration, and dismissing the suit, plaintiff appeals.
    Abstract of the Decision.
    Assignments, § 33

      —when declaration demurrable. A declaration upon an assignment of wages to secure two notes, which fails to allege that the notes remain unpaid or that there was any demand for their payment, that the wages were due and payable at the time of commencement of suit, or that plaintiff is the actual bona fide owner thereof as required by section 18 of the Practice Act (J. & A. K 8555), is demurrable.
    Julian C. Ryer, for appellant.
    Daniel P. Trude and T. J. Lawless, for appellee; M. Marso, of counsel.

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

   Mr. Justice Barnes

delivered the opinion of the court.


text:
    E. H. Johnson, Trustee, Appellee, v. Abraham M. Goldberg et al., trading as A. M. Goldberg & Brothers, Appellants.
    Gen. No. 20,915.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Hugh J. Kearns, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Reversed and remanded.
    Opinion filed October 5, 1915.

      Statement of the Case.
    Action by E. H. Johnson, trustee of the estate of Jacob Shynman, bankrupt, against Abraham M. Goldberg, Philip Goldberg and Morris Goldberg, trading as A. M. Goldberg & Brothers.
    The original statement of claim averred that defendants agreed to pay Shynman’s creditors $5,022.12, and the amended statement, that they agreed to pay Shynman that sum for the benefit of his creditors.
    The case was heard and submitted to the jury on the theory that plaintiff could recover only on an agreement by defendants to pay all Shynman’s debts, and that they amounted to said sum.
    Plaintiff’s evidence tended to support his allegations, and defendants’ tended to show that they agreed to pay Shynman only $3,000 for Shynman’s stock and machinery and incumbrances thereon, and that they performed their agreement.
    The jury evidently accepted defendants’ version of the contract but rejected their claim of payment. The jury were instructed, however, that unless they found the defendants agreed to pay all the debts of Shynman as charged in the statement of claim, they must find against the plaintiff and for defendants, and also that unless they found from the evidence that a definite amount was agreed upon between the parties, their finding should be for defendants. That Shynman’s debts amounted to $5,022.12 was not questioned. The verdict rendered was for $3,000, and the defendants appeal.
    E. N. Zoline and Morris K. Levinson, for appellants; Morris K. Levinson, of counsel.
    Samuel J. Andalman, for appellee; Jacob Cohen, of counsel.

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

   Mr. Justice Barnes

delivered the opinion of the court.

Abstract of the Decision.

1. Appeal and error, § 1402 —when verdict not sustained. A verdict so inconsistent with the theory of the suit and instructions, and so irreconcilable with the evidence that it cannot be deemed otherwise than a mere compromise cannot be sustained on appeal.

2. Municipal Court of Chicago, § 13 —when variance is material. A plaintiff cannot make one claim in his statement of claim and recover on an entirely different claim.


author: Mr. Justice McGoorty

text:
    Marie Hansen and Herman Busch, trading as Hansen Busch Auto Company, Plaintiffs in Error, v. Albert G. Ferree, Defendant in Error.
    Gen. No. 20,410.
    (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 October term, 1914.
    Affirmed.
    Opinion filed October 5, 1915.
    Statement of the Case.
    Suit by Marie Hansen and Herman Busch, copartners, trading as Hansen Busch Auto Company, against Albert G. Ferree, based upon a verbal contract to recover for labor and material furnished in erecting and equipping an automobile.
    All of the items of labor and material set forth in plaintiffs’ affidavit of claim were disputed by the defendant. The principal contention, however, related to the number of hours of labor expended on said car. There was a trial by jury, who found the issues against thq plaintiffs and judgment was entered thereon, whereupon the plaintiffs sued out this writ of error.
    B. M. Shaffner, for plaintiffs in error.
    George L. Turnbull, for defendant in error.

      Abstract of the Decision.
    1. Assumpsit, action of, § 88

      —what evidence is proper to show amount of labor furnished. In a suit to recover for labor and material furnished in erecting and equipping an automobile, time cards showing the hours of work spent by servants on each automobile, which were properly identified, were erroneously rejected as evidence.
    2. Appeal and error, § 1253

      —when error in the exclusion of evidence ccmnot be complained of. In an action to recover for labor and material furnished in erecting and equipping an automobile, error in the exclusion of time cards tending to show the amount of labor furnished cannot be complained of by the plaintiff where the record shows a recovery in excess of the amount which could have been recovered if such time cards had been admitted in evidence.
    3. Appeal and error, § 1410

      —when verdict not disturbed. A verdict not manifestly against the weight of evidence will not be disturbed on appeal.

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

   Mr. Justice McGoorty

delivered the opinion of the court.


text:
    George Lueders & Company, Plaintiff in Error, v. Hudson Manufacturing Company, Defendant in Error.
    Gen. No. 20,479.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John R. Caverly, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Reversed and remanded.
    Opinion filed October 5, 1915.
    Statement of the Case.
    Action by George Lueders & Company, a corporation, against Hudson Manufacturing Company, to recover the purchase price of eighty-five pounds of vanilla beans. The receipt of the beans and the correctness of the purchase price were admitted by the defendant and a set-off was filed, in which the defendant claimed that the beans contained formaldehyde and salicylic acid, and that an extract consisting of a maceration of said vanilla beans, grain alcohol, glycerine and sugar was found, upon chemical analysis, about eight months thereafter, to contain formaldehyde and salicylic acid, neither of which products being normal ingredients of vanilla beans, but are sometimes used as preservatives thereof. Defendant claims that said extract was unsalable and became a total loss.
    Abstract of the Decision.
    1. Appeal and error, § 536

      —what is necessary to preserve objection for review. A contention on appeal that a plaintiff who made no motion for a directed verdict at the close of the evidence cannot question the sufficiency of the evidence to sustain a verdict for the defendant is not well taken.
    No chemical analysis of the beans at any time was made by either of the parties. There were two shipments of beans of fifty pounds each, following the receipt by the defendant of a sample lot of beans of twenty-five pounds.
    About two-thirds of the beans were used by the defendant and the remainder were returned to the plaintiff, credit being given therefor. Plaintiff, who was an importer of vanilla beans, denied that formaldehyde or salicylic acid was used by it as a preservative of said vanilla beans, or for any other purpose in connection therewith. There was a trial by jury, resulting in a verdict and judgment in favor of the defendant on its set-off for three hundred dollars, whereupon the plaintiff brought error.
    Hoyne, O’Connor & Irwin, for plaintiff in error; Carl J. Appell and Heymann F. Tucker, of counsel.
    Lannen & Hickey, for defendant in error.

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

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

   Mr. Justice McGoorty

delivered the opinion of the court.

2. Evidence, § 461 —what is sufficient to establish fact. The fact that salicylic acid and formaldehyde are found in an extract made from vanilla beans and other ingredients* such as grain alcohol, glycerine and sugar, eight months after such extract was made is not sufficient evidence to show that the beans contained such acid or formaldehyde.

3. Appeal and error, § 1402 —when verdict will be set aside. A verdict manifestly against the weight of the evidence will be reversed.


text:
    J. Wallace Wakem, Appellee, v. Colonial Trust & Savings Bank, Appellant.
    Gen. No. 20,752.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. John D. Turnbaugh, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed October 5, 1915.
    Statement of the Case.
    Action by J. Wallace Wakem against the Colonial Trust & Savings Bank, a corporation, for the alleged conversion by said bank of a promissory note in the sum of $2,000 made by John T. Cheney, under date of July 9,1912, due four months from its date, bearing interest at the rate of six per cent, per annum, indorsed in blank by Clinton S. Woolf oik and the Realty Realization Company, and of forty shares of the capital stock of the said company which was attached to said note as collateral security. Plaintiff purchased the note from R. C. Keller, vice-president and cashier of the Colonial Trust & Savings Bank, and the note with the collateral attached was subsequently deposited with the bank for collection. The bank issued its receipt to plaintiff, under said date, reciting therein that it had received the note for collection. The plaintiff denied that he authorized the bank to deliver the _x__ note to the indorser, Woolf oik, and no written authority was given to the hank to deliver the note to such indorser.
    Abstract of the Decision.
    1. Banks and banking, § 152

      —when hank is liable for negligence. If no authority is given to a bank to deliver a note to an indorser thereon for collection, such unauthorized act on the part of the bank constitutes negligence, and the bank is liable for any loss resulting therefrom.
    2. Appeal and error, § 1396

      —when finding will he set aside on appeal. Evidence held to justify a finding that a bank was not authorized to deliver a note to an indorser thereon for collection.
    3. Appeal and error, § 1173

      —when propositions of law refused need not he considered on appeal. Where no complaint is made as to propositions of law held by the court, which propositions correctly state the principles of law applicable to the evidence, it is unnecessary to consider objections to propositions of law refused.
    Following the death of the indorser, Woolf oik, about five months after the maturity of the note, plaintiff for the first time, according to his testimony, learned that the hank had delivered the note to such indorser. Neither the note nor collateral has ever been found, and plaintiff has received no proceeds from either. There was a finding in favor of plaintiff, and judgment for $2,183.46, whereupon defendants appeal.
    Adams, Follahsbee, Hawley & Shorey, for appellant; Mitchell D. Follansbee and Fred Barth, of counsel.
    W. W. Gurley and Walter F. Olds, for appellee.

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

   Mr. Justice McGoorty

delivered the opinion of the court.


author: Mr. Presiding Justice Scanlan

text:
    Mary C. Martin, Defendant in Error, v. James Henry Martin, Plaintiff in Error.
    Gen. No. 20,575.
    1. Divorce, § 110

      —when modification of decree awarding alimony is proper. Where a provision for alimony in a decree takes the form of a weekly, monthly or yearly allowance, the power is expressly, reserved by statute to modify such provision at any time according to the varying circumstances and needs of the parties, but where the decree awards a sum in gross for alimony, it is final and cannot be modified by the chancellor at subsequent term.
    2. Divorce, § 99

      —what is proper method of allowing alimony. The ordinary and better method of awarding alimony is by an annual allowance, payable at such intervals as may best suit the convenience of the husband and meet the demands of the wife, such allowance being ^made upon the basis of the support and maintenance of the wife only, it being the duty of the husband to suitably support her.
    3. Divorce, § 99

      —when allowance of gross sum as alimony is proper. To support a decree awarding a gross sum to the wife as alimony there must be some equitable consideration sufficient to warrant a departure from the usual rule governing the allowance of alimony, and the allowance should be made on the basis of support only, where the evidence does not disclose special equities in favor of the wife.
    4. Divorce, § 101

      —when allowance of alimony in gross is erroneous as to amount. An award in gross of $15,000 as alimony held erroneous, where the evidence showed that the only property of the defendant was a vested remainder in an estate which came to him through the will of his grandfather.
    5. Divorce, § 135

      —when allowance of solicitor’s fees is error. An allowance of $1,000 for solicitor’s fees in a divorce action is erroneous where there is no evidence as to the amount of services performed, or the value of the same.
    Error to the Superior Court of Cook county; the Hon. John M. O’Connor, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed in part, reversed in part.
    Opinion filed October 6, 1915.
    Henry J. Gibbs, for plaintiff in error.
    Sheriff, Dent, Dobyns & Freeman, for defendant in error.

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

   Mr. Presiding Justice Scanlan

delivered the opinion of the court.

Mary C. Martin, the defendant in error (hereinafter called the complainant), filed a bill for divorce against James H. Martin, plaintiff in error (hereinafter called the defendant), in the Superior Court of Cook county. The bill charges habitual drunkenness, and it further alleges that no children were born to the marriage and that the defendant is in receipt of an annual income of $2,500 and “she is informed and believes has an interest in two estates, worth $100,000.” The defendant was personally served with summons but failed to file an appearance or answer and a default was entered against him. The cause came on for hearing before the Honorable Mazzini Slusser, acting as one of the chancellors of the said court. Ample evidence was introduced to prove the charge of drunkenness, in fact, the defendant does not question the propriety of the decree, in so far as it grants a divorce to the complainant. The complainant testified that the defendant had no property at that time, but that he would inherit some; that he told her he would inherit $150,000 at the death of his mother. There was no testimony as to the income of the defendant. Evidence was introduced to the effect that the defendant had a vested remainder interest in a certain valuable estate in Tennessee; that the said interest was willed to the defendant by his grandfather and that the defendant would come into the enjoyment of the same upon the death of his mother. No evidence was introduced as to the amount or value of the services of the solicitors for the complainant. The decree provided-“that the defendant pay to the complainant the sum of $1,000 as and for her reasonable solicitor’s fees and suit money, together with the costs of this proceeding, and also the sum of $15,000 as alimony for the said complainant, and that execution issue therefor.” The decree was entered October 4, 1913, and on February 20,1914, the defendant filed a petition before the Honorable John M. O’Connor, one of the chancellors of the said court, praying for a modification of that portion of the decree in regard to alimony and solicitor’s fees. Upon a hearing, the chancellor found that there was “no material change in the circumstances of the defendant since the entry of the decree, except that now the said defendant is receiving a salary of $100 a month, while at the time of the entry of the decree, he was receiving no salary whatsoever,” and the motion to modify the decree was denied. The defendant sues out this writ of error.

No complaint is made as to the action of the last-mentioned chancellor in denying the motion to modify that portion of the decree in regard to alimony and solicitor’s fees, and it is plain that the chancellor acted properly in that regard. Where the provision for alimony in the decree takes the form of a weekly, monthly or yearly allowance, the power is expressly reserved by the statute to modify such a provision of the decree at any time, according to the varying circumstances and needs of the parties, but in the present case the decree awarded a sum in gross for alimony, and such a decree is final, and the chancellor before whom the motion to modify was made had no power to change the same, the term at which the decree was entered having gone by. Plotke v. Plotke, 177 Ill. App. 344.

The defendant contends that the present case was not a proper one in which to award alimony in gross. Section 18 of the Divorce Act (Illinois Statutes, ch. 40, J. & A. ¶ 4233) reads as follows:

“When a divorce shall be decreed the court may make such order touching the alimony and maintenance of the wife, the care, custody and support of the children, or any of them, as, from the circumstances of the parties and the nature of the case,'shall be fit, reasonable and just. * * * And the court may, on application, from time to time, make suck alterations in the allowance of alimony and maintenance, * * * as shall appear reasonable and proper.”

The ordinary and, as has been frequently said, the better method of awarding alimony is by an annual allowance payable at such intervals as may best suit the convenience of the husband and meet the demands of the wife. If the wife has no other claim than that which arises from the_ existence of the marriage relation, an allowance payable in the method stated, and which remains within the control of the court to increase or diminish from time to time as shall appear reasonable and equitable, is the proper mode of granting alimony. Von Glahn v. Von Glahn, 46 Ill. 134; Griswold v. Griswold, 111 Ill. App. 269; Ross v. Ross, 78 Ill. 402; Keating v. Keating, 48 Ill. 241; Shaw v. Shaw, 114 Ill. 586. Many other cases to the same effect might be cited. The allowance under this practice is made upon the basis of the support and sustenance of the wife only, it being the duty of the husband to suitably support and maintain her.

It has been repeatedly held that in certain cases it is proper under this statute to decree a sum in gross for alimony, providing justice and equity, in view of all the circumstances in the case, require it. To illustrate : Where the wife has brought money or property to the husband, or where property has been accumulated by the joint efforts of the husband and wife, it has been held to be a proper practice to award the wife a sum in gross as alimony. This practice is predicated upon the theory that in such cases equity and justice demand that the wife should share in the estate of the husband, and that the amount of the alimony be determined not merely by the necessities of the wife but also by the equities of the case. The decretal order, in such cases, in form, adjusts only the question of alimony, but in substance it also enforces the equitable rights of the wife. The practice in this State seems to be well established that to support a decree awarding a gross sum to the wife as alimony there must be some equitable consideration sufficient to warrant a departure from the usual rule governing the allowance of alimony, and that the allowance should be made on the basis of support only, where the evidence does not disclose special equities in favor of the wife. Dinet v. Eigenmann, 80 Ill. 274; Von Glahn v. Von Glahn, supra; Robbins v. Robbins, 101 Ill. 416; Ross v. Ross, supra; Shaw v. Shaw, supra; Cole v. Cole, 142 Ill. 19.

Tested by the above rules, it is clear that the chancellor who entered the original decree erred in allowing the complainant $15,000 in gross as alimony, as the evidence shows that the only property of the defendant was a vested remainder in an estate which came to him through the will of his grandfather.

The defendant also contends that as there is no evidence in the record as to the amount of the services performed by the solicitor for the complainant, or the value of the same, that the chancellor erred in allowing to the complainant $1,000 for solicitor’s fees. This contention is also meritorious.

For the reasons stated the decree of the Superior Court of Cook county, in so far as it relates to the-allowance of alimony and solicitor’s fees, is reversed, and in all other respects it is affirmed, and the cause will be remanded.

Affirmed in part, reversed in part and remanded.


text:
    Frank N. Derby, Plaintiff in Error, v. Edward J. Novak, Defendant in Error.
    Gen. No. 20,596.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Joseph P. Rafferty, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Reversed and remanded.
    Opinion filed October 6, 1915.

      Statement of the Case.
    Suit by Frank N. Derby against Edward J. Novak to recover a real estate broker’s commission.
    The defendant and a man named G-udichsen executed a written contract for the exchange of certain real estate. This contract was never consummated. The plaintiff was a broker in the transaction, and the said written contract contained the following provisions relating to commissions: “Brokerage fees- to be paid as follows, to-wit: Party of the first part (Gudichsen) to pay to Frank N. Derby two hundred ($200.00) dollars. Party of the second part (defendant in error), to pay to Frank N. Derby two hundred ($200.00) dollars.” In addition to this contract, the plaintiff also introduced evidence to the effect that he was to receive his commission from the defendant when he brought the latter and Gudichsen together in a valid, binding and enforceable contract. It is conceded that the plaintiff did bring the defendant and Gudichsen together in such a contract, but the defendant claimed on the trial that there was an oral agreement between the parties to this suit to the effect that the latter would not be entitled to any commission from the defendant until the contract between the latter and Gudichsen had been actually consummated, and some evidence, tending to prove this claim, was introduced.
    The case was tried before the court without a jury, and a finding and judgment in favor of the defendant was entered, and this writ of error followed.
    Arthur A. Basse, for plaintiff in error.
    Daniel M. Rothschild, for defendant in error; Edward J. Novak, of counsel.

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

   Mr. Presiding Justice Scanlan

delivered the opinion of the court.

Abstract of the Decision.

Brokers, § 71 —what is not defense to action for compensation. In a suit for broker’s commissions, the fact that the broker recorded or caused to be recorded the written contract for the exchange of property, without authority from either the buyer or seller so to do, would not alone bar the broker’s right to recover if he was otherwise entitled thereto.


text:
    Crerar, Adams & Company, Defendant in Error, v. John J. Brittain and M. B. Bushnell, trading as John J. Brittain Company, Plaintiffs in Error.
    Gen. No. 20,617.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Edmund K. Jarecki, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed October 6, 1915.
    Rehearing denied October 15, 1915.
    Statement of the Case.
    Action by Crerar, Adams & Company, a corporation, against John J. Brittain and M. B. Bushnell, trading as John J. Brittain Company, to recover the purchase price of 1,600 gallons of shingle stain, sold by the plaintiff to the defendants at thirty cents per gallon.
    The defendants were engaged in the construction of sixteen frame cottages and two brick buildings for the Tuberculosis Sanitarium of the city of Chicago, and the shingle stain in question was to be used in staining the shingles on said cottages. The specifications under which the cottages and buildings were being constructed required a certain brand of shingle stain— “Cabot’s No. 320”—to be used in staining the shingles on said cottages. The plaintiff made a proposition to the defendants that it would furnish them with a shingle stain of the same composition and color as “Cabot’s

      No. 320” at thirty cents per gallon. The defendants accepted this offer by letter. The plaintiff delivered 1,600 gallons of the stain to the defendants, and after the latter had used 60 or 65 gallons of the said stain they were notified by the architects to stop using it as it was not the kind of stain (Cabot’s No. 320) called for by the specifications. Thereupon, the defendants stopped using the stain furnished by the plaintiff and notified the plaintiff to remove the remainder of the same from the premises of the defendants and refused to pay the plaintiff for any of the stain delivered. The case was tried before the court without a jury, the issues were found for the plaintiff, and the damages were assessed at $512. Judgment was entered on the finding and this writ of error followed.
    Abstract of the Decision.
    1. Sales, § 328

      —what is question for jury. In an action to recover the purchase price of a quantity of shingle stain, required to be of a certain composition and color, the question whether such stain conformed with the requirements was one of fact.
    2. Sales, § 267

      —when finding of court proper. Where a contract for the purchase of shingle stain required the stain to conform in composition and color to a specified brand, the evidence was held to support a finding that the stain which was sold was of the proper composition and colors as required by the contract, and the fact that the stain furnished was in fact superior to the brand specified would not make the finding inconsistent, there being evidence that any difference in the stains was due to mixing and preparation rather than to any difference in composition and color.
    Walter A. Lantz, for plaintiffs in error.
    Meyer Shapiro, for defendant in error.

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

   Mr. Presiding Justice Scanlan

delivered the

opinion of the court.


text:
    Albert Lorenz and Arthur Lorenz, trading as Lorenz Brothers, Plaintiffs in Error, v. Harry Bloom et al., trading as Nidetz & Schnitzer, and Bernhard W. Berger, Defendants in Error.
    Gen. No. 20,644.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Mechanics' liens, § 147

      —when proceedings to enforce me premature. A suit to enforce a sub-contractor’s lien brought six days after service of notice of lien on the owner of the premises is premature and should be dismissed without prejudice.
    Error to the Municipal Court of Chicago; the Hon. Harry M. Fisher, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Reversed and remanded with directions.
    Opinion filed October 6, 1915.
    Statement of the Case.
    Action by Albert Lorenz and Arthur Lorenz, co-partners, trading as Lorenz Brothers, against Harry Bloom, M. Nidetz and L. Schnitzer, copartners, trading as Nidetz & Schnitzer, and Bernhard W. Berger, under the Mechanic’s Lien Act of 1903 (J. & A. ¶ 7139 et seq.), to recover $435, with interest thereon from May 17, 1913, alleged to be due to the plaintiffs from the defendants for labor and material furnished by the plaintiffs as subcontractors. The case was tried before the court without a jury, the issues were found against the plaintiffs, and judgment was entered on the finding. This writ of error followed.
    D. E. McCracken, for plaintiffs in error; J. H. Perkinson, of counsel.
    Louis F. Jacobson, for defendants in error.

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

   Mr. Presiding Justice Scanlan

delivered the opinion of the court.

2. Mechanics’ hens, § 147 —what is effect of premature suit. The fact that a suit to enforce a mechanic’s lien is prematurely brought does not destroy the lien of the plaintiffs.


text:
    City of Chicago, Defendant in Error, v. William Gall, Plaintiff in Error.
    Gen. No. 20,671.
    1. Licenses, § 10

      —what is effect of license under ordinance licensing vehicles. Section 2597 of the Chicago Code of 1911, requiring licensed vehicles to have a card stating the name of the owner and number of the licénse, and also the rates of fare and regulations as to baggage, applies only to persons who not only take out a license under article II, but who thereafter engage in the business covered by the license.
    2. Licenses, § 1

      —what is license. A license is a permission or privilege granted by the State, directly or indirectly through the medium of a municipality, to perform certain acts or to carry on a certain business which, if done without such license, would be illegal.
    3. Licenses, § 1

      —what is nature of license. A license of an automobile for carrying persons for hire does not create any contract between the city and the licensee, and the acceptance of the same does not impose any obligation upon the licensee to follow the business covered by the license.
    4. Municipal corporations, § 864

      —when presumption does not arise in suit for violation of ordinance licensing vehicles. In a prosecution for failing to display a rate card, where the defendant is licensed to operate automobiles for hire, there is no presumption of law that the defendant actually engaged in the business covered by the license from the mere fact that he had taken out such license.
    5. Municipal corporations, § 860

      —what is nature of suit for violation of ordinance. An action against a person licensed to operate automobiles for hire, for the failure to display a rate card is penal in its nature, though a civil suit, and the city is bound to prove clearly that the defendant has violated the ordinance in question.
    6. Municipal corporations, § 864

      —what evidence is competent in suit for violating ordinance. In a prosecution of a person licensed to operate automobiles for hire, because of the violation of a regulation requiring rate cards to be posted, evidence that the defendant was not engaged in the business covered by the license was competent and should have been admitted.
    Error to the Municipal Court of Chicago; the Hon. John A. Mahoney, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Reversed and remanded.
    Opinion filed October 6, 1915.
    Sheriff, Dent, Dobyns & Freeman, for plaintiff in error.
    John W. Beckwith and Albert J. W. Appell, for defendant in error; Ulysses S. Schwartz, of counsel.

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

   Mr. Presiding Justice Scanlan

delivered the opinion of the court.

On May 23,1914, a complaint was filed in the Municipal Court of Chicago, charging William Gall, the plaintiff in error, hereinafter called the defendant, with a violation of section 2597 of the Chicago Code of 1911. The material part of the complaint is as follows:

“P. J. Timmons, being first duly sworn, on his oath deposes and says that Wm. Gall, late of said City of Chicago, on the 22d day of May, A. D. 1914, at the City of Chicago aforesaid, did then and there operate a motor vehicle for hire upon the public streets, and did fail to have a rate card of fares posted in the said motor vehicle in a conspicuous place and was so found, in violation of section 2597 of the Chicago Code of 1911.”

The case was tried before the court and a jury and a verdict was rendered by the latter finding the defendant guilty and assessing his fine at ten dollars. Judgment was entered on the verdict, and this writ of error followed.

Section 2597 is included in article II of chapter 79 of the said Code. Article II is entitled “Public Automobiles for Passengers” and provides for the licensing of public automobiles. Sections 2588 and 2597 of said article (the only ones material to a consideration of this case) read as follows:

“2588. No automobile, autocar or other similar vehicle which shall stand or be kept upon any public cab and hack stand or upon any street or public way in the city, for employment, shall be used anywhere within the city for the carrying or conveying of persons for hire or reward unless such vehicle shall be licensed as hereinafter provided.”
“2597. There shall be fixed on the inside thereof and in a conspicuous place, in every vehicle licensed under the provisions of this article, in such manner that the same may be easily and conveniently read by any person riding therein, a card to be obtained from the city clerk, on which shall be printed the name of the owner and the number of the license of such vehicle, and also the whole of section 2613 relating to rates of fare, and the whole of sections 2605 and 2606 relating to the carriage of baggage, and lost baggage. ’ ’

The evidence shows that the defendant was employed by the Frank Parmelee Company; that said company was engaged in the business of operating automobiles for the conveyance of passengers in the city of Chicago; that on May 22, 1914, the defendant drove an automobile up to the "Union Station in the city of Chicago, stopped in front of the station and took on two passengers; that two police officers stepped up and asked the defendant if he had a rate card as provided for in said section 2597; that the defendant replied that he had not; that the officers examined the automobile and found the same without such rate card; that one of the officers rode with the defendant until he deposited the passengers at their destination, and then arrested him; that the automobile driven by the defendant on the occasion in question was licensed under article II, chapter 79 of the Chicago Code. The defendant offered to prove that at the time the license in question was issued, the Parmelee Company notified the city that it would not be used; that the vehicle in question was covered by and in use under a license issued by the city to the Parmelee Company under section 2663, article VI, chapter 79 of the Chicago Code of 1911; “that neither the defendant nor the vehicle nor the Parmelee Company was engaged in the occupation, or use of the vehicle, covered by section 2597 of article II; ” and that the automobile passenger business of the said company was licensed under and confined in its use to the business or occupation covered by said article VI. On objection by the city the court ruled that the offered evidence was incompetent and refused to admit the same.

The defendant requested the court to instruct the jury to find the defendant not guilty under the evidence. This motion was denied. The question as to the sufficiency of the evidence to sustain a verdict of guilty was also raised by the defendant in other ways, but we do not deem it necessary to refer specifically to these.

The defendant has assigned and argued a number of alleged errors, but in the view that we have taken of the case, it will only be necessary for us to notice one of these.

The defendant contends that the facts proved do not show a violation of section 2597. To quote from the defendant’s brief:

“There is no evidence whatever in the case that the automobile in question at the time of the violation complained of, or at any other time, was in use for the purposes subject to the provisions of article 2, viz.— as defined in section 2588,—to ‘ stand or be kept upon any public cab and hack stand or upon any street or public way in the city, for employment.’ And the prohibition of the ordinance is against such ‘use’ of vehicles without a license. * * * There is no evidence or ground of inference in the case that the vehicle was at the time alleged, or any other time, engaged in the occupation for which the license was issued, or to which the rate card regulation pertained; and for this reason alone the jury should have been instructed to return a verdict for the defendant. ’ ’

The prosecution does not claim that there is any evidence in the record tending to prove that the automobile in question was being used on the occasion in question, or had been used at any time since the issuance of the said, license in the business of keeping, using or operating an automobile “which shall stand or be kept upon any public cab and hack stand, or upon any street or public way in the city for employment;” but it contends that, “having taken out a license under article II, it had the right to stand upon the public cab and hack stands, or upon the public street or ways for employment, and having that right it was subject to the obligations of the ordinance. * * * He had acquired this right and had engaged in the general occupation or line of business pursuant to their license; that is the operation of a public automobile, for the conveyance of passengers, and, having done so, he cannot now say that he is not using the license.”

It seems idle to argue that merely because the defendant had obtained a license to engage in the business contemplated by section 2597 he would be guilty of a violation of said section, even though he did not actually follow the said business. No case has been cited by the city, nor are we aware of any authority, that supports such a doctrine. We are satisfied that section 2597, as well as all other “regulation sections” in article II apply only to persons who not 'only take out a license under the article, but who thereafter engage in the business covered by the license. In our judgment, the real question for us to decide in the present case is, does proof that the defendant obtained a license under the ordinance create a presumption that he actually engaged in the business covered by the ordinance? If it does not, it is clear that the city did not make out a prima facie case against the defendant.

A license is a permission or privilege granted "by the State, directly or indirectly through the medium of a municipality, to perform certain acts or to carry on a certain business which, if done without such license, would be illegal. Wilkie v. City of Chicago, 188 Ill. 444; Metropolis Theater Co. v. City of Chicago, 246 Ill. 20. The license in question did not create any contract between the city and the defendant, and the acceptance of the same by the defendant did not impose any obligation upon him to follow the business covered by the license. It would seem to logically follow from this, that, in the present case, there can be no presumption that the defendant actually engaged in the business covered by the license from the mere fact that he had taken out the license in question. "While he had the clear right to use the vehicle in the business for which the license was issued, it does not follow, as a presumption of fact, that he exercised the right merely because he obtained the necessary legal permission to do so. A fortiori, it does not follow as a presumption of law. In the present proceeding, the possession of the license by the defendant does not any more tend to prove that the defendant was actually engaged in the business covered by the license than would the absence of a license tend to prove that he was not engaged in the said business, if the present proceeding were a prosecution for doing business without a license. The possession of a license or the want of it would not fix the status of the defendant in respect to the alleged business in either case.

It must also be remembered that, while it is true that the present prosecution is a civil suit, nevertheless, the action is in its nature penal, and it was incumbent upon the city to prove clearly that the defendant had violated the ordinance in question.

The defendant insists that 25 Cyc. 638, is authority for holding that it was incumbent upon the city, to sustain its ease, to prove that the defendant was actually following the occupation licensed. It will be found, however, upon an inspection of the text cited that the author is referring to criminal cases in which the defendant is charged with following a taxable occupation without a license. The city cites in support of its contention the case of Kopper v. Willis, 9 Daly (N. Y., 1881) 460. In that case an action was brought to recover from the defendant as an innkeeper the value of an overcoat belonging to the plaintiff, alleged to have been lost in the defendant’s restaurant while the plaintiff was a patron therein, and the question was whether the defendant’s place of business was an inn (subjecting brm to the extraordinary liability imposed by the common law upon innkeepers) or only a restaurant. It appears that the defendant, under the New York law, could not obtain a license unless upon proof by affidavit to the board of commissions of excise that he kept an inn, and that an inn was necessary for the accommodations of travelers in the place where he kept it, and the evidence showed that the defendant had made an affidavit, for the purpose of securing a license, to the effect that he kept an inn, and the court held that proof of the issuance of the license, coupled with the affidavit of the defendant connected therewith, was sufficient to establish the material fact that the defendant kept an inn. In our judgment this case tends to support the contention of the defendant.

After a careful consideration of the question, we have reached the conclusion that section 2597, upon which the prosecution in this case was predicated, only applies to cases in which a person not only takes out a license under the ordinance, but actually, thereafter, engages in the business covered by the ordinance, and, further, that the city did not prove the charge made in the information. We are also of the opinion that the evidence offered by the defendant, to which we have heretofore referred, was competent and should have been admitted.

The judgment of the Municipal Court of Chicago will be reversed and the case will be remanded for a new trial.

Reversed and remanded.


text:
    The People of the State of Illinois ex rel. Albert G. Hickland, Appellee, v. City of Chicago, et al., Appellants.
    Gen. No. 20,699.
    (Not to be reported in full.)
    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, 1914.
    Reversed and remanded.
    Opinion filed October 6, 1915.
    Statement of the Case.
    Petition for mandamus by Albert G. Hickland to compel the City of Chicago, Carter H. Harrison, John L. McWeeney, Harmon M. Campbell, Elton Lower and John J. Flynn to reinstate the petitioner to the office or position of patrolman of the police department and to certify his reinstatement as required by law. The trial court overruled a general demurrer of the respondents to the petition, as amended, and the respondents electing to stand by their demurrer, it was ordered that writ of mandamus issue as prayed and judgment for costs was rendered against the respondents, who brought this appeal.
    John W. Beckwith, for appellants; John E. Foster, of counsel.
    No appearance for appellee.

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

   Mr. Presiding Justice Scanlan

delivered the opinion of the court.

Abstract of the Decision.

1. Mandamus, §129 —what petition must aver. A writ of mandamus should not be issued in any case unless the party applying for the writ shows a clear right to it, and a clear legal duly on the part of the respondent or respondents to perform the act sought to be enforced.

2. Evidence, § 10 —what will he judicially noticed. State courts of general jurisdiction will not take judicial notice of municipal ordinances, and they must be pleaded and proved.

3. Mandamus, § 138 —when averment as to public office necessary. A petition for mandamus to compel the reinstatement of petitioner to the office of patrolman should specifically plead the ordinance creating such office, as there is no statute creating the office of police patrolman.

4. Municipal corporations, §131 —what is nature of office of policeman. The office of policeman or police patrolman was unknown to the common law.

5. Mandamus, § 139 —what petition for reinstatement to office must show. A petition for mandamus to compel the reinstatement of petitioner to the office of police patrolman must allege that he is an officer de jure, and allegations that such petitioner was tried by the Civil Service Board under the title of police patrolman, and that appropriations for his salary were made by the city council, merely tend to show that he was an officer de facto.

6. Mandamus, § 139 —when petition for reinstatement to office is insufficient. A petition for mandamus to compel the reinstatement of petitioner to the office of police patrolman is insufficient when the allegations as to an ordinance creating the office of police patrolman are mere conclusions of the pleader and not statements of facts, from which the court can determine whether or not the position was created by ordinance.

7. Mandamus, § 139 —when petition is unsufficient as showing unwarranted discharge of officer. A petition for mandamus to compel the reinstatement of petitioner to the office of police patrolman, alleging that there was no evidence to support the findings of the Civil Service Commission in discharging him, and that petitioner was not present when the finding was made and had no opportunity to object to the same, does-not show that the action of the commission was not warranted under the law, as the allegations as to evidence not justifying the finding of guilty are immaterial in determining the sufficiency of the petition, and the law did not require the presence of petitioner when the finding was made.


text:
    North West State Bank, Appellee, v. Jacob Alter, Appellant.
    Gen. No. 20,766.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Bills and notes, § 240

      —when bank does not become innocent purchaser. A bank does not become an innocent purchaser of a negotiable note so as to entitle it to protection against infirmities of the.paper by merely discounting the same for a person not indebted to it and crediting him with the proceeds by way of deposit, as such deposit so long as it is not withdrawn is subject to equities of prior parties.
    2. Bills and notes, § 391

      —what makes prima facie case as to purchase of note in good faith. The introduction in evidence of notes sued upon, indorsed in blank by the payee, is prima facie evidence that the plaintiff has acquired them in good faith, for value, in the usual course of business before maturity and without notice of defenses, and such proof cannot be overcome by merely showing that the original transaction between the plaintiff and the payee did not of itself amount to a purchase of the notes.

      Appeal from the Municipal Court of Chicago; the Hon. Harry M. Fisher, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed October 6, 1915.
    Rehearing denied October 16, 1915.
    Statement of the Case.
    Action of the first class in the Municipal Court of Chicago, brought by North West State Bank, a corporation, against Jacob Alter to recover on a certain promissory note in the principal sum of $1,172.08, with interest thereon at six per cent, per annum, executed by the defendant and made payable to one Alfred Anderson. The case was tried before the court and a jury, and at the close of all the evidence the court directed a verdict in favor of the plaintiff for $1,231.56. Judgment was entered on the verdict, and this appeal followed.
    Blum, Wolfsohn & Blum, for appellant.
    Walter H. Eckert, 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. Presiding Justice Scanlan

delivered the opinion of the court.

3. Bills and notes, § 412 —what person must show to prove that hanlo is not innocent purchaser. Defendants to a suit on a note brought by an indorsee bank, in order to sustain their claim that the bank is not entitled to protection as an innocent purchaser, must show not only that the bank merely credited the proceeds of the discounted note by way of deposit in favor of the payee and that the payee was not then indebted to the bank, but must also prove that the amount due upon such deposit, if any, had not been_drawn out at the time of the trial, there being no claim of an earlier notice to the bank of such defense.


text:
    The People of the State of Illinois ex rel. G. Frank Lydston, Appellee, v. Maclay Hoyne, State’s Attorney, Appellant.
    Gen. No. 20,799.
    (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, 1914.
    Affirmed.
    Opinion filed October 6, 1915.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Suit by the People of the State of Illinois on the relation of Gr. Frank Ldyston against Maclay Hoyne, State’s Attorney, seeking to compel the defendant, by mandamus, to sign a petition as State’s Attorney, for leave to file an information in the nature of a quo warranto. The petition alleged, in substance, that certain persons, therein named, were unlawfully elected and acting as trustees for the American Medical Association, an Illinois corporation, not for profit. A general demurrer to the petition, interposed by the defendant, was sustained by the Circuit Court, whereupon the petitioner elected to stand by his petition and appealed to this court. This court (People ex rel. Lydston v. Hoyne, 182 Ill. App. 42) held that the Circuit Court erred in sustaining the demurrer to the petition for mandamus and reversed the judgment of that court and remanded the cause. Thereafter, this court, by stipulation of the parties, set aside the judgment it had entered, overruled the demurrer and entered a final judgment awarding a peremptory writ of mandamus, commanding the defendant, the State’s Attorney of Cook county, to sign the said information in accordance with the prayer of the petition. Thereafter an appeal was taken to the Supreme Court and that court (People ex rel. Lydston v. Hoyne, 262 Ill. 82) held that this court had no jurisdiction, notwithstanding the stipulation of the parties, to enter a judgment overruling the demurrer and awarding the writ, and the judgment of this court was reversed and the cause remanded to this court with directions to enter a judgment in accordance with the one originally entered by this court. Thereafter this court remanded the cause to the Circuit Court- and thereafter that court, in obedience to the judgment of this court, overruled defendant’s demurrer. The latter elected to stand by his demurrer, and a final judgment was entered awarding a peremptory writ of mandamus commanding the defendant to sign the information in accordance with the prayer of the petition for mandamus. This appeal followed.
    Frederick Z. Marx, for appellant.
    Stedman & Soelke, for appellee.

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

   Mr. Presiding Justice Scanlan

delivered the opinion of the court.

Abstract of the Decision.

Appeal and error, § 1725 —when former appeal binding. Where a subsequent appeal presents the same suit, with the same parties thereto and with the same question involved as was passed upon and decided in the former appeal, the former adjudication is conclusive upon the parties.


text:
    The People of the State of Illinois, Defendant in Error, v. Ben Holtzman, Plaintiff in Error.
    Gen. No. 20,787.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Edmund K. Jabecki, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed October 6, 1915.
    Rehearing allowed and additional opinion filed December 8, 1915.
    Statement of the Case.
    Information by the People of the State of Illinois, filed in the Municipal Court of Chicago, in which it was charged that defendant, Ben Holtzman, “on the 23rd day of March, A. D. 1914, at the City of Chicago, aforesaid, did knowingly and fraudulently make a false representation in writing signed by him concerning his respectability, wealth, mercantile correspondence and connections, assets and liabilities and fraudulently obtained thereon credit and divers sums of money, to-wit: Eleven Hundred ($1,100.00) Dollars from the Michigan- Avenue Trust Company, a corporation, contrary to the form of the Statute, ’ ’ etc. Such information was founded on section 97 of the Criminal Code (J. & A. ¶ 3654), as to obtaining credit by false pretenses. The case was tried before the court and a jury and verdict was returned finding the defendant guilty. Judgment was entered on the verdict and the defendant was sentenced to confinement in the county jail for a period of thirty days and to pay a fine of $500. This writ of error followed.
    Abstract of the Decision.
    1. Criminal law, § 245

      —what may he considered in determining criminal intent. In determining the question of criminal intent, the jury are not hound to accept the testimony of the defendant in reference thereto, but they may consider all the facts and circumstances connected with the case.
    2. Criminal law, § 520

      —when verdict will not he set aside. On appeal in a criminal case, where it appears that a prima facie case was established against the defendant, and there were no errors of law, the verdict of the jury will not be set aside unless from all the evidence there is a reasonable doubt of the defendant’s guilt.
    3. False pretenses, § 39

      —when verdict of guilty will he set aside. Evidence held to show that a verdict of guilty of obtaining money by means of false representations as to assets or liabilities made to obtain credit was justified.
    on rehearing.
    1. Criminal law, § 491

      —when question may he first raised on petition for rehearing. In a criminal case, the objection that the information on which defendant was convicted is fatally defective may be raised for the first time on a petition for rehearing.
    2. Indictment and information, § 22

      —when sufficient. An indictment or information is sufficient if the defendant is notified thereby of the charge which he is to meet, so that he may make his defense, and if convicted or acquitted thereof may be able to plead former jeopardy to another charge for the same offense.

      A rehearing having been allowed, the court, on the rehearing, rendered a judgment adhering to the decision on the questions raised on the hearing and passing upon the additional questions concerning the sufficiency of the indictment which were raised on the petition for a rehearing.
    O. J. C. Wray, for plaintiff in error.
    Maclay Hoyne, for defendant in error; Edward E. Wilson, of counsel.

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

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

   Mr. Presiding Justice Scanlan

delivered the opinion of the court.

3. Indictment and information, § 41 —when use of language of statute not essential. In an indictment or information it is not necessary to use the very words of the statute creating the offense, but it is sufficient to use words conveying the same meaning, or which are equivalent to the words of the statute, or words which in their signification are inclusive of the statutory words, or which in common acceptation are of the same or similar import, or which substantially follow the statutory words and state them with substantial accuracy within a reasonable intendment.

4. Indictment and information, § 23 —when implied allegation sufficient. Whatever is included in or necessarily implied from an express allegation need not be otherwise averred.

5. Indictment and information, § 30 —when mode of commission of offense sufficiently described. An information averring that defendant by means of false representations “fraudulently obtained * * * credit and divers sums of money, to wit: Eleven Hundred ($1,100.00) Dollars from the Michigan Avenue Trust Company,” held not fatally defective in that such averment did not sufficiently enable defendant to understand the nature of the charge made against him, such averment being in legal effect equivalent to a direct charge that such trust company was defrauded by means of such representations.


text:
    Louis Buendert, Plaintiff in Error, v. Charles Bostrom et al., trading as Henry E. Strassheim & Company, Defendants in Error.
    Gen. No. 20,790.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Hugh R. Stewart, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Reversed and remanded.
    Opinion filed October 6, 1915.
    Statement of the Case.
    Action of the fourth class in the Municipal Court of Chicago by Louis Buendert against Charles Bostrom, Henry E. Strassheim and Adolph F. Boericke, trading as Henry E. Strassheim & Company. The plaintiff’s original statement of claim and the first and second more specific statements of claim, having been stricken from the files on motion of the defendants, the plaintiff, pursuant to the order of the court, filed Ms third more specific statement of claim. On motion of the defendants, this last-mentioned statement of claim was ordered stricken from the files and the suit was dismissed at the plaintiff’s costs. This writ of error followed.
    Abstract of the Decision.
    Municipal Court of Chicago, § 13

      —when statement of claim erroneously stricken from files. Statement of claim in an action to recover money paid on a contract for the purchase of realty on the ground that such payment was induced by the fraudulent representations of the defendants as to the dimensions of the property covered by the contract, held sufficient to present a claim for fraud and deceit, and hence the striking of the statement from the flies on the theory that the plaintiff was attempting to vary a written contract by antecedent representations was erroneous, since the plaintiff’s action was not based upon the contract.
    Jarrell & McNeil, for plaintiff in error.
    William G. Wise and Roger Faherty, for defendants in error.

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

   Mr. Presiding Justice Scanlan

delivered the opinion of the court.