text:
    George F. Harding, Jr., Appellant, v. Christopher Bray, Appellee.
    Gen. No. 20,976.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. M. L. McKinley, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Reversed and remanded.
    Opinion filed December 21, 1915.
    Statement of the Case.
    Bill by George F. Harding, Jr., complainant, against Christopher Bray, defendant, in the Superior Court of Cook county. From the order dismissing the bill, complainant appeals.
    The bill alleged, in substance, that on and prior to December 1, 1902, complainant was and now is the owner in fee of certain vacant and unimproved premises (describing them) situate in Cook county, Illinois, and that during all of said period he has been and now is entitled to all the rents and income therefrom; that the defendant, wrongfully and fraudulently assuming to have the power so to do and without any rights in the same, has during all of the period subsequent to December 1, 1902, leased said premises, without the knowledge or consent of complainant, to various parties unknown to complainant and for sums unknown to complainant, and has wrongfully collected and converted to his own use the various sums thus wrongfully obtained by him as rent for the same; that complainant has been unable, after diligent inquiry, to ascertain to whom the premises were so leased by the defendant or the amount which defendant has so wrongfully received and converted to his own use, but complainant believes and charges that defendant has received in the aggregate more than the sum of $1,900; that complainant believes and charges the fact to be that defendant from the sums so wrongfully obtained by him has purchased certain other premises (describing them) in said Cook county, which said other premises belong in equity to complainant, and the defendant has no other property subject to execution or attachment or garnishment, or out of which any decree entered herein in favor of complainant may be satisfied; and that complainant had no knowledge of said wrongful acts of the defendant prior to April 6, 1910, and that all rights of action of complainant against defendant have been wrongfully and fraudulently concealed from complainant by defendant. The bill prayed that the defendant might be required to answer the same, (defendant’s oath to the answer being waived); that defendant might be required to discover and set forth the various parties to whom said first mentioned premises were leased by defendant, the time which each of the parties occupied the same, the amounts .received from said parties, and the dates of the various payments therefor; that said defendant might be enjoined from selling, incumbering or otherwise disposing of the premises so purchased by him; that a receiver thereof might be appointed, that an accounting might be taken in this behalf by and under the direction of the court, and that defendant might be decreed to pay complainant whatever sums might appear to be due complainant, etc.

      Abstract of the Decision.
    Account, § 26

      —when dismissal of MU erroneous. On general demurrer to a bill praying an accounting, and other relief, averments held sufficient to require defendant to answer, for which reason a decree sustaining the demurrer and dismissing the bill was erroneous
    To this bill the defendant on June 27, 1910, filed a general demurrer. On March 17,1913, on motion of the solicitor for defendant, the court ordered that said demurrer be sustained and that leave be granted complainant “to amend his bill of complaint within ten days or stand by his bill of complaint.” On February 28, 1914, both parties appearing, the court entered an order to the effect that, the court having previously sustained defendant’s general demurrer to said bill, and complainant now electing to stand by his said bill as against said demurrer, “it is ordered that said bill of complaint be and the same is hereby dismissed at complainant’s costs.”
    William J. Ammen, for appellant.
    No appearance for appellee.

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

   Mr. Presiding Justice Gridley

delivered the opinion of the court.


source: Caselaw Access Project

author: Mr. Presiding Justice Gridley

license: Public Domain

text:
    The People of the State of Illinois, Complainant, v. Isaac C. Ogden et al., Defendants. Hiram Coombs (Petitioner), Appellee, v. City of Chicago (Defendant), Appellant.
    Gen. No. 20,984.
    1. Taxation, § 662

      —when city holding invalid tax title not entitled to reimbursement out of surplus from tax sale. In a petition filed in a bill to foreclose a tax lien, which petition prays an order directing a county treasurer to pay over to petitioner a surplus remaining after the tax sale decreed in the foreclosure action, where the fund is also claimed by a municipal corporation under Act of June 23, 1913, providing that a municipal corporation holding certificates of sale or tax deeds by virtue of Act of 1897, sec. 72 (J. & A. 11463), authorizing municipal corporations to purchase at tax sales in certain cases, shall be reimbursed to the amount paid by it at such sale before any final judgment shall be entered concerning the title to the land sold, a decree granting the relief prayed by the petition is not erroneous as being in conflict with such Act of June 23, 1913, although such reimbursement is not made by such decree, for the reason that such Act of June 23, 1913, has been declared unconstitutional.
    2. Taxation, § 662

      —when holder of iwvaWd taco title entitled to reimbursement. Under Hurd’s Rev. St., ch. 120, sec. 224 (J. & A. ¶ 9443), providing that any judgment setting aside a tax deed shall provide for the reimbursement of the holder of such deed by the claimant as prerequisite to such claimant’s having the benefit of such decree, the holder of a tax title is entitled to reimbursement only when such tax deed is set aside by the decree in question.
    3. Taxation, § 662

      —what does not constitute setting aside taco deed. A decree awarding to the assignee of the owner of land sold for taxes a surplus remaining after such sale does not set aside a tax deed within the meaning of Hurd’s Rev. St., ch. 120, sec. 224 (J. & A. ¶ 9443), providing for the reimbursement of the holder of a tax title where the tax deed is set aside by a judgment decree, notwithstanding the fact that such decree denies reimbursement to a municipal corporation holding an invalid certificate of the sale of the same land to it for nonpayment of assessments made against such land for local improvements.
    4. Equity, § 151

      —what is effect of admissions in bill. In a petition by the assignee of the owner of land sold for taxes, praying that a surplus remaining after the tax sale be awarded to him, the admission of a claimant under tax certificates that it “makes no claim in this suit as to the title” to the property in question, amounts to an admission that the tax certificates relied on are invalid.
    5. Taxation, § 662

      —when holder of invalid taco title not entitled to reimbursement. The holder of an invalid tax deed is not entitled to be reimbursed for the amount paid in acquiring the tax title, whether such holder be a city or an individual.
    6. Estoppel, § 77

      —when assignee of surplus from taco sale not estopped to question right of city to reimbursement. One to whom the owner of land sold for taxes has assigned his right to the surplus remaining after the sale is not estopped to question the right of a city to be reimbursed out of such surplus for the amounts paid at a sale of the same land to it for nonpayment of assessments for local improvements, by reason of the fact that such assignee had no greater rights than such assignor.
    7. Taxation, § 662

      —when city not entitled to reimbursement of amount paid at taw stile. A decree awarding a surplus remaining after the sale of land for taxes to the assignee of the right of the owner of the land in such surplus does not violate the rule that one cannot profit by his own wrong, although such decree denies the right of a city to be reimbursed out of such surplus for amounts paid at a sale of the same land to it for nonpayment of assessments levied against the land to pay for local improvements.
    Appeal from the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed December 21, 1915.
    Statement of the Case.
    At the time of the filing of the original bill in this cause, November 9, 1912, Isaac O. Ogden was and had been for more than twenty-five years the owner in fee simple of five certain lots in Cook county, Illinois. The bill was filed by the People, etc., under and by virtue of section 253 of the Revenue Act (J. & A. ¶ 9472), to foreclose the liens for certain unpaid taxes levied upon said lots and other property. Isaac C. Ogden, the City of Chicago and others were made parties defendant. Various proceedings were had and on March 19, 1913, a decree of sale was entered wherein it was ordered that William L. O’Connell, county treasurer and ex officio county collector of said Cook county, should sell said lots, with other property, to satisfy said tax liens, and that unless said lots were redeemed within two years from said sale according to law the defendants and all persons claiming under them should'be forever foreclosed of all further claim or right in the lots, and the county clerk should then issue a deed or deeds to the legal holders of the certificates of sale, etc. In pursuance of the decree the county treasurer duly offered for sale and did sell said lots on April 23, 1913, "and, on May 17, 1913, filed his report of sale and the same was approved by the court. The report showed that at said sale the lots sold for an amount more than sufficient to pay all moneys due under the decree, together with costs, and that there remained in the hands of the county treasurer, out of the proceeds1 of the sale of said lots, a surplus of $1,252.25, to be distributed and paid as the Circuit Court should direct.
    After the entry of said decree of sale, and after said sale, to wit, on or about October 9,1913, Isaac C. Ogden (the owner of the lots at the time of said sale) and one Joseph Rushkewicz entered into an agreement for the sale by Ogden to Rushkewicz of said lots and for an assignment by Ogden to Rushkewicz of said surplus in the hands of the county treasurer. Pursuant to said agreement Ogden and wife, by quitclaim deed, dated October 9, 1913, and recorded October 14, 1913, conveyed said lots to Rushkewicz, and at the same time assigned all of Ogden’s right, title and interest in and to said surplus to Rushkewicz. Thereafter, on October 14,1913, Rushkewicz by an instrument in writing duly assigned to Hiram Coombs all of his (Rushkewicz’) right, title and" interest in and to said surplus.
    Subsequently, on October 27, 1913, Hiram Coombs filed his petition, entitled in said original cause, People, etc., v. Isaac C. Ogden et al., in said Circuit Court, making all of the defendants in said original cause, and also said Joseph Rushkewicz, parties defendant to his petition, and setting up the above mentioned facts, and praying that the court enter an order directing the county treasurer to pay over said surplus of $1,252.25 to him (Coombs). Rushkewicz and Ogden filed answers admitting the allegations of the petition to be true and making no objections to the court entering an order in accordance with the prayer of the petition. The People, etc., and William L. O’Connell, county treasurer, filed a joint and several answer in which they admitted that such a surplus, amounting to $1,252.25, was in the hands of the county treasurer, and disclaimed all right or interest therein, and alleged that said county treasurer held the same for the benefit of such person or persons as should appear entitled thereto and subject to the order of the Circuit Court. The City of Chicago filed an answer in which it denied that the petitioner (Coombs) was entitled to said surplus, and alleged that “it has a first and prior lien on said surplus money by virtue of certain special assessments levied pursuant to law for public improvements affecting the said property in said petition described, and that said assessments so levied were unpaid arid that the amount of unpaid assessments now due the said City of Chicago amounts to the sum of $1,000, and that the said property was sold to this defendant in pursuance of the said statute in such case made and provided as shown by the records of the Recorder of Deeds of Cook County, Illinois, and said defendant stands ready to produce said special assessment records, together with all certificates and tax deeds pertaining to the same.” The city in its answer prayed that the petition of Coombs be dismissed and that the court enter an order directing the county treasurer out of said surplus money to pay to the city the sum due to it “under and by virtue of its liens hereinabove described for unpaid special assessments.”
    On November 6, 1913, the court ordered that said petition together with all answers and pleadings thereto be referred to a master in chancery to take proofs and report the same together with his conclusions thereon. On the hearing before the master, after the petitioner Coombs had introduced his evidence and had rested his case, the city offered in evidence certain purported tax deeds of the, property to it. Upon objections being made thereto, the solicitor for the city stated: “The purpose of the offer is not for the purpose of indicating an adverse title; it is merely to indicate that the City of Chicago has pursued the taxes to such an extent as the statute permits them to pursue it for the purpose of protecting their lien acquired under the judgment in the county court, in confirmation of a special assessment; * * * we do not want to prove title by the tax deed.” On January 23,1914, the master made a report in which he stated that “no claim is made by the City of Chicago to said surplus by reason of the sale to it of the premises in question for unpaid taxes and the subsequent issuance to it of tax deeds thereon; nor jvere said tax deeds offered for the purpose of showing a title adverse to that of petitioner’s assignor (Rushkewicz), but to evidence merely that the city had pursued one of the methods specifically given it by statute to enforce its right to reimbursement for improvements made,” and in which he expressed the opinion that the petitioner (Coombs) was entitled to the relief prayed for, and recommended that the court enter an order directing the county treasurer to pay said surplus in his hands to said petitioner. Before said report was filed in the Circuit Court the City of Chicago, on January 30, 1914, applied for leave to file instanter an amendment to its answer to the petition of Coombs. Such leave was granted and the amendment filed, and the same was referred to said master to hear evidence and report his conclusions of law and fact at the same time he made his report on said petition and the original answer of the city thereto. In said amendment the city alleged that the petitioner (Coombs) was not entitled to said surplus because the city “is and for a considerable time has been the owner of the premises out of which it is claimed said surplus arose,” and the city prayed that “if any order or decree is entered distributing said surplus, that said decree provide that it be paid to this defendant, but that if the court should decree that for any reason said Coombs is entitled to the surplus, then said decree should provide that there first be paid out of said surplus the amount paid out by the city at certain tax sales at which it bought in the property in question in default of other bidders, together with the interest on said amount and the costs of this defendant, amounting in all to the sum of $908.95.” On February 28, 1914, the master made a supplementary report in which he stated that in his opinion “the filing by the City of Chicago of its amended answer herein does not in any way alter or change the city’s status in said proceeding or effect the findings and conclusions contained in the master’s original report herein, and he therefore recommends that the prayer of the petition of Hiram Coombs be granted and that a decree or order in conformity therewith be entered.” It appears from the supplemental report that after the second order of reference, entered January 30, 1914, further evidence was heard before the master. It further appears that on this hearing it was agreed between the petitioner and the City of Chicago that “the city makes no claim in this suit as to the title in it to any of the property in evidence, and that the master need make no report thereon.” Objections by the city to the original and supplemental reports were filed and overruled. Both the original and supplemental reports were filed in the Circuit Court on March 16, 1914, and on that date the Circuit Court, after overruling exceptions thereto, approved said reports and entered a final order or decree directing the payment of said surplus to the petitioner, Coombs, and that the master’s fees and costs be paid by the City of Chicago. By this appeal the City of Chicago seeks to reverse said order or decree.
    John W. Beckwith, for appellant; Charles M. Haft and William J. Naughtoh, of counsel.

      Robert Zaleski, for appellee.

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

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

   Mr. Presiding Justice Gridley

delivered the opinion of the court.

It is contended by counsel for the City of Chicago that the decree should be reversed because it is in violation of section 72 (as amended) of the “Act concerning Local Improvements,” in force July 1, 1897. (J. & A. ¶ 1463.) Section 72, prior to its being amended, provided that:

“Any city, village or town interested in the collection of any tax or special assessment, may, in default of other bidders, become a purchaser at any sale of property to enforce the collection of the same, and may, by ordinance, authorize and make it the duty of one or more municipal officers to attend such sales and bid thereat in behalf of the corporation.”

By an Act approved June 28, 1913, in force July 1, 1913, said section 72 was amended by adding the following :

“Any municipal corporation which holds any certificate of sale or tax deed acquired in pursuance hereof shall be entitled to reimbursement of the amount paid by it at such sale, including the cost and interest at the rate, of five per cent (5%); and no .final judgment or decree shall be entered in any case either at law or in equity or in proceedings under the eminent domain act involving the title to or interest on any land in which such municipal corporation shall be a party, until reimbursement has been made to it as herein provided.”

Counsel for the city argue that by reason of the provisions contained in said amendment to said section the court should not have entered a decree giving said surplus in the county treasurer’s hands to the petitioner, Coombs, until said petitioner had reimbursed the city for its expenditures, including costs and interest, at the sales of the property in question for special assessments in default of other bidders. We think it is a sufficient answer to the contention to say that, subsequent to the filing of counsel’s brief in this court, our Supreme Court has declared that portion of section 72 as amended in 1913 to be unconstitutional. City of Chicago v. Gage, 268 Ill. 232, 243.

It is also contended by counsel that the decree should be reversed because it is in violation of the provision contained in section 224 of chapter 120 of the Revised Statutes of Illinois (J. & A. ¶ 9443), as follows:

“That any judgment or decree of court, setting aside any tax deed procured under this act, shall provide that the claimant shall pay to the party holding such tax deed all taxes and legal costs, together with all penalties, as provided by law, as it shall appear the holder of such deed, or his assignors, shall have properly paid or be entitled to in procuring such deed, before such claimant shall have the benefits of such judgment or decree. ’ ’

We cannot agree with the contention. The order or decree appealed from does not set aside any tax deed. It has several times been decided by our Supreme Court that a tax title holder, by virtue of said provision in section 224, is entitled to be reimbursed only when the tax title is set aside. Riverside Co. v. Townshend, 120 Ill. 9; Gage v. Eddy, 186 Ill. 432; City of Chicago v. Pick, 251 Ill. 594, 600. Furthermore, as we view it, the admission on the hearing that “the city makes no claim in this suit as to the title in it of any of the property in evidence” amounted in effect to an admission that its tax deeds were not valid, and it has also been decided that the holder of an invalid tax deed is not entitled to reimbursement for the amount of money expended in acquiring the tax title (City of Chicago v. Pick, supra; O’Connell v. Sanford, 255 Ill. 49; South Park Com’rs v. Berg, 259 Ill. 447); and that this rule applies where a city is the holder of such a tax deed as well as where the holder is an individual (O’Connell v. Sanford, 256 Ill. 62).

And we do not think there is any merit in the contention that the petitioner, Coombs, having no greater rights than Ogden, is estopped to claim that the city is not entitled to be paid out of said surplus the amount it expended in procuring said tax deeds, or in the further contention that the decree in effect violates the law that a man cannot take advantage of his own wrong.

We are of the opinion that the decree of the Circuit Court should be affirmed.

Affirmed.


text:
    Frank P. Illsley, Appellee, v. Peerless Motor Car Company, Appellant.
    Gen. No. 21,006.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed on remittitur.
    Opinion filed December 21, 1915.
    Statement of the Case.
    Action by Frank P. Illsley, plaintiff, against the Peerless Motor Car Company, defendant, in the Circuit Court of Cook county, to recover “commissions” alleged to be due under a written contract by which defendant made plaintiff its agent for the sale of its motor cars. From a judgment for plaintiff for $1,985, defendant appeals.
    By the terms of said written contract plaintiff was made the “ exclusive agent” of defendant until November 1,1904, for the sale of its motor cars “in the territory included in State of Illinois north of a line drawn east and west through the City of Vandalia, Ill., to a line east and west located 125 miles north and east of Chicago, with the exception of the City of Milwaukee, Wis., and State of Iowa east of a line drawn north and south through Des Moines.” Plaintiff, in consideration of his appointment as such agent, agreed, among other things, to do all local advertising and conduct all local shows .and exhibits at his own expense; to maintain proper sales rooms and repair and storage rooms at Chicago, Illinois; to carry in stock at all times at least one of the defendant’s cars for demonstrating purposes and one or more new cars for sale, together with reasonable supplies for repairs; and to order from defendant not less than twenty-five, 4 cylinder, 24 horse-power cars, to be delivered at stated times during a period of eight months from the date of the contract. Plaintiff was to be allowed a discount of twenty per cent, from defendant’s list prices, as fixed from time to time, on all cars purchased from defendant. Plaintiff further agreed to devote his best energies to the sale of defendant’s products, to refer promptly to defendant all inquiries received from territory other than his own, and not to sell or deliver any of defendant’s products in any territory other than his own except by defendant’s permission in writing, and plaintiff further agreed that neither he nor any one for him should sell defendant’s products at a price less than the list price at the time of such sale.
    Plaintiff claimed that on January 19, 1904, while said contract was in force, defendant, either directly or through its agent at the City of Milwaukee, accepted an order for the sale and delivery of one of its automobiles or ears to Frank K. Bull, residing at Racine, Wisconsin (within plaintiff’s exclusive territory), at the list price of $6,445, including certain extras, and that subsequently and while said contract was in force defendant sold and delivered said car to said Bull at said price at Milwaukee without plaintiff’s-consent; that about December 1, 1903, while said contract was in force, defendant without plaintiff's consent sold at Chicago, Illinois (within plaintiff’s said territory), another of its cars to A. C. Banker, residing in Chicago, for the price of $3,750; and that by reason of said two sales plaintiff became entitled to “commissions upon said sales of twenty per cent, of the sums of money received for the same,” which “commissions” defendant had refused to pay plaintiff. The award of the jury on the first trial, viz., $2,039, is twenty per cent, of the aggregate amount of both of said sales.
    The case was here before (177 Ill. App. 459), and after the cause had been redocketed in the Circuit Court, plaintiff, by leave of court, on March 11, 1914, filed an additional count to his declaration, which was similar to the special count originally filed except that it contained the further allegation that “there existed in the automobile trade at the time when said contract was entered into a certain uniform trade custom and usage, which entered into the aforesaid agreement, that an exclusive agent was entitled to commissions on all cars disposed of by the defendant either by itself or any other agent of the defendant within the territory in said contract described.” To this additional count defendant filed a plea of the general issue, and two special pleas to the effect that the supposed cause of action did not accrue to the plaintiff (a) within ten years or (b) within five years next before the filing of said additional count. To these special pleas plaintiff filed general demurrers and the demurrers were sustained.
    The substantial facts regarding the Bull transaction are stated in the former opinion of this court (177 Ill. App., p. 462) and need not be repeated.
    As to the transaction with Banker, the evidence disclosed that he was the sales agent of defendant prior to the appointment of plaintiff; that upon the termination of his agency Banker asserted a claim against defendant for damages because of his alleged wrongful dismissal and for a credit balance due him; and u ' that this claim was finally settled by the delivery to him by defendant of a car, the fist price of which was $3,750. While it appears that plaintiff complained to defendant that the delivery of a car to Banker would be detrimental to plaintiff’s business, there is a sharp conflict in the evidence as to whether or not plaintiff did not finally assent to such delivery; and plaintiff testified: “I did not canvass Mr. Banker or attempt to sell him a ear. I do not think I could have sold a car to Banker; * * * he was not a prospective customer in any way.”
    Abstract of the Decision.
    1. Contracts, § 387

      —when evidence insufficient to establish breach of contract. In an action to recover on a contract where defendant agreed that plaintiff should have an exclusive right to sell its motor cars within a named territory and should have as his compensation for such sales an agreed discount from defendant’s listed price therefor, and the breach relied on to sustain the action was that the defendant directly or indirectly sold one of its cars within plaihtifif’s territory, evidence held sufficient to support a finding that plaintiff could not have made the sale, and that he did not sustain any actual damages as a result of such sale.
    2. Contracts, § 387

      —when evidence sufficient to establish breach of contract. In an action to recover on a contract whereby defendant agreed that plaintiff should have the exclusive right to sell its motor cars within a named territory and should have as his compensation for such sales an agreed discount from defendant’s listed price therefor, where the breach relied on to sustain the action was that defendant directly or indirectly sold one of such cars within plaintiff’s territory, evidence held to warrant a finding that plaintiff could have made the sale, and that plaintiff suffered substantial damages.

      Montgomery, Hart, Smith & Steere, for appellant.
    H. F. Dickinson, for appellee.
    W. H. Tatge, of counsel.

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

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

   Mr. Presiding Justice Gridley

delivered the opinion of the court.

3. Interest, § 56 —how should be computed upon breach of contract. In an action to recover on a contract whereby defendant agreed that plaintiff should have the exclusive right to sell its cars within a named territory, and should have as his compensation an agreed discount on defendant’s listed price for cars sold by plaintiff, and where judgment for plaintiff included the amount of such discount on the price obtained for a car sold by defendant within such territory in breach of the contract, held that interest should be computed on the amount of the discount from the date of such sale.

4. Interest, § 81 —when error exists in computation of interest. In an action to recover on a contract whereby defendant agreed that plaintiff should have the sole right to sell its motor cars within a named district, a judgment for plaintiff of $1,921.83, held excessive to the extent of $63.17.


text:
    A. E. Bond and O. J. Bond, trading as Ideal Spinning Company, Appellees, v. Duntley Manufacturing Company, Appellant.
    Gen. No. 21,014.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Jacob H. Hopkins, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed on remittitur.
    Opinion filed December 21, 1915.
    Rehearing denied December 30, 1915.
    Statement of the Case.
    Action by A. E. Bond and O. J. Bond, copartners, trading under the name of Ideal Spinning Company, plaintiffs, against the Duntley Manufacturing Company, a corporation, defendant, in the Municipal Court of Chicago, in an action of the first class, to recover on a contract. From a judgment for plaintiffs for $2,428.83, defendant appeals.
    Abstract of the Decision.
    1. Municipal Court op Chicago, § 13

      —what practice includes. Pleadings are included within the term “practice.”
    2. Municipal Court of Chicago, § 5

      —what power judges have to mahe rules. Under paragraph 9 of section 28 of the Municipal Court Act (J. & A. ¡[ 3340), the judges of the Municipal Court of Chicago may adopt a rule providing for the filing of a statement of claim, instead of a declaration, in cases of the first class.
    3. Municipal Court of Chicago, § 17b

      —when motion for dismissal of action properly refused. In an action of contract of the first class in the Municipal Court of Chicago, the denial of a motion to dismiss held not erroneous because plaintiffs filed a statement of claim instead of a declaration, where it appeared that such pleading was permitted by a rule of that court in force when such statement of claim was filed.
    4. Attorney and client, § 67

      —when evidence of admission by attorney admissible. Where the settlement of a controversy is delegated to the attorney of one of the parties with general authority to settle the same, an admission by him made during negotiations looking to such settlement is not incompetent as violating the rule that an attorney cannot, outside a trial, make admissions against the interest of a client, for the reason that the law of principal and agent is applicable to the relation of attorney and client, and the client is bound by the acts of his attorney within the scope of the authority of such attorney.
    5. Attorney and client, § 67

      —when client bound by admission of attorney. A client which has delegated to its general counsel general authority to settle a controversy is bound by the admission of an attorney in the office of such general counsel, to whom the settlement of such controversy has been delegated with the consent of the client, as much as though such admission were made by such general counsel, especially where it appears that the client acquiesced in and subsequently ratified the acts of such attorney with reference to such controversy.

      Montgomery, Hart, Smith & Steere, for appellant.
    Carl A. Waldron, for appellee.

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

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

   Mr. Presiding Justice Gridley

delivered the opinion of the court.

6. Contracts, § 298 —when tender of performance insufficient. An offer to ship goods on condition that defendant pay for them in advance of shipment is not a sufficient tender of performance under a contract providing for shipment on condition of payment “in thirty days from delivery.”

7. Contracts, § 294 —when performance or mllingness to perform, conditions precedent to recovery. An action upon a contract cannot be maintained unless plaintiffs proved performance on their own part, or that they were ready and willing to perform within the time limited by the contract.

8. Contracts, § 387 —when evidence insufficient to establish excuse for tender of performance. In an action to recover for breach of a contract to manufacture and deliver goods, where there was no sufficient tender of performance by plaintiffs, evidence held insufficient to excuse plaintiffs from making tender of performance.

9. Contracts, § 294 —what is essential to authorize recovery on contract. No recovery can be had in an action to recover for the purchase price of goods which plaintiffs contracted to manufacture and deliver to defendant where there is neither a sufficient tender of performance by plaintiffs nor a state of facts excusing tender.

10. Contracts, § 294 —when there can be no recovery for expense of storing and insuring undelivered goods. In an action to recover the purchase price of goods which plaintiffs contracted to manufacture and to deliver to defendant, no recovery can be had for expenditures for storing and insuring goods not delivered in the absence of a sufficient tender of performance by plaintiffs, or of a state of facts excusing such tender.


text:
    City of Chicago, Defendant in Error, v. William Wright, Plaintiff in Error.
    Gen. No. 21,036.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Charles N. Goodnow, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1915.
    Reversed and remanded.
    Opinion filed December 21, 1915.

      Abstract of the Decision.

      Lewdness—when admission of evidence error. In a prosecution wherein defendant was charged with uttering indecent words and with making obscene gestures publicly, in violation of an ordinance, the admission of evidence that defendant had used indecent language held prejudicial, where it appeared that the indecent language testified to was not used in the presence of the complaining witness.
    Statement of the Case.
    Prosecution by the City of Chicago against William Wright, defendant, in the Municipal Court of Chicago, charging defendant with committing “an indecent, lewd and filthy act,” with uttering “lewd, indecent and filthy words” and with making “obscene gestures publicly” in violation of section 2026 of the Revised Municipal Code of Chicago. To reverse a judgment of conviction, defendant prosecutes this writ of error.
    Gentzel & Crake and William H. Gruver, for plaintiff in error.
    John W. Beckwith and Albert J. W. Appell, for defendant in error.
    John F. Power, of counsel.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.


text:
    Maria Peters, Defendant in Error, v. John A. Reddy and Fanny Reddy, Plaintiffs in Error.
    Gen. No. 21,044.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John R. Newcomer, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1915.
    Affirmed.
    Opinion filed December 21, 1915.
    Rehearing denied January 4, 1916.

      Abstract of the Decision.
    Bills and notes, § 440

      —when evidence sufficient to sustain judgment. In an action to recover on a promissory note, judgment for plaintiff held sustained by the evidence as against defendants’ claim of want of consideration.
    Statement of the Case.
    Action by Maria Peters, plaintiff, against John A. Reddy and Fanny Reddy, defendants, in the Municipal Court of Chicago, to recover on a promissory note. To reverse a judgment for plaintiff, defendants prosecute this-writ of error.
    King, Brower & Hurlbut, for plaintiffs in error.
    John Lace, for defendant in error; Rankin & Dunn and Ode L. Rankin, of counsel.

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

   Mr. Presiding Justice Gridley

delivered the opinion of the court.


text:
    Charles L. Wood, Plaintiff in Error, v. Minnie N. Foster, Defendant in Error.
    Gen. No. 21,071.
    (Not to be reported in full.
    Error to the Municipal Court of Chicago; the Hon. Jacob H. Hopkins, Judge,'presiding.
    Heard in the Branch Appellate Court at the March term, 1915.
    Affirmed.
    Opinion filed December 21, 1915.
    Statement of the Case.
    Action by Charles L. Wood, plaintiff, against Minnie N. Foster, defendant, in the Municipal Court of Chicago, tp recover the amount of a broker’s commission for negotiating the sale of certain real estate. To reverse a judgment for defendant, plaintiff prosecutes this writ of error.
    Abstract of the Decision.
    1. Brokers, § 88

      —when evidence sufficient to sustain verdict in action for commissions. In an action to recover the amount of a broker’s commission for negotiating the sale of certain real estate, judgment against plaintiff held not manifestly against the weight of evidence.
    This case has been tried twice. On the first trial the court directed the jury to return a verdict in favor of the defendant, Minnie 1ST. Foster, which they did, and judgment was entered on the verdict against the plaintiff. On June 24, 1913, this court reversed said judgment and remanded the cause on the ground that the trial court erred in directing a verdict for the defendant. (Wood v. Foster, 181 Ill. App. 409.) When the ease came on for trial the second time the defendant withdrew her request for a jury trial, and the case was tried before the court upon the same evidence as was introduced at the first trial. It was stipulated that the transcript of the record and the printed abstract thereof filed in this court on the former appeal be introduced in evidence without objections or exceptions by either party. The court found the issues against the plaintiff and on October 2, 1914, entered judgment against the plaintiff for costs. The issues made by the pleadings and the. evidence in the case are sufficiently stated in the former opinion of this court.
    E. F. Masterson, for plaintiff in error.
    M. F. Gallagher, for defendant in error; E. B. Wilkinson, of counsel.

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

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

   Mr. Presiding Justice Gridley

delivered the opinion of the court.

2. Municipal Court of Chicago, § 17a —when propositions presented properly refused. Propositions submitted to be held by the trial court, marked “propositions of law and fact,” but which are neither propositions of law nor propositions of fact but mixed propositions of law and fact, are properly refused.


text:
    City of Chicago, Defendant in Error, v. John Doe, alias Dave Smith, Plaintiff in Error.
    Gen. No. 21,088.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John R. Newcomer, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1915.
    Affirmed.
    Opinion filed December 21, 1915.
    Statement of the Case.
    Prosecution by the City of Chicago against John Doe, alias Dave Smith, defendant, in the Municipal Court of Chicago, charging defendant with the violation of an ordinance. To reverse a judgment of conviction with a fine of two hundred dollars, defendant prosecutes this writ of error.
    The amended complaint of W. J. Hoffman, signed, sworn to and filed on October 22, 1914, alleged that John Doe, alias Dave Smith, on September 19, 1914, at the City of Chicago, “was then and there the keeper of a certain common, ill-governed and disorderly house, then and there kept for the encouragement of idleness, gaming, drinking, fornication, and other misbehavior, then and there located at 515 N. La Salle St., in the City of Chicago, in violation of section 2019 of the Revised Municipal Code of Chicago.” Prior to the trial the defendant moved to quash and strike said complaint from the files, which motion was denied. The jury returned a verdict finding the defendant “guilty of a violation of the ordinance, described in the complaint herein, known as section 2019,” and assessing a fine against him of two hundred dollars. After overruling motions for a new trial and in arrest of judgment, the court entered judgment upon the verdict against defendant for two hundred dollars and costs, which judgment the defendant by this writ seeks to reverse.
    Abstract of the Decision.
    L Municipal Court op Chicago, § 36

      —when presumed, that court took judicial notice of ordinance. In a prosecution in the Municipal Court of Chicago, charging defendant with the violation of an ordinance of the City of Chicago, a judgment of conviction held not erroneous although it did not appear that the ordinance alleged to have been violated was formally offered in evidence, for the reason that under section 54 of the Municipal Court Act (J. & A. jj 3371), requiring such court to take judicial notice of all general ordinances of such city, it is to be presumed that judicial notice was taken of the ordinance alleged to have been violated.

      While it does not appear from the transcript that said section 2019 was formally introduced in evidence before the jury, it does appear that the court in the oral charge to the jury stated that “the ordinance under which the city is proceeding in this case reads as follows: ‘Every common, ill-governed or disorderly house, room or other premises, kept for the encouragement of idleness, gaming, drinking, fornication or other misbehavior, is hereby declared to be a public nuisance, and the keeper and all persons connected with the maintenance thereof, and all persons patronizing or frequenting the same, shall be fined not exceeding two hundred dollars for each offense.’ ”
    M. A. Zelensky, for plaintiff in error.
    John W. Beckwith and A. J. W. Appell, for defendant in error.

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

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

   Mr. Presiding Justice Gridley

delivered the opinion of the court.

2. Municipal Court of Chicago, § 36 —when presumed that court correctly stated provisions of ordinance. In a prosecution in the Municipal Court of Chicago, charging defendant with a violation of an ordinance of the City of Chicago, it is to be presumed that the court correctly stated the provisions- of the ordinance alleged to have been violated, where it appears that in an oral charge the court told the jury what were the provisions of such ordinance.

3. Disorderly house, § 1 —when remedy to make complaint more specific. In a prosecution in the Municipal Court of Chicago, charging defendant with keeping a disorderly house in violation of an ordinance, a motion to quash the complaint held properly denied, for the reason that in case the complaint was not sufficiently specific defendant’s remedy is in a motion for a more specific statement of the offense charged and not by a motion to quash.

4. Disorderly house, § 6 —when judgment of conviction sustained hy evidence. In a prosecution charging defendant with keeping a disorderly house in violation of an ordinance, a judgment of conviction held not against the weight of the evidence.

5. Disorderly house, § 7 —when charge not prejudicially erroneous. In a prosecution charging defendant with keeping a disorderly house in violation of an ordinance, where certain portions of an oral charge were assigned as error, the whole charge as an entirety held not prejudicially erroneous.


text:
    M. Goldstein, Defendant in Error, v. Paul Setka and Anna Setka, Plaintiffs in Error.
    Gen. No. 21,105.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John J. Rooney, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1915.
    Affirmed.
    Opinion filed December 21, 1915.
    Statement of the Case.
    Action by M. Goldstein, plaintiff, against Paul Setka and Anna Setka, defendants, in the Municipal Court of Chicago, to recover the amount of a broker’s commission for negotiating the sale of certain real estate. To reverse a judgment for plaintiff for $337.50, defendants prosecute this writ of error.
    The plaintiff, M. Goldstein, on October 29, 1913, filed his statement of claim to recover commissions as a real estate broker. The defendants entered their appearance and demanded a jury trial. Subsequently plaintiff filed an amended statement of claim in which he alleged, in substance, that his claim was for commissions due him as a licensed real estate broker for procuring at defendants’ request a purchaser, one S. Oliff, for certain real estate with improvements thereon owned by defendants and .situated in the City of Chicago; that the property was sold by the defendants to said Oliff on June 23, 1913, for the sum of $13,500; and that the amount due plaintiff as commissions was two and one-half per cent, on said sum, or $337.50. The defendants in their affidavit of merits alleged, in substance, that they did not employ plaintiff as a broker or otherwise with reference to said sale and that plaintiff did not act as agent for defendants but as agent for said Oliff in the transaction. The jury returned a verdict finding the issues against the defendants and assessing plaintiff’s damages at $337.50, upon which verdict the court entered the judgment here sought to be reversed.
    The evidence showed that plaintiff was a duly licensed real estate broker, that defendants owned the property and that plaintiff carried on negotiations with Oliff with the knowledge of defendants which resulted in the sale.
    It appeared that as a result of the efforts and negotiations of plaintiff the parties were brought together and signed a written contract whereby defendants agreed to sell and Oliff to buy the property for $14,000; that subsequently further negotiations were had which resulted in the price being reduced to $13,500; that there was no special agreement between plaintiff and defendants as to the commissions to be received by plaintiff, but that those commissions were usually two and a half per cent, on the purchase price.
    Abstract of the Decision.
    1. Brokers, § 88

      —when evidence sufficient to sustain judgment. In an action to recover the amount of a broker’s commission for negotiating the sale of certain real estate, judgment for plaintiff held warranted by the evidence.
    2. Brokers, § 62

      —when broker acting for both parties entitled to commissions. Where it appears that through the efforts of a licensed real estate broker the owners and purchaser of real estate were brought together and a contract made for the sale of the real estate, a contract may be implied by which such owners agreed to pay such broker a commission for negotiating such sale, although such broker was never formally employed as broker by such owners, and although it appears that such broker was also acting as agent for the purchaser' of such real estate in the same transaction, provided such owners knew of such employment by such purchaser, and provided no fraud was practiced by such broker on such owners.
    3. Brokers, § 38

      —when broker presenting purchaser entitled to commissions. When a broker has presented to his principal a purchaser whom the principal is willing to accept and does accept, and such purchaser and principal enter into a contract of sale, the broker’s commissions are earned.
    George H. Mason, for plaintiff in error.
    Q. J. Chott, for defendant in error; Frank H. Culver, of counsel.

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

   Mr. Presiding Justice Gridley

delivered the opinion of the court.


text:
    George M. Mayr, Appellee, v. Nelson Chesman & Company, Appellant.
    Gen. No. 21,784.
    1. Fraud, § 72

      —when hill sufficiently alleges. In a bill praying an accounting on the ground of fraud, averments of the bill held sufficient to show fraud.
    2. Account, § 19

      —when equity jurisdiction of hill for accounting. In a bill praying an accounting where evidence was taken by a master on complainant’s motion for a preliminary injunction, bill and evidence held to show that the accounts in question are numerous and complicated sufficiently to give jurisdiction thereof to a court of equity.
    3. Account, § 19

      —when equity jurisdiction of hill of accounting. Courts of equity have jurisdiction to compel an accounting, although there be an adequate remedy at law, where fiduciary relations exist between the parties, or where fraud is charged or where discovery is sought.
    4. Fraud, § 55

      —when equity jurisdiction on ground of fraud. Fraud is one of the broadest grounds giving jurisdiction to a court of equity, and where fraud exists the aggrieved party is not bound to resort to another tribunal, possessed of less power and appliances to ascertain the truth and grant relief, although another tribunal may also have jurisdiction.
    5. Account, § 19

      —when equity jurisdiction of hill for accounting. The conditions usually held sufficient to give a court of equity jurisdiction to entertain a bill for an accounting are where the accounts in question are complicated or intricate, or are involved with third parties, or where the methods of investigation peculiar to a court of equity are needed, or where it would be difficult for a jury to unravel the numerous transactions involved.
    6. Account, § 19

      —when equity jurisdiction of hill for accounting. The jurisdiction of a court of equity to entertain a bill for an accounting depends not on the absence of any remedy at law, but upon the adequacy and practicability of such remedy and upon the discretion of the court.
    7. Account, § 19

      —when equity will exercise concurrent jurisdiction of hill for accounting. In regard to questions of accounts, the jurisdiction of courts of equity is concurrent with that of courts of law, and no precise rule can be laid down as to when a court of .equity will exercise such jurisdiction, such court reserving to itself a large discretion, and refusing to take such jurisdiction according to the circumstances of the particular case.

      8. Injunction, § 16

      —when equity will enjoin suit at law. Where a bill prays an accounting and it appears that at the time the bill is filed an action is pending at law involving the matters in regard to which the accounting is sought, an interlocutory decree restraining the further prosecution of such action at law is proper, for the reason that such an injunction is warranted when for any reason a court of equity is a more suitable tribunal for the determination of the matter, or where equitable remedies, unavailable at law, are required.
    9. Account, § 19

      —when equity jurisdiction of Mil for accounting. Where a bill prays an accounting, and it appears that when the bill was filed an action at law was pending involving the matters as to which the bill prays an accounting, the fact that under section 68 of the Practice act (J. & A. -H 8605), relating to matters of accounts, and Hurd’s Rev. St., ch. 51, sec. 9 (J. & A. f 5526), relating to the production of books and writings, a court of law has every facility possessed by a court of equity for the conduct of an accounting, does not operate to oust the long recognized jurisdiction of a court of equity in matters of account.
    10. Account, § 26

      —when MU for accounting not fatally defective. A bill praying an accounting is not fatally defective in that complainant made no demand for such accounting before filing his bill.
    11. Account stated, § 1

      —what constitutes. The terms “stated” and “settled” accounts are sometimes used as equivalent expressions.
    12. Account, § 19

      —when equity will entertain Mil to open up stated account. An account stated is only prima facie evidence of its correctness, so that if the balance ascertained be tainted with fraud or mistake, or is brought about by undue advantage, equity will entertain a bill for the purpose of opening it for restatement or correction in part.
    Appeal from the Superior Court of Cook county; the Hon. Denis E. Sullivan, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1915.
    Affirmed.
    Opinion filed December 21, 1915.
    Statement of the Case.
    This is an appeal from an interlocutory order or decree of the Superior Court of Cook county, entered July 23,1915, wherein Nelson Chesman & Company, a corporation, its agents and attorneys, were, until the further order of the court, restrained from further prosecuting its certain pending suit in the Municipal Court of Chicago against the complainant, George H. Mayr, and also restrained from commencing any further suits against said complainant growing out of the transactions mentioned in complainant’s bill of complaint.
    The bill was filed March 18, 1915, and was verified by the affidavit of complainant. It is therein alleged, in substance, that complainant has been engaged in the drug business in Chicago, Illinois, for the past twenty-five years, and is and has been for many years the owner of a medical preparation known as “Mayr’s Wonderful Stomach Remedy”; that the defendant Nelson Chesman & Company is a Missouri corporation, duly licensed to do business in Illinois and having an office in Chicago, Illinois, and is and has been for several years past engaged in business as a general advertising agency, and as such solicits advertisements from advertisers, which it causes to be placed in newspapers, magazines and periodicals throughout the United States for compensation paid it; that for several years prior to August 1,1913, complainant sold his said remedy through druggists in various towns in the United States by advertising said remedy over the respective names of said druggists, which class of advertising is hereinafter referred to as “drug store advertising”; that shortly before August 1, 1913, complainant entered into negotiations with defendant which on said date resulted in an agreement in writing between them, which agreement provided that, in consideration of complainant placing his newspaper and magazine advertising through defendant’s agency, defendant would give complainant the benefit of the lowest possible net rates obtainable by defendant from publishers and charge complainant ten per cent, over said lowest net rates; that the defendant was to make for complainant the best contracts possible with the publishers and give complainant the benefit of all discounts for time or space that the publishers allowed defendant; that defendant was to bill complainant on the first of each and every month for daily and weekly papers for insertions of the previous month and for monthly publications of the current month; that defendant would allow complainant a cash discount for the prompt payment of his bills on the same date that said publishers allowed such a discount to defendant; that said agreement was to be in force for a period of one year from its date, with the privilege of extension from year to year unless written notice was given within thirty days before the expiration of the same, and that said agreement was in full force up to and including December 12, 1914; that prior to August 1, 1913, complainant, in addition to said drug store advertising, sold and distributed his said remedy through advertising by a plan hereinafter referred to as the “mail order plan,” viz., by advertising said remedy over the name and address of complainant and distributing and selling the same directly to the consumer through the mails, but that about August 1, 1913, said mail order plan was almost wholly abandoned; that subsequent to the making of the said written agreement of August 1, 1913, defendant endeavored to induce complainant to resume his said mail order plan of advertising, and certain negotiations were had which resulted, on or about September 10,1913, in complainant entering into another agreement with defendant; that said other agreement provided that complainant was to resume his mail order plan of advertising and place such advertising with defendant, and that defendant would guaranty that the net amount of money received as the result of this class of advertising would pay the cost thereof and that defendant would reimburse complainant for any deficit that might exist; and that after September 10,1913, and up to the month of December, 1914, both said drug store advertising agreement and said mail order advertising agreement were in full force.

      It is further alleged in the bill, in substance, that in pursuance of said agreements the defendant prepared advertisements and placed them in various newspapers and periodicals; that defendant agreed to pay the various publishers for the same and to secure repayment from complainant upon presenting to him its bills therefor, together with a commission of ten per cent, added for placing said advertisements; that complainant’s advertisements were published hundreds of times in more than six hundred publications throughout the United States; that complainant has spent for that purpose through the defendant, since August 1, 1913, approximately $150,000; that all contracts for the publication of complainant’s advertisements were made by the defendant with the various publishers, and that the only information which complainant has had with reference to such contracts is such as furnished him by defendant, and that the only knowledge complainant has had as to the charges made by said publishers for said advertisements is likewise such as furnished him by defendant; that each month defendant rendered to complainant bills for advertising theretofore published, and that each of said bills purported to set forth truthfully the exact amount of space used in each publication for complainant’s advertisements, the exact time the same were published and the exact charge made by each publisher; that complainant had implicit confidence in defendant, and trusted defendant, and accepted as true the statements contained in said bills, and upon that basis paid defendant thousands of dollars, andjpaid all bills rendered by defendant except bills rendered since and including December 12, 1914; that on or about said date complainant terminated his relations with.defendant “because of facts coming to his knowledge leading him to believe that defendant had practiced fraud and deception on him, as hereinafter set forth. ’ ’

      It is further alleged in the bill, in substance, that complainant thereupon checked up some of the bills-theretofore rendered by defendant and paid by complainant; that said bills did not truthfully set forth the exact amount of space used in each publication for complainant’s said advertisements, and did not truthfully set forth the amount paid to the publishers by the defendant; that many of the items charged in said bills were false and fictitious; that advertising space had been charged to and paid by complainant at rates greatly in excess of the rates charged to the defendant by the publishers, and that defendant had fraudulently charged complainant for space in excess of the space used by complainant in such publications; that on numerous occasions the defendant was allowed by the publishers a certain discount, ranging from two to five per cent, for the cash payment of their bills, and complainant paid the bills rendered by defendant within the time necessary to obtain such discounts, but defendant contrary to the provisions of said written contract did not allow complainant such discounts, and complainant paid the bills as rendered without such discounts, having no knowledge at the time that defendant had obtained the same from said publishers, and complainant alleges, upon information and belief, that defendant fraudulently appropriated such discounts to its own use; that defendant did not endeavor to procure for complainant from said publishers the best rates obtainable, but on the contrary in numerous instances paid said publishers their highest rates and charged the same to complainant for the fraudulent purpose of increasing the amount of defendant’s commissions; that complainant has no knowledge of the various publishers with whom defendant made contracts for complainant’s advertisements, or of the terms and conditions of said contracts; that the only means complainant has, other than through defendant, to obtain information as to complainant’s transactions with defendant is by communication with said' publishers, of whom complainant does not possess a complete list, and that to obtain such information from the publishers it would be necessary to communicate with over six hundred persons and with regard to thousands of items covering a period of about sixteen months, and that information so obtained would of necessity be untrustworthy, and that there would be no method of compelling a disclosure by any publisher.
    It is further alleged in'the bill, in substance, that the net amount of money received as a result of said mail order advertising did not equal the cost to complainant of said advertising by a sum of about $7,000, that defendant by the terms of said contract is liable to complainant therefor, and that defendant refuses to fulfil its guaranty and should be decreed to pay complainant the amount found due him on this class of advertising; that defendant claims there is now due it from complainant for advertisements placed by it a sum in excess of $8,000; that complainant believes and charges the fact to be that there is no money due defendant on account of said transaction's, that complainant has overpaid defendant and that there is due complainant a large sum of money, the exact amount of which is unknown to complainant and can only be ascertained upon a complete accounting between the parties and upon a discovery by the defendant; that in addition to said amount so overpaid there is due complainant an amount in excess of $7,000 on account of defendant’s said guaranty on said mail order advertising; that on January 27,1915, defendant commenced a suit in the Municipal Court of Chicago against complainant based upon advertising placed for complainant and which covers thousands of items; that it will be impossible for complainant to defend said suit on account of facts in this bill alleged, unless an accounting is had between the parties and a discovery made by defendant; that complainant is informed and believes, and so alleges, that such accounting and discovery would make it possible to defeat defendant’s suit and to establish a counterclaim in favor of complainant for thousands of dollars; that on or about March 8, 1915, defendant threatened to bring an additional suit against complainant for an amount approximating $1,000 for advertising claimed to have been placed by it, and complainant believes that defendant, unless restrained, will commence such proceedings, and that such suits tend to harass complainant and affect his financial credit, and that the items mentioned are false and fictitious and not due from complainant; that on account of the fiduciary relations between the parties the defendant owed to complainant the utmost good faith and was bound to perform on behalf of complainant every act and thing that might inure to the financial benefit of complainant in the transactions above set forth; that the account between the parties consists of thousands of items, having reference to transactions with more than six hundred different publishers, and covers a period of sixteen months; that defendant has books and records showing its transactions with complainant; and that complainant is informed and believes, and so alleges, that said books and records will show other instances of wrongdoing by defendant and that it is indebted to complainant in a large sum of money on account thereof.
    The bill prayed that defendant make full answer thereto but not under oath (answer under oath being waived); that defendant make a full discovery of all matters and things aforesaid, and set forth a true account of all its acts with respect to the business of complainant transacted for or with complainant; that an accounting under the direction of the court be taken; that defendant be decreed to pay complainant whatever sum should appear to be due him, he being ready, and hereby offering, to pay defendant whatever sum should appear to be due defendant; that defendant make a full discovery concerning the books and records in its possession or control showing the transactions above mentioned, and permit complainant to inspect said books and records; and that, in the meantime, defendant be restrained from further prosecuting said pending suit in the Municipal Court, and from instituting any other suits growing out of said transactions.
    No answer was filed to the bill. On April 5, 1915, complainant moved for a preliminary injunction as prayed in the bill, and the court ordered that said motion be referred to a master in chancery to take proofs and report his conclusions of law and fact and his recommendations upon said motion for such injunction.
    The parties appeared before the master by their respective solicitors. On behalf of the complainant the bill of complaint was read as an affidavit; the rules of the Municipal Court were introduced and an affidavit of John F. Eosen, solicitor for complainant, was read, setting forth in full, the amended statement of claim of Nelson Chesman & Company, filed in its pending suit in the Municipal Court of Chicago against George H. Mayr. The said statement of claim consisted of four pages, to which was attached, as “Exhibit A,” a further statement consisting of twenty-seven pages of certain items of advertising, each page containing about thirty-two lines of such items. It was therein claimed that the total sum due from said George H. Mayr, after allowing all just credits, was $6,268.16. It was stipulated between counsel that Nelson Chesman & Company had other claims against George H. Mayr than those involved in said pending suit in the Municipal Court and that it intended to bring suit therefor. On behalf of the defendant the written contract of August 1,1913, mentioned in the bill, and the affidavit of A. A. Willson, manager of the Chicago office of defendant, were introduced in evidence. Defendant called as its witness the complainant, George H. Mayr, and he was examined and cross-examined at length.
    The said written contract was in the form of a proposition signed by defendant and, addressed to complainant. At the ’ bottom thereof was the writing: “Accepted by George H. Mayr.” It is therein provided in part as follows:
    “In consideration of your placing all your newspaper magazine advertising through our agency, we will agree to give you the benefit of the lowest possible net rates to our agency in all publications taken up, and charge you for said advertising 10% over and above the actual net cost to us. We are to make for you the best contract possible in all publications and to give you the benefit of- all discounts for time or space that publishers allow us. In case the amount of space contracted for is not used by you, we are to charge you back the short rate, provided we are unable to induce the publisher to cancel same, which we always endeavor to do for our clients. We are to bill you the first of each month for daily and weekly papers for insertions of the previous month and for monthly publications of the current month, and we are to allow you the cash discount for prompt payment of your bills on the same date that publishers allow this cash discount to us. * * * It is understood and agreed that you or your representative can have access to our records, files and publishers’ bills pertaining to your business. * * * The termination of this contract is one year from date, with the privilege of extension from year to year, unless written notice is given within 30 days before the expiration of same. ’ ’
    The affidavit of A. A, Willson contained allegations, in substance, as follows: That in the conduct of its business with complainant, defendant- always made contracts in its own name for space sold by it to complainant, and in all instances is directly liable to the publishers for the same; that complainant knew that his liability to pay was solely to defendant and to no other persons; that defendant did not undertake any fiduciary relation to complainant and that the relation between the parties was solely that of seller and purchaser of advertising space in publications; that defendant’s records, files and publishers’ bills, pertaining to its business with complainant, have at all times been and are now subject to complainant’s examination, and that complainant has had the same opportunity of knowing their contents as defendant, and tfiat complainant has never been denied access thereto; that in the transaction of business between the parties defendant rendered complainant monthly bills, setting forth the publications in which the advertisements were inserted, the date and price thereof, and accompanying which were copies of the newspapers containing each advertisement, and thereby complainant had ocular demonstration, by inspection, as to the amount of space occupied by the advertisements; that upon presentation of each of said monthly bills, with the exception of the last one, complainant examined the same in connection with said accompanying newspapers, and, if any errors or omissions appeared therein, called defendant’s attention to the same, and each of said monthly bills was adjusted, settled and agreed upon by the parties and paid by complainant; that complainant has within his power the means of knowing and stating any error, mistake, omission, or other fact, relating to said bills so settled and adjusted, and can definitely state the same; that defendant’s pending suit at law against complainant is for the collection of the last monthly bill rendered and for certain other unsettled items; that the account on which the suit is based has been fully stated and rendered to complainant in all its items, and that complainant has the means of verifying the correctness of the same, by examination of the advertisements themselves, as to the fact of their insertion and as to the amount of space, and has also the means by reference to defendant’s records, files and publishers’ bills of ascertaining the exact price at which defendant purchased said advertising space as well as what discounts have been allowed defendant. Nowhere in said affidavit is there contained any denial of the allegations of fraud contained in said bill of complaint.
    George H. Mayr, on direct examination by the solicitor for defendant, testified, in part, as follows:
    “I was informed that the books and records of defendant would show other instances of wrongdoing on the part of defendant by Victor H. Young. * * * He was in my employ at the time. * * * He made this statement after he had discovered a great many discrepancies. * * * I suppose it was some time in December, 1914. * * * He said he had received the information from newspaper publishers. * * * We received a great many letters from publishers showing discrepancies in the amount charged us by Nelson Chesman & Co., and the amount charged to them. * * * After we terminated the relationship we found several discrepancies. * * * I repeatedly asked for information and would have to wait until such information came from the records in St. Louis. * * * I never asked for access or inspection of the records, files or publishers’ bills. * * * The books and records were in St. Louis and * * * it was inconvenient to go there. I did not go to see the books for the reason we largely discovered the irregularities after discontinuing business, and for the reason that I supposed they would not be shown to me. * * * We did not measure the advertising for a long time, not until four or five months before we terminated our relationship. We could have ascertained the space by measuring it in the different newspapers, but we didn’t do this. We relied on Nelson Chesman & Co.”
    On cross-examination Mr. Mayr testified in part as follows:
    “For almost a year we did not measure the space. * * * Since checking up the bills and measuring the space I found discrepancies in their statements. * * * I found that they charged me for more space than I was actually consuming. * * * The bills of the newspapers were rendered to Chesipan & Co. 1 never saw any of them, and the bills rendered me by Chesman & Co. were supposed to show how much they paid the publishers. * * * Mr. Young obtained the information in regard to the space that had been used and billed to us by Chesman & Co., and he showed me the duplicate bills made by the publishers, and comparing these duplicate bills with the charges made to me by Chesman & Co. as to the total amount of space used, I found discrepancies. I can cite one instance where Chesman & Co. charged for 511 lines of advertising and the newspaper report showed that 375 lines were billed to me, and I paid for the first amount. * * * We obtained duplicate bills of short-rate charges from the publishers and I compared them with the bills rendered me by Chesman & Co. and found discrepancies. * * * I had not acquired any information up to the time of my termination of business relations with Chesman & Co. as to what they had paid the publishers. I relied upon their statements as to what they paid to the publishers as being correct.”
    It was also stipulated between counsel that it is a custom among publishers to sell advertising space at different rates varying with the amount contracted to be used within one year, and if a customer uses less than the amount contracted for during such period the publisher will charge a higher rate for such lesser amount, or what is termed the “short-rate.”
    The master found that the sworn bill of complaint stated a good and sufficient cause of action against the defendant and one which is based on well established grounds of equitable relief; that the allegations of said bill had not been denied by answer, and that the facts as sworn to therein had not been successfully controverted or denied by any of the affidavits or evidence offered by defendant. The master further found that a court of equity had jurisdiction of the cause, (1) because of the fiduciary relations existing between the parties as shown by the contract of August 1,1913; (2) because of the allegations in said bill of fraud in relation to the excess^ charge for advertising space made by defendant to complainant over and above the amounts actually paid publishers by defendant for publishing complainant’s advertisements, and in relation to the fraudulent appropriation of discounts by defendant; and (3) because of the numerous and complicated items of account in the matters in controversy between the parties; that'the said items, being several thousand in number, cannot be expeditiously or accurately adjusted or adjudicated except upon an accounting in a court of equity; that, while paragraph 68 of the Practice Act (J. & A. 8605) might relieve some of the difficulties in connection with an accounting at law, it was not as expeditious or accurate, as the method of accounting in chancery, and its existence did not supersede the jurisdiction of a court of equity; and that no demand for an accounting was necessary in view of the suit already pending in said Municipal Court, and for the further reason of the existence of the jurisdictional ground of fraud, fiduciary relations and complexity of account as a basis of equitable relief. The master recommended that a preliminary injunction issue in accordance with the prayer of the bill.
    Objections were filed to the master’s report and-they were all overruled by him. Subsequently the report was filed in court and the objections thereto were ordered to stand as exceptions, and subsequently the court, after argument, overruled said exceptions and entered the interlocutory order or decree as above mentioned.
    W. Knox Haynes and Michael Feinberg, for appellant.
    John F. Rosen, for appellee.

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

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

   Mr. Presiding Justice Gridley

delivered the opinion of the court.

This is a bill for a discovery and an accounting. It is predicated upon three well recognized grounds of equitable relief, viz.: fraud, fiduciary relations and numerous and complicated accounts. Incidental to the main relief asked the complainant prayed that, pending the hearing, the defendant be enjoined from further prosecuting its certain suit at law against complainant, and from instituting other threatened suits at law, involving some of the same transactions as are involved in the bill. Complainant’s motion for such preliminary injunction was referred to a master, and after a hearing on the sole issue whether such injunction should issue the master recommended its issuance, and subsequently the court, after hearing argument on exceptions to the master’s report, followed the recommendation and issued the order appealed from. The sole question before us is whether the Superior Court erred in granting the preliminary injunction. (Billboard Pub. Co. v. McCaraban, 151 Ill. App. 227, 233.)

The main contention of counsel for defendant is that the allegations of the bill and the evidence taken before the master disclose the existence of a remedy at law so adequate and complete as to preclude a court of equity from assuming jurisdiction, (1) because the allegations of fraud are insufficient and for aught that appears in. the bill a court of law may apply an adequate and complete remedy; (2) because the facts stated in the bill do not show a fiduciary relation between the parties but merely that of debtor and creditor; (3) because it does not appear that the accounts are complicated, though numerous; and (4) because the Municipal Court as a court of law, having first acquired jurisdiction, has, by reason of section 68 of the Practice Act (J. & A. ¶ 8605) and section 9 of chapter 51 of the Revised Statutes of this State (J. & A. ¶ 5526) and other statutes, every facility that a court of equity has for the conducting of an accounting.

Passing the question whether the facts stated in the bill sufficiently show that a fiduciary relation existed between the parties, we are of the opinion that the bill' alleges sufficient facts showing fraud (which are not denied), and that the bill and the evidence taken before the master sufficiently disclose that the accounts are numerous and complicated, so as to give a court of equity jurisdiction. “Courts of equity have jurisdiction to compel an accounting, although the complainant has an adequate remedy at law, where fiduciary relations exist, or fraud is charged, or a discovery is sought.” (1 Ruling Case Law, p. 224; Billboard Pub. Co. v. McCarahan, 151 Ill. App. 227, 235.) “Fraud is one of the broadest grounds of equity recognized by the courts. * * * It is the fraud which gives jurisdiction to this court, and the aggrieved party is not obliged to resort to another tribunal, possessed of less power and appliances to ascertain the truth, and grant the required remedy, although the other tribunal may have jurisdiction.” (Nelson v. Rockwell, 14 Ill. 375, 376.) “Where the state of accounts between the parties is complicated and intricate, where the state of accounts between the parties is involved with third parties, where to do justice requires the employment of methods of investigation peculiar to courts of equity, and where it would be very difficult for a jury to unravel the numerous transactions, are conditions usually held to be sufficient to give a court of equity jurisdiction. The jurisdiction in equity does not, in such cases, depend upon the absence of a remedy at law, but upon its adequacy or practicability and upon the discretion of the court.” (Crown Coal & Tow Co. v. Thomas, 177 Ill. 534, 540.) “In respect to the consideration of matters of account, the equitable jurisdiction of courts of equity is concurrent with that of courts of law, and no precise rule can be laid down as to the cases in which a court of equity will exercise its jurisdiction. A court reserves to itself a large discretion upon the subject and will refuse or reject the cognizance of cases of account as the circumstance of the particular case may render expedient.” (Forster, Waterbury & Co. v. Webster Mfg. Co., 108 Ill. App. 41, 46.) And we think that it was proper for the Superior Court, having jurisdiction as a court of equity of the present bill for an accounting, to issue the preliminary injunction as incidental to the main relief prayed for. “The existence of a defense at law does not make an injunction against the action at law improper when for any reason the court of equity is a more suitable tribunal for the determination of the matter, or where equitable remedies, unavailable in the court of law, are necessary.” (22 Cyc. 798; see also Forster, Waterbury & Co. v. Webster Mfg. Co., supra.) And, even admitting for the sake of the argument only that the Municipal Court as a court of law has, by reason of the statutes mentioned, every facility that a court of equity has for the conducting of an accounting, that fact, in our opinion, does not deprive the Superior Court as a court of equity, under the facts of the present- case, of its long recognized jurisdiction in matters of account. (1 Corpus Juris, p. 619; 1 Story’s Eq. Jur., kec. 80; 1 Pomeroy’s Eq. Jur., sec. 279; Garden City Sand Co. v. People, 118 Ill. App. 372, 375; Grimes v. Hilliary, 38 Ill. App. 246, 248; Kendallville Refrigerator Co. v. Davis & Rankin, 40 Ill. App. 616, 625.)

And we do not think that under the facts disclosed there is any merit in the contention of counsel for defendant that the bill is fatally defective because no demand was made by complainant for an accounting before the bill was filed. (1 Corpus Juris, p. 627; Chrichton v. Hayles, 176 Ala, 223, 228.)

It is further contended by counsel for defendant that as it appears from the bill and the evidence taken before the master that defendant rendered monthly accounts to complainant, which accounts except the last one were settled and paid by complainant, said accounts cannot be opened up except as to particular items claimed to be erroneous. Under the facts disclosed we are of the contrary opinion. In State v. Illinois Cent. R. Co., 246 Ill. 188, 241, it is said: “The terms ‘stated’ and ‘settled’ accounts are sometimes used as equivalent expressions. * * * An account stated is only prima facie evidence .of its correctness. * * * It may be impeached for fraud or mistake. The general rule is, that in an application to open a stated account the plaintiff mush either charge fraud or state particular errors. If a complainant seeks the aid of a court of chancery under such circumstances, the charges in the bill must be definite and reasonably certain. ’ ’ In the present bill there are definite charges of fraud in connection with said monthly bills or accounts rendered. “While an account stated or settled will ordinarily, bar discovery and relief, yet if the balance ascertained is not correct or the settlement is infected with mistake or fraud, or brought about by undue advantage, equity will entertain jurisdiction for the purpose of opening it for restatement or for correction in part.” (1 Corpus Juris, 716.)

For the reasons indicated we are of the opinion that the Superior Court did not err in entering the interlocutory order or decree appealed from, and the same is affirmed. '

Affirmed.