text:
    Rosa Roos et al., Trustees, and Mrs. Rosa Roos, Individually, Defendants in Error, v. Christian Muth et al., Trustees, Plaintiffs in Error.
    Gen. No. 16,819.
    1. Fraternal benefit societies—by-laws as to notice of sickness. A by-law of a subordinate lodge requiring notice of sickness does not prevent the heirs of an insane member from recovering sick benefits where there is a by-law passed. by the grand lodge of the order making notice unnecessary in cases of insanity.
    2. Administration of estates—misjoinder of parties. Where the executors are also trustees for the benefit of the widow and have made their final report, it is not a misjoinder for them, acting in execution of the trust, to sue on a claim of the estate, when joined with the widow.
    Error to the Municipal Court of Chicago; the Hon. McKenzie Cleland, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed December 11, 1912.
    Rehearing denied December 26, 1912.

      James Ewing Davis and William H. A. Rust, for plaintiffs in error.
    Goldzier, Rodgers & Froelich, for defendants in error.
   Mr. Justice Baume

delivered the opinion of the court.

In a suit brought in the Municipal Court by Bosa Boos, Otto A. Boos, and Ida Boos, trustees under the last will and testament of Edward Boos, deceased, and Bosa Boos, ag’ainst certain persons as trustees of Lily of the West Lodge, No. 407, Independent Order of Odd Fellows, a corporation, to recover sick benefits alleged to have accrued to Edward Boos, a member of said order, in his lifetime, a trial by the court without a jury resulted in a finding and judgment against said defendants for $669, to reverse which judgment they prosecute this writ of error.

It is conceded that at the time of his death Edward Boos was and had been for many years a member in good standing of said order; that he was sick from September 5, 1904, until his death on October 21, 1907, and entitled to sick benefits, save for his failure to comply with the provisions of the by-laws of the order relating to notice to the lodge of his illness; that if a recovery may be had in this case the judgment is not excessive.

The by-laws provide that “a sick brother has either to report himself sick at the open lodge or by a brother of the sick committee; ’ ’ that ‘ ‘ at the time of his sick report, the sick brother shall furnish to the lodge a physician’s certificate stating the cause and nature of the disability;” that “members residing outside of the city * * * have to report their sick circumstances, in full detail, and have said report certified by the Noble Grand of the next lodge and acknowledged by a notary public;” that the “visiting card must also be ’ sent to the lodge;” that “a brother who is ill outside of the jurisdiction of this lodge, in order to receive benefits, shall furnish to this lodge a certificate of a regular practicing physician,” prescribing the form of such certificate.

On September 4, 1904, Edward Boos, while temporarily at Fond du Lac, Wisconsin, was stricken with paresis, and on the following day was removed to a sanitarium at Wauwatoosa, Wisconsin, where he remained until his death, on October 21, 1907, during all of which time he was insane. On November 16, 1904, he was adjudged by the Probate Court of Cook County to be a distracted person. He gave no notice to the lodge of his disability in the manner prescribed by the by-laws.

It is insisted on behalf of plaintiffs in error that the failure of the deceased to give such notice precludes a recovery. Whether or not an insane person is, by reason of his insanity, relieved or excused from performing certain provisions in a contract of insurance relating to notice or the like, is a somewhat mooted question, but upon this record the question is purely academic and need not, therefore, be determined.

Section 2114 of the “By-Laws, Code 1906, I.O.O. F., adopted and authorized by the Grand Lodge of the State of Illinois of the Independent Order of Odd Fellows,” provides as follows:

“A Lodge by-law, requiring certified notice of sickness or disability to be sent to the lodge once a week or once in two weeks, may not be enforced against a brother who is insane. Such a brother is incapacitated from complying with it.”

This constitutes an express declaration by the grand lodge of the order, binding upon the subordinate lodge of which the deceased was a member, that the provisions of the by-laws of the subordinate lodge relating to the notice here involved may not be enforced against a brother who is insane, and that such.brother is incapacitated from complying therewith. The order itself has thus construed the provisions of its by-laws relating to notice adversely to the contention of plaintiffs in error. It is needless to say that plaintiffs in error are bound by such authoritative declaration and construction.

It is said that there can be no recovery because in his application for membership the deceased agreed “to seek all remedies and redress in the tribunals of the order before resorting to a court of law,” and that the deceased or defendants in error failed so to do. If any such application for membership exists, it does not appear to have been offered or introduced in evidence. What purports to be a copy of a form of application for membership, appears embodied in an affidavit filed in support of a motion interposed by plaintiffs in error in the trial court to dismiss the suit, but neither the affidavit nor application for membership appears in the stenographic report of the proceedings.

It is also insisted that there is a misjoinder of parties plaintiff, and that there is no right of recovery in defendants in error as trustees under the will of Edward Roos. By the third paragraph of the will the testator gave to his widow, Rosa, such amounts as might be due from any policies of insurance on his life from any life insurance company or beneficiary order. The fourth paragraph of the will is as follows :

“All the rest of the residue and remainder of my estate, whether real or personal or mixed, and wheresoever situated, I give, bequeath and devise to my' wife, Rosa Roos, my son, Otto A. Roos, and my daughter, Ida Roos, as trustees for the benefit of my wife, Rosa Roos, and my children me surviving.”

The estate of the deceased was finally settled in the Probate Court of Cook county on November 25, 1908, and from the record thereof it appears that the executors named in said will, who were also named as trustees therein, turned over to themselves as trustees the claim here involved. Plaintiffs in error insisted in the trial court that the suit should have been brought jointly by the widow and all the surviving children of the deceased, and not by the trustees. The trial court held otherwise and thereafter the widow who is also a trustee was made a party paintiff. It is now insisted that the suit can only be maintained by the. executors. The executors having made their final report, which was approved, and the same persons, acting as trustees, having taken over the remaining personal property of the estate in the execution of the trust under the will, there can be no impropriety in permitting such trustees to maintain the action. Clearly a recovery by such trustees would preclude another recovery on the same cause of action. The fact that the widow, Bosa Boos, was also permitted to be joined as a party plaintiff does not require a reversal of the judgment.

We perceive no substantial error in the record, and the judgment is affirmed.

'Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Baume

license: Public Domain

text:
    Robert F. Kolb, Defendant in Error, v. Gray Staunton, Plaintiff in Error.
    Gen. No. 16,827.

      Vebdict—when passion and prejudice negatived. That a verdict in favor of an attorney for services rendered was influenced by passion and prejudice is negatived by the subject-matter of the litigation.
    Error to the Municipal Court of Chicago; the Hon. John W. Houston, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed December 11, 1912.
    Granville W. Browning and Charles J. Burgess, for plaintiff in error.
    Edward Maher, for defendant in error.
   Mr. Justice Baume

delivered the opinion of the court.

Prior to December 3, 1903, plaintiff in error, Gray Staunton, and one W. S. Potwin, had been associated in an effort to perfect, manufacture and market a product invented by plaintiff in error, commonly known as artificial rubber, and designated “Insulatus,” for trade purposes. The parties had entered into several written contracts relative to the services to be performed by plaintiff in error, his compensation therefor to be paid by Potwin, and the respective interests of the parties in the proposed enterprise. Thereafter, ■ some differences arose between plaintiff in error and Potwin growing out of a claim by plaintiff in error that Potwin was not prosecuting the work of aff ecting the necessary organization for the conduct of the business with sufficient vigor. Potwin, being unable to give his personal attention to the matters, had designated one, Carll, as his representative, and the latter was personally so obnoxious to plaintiff in error that he refused to work or meet with him. We have no doubt under the evidence that plaintiff in error also became suspicious of Potwin and entertained the thought that Potwin had secured an undue advantage of him in the contemplated enterprise. About the date first named, plaintiff in error and one Ealph J. Golson became associated in an effort to organize a corporation to undertake the manufacture and sale of the product. The scope of the contract relations existing between plaintiff in error and Potwin necessarily became the subject of a preliminary investigation, and defendant in error, Eobert P. Kolb, a practicing attorney, who had served Golson professionally, was introduced by him to plaintiff in error. The professional services thereafter rendered by defendant in error for plaintiff in error and Golson, jointly and severally, as he claims, constitutes the subject-matter of this litigation, instituted in Municipal Court, wherein defendant in error was awarded a verdict against plaintiff in error for $892.79, and upon a remittitur by defendant in error of $258.68, judgment was entered against plaintiff in error for $634.11.

There is no contention by plaintiff in error that the services were not performed or that the amount charged therefor was not fair and reasonable. The sole contention of plaintiff in error is that such services were not performed for his benefit, or at his instance and request, but were performed for the benefit and at the instance and request of Golson.

The evidence discloses that plaintiff in error was lacking in business experience and capacity. When he was called upon by defendant in error to state the terms of his several contracts with Potwin, he was unable to do so. The contracts were in the possession of Potwin and plaintiff in error had no copy of the same or any note or memorandum of their provisions. To enable defendant in error to interview Potwin with authority plaintiff in error gave defendant in error the following letter:

“Chicago, December 5. 1903.

“Mr. W. S. Potwih, City.

“Dear Sir: This will introduce to you Mr. Robert F. Kolb, my attorney, who desires to consult with you regarding my business with you. Any information you may give to him will be greatly appreciated.

Tours very truly,

Gray Stauhtoh.'’'’

The abstract of the record contains no intelligible reference to this letter.

The statement of claim filed by defendant in error covers the period from December 3, 1903, to May 27, 1905, and contains twenty-nine separate items of charges for services in relation to matters in which plaintiff in error had a personal financial interest. To review the evidence bearing upon each item would unduly extend this opinion. We have examined and considered the evidence as abstracted, and as it appears in the record, and find that it amply supports the verdict of the jury upon the merits of the controversy.

Glolson was adjudged a bankrupt prior to the commencement of the suit in the Municipal Court, and defendant in error filed a claim against his estate for the same services here involved, and realized a dividend on such claim of 29 per cent. The jury, through inadvertapce or misunderstanding, failed to credit the amount of such dividend upon the claim filed herein and returned a verdict for the full amount. This error was cured by the remittitur, heretofore mentioned, entered by defendant in error.

The subject-matter of the litigation negatives a suggestion that the jury might have been influenced by passion and prejudice in arriving at their verdict, and we perceive no incident in the record that was calculated to support such suggestion.

The five year statute of limitations had almost run when the suit was instituted. Defendant in error testified that plaintiff in error had repeatedly promised to pay the claim and the jury were warranted in so finding, notwithstanding the denial of plaintiff in error. The jury were instructed that if they believed from the evidence that payment had been unreasonably and vexatiously delayed, they might allow 5 per cent, interest from the time said payment was so delayed to the present time, and no objection was or is made to such instruction. "Whether or not the delay in payment was unreasonable and vexatious was a question of fact for the jury, and we are not disposed to disturb the finding upon that issue.

Other objections urged are not of sufficient merit to require discussion.

The judgment is affirmed.

Judgment affirmed.


text:
    Henry J. Macfarland, Complainant, v. William T. Utz et al., Defendants. Rumah A. Crouse, (Cross-Complainant), Defendant in Error, v. Archibald W. McCandless et al., (Cross-Defendants), Plaintiffs in Error.
    Gen. No. 16,831.
    1. Mobtgages—when tarred. The mortgage is a mere incident to the debt and is barred only when the debt is barred.
    2. Statute of limitations—construction. Sections 11 and 16 of the statute of limitations are to be construed together.
    3. Mobtgages—when payment of note not assumed. By accepting a conveyance of property subject to a trust deed one does not assume the payment of the note secured by such deed.
    4. Mortgages—when payment of principal not assumed. Where a person who accepts a conveyance of property subject to a trust deed to secure a note enters into extension agreements with the holder of such note and agrees to pay interest and does so pay, no personal liability on the part of such person to pay the principal of the note is created.
    5. Mortgages—statute of limitations. ^Where conveyance of property is made subject to a trust deed to secure a note, the running of the statute of limitations in favor of the grantor against the holder of the note is prevented by payments of interest by the grantee.
    6. Mortgages—when statute of limitations cannot te interposed. If the grantor of property subject to a trust deed to secure a note pays the interest thereon the grantee cannot interpose the statute of limitations to defeat foreclosure.
    7. Mortgages—when foreclosure decree is in rem. A foreclosure decree involved is in rem where the suit is brought against the maker of the note • secured by a trust deed after such maker conveyed the property subject to such deed and reconveyance has been decreed.
    Error to the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed December 11, 1912.

      Ashcraft & Ashcraft, for plaintiff in error; E. M. Ashcraft, of counsel.
    Lack her, Butz & Miller, for defendant in error.
   Mr. Justice Baume

delivered the opinion of the

court.

This writ of error is prosecuted by Archibald W. McCandless, and Kate C. McCandless, his wife, to review the record of a proceeding in equity in the Circuit Court, wherein a decree was entered foreclosing a certain trust deed.

In March, 1896, McCandless purchased a partnership interest for the term of five years in an established business conducted by John N. Crouse, and in consideration therefor conveyed to said Crouse certain real estate in the city of Chicago, subject to the trust deed incumbrance here involved, given to secure the note of McCandless for $4,500, bearing date April 18, 1893, payable in five years to Nony Williams. Said deed recites a consideration of $15,000, but it is agreed that the actual consideration was $10,350. In further consideration of said purchase by McCandless he gave to Crouse his note for $4,650, payable out of his share of the profits of the business in excess of $5,000 per annum. October 15, 1897, the partnership was dissolved as of October 1, 1897, the terms of dissolution and settlement to be thereafter agreed upon. February 3, 1898, McCandless filed his bill in equity in the Superior Court against Crouse, charging that he was induced to enter into said partnership contract by the fraudulent representations of Crouse and praying that said contract be rescinded and the consideration (the property conveyed and the note for $4,650) be restored to him. The owner and holder of the note and trust deed here involved was not made a party to said bill and said note and trust deed were not mentioned in said bill. On April- 18, 1908, while said proceeding was pending said note matured by its terms and Crouse procured from its owner and holder, Nony Williams, an extension of two years for its payment, and on April 18, 1900, Crouse procured a like extension of three years, or until April 18, 1903. In neither of the said extension agreements did Crouse agree to pay the principal of said note. On March 19, 1904, a decree was entered in the Superior Court adjudging that McCandless was entitled to recover from Crouse seven-tenths of the bonus of $15,000 paid by him for a one-half interest in the partnership and requiring Crouse to pay to McCandless $9,000, and to surrender to him the note for $4,650. Upon the appeal of Crouse from said decree to this court said decree was reversed and the cause remanded to the Superior Court. By the judgment of this court McCandless was held to be entitled to a reconveyance from Crouse of the real estate, upon which the trust deed here involved was a lien, and to a decree against Crouse for $2,189.31, and for the cancellation and surrender by Crouse of the note for $4,650. Crouse v. McCandless, 121 Ill. App. 237. From the judgment of this court McCandless prosecuted his appeal to the Supreme Court, where said judgment was affirmed. McCandless v. Crouse, 220 Ill. 344. In the Supreme Court Mr. Justice Wilkin, after stating the views of the court upon the proper accounting to be had between the parties, said:

“These views are in harmony with the decision of the Appellate Court, and are based upon the presumption that the condition and value of the real estate to be reconveyed have not been deteriorated by any act of the appellee (Crouse) or through any neglect of legal duty on his part. Should the contrary be shown the court below can adjust the equities between the parties in that regard. ’ ’

On March 19,1907, said cause was re-docketed in the Superior Court and on June 25, 1907, it was found by said court that on June 12th preceding Crouse had tendered to McCandless $2,189.31 in legal tender, also a deed, being the reconveyance of the real estate directed to be made by the Appellate Court, also the note for $4,650, and that McCandless then accepted said $2,189.31, but did not accept' said deed and note, claiming that the condition and value of said real estate had been deteriorated by the act and neglect of legal duty on the part of Crouse. The court also then found that a like tender of said amount and of said deed and note had been made on behalf of Crouse to McCandless on August 2, 1906. Thereafter, on January 13, 1908, while the suit at bar was pending in the Circuit Court, an order was entered in the Superior Court referring the said cause for an accounting, etc., to a master to take and report the evidence with his conclusions, as to whether or not the condition and value of the real estate there involved had or had not been deteriorated by an act of Crouse, or through the neglect of any legal duty on his part, and if so, in what amount. Said cause is still pending in the Superior Court upon such reference. On July 2, 1904, defendant in error, Eumah A. Crouse, wife of John N. Crouse, purchased from Nony Williams the note for $4,500 secured by the deed of trust here involved, and has since remained the legal holder and owner of said note. Subsequent to' the conveyance on April 26, 1896, of the real estate by McCandless to Crouse, subject to the trust deed, McCandless made no payments of principal or interest on the note which said trust deed was given to secure, but the interest accruing on said note up to January 2, 1905, was paid by Crouse.

On September 5, 1907, Henry J. Macfarland filed his original bill in the Circuit Court to foreclose the trust deed given to secure said note for $4,500, then owned by Eumah A. Crouse. The bill appears to have been filed by Macfarland at the request of John N. Crouse, upon the assumption that the foreclosure of the trust deed would not be contested. Plaintiffs in error answered the bill, admitting the execution of the note and trust deed, but denying that Macfarland was the owner thereof, and alleging that said note was paid by the owner of the premises or by some one for him or on his account. Rumah A. Crouse and John N. Crouse also answered said bill admitting the making of said note and trust deed, but denying that Macfarland was the legal or equitable owner of the same. Rumah A. Crouse, as the legal holder and owner of said note and trust deed, then filed her cross-bill to foreclose said trust deed, and the original bill filed by Macfarland was thereafter dismissed for want of equity. In their answer to said cross-bill plaintiffs in error admitted the execution of the note and trust deed; denied that cross-complainant was the owner and legal holder of the same; alleged that said note had been paid; and set up the ten year statute of limitations and laches in bar of the action. The issues made by said cross-bill and answer, and the replication to said answer, were referred to the master to take the proofs and report the same, together with his conclusions. Upon the issues of fact involved the report of the master was favorable to the cross-complainant, and the master further reported that, while personal liability on the note as against Archibald W. McCandless was barred by the statute of limitations, the right of cross-complainant to foreclose the trust deed still existed. In accordance with the recommendation of the master a decree foreclosing said trust deed was entered.

Upon the issues of fact involved the evidence supports the findings of the master incorporated in the decree.

Plaintiffs in error say the vital question is whether or not the act of John N. Crouse, to whom plaintiffs in error conveyed the property in 1896, subject to the trust deed, in making the extension agreements with the then holder of the note secured by said trust deed and by his payment of interest on said note after its maturity, extended the obligation and stopped the running of the statute of limitations as against plaintiff in error, Archibald W. McCandless, who paid nothing on the note after conveying the property to Crouse, and was never asked to do so by anyone. The position assumed by plaintiffs in error is predicated upon the theory that no foreclosure can be had under the trust deed apart from the existence of a personal liability, upon the note against the maker or against one who may' have assumed its payment.

It has been repeatedly held that sections 11 and 16 of the act in regard to limitations are to be construed together; that the mortgage is a mere incident of the debt and is barred only when the debt is barred; and that a suit to foreclose a mortgage may be commenced at any time after the last payment of interest upon the note which said mortgage was given to secure. Schifferstein v. Allison, 123 Ill. 662; Richey v. Sinclair, 167 Ill. 184; Murray v. Emery, 187 Ill. 408; Stein v. Kaun, 244 Ill. 32.

By accepting a conveyance of the property subject to the trust deed Crouse did not assume the payment of the note secured by said trust deed, nor did the extension agreements entered into between Crouse and Nony Williams, the then holder of said note, on April 18, 1898, and April 18, 1900, whereby Crouse agreed to pay the interest on said note, or the act of Crouse in thereafter paying such interest, create a personal liability upon the part of Crouse to pay the principal of said note. Ray v. Lobdell, 213 Ill. 389; Scholten v. Barber, 217 Ill. 148.

-The payments of interest upon the note from 1897 to 1905 inclusive by Crouse as the owner of the equity of redemption in' the mortgaged property was made both for the benefit of himself and for the benefit of plaintiffs in error, his grantors, and such payment of interest served to toll the statute of limitations and to keep alive the debt for the payment of which the mortgaged property was primarily liable.

The decree of foreclosure here involved is in rem, not in personam.

In Pinkney v. Weaver, 216 Ill. 185, Joseph Verkler and wife, on Nov. 24, 1884, conveyed to Ada Boggy certain land for life with reversion over to the heirs of her body surviving to their majority, and in the event of their death prior thereto, to the grantors and their heirs. Said conveyance was made subject to a trust deed executed by the grantors to secure the payment of their note maturing April 1, 1889, the interest upon which note was thereafter, in 1890 and 1891, paid by the grantee, who had then procured a conveyance from the heirs of the grantors of their contingent remainder. On September 14, 1899, being more than ten years after the maturity of the note, the holder thereof filed a bill to foreclose the trust deed, and it was held that the payments of interest by the grantee operated to arrest the running of the statute of limitations as against both her life estate and the reversionary estate. Beferring to the payment of interest by said grantee it was there said: ‘ ‘ She had full right to protect her estate, and all possible interests, from foreclosure and sale under the trust deed by paying the annual interest as it fell due on the note secured by the trust deed."

By the terms of the trust deed the land was primarily liable for the payment of the debt, and Crouse, as the grantee of plaintiffs in error, having acquired the title to said land subject to said trust deed, was burdened with the obligation to pay the debt or suffer the loss of the land by foreclosure and sale. Apart from the payment of interest the extension agreements entered into between Crouse and the holder of the note are without special significance. The payment of interest upon the note is the vital thing. If such interest had been paid by McCandless, the statute of limitations could not have been interposed by his grantee, Crouse, to defeat a foreclosure of the trust deed (Emory v. Keighan, 88 Ill. 482), and we perceive no reason why the payment of interest by Crouse should not preclude plaintiffs in error from successfully invoking the statute of limitations in bar of the action.

The conclusion at which we have arrived is decisive of the case against plaintiffs in error and renders it unnecessary to consider the other questions sought to be raised.

There is no error in the record and the decree is affirmed.

Decree affirmed.


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    George J. Cooke Company, Defendant in Error, v. Peter Hell, Plaintiff in Error.
    Gen. No. 16,833.
    1. Damages—breach of contract for sale of beer. Where defendant saloon keeper broke a contract to buy beer from plaintiff brewing company at the market price, and the contract shows the beer was to be manufactured by plaintiff, the measure of damages is the difference between cost of manufacture and contract price.
    2. Damages—where contract is for sale and not for manufacture. Whére there is a contract merely for the sale and not for its manufacture, the measure of damages for a breach thereof is the difference between the contract price and the market price.
    3. Sales—construction of contract. A contract will be construed to be for the sale of beer to be manufactured by the seller where the seller is a brewer and the contract stipulates that it may be suspended if the seller is “prevented or hindered in carrying out its provisions by the partial or total destruction of its plant.”
    Error to the Municipal Court of Chicago; the Hon. Henry C. Beitler, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed December 11, 1912.
    Winston, Payne, Sirawn & Shaw, for plaintiff in error; John C. Slack, of counsel.
    Harry A. Daugherty, for defendant in error.
   Mr. Justice Baume

delivered the opinion of the court.

This was an action in the Municipal Court by the George J. Cooke Company, a corporation, defendant in error, against Peter Hell, plaintiff in error, to recover damages for the alleged breach by plaintiff in error of the following contract:

“For and in Consideration of One Dollar ($1.00) in hand paid by each of the parties hereto to the other, the receipt of which is hereby mutually confessed, the Geo. J. Cooke Co., a legal Illinois corporation, party of the first part, sells and Peter Hell, of Chicago, Cook County, Illinois, party of the second part, buys One Thousand barrels of beer, to-wit:

"1st. All of said beer shall be delivered by said first party to the place of business of said second party at 2384, 115th St. (Kensington), Chicago, Illinois, and to no other place, and none of said beer shall be sold or otherwise disposed of by said second party in the original packages.

‘ ‘ 2nd. All beer delivered hereunder shall he of good and merchantable quality and shall be delivered as said second party may from time to time direct, except that no deliveries shall be made on Sundays or legal holidays, and that all of said beer shall be delivered and taken within and during the period of time beginning July 23rd, 1907, and ending July 23rd, 1909. Time is of the essence of this Contract.

“It is agreed and understood by and between the parties hereto that no less than 8 barrels and no more than 25 barrels of the said beer shall be delivered and taken during each week of the period of time herein-before mentioned.

“3rd. Said second party agrees to pay said first party for all beer delivered hereunder at the rate of market price, per barrel, net cash on delivery, excepting that said second party agrees to pay as much more for each barrel delivered hereunder, over and above the price herein mentioned, as the United States Government tax may be increased over and above $1.00 per barrel.

“4th. It is agreed and understood by and between the parties 'hereto that the performance of this Contract may be suspended if the said first party is prevented or hindered in carrying out its provisions by the partial or total destruction of its plant, machinery or equipment by fire, action of the elements or accident, or by strikes or lockouts, or if said second party is prevented or hindered in disposing of said beer, by fire or other damage to the premises used by him for that purpose; it being understood, however, that such suspension shall continue only during the existence of such disability or hindrance, and provided that either party may declare the Contract annulled if any such disability or hindrance continues for a period of six months or more.

. ‘ ‘ 5th. It is further and especially agreed by and between the parties hereto, that in the event that either party fails to perform any and all of the provision's of this Contract, the party so failing will pay to the other party, as agreed and liquidated damages for such failure, the sum of $2.00 for each and every barrel of beer herein contracted for, which at the time of such failure has not been delivered.

"6th. This Contract may be assigned by said second party only with the consent of said first party, endorsed in writing hereon.

“For the faithful performance of this Contract by the second party, first party agrees to allow second party about the first day of each month, fifty cents (50c) per barrel for each and every barrel sold as above provided by second party during the previous month.

“In witness whereof, said first party had caused these presents to be executed on its behalf by its duly authorized agent, and said second party has hereunto set our hand and seal this 17th day of July, 1907.

George J. Cooke, Co.,

By Geo. J. Cooke, Pres.

Peter Hell (Seal.)

“Signed, sealed and delivered in the presence of J. A. Flanigan.”

A trial by jury resulted in a verdict and judgment against plaintiff in error for $971.25.

During the month of August, 1907, and up to September 17 following, defendant in error delivered to plaintiff in error 75 barrels of beer which was paid for by plaintiff in error according to the terms of the contract. Thereafter plaintiff in error refused to order or to accept the delivery of any more beer from defendant in error under claim of a right to rescind and repudiate the contract.

The rule as to the measure of damages adopted by the court below was the difference between the cost per barrel of manufacturing and delivering the beer and the contract price, which was market price.

It is urged on behalf of plaintiff in error that the contract in question should properly be construed as a contract for the sale of beer merely and not as a contract for the sale of beer to be manufactured by defendant in error, and that the rule which should have been adopted as to the measure of damages is the difference between the contract price and the market price, and that as the price stipulated in the contract was the market price defendant in error was not in any event entitled to recover more than merely nomi'nal damages.

In Wolf v. George J. Cooke Co., No. 13,464, opinion filed in this court, Nov. 22,1907, not reported, wherein the contract involved was precisely like the contract in the case at bar in the particular in question, it was said: ‘ The contract shows by its terms that the beer was to be manufactured by the plaintiff, and the plaintiff was entitled to recover the difference between the cost of manufacture and the contract price.” We are in accord with the conclusion announced in the Wolf case.

The fourth clause of the contract, whereby it is provided that the contract may be suspended if defendant in error is “prevented or hindered in carrying out its provisions by the partial or total destruction of its plant,” etc., taken in connection with the fact that defendant in error was known to be engaged in the manufacture of beer, unmistakably implies that the beer contracted to be sold was to be manufactured by it. The contract in effect provides for the suspension of its performance in the event that defendant in error “ is prevented or hindered” from manufacturing the beer, it thereby' agrees to sell. If the contract had been merely for the sale of beer generally of good and merchantable quality the parties would doubtless have incorporated in the • contract a provision for its suspension in the event, also, that defendant in error was unable to procure such beer.

If it be conceded that some of the beer delivered by defendant in error to plaintiff in error was not of the quality contracted for, and that plaintiff in error would have had the right to return such portion of said beer and to have rescinded the contract, if it appeared that defendant in error delivered an inferior quality of beer under circumstances indicating an intention on its part to avoid the contract, the evidence discloses that plaintiff in error did not return any beer to defendant in error, and further discloses a purpose on the part of plaintiff in error to repudiate the contract at the instigation of a competitor of defendant in error, even though defendant in error had delivered beer of the quality required by the contract.

Upon the issues of fact involved the verdict of the jury is not contrary to the manifest weight of the evidence, and the record is free from any prejudicial errors of law.

The judgment is affirmed.

Judgment affirmed.


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    G. C. Dent, Defendant in Error, v. J. E. Sexsmith, Plaintiff in Error.
    Gen. No. 16,840.

      Damages—breach of building contract. Where defendant repudiates a building contract by the terms of which he was to pay plaintiff upon presentation of an architect’s certificate, plaintiff may treat the contract as rescinded and recover reasonable value of work and material without such certificate.
    Error to the Municipal Court of Chicago; the Hon. Mancha Bbuggembyeb, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed December 11, 1912.
    Elmer H. Adams, Dwight S. Bobb and Asa G. Adams, for plaintiff in error.
    Stedmah & Soelke, for defendant in error.
   Mr. Justice Baume

delivered the opinion of the court.

On December 6, 1909, defendant in error, a building contractor, entered into a written contract with plaintiff in error, the owner of certain premises in Chicago, for the construction of an apartment building for $4,288.00. The contract provided that the work should be started at once and pushed to completion as rapidly as the weather conditions would permit. In other respects, the provisions of the contract conformed with the provisions ordinarily contained in building contracts. Immediately after the making of the contract, defendant in error did all or nearly all the excavating for the walls, and contracted for material, some of which was delivered at the premises. About the middle of December defendant in error was obliged to quit work, because of the inclemency of the weather, and thereafter did no further work under the contract. Based upon his claim that plaintiff in error had refused to permit him to do any further work and had repudiated the contract, defendant in error brought suit in the Municipal Court to recover for labor and material performed and furnished under the contract, for necessary expenses incurred by reason of the alleged repudiation by plaintiff in error of the contract, and for loss of profits occasioned thereby. A trial by the court resulted in a finding and judgment against plaintiff in error for $185. No recovery was allowed defendant in error for loss of profits, because he had neglected to procure a permit from the municipal authorities for the construction of the building.

The evidence bearing upon the question whether or not defendant in error ceased further work for some reason personal to himself or was directed by plaintiff in error to do no further work under the contract is conflicting, but a consideration of such evidence impels us to the conclusion that the claim of defendant in error in that regard was substantially established and that the conduct of plaintiff in error amounted to a repudiation by him of the contract. The attendant facts and circumstances, which are not necessary to be here detailed, are strongly corroborative of the claim of defendant in error in that regard.

It is not seriously urged that if a recovery may be had the damages awarded are excessive, but it is insisted that the procurement by defendant in error of the architect’s certificate was a condition precedent to his right to recover. By the terms of the contract payment for work and material was only required to be made by plaintiff in error upon presentation of the architect’s certificate, but as such contract was abrogated and repudiated by plaintiff in error without fault of defendant in error, the latter may treat the contract as rescinded, and recover the reasonable value of the work and material and the money necessarily expended by him without such architect’s cértificate. Bonnet v. Glattfeldt, 120 Ill. 166.

There is no error in the record and the judgment is affirmed.

Judgment affirmed.


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    Claim of Barbara Lennartz, v. Estate of Peter Popp, deceased. On Appeal of Barbara Lennartz, Appellant, v. Estate of Peter Popp, deceased, Appellee.
    Gen. No. 16,848.
    1. Acknowledgment-—evidence insufficient to impeach. In a proceeding against the estate of a deceased trustee to obtain damages for a wrongful release of a trust deed, on an issue whether the release was forged, a son of the decedent identified a photograph as that of his father but did not testify that it was a correct likeness at the time an acknowledgment of the release was made. It was a custom of the decedent in regard to acknowledgments to go to a certain notary at the place where the notary in question was employed. Such notary testified in the probate court, six years after the transaction, that he was employed at such place and that he was not acquainted with the releasor, but had a recollection of meeting with a man by that name, that he could not identify him from the photograph, that he had no independent recollection of the transaction and that it was his name signed to the acknowledgment. Held, the evidence was insufficient to impeach the certificate of acknowledgment.
    2. Courts—when former decision will control. Where on a former appeal the same evidence as to the liability of a trustee in a deed of trust, who is alleged to have wrongfully released the deed, was considered as is offered in the case at bar, together with evidence as to the insolvency of the makers of the secured note, the decision on such appeal will control, even though there is no evidence in the case at bar tending to show the insolvency of the makers of the note.
    3. Mortgages—wrongful release by trustee. In a proceeding by the holder of a secured note to obtain damages from a trustee alleged to have wrongfully released a deed of trust, evidence tending to show the insolvency of the makers of the note is not necessary to establish a prima facie right of recovery, but is relevant and material merely upon the question of the measure of damages.
    . 4. Mortgages—evidence inadmissible to show absence of release. In a proceeding by the holder of a secured note to obtain damages from a trustee in a deed of trust alleged to have wrongfully released the deed, on an issue that the release was a forgery, evidence of the deceased trustee’s son as to his father’s custom in going to a certain notary with regard to acknowledgments is not admissible.
    5. Mortgages—burden of proving wrongful release. In an action by the holder of a secured note for damages for an alleged wrongful release of the deed of trust, on proof of a prima facie case the burden does not shift and an instruction that the plaintiff must prove his case by a preponderance of evidence is proper.
    6. Mortgages—when instruction assuming consent to release is improper. Where a holder of a secured note sues for damages for a wrongful release of the deed of trust and there is no evidence that plaintiff consented to a release of the deed, an instruction that if the jury find that plaintiff consented to the execution of the release there can be no recovery assumes evidence of such fact and is improper.
    Appeal from the Circuit Court of Cook county; the Hon. Merritt W. Pinckney, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1910.
    Reversed and remanded.
    Opinion filed December 11, 1912.
    F. P. Read and Charles F. Vogel, for appellant.
    Lackner, Butz & Miller, for appellee.
   Mr. Justice Baume

delivered the opinion of the court.

In 1898 the appellant, Barbara Lennartz, filed her claim in the Probate Court of Cook county against the Estate of Peter Popp, deceased, appellee, for damages sustained by reason of the alleged wrongful execution and delivery by said deceased of a certain release of a certain deed of trust from Nora and Bernhard Behrend to said deceased, as trustee, securing a note for $3,500, owned and possessed by said appellant, which note was alleged to be due ■and unpaid. From the judgment of the Probate Court allowing said claim against said estate in the sum of $2,990, as of the 7th class, appellee prayed an .appeal to the Circuit Court where the third trial had before a jury in February, 1910, resulted in a verdict in favor of appellee and judgment against appellant for costs, to reverse which judgment this appeal is prosecuted.

Upon a former appeal from a like judgment entered by the Circuit Court upon a directed verdict for appellee, such judgment was reversed and the cause remanded. Lennartz v. Estate of Peter Popp, 118 Ill. App. 31.

The following documentary evidence was offered by appellant and admitted:

1. A note for $3,500, executed by Nora and Bern-hard Behrend, bearing date May 2,1892, payable on or before five years after date to the order of appellant with interest at 6%, payable semi-annually. Which note bore indorsements showing payment of interest to May 2, 1893, May 2, 1894, and May 2, 1895, and a further indorsement as follows: “$135. Pd.”

2. A trust deed bearing date May 2, 1892, executed and acknowledged by Nora and Bernhard Behrend, conveying certain described premises to Peter Popp, trustee, to secure the payment of said note for $3,500. Said trust deed was duly recorded and contains a provision as follows:

“When note and all expenses under trust deed shall be fully paid, grantee, his successor or legal representative, shall re-convey premises remaining unsold to grantors, their heirs or assigns.”

3. A certified copy, in lieu of the original, of a release bearing date May 9, 1893, signed “Peter Popp, (Seal), Trustee,” purporting to be acknowledged before William D. Palmer, a notary public, on July 20, 1893, recorded August 21, 1893, releasing to said Nora and Bernhard Behrend all right, title, etc., he, Peter Popp, had acquired by and through the said trust deed to the therein described premises.

4. A warranty deed duly executed and acknowledged by Nora and Bernhard Behrend on December 23, 1893, recorded December 26, 1893, conveying the same premises to Johanna Quilty for $5,600, subject to a prior incumbrance of $3,000, which said grantee thereby assumed and agreed to pay as part of the consideration.

Appellant sought to recover as damages the difference between $5,600, the selling price of the land, and $3,000, the amount of the incumbrance assumed by the purchaser, being $2,600, together with interest thereon at 5% from January 1, 1896.

On behalf of appellee the executors filed their verified plea denying the execution by Peter Popp of the release in question.

Three defenses to the claim of appellant are interposed by appellee: First, that the alleged release was a forgery; second, that if it was not a forgery, it was executed with appellant’s consent; third, that even if it was not executed with appellant’s consent, appellant on this record has proved no damages.

The evidence in support of the defense that the release was a forgery is, in substance, as follows: William A. Popp, a son of Peter Popp, testified that his father died December 5,1896; that for thirty-five years prior to his death his father was engaged in the grocery business at No. 543 S. Halsted street; that the photograph shown him was a photograph of his father taken about three years before his death; that Palmer, the notary public, had died since the hearing on the claim in the Probate Court; that the photograph was shown to Palmer when he then testified as a "witness; that his father’s custom in regard to acknowledgments was to go to a notary by the name of Novak and have his papers fixed up; that Palmer was a salesman at Atwood’s clothing store on the corner of Madison and Clark streets; that so far as he knew his father never went to Atwoods to trade, but traded with customers who traded with him.

There was read at the trial a transcript of the testimony of William D. Palmer upon the hearing in the Probate Court. He then testified that he was and had been for sixteen years employed by Atwood as a clothing salesman; that he was a notary public; that he was not acquainted with Peter Popp, but had an indistinct recollection of meeting with-a man who gave his name as Popp; that it was a new name to him. Upon being shown the photograph of Peter Popp and being asked, “Did you ever see that man?” the witness replied, “I do not think I ever saw that man. I think that was another man that made the acknowledgment.” He further testified: “I cannot say that I have any recollection of it. I am pretty clear about the face, and I am pretty sure I never saw the man. Don’t remember of having seen him. I acknowledged deeds at that time on an average of once a month. Did not know Popp. My custom as to taking acknowledgments of people that I'did not know was that they were to bring somebody I knew, or sometimes I would ask them, ‘Have you any bank book with you or any letters in your pocket.’ I have no recollection about this incident, whether he brought an acquaintance with him. Have been a notary public about twenty-five, perhaps thirty years. I think I know Mr. Behrend. I do not doubt the signing. My name on it, I guess, is correct. ’ ’

It is insisted by appellant that the foregoing evidence is insufficient to warrant a finding that the instrument in question was not signed by Peter Popp, and to impeach the notary’s certificate of acknowledgment.

The original instrument having been lost or destroyed the signature thereon purporting to be the signature of Peter Popp is not in evidence, and the testimony of witnesses usually available in such cases as to the genuineness of the original signature is absent from the record.

It is the established rule that the certificate of the acknowledgment of a deed cannot be impeached except for fraud; that to justify such impeachment the evidence must be clear and convincing—some of the cases say beyond a reasonable doubt; and it has also been held that such certificate cannot be impeached by the testimony of a party purporting to have been made the acknowledgment, even though such testimony be slightly corroborated. Russell v. Baptist Theological Union, 73 Ill. 337; Brady v. Cole, 164 Ill. 116; Sassenberg v. Huseman, 182 Ill. 341; Gritten v. Dickerson, 202 Ill. 372; Spencer v. Razor, 251 Ill. 278.

The evidence of William D. Popp is of little, if any, probative value in determining the issue involved. He identifies the photograph in evidence as being a photograph of his father, but does not testify that the photograph was a- correct likeness of his father at the time the acknowledgment in question purports to have been made.

It will be observed that the testimony of Wm. D. Palmer, the notary public, was given nearly six years after the acknowledgment in question purports to have been made, during all of which time his attention does not appear to have been called to the transaction. He did not deny that he did not sign and affix his seal to the certificate of acknowledgment. While he stated that he was not acquainted with Peter Popp, he further stated that he had an indistinct recollection of meeting a man who gave his name as Popp. His examination of the photograph merely failed to refresh his recollection that he had ever seen Popp, or rather operated to raise a doubt in his mind upon that question. He appears to have had no recollection concerning the transaction itself.

The evidence is wholly insufficient to warrant a verdict impeaching the certificate of acknowledgment for fraud.

There is no evidence whatever bearing upon the second ground of defense, viz., that appellant consented to the execution of the release by the trustee.

The decision of this court upon the former appeal, (118 Ill. App. 31), wherein the same evidence, together with some additional evidence tending to show the insolvency of the makers of the note, was considered by the court, must be held to be the law of the case. Zerulla v. Supreme Lodge, 223 Ill. 518. It was held upon the former appeal that the evidence in the case prima facie entitled appellant to recover; that the trustee at his peril was bound to know that the indebtedness to appellant was paid before he executed a release of her security; and a trustee who unwarrantably releases the lien of his trust deed is liable to his principal for the damages which necessarily flow from his wrongful act.

Appellee insists that the decision upon the former appeal is not controlling upon the present appeal, because the record now before the court contains no evidence tending to show the insolvency of the makers of the note. Such evidence was and is not necessary to establish a prima facie right of recovery in appellant, but is relevant and material merely upon the question of the measure of damages.

In a former proceeding to foreclose the trust deed, instituted by appellant against Mrs. Quilty, who purchased the premises after the release in question had been recorded, the bill filed by appellant was dismissed by the Circuit Court for want of equity and the decree, so dismissing said bill was affirmed by this court in Lennartz v. Quilty, 92 Ill. App. 182. From such judgment of this court appellant prosecuted her appeal to the Supreme Court, where such judgment was affirmed. Lennartz v. Quilty, 191 Ill. 174. It was there said: “The release of the trust deed securing the note of appellant by Popp, the trustee, was unauthorized, for the reason that the note was not paid."

Counsel for appellee asked the witness, William A. Popp, “What was your father’s custom, if you know, in regard to acknowledgments of such instruments as he acknowledged?” and over the objection of appellant the witness answered, “There was a notary by the name of Novak, and he used to go to him and have his papers fixed up. ” It is insisted by appellant that this evidence did not tend to prove that Peter Popp did not execute and acknowledge the release before the notary, Palmer, and was improperly admitted. As supporting the competency of the evidence, appellee cites Travers v. Snyder, 38 Ill. App. 379, where it was held competent to show the hahits of Snyder in regard to giving his notes, but it was further said that the inquiry should have been confined to the general reputation of Snyder in that regard. The case is an authority in favor of the admissibility of the evidence here involved. That Popp may have usually gone to Novak to take his acknowledgments and have his papers fixed, up did not tend to show that the trust deed in question was not acknowledged by him before Palmer. Appellant’s objection to the question should have been sustained.

It is urged that by several instructions given at the instance of appellee the jury were improperly informed that it was incumbent upon appellant to prove her case by a preponderance of the evidence. Appellant says, in substance, that having made a prima facie case by making proof of the execution and delivery by Peter Popp of the release, and of the nonpayment of the note secured thereby, the burden of proof was shifted to appellee to prove its case by a preponderance of the evidence. This is not an accurate statement of the law proper to be embodied in an instruction relative to the burden of proof. The true rule is announced in Egbers v. Egbers, 177 Ill. 82, as follows: “Generally speaking, the burden of proof, in the sense of the duty of producing evidence, passes from party to party as the case progresses, while the burden of proof, meaning the obligation to establish the truth of the claim by a preponderance of evidence, rests throughout upon the party asserting the affirmative of the issue, and unless he meets this obligation upon the whole case he fails. This burden of proof never shifts during the course of a trial, but remains with him to the end.” See also Chicago Union Traction Co. v. Mee, 218 Ill. 9.

In this case, the burden was upon appellant to show by a preponderance of the evidence that the release in question was wrongfully executed and delivered by the trustee. ■

At the instance of appellee the court gave to the jury the following instruction:

“Even though you should find from the evidence that the deceased, Peter Popp, executed and delivered the release in question, yet if you should also find that said release was executed with the consent of the claimant, Barbara Lennartz, then your verdict should be in favor of Peter Popp, deceased.”

This instruction necessarily assumes that there is some evidence in the record tending to show that the release was executed with the consent of appellant. There is not a scintilla of evidence tending so to show and the instruction was, therefore, improper and should have been refused.

If we were persuaded by a consideration of the competent evidence in the record that the judgment of the Circuit Court accomplished substantial justice between the litigants, we should be disposed to affirm such judgment, notwithstanding the errors of law upon the trial, but we are not so persuaded, and it becomes our duty to reverse the judgment and remand the case for another trial.

Accordingly, the judgment is reversed and the cause remanded.

Reversed and remanded.


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    City of Chicago, Defendant in Error, v. J. W. Shreffler, Plaintiff in Error.
    Gen. No. 16,855.
    1. Municipal corporations—nature of action on ordinance. An action by a city to recover a penalty for the violation of an ordinance is a civil suit.
    2. Municipal corporations'—complaints in action on ordinance may be amended. An action by a city to recover a penalty for resisting a police officer, in violation of Municipal Code of Chicago, § 1772, being a civil action, the complaint may be amen'ded while a motion for a new trial is pending and being heard.

      3. Municipal corporations—sufficiency of complaint for violating ordinance. A complaint for resisting a police officer in violation of Municipal Code of Chicago, § 1772, is sufficient if the offense is set forth substantially in the language of the ordinance; it is neither necessary nor proper to plead the evidence.
    Error to the Municipal Court of Chicago; the Hon. Edwin K. Walker, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed December 11, 1912.
    R. E. Cantwell, for plaintiff in error.
    George H. White, for defendant in error; Henry M. Seligman, of counsel.
   Mr. Justice Baume

delivered the opinion of the court.

This writ of error is prosecuted to reverse a judgment of the Municipal Court against plaintiff in error for $50, debt, for the violation hy him of section 1772 of the Revised Municipal Code of Chicago, which judgment was predicated upon the verdict of a jury.

The original complaint filed July 5, 1910, and verified hy John Tracy, a police officer, charged plaintiff in error with the entire catalogue of offenses enumerated in said section 1772, including the offense of resisting an officer in the discharge of his duty. When the case came on for trial on August 4, 1910, the complaint was amended hy leave of court, and as so amended charged that plaintiff in error at the City of Chicago did resist an officer of said city, while in the discharge of his duty, in violation, etc. On August 13, 1910, after verdict and while a motion for a new trial was pending and on hearing leave was given defendant in error to file an amended complaint charging that plaintiff in error on July 5, 1910, did resist John Tracy, who was then a police officer of the City of Chicago, while he was in the act of arresting plaintiff in error for disorderly conduct, etc.

It is insisted that the complaint, as originally filed and as first amended at the hearing, was fatally defective and insufficient, and that defendant in error was improperly permitted to file an amended complaint after verdict and before judgment. The argument of plaintiff in error proceeds upon the erroneous theory that this was a criminal proceeding. An action by a city to recover a penalty for the violation of an ordinance is a civil suit and not a criminal proceeding. City of Chicago v. Knobel, 232 Ill. 112; City of Chicago v. Streeter, 152 Ill. App. 463.

In the exercise of its sound judicial discretion a court is authorized to allow amendments to be made in a civil suit at any time before final judgment. Rev. Stat. 1911, Chap. 7, sec. 2, and Chap. 110, sec. 39; Harrison v. People, 81 Ill. App. 93. There was no abuse of such judicial discretion in this case.

The offense charged was set forth in the complaint substantially in the language of the ordinance. It was neither necessary nor proper to plead the evidence.

There is no error in the record and the judgment is affirmed.

Judgment affirmed.


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    City of Chicago, Defendant in Error, v. Dunham Towing & Wrecking Company, Plaintiff in Error.
    Gen. No. 16,861.
    1. Municipal cobpobations—action to recover penalty. An action by a city to recover penalty for the violation of a smoke ordinance is a civil and not a criminal proceeding.
    2. Municipal cobpobations—smoke ordinance exercise of police power. Section 17 of an ordinance entitled “An ordinance providing for smoke inspection and abatement in the City of Chicago,” is a valid exercise by the city of its police powers.
    Error to the Municipal Court of Chicago; the Hon. Max Ebekhabdt, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed December 11, 1912.

      M. F. Sullivan and Albert M. Cross, for plaintiff in error.
    George H. White, for defendant in error; Henry M. Seligman, of counsel.
   Mr. Justice Baume

delivered the opinion of the court.

This was a suit instituted by defendant in error against plaintiff in error in the Municipal Court to recover a penalty for the alleged violation by plaintiff in error of section 17 of an ordinance-of the City of Chicago entitled, “An Ordinance providing for smoke inspection and abatement in the City of Chicago.” A trial by jury resulted in a verdict and judgment against plaintiff in error for $25, to reverse which judgment this writ of error is prosecuted.

Most of the errors assigned are predicated upon the insistence, that this is a criminal proceeding. It, therefore, becomes necessary to again say that a suit to recover a penalty for the violation of an ordinance is a civil and not a criminal proceeding. City of Chicago v. Knobel, 232 Ill. 112. The last expression of the court upon that subject in City of Chicago v. Williams, 254 Ill. 360, is as follows: “A suit by a city or village to recover a penalty for the violation of an ordinance is a civil suit and the rules applicable to criminal procedure have no application thereto.”

It is further urged that the section of the ordinance here involved is unreasonable and therefore invalid. The enactment of a somewhat similar ordinance was held, in Harmon v. City of Chicago, 110 Ill. 400, to be a valid exercise by the city of its police powers, and the precise ordinance here involved was held to be valid in City of Chicago v. Dunham Towing & Wrecking Co., 161 Ill. App. 307.

It would serve no useful purpose to restate the grounds upon which the validity of the ordinance in question may be sustained. The judgment of the Municipal Court is affirmed.

Judgment affirmed.


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    William A. Dudleston, Appellee, v. City of Chicago Heights, Appellant.
    Gen. No. 16,869.
    1. Municipal cobpobations—use of defective sidewalk. The fact that plaintiff knows of the defective condition of a sidewalk does not constitute his walking thereon negligence as a matter of law.
    2. Municipal cobpobations—notice to city of injury may he read to jury. In an action for injuries from defective sidewalk, it is not error to permit a statutory notice given to the city to he read to the jury.
    3. Evidence—expert testimony as to cause of injury. In an action for injuries from á defective sidewalk, it is not error to ask a physician if the injury could have resulted from turning an ankle on a bad sidewalk, where the manifest purpose of the question is to ascertain from the witness, as an expert, whether or not the injury complained of might or could have so resulted.
    Action in ease for personal injuries. Appeal from the City Court of Chicago Heights; the Hon. Homes Abbott, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed December 11, 1912.
    George A. Brinkmah, for appellant.
    Craig A. Hood, for appellee.
   Mr. Justice Baume

delivered the opinion of the court.

Appellee recovered a verdict and judgment against appellant in the City Court of Chicago Heights for $300 as damages for personal injuries alleged to have been occasioned by the failure of appellant to exercise reasonable care to maintain a certain board sidewalk in reasonably safe condition for travel thereon.

The declaration charges that appellant negligently permitted said sidewalk to be and remain in bad and unsafe repair and condition, and divers of the planks wherewith the said sidewalk was laid to be loose and insecurely fastened, and the stringers upon which said planks were so laid to be left without their coverings of planks and to be and remain rotten, by means whereof appellee, who was then and there passing along and upon the said sidewalk in the exercise of ordinary care for his own safety, then and there necessarily slipped and stumbled upon one of the said rotten stringers and was thereby caused to fall to the ground, etc.

The evidence introduced on behalf of appellee tends to show that one of the planks which rested upon the stringers at or near the end of the sidewalk in question was loose and detached from the stringers; that the stringers were decayed; that such condition of the sidewalk had existed about a month prior to the time appellee was injured; that while appellee was walking on that portion of the sidewalk early on the morning of December 2, 1909, when it was dark, he stepped on the loose plank and his foot went “through” and upon the stringer, whereby he was caused to fall and sprain his ankle and injure and bruise his leg; that by reason of the injuries so sustained by him he was unable to work for three weeks, during which time and up to the time of the trial in March, 1910, he suffered considerable pain and inconvenience. Upon these issues of fact it cannot be said the verdict of the jury is manifestly against the weight of the evidence.

No alleged variance between the declaration and the proof, as to the precise manner in which the injury was occasioned, was pointed out by appellant in the court below, and the question of a variance, if any, cannot be raised for the first time in this court.

The mere fact that appellee knew of the defective condition of the sidewalk did not constitute his walking thereon negligence on his part as a matter of law, as seems to be contended on behalf of appellant. City of Mattoon v. Faller, 217 Ill. 273; Wallace v. City of Farmington, 231 Ill. 232; Horaburda v. City of Chicago, 154 Ill. App. 627; Czerniak v. City of Chicago, 161 Ill. App. 360.

It was not error to permit to be read to the jury the notice required by section 2 of An Act Concerning suits for personal injuries against cities, villages and towns. It was incumbent upon appellee to both aver and prove the giving of such notice. Ouimette v. City of Chicago, 242 Ill. 501. The notice is in substantial accord with the requirements of the statute, and was proper to go to the jury. If appellant conceived that it might be prejudiced by the statement appearing in the notice, it could have obviated the necessity on the part of appellee of making the proof by stipulating that the required statutory notice had been given in apt time.

Dr. Cord was asked whether the injury to appellee could have resulted from turning his ankle on a bad sidewalk, and answered, “It could.” It is said that this was equivalent to permitting the witness to say that the sprain which the plaintiff suffered in his ankle was caused by the bad condition of the sidewalk. The reference in the question to a “bad sidewalk” was improper, but we do not interpret the question and answer as amounting to a statement by the witness that the sprain was in fact caused by the bad condition of the sidewalk. The manner in which the injury was occasioned is not directly controverted, and it is clearly established that the sidewalk was in bad condition. The manifest purpose of the question was to ascertain from the witness as an expert whether or not the injury complained of might or could have resulted from the act of appellee in turning his ankle on the sidewalk in the manner testified to by him, and as so understood the question was .not improper. Chicago City Ry. Co. v. Foster, 226 Ill. 288. Appellant was not prejudiced by the form of the question.

Four instructions were given at the instance of appellee and appellant tendered thirty instructions, of which the court gave eleven and refused nineteen. The questions of law involved were few and simple and there was no occasion for the tendering by appellant of such a multitude of instructions. Taken as a whole, the instructions given by the court cover every possible phase of the questions properly involved, and are not prejudicially erroneous.

While the amount awarded as damages is liberal, it is not so excessive as to warrant interference by us.

There is no reversible error in the record and the judgment is affirmed.

Judgment affirmed.


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    Mamie Johnson, Appellee, v. The Supreme Court of the Independent Order of Foresters, Appellant.
    Gen. No. 16,897.
    Fraternal insurance—"burden of proof. In an action on a benefit certificate, where the defense is that the insured in his application untruthfully stated that he had never had inflammation of the lungs, the burden of proof is on defendant to establish its defense by a preponderance of the evidence.
    Appeal from the County Court of Cook county; the Hon. W. A. Wall, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed December 11, 1912.
    Charles J. Kavanagh for appellant; G. A. Harper, of counsel.
    Thurman, Stafford, Hume & Burras, for appellee.
   Mr. Justice Baume

delivered the opinion of the court.

This is a suit instituted in the County Court by appellee against appellant to recover the amount of a benefit certificate issued by appellant to George Johnson, the father of appellee, wherein a trial by jury resulted in a verdict and judgment against appellant for $500.

The application of the insured for membership in the appellant order bears date June 14, 1907, and the benefit certificate issued to the insured by appellant bears date July 4, 1907. The insured died April 25, 1908.

The main defense interposed by appellant is that the insured in his application for the benefit certificate untruthfully answered “No” to the question whether he had ever had inflammation of the lungs.

Appellant sought to show by Dr. Maguy, a physician who attended the insured in 1900, that the insured was then ill with pneumonia, and the witness so testified on his direct examination, but on cross-examination, when his recollection had been refreshed by reference to a paper signed by him, he testified that when the insured “was first taken sick it started with grippe like, and it got settled on his lungs; he started to cough and so on, and he was sick about a week and a half or two;” that he did not think the insured was affected with anything more than grippe.

Bessie Connors, the stepdaughter of the insured, testified that upon the occasion of the insured’s illness in 1900, she heard his attending physician tell him he had penumonia, and that she heard the insured say on one occasion that he had pneumonia.

Upon a consideration of the testimony of Dr. Maguy, taken in its entirety, the jury were not unwarranted in concluding that the illness with which the insured was affected in 1900 was grippe and not pneumonia. The testimony of the witness, Bessie Connors, was not calculated to strengthen appellant’s case. She was only ten years of age at the time the insured was ill and when she claims to have heard the insured and his attending physician make certain statements to the effect that the insured had pneumonia. Thereafter, and prior to the death of the insured, the mother of the witness and the insured had ceased to live together as husband and wife, and the witness was evidently not friendly to the insured, or to his daughter, the appellee.

The burden was upon appellant to establish its defense by a preponderance of the evidence and this it failed to do.

The record is not free from errors of law, hut as appellee is clearly entitled to recover, upon the competent evidence in the record, the judgment should not be reversed for such errors of law, which could not have appreciably operated to the prejudice of appellant.

The judgment is affirmed.

Judgment affirmed.


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    Mary E. Keenan, Defendant in Error, v. Max Goodman, Plaintiff in Error.
    Gen. No. 17,346.
    1. Forcible entry and detainer—must be reasonable demand for specific amount. Where premises were leased under a written agreement acknowledging receipt of rent for the full term and providing that if plaintiff should convey the premises to defendant before the expiration of the lease under a contract of sale then existing, defendant should receive credit on the purchase price for the amount paid for rent, taxes, repairs, etc., plaintiff, having made demand between 9 and 10 o’clock p. m. for immediate possession, defendant having refused to accept a warranty deed and complete the purchase, plaintiff cannot maintain forcible entry and detainer, since such demand was unfair and not for a specific amount then ascertained.
    2. Forcible entry and detainer—where time is not of the essence of the contract, vendor must place purchaser in statu quo. Where a purchaser refuses to complete the terms of a contract of sale on demand, time not being of the essence of the contract and there being no provision that the money paid should be forfeited, the vendor cannot rescind and maintain an action in forcible entry and retainer without first placing defendant in statu quo.

    3. Forcible entry and detainer—when defendant refuses to complete contract of purchase. An action in forcible entry and detainer cannot be maintained upon defendant’s refusal to complete a contract of purchase where he is in possession of the premises under an unexpired lease from plaintiff with rent fully paid.

      Error to the Municipal Court of Chicago; the Hon. Chabies A. Williams, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1911.
    Reversed.
    Opinion filed December 11, 1912.
    J. G. Grossberg and George M. Weichelt, for plaintiff in error.
    Patrick J. O’Shea, for defendant in error.
   Mr. Justice Baume

delivered the opinion of the court.

This writ of error is prosecuted by Max Goodman to review the record of a proceeding in forcible entry and detainer instituted against him in the Municipal Court by Mary E. Keenan, wherein, upon a trial by the court without a jury, plaintiff in error was found guilty of unlawfully withholding the possession of the premises involved from defendant in error and judgment was entered on such finding and for costs against plaintiff in error.

On March 9,1909, a written agreement was executed by Saul G. Lurie and George J. Keenan; the husband of defendant in error. This agreement recites that Lurie agrees to purchase, and George J. and Mary E. Keenan agree to sell and convey certain described premises in Cook County, Illinois, for $7,000; that Lurie has paid $200 as earnest money to be applied on the purchase when consummated, and agrees to pay within five days after title has been examined and found good, or accepted by him, the further sum of $800 at the office of Max Goodman, Chicago, provided a good and sufficient general warranty deed conveying to said Lurie a good and merchantable title to the premises shall then be ready for delivery; that “The balance shall be paid as follows: Subject to a first mortgage of $3,000.00 due in 4 years with interest at 5% per annum; to a second mortgage of $3,000.00 payable $600.00 in one, $600.00 in two and $600.00 in three years respectively and $1,200.00 in four years with interest at the rate of 5Yzfo per annum payable semiannually. ’ ’

It is apparent from what subsequently develops in the course of the transaction that the incumbrance referred to as “a first mortgage of $3,000,” was one then existing upon the premises, and that the incumbrance referred to as “a second mortgage of $3,000,” was one to be executed by Lurie. The agreement contains certain other recitals and provisions not necessary to be here noticed.

Subsequent to the making of said agreement some question was raised as to the authority of George J. Keenan to act for his wife, who was the owner of the premises and who, as we understand from the record, was then and for sometime thereafter absent in Ireland, where she had refused to execute a deed which had been sent to her.

Lurie was the son-in-law of Goodman, the plaintiff in error, and the agreement above mentioned was made for the benefit of Goodman to whom the premises were to be conveyed by Lurie. After Mrs. Keenan had refused to execute a deed of the premises George J. Keenan, as agent for his wife,. on April 14, 1909, executed an instrument, whereby he agreed to.lease the same premises to Goodman at a rental of $25 per month for an “indefinite period,” or until such time as he should be able to deliver a deed properly executed.by himself and his wife to Lurie. This instrument further provided that, on delivery of such deed, the lease should become null and void, and the agreement with Lurie should become operative in all its terms with the exception that the three $600 instalments payable annually should be changed to monthly notes of $50 each; that Goodman should be allowed to make such alterations and improvements on the property as he might require at a cost of not to exceed $500; that*in the event of Keenan’s inability to deliver the deed to Goodman, he should reimburse Goodman the amount expended for improvements, but in the event of a properly executed deed being tendered to Goodman, the cost of such improvements should be borne by him; that Goodman should advance to Keenan $300 for one year’s rent, any unearned balance of'which amount should, upon the tender of a deed, be credited to Goodman qn the purchase money provided for in the contract with Lurie. Upon the Execution of this instrument, Goodman went into possession of the premises and paid to Keenan the $300 for rent in advance. Goodman thereafter paid the taxes for 1909, amounting to $68.18, and also made three semi-annual payments of interest of $75 on the first mortgage incumbrance.

On October 7, 1909, having become dissatisfied with the then existing arrangements, the parties entered into another and final agreement which was acquiesced in and ratified by Mrs. Keenan, as follows:

“This agreement, made by and between George J. Keenan and Mary E. Keenan, by George J. Keenan her agent and attorney in fact, parties of the first part, and Max Goodman, party of the second part, all of the City of Chicago, County of Cook and State of Illinois, is as follows:

“First: The premises known as No. 3145 W. 14th Place, Chicago, Illinois, otherwise known and described as Lot Thirty-eight (38), and the West Third (1/3) of Lot Thirty-nine (39) in Block Three (3), in Douglas Park Addition to Chicago, situated in Cook County, Illinois, are hereby leased by said first parties to the said second party for a period beginning May 1st, 1909, to and including the 30th day of April, 1911, for and in consideration of the sum of Six Hundred Dollars ($600.00), payable in monthly instalments of Twenty-five Dollars ($25.00) during each and every month.

“Second: If by or before the last named date said first parties shall procure and deliver, or tender, to the said second party a good and sufficient warranty deed conveying to said second party a merchantable title to the said premises, and otherwise carry out the terms of the contract dated March 9th, 1909, signed by said George J. Keenan and one Saul G. Lnrie, hereinafter referred to as the Lurie contract, (by the latter assigned to the said Max Goodman), then the said leasing shall become and be null and void, and the payments of rent heretofore made on said leasing shall apply on account of the purchase price named in said Lurie contract.

“It is understood that the said Lurie contract is hereby modified to the extent of the terms hereof, and also to the effect that in place of three (3) installments of Six Hundred Dollars ($600) each, the payments shall be in thirty-six (36) monthly installments of Fifty Dollars ($50.00) each, evidenced by promissory notes.

“Third: It is understood and hereby agreed that said Goodman has heretofore expended on repairs and improvements on said premises, the total sum of Four Hundred sixty-three Dollars and eighty-two cents ($463.82), and has advanced to said first parties in cash the sum of Three Hundred and Seventy-five Dollars ($375.00), making a total advanced and expended to the date hereof on the part of the said second party in and about the foregoing of Bight Hundred Thirty-eight and 82/100 Dollars ($838.82), of which said amount the sum of Six Hundred Dollars ($600.00) is hereby applied in full payment of rents payable in said lease to the end of the term thereof, and the payment of such rents in full is hereby acknowledged.

“Fourth: Should the said second party be dispossessed of the said premises prior to the expiration, of the term of said leasing, without fault or connivance on his part, then the unearned portion of said Six Hundred Dollars ($600.00) corresponding to the then unexpired term of said leasing shall, by the said party of the second part, be paid and refunded to the said first parties, together with the sum of Two Hundred Thirty-eight and 82/100 Dollars ($238.82), and such additional sum or sums as the said second party may hereafter pay on account of the interest, taxes and other carrying charges required for the maintenance of said premises, and to prevent default on the trust deed indebtedness now a lien on said property, and referred to in said Lurie contract, and also, amounts which he may hereafter advance for repairs on said premises not to exceed the sum of Thirty-six and 18/100 Dollars ($36.18).

“Fifth: Said party of the second part hereby binds himself to advance and pay all such interests, taxes, carrying charges and repairs as are named in the preceding paragraph.

“Sixth: The said George J. Keenan has contemporaneously herewith made and executed his promissory note in the principal sum of Five Hundred Dollars ($500.00), payable without interest, on May 1st, 1911, to the order of said Max Goodman, and it is understood and hereby agreed that if title to the said property shall be, within the term herein named, conveyed or tendered to the said second party under the conditions hereinabove named, then the said note shall become and be null and void, and shall be cancelled and surrendered 'to the said George J. Keenan. Otherwise, the said note shall be paid according to its terms, deducting therefrom, however, such credits as the said George J. Keenan may then be rightfully entitled to; and until so paid, said second party shall be entitled to retain possession of said premises at same rate of rental, which may be credited on said note.

Dated at Chicago, Illinois, this 7th day of October, A. D. 1909.

George J. Keehah (Seal)

Mart E. Keehah, by

George J. Keehah, her Atty. in fact and Agent. (Seal)

Max Goodmah. (Seal)

In December, 1910, after Mrs. Keenan had returned from Ireland, Goodman was notified that the parties were ready to execute and deliver a conveyance of the premises- and close the transaction. Defendant in error procured an abstract of title to the premises and submitted it to Goodman’s attorney, who made some objections, which were sought to be remedied. On December 24, 1910, the parties met in the office of Goodman’s attorney, where a deed, mortgage and notes were drawn, and the deed executed and acknowledged by defendant in error and her husband, and it was then understood that the transaction would be finally consummated on December 31st following. Thereafter, on several occasions defendant in error and her husband, sought an interview with Goodman with a view to closing the transaction, but for some reason not clearly apparent from the record were unsuccessful. On the night of January 17, 1910, defendant in error and her husband called at the residence of Goodman between 9 and 10 o’clock and tendered to Goodman a warranty deed of the premises and demanded from him his check for the amount due them. In response to such tender and demand Keenan testifies that, “Goodman only laughed and said he had bought a lemon, that I could not bluff him and told me to see his lawyer.' ’ Immediately thereafter upon the same occasion defendant in error and her husband delivered to Goodman a previously prepared written notice signed by them, declaring the contract of sale “null and void by reason of the failure and refusal” of Goodman to comply with its terms, demanding immediate possession of the premises. Based upon this notice suit in forcible entry and detainer was instituted by defendant in error against plaintiff in error two days later.

This judgment must be reversed for several reasons.

First. There was no demand by defendant in error upon plaintiff in error for the payment of any specific amount as due under the contract. While some inconsiderable amount may have bee'n due, it was then unascertained and no attempt appears to have been made to ascertain the correct amount.

Second. The demand, and notice was served upon plaintiff in error at an unseemly hour, when he had no reasonable opportunity to comply therewith. There was thus an attempt on the part of defendant in error to exercise the power of forfeiture unfairly and oppressively, and the mere failure of plaintiff in error to comply with the demand as made did not constitute a breach on his part.

Third. Strictly speaking, time is not of the essence of the contract. The contract contains no provision for the forfeiture by plaintiff in error of the money paid and advanced by him, as liquidated damages or as penalty, and defendant in error was not entitled to rescind without placing plaintiff in error in statu quo.

Fourth. The attempted rescission by defendant in error of the contract of sale having failed plaintiff in error continued to hold thereunder as a lessee with rent fully paid to the end of the term.

The judgment is reversed.

Judgment reversed.


author: Mr. Justice Graves

text:
    The People of the State of Illinois ex rel. Henry F. Good (Relator), Defendant in Error, v. Mary J. Hoxie (Respondent), Plaintiff in Error.
    Gen. No. 16,556.
    1. Guardianship—custody of ward. R. S. c. 64, § 4, providing that the guardian of a minor shall have, under court direction, custody, etc., of his ward, but that the parents, if competent to transact their own business, and .fit persons, are entitled to the custody of the person of the minor, is declaratory of the common law concerning the right to the custody of a child as between a parent and guardian.
    2. Guardianship—when fitness of father to have custody of child cannot he tried. The fitness of a father to have custody of his child cannot be tried in a proceeding for the guardianship of such child where the father was not in court or served with process or notice of the pendency of the petition.
    3. Habeas corpus—burden of proof. In habeas corpus by a father against a guardian for the custody of a child, the burden of proving the unfitness of the father to have such custody is on the guardian.
    4. Parent and child—presumption of fitness to have custody. Fitness of a parent to have custody of his child will be presumed unless unfitness is established by clear evidence.

      5. Habeas corpus—motion to amend return. In habeas corpus proceedings by the father against the guardian for the custody of ■the child, motion by the guardian to amend the return is properly denied where such amendments would introduce no new issues.
    6. Divorce—custody of children. .A father against whom the mother has secured a divorce is not precluded, after death of the mother, from asserting the right to custody of a minor child as against the maternal grandmother who has procured herself to be appointed guardian, where the divorce decree does not award absolute custody of the child to the mother, but awards the custody to each parent for definite parts of the year.
    7. Habeas corpus—contest between parent and guardian for custody of child is private suit. Where habeas corpus proceedings are brought by the father against the regularly appointed guardian for the custody of the child, it is to be regarded as a private suit and not as if the child were contending for release from unlawful restraint.
    8. Guardian and ward—when custody of ward not unlawful restraint. Though the father is entitled to the custody of his child, custody by a regularly appointed guardian of its person and estate is not such an unlawful restraint of the child’s liberty as to warrant the interference of the court by a common-law writ of habeas corpus.
    9. Parent and child—when parent entitled to custody. A determination is correct that the father is entitled to the custody of his child as against a regularly appointed guardian of its person and estate,. where there is no showing that the father is unfit to have such custody.
    10. Parent and child—when testimony of child as to preference will not reverse award of custody. In habeas corpus by a father. for the custody of his child against its guardian, testimony by the child as to its preference, though not necessarily pertinent, if error, will not reverse where it could not have influenced the determination of the issues.
    Habeas corpus. Error to the Circuit Court of Cook county; the Hon. Kickham Scanlan, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed December 11, 1912.
    Tenney, Coffeen, Harding & Sherman, for plaintiff in error.
    S. S. Page and Cecil Page, for defendant in error; John S. Lord, of counsel.
   Mr. Justice Graves

delivered the opinion of the court.

Kathryn Good is the daughter of Henry F. Good and Annie Hoxie Good. Her parents were divorced on the complaint of her mother. Her mother having died, plaintiff in error, her maternal grandmother, procured letters of guardianship of the person and estate of Kathryn to be issued to her from the Probate Court of Cook county. Shortly thereafter defendant in error instituted this proceeding in habeas corpus. The trial court awarded the custody of Kathryn to her father, defendant in error. This writ of error is prosecuted by the grandmother.

Plaintiff in error contends that by the decree of divorce the rights of defendant in error to the custody of Kathryn were forever cut off, and that plaintiff in error, as guardian, is the successor and representative of Annie Hoxie Good, the mother of Kathryn, and as such is entitled to her custody and tuition.

In support of her first contention plaintiff in error relies on the rules announced by the Supreme Court in the cases of Wilkinson v. Deming, 80 Ill. 342, and People v. Small, 237 Ill. 169. Both of these cases differ on the facts from the case at bar on both points upon which they were determined. In those cases the decree of divorce gave to the mother the absolute custody and control of the child, and having that absolute custody the mother exercised her statutory right to designate and appoint a testamentary guardian, and the contest was between the father and the testamentary guardian. In the case at bar, the custody and control of Kathryn was by the decree of divorce awarded to each parent for definite parts of each year, so divided as not to interefere with or divide up her school year, and while the mother left a will, there was no testamentary guardian appointed and no attempt made in the will to control or direct who should have the custody or tuition of the child. The contest in this case is between the father and the guardian appointed Tby the Probate Court under Chapter 64, E. S. The cases cited are, therefore, in no way controlling of the case at bar. Some questions have been raised as to whether Kathryn at the time plaintiff in error was appointed her guardian was a resident of Cook county or not, and as to whether the appointment was in other respects regular. In the view we take of this case it may be conceded that the appointment of plaintiff in error as guardian was regular. It does hot follow, however, that such appointment, though regular, entitled the guardian to the custody of the ward as against the father. Section 4 of Chapter 64, E. S., provides, in part, as follows:

“The guardian of a minor shall have, under the direction of the court, the custody, nurture and tuition of his ward, and the care and management of his estate ; but the parents of the minor, if living, and in case of the death of either of the parents, the surviving parent, they being respectively competent to transact their own business, and fit persons, shall be entitled to the custody of the person of the minor and-the direction of his education.”

This statute is declaratory of the common law so far as the right to the custody of a child as between a parent and guardian is concerned. Berkshire v. Caley, 157 Ind. 1; Brooke v. Logan, 112 Ind. 183; In re Thomsen, 1 Neb. (Unoff.) 751; Clarke v. Lyon, 82 Neb. 625; Smidt v. Benenga, 140 Iowa 399; Bowles v. Dixon, 32 Ark. 92; Peacock v. Peacock, 61 Me. 211; Ex parte Davidge, 72 S. C. 16; Gilmore v. Kitson, 165 Ind. 402. There is no finding by any court, disclosed by this record, that defendant in error is not competent to transact his own business, or is not a fit person to have the custody of his child and to direct her education. Nor was there any evidence offered, so far as this record shows, in either the divorce case, the guardianship matter, or this habeas corpus proceeding, upon which such a finding could be predicated. In the divorce proceeding the court recognized the fitness of the father to have the custody of the child by decreeing that he should have it part of the time. In the guardianship proceeding the father was not in court, neither was he served with process or notice of the pendency of the petition, and the court was, therefore, powerless in that proceeding to try the question of his fitness or want of fitness to have her custody. In this habeas corpus proceeding, while the petition of defendant in error and the return of plaintiff in error were full enough to permit of proof of the want of fitness of defendant in error to have the custody of Kathryn, no such proof was offered, and the court expressly found that defendant in error was competent to transact his own business, and, was a fit person to have such custody. The burden of proving unfitness was on plaintiff in error, and the rule is that, unless such unfitness is established by clear evidence, fitness will be presumed and the custody of the child will be awarded to the parent. Cormack v. Marshall, 211 Ill. 519-523; Wohlford v. Burckhardt, 141 Ill. App. 321; In re Thomsen, 1 Neb. (Unoff.) 751; State v. Martin, 95 Minn. 121; Giffin v. Gascoigne, 60 N. J. Eq. 256. The finding of the court was undoubtedly right on the record in this case.

During the taking of the testimony, plaintiff in error made an oral motion for leave to amend her return, so as to show “that Kathyrn Good is now in a good home and that her chances with her grandmother would be better than with her father, and that she is being furnished a better home than her father could give her.” She also moved the court for leave to amend her return so as to show that she had no specific information as to whether defendant in error had notice of the presentation of the petition for letters of guardianship, and so as to pray for strict proof that no notice was given him. These proposed amendments, if they had been made, would have brought no new issues into the case, and the motions were'properly denied.

It is lastly urged that Kathryn Good was improperly allowed to testify as to whether she would prefer to go with her father or her grandmother; that the only issue to he tried under the pleadings was as to whether Kathryn was illegally restrained of her liberty by plaintiff in error; that as to that issue the desires of Kathryn were unimportant; and that the only order the court could properly enter was one to discharge Kathryn, if the court held she was illegally restrained by plaintiff in error. The point is not well taken. As already stated, the controversy in this case is over the question whether defendant in error or plaintiff in error is entitled to the custody of the child. It is, therefore, to be regarded as a private suit between the parties, and hot as if the child was contending for its release from an unlawful restraint. Mahon v. People, 119 Ill. App. 497; Cormack v. Marshall, 211 Ill. 519. The custody of the child by plaintiff in error was not unlawful in the sense that she was being restrained of her liberty in such a way as would warrant interference by the court by a common-law writ of habeas corpus, where, if the court found she was unlawfully restrained, the order would be for her discharge from such unlawful restraint. The controversy was between the father and the guardian, and the court found the right of the guardian to the custody of the child was subordinate to the right of the father to such custody. The court was bound to determine that question and would have failed in its duty, if, after finding that the father’s right was paramount, it had not awarded the custody of the child to him. The testimony of Kathryn was not necessarily pertinent to the issue, at least not until plaintiff in error had by some evidence challenged the fitness of the father to have the custody of the child, which, as we have seen, was not done in this case, but it could have had no influence with the court in the determination of the issues and the conelusion and final order of the court could not have been different, if it' had not been introduced. Its introduction, therefore, even if erroneous, was not reversible error.

The judgment of the Circuit Court is, therefore, affirmed.

Judgment affirmed.