author: Mr. Presiding Justice Goodwin Mr. Justice O’Connor dissenting:

text:
    The People of the State of Illinois ex rel. Maclay Hoyne, Appellant, v. W. W. Grant et al., Appellees.
    Gen. No. 23,155.
    1. Courts, § 151

      —when opinion of Appellate Court is not binding in another cause. Under the statutory provision (J. & A. It 2977) providing that the opinions of the Appellate Court shall not be of binding authority in any cause or proceeding other than that in which they are filed, the opinion of one branch of that court on certain questions does not bind another branch of that court in another suit in which the parties are different, though the same questions are involved.
    2. Courts, § 146*-—where conclusions of Supremo Court are to be found. The conclusions of the Supreme Court in regard to questions of law are to be found in its reported decisions and are not to be deduced inferentially from its action in denying writs of certiorari.
    3. Courts, § 146*—how language in decision must be construed. The language used by the court in rendering a decision must be taken in connection with the circumstances in which it was rendered.
    4. Certiorari, § 57*—what is effect of denial of writ by Supreme Court. By denying a writ of certiorari, the Supreme Court does not review the judgment of the Appellate Court but declines to do so, which does not make the judgment of the latter court final, but leaves its finality undisturbed.
    5. Courts, § 150*—when action of Supreme Court in denying petition for writ of certiorari in a case decided by the Appellate Court does not bind Appellate Court of another department. The action of the Supreme Court in denying a petition for a writ of certiorari in a case decided by the Appellate Court does not constitute an authoritative declaration in regard to the questions of law involved so as to preclude the Appellate Court of another department from passing upon such questions in another proceeding in which the parties are not the same as in the first suit.
    6. Corporations, § 325*—what powers are possessed by. Corporations, whether for pecuniary profit or otherwise, have such powers, and such only, as are vested in them by the laws of the State under which they are organized.
    7. Corporations, § 181*—what is discretion of association as to

      place of election of trustees. Under the powers conferred by section 32 of the Corporation Act (J. & A. If 2450), on corporations not for pecuniary profit, the place at which the trustees of an association organized thereunder are to be elected is left to the discretion of the association, and it is not required that the election be held within the State.
    8. Corporations, § 333

      —when may not perform corporate acts' outside of State. While business corporations and organizations of a like nature, such as insurance companies and benefit associations, may engage in-business in foreign jurisdictions, they may not perform corporate acts outside of the State, unless such authority has been directly conferred upon them.
    9. Corporations, § 8*—distinctions between those for pecuniary profit and those not. The fundamental distinctions between corporations for pecuniary profit and those not for pecuniary profit discussed.
    10. Corporations, § 326*-—how powers of not for pecuniary profit interpreted. The character and purposes of corporations not for pecuniary profit are such as to warrant a liberal interpretation of the broad powers conferred upon them as to their place, manner of selecting officers, and similar matters.
    11. Statutes, § 196*—how interpreted. A statute is to be interpreted in the light of the circumstances in which it was enacted.
    12. Statutes, § 205*-—what presumption raised as to intention of Legislature in enacting statute authorizing election of trustees of corporation not for pecuniary profit. The Legislature in adopting section 32 of the Corporation Act (J. & A. If 2450), authorizing corporations not for pecuniary profit to elect trustees “at such times and places” as they may determine upon, is presumed to have had in mind the matter of common knowledge that many of the organizations of that character had memberships scattered throughout the country and were accustomed to hold their meetings, from time to time, at different large cities.
    13. Corporations, § 71*—when by-law sttffieiently provides place for election of trustees of corporation not for pecuniary profit. A by-law provision which fixes the method by which the place for the election of the trustees of the corporation shall be determined sufficiently provides for the place of election within the provision of section 32 of the Corporation Act (J. & A. If 2450), that the election of the trustees of corporations not for pecuniary profit may be held at such places “as may be provided by the by-laws.”
    14. Corporations, § 184*—how trustees of corporation not for profit may be elected. Under section 32 of the Corporation Act (J. & A. If 2450), a corporation not for pecuniary profit which has a membership scattered throughout the country may elect the trustees through delegates selected by local groups of members, notwithstanding the provision of section 31 (J. & A. 1f 2449), giving members the right to vote in person or by proxy at special and annual meetings.
    15. Corporations, § 184

      —what is purpose of statute giving members right to vote by proxy. The purpose and effect of section 31 of the Corporation Act (J. & A. If 2449) is merely to secure to members the right to vote by proxy upon such matters as properly come before special and annual meetings of the corporation.
    O’Connor, J., dissenting.
    Appeal from the Circuit Court of Cook county; the Hon. Oscar E. Heard, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1917.
    Affirmed.
    Opinion filed November 30, 1917.
    Stedman & Soelke, for appellant; Swan M. Johnson, of counsel.
    Loesch, Scofield, Loesch & Richards, for appellees.

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

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

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

   Mr. Presiding Justice Goodwin

delivered the opinion of the court.

Appellant, who will be referred to as the relator, seeks the reversal of a judgment in favor of appellees, who will hereinafter be referred to as defendants, in a proceeding in which he had, by the permission of the court, filed an information against the defendants, alleging, in substance, that the American Medical Association was a corporation not for pecuniary profit, organized under the laws of the State of Illinois in 1897, with a charter which vested its management in nine trustees to be elected as the by-laws might direct; that there was no power or authority under the laws of the State of Illinois permitting it to elect a board of trustees “without the said State of Illinois’’; that it adopted by-laws providing that the State and local organizations should elect delegates to a national House of Delegates, which should elect trustees “at such place in such city and State as such House of Delegates might assemble”; and that the association had no power to deprive members “of the right to vote for and elect a board of trustees,” or to elect such trustees “without the boundaries, of the State of Illinois.” It further alleges that three of the respondents were elected trustees in Minneapolis, Minnesota, in 1913, three.in Atlantic City, New Jersey, in 1914, and three in San Francisco, California, in 1915, and that they usurped the office of trustee of the American Medical Association.

When defendants ’ demurrer to this information was sustained, relator elected- to stand by the information, and judgment was entered for the defendants. The language of the information stating the provisions of the by-laws in regard to the election of trustees is not clear, but counsel for relator have set out in their briefs the provisions of the by-laws recited in relator’s petition for leave to file the information, as follows:

“Article 3—Membership.
“The membership of this association shall consist of"such members of the constituent associations and of such medical officers of the army, of'the navy and of the United States public health and marine hospital service as shall make application in accordance with the by-laws hereinafter provided.
“Article 4—Constituent Associations.
“State and territorial medical associations which have, or which hereafter may, become organized in accordance with the general plan of organization of the American Medical Association, and * * * declare allegiance to the formation and the perpetuation of the House of Delegates of the American Medical Association shall be recognized as constituent associations, etc.
“Article 5—House of Delegates.”

Section one provides that the business body shall be known as the House of Delegates and “consist of delegates elected by the constituent associations, by the scientific sections of the American Medical Association, from the medical departments of the army and of the navy, and from the United States public health and marine hospital service”; that the House of Delegates shall represent the “delegated powers * * * and shall be the national representative body of the constituent associations. ’ ’

Counsel further say that the by-laws provide that the House of Delegates shall elect the general officers of the association and the trustees; that its membership shall not exceed 150.

The position of the relator is that an election of a trustee at a meeting held outside of the State of Illinois is void, and that the provisions for the election of delegates by State and medical associations, and the election of trustees by such delegates, áre also void. These questions were before another division of this court in People v. Hoyne, 182 Ill. App. 42, and in that case a majority of the court sustained the contentions now made by the relator. There seems to have been ah assumption on the part of the relator that this decision is binding upon the parties to the instant suit, but obviously it is not, since the statute expressly provides “that such opinions shall not be of binding authority in any cause or proceeding other than that in which they may be filed.” This is not the same cause, nor are the parties the same. On the argument it was further suggested that as an application had been made to the Supreme Court in that case for a ■writ of certiorari and denied, the court, by such action, passed upon the merits of the controversy, and thus declared itself to be in harmony with the conclusion reached by the Appellate Court. This contention, in our judgment, involves an entire misconception of the purpose and effect of the statutory provisions in regard to writs of certiorari. Those provisions are substantially identical with a section of the United States statute providing for the issuance of writs of certiorari to the Circuit Court of Appeals, which is as follows:

“In any case, civil or criminal, in which the judgment or decree of the circuit court of appeals is made final by the provisions of this Title, it shall be competent for the Supreme Court to require, by certiorari or otherwise, upon the petition of any party thereto, any such case to be certified to the Supreme Court for its review and determination, with the same power and authority in the case as if it had been carried by appeal or writ of error to the Supreme Court.”

The conditions' which led to the enactment of the State statute were also substantially similar to those which brought about the provision for writs of certiorari to the United States Circuit Court of Appeals, referred to by Mr. Justice Brewer in Forsyth v. City of Hammond, 166 U. S. 506, at page 511, where he says:

“Up to the time of the passage of the Act of 1891, creating the Circuit Courts of Appeal, the theory of federal jurisprudence had been, a single Appellate Court, to wit, the Supreme Court of the United States, by which a final review of all cases of which the lower federal courts had jurisdiction was to be made. * * * The rapid growth of the country and the enormous amount of litigation involving questions of a federal character so added to the number of cases brought here for review, that it was impossible for this court to keep pace with the growing docket. The situation had become one of great peril, and many plans for relief were suggested and discussed.” He then states the provisions for the Circuit Courts of Appeal, and continues:

. “It was obvious that all contingencies in which a decision by this tribunal was of importance could not be foreseen, and so there was placed in the act creating the Courts of Appeal, in addition to other provisions for review by this court, this enactment:”

He then quotes the language of the statute, and later continues:

“Obviously, a power so broad and comprehensive, if carelessly exercised, might defeat the very thought and purpose of the act creating the Courts of Appeal. So exercised it might burden the docket of this court with cases which it was the intent of Congress to terminate in the Courts of Appeal, and which, brought here, would simply prevent that promptness of decision which in all judicial actions is one of the elements of justice.

“So it has been that this court, while not doubting its power, has been chary of action in respect to certioraries. It has said: ‘It is evident that it is solely questions of gravity and importance that the Circuit Courts of Appeal should certify to us for instruction; and that it is only when such questions are involved that the power of this court to require a case in which the judgment and decree of the Court of Appeals is made final, to be certified, can be properly invoked. ’ ”

It seems a conclusive answer to the relator’s contention to say that, during the 26 years that the United States certiorari act has been in force, there does not appear to be a case in which counsel have suggested that the Supreme Court, by denying the writ of certiorari, stamped the conclusions of the court of appeals with its approval, and impliedly made a declaration in regard to what was the law. The language of the statute does not require our Supreme Court to issue a writ of certiorari in any case, but merely provides that it shall be competent for it to do so; nor does it require the court to pass upon the merits of the controversy presented, but leaves that to the discretion of the court, to be exercised in every case. So, in the case cited here, the question considered upon the application for the writ was not necessarily the one as to the correctness of the conclusions of this court. The Supreme Court first had presented to it the question of whether there was anything in the circumstances of the case which made it expedient for it to pass upon the merits of the controversy and to declare the law. Obviously it was competent for the Supreme Court to go into the merits of the contentions made in the petition, but it was equally competent for it to say that as, under the decision of the Appellate Court, the questions involved would again be presented in a quo warranto proceeding in which all the parties in interest would be before the court, it would be better to pass upon them in that case, in which a binding adjudication of the rights of all the parties could be made. Any inference, therefore, as to the opinion of the Supreme Court in regard to the correctness of the conclusion reached by the Appellate Court must necessarily rest upon speculation and conjecture. The function of finally declaring the law of the State rests with its Supreme Court, and is accomplished by means of its opinions, in which it speaks through its justices. The only safe rule would, therefore, appear to be that its conclusions in regard to the law are to be found in its reported opinions, and not deduced inferentially from its action in denying writs of certiorari. We are aware that in the case of Soden v. Claney, 269 Ill. 98, the court remarked that: “It does not follow that such a denial of a petition for the writ of certiorari is an approval of the. reasons upon which the Appellate Court bases its judgment, but it is an approval of the conclusion reached, and is therefore, in effect, an affirmance of the judgment”; and later, that: “The effect of denying Claney’s petition for the writ of certiorari was to hold that there were no probable grounds for the reversal of the judgment of the Appellate Court so far as it affected the rights of Claney as a defendant in the original bill”; but this language of the court must be taken in connection with the circumstances in which it was used. In that case, the court expressly stated: “These petitions were considered upon their merits, and the petition of Claney was denied.” The case goes no further than to hold that when the Supreme Court has denied a petition for a writ of certiorari, the judgment ' of the Appellate Court, so far as the petitioner is concerned, will not thereafter be reconsidered. The effect of a denial of a writ of certiorari, though conclusive, is purely negative. By its action, the Supreme Court does not review the judgment of the Appellate Court, but declines to do so. This does not make the judgment of the Appellate Court final, but it leaves its finality undisturbed. For these reasons we are constrained to hold that the action of the Supreme Court in denying the State’s Attorney’s petition for a writ of certiorari in the case cited does not constitute an authoritative declaration in regard to the questions of law involved, and that so far as any action by the Supreme Court is concerned, these questions are still open. It, therefore, devolves upon us to consider the merits of the points presented.

The first question is, was the election of trustees of the American Medical. Association void because held outside the limits of the State of Illinois? Corporations, whether for pecuniary profit or otherwise, have such powers, and such only, as are vested in them by the law of the State under which they are organized. Corporations not for pecuniary profit, such as the association in question, have, by section 32 of the Corporation Act (J. & A. 2450),been given power to elect trustees “in such manner, at such times and places, and for such periods as may be provided by the certificate of incorporation, or in case such certificate does not contain such provisions, then as may be provided by the by-laws.” It will be seen that the place at which the trustees are to be elected is left absolutely to the discretion of the association, without any express qualification. It cannot be doubted that it was within the plenary legislative power of the General Assembly to authorize corporations of this character to hold elections of trustees at any place, whether within or without the limits of the State. In conferring the power upon the association they have chosen to use language of a broad and unrestricted character, which in itself places no limitation upon the association’s choice of place. Had it chosen to limit this authority to places “within the State,” presumably it would have done so by the use of those simple and apt woyds. Cases stating that it is the general rule that corporations have no power to do so-called “corporate acts” outside of the State creating them are clearly not in point; the basis for that rule is an absence of legislative authority, and here, as we have seen, unrestricted authority has been given. But those cases are also inapplicable for another obvious reason. The rule has been evolved and applied only to cases involving business corporations and organizations of a like nature, such as insurance companies and benefit associations, and in regard to such organizations it has been held that, while they may engage in business in other jurisdictions, they may not perform corporate acts outside of the State, unless such authority has been directly conferred upon them, and the cases in which this has been held abound in reasons based upon the jeopardy of the pecuniary interest of the stockholders, and the desirability of keeping the corporate acts of such corporations within the control of the sovereignty creating them. It may Well be that this limitation upon the powers' of business corporations is the result of judicial legislation, but it seems firmly fixed in the law.

Although we are of the opinion that the Legislature has given express authority to corporations not for pecuniary profit to hold elections of trustees at any place, whether within or without- the limits of the State, we are further of the opinion that, in the ahsence of such express legislative authority, the decisions which hold that business corporations cannot, in the absence of express legislative authority, hold such elections outside of the State, would not warrant a conclusion that in such circumstances the corporations not for pecuniary profit could not do so. The principles which govern the interpretation of statutory provisions providing for the creation of corporations for pecuniary profit are essentially and necessarily different from those governing the construction of provisions for the incorporation of associations not , for pecuniary profit. In the former class, the directors, under the sanction of the State, become the trustees of the fortunes of the stockholders in whole or in part. To a certain extent, both directors and stockholders are relieved from financial responsibility for the acts of the corporation, and there is a concentration of financial power which may, according to circumstances, become greatly beneficial or exceedingly hurtful to the interests of the public. It is, therefore, obviously desirable that acts of a business corporation of a purely corporate nature be done within the domain of its creator, and consequently under its control. Associations not for pecuniary profit, however, are essentially different in their nature; they are organized for the mutual benefit of the members, or for the promotion of the general welfare, or both, and include a multitude of organizations for the advancement of education, science, commerce and industry, and for other beneficent purposes, and, when possessed of a membership of a general character, constitute integrating strands tending to give solidarity to the country in peace and in war. Consequently, there is every reason to give a liberal interpretation to the broad powers permitting them to determine for themselves the questions of where they shall meet, how they shall select their officers, and all other matters of like nature. Again, we must bear in mind the fundamental principle of statutory construction that a law is to- be interpreted in the light of the circumstances in which it was enacted. We cannot lose sight of the fact that when the act under consideration was passed, innumerable associations not for pecuniary profit existed, having memberships scattered throughout the country, and accustomed to meet from time to time in different centers of population. This plan had been adopted for the obvious purpose of giving members an approximately equal opportunity to attend a general meeting of the association, and tended to preserve their unity and the interest of the members. All this was a matter of common knowledge, and it was, therefore, with this in view that the Legislature conferred upon such organizations power to elect trustees “at such times and places” as it might determine upon.

It was suggested in the opinion of the court in People v. Hoyne, supra, that this statute says, “as may be provided by the by-laws,” and that the bylaws in this case do not definitely fix the place at which the elections shall be held. While that point is not before us, since it is not covered by the information, the by-laws set out in the State’s Attorney’s petition for leave to file the information definitely fix the method by which the place of election shall be determined; this is, in our view, providing for the place of 'election within the meaning of the statute. On the first question raised by the information, we are, therefore, clearly of the opinion that the association had the power to éleet trustees at places outside of the State of Illinois.

The final question arises, then, as to whether the method adopted for electing the trustees of the association violated the provisions of the statute. There is, so far as we know, no principle of law which, in the absence of statutory provisions, requires that the trustees of an association or society, not for pecuniary profit, shall be elected in any particular manner or by any particular method. The statute itself, in the very broadest language, permits such associations to elect their officers “in such manner” as they may see fit to provide in their articles of incorporation or bylaws. We do not see how broader language could be used. Again, we must recall that when the statute was passed, it was a very general custom for political organizations and societies organized for other purposes, which had a large membership, to choose their officers and directors through delegates selected for that purpose. We see nothing unfair or contrary to public policy in permitting organizations having a widely scattered membership to provide for the election of trustees through delegates selected by local groups of members, nor do we see any reason for holding that the Legislature, when it stated that the trustees should be elected in the manner that might be provided by the by-laws, intended, notwithstanding this broad language, impliedly to prohibit the method selected in this particular case and which was in general use at the time the act was passed. Delator’s argument in this regard is based upon section 31 of the Corporation Act (J. & A. 2449), which, in providing for special and annual meetings, says that “At any such meeting, members of the corporation may take part and vote in person or by proxy.” What was the purpose of this provision? Obviously it required no legislative enactment to secure to a member the right to take part and vote at an annual meeting of his association. The provision clearly was for the purpose of securing to him the privilege of exercising that right by proxy, and so to take part in the meeting, although it might be physically impossible for him to attend. There is nothing in the statute which expressly or by implication prescribes the nature of the business which shall come before the special and annual meetings of the association; these are matters of internal regulation left to the association itself and, as indicated, we are of the opinion that the phrase does no more than to secure to a member the privilege of voting by proxy upon such matters as properly come before a' meeting. Upon this point " also we have arrived at a conclusion different from that reached in People v. Hoyne, supra.

While we prefer to follow the former opinions of the Appellate Court wherever possible, the statute expressly provides that such opinions are not to be considered binding upon us except in the same case. From this it seems clearly to be our duty to differ from a former opinion where, after a careful and painstaking consideration of the question involved, we arrive at an opposite conclusion.

For the reasons above stated, the judgment of the Circuit Court is affirmed.

Affirmed.

Mr. Justice O’Connor dissenting:

I am constrained to dissent from my brethren in this case.

In 1911,' Dr. Gr. Frank Lydston presented a petition for an information in the nature of a quo warranto to the State’s Attorney of Cook county and requested him to sign it. The petition stated the facts substantially the same as they appear in the instant case. The State’s Attorney refused to sign the petition, and thereupon Dr. Lydston filed a petition for a writ of mandamus to compel him to do so. A demurrer was sustained to the petition for mandamus and it was dismissed. An appeal was. taken to another division of this court, where by a divided court the judgment was reversed and the cause remanded. People v. Hoyne, 182 Ill. App. 42. Thereupon, by agreement of counsel, it was stipulated that appellees in that case should stand by their demurrer so that a decision might be had by the Supreme Court. The order reversing and remanding the cause was set aside, the demurrer was overruled and final judgment entered in this court awarding a peremptory writ of mandamus commanding the State’s Attorney to sign the petition. The case was taken to the Supreme Court, and it was there held that this court was without jurisdiction to enter the judgment appealed from, and it was reversed and the cause remanded to this court with directions to remand the cause to the trial court in accordance with the opinion of this court. The merits of the controversy were in no way passed upon by the Supreme Court; the only question considered was one of practice. People v. Hoyne, 262 Ill. 82. After the mandate of this court was filed, the demurrer was overruled, in accordance with the decision of this court. The State’s Attorney elected to stand by his demurrer, and a final judgment was entered awarding a peremptory writ of mandamus commanding him to sign and file the petition. He appealed to this court, where the judgment of the trial court was affirmed. People v. Hoyne, 195 Ill. App. 51. Thereafter a petition for certiorari was denied bv the Supreme Court. Pursuant to the decision of this court, the State’s Attorney signed and filed the petition for leave to 'file an information in the nature of a quo warranto. Leave was granted and the information filed. The defendants demurred to the information, the demurrer was sustained, the information dismissed, and this appeal followed.

I am of the opinion that the law governing this case was declared by the former decisions of this court and the action of the Supreme Court in denying certiorari. It is true that the defendants in this case were not before the court in the former proceedings, and therefore what was there said and done could not be res adjudicóla against them. People v. Wayman, 256 Ill. 151. But the principles of law governing the controversy were carefully considered and discussed and necessarily determined by this court, and the Supreme Court by denying certiorari made the judgment of this court, under section 121 of the Practice Act (J. & A. jf 8658), final. And while such denial by the Supreme Court is not necessarily an approval of the reasons given in the opinion of this court for its judgment, yet it is an approval of the conclusions reached. Soden v. Claney, 269 Ill. 98.

In the petition for the writ of mandamus against the State’s Attorney, two questions were involved: (1) Whether the trustees of the American Medical Association, an Illinois corporation not for pecuniary profit, could be elected outside of this State; and (2) could the by-laws of the association lawfully provide for the election of trustees by delegates instead of by members. The petition for mandamus sought to compel the State’s Attorney to sign a petition for leave to file an information in the nature of a quo warranto, whereby it sought to oust certain trustees of the American Medical Association on the ground that they were illegally acting as such, for the reasons that the election took place outside of Illinois, and was held by delegates in place of by members. If neither of these grounds would invalidate the election of the trustees, then the petition for mandamus against the State’s Attorney would not lie. People v. Healy, 231 Ill. 629. It was therefore necessary to pass on these two contentions. In the Healy case, supra, the trial court sustained a demurrer of the State’s Attorney to a petition of the People on the relation of certain parties claiming to be members of the Board of Education of Chicago, praying for a writ of mandamus against the State’s Attorney commanding him to sign and file a petition for leave to file an information in the nature of a quo warranto on behalf of the People on the relation of the same parties, against certain other persons, calling upon the latter to show by what authority they claimed to be members of the Board of Education of Chicago. In deciding the question, the Supreme Court said there were two questions involved: First, whether the State’s Attorney was possessed of an uncontrolled discretion to file or refuse to file the petition; and second, whether the mayor of Chicago had power to remove from office members of the Board of Education. The court there said (634): “If the State’s Attorney has such discretion he cannot be coerced by the writ of mandamus, and if the mayor has such power the writ in this case would not be awarded, for the reason that the object sought would be unattainable and the writ useless.” And continuing the court said (635): “The second question has been exhaustively argued by counsel on both sides and must necessarily be decided for the reasons above stated.” The court there held that the State’s Attorney did not have an arbitrary and uncontrolled discretion, and that the mayor did not have the power to remove members of the Board of Education. And while in that case the parties directly interested, viz., the members of the Board who were sought to be ousted, were not before the court, yet the law governing their appointment and removal was necessarily determined. So also in the instant case, the law governing the election of trustees of the-American Medical Association was necessarily determined by this court on the former appeals, and when the Supreme Court denied certiorari it was, in effect, an approval of the judgment of this court. In the Soden case, supra, the court said (101): “By section 121 of the Practice Act (J. & A. jf 8658) the judgments or decrees of the Appellate Court are made final in all cases except those wherein appeals and writs of error are specifically required by the constitution to be allowed from the Appellate Courts to the Supreme Court, or in cases where certificates of importance are allowed by the Appellate Court, or in cases which the Supreme Court may require to be certified to it by certiorari or otherwise. The denial by this court of a petition for certiorari in a case not required by the constitution to be reviewed by this court and where a certificate of importance has not been issued • by the Appellate Court makes the judgment of the Appellate Court in that case final. It does not follow that such a denial of a petition for the writ of certiorari is an approval of the reasons upon which the Appellate Court bases its' judgment, but it is an approval of the conclusion reached, and is therefore, in effect, an affirmance of the judgment. ’ ’

I am therefore of the opinion that the action of the Supreme Court in denying the petition for a writ of certiorari was, in effect, an affirmance of the judgment of this court, and that we should follow the law as laid down in the former decisions of this court. The petition now before us is identical with the petition which was before this court on the former appeals, except the substitution of the names of three different trustees who were elected subsequent to the filing of the first petition. The briefs, arguments, authorities cited, and the points now urged are the same as the briefs, arguments, authorities cited and the points urg’ed on the former appeals. So that it conclusively appears, and it is undisputed, that the case was thoroughly presented to this court on the former' appeals and to the Supreme Court on the petition for a writ of certiorari.

In the majority opinion the federal statute concerning the issuance of the writ of certiorari by the Supreme Court of the United States is referred to and a portion of the opinion of that court by Mr. Justice Brewer in the case of Forsyth v. City of Hammond, 166 U. S. 506, is quoted, where it is said:

* “It is evident that it is solely questions of gravity and importance that the Circuit Courts of Appeal should certify to us for instruction; and that it is only when such questions are involved that the power of this court to require a case in which the judgment and decree of the Court of Appeals is made final, to be certified, can be properly invoked.”

And the argument is made that because our statute is somewhat similar to the federal statute, by analogy it is only where there are questions of “gravity and importance” involved that our Supreme Court will issue the writ. With this I cannot agree, for it is a matter of common knowledge that at every term of the Supreme Court of this State writs of certiorari are awarded where no such questions are involved; but it appears that the only questions before our Supreme Court on application for the writ is the correctness of the decision of the Appellate Court, and that where the Supreme Court is of the opinion that the decision of the Appellate Court is wrong or involved in considerable doubt, the writ issues. Moreover this argument is directly contrary to the interpretation of the statute by the Supreme Court in the Soden case, supra.

In an article by Mr. Chief Justice Carter of the Supreme Court of Illinois, in the November, 1917, issue of the Illinois Law Review, the Illinois certiorari law is discussed and the method pursued by the Supreme Court of this State in passing on petitions for certiorari is clearly and exhaustively .set forth. The number of petitions filed for the different periods is stated, and it is said that 186 of such petitions were filed in .the Supreme Court from July 1, 1916, to July 1, 1917, and that from one-fourth to one-third of the number filed were allowed each year. The Chief Justice there said (p. 239): “The practice of the court is always to allow a petition in any case in which a considerable number of the judges are in doubt whether the case was decided rightly in the trial court.” And from a reading of the entire article it is clear that each petition is carefully considered upon the merits with a view to determining whether the Appellate Court has reached the right result between the litigants, and where the Supreme Court agrees with the result the writ is denied; but where the Supreme Court disagrees, or a considerable number of the judges are in doubt on that question, the writ is awarded.

In my opinion, therefore, there is no escape from the conclusion that the law governing the instant case has been passed upon by the Supreme Court; however, if the question of statutory construction were open for our consideration, I would be inclined to agree with the reasoning of the majority opinion.


source: Caselaw Access Project

author: Mr. Presiding Justice Goodwin

license: Public Domain

text:
    Greek-American Sponge Company, Appellee, v. B. Van Buren, Appellant.
    Gen. No. 23,169.
    (Not to ¡be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Arnold Heap, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1917.
    Affirmed.
    Opinion filed November 30, 1917.
    Rehearing denied December 12, 1917.
    Statement of the Case.
    Action for.goods sold and delivered by the G-reek-American Sponge Company, a corporation, plaintiff, against B. Van Burén, defendant. From a judgment for plaintiff for $369.89, defendant appeals.
    Rathje & Weseman, for appellant.

      Abstract of the Decision.
    1. Appeal and erbob, § 1411

      -—when judgment for plaintiff not disturbed. In an action for goods sold and delivered, where the evidence, while conflicting, is sufficient to support it, a judgment for plaintiff will not he disturbed.
    2. Evidence, § 67*—when properly excluded. It is not error to refuse to admit evidence which does not tend to prove any issue in dispute.
    3. Sales, § 329*—when evidence supports verdict for plaintiff. In an action for goods sold and delivered, evidence held to support a verdict for plaintiff.
    Elbert C. Ferguson, for appellee.

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

   Mr. Presiding Justice Goodwin

delivered the opinion of the court.


text:
    Morand Brothers, Appellee, v. Clyde R. Bates, trading as the Blackstone Buffet, Appellant.
    Gen. No. 23,176.
    (Not to he reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Leo J. Doyle, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1917.
    Reversed.
    Opinion filed November 30, 1917.
    Statement of the Case.
    Action by Morand Brothers, a corporation, plaintiff, against Clyde B. Bates, trading as the Blackstone Buffet, defendant, for goods sold and delivered. From a judgment for plaintiff for $56.42, defendant appeals.
    Bither & Goff, for appellant.
    No appearance for appellee.

      Abstract of the Decision.
    Sales, § 329

      —when evidence insufficient to show purchase on account of defendant. In an action for goods sold and delivered, evidence held insufficient to show that defendant was the proprietor of the saloon for whmh they were purchased or that they were purchased on his account.

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

   Mr. Presiding Justice Goodwin

delivered the opinion of the court.


text:
    John B. Joslyn, Appellee, v. Martha S. Simmons, Appellant.
    Gen. No. 23,183.
    (Not to be reported in full.)
    Abstract of the Decision.
    Municipal Court of Chicago, § 13*—when filing affidavit of claim instead of amended affidavit of attachment is not ground for

      reversal. Where, on attachment in the Municipal Court of Chicago, a proper affidavit for attachment has been made, the statutory bond filed and due notice given, and defendant appears specially to move to quash the writ, a judgment properly entered thereon will not be reversed because, after filing such affidavit, plaintiff, having been given leave to file an amended affidavit for attachment, filed an “amended affidavit of claim,” unaccompanied by bond, which was in substance and form an affidavit of claim and formed a proper basis for a personal judgment, and defendant obtained leave to have his special appearance “stand to plaintiff's amended statement of claim,” and entered a new motion to quash.

      Appeal from the Municipal Court of Chicago; the Hon. John Stele, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1917.
    Affirmed.
    Opinion filed November 30, 1917.
    Statement of the Case.
    Attachment by John B. Joslyn, plaintiff, against Martha S. Simmons, defendant. From a judgment for plaintiff for $40.30, defendant appeals.
    A. J. Deutschman, for appellant.
    No appearance for appellee.
   Mr. Presiding Justice Goodwin

delivered the opinion of the court.


author: Mr. Justice O’Connor

text:
    Joseph Lesczauskis, Appellee, v. William Downs, Appellant.
    Gen. No. 23,122.
    (Not to he reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Sheridan E. Fey, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1917.
    Affirmed.
    Opinion filed November 30, 1917.
    Rehearing granted January 19, 1918. Opinion on rehearing filed March 13, 1918.
    Statement of the Case.
    Action by Joseph Lesczauskis, plaintiff, against William Downs, defendant, to recover on a bond signed by defendant as surety for the faithful performance of a building contract. From a judgment for plaintiff for $2,234.34, defendant appeals.
    Henry L. Wilson, for appellant.
    Charles C. Bodenstab, for appellee.

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

   Mr. Justice O’Connor

delivered the opinion of the court.

Abstract of the Decision.

1. Judgment, § 493 —when record of judgment against principal admissible against surety. A record of a judgment against the principal, a building contractor, is admissible in an action against the surety on the bond where there is no contention that any fraud was used in obtaining the judgment against the "principal, or that the various items or expenses which it was claimed were expended in the completion of the building, upon default of the contractor, were not correct, or that the amount of the judgment making up these items was not correct, and constituted a prima facie case.

2. Appeal and error, § 1411*—when finding of jury not disturbed. A finding of a jury based on conflicting evidence, and sustained by the trial judge, will not be disturbed on appeal.

3. Judgment, § 493*-—what does not affect admissibility of against principal in action against surety. The admissibility of a record of a judgment against the principal on a building contractor’s bond, in an action against the surety on the bond, is not affected by the fact that the first action was in assumpsit and the later action was in debt.


text:
    Northern Trust Company, Trustee, Appellee, v. Sidney J. Knowles, Appellant.
    Gen. No. 23,126.
    (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 March term, 1917.
    Affirmed.
    Opinion filed November 30, 1917.
    Statement of the Case.
    Action on contract by the Northern Trust Company, as trustee of the estate of Joseph W. Wassail, deceased, plaintiff, against Sidney J. Knowles, defendant. From a judgment for plaintiff for $1,022.67, defendant appeals.
    Roscoe L. Roberts and Roberts & Swain, for appellant.

      Abstract of the Decision.
    1. Sales, § 62

      —when contract for sale of business of dentist construed as providing for payment of percentage of accounts of purchaser collected after expiration of period. Where a contract for the sale of the good-will, fixtures, leasehold, etc., pertaining to the professional practice of a deceased dentist provides that the purchaser will pay “from time to time as same shall be received, one-quarter of the total receipts received by him from his professional practice for a period beginning on the 4th day of October, 1910, and ending on the 4th day of October, 1914,” the amount payable by the purchaser is not limited to one-quarter of the receipts collected between the dates named but also includes collections made after the last-named date for work done between those dates, especially where such construction was placed upon the same provision in a previous contract between the same parties for a lease of the office, etc., to thé purchaser.
    2. Appeal and error, § 1258*—when defendant cannot claim, error in direction of verdict for defendant. In an action on a contract of sale to recover one-quarter of the amount collected by defendant in practicing his profession, a verdict directed for plaintiff for the amount which defendant testified he had collected, less the maximum amount for which defendant claimed he was entitled to credit, will not be set aside on the groumjl that the evidence was insufficient to establish the specific amount to which plaintiff was entitled.
    3. Accord and satisfaction, § 4*—when disputed account 'is satisfied by retention of check. If a check is offered in payment of a disputed account, the creditor must either reject it or accept it on the proffered terms, and the demand is satisfied if he accepts, even though the creditor protests at the time that it is not all that is due, or that he does not accept it in full satisfaction of his claim.
    4. Accord and satisfaction, § 4*—what does not constitute. Where a contract between the seller and the purchaser of a dentist’s practice provides that the latter shall pay for a certain period, one-quarter of the total receipts from the practice from time to time as the same shall be received, the fact that the purchaser -in making monthly remittances states that the check is in full for the month mentioned, and in his letter inclosing a check, covering the last two months for which the contract ran, states that the check is for those months, “the balance due from me to you,” and that thereafter the seller executes and delivers to the purchaser a bill of sale in accordance with the contract, wherein it acknowledges the receipt of the consideration provided for in the contract, does not constitute an accord and satisfaction, where in the letter inclosing the bill of sale the seller states that in a day or two its attorney will bring to test its right to share in collections made by the purchaser after the expiration of the contract and collections which he may thereafter make.

      William S. Miller and Frederick H. Bengel, for appellee.

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

   Mr. Justice O’Connor

delivered the opinion of the court.

Taylor, J., took no part in the decision of this case.


text:
    Mark L. Riley, Appellant, v. City of Chicago, Appellee.
    Gen. No. 23,144.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Charles H. Bowles, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1917.
    Affirmed.
    Opinion filed November 30, 1917.
    Statement of the Case.
    Action by Mark L. Riley, plaintiff, against the City of Chicago, defendant, to recover for personal injuries. From a verdict and judgment in his favor for $50, plaintiff appeals.
    Morse Ives, for appellant.
    Samuel A. Ettelson and Charles R. Francis, for appellee; Robert H. Farrell, of counsel.

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

   Mr. Justice O’Connor

delivered the opinion of the court.

Abstract of the Decision.

1. New tut at., § 58 —when granted because of inadequacy of verdict. Contrary to the common-law rule, under the modem rule a new trial may be awarded where the verdict is grossly inadequate for the same reasons as where the verdict is excessive.

2. Negligence, § 250*—when verdict is not against manifest weight of evidence. In an action to recover for personal injuries, evidence examined and held not to show that the verdict was manifestly against the weight thereof.


text:
    Mary Giroux, Appellee, v. Ben Goldman, Appellant.
    Gen. No. 23,151.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. David F. Matchbtt, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1917.
    Affirmed on remittitur; otherwise reversed and remanded.
    Opinion filed November 30, 1917.
    Statement of the Case.
    Action by Mary Giroux, plaintiff, against Ben Goldman, defendant, to recover damages for malicious prosecution. FYom a verdict and judgment for plaintiff for $300, defendant appeals.
    Kelley & Griffin, for appellant; Edward J. Kelley, of counsel.
    Daniel L. Madden and R. C. Merrick, for appellee.

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

   Mr. Justice O’Connor

delivered the opinion of the court.

Abstract of the Decision.

1. Malicious prosecution, § 76 —when malice not shown. In an action for malicious prosecution, evidence held insufficient to show malice on the part of defendant.

2. Malicious prosecution, § 20*—when good faith is sufficient defense. Good faith in swearing out the warrant for plaintiff’s arrest is a sufficient defense to an action for malicious prosecution.

3. Malicious prosecution, § 74*—when evidence is insufficient to show caution in swearing out warrant. In an action to recover for malicious prosecution, evidence held to show that, in swearing out a warrant for plaintiff’s arrest, defendant did not act as a reasonably cautious person would have acted in the circumstances.

4. Malicious prosecution, jj 98*—when verdict is excessive. In an action to recover for malicious prosecution, a verdict for plaintiff for $300 held excessive and remittitur of $150 required as condition of affirmance.


text:
    James P. Collins, Appellee, v. County of Cook, Appellant.
    Gen. No. 23,158.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1917. Certiorari denied by Supreme Court (making opinion final).
    Reversed.
    Opinion filed November 30, 1917.
    Statement of the Case.
    Action by James P. Collins, plaintiff, against the County of Cook, defendant, to recover the amount claimed to be due plaintiff for salary as a civil service employee. From a finding and judgment for plaintiff for $2,100, defendant appeals.
    Maclay Hoyne, for appellant; George C. Bliss, of counsel.

      Abstract of the Decision.
    1. Civil service, § 30

      —when employee withdrawing waiver oí reinstatement cannot recover salary. In an action by a civil service employee against a county to recover salary from the date on which he withdrew a waiver of reinstatement, after being laid off, to the date of his reinstatement, where the evidence shows that each one of the positions to which plaintiff claimed he was entitled was filled by a civil service employee either at the time of plaintiff’s waiver or before the waiver was withdrawn, and there was no evidence to show that other positions for which he claimed to be eligible were civil service positions or filled by civil service employees, plaintiff cannot recover.
    2. Civil service, § 30*—when withdrawal of waiver of reinstatement is ineffective. Under the rules of the Civil Service Commission of Cook County, the withdrawal"by a civil service employee of a waiver of reinstatement more than a year after it is made is ineffective.
    3. Civil service—binding effect of rules of commission. The rules of the Civil Service Commission of Cook County are binding upon the Commission.
    A. D. Gash and A. G. Digits, for appellee.

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

   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Nathan M. Gross, Appellant, v. Albert L. Strauss, Appellee.
    Gen. No. 23,162.
    Brokers, § 5*-—what is effect of lack of broker’s license on right of recovery of share of commissions from broker. The fact that the plaintiff, in an action in the Municipal Court of Chicago, against a real estate broker to recover on a promise alleged to have been made by defendant to pay him one-half of the commissions received by defendant from customers secured by plaintiff, is not the holder of a broker’s license from the City of Chicago does not preclude him from recovering.

      Appeal from the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1917.
    Reversed and remanded.
    Opinion filed November 30, 1917.
    Charles W. Stiepel and Harry L. Brin, for appellant.
    Simeon Straus and Ira E. Straus, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.

Nathan M. Gross brought suit against Albert L. Strauss to recover $1,500. At the close of'the plaintiff’s evidence, the court, on motion of the defendant, instructed the jury to find for the plaintiff for $250. A verdict was returned and judgment entered accordingly, to reverse which plaintiff prosecutes this appeal.

The record discloses that plaintiff had been in the employ of the defendant on a salary and occupied a part of defendant’s offices, and that defendant was engaged in the real estate and loan business. Plaintiff testified that he entered into an oral agreement with the defendant whereby defendant agreed to pay him one-half of the commissions on any business that he might bring to the defendant; that in accordance with the agreement plaintiff solicited business and introduced to the defendant a customer who was seeking to borrow money on certain real estate; that the defendant thereupon negotiated a loan with the customer for which the defendant received a commission of $3,000.

Plaintiff further testified that he was a real estate broker engaged in that business and was seeking to recover one-half of the $3,000; that he had not obtained a broker’s license from the City of Chicago.

The defendant contends that, as plaintiff admits that he was a real estate broker and operating as such without a license, he cannot recover. To this contention it is sufficient to say that plaintiff here is not seeking to recover a broker’s commission, but his suit is based upon a promise made by the defendant to pay him one-half of the commissions received by the defendant from customers secured by the plaintiff. In the instant case, plaintiff was acting in the nature of a solicitor for business. Plaintiff did not make the loan; this was done by the defendant. Plaintiff merely found a customer for the defendant, and if his version of the contract is true, which we must assume on this record, he would be entitled to recover the amount of his claim. Gibons v. Williams, Monicer & Co., 191 Ill. App. 594.

The judgment of the Municipal Court of Chicago is reversed and the cause remanded.

Reversed and remanded.


text:
    Anna Kersul, Appellee, v. The Baldwin Piano Company, Appellant.
    Gen. No. 23,180.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Dennis W. Sullivan, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1917.
    Affirmed.
    Opinion filed November 30, 1917.
    Statement of the Case.
    Action of the fourth class in the Municipal Court of Chicago by Anna Kersul, plaintiff, against the Baldwin Piano Company, a corporation, defendant. From a judgment for plaintiff for $150, defendant appeals.
    Joseph E. Winterbotham, for appellant.

      Abstract of the Decision.
    1. Sales—when intention of parties that assignee of contract for purchase of piano and of commissions he credited with commissions on sales of other pianos. Where one transferring a contract for the purchase of a piano, with the consent of the piano company, gave an assignment of commissions to come to her from the piano company which provided that she thereby transferred commissions to a certain amount coming to her on a number of sales, made through a named person, to be credited to the account of the transferee of the contract as the commissions become due, held that under the circumstances surrounding, the case it was the intention of the parties that the transferee should be credited on the purchase price with the amount named in the assignment.
    2. Contracts, § 168

      —when agreement construed most strongly against drawer. Where an agreement is drawn up by the seller of goods between the purchaser of the goods and one to whom such purchaser transfers the contract, whereby the purchaser assigns to the transferee certain amounts due her from the seller to be credited on the purchase price, in an action by the seller against the transferee to recover a balance claimed to be due on the purchase price, the agreement will be most strongly construed against the seller.
    3. Trial, § 83*—when permitting introduction of further evidence after closing of evidence is proper. It is within the discretion of the trial court to continue the case and permit the introduction of further evidence after the evidence has been closed, and, where both sides act under such permission, the defendant- is not prejudiced thereby.
    Edwin W. Sims, Albert G. Welch and Elwood G. Godman, for appellee; Cecil C. Erickson, of counsel.

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

   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Roy O. Eustrom and F. H. Sinclair, trading as Eustrom & Sinclair, Appellees, v. Northern Pacific Railway Company, Appellant.
    Gen. No. 23,187.
    (Not to be reported in full.)
    Abstract of the Decision.

      Carriers—when not liable for loss of hogs due to sale by oaretaleer riding free on train And caring for hogs. A railroad company is not liable for the loss of hogs through their being sold while being shipped by one designated by the shipper as caretaker of the hogs in transit and permitted by the railroad company to ride free on the train with the shipment to feed and water the hogs. '
    Appeal from the Municipal Court of Chicago; the Hon. Ebank H. Graham, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1917.
    Reversed.
    Opinion filed November 30, 1917.
    Statement of the Case.
    Action by Boy 0. Eustrom and F. H. Sinclair, co-partners, trading as Eustrom & Sinclair, plaintiffs, against the Northern Pacific Bailway Company, a corporation, defendant, to recover the value of live stock lost in transit. From a judgment for plaintiff for $48, defendant appeals.
    J. A. Connell and S. F. Blanc, for appellant.
    W. W. Hoover and John Milmine, for appellees.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Anna Ringholm, Appellant, v. Joseph Fitzgerald and Harry Miller, Appellees.
    Gen. No. 23,194.
    1. Judgment, § 296

      -—when court may consider motion to vacate. The court has jurisdiction of a motion to vacate a judgment which is made during the term at which the judgment is entered.
    2. Appeal and error, § 1705*—when objection that■ trial court abused its discretion in granting motion for new trial uAll not be passed upon. Where, after a judgment is set aside, plaintiff actively participates in the second trial, and, when the second verdict is returned, makes no motion for a new trial, and, on appeal, files no hill of exceptions, the Appellate Court cannot pass upon the objection that the trial court abused its discretion in granting a motion for a new trial.
    3. Appeal and error, § 1703*—when point that judgment was improperly set aside is waived. Where, after a judgment is set aside on terms, plaintiff, instead of not appearing at all or of confining himself to resistance of any action proposed by defendant, actively participates in the trial, he waives the point that the judgment was improperly set aside.
    4. Appeal and error—what is necessary to save question of improper vacation of judgment. Where a judgment is improperly set aside, a plaintiff, to save the question, should either not appear at all or confine himself to resisting any action proposed by defendant.
    5. Judgment, § 286*—when no error in setting aside judgment. Where it appears that the verdict of the jury for plaintiff in the first trial of a cause, at which defendants were not in court and were not represented, was for $3,500, while on the second trial, after the first judgment was set aside on defendant’s motion, the jury, after hearing the evidence of both sides, found for plaintiff for $100, it cannot be said that the court erred in setting aside the first judgment.
    6. Appeal and error, § 1300*—when assumed jury heard evidence of both parties. Where both parties were in court, it will be assumed on appeal that the jury heard the evidence of both.
    Appeal from the Circuit Court of Cook county; the Hon. David F. Hatchett, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1917.
    Affirmed.
    Opinion filed November 30, 1917.

      William C. Dunn and Samuel W. Norton, for appellant.
    Vincent D. Wyman, Harry C. Kinne, Charles E. Carpenter and Castle, Williams, Long & Castle, for appellees.

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

   Mr. Justice O’Connor

delivered the opinion of the court.

There have been two jury trials of this case. The first trial resulted in a verdict in favor of plaintiff for $3,500. A remittitur of $500 was required and judgment entered for $3,000. This was afterwards on motion of certain defendants set aside and vacated. The case was again tried and there was a verdict and judgment in favor, of plaintiff for $100. Plaintiff contends that the court erred in setting aside the judgment for $3,000 and in entering the judgment for $100.

Anna Bingholm brought suit ag’ainst Joseph Fitzgerald, Joseph Scherman, Harry Miller and the Standard Brewing Company, September 26, 1910. The action was based on section 9 of the Dramshop Act (J. & A. 4609). November, 1910, Fitzgerald filed a plea and Miller and the brewery filed separate demurrers. May 13, 1911, plaintiff dismissed as to Scherman and the brewery, and was given leave to file an amended declaration instanter, which was done, and a rule was then entered on the defendants to plead within 10 days. On May 22,1911, the attorneys for Miller withdrew as such. Nothing further appears to have been done until April 7, 1916, when an order was entered wherein it is stated that the attorney for plaintiff remitted $500 from the amount of the verdict, and judgment was then entered for $3,000 in favor of the plaintiff and against the defendants Fitzgerald and' Miller. April 15, 1916, and during the term of court, defendants moved the court to set aside the judgment and verdict for a new trial. The motion was based upon affidavits and testimony taken before the court. The court took the matter under advisement and after-wards granted the motions, and the judgment was ordered to stand as security for the payment of any amount that might thereafter be recovered upon a retrial of the case. This order was entered upon condition that the defendants pay the attorneys for plaintiff $100. This was tendered and refused. A few months afterwards the cause again came on for trial before a judge and jury, and was on hearing some 3 days, when a verdict for $100 was returned in favor of plaintiff. The defendants made a motion for a new trial, which was afterwards withdrawn and judgment entered on the verdict, to which entry plaintiff excepted and was allowed an appeal to this court.

It appears that on the first trial none of the defendants was in court or represented. Plaintiff contends that the defendants on their motion to vacate the first judgment did not make such a showing as would warrant the court in granting it, and that in doing so the court abused its discretion. In the view we take of the case, the contention of the plaintiff is not before us. After the second verdict was returned plaintiff made no motion for a new trial. There is no bill of exceptions in the record, so that we have no way of telling what the evidence or the instructions were. The motion to vacate the first judgment was made during the term at which it was entered, so that the court had jurisdiction. The judgment was vacated on terms. Several months afterwards when the cause came on for trial, plaintiff actively participated in the trial, which appears to have taken about 3 days. If the judgment for $3,000 was improperly set aside, plaintiff to save this question should not have appeared at all, or at most should have confined herself to resistance of any action proposed by the defendants; but not having pursued this course, the point is waived. Prall v. Runt, 41 Ill. App. 140; National Union Bldg. Ass’n v. Brewer, 41 Ill. App. 223; Grand Pacific Hotel Co. v. Pinkerton, 217 Ill. 61; Herrington v. McCollum, 73 Ill. 476. Moreover, at that time both parties were in court, and we must assume that the jury heard evidence for both sides and in these circumstances found for the plaintiff for $100. The first trial where the defendants were not in court or represented, where only the plaintiff’s side was heard, the jury returned a verdict for .$3,500; and, since there is no complaint that the jury acted unfairly on the second trial, it is clear that the court was not only warranted, hut that it was his duty, to vacate the first judgment.

The judgment of the Circuit Court of Cook county is affirmed.

I'Affirmed.


author: Mr. Justice Taylor

text:
    North Avenue Building & Loan Association et al., on appeal of Albert J. Kemper and Herman J. Westphal, Executors, Appellants, v. Christina Huber, Appellee.
    Gen. No. 22,344.
    Appeal and ebbob, § 1833

      —when denial of motion for leave to file amended and supplemental hill upon remand of case is proper. Where the Supreme Court has reversed the judgment of the Appellate Court and has remanded the cause to the Circuit Court “for such other and further proceedings as to law and justice shall obtain,” and, upon the reinstatement of the cause in the Circuit Court, the chancellor finds that the entire issue and subject-matter of the cause precipitated by the pleadings and set forth in the record has been adjudicated by the Supreme Court, and no draft or copy of any proposed amended and supplemental bill of complaint is presented in connection with a motion made for leave to file such .amended and supplemental bill, but merely a written motion accompanied by an affidavit of the solicitor setting forth transactions in another court and by copies of the opinions of the Supreme and Appellate Courts, it is not error to deny the motion for leave to file the amended hill and to enter an order dismissing the original bill.
    Appeal from the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Affirmed.
    Opinion filed November 30, 1917.
    Rehearing denied December 12, 1917.
    Christian Meier and Goldzier, Rodgers & Froehlich, for appellants.
    Frederick Mains, for appellee.

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

   Mr. Justice Taylor

delivered the opinion of the court.

Inasmuch as this cause has been recently before the Supreme Court (North Ave. Building & Loan Ass’n v. Huber, 270 Ill. 75), in the opinion of which there is set forth quite exhaustively all the facts necessary to an understanding of the general issues involved prior to the motions made when the cause was remanded to the Circuit Court, it is unnecessary to reiterate them here.

This is an appeal by the complainants, Albert J. Kemper and Herman J. Westphal, executors of the estate of William Kemper, deceased, from an order of the chancellor, (1) denying a motion of the complainants to dismiss the North Avenue Building & Loan Association as a complainant; (2) refusing to allow the executors of the estate of Kemper to file an amended and supplemental bill of complaint and (3) dismissing the original bill of complaint in accordance with the mandate of the Supreme Court.

On July 15, 1914, after the Appellate Court had affirmed, with slight modification, the decree of the chancellor [187 Ill. App. 42], the cause was reinstated in the Circuit Court and an order was entered which recited that, as William Kemper died March 18, 1914, testate, and Albert J. Kemper and Herman J. Westphal are the executors of his will, and,. as William Kemper was named trustee and Henry J. Kemper successor in trust (the latter dying prior to William Kemper), Albert J. Kemper and Herman J. Westphal, the executors under the last will and testament of William Kemper; deceased, be substituted as parties complainant in place of William Kemper “under and pursuant to the terms and provisions of said trust deed” and be “made the parties complainant in place of William Kemper, trustee. ’ ’ Subsequently, on January 11, 1916, the Supreme Court having reversed the judgment of the Appellate Court and remanded the cause to the Circuit Court “for such other and further proceedings as to law and justice shall obtain,” the mandate of the Supreme Court was filed and the cause reinstated in the Circuit Court.

The proceedings in the Circuit Court, since January 11, 1916, and which are of importance here, are as follows:

(1) On January 15, 193.6, an order was entered dismissing the bill of complaint as to Christina Huber and the property described in the bill of complaint, and that the receiver make a report.

(2) On January 22, 1916, the solicitor for the complainants having moved to vacate the decree of January 15, 1916, that motion was continued until January 29, 1916, and leave given to file documents and papers in support of the motion. On January 28, 1916, a written motion, signed by the complainants and sworn to by their solicitor, together with a copy of certain rules of court, was filed.

(3) On February 1, 1916, the motion of the complainants that the decree and orders of January 15, 1916, by reason of irregularity and nonconformance with the rule of the court, and misunderstanding, be vacated and set aside was allowed.

(4) On the same day, February 1, 1916, Albert J. Kemper and Herman J. Westphal, executors, etc., moved the court to enter an order “ granting leave to these complainants to file an amended and supplemental bill of complaint * * * 1 within ten days of the date of presentation of this motion, and for a rule on the defendants to plead, answer or demur to the same within such time as the court” might determine. The solicitor for the executors filed with that motion an- affidavit which recited, inter alia, that, the executors, on December 30, 1915, scheduled in the Probate Court the notes and trust deed in question as an asset of the estate of William Kemper, deceased, and that a claim of the North Avenue Building & Loan Association for moneys paid by it to the said William Kemper, during his lifetime, upon the said notes and trust deed, was allowed in the Probate Court in the sum of $24,000.93. There were also filed with that motion the opinions of the Supreme and Appellate Courts.

Also, on the same day, an order was entered by the chancellor, finding (1) that no draft or copy of the proposed amended and supplemental bill of complaint was presented in connection with said motion; (2) that the entire subject-matter of the suit as presented by the record had been fully adjudicated and passed upon by the Supreme Court; and (3) denying the motion of the executors to be allowed to file an amended and supplemental bill of complaint; (4) denying the motion of the executors to dismiss the North Avenue Building & Loan Association as parties complainant; and (5) ordering that the ingrossed amended bill of complaint be dismissed for want of equity as to Christina Huber and as to the premises described therein and that the receiver file, within a short period, an account of his receivership.

Bearing in mind that the mandate of the Supreme Court had been filed and the cause reinstated on January 11, 1916, and that all the issues involved as the pleadings then stood had been adjudicated, an examination of the motion of February 1, 1916, for leave to file an amended and supplemental bill of complaint within 10 days, gives rise to the question whether the chancellor, in the exercise of his discretion, was right in denying that motion. It is contended by appellants that “the claims made by .the executors are fully and completely set forth in the petition filed asking leave of the court to file an amended and supplemental bill.” The record shows, however, that the executors, on February 1, 1916, presented a written motion (not a petition) requesting the court for 10 days within which to file an amended and supplemental bill of complaint, and presented with that motion an affidavit of the solicitor, setting forth what had been done in the Probate Court, and, also attached thereto, copies of the opinions of the Supreme and Appellate Courts. On the other hand, it is contended by the appellee that, as no proffer was made of an amended and supplemental bill of complaint on February 1, 1916, at the time the motion was made for leave to file, it would have been irregular and erroneous practice for the chancellor to have allowed that motion. In Dinsmoor v. Rowse, 211 Ill. 317, the court intimated that when a decree is reversed and the cause remanded without specific directions, the lower court “may permit amendments to the pleadings and the introduction of other evidence so long as the same are not inconsistent with the principles announced by the Court of Review and do not introduce grounds that did not exist at the hearing in the court below.” In the Supreme Court, in the instant case, Mr. Justice Farmer said: “Whatever the remedy of the association may be, we do not think it is by way of foreclosure in a court of equity” and, further: “In our opinion the decree of the Circuit Court and the judgment of the Appellate Court were erroneous, and they are reversed and the cause remanded.” Under the circumstances, as the matter appeared before the chancellor upon the reinstatement of the case and the presentation of the motion of appellants, it was his duty to consider the law of the case as announced in the opinion "of the Supreme Court and render judgment consistent therewith. Of course, the written motion of appellants, together with the affidavits and papers attached, cannot be said to take the place of an amended and supplemental bill of complaint. Giving them the fullest indulgence, they do not state a complete cause of action. As a matter of fact, it was impossible, at the time the motion was presented and considered by the chancellor, for him to know exactly what the moving party had in mind by way of amendment and supplement. Under those circumstances, finding, as the chancellor did, that the entire issue and subject-matter of the cause precipitated' by the pleadings and set forth in the record had been fully and finally adjudicated and passed upon by the Supreme Court and that no draft or copy of any proposed amendment and supplemental bill of complaint was presented in conjunction with the motion, we are of the opinion that no error was committed in overruling the motion and ordering that the so-called engrossed amended bill' of complaint, as far as it pertained to Christina Huber and the premises in question, be dismissed for want of equity.

Finding no error in the record, the judgment is affirmed.

Affirmed.


text:
    Austin E. Gordon, Defendant in Error, v. City of Chicago et al., Plaintiffs in Error.
    Gen. No. 22,485.
    (Not to he reported in full.)
    Abstract of the Decision.
    Mandamus, § 117

      —what delay in filing petition constitutes laches tarring reinstatement of police officer. Where one discharged from the police force of a city delays filing a petition for reinstatement for over 18 years and fails to state in his petition for mandamus any facts tending to excuse his delay, his laches bars any relief.
    Error to the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1916.
    Reversed and remanded with directions.
    Opinion filed November 30, 1917.
    Statement of the Case.
    Petition by Austin E. Gordon, plaintiff, against the City of Chicago, William Hale Thompson, mayor, Charles C. Healy, general superintendent of police, and Charles E. Frazier, Percy B. Coffin and Joseph P. Geary, as civil service commissioners, defendants, for a writ of mandamus to compel said city to place his name upon the roster of detective sergeants of the city and upon its pay roll, and to permit him to enter upon the performance of his duties in that capacity and to receive the salary attached to such office. To reverse a judgment granting the writ, defendants .prosecute this writ of error.
    Samuel A. Ettelson, for plaintiffs in error; Roy S. Gaskill, of counsel.
    No appearance for defendant in error.

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

   Mr. Justice Taylor

delivered the opinion of the court.


text:
    Ernest Rabb and Johanna Rabb, Appellees, v. Edward E. Kluge and Alma Kluge, Appellants.
    Gen. No. 23,109.

      Partnership—when quitclaim deed executed and acknowledged by one partner constitutes release of liens on land of. A quitclaim deed executed in the name of a partnership “by” one of the partners who also acknowledged the deed constitutes a valid and binding • release of mortgage liens held on the land by the partnership.
    Appeal from the Municipal Court of Chicago; the Hon. Hugh J. Kearns, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1917.
    Reversed and judgment here.
    Opinion filed November 30, 1917.
    Mancha Bruggemeyer, for appellants.
    No appearance for appellees.
   Mr. Justice Taylor

delivered the opinion of the court.

The question in this case is whether a certain instrument was sufficient in law to release two mortgages. The property involved is a quarter section of land situated in Florida. The Ideal American Corporation at one time was the owner of the land, subject, however, to a mortgage recorded (the date of the execution and delivery not being shown) May 25, 1909. It appears that that mortgage was originally given by the owner of the property to the Dutton Bank of Gainesville, and by it assigned to one J. B. Padgett and recorded November 4, 1909; that subsequently that mortgage was assigned by J. B. Padgett to D. C. Kinlaw & Company. It appears from the agreed statement of facts that the said quarter section of land was also subject to a mortgage to D. C. Kinlaw and T. B. Handley as D. C. Kinlaw & Company, which was recorded March 27, 1911. On March 24, 1914, the appellant signed and delivered to the appellee the following document:

“The undersigned having this day made a conveyance of certain property in Bradford County, Florida, to Ernest Babb and his wife, for the sum of $200, paid part in cash, and part in two notes of $50 each, and having agreed to furnish'within three months a good abstract showing good title to said land, we the undersigned, hereby obligate ourselves to take back said land and revoke, said sale and refund to said Babb all moneys expended by him in connection therewith if we fail to give Mm good abstract within three months. Chicago, March 24, 1914.
Edw. B. Kluge,
Alma Kluge.”

The agreed statement of facts shows that on September 28, 1912, the property was conveyed by the Ideal American Corporation to Mary W. Thomas Bethel by warranty deed; that on February 15, 1913, it was conveyed by Mary W. Thomas Bethel and husband to Edward B. Kluge and Alma, Ms wife (appellants), by warranty deed; and that on April 10, 1914, it was conveyed by Edward E. Kluge and Alma Ms wife, to Ernest Babb and Johanna Babb (appellees), by warranty deed.

Subsequently, on February 23, 1916, objection having been made by the appellees that the mortgages above mentioned constituted a valid objection to the title, the appellants tendered to the appellee a quitclaim deed. That deed is as follows:

“State of Florida, )
)ss.
County of Bradford. )
“Know all men by these presents, that it is represented to us by the Ideal American Corporation and by Mary W. Thomas Bethel that said corporation has conveyed to said Bethel the Southeast quarter of the Northwest quarter of Section 21 in TownsMp 5 South, of Bange 20 East, in Bradford County, Florida, under date July 8, 1912, and recorded under date September 28, 1912, in Deed Book 13, page 306 of the public records of said county, and whereas the said parties severally have requested that a quit-claim deed be given by D. C. Kinlaw and T. B. Handley, doing business under the name of D. C. Kinlaw & Company.
“Now, therefore, in-consideration of the premises and the sum of Ten ($10.00) Dollars in hand paid, the said D. C. Kinlaw and T. B. Handley, doing business under the name of D. C. Kinlaw & Company, do hereby quit-claim to Mary W. Thomas Bethel, her heirs and assigns the said above described parcel. 1
“In Witness Whereof the said D. C. Kinlaw and T. B. Handley, doing business under the name of D. C. Kinlaw & Company, acting by the said Handley, hereby duly authorized hereunto set their hands and seals this the 23rd day of February, A. D. 1916.
D. C. Kinlaw & Co. (Seal)
By T. B. Handley .(Seal)
“Signed, sealed and delivered
in the presence of:
Clara Leland
Ellen O. Anderson
“State of Florida, )
)ss.
County of Bradford. )
“I, an officer duly authorized to take acknowledgments of deeds hereby certify that this day before me came T. B. Handley to me personally known and known to me to be one of the two members of the copartnership composed of T. B. Handley and D. C. Kinlaw under the name of D. C. Kinlaw '& Company described in and who executed the foregoing quitclaim deed, and said T. B. Handley this day acknowledged before me that said partners executed said quitclaim deed, being hereunto authorized.
“In Witness whereof I hereunto set my hand and seal this 23rd day of February, A. D.. 1916.
“Ellen 0. Anderson ) Ellen 0. Anderson,
State of Florida ) Notary Public in and for
at Large, ) ' the State of Florida at
Notary Public. ) Large. My commission
expires Oct. 27, 1918.”

The appellees, in their statement of claim, set forth that .the appellants having failed to furnish a good and sufficient abstract of title, and having been requested to take back the land, and, having been tendered a quitclaim deed, they, the appellees, are entitled to recover the sum of $174, being the purchase price which they paid, less a certain amount for taxes and the recording of the deed and a certain credit.

In the agreed statement of facts, signed by all parties, it was provided that “the matter in dispute be submitted to the court upon the proposition whether the instrument herein set out (meaning the quitclaim deed) was sufficient in law to release said liens on said land.” The trial judge held that: “The instrument purporting to be a quitclaim deed was not a valid release of the said real estate from the lien of said mortgages, because said instrument, being executed by one partner, could not bind the partnership of D. 0. Kinlaw and T. B. Handley as D. 0. Kinlaw & Company”; and found the issues for the appellees and entered judgment against the appellants in the sum of $177.50. This appeal is from that judgment.'

An examination of the quitclaim deed and the acknowledgment of the notary public show that the execution and signing of the quitclaim deed was sanctioned by both members of the firm of D. C. Kinlaw & Company. It follows, therefore, that, although it may be the law that a mortgage owned by a partnership may be released by the signature of one partner (which it is not necessary here for us to decide), the evidence contained in the agreed statement of facts sufficiently shows that the quitclaim deed was a valid and binding release executed by D. C. Kinlaw & Com pany, and released the lands in question from the mortgage liens.

The judgment of' the trial court 'is therefore reversed, and a judgment for costs will be entered here in favor of appellant and against the appellee.

Reversed and judgment here.


text:
    McCarty Brothers, Appellant, v. Fort Dearborn National Bank, Appellee.
    Gen. No. 23,124.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Bills and notes, § 309

      —what is effect of certification on liability of drawer. Where the holder of a check procures it to be accepted or certified, the drawer is discharged from liability thereon.
    Appeal from the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1917.
    Affirmed..
    Opinion filed November 30, 1917.
    Statement of the Case.
    Action on contract by McCarty Brothers, a corporation, plaintiff, against Fort Dearborn National Bank, a corporation, defendant. From a judgment for defendant, plaintiff appeals.
    Heffron, Perkinson & Berlet, for appellant.
    Adams, Crews, Bobb & Westcott, for appellee.

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

   Mr. Justice Taylor

delivered the opinion of the court.

2. Banks and banking, § 131 —what is effect of certification of cheek on liability of bank. While a check itself does not operate as an assignment of any of the funds to the credit of the drawer, upon the certification of the check, the bank becomes liable to the holder.

3. Banks and banking, § 131*—certification of check as creating relation of creditor and debtor between holder and bank. When a check is certified, a contract between the holder of the check and the bank is at once created, the bank becoming the direct debtor to the holder.

4. Banks and banking, § 131*—when drawer cannot question right of payee to negotiate certified check without indorsement. After a check is delivered, certified and paid, the drawer cannot question the right of the payee to negotiate it without indorsement.

5. Banks and banking, § 131*—when maker cannot object to payment of certified check. Where a check is certified, the maker is relieved from all liability and becomes a stranger to all further proceedings involving the check, and he cannot object that the check was paid by the bank without the payee’s indorsement.


text:
    First National Bank of Beecher, Illinois, Appellee, v. Joseph Wolf, Appellant.
    Gen. No. 23,150.
    Bras and notes,' § 430

      —when maker may not show existence of oral agreement that renewal note should not be binding obligation. Section 16 of the Negotiable Instruments Law (J. & A. jf 7655), cannot be construed to permit the maker of a note given as a renewal, the authenticity and delivery of which is admitted, to show that the note never became a valid note representing an obligation to pay because of an oral understanding that it should not be sued upon nor represent an obligation of the maker.
    Appeal from the Municipal Court of Chicago; the Hon. Charles N. Goodnow, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1917.. Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed November 30, 1917.
    Rehearing denied December 15, 1917.

      Newman, Poppenhusen & Stern, for appellant; Edward R. Johnston, of counsel.
    Bowles & Bowles and Foreman, Robertson & Blumrosen, for appellee.

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

   Mr. Justice Taylor

delivered the opinion of the court.

The First National Bank of Beecher, Illinois, brought suit in the Municipal Court against Joseph Wolf (appellant) on his two promissory notes, each for $2,500, and, upon the motion of the plaintiff, at the close of all the evidence, and the direction of the trial judge, the jury brought in a verdict of $5,500, upon which a judgment was entered in favor of the plaintiff.

On March 10, 1913, or some time prior thereto, the evidence being silent as to the exact date, one Strauss, who was a note broker and had negotiated the paper of the James E. Pepper Distilling Company, of which the defendant, Wolf, was president, gave the appeEee two notes each for $2,500, signed by Joseph Wolf (appellant) and indorsed by him in blank. When they came due they were surrendered and canceled and new notes executed and delivered in their stead. Two such notes, one dated August 10, 1913, and one dated August 25, 1913, each in the sum of $2,500 and payable 4 months after date to the order of himself (appeEee), were executed and delivered by the defendant and received by the plaintiff bank in place of earlier notes. At the time the notes of August 10 and August 25, 1913, were executed and delivered, the defendant admittedly had never had any business relations or negotiations with any of the officers of the plaintiff bank and aE the notes of the defendant given to the bank up to and including August, 1913, represented direct obligations of Wolf to the bank, although as between Wolf and Strauss the latter was liable. Subsequent to the maturity of the notes of August 10 and August 25,1913, each for $2,500, Wolf executed and delivered to one Ehrhardt, cashier of the plaintiff bank, two new notes (the ones involved in this cause) each dated March 14, 1914, and each for the sum of $2,500 maturing 6 months after date, payable to the order of himself and indorsed by him. Those notes were delivered by Wolf upon the cancellation and surrender by the plaintiff bank of the former notes of August 10 and 25,1913. At the time of their delivery a conference took place in the office of the defendant, at which Wolf, Strauss, White and Ehrhardt were present. As to just what conversation took place, the evidence is conflicting. White, Wolf’s bookkeeper, and Wolf testified that Ehrhardt stated that Wolf would never be called on to pay the new notes. On the other hand, Ehrhardt (cashier of the plaintiff bank) testified that in a conversation some time in March, 1914, with Wolf, at which Strauss and White were present, he received from Wolf the two notes of March 14, 1914, in place of the two notes of August 10 and August 25, 1915, and that nothing was said between them to the effect that Wolf would never he called on to pay the new notes. The evidence, also, is conflicting concerning a conversation which took place on September 18, 1914, when Ehrhardt went with Strauss to Wolf’s office. Wolf testified that Ehrhardt said: “We will take care—Ben (meaning Strauss) is about to take care of the notes and the Bank of Beecher is all right, they will take care of the notes”; that Ehrhardt said, “I have to have new notes because I expect the bank examiner there shortly and it would look had to have a $5,000, past due note laying in the bank.” “You will never be called upon to pay for this paper”; that finally he (Wolf) signed the notes. The testimony of White is substantially similar to that of Wolf. On the other hand, Ehrhardt testified that there was practically no conversation between him and Wolf; that the conversation was chiefly between Strauss and Wolf; that he did not say anything about the bank examiner; that he did not say to Wolf that he would see to it that the plaintiff would not collect the notes from him.

On September 14, 1914, the defendant Wolf delivered to Ehrhardt, for the bank, the two notes of that date for $2,500, each, on which this suit has been brought. They were signed by Joseph Wolf, payable to his order and indorsed by him. One of the notes (which were surrendered) of March 14,1914, had written upon it, “Paid by renewal” and the other, “Renewed,” which words were written on the notes by Ehrhardt, the cashier at the bank, when he sent them back to Strauss. The interest on the Wolf notes was paid from time to time by Strauss. The evidence shows that the cashier, Ehrhardt, had not received any special or particular instructions from the bank directors or from the president of the bank in regard to the notes in question. At the time the notes came due, Strauss owed the bank $3,000 on another note which, as far as can be gathered from the evidence, had no relation whatever to the transaction with Wolf. On September 18, 1914, a letter was sent by the bank to Wolf, as a receipt for the two notes each for $2,500, each dated September 14th, one for 4 months and one for 5 months “for renewal of notes of Josp. Wolf of like amount which matured September 14, 1914.” On February 16,1915, the bank sent a written demand for the payment of the notes. No payment being made, this suit was brought.

It is claimed by the appellant that, under section 16 of the Negotiable Instruments Law (chapter 98, sec. 34, Hurd’s Rev. St. 1916, J. & A. 7655) he is entitled to show that there was an oral understanding between him and appellee, that the notes which are sued upon were given on the condition that he (appellant) .would never be called upon to pay them, and Straus v. Citizens State Bank of Elmhurst, 164 Ill. App. 420, is cited as an authority. Upon an examination of the statute (section 16), we are of the opinion that it does not apply to the facts in this case. To admit that the notes were given as renewals and in place of preceding notes;.to admit their authenticity and delivery, and yet to contend that they never became valid notes representing obligations to pay because there was an oral understanding that they never should be sued upon or represent obligations of the maker, is the equivalent of saying the notes never existed and is entirely different from the case where notes are delivered on condition, as e. g., that they shall not be evidence of an obligation until some condition precedent is complied with.

In determining, therefore, the critical question of the case, and that which is decisive of this appeal, whether the trial court erred in directing the jury to find a verdit for the plaintiff, it is our opinion, considering the evidence only as it may best support the contention of the appellant, and in the light most favorable to him, and disregarding all that is in conflict therewith, that the claim of appellee, both as a matter of law and of fact, was amply established and that in the direction of the verdict and the entry of the judgment, no error was committed.

Finding no error in the record, the judgment is affirmed.

!Affirmed.


text:
    City of Chicago, Appellee, v. Louis B. Cohen, Appellant.
    Gen. No. 23,164.
    (Not to be reported in full.)
    Abstract of the Decision.
    Municipal corporations, § 864

      —when cause of action in proceéding to recover penalty for using water-closet not vented or revented is not made out. On a proceeding to recover a penalty for the violation of an ordinance of the City of Chicago (Code 1911, secs. 1823, 1848) by using a water-closet which was not vented or re-vented, where it does not appear in the statement of claim or in the evidence that defendant was in any way connected with the premises whether by possession or ownership, a cause of action is not made out.
    Appeal from the Municipal Court of Chicago; the Hon. Hugh J. Kearns, Judge, presiding. Heard in the Branch Appellate ■ Court at the March term, 1917.
    Reversed and remanded.
    Opinion filed November 30, 1917.
    Statement of the Case.
    Action by the City of Chicago, plaintiff, against Louis B. Cohen, defendant, to recover a penalty not exceeding $200 for a violation of sections 1823 and 1848 of the Chicago Code of 1911. From a finding that defendant was guilty and a judgment assessing a fine of $25 against him, defendant appeals.
    George B. Cohen, for appellant.
    Samuel A. Ettelson and Harry B. Miller, for appellee; Daniel Webster and Rupert F. Bippus, of counsel.

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

   Mr. Justice Taylor

delivered the opinion of the court.