author: Mr. Justice O’Connor

text:
    H. M. Anderson, Appellant, v. Irving Park District, Appellee.
    Gen. No. 23,218.
    Building and construction contracts—when contractor cannot recover against owner for breach of contract made with contractor and architect. A contract between plaintiff and a fellow contractor and defendant corporation provided that plaintiff and such other were to furnish suitable plans and specifications for a building-for defendant and to perform all architectural services including superintendency, plaintiff to superintend the construction under the superintendency of such other, who was to perform all architectural services. In consideration defendant agreed to pay plaintiff and such other a sum not to exceed 5 per cent, of the aggregate amount of all contracts let for the construction of the building in instalments as the work progressed. Plaintiff’s fellow contractor prepared plans which were rejected, the contract being performed by another, and brought suit and recovered a judgment against defendant for 'one-half of 5 per cent, of the estimated cost. Plaintiff thereafter sued to recover a like amount as damages for breach of contract. Held, that plaintiff could not recover.
    Taylor, P. J., dissenting.
    Appeal from the Municipal Court of Chicago; the Hon. Harry Olson, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1917.
    Reversed and judgment here.
    Opinion filed January 30, 1918.
    Tinsman & Blocki, for appellant,
    Spencer Ward, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.

H. M. Anderson brought suit against the Irving Park District to recover $1,393.97, claimed as damages for breach of a contract. There was a finding and judgment in his favor for one cent, to reverse which he prosecutes this appeal.

The record discloses that the defendant was desirous of constructing a building in its park, and for that purpose entered into a written agreement with the plaintiff and William E. Gibb. The contract provided, inter alia, that Anderson and Gibb were to furnish suitable plans and specifications for the proposed building, and perform all architectural services, including superintendency, in and about the construction of the building. Gibb was to perform all architectural services, except superintendency, and Anderson was to superintend 'the construction of the building under the supervision of Gibb. In consideration of the services to be rendered by Anderson and Gibb, the defendant agreed to pay a sum not to exceed 5 per cent, of the aggregate amount of all contracts let for the construction of the building, one half to be paid when the work on the building was actually commenced, one quarter when it was under roof, and the remaining quarter when the building was completed. Gibb, who was an architect, prepared plans and specifications for the building. These were revised and amended to meet the suggestions of the defendant. The estimated cost of the building, under the final draft of the plans and specifications, was $55,758.80. The defendant was dissatisfied on the ground that the cost was too high, and refused to permit Anderson and Gibb to do anything further towards carrying out the contract. Shortly thereafter, however, defendant employed another architect under whom the proposed building was constructed at a cost of about $57,000. Gibb brought suit in the Municipal Court of Chicago to recover the reasonable value of the services which he had rendered in the preparation of the plans and specifications and recovered judgment for $1,393.97. On appeal to this court by the defendant the judgment was affirmed, and the Supreme Court denied certiorari. (Gibb v. Irving Park District, 197 Ill. App. 480.) Afterwards Anderson instituted the instant case.

Plaintiff contends that as Gibb recovered one half of the 5 per cent, of the estimated cost of the building, he was entitled, under the contract, to the other half, the amount for which he brought suit. In support of this contention it is argued that under the contract the defendant agreed to pay 5 per cent, of the estimated cost of the building; that the estimated cost was $55,-758.80, 5 per cent, of which is $2,787.94; that as Gibb had performed all services required of him and had recovered one-half of the 5 per cent., plaintiff was entitled to the balance. We cannot agree that Gibb had performed all the services required of him. He had only prepared the plans and specifications, and under the contract his services would be required until the building was completed. Anderson and Gibb were required during the course of construction of the building to issue certificates or vouchers to the building contractors from time to time. There was a further provision that if Anderson and Gibb should, at any time after the actual work on the building commenced, refuse or fail to carry out the terms of the contract they should receive only a pro rata share of the compensation. It is common knowledge that where an architect is employed to perform the architectural work on a building, his services are not only required| in the preparation of plans and specifications, but are; required during the construction of the building and until it is completed, unless there is found a provision dispensing with such services after the plans and specifications are prepared, and there is no such provision in the contract in question; but on the contrary, by its express terms, Gibb was required to perform services until the building was completed. There is no provision for a division between Anderson and Gibb of the compensation to be paid them. In the Gibb case, supra, another division of this court held that the contract in question constituted two " separate and wholly distinct subject-matters, * * * one, the provision for all services except superintendency by Gibb, and the other, the superintendency by Anderson under the supervision of Gibb.”

In the instant case, which is brought for breach of a contract (the proper remedy, Doherty v. Schipper & Block, 250 Ill. 128), the damages, if any, accrued to the benefit of Gibb and Anderson jointly, since both were prevented from performing services under the contract, and no part of the compensation for the services yet to be rendered was to be paid to either Gibb or Anderson, but was to be paid to both jointly.

The defendant’s position, as we understand it, is that the provision of the contract in reference to compensation “is so indefinite as to preclude a recovery of substantial damages for its breach.” It is argued that if Gibb had recovered largely plaintiff would suffer; if Gibb had recovered a small amount plaintiff would profit, and if Gibb had recovered nothing plaintiff would be entitled, prima facie, to the whole amount of $2,787.94; and further that as the contract provides the compensation to be paid by defendant “shall not exceed * * * five per cent, of the aggregate amount of all contracts let in and about the construction and erection of the said park building.” No substantial recovery can be had for the reason that the amount to be paid was by the contract left for future agreement, but in no event should the payment exceed 5 per cent. On this latter contention the case of United Press v. New York Press Co., 164 N. Y. 406, is relied upon. In that case the contract provided that plaintiff should furnish certain news to the defendant covering a period of years, for which the defendant agreed to pay a sum not exceeding $300 during each and every week that the news was furnished until January, 1900, and that after that date the defendant had a right to receive the news if it so desired. The contract was dated July, 1892, and the news was furnished under it until January 1,1894, for which $300 a week was paid. Before the latter date, defendant notified plaintiff that after January 1, 1894, it would not receive or pay for the news; that the defendant had found it necessary to make a reduction in the cost of plaintiff’s services. The parties negotiated in an endeavor to reach an agreement, but nothing came of it. Plaintiff then brought suit for damages claiming, upwards of $93,-000, being at the rate of $300 per week. There was a judgment in favor of plaintiff for one cent. The court there said (413): “It is evident that the parties recognized their contract to be uncertain, or indefinite, as to the price, from their correspondence and the efforts to come to a mutual understanding and agreement upon the subject.” In the opinion of the Appellate Division in the same case, 54 N. Y. Supp. 807, the court said (809): “The correspondence between the parties and the testimony of the plaintiff’s witness Corrigan seem to indicate that the subject of compensation within the range of $300 per week as a maximum sum was left open to arrangement or adjustment from time to time. ’ ’ In that case it appears from the evidence introduced in addition to the contract that the parties had contemplated that the price to be paid should- be fixed by future agreement. In the case at bar, however, there was no such evidence; and, while the question before us is not free from diEculty, we think upon a careful consideration of the entire contract that it was the intention of the parties that the defendant was to pay 5 per cent, of the cost of the building and no more. The defendant agreed to pay not exceeding 5 per cent, of the cost of the building; then follows the provision that one half of this is payable when the work is commenced, one quarter when the roofs are on, and the remaining quarter when the building is completed. We believe, therefore, that it was the intention of the parties that 5 per cent, of the cost was the amount agreed upon.

Since we have held that plaintiff alone has no claim, the judgment of the Municipal Court of Chicago is reversed, and judgment nil capiat and for costs against plaintiff will be entered in this court.

Judgment reversed and judgment here.

Mr. Presiding Justice Taylor dissenting.

Being of the opinion that the appellee made a binding contract with the appellant individually, and that the appellant should be allowed to show, by evidence, the damages he suffered, if any, by reason of appellee’s breach of the contract, I am of the opinion that the cause should be reversed and remanded, and am, therefore, constrained to dissent.


source: Caselaw Access Project

license: Public Domain

text:
    C. W. Marks Shoe Company, Appellant, v. B. Brotman, Appellee.
    Gen. No. 23,226. (Not to be reported in full.)
    Abstract of the Decision.
    Replevin, § 123

      .—when finding properly in favor of defendant. In an action of replevin, evidence held to sustain a finding in favor of defendant.
    Appeal from the Municipal Court of Chicago; the Hon. John Stblk, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1917.
    Affirmed.
    Opinion filed January 30, 1918.
    Rehearing denied February 13, 1918.
    Statement of the Case.
    Replevin by C. W. Marks Shoe Company, a corporation, plaintiff, against B. Brotman, defendant. From a judgment for defendant, plaintiff appeals.
    Dulsky & Dulsky, for appellant.
    Abraham Lidsky and Preston Clark, for appellee.

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

   Mr. Justice O’Connor

delivered the opinion of the e'ourt.


text:
    Gifford-Wood Company, Appellee, v. Western Fuel Company, Appellant.
    Gen. No. 23,234.
    1. Sales, § 326

      —what evidence admissible to show purpose for which machine sold. In an action for the price of a machine sold under a written contract, evidence of conversations prior to the execution of the contract tending to show the purposes for which the machine was to be used is admissible.
    2. Sales, § 326*—when evidence as to matters not contained in contract are inadmissible. In an action for the price of a machine for handling coal, sold under a written contract, evidence of (Conversations before the execution of the .contract wherein plaintiff’s agent stated that the cost of handling the coal and the breakage would be materially reduced, is inadmissible where the contract contained no provision as to these matters.
    3. Sales, § 326‘'¿-^hen evidence as to how similar machines work is admissible. In an action for the price of a machine for handling coal, sold under a written contract, evidence as to how other similar machines worked and a picture of another machine erected by plaintiff and an advertisement of defendant’s business stating that it had one of the largest and best coal yards in a certain city are admissible.
    4. Sales, § 326*—when catalogue representing work performed by machines is inadmissible. In an action for the price of a machine sold under a written contract, a catalogue of plaintiff representing what machines erected by it would do is inadmissible in evidence.
    5. Tbial, § 78*—what is proper rebuttal evidence. Where a witness for defendant has testified as an expert in regard to the erection and installation of a certain type of machine, and, on cross-examination, that certain machines had been erected by him and had worked satisfactorily, it may be shown in rebuttal that the machines installed by him were unsatisfactory and that one of them was altered by plaintiff’s agent to make it work properly.
    6. Witnesses, § 212*—when cross-examination is improper. In an action for the price of a machine, where one, not a party, testifies for defendant as to the operation and cost of operating the machine, it is error to permit plaintiff to cross-examine him, over objection, on collateral matters relating to his financial condition.

      7. Witnesses, § 214

      —when party hound by answers of witness on cross-examination. Where a party to a suit is cross-examined on collateral matters, the party cross-examining, is bound by his answers and cannot thereafter introduce evidence to. impeach them.
    8. Sams, § 404*—u>hat is measure of damages for breach of implied, warranty of fitness for purpose. Where defendant in an action for the purchase price of a machine claims damages for the breach of an implied warranty that the machine was reasonably fit for the purpose for which it was purchased, the measure of his recovery is the difference between the value of the article as warranted and its' actual value in its alleged defective condition.
    9. Sams, § 328*—when date of acceptance of machine is question for jury. In an action for the price of a machine, the date of the acceptance of the machine held, under the evidence, a question for the jury.
    Appeal from the Municipal Court of Chicago; the Hon. Harry Olson, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1917.
    Reversed and remanded.
    Opinion filed January 30, 1918.
    M. F. Gallagher and E. B. Wilkinson, for appellant; Joseph B. Lawler, of counsel.
    Ninian H. Welch and William J. Lacey, for appellee.

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

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

   Mr. Justice O’Connor

delivered the opinion of the court.

The Gifford-Wood Company, a corporation, brought suit in the Municipal Court of Chicago against the Western Fuel Company of Chicago, a corporation, to recover an alleged balance due on the purchase price of a coal unloading and conveying machine. The case was tried before the court and jury and there was a verdict and judgment in favor of plaintiff for $3,003.80, being substantially the amount of its claim.

The record discloses that the plaintiff was engaged in furnishing material and constructing machines for unloading coal and defendant was in the coal business in Chicago. Both parties had been in business for many years. On April 23, 1913, they entered into a written contract whereby plaintiff was to furnish the material and erect “one gravity discharge elevator and conveyor,” for which defendant was to pay $4,083, one fourth upon the arrival of the material and the balance 90 days after the machine was installed and accepted by defendant. Thereafter plaintiff proceeded to erect and install the machinery. The work was completed about September 1, 1913, and turned over to defendant. The defendant paid $1,000 in accordance with the contract and afterwards upon demand for payment of the balance defendant refused, claiming the machine did not work properly.

In addition to its defense that the machine did not work properly and was never accepted, defendant interposed a plea of set-off, claiming damages in the sum of $9,211.49, for a breach of an implied warranty that the machine was reasonably fit for the purpose for which it was purchased. The theory of both parties on the trial was that there was an implied warranty that the machine would be reasonably fit for the purpose for which it was intended.

Defendant produced a witness who testified over the objection of plaintiff that prior to the execution of the written contract plaintiff’s representative stated to defendant that if the latter would permit plaintiff to install one of the machines, the cost of handling and the breakage or degradation of the coal would be materially reduced. Defendant argues that this evidence was properly admitted to show the purpose for which the machine was intended, and in support of its position the case of Lidgerwood Mfg. Co. v. S. R. H. Robinson & Son Contracting Co., 183 Ill. App. 431, and others are cited. In that case it was held, in an action to recover for certain excavating machines sold under a written contract, that conversations between the parties before the contract was entered into were competent to show the purpose for which the machines were intended—that the defendant wanted the machines to excavate a diversion canal. In the case at bar, if the prior conversations tended to show that the machine was to be used in handling coal they would be competent, but they were not competent to show that the purpose of the machine was to reduce the cost of handling and breakage of the coal. If the defendant purchased the machine with the understanding that it was to have a certain capacity for handling coal and that there would be no more than a certain amount of breakage, these matters should have been included in the written contract, but as this was not done, under an elementary rule of evidence, the conversations were inadmissible.

Defendant also complains that it was error to admit evidence of the manner in which other similar coal-conveying machines worked, and a picture of another machine erected by plaintiff. Without discussing the evidence, we think it was competent to prove how other coal machines operated and to offer the picture, provided the other machines were substantially similar to the one in question. We also think that the postal card distributed as an advertisement of defendant’s business, wherein it was stated that the defendant had one -of the largest and best coal yards in Chicago, was properly admitted. Of course what weight would attach to this piece of evidence was for the jury. The objection that the court should have admitted the catalogue of plaintiff, wherein it was represented what coal-conveying machines erected by plaintiff would do, is untenable, since'the contract between the parties was in writing.

Complaint is also made by defendant of the admission over objection of evidence regarding coal-conveying machines erected and installed by the witness James. This witness was called as an expert by defendant and testified that he had many years’ experience in erecting coal-conveying machines and at the request of the defendant he had examined the machine in question. He then gave his opinion as to what changes were necessary to render the machine reasonably fit for the purpose for which it was intended. He also gave his opinion of the cost of such changes, and the usual amount of degradation or breakage of coal when handled by machines. In response to questions on cross-examination he stated he had put in a coal-conveying machine at Delavan, Wisconsin, and other machines at other places, and that the machines installed by him worked to the satisfaction of the parties for whom they were installed. In rebuttal two witnesses on behalf of the plaintiff were permitted to testify over objection that the machines installed by the witness James were unsatisfactory, and that one of them was altered by a representative of the plaintiff to make it work properly. It is argued that this testimony was highly prejudicial; that it was incompetent to impeach the ability of the witness in this manner, and that the question as to whether the machines installed by him worked satisfactorily was not at all involved. It is a general rule that where an expert testifies it is inadmissible to prove by other witnesses particular instances of error made by the witness, for the reason that such evidence tends to confuse the issues ; but it is also held that such testimony may often be the best means of establishing whether the witness ’ opinion should be given weight. A great deal of discretion should therefore be vested in the trial court in the admission of such testimony. 2 Wigmore on Evidence, sec. 991; Hoag v. Wright, 174 N. Y. 36; People v. Pekarz, 185 N. Y. 470. Professor Wigmore, in the section cited, says: “Proof of such particular instances of error by other witnesses is generally regarded as inadmissible, and for reasons analogous to those of the character-rule, namely, confusion of issues, by the introduction of numerous subordinate controversies involving comparatively trivial matters, and unfair surprise, by leaving the impeached witness nnable to surmise the tenor or the time of supposed conduct which might be attributed to him by false testimony. Nevertheless, such instances may often be most effective evidentially, and the possible disadvantages may not always be present. The trial conrt should therefore have the discretion to permit this mode of proof when it seems useful.” In the Hoag case, supra, owing to the dangerous nature of expert evidence and the necessity of testing it in the most thorough manner in order to prevent any injustice, it was held that where a witness (a professed expert) makes a mistake and does not acknowledge his error, it may be shown by other testimony to determine whether the witness was really an expert; that while the trial court might properly restrict such evidence, it should not exclude it altogether. The court there said (p. 44): “As the hostility of witnesses to a party may be shown as an independent fact, although it protracts the trial by introducing a new issue, so, as we think, the incompetency of a professed expert may be shown in the same way and for the same reason; that is, because it demonstrates that testimony, otherwise persuasive, cannot be relied upon.” Further, the court said (46): “The competency of a witness is a fact necessary to be known in order to learn the value of his opinion. While it is not an issue raised by the pleadings, it becomes a subordinate issne by the tender of the witness as an expert. As the opinion may determine the main issue, the question whether the opinion is relevant, that is, whether it is the opinion of one legally qualified to give it, is necessarily an incidental issue, as otherwise the main issue might be decided upon an irrelevant fact. It is incidental to the main issue, because it attacks the foundation of the evidence, and it may be the only evidence, received to establish the main issue. It is not enough to permit the opinion of an incompetent witness to be met by the opinion of a witness who is competent, for the jury may not be able, even when instructed by the cross-examination, to tell the good from the bad, unless they are guided by further evidence. * * * ‘The value of an opinion does not depend upon the skill and knowledge professed by the witness, but upon the skill and knowledge which he actually possesses, and of the accuracy of such knowledge the jury must judge. ’ (Rogers, Expert Testimony, 59.)” Under these authorities, we think the testimony offered by plaintiff in rebuttal was properly admitted.

Complaint is also made that the court improperly instructed the jury that the defendant could not retain and use the machine unless it did so at the request of plaintiff, and that there was also error in the charge that there could be no implied warranty where there was an express warranty on the same subject-matter. Upon objection by defendant these points were modified as requested, and there is therefore no merit in this contention. We have examined the other objections made to the charge, but we think none of them have any substantial merit, and that the charge as a whole fairly presented the issues, considering the evidence that was admitted.

The defendant contends that there is reversible error in the cross-examination of Stephen B. Jones, in reference to his financial condition, and further in permitting plaintiff in rebuttal to introduce other evidence of his financial condition. The record discloses that Stephen B. Jones at the time of the execution of the contract was a stockholder in the defendant company, and its president. He was called as a witness for defendant, and in his direct examination testified concerning the manner in which the machine operated, the cost of handling the coal and the amount of degradation. On cross-examinatión, over objection, plaintiff asked the witness if it was not a fact that the reason he did not pay for the machine was because he was bankrupt in 1914; if he did not convey all his stock owned in the company either to his wife or his son; if he did not convey his real estate to his wife; if it was not a fact that the witness was in the Des Plaines Street Court of Chicago before Judge Caverly in relation to some of his creditors; if it was not a fact that during 1914 or 1915, the witness conveyed all of his stock in the defendant company and conveyed all of his real estate and left Chicago; if he did not meet a Mr. Henschen in Columbus, Ohio, and return to Chicago with him; if it was not a fact that the witness as president of the defendant company and owner of the stock borrowed money of different banks in Chicago; if it was not a fact that an involuntary petition in bankruptcy was filed against him in January, 1915; if it was not a fact that the petition was dismissed, and the witness’ wife and son afterwards conveyed back to some trustee the witness’ property,'including some of the stock of the defendant company; if it was not a fact that the State Bank of Chicago brought suit against him on certain notes; if it was not a fact that he was “kiting checks” of the Western Fuel Company during 1914? The witness was compelled to answer all these questions. His son Homer Jones was also cross-examined, with reference to the same matters, and, over objections, was compelled to answer the questions. Plaintiff called witnesses in rebuttal who testified,. over objection, to matters relative to the financial standing and the transfer of property by Stephen B. Jones, and as to the amount he owed various panties, including banks in Chicago, which testimony tended to impeach the testimony of Stephen B. Jones given on cross-examination. Plaintiff argues that this cross-examination and the testimony in rebuttal were proper for the reason that defendant was what is usually known as a “one man corporation”; that the evidence shows that said Jones was the owner of practically all of the stock of the corporation .and. the dominating factor in its management. It does not appear how much stock was owned by Stephen B. Jones, nor is there any evidence that tends in any manner to show that - defendant was unable to pay its debts. This evidence was incompetent for any purpose and was prejudicial to the defendant. The witness was not the defendant, and it was improper to cross-examine him, over objection, on collateral matters relating to his financial condition. Furthermore, it is a rule of evidence that where a party to a suit is cross-examined on collateral matters, the party cross-examining is bound by the answers of the witness and cannot afterwards introduce evidence to impeach such answers. 1 Greenleaf on Evidence, sec. 449; Moore v. People, 108 Ill. 484.

Plaintiff also contends that where a suit is brought to recover the purchase price of an article, and it is claimed there is a breach of an implied warranty, the measure of damages is the difference between the value of the machine as warranted and its actual value in its alleged defective condition. On the other hand, the defendant contends that it is entitled to such damages as are the natural consequences of the defects in the machine in addition to the cost of repairing it. In support of this, defendant cites the case of Accumulator Co. v. Dubuque St. Ry. Co., 64 Fed. 70. That case sustains defendant’s position. This court, however, has held that the measure of damages for a breach of warranty in a case like the one at bar is the difference between the value of the article as warranted and its actual value in its alleged defective condition. Dravo Doyle Co. v. Sulzberger & Sons Co., 197 Ill. App. 547; Mayer v. Automobile Exchange, 125 Ill. App. 648; Skinner v. Mulligan, 56 Ill. App. 47. We think the rule heretofore announced by this court is the correct rule to be applied in this case.

The defendant further argues that the court erred in instructing the jury that the machine was accepted by the defendant as a matter of law on April 8, 1914. There was a dispute between the parties as to whether the machine handled the coal properly as contemplated by the contract, and on April 8, 1914, defendant wrote a letter to plaintiff stating that plaintiff was familiar with the complaints made and requested that the defects be cured, “or we shall be obliged to have others make such changes as shall be necessary, the cost of which will be charged to your account.” While we do not consider the ruling of the court reversible error, yet upon a retrial if the evidence on this point is the same, we think the question of the acceptance or nonacceptance of the machine should be submitted to the jury.

The trial of this case consumed several days, the record is voluminous, and, after a careful consideration of the entire record,, we are not at all satisfied that on another trial the result will be different; yet, we are unable to say that the cross-examination of Stephen B. Jones and his son, and the admission of the testimony in rebuttal tending to impeach these witnesses, did not improperly influence the jury in arriving at their verdict. We are therefore constrained to hold that the judgment of the Municipal Court of Chicago should be reversed and the cause remanded.

Reversed and remanded.


text:
    Otto G. Ryden, Appellee, v. Harriet C. Hastings, by William G. Wise, Conservator, Appellant.
    Gen. No. 23,240. (Not to be reported in full.)
    Abstract of the Decision.
    1. Attorney and client, § 128

      —when no recovery can he had for services performed at request of third person. Where the only evidence on the point shows that legal services for which recovery is sought were rendered at the request of plaintiff’s mother-in-law, who was defendant’s niece, and for her benefit, plaintiff cannot recover.
    2. Damages, § 250*—when erroneous verdict cannot he cured hy remittitur. In an action to recover for legal services rendered at different times, where the Appellate Court is unable to ascertain the charge made for services for which recovery could be had, the error in including such charges in the verdict and judgment for plaintiff cannot be cured by a remittitur.
    Appeal from the Circuit Court of Cook county; the Hon. H. Sterling Pomeroy, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1917.
    Reversed and remanded.
    Opinion filed January 30, 1918.
    Rehearing denied February 13, 1918.
    Statement of the Case.
    Action by Otto G. Ryden, plaintiff, against Harriet C. Hastings, by William G. Wise, her conservator, defendant, to recover for legal services. From a verdict and judgment for plaintiff for $200, defendant appeals.
    Worth E. Caylor, for appellant.
    Hoyne, O’Connor & Irwin, 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.


text:
    John G. Craig, Appellee, v. August T. Pellet, trading as Pellet’s Magneto Exchange, Appellant.
    Gen. No. 23,276. (Not to be reported in full.)
    Abstract of the Decision.
    1. Evidence, § 351

      —when parol evidence inadmissible to explain contract. In an action to recover for breach of a contract for the sale of goods, the contract in question held complete as written and that parol evidence was not admissible to complete and explain it.
    2. Sales—when no consideration for subsequent promise to remedy defect. An agreement by the seller of an appliance, made after the performance of the contract and after it was found that such appliance did not work properly, to correct the defect, does not bind the seller to cure any defects in the appliance, such agreement being without consideration.
    3. Sales, § 244*—when warranties may be implied. Warranties may be implied in the case of a written contract for the sale of an article as well as where the contract is oral.
    4. Sales, § 243*—what is effect of implied warranty. An implied warranty in the case of the sale of an article is an obligation imposed by law.

      Appeal from the Municipal Court of Chicago; the Hon. John R. Cavekly, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1917.
    Reversed.
    Opinion filed January 30, 1918.
    Statement of the Case.
    Action by John Gr. Craig, plaintiff, against August V. Pellet, trading as Pellet’s Magneto Exchange, defendant, to recover for a breach of contract. Prom a judgment for plaintiff for $175, defendant appeals.
    Brown, Brown & Brown, for appellant.
    Joel C. Carlson, for appellee.

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

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

   Mr. Justice O’Connor

delivered the opinion of the court.

5. Sales, § 252 —when no implied warranty as to fitness for purpose prior to Uniform Sales Act. Prior to the Uniform Sales Act of 1915 [Callaghan’s 1916 St. Supp. ¶ 1021(4) et seq.J, where the purchaser of a specified appliance did not rely on the judgment or skill of the seller hut was as familiar with the appliance as the seller, there was no implied warranty by the seller that the appliance was reasonably fit for the purpose for which it was bought.


text:
    John E. Traeger, Sheriff, for use of M. L. Greenwald, Appellee, v. C. B. Shaffner and Joseph M. Levee, Appellants.
    Gen. No. 23,308. (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Oscar M. Torrison, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1917.
    Affirmed.
    Opinion filed January 30, 1918.
    Statement of the Case.
    Action on a replevin bond by John E. Traeger, sheriff, for use of M. L. Greenwald,. plaintiff, against C. B. Shaffner and Joseph M. Levee, defendants. From a judgment for plaintiff for $400, defendants appeal.
    B. M. Shaffner, for appellants.
    Peden, Kahn & Murphy and R. C. Merrick, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.

Abstract of the Decision.

1. Trial, § 25*—when motion to strike case from short-cause calendar made too late. A motion to strike a cause from the short-cause calendar on the ground that it was not placed there on an affidavit hut on a certificate of plaintiff’s counsel comes too late when not made until the case is reached for trial.

2. Trial, § 22*—when motion to strike case from short-cause calendar properly denied. The mere fact that a jury is impaneled in a case on the short-cause calendar on one day, and a verdict was not returned until the following day, does not show that a motion to strike the case from the short-cause calendar was improperly denied.


author: Mr. Justice Thomson Mr. Presiding Justice Taylor

text:
    Kenwood Trust & Savings Bank, Appellant, v. Blanche S. Palmer and George E. Palmer, Appellees.
    Gen. No. 22,284.
    1. Trusts, § 95

      —when trust extends to remainders. Where a will devises the legal title or the fee of the testator’s real property to a trustee, the trust extends to the remainders.
    2. Trusts, § 95*—when remaindermen’s interests are without trust. If the title which a trustee takes under a will to real property is less than a fee and the interests of the remaindermen will come into their possession without any positive action of the trustee, after the expiration of the trust, the remaindermen’s interests are without the trust.
    3. Trusts, § 96*—what is policy of law as to limitation of trustee’s estate. The policy of the law is to limit the trustee’s estate to such an estate as is necessary to carry out the directions of the creator of the trust.
    4. T.tfe estates, § 17*—when remaindermen not hound hy act of life tenant. One possessing a life estate in given property may mortgage it, but may not thereby bind the remaindermen.
    5. Trusts, § 95*—when trustee’s title limited to life estate. Provisions of a will conveying property in trust, held to limit the trustee’s title to a life estate.

      6. Wills, § 234

      -—intestacy as to real property. TJnder the provisions of a will, testatrix held to have died intestate as to certain real property.
    7. Wills, § 234*—when will construed to include all testator's property. While a will should always be construed so as to include all of the property of the testator, if its terms will reasonably bear that construction, where the language used does not cover all of the property of the testator, it should not be distorted so as to accomplish that result.
    8. Tbusts, § 95*—when interest of person after death of cestui que trust not within trust. Where property is held in trust for the benefit of a person during his life, and it is to go without any action of the trustee after the expiration of the trust upon the death of the cestui que trust to another, the interest of the latter in the property is not within the trust.
    9. Cbeditobs’ suit, § 9*—what may he reached hy creditor’s hiil. The interest of one who takes under a will after the expiration of a trust created thereby and without any action on the part of the trustee is not within the exception contained in chapter 22, sec. 49 (J. & A. f 929), and, as far as that provision is concerned, may be reached by a creditor’s bill.
    10. Execution, § 8*—what cannot he sold under. Neither at common law nor under the Illinois execution statute (J. & A. j[ 6756), can a contingent remainder be sold under an execution.
    11. Execution, § 8*—what contingent remainders may not he sold under. The reasons of policy denying execution sales of legal contingent remainders will apply in the case of equitable contingent remainders.
    12. Cbeditobs’ suit, § 9*—when does not lie. The same reasons of policy which caused the Legislature to deny the sale of contingent interests under execution will restrict a court of equity in proceeding against such an interest by a creditor’s bill.
    13. Cbeditobs’ suit, § 1*—when lies. A creditor’s bill lies only where the law’s policy is all in favor of the creditor being permitted to obtain satisfaction of his judgment out of the property of the debtor which it is sought to reach, but against which, because of its nature, execution cannot be levied.
    14. Cbeditobs’ suit, § 9*—when unnecessary. As a contingent interest in land is capable of being subject to sale under an execution, its nature is not such as to require a bill in equity.
    15. Judicial sales, § 2*—what cannot he subjected to forced sale. A contingent remainder, though susceptible of transfer by a voluntary assignment in equity or by warranty deed, cannot be subjected to a forced sale.

      16. Judgment, § 567

      —when judgment against remainderman is prior lien. A judgment against a contingent remainderman is, if kept alive, a prior lien, on the happening of the contingency, against in attempted voluntary assignment or conveyance of the remainder-man’s interest.
    Taylor, P. J., specially concurring.
    Appeal from the Circuit Court of Cook county; the Hon. Frederick A. Smith, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1916.
    Affirmed.
    Opinion filed January 30, 1918.
    Hoyne, O’Connor & Irwin, for appellant.
    Albert E. Lake, 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, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Thomson

delivered the opinion of the court.

The Kenwood Trust & Savings Bank, appellant, hereinafter referred to as the complainant, being a judgment creditor of Blanche S. Palmer and George E. Palmer, her husband, appellees, hereinafter referred to as the defendants, filed a creditor’s bill seeking to reach the interest of the defendant, Blanche S. Palmer, in her grandmother’s estate. A demurrer was- filed to the bill by the defendants, the trial court sustained the demurrer and entered a decree dismissing the bill for want of equity, from which decree the complainant has appealed to this court.

For the sake of brevity, we will refer to the defendant, Blanche S. Palmer, as the defendant. Her interest, which is sought to be reached by this bill, comes to her through the will of her grandmother, Nancy E. McLean. So far as it is involved in this case, this will, after making certain specific bequests, proceeds as follows :

“All the rest and residue of my estate, both real, personal and mixed, wherever situate, of which I die seized or possessed, I. give, devise and bequeath to Colin C. McLean * * * in trust, during the lives of my two daughters, Mrs. AliceJD. Smith and Mrs. Elizabeth F. Bigelow * * * for the purposes following:
“1. To convert all my real estate except that situated in the. City of Chicago, State of Illinois, into money and to invest same * * *.
“2. To receive the rents, issues and profits of all my real estate.
“3. To pay over to my daughters * * * the net income, * * * this to continue during the lives of my said daughters * * *.
“6. At the death of the survivor of my two said daughters * * * this trust shall cease and my entire estate then existing, of every kind and nature, both real and personal and wherever situate, shall be delivered over to my grandchildren then living by right of representation, and to them, their heirs and assigns forever, I give, devise and bequeath it absolutely * * *.
“If the buildings on my Chicago property, or any part thereof, shall be destroyed and the insurance obtained for such loss, together with such personal property as shall then belong to my estate, shall be insufficient to repair the damage or rebuild the buildings so destroyed, I hereby give and devise to my said trustee full power for that purpose, and for that purpose only, to borrow the necessary money and to encumber my real estate by mortgage or otherwise to secure repayment of the same, and, with the insurance money, if there is any, and said personal property and the money so borrowed to rebuild said property, this to be done, however, under the direction of the court having jurisdiction of said trustee.”

The bill, after reciting the recovery of a judgment against the defendants by the complainant and the return of the execution issued, wholly unsatisfied, alleges that, under and by the provisions of this will, the defendant has “an equitable estate or right, title or interest in and to” certain described real estate in the City of Chicago and county of Cook. The bill further alleges that both the daughters of the testatrix are still living and that the defendant is the daughter of Mrs. Alice D. Smith, otíb of the two daughters of the testatrix. The bill prays for a decree directing the sale of all the right, title and interest of the defendant in and to the real estate therein described, and that the proceeds of the sale may be applied to the extent necessary to the payment of the amount due upon said judgment. It is urged by the defendant, in support of the contention that the decree should be affirmed, that the defendant’s interest in this real estate cannot be reached by a creditor’s bill because it is within the exception set forth in section 49, chapter 22 of the Illinois Statutes (J. & A. ¶ 929), which provides that a judgment creditor may reach certain property interests of the judgment debtor, including property held in trust for the latter ‘ ‘ except when such trust has in good faith been created by, or the funds so held in trust have proceeded from, some person other than” the judgment debtor himself. The complainant contends, on the other hand, that the interest of the defendant in the property in question is not within the trust created in the will and so not within the exception in our statute and therefore may be reached by a creditor’s bill.

In this connection, it is important to determine the nature of the title in the Chicago real estate which this will devises to the trustee, for, if the will has devised the legal title or the fee to this property to the trustee, then, under the decisions of our Supreme Court, the trust extends to the remainders. Vallette v. Bennett, 69 Ill. 632; McFall v. Kirkpatrick, 236 Ill. 281, 301; Lord v. Comstock, 240 Ill. 492. The reason for this is that the fee being in the trustee, the respective interests of the remaindermen can only reach them by means of actual conveyances executed by the trustee, thus involving an active duty by him as to the remaindermen. If, however, the title which the trustee takes under the will is less than a fee, and the respective interests of the remaindermen will come into their possession without any positive action by the trustee, after the expiration of the trust, the interests of the remaindermen are without the trust.

In studying all the provisions of this will which throw light upon the intent of the testatrix with reference to the estate which she meant to devise to her trustee, as to the Chicago property, we are led to the conclusion that she meant to limit his title to a life estate and that she accomplished that result by the use of the language which she employed in framing this will. The will devises this property to the trustee “in trust during the lives of my two daughters” and later provides that ‘‘ at the death of the survivor of my two daughters * * * this trust shall cease.” At that time, under the provisions of the will, the remainder in this property will go, not by any action or conveyance by the trustee but by operation of the devise, to the grandchildren then living, for, after providing when the trust shall cease, the will devises the entire estate of the testatrix then existing to the grandchildren then living by right of representation, the words of the testatrix being, “to them, their heirs and assigns forever, I give, devise and bequeath it absolutely,” each grandchild thus taking a legal contingent remainder. The direction of the testatrix in the will to the effect that at the time the trust ceases, the trustee shall “deliver over” the estate then existing, to the grandchildren then living, refers to the possession of the estate. The will does not give the trustee the power to sell this property, but, on the other hand, it expressly states that he may convert all the real estate of the testatrix into money except this particular property. The clause in the will giving the trustee power to borrow money and to incumber the real estate of the testatrix by mortgage or otherwise to secure its repayment for the purpose of rebuilding in the event of the destruction of the buildings on the Chicago property, and for that purpose only, is solely a power and does not enlarge the title of the trustee in the Chicago real estate beyond an estate for the period of the lives of thfe two daughters of the testatrix. It will be noted that this power to incumber does not specify the incumbrance of the Chicago property. Indeed, under the language of the will, it may well be considered as applying only to the property of the testatrix other than the Chicago property. But, considering it as including the Chicago property, it will further be noted that it is not a general power to mortgage but is limited strictly to the- contingency of the damage or destruction of the buildings on the Chicago property, and not even then is thé trustee given power to incumber the real estate of the testatrix unless at that time the insurance and the personalty in his hands belonging to the estate proves insufficient to restore the Chicago property. The power to mortgage is expressly limited in these respects and, if it is ever exercised, it will be for the purpose of conserving the Chicago property, and there is no idea of incumbering to raise money for general purposes. It is the policy of the law to limit the estate of a trustee to such an estate as is necessary to carry out the directions of the creator of the trust. 1 Perry on Trusts (5th Ed.), sec. 317; Walton v. Follansbee, 131 Ill. 147. So far as it may be said to affect the Chicago real estate, the power granted to the trustee by the testatrix “to incumber my real estate by mortgage-or otherwise” may be carried out by the trustee, should the necessity arise if the estate which he holds in the Chicago property is one merely for the lives of the two daughters of the testatrix as plainly specified by the will. One who possesses a life estate in given property may mortgage it but may not thereby bind the remaindermen. Jones on Mortgages, secs. 136, 137; Mixter v. Woodcock, 154 Mass. 535; McDonald v. Woodward, 58 S. C. 554; New South Building & Loan Ass’n v. Gann, 101 Ga. 678.

It may be asked, Where is the title to this property in fee at the present time ? It seems clear that, under the provisions of this will, the testatrix died intestate as to the fee of the Chicago real estate and, upon her death, it passed by operation of law to her heirs. Bond v. Moore, 236 Ill. 576. While it is true a will should always be construed so as to include all the property of the testator if its terms will reasonably bear that construction, where the language used does not cover all the property of the testator, it should not be distorted so as to accomplish that result. This will makes no provision whatever for the contingency that would arise if none of the grandchildren of the testatrix should survive her two daughters. If that contingency should arise, the legal title or the fee to this property would remain in the legal heirs of the testatrix. If, however, under the terms of the will, after the trust has ceased at the expiration of the estate for the lives of the two daughters of the testatrix, grandchildren are living they will take the remainder in fee. As we have said, if that remainder ever vests in the defendant, it will be under the devise in this will. Ho conveyance by the trustee is called for as he takes merely a life estate under the will.

From what we have said, therefore, it will be seen that the interest of the defendant is without the trust, which applies, under the terms of the will, to the interests of the two daughters of the testatrix but not to the interest of any of the grandchildren. The trustee does not hold the contingent remainder of this property in trust for the defendant. He merely holds a life estate in that property in trust for the two daughters. Where property is held in trust for the benefit of some person during the life of such person, and it is to go without any action of the trustee after the expiration of the trust upon the death of the cestui que trust, to another, the interest of the latter in thé property in question is not within the trust. Bergmann v. Lord, 194 N. Y. 70, 86 N. E. 828. Such is the interest of the judgment debtor here. Not being within the trust it is not within the exception set forth in section 49, ch. 22 (J. & A. ¶ 929) of our statutes and therefore, so far as that exception is concerned, may be reached by a creditor’s bill. But that does not determine the issue involved in this case.

The real question at issue here is, can a contingent remainder belonging to a judgment debtor be reached by a judgment creditor by means of a creditor’s bill, under our statute, and thus be subjected to a sale to satisfy the judgment? It seems to be settled by repeated decisions of our Supreme Court that in Illinois a contingent remainder cannot be sold under an execution. Haward v. Peavey, 128 Ill. 430, 442; Ducker v. Burnham, 146 Ill. 9, 17; Aetna Life Ins. Co. v. Hoppin, 249 Ill. 406, 415; Hull v. Ensinger, 257 Ill. 160, 166.

This was the rule at common law. 2 Freeman on Judgments (4th Ed.), sec. 354. The decisions above referred to hold that our statute (J. & A. ¶ 6756), defining what estates may be sold under execution, has not altered the common law so far as contingent remainders are concerned. The reason for the common-law rule is indicated in the fact that at common law even a court of equity would not recognize the validity of conveyances of future interests, whether vested or contingent, unless the consideration given was full value or a fair market value of the future interests.

In the earlier English cases, these conveyances were looked upon with disfavor. The presumption was against their validity and the burden of proof to establish them was placed upon him who sought to enforce the contract. Davis v. Duke of Marlborough, 2 Swan. 108, 139. The courts then held that in order to establish the validity of such conveyances it must be shown that the consideration was full and adequate. Gowland v. De Faria, 17 Ves. Jr. 20. Some of the later decisions supported the conveyances if a fair market price could be shown. Edwards v. Burt, 2 De G. M. & G. 55.

Finally, however, Parliament changed the rule and in the year 1867 an act was passed “to amend the law as administered in the Courts of Equity with respect to the sale of reversions” (31 Vic. ch. 4), in which it was enacted that “no purchase made bona fide and without fraud and unfair dealing of any reversionary interest in real or personal estate shall hereafter be opened or set aside merely on the ground of undervalue.” -

Thus it seems to have been the policy of the common law to look with disfavor on transfers of future interests because of the great danger of the reversioner parting with his estate for an inadequate consideration. The reason why such an interest could not be subjected to sale under execution at common law apparently was based on the idea that if such an estate could be so subjected to sale, the judgment creditor might bid in the estate for a small sum (certainly he could do so if the future interest were contingent because no one would be likely to bid against him), and thereby secure a future estate which would ripen into his possession in the event of the happening of the contingency, and he would still have his judgment, and by keeping it alive he might ultimately realize upon the deficiency. In construing our statute on executions, our Supreme Court has laid down the rule that this policy of the common law must control the construction of the statute until the Legislature shall have explicitly permitted execution sales of legal contingent interests. The same reasons of policy which have caused the court to construe the execution statute as not permitting execution sales of legal contingent remainders would apply in the case of equitable contingent remainders.

The reasons of policy regarded as sufficient by the Legislature for denying the sale of contingent interests under execution, as the Supreme Court has construed our statute, are quite as potent to restrict a Court of Equity in proceeding against such an interest by creditor’s bill.

A creditor’s bill only lies where the policy of the law is all in favor of the creditor being permitted to obtain satisfaction of his judgment out of the property of the debtor, which is thus sought to be reached, but where, because of the nature of the property, execution cannot be levied. In such cases, the remedy at law is defective by reason of the nature of the property and for that reason equity will supply it. But the nature of a contingent interest in land is not such as to require a bill in equity. It is capable of being subject to sale under an execution and there is no difficulty in reaching it in that way by reason of the nature of the property.

It has further been held in Illinois that a Court of Equity has no jurisdiction to order the sale of a contingent remainder in a suit for partition. Hill v. Hill, 264 Ill. 219, 228.

Although it has been held that the owner of such an interest may voluntarily assign it in equity, or transfer it by warranty deed, in which case the transfer will be upheld on the theory of estoppel, it is apparently the fixed policy of the law in this. State that a contingent remainder may not be subjected to a forced sale.

Appellant, in contending the contrary, relies upon a number of decisions to that effect, notably, Alexander v. McPeck, 189 Mass. 34; Putnam v. Story, 132 Mass. 205; Daniels v. Eldredge, 125 Mass. 356; Clarke v. Fay, 205 Mass. 228, 91 N. E. 328. An examination of the statutes of Massachusetts discloses the fact that the broad policy of the law there with reference to contingent interests is quite at variance with ours. The statute of that State, which was involved in Clarke v. Fay, permits “suits by creditors to reach and apply in payment of a debt any property, right, title or interest, legal or equitable, of the debtor * * * which cannot be reached to be attached or taken on execution in an action at law, although * * * the property sought to be reached and applied * * * cannot be reached and applied until a future time or is of uncertain value * * The execution statute of that State subjects to levy “all the land of the debtor in possession, remainder or reversion * *

The policy of the law, as our Supreme Court has thus established it in Illinois, works no hardship on the judgment creditor. If he could reach a contingent remainder, either under execution or by a creditor’s bill, and a sale of it was compelled and he was permitted to buy it in, he would take nothing if the contingency never happened and the estate never vested in possession. On the other hand, if the contingency ever does happen, and the estate does vest in possession of the contingent remainderman, the judgment creditor can secure all he is entitled to, namely, the face of the judgment with interest and costs. This he is sure to receive on the happening of the contingency if he merely keeps his judgment alive, for it will be a prior lien against an attempted voluntary assignment or conveyance.

There being no error in the record, the decree is affirmed. •

Affirmed.

Mr. Presiding Justice Taylor

specially concurring.

I do not agree with all the reasoning of the foregoing opinion, but I concur in the result.


author: Mr. Justice Thomson Mr. Justice Thomson

text:
    Bernhard Loeff, Appellee, v. Mary Meyer et al., on appeal of Mary Meyer, Appellant.
    Gen. No. 23,152.
    1. Mechanics’ liens, § 33

      —when lessor not relieved from liability for mechanic’s lien for alterations and repairs by lessee. The provision in a .lease that the lessee might, upon 10 days’ notice to the lessor, make such changes or alterations in the building as he deemed suitable, provided they did not diminish the value of the building and were paid for by the lessee, does not relieve the lessor from liability to a mechanic’s lien for alterations and repairs by the lessee, even though the notice called for by the provision of the lease was not given the lessor and without regard to whether or not the contractor had knowledge of such provision, where the lessor visited the premises during the course of the alterations and repairs and saw that they were being made and failed to make any objection.
    2. Landlobd and tenant, § 209*—when alterations in front of building are joint enterprise of lessor and lessee. Under the provisions of a lease that the lessee is to pay for all repairs and alterations, that all alterations and additions to the premises shall remain for the benefit of the lessor unless otherwise provided in the lessor’s consent to their being made and requiring the written consent of the lessor to all material alterations except changing the front of the building, alterations to the front of the building are the joint enterprise of the lessor and lessee.
    3. Mechanics’ liens, § 33*-—when contractor not estopped to claim lien against leased property. The provision of a lease that, as to alterations of the building which are the joint enterprise of the lessor and lessee, no mechanic’s lien therefor shall attach to the lessor’s interest is void, and knowledge thereof does not estop a contractor for such alterations from claiming a lien against the leased property.
    4. Mechanics’ liens, § 193*—when no variance between bill and proof. In a suit to establish a mechanic’s lien, held that material variance between the allegations of the bill and the proof was not shown.
    5. Mechanics’ mens, § 32*—when lessor knowingly permits alterations. Where a lease expressly authorizes certain alterations on condition that the lessor is given 10 days’ notice thereof and the lessee pays therefor, and the evidence shows that she was on the premises while a certain part of the alterations were being made, it sufficiently appears that she “knowingly permitted” such part, even though the required notice was not given her.
    6. Mechanics’ liens, § 195

      -—how value of work may be shown. In a suit to establish a mechanic’s lien, the fair and reasonable value of the work done may be shown by the uncontradicted evidence of complainant as to its fair and reasonable value.
    7. Mechanics’ liens, § 196*—when balance due complainant shown. In a suit to establish a mechanic’s lien, evidence held sufficient to show what balance was due complainant.
    8. Mechanics’ liens, § 202*—when lien allowed as to part of items. In a suit to establish a mechanic’s lien, where every item in the contract under which the lien is claimed and which is divisible into separate items is such as is covered by the Mechanics’ Liens Law (J. & A. If 7139 et seq.), and the proof shows that complainant is entitled to a lien as to some of the items, the lien is properly allowed as to such items, • even though, as to others, no right to a lien is established.
    9. Mechanics’ liens—when payments applied to nonlienable items. In a suit to establish a mechanic’s lien under a contract made up of divisible items, payments will be applied to nonlienable items, so as to leave unimpaired the security of the lien as to such of the items as are lienable.
    On Petition fob Rehearing.
    1. Mechanics’ liens, § 32*—when contractor may assume that provision as to notice of alterations by tenant has been complied with. A contractor who has notice of the provision in a lease that the lessor be given notice of alterations by the lessee is warranted in assuming that the provision has been complied with where he sees the owner about the premises in the course of such alterations and the latter raises no objections to them.
    2. Mechanics’ liens, § 33*—what is effect of knowledge by contractor as to duty of lessee to pay for alterations. A contractor’s knowledge of a provision in a lease that alterations are to be paid for by the lessee does not operate to deprive him of a mechanic’s lien against the property for alterations, especially where the lease provides that alterations shall be the property of the lessor.
    Appeal from the Superior Court of Cook county; the Hon. Charles M. Foell, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1917.
    Affirmed.
    Opinion filed January 30, 1918.
    Additional opinion denying application for rehearing filed February 15, 1918.

      Frank A. Lasley, for appellant; Winston & Lqwy, of counsel.
    Joseph Rosenberg and Irving Zimmerman, for appellee.

      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. Justice Thomson

delivered the opinion of the court.

This is an appeal by Mary Meyer, the appellant, hereinafter referred to as the defendant, from a decree of the Superior Court granting a mechanic’s lien against her premises for the sum of $502 to Bernhard Loeff, appellee, hereinafter referred to as the complainant.

The complainant was a contractor who had entered into a contract with the lessees of the premises in question for certain alterations and repairs and who had performed the work called for by the contract. The defendant executed a lease of the premises in question to the lessees in March, 1913. The complainant was present on the occasion of the drawing and execution of the lease. At this time there was some talk as to who was to pay for any repairs or alterations that might be made, defendant refusing to make or pay for any such. A clause was thereupon inserted in the lease, providing that the lessee might, upon 10 days’ notice in writing to the lessor, make such changes or alterations as they deemed suitable, provided such changes or alterations did not diminish the value of the building, and were paid for by the lessees. A little over a year later complainant entered into an oral contract with the lessees for certain alterations on the premises at the agreed price of $2,630. The lessee took possession May 1, 1914, and work on the alterations was begun shortly thereafter. On one or two occasions during that month the defendant visited the premises and observed that certain work was going on with respect to the building front. She did not know of the contract between complainant and her lessees, nor had any notice as to repairs or alterations been given to her by the latter. When she saw the work in progress she did nothing about it and it went ahead to completion. The bill alleges that complainant has received $2,005 from the lessees, leaving a balance due amounting to $632. The lessees went into bankruptcy; thereafter complainant filed his bill.

In connection with her appeal from the decree entered against her below, defendant contends that complainant knew of the provision in the lease to the effect that repairs or alterations were to be made by lessees only after giving defendant 10 days’ notice thereof, and that all of such repairs and alterations were to be paid for by the lessees and not by her and that he is, therefore, equitably estopped from asserting a lien on the premises. The question of whether the complainant did have knowledge of these features of the lease is not material. First, as to the 10 days’ notice to defendant called for by the lease, it may be said that when she visited the premises and saw the store front out and extensive alterations being made upon it, even if she knew complainant was the contractor doing the work (which she denied) and that he had knowledge of this 10 days’ notice clause in the lease, it was incumbent upon her to notify him at once that she had not received this notice and would not be responsible for the work and this was all the more incumbent upon her if, as she says, she did not know complainant was the contractor, for then it would be likely that the one who was doing the work did not know of this clause in the lease. If there is any equitable estoppel in this case it operates against the defendant instead of the complainant, for, by her conduct in not objecting when she saw the store front operations in progress, she misled complainant into believing that she had received the notice called for by the terms of the lease. Wertz v. Mulloy, 144 Ill. App. 329, 334.

Second, as to the provision in the lease that the lessees were to pay for all repairs and alterations, it should be said that his knowledge of this provision cannot estop him from enforcing his mechanic’s lien. This lease also provided that “all alterations and additions to said premises shall remain for the benefit of the lessor unless otherwise provided in said consent as aforesaid.” Thus this improvement amounted to the joint enterprise of the lessor and the lessees. This view is further strengthened, as to all material furnished and work done in connection with the alterations on the store front, which is the only part of the contract involved in this case, by another provision in the lease requiring the written consent of the lessor to ‘ ‘ all material alterations except changing the front of the building.” The contention of defendant that complainant is estopped from enforcing his lien by reason of his knowledge of this provision amounts to a contention that there was an agreement between defendant and her lessees that there was to be no attachment of mechanics’ liens to the interest of the owner, and complainant’s knowledge of that agreement, as embodied in the lease, estops him from securing such a lien now. The contention is not sound. The two clauses quoted from the lease show that the improvements involved here were to be made as the joint enterprise of the defendant and her lessees. If'the lease is subject to the interpretation that, as to such alterations there shall be no attachment of mechanic’s liens to the interest of the owners, such provision is void as being an attempt to set aside thé law of the land. Boyer v. Keller, 258 Ill. 106, 114; Crandall v. Sorg, 198 Ill. 48; Provost v. Shirk, 223 Ill. 468; Carey-Lombard Lumber Co. v. Jones, 187 Ill. 203; Friebele v. Schwartz, 164 Ill. App. 504, 508.

Complainant cannot be estopped by his knowledge of a provision in the lease which is void and of no effect under the law, at least as to him.

It is next contended by defendant in support of her appeal that there is a variance between the allegations in the bill and the proof: First, in that the bill alleges a contract for the fair and reasonable value of the work done, not to exceed $2,637, while the proof shows that the complainant was to receive the agreed price of $2,637 and no more and no less; second, that the bill alleges that defendant knowingly permitted the complainant to enter into the contract in question, while the proof fails to show that she authorized her lessees to enter into the contract or knowingly permitted them to do so, but that the only inference which may be deduced from the evidence is that she saw some of the alterations to the front of the building while the work was in progress and thereby ratified the contract; and third, in that the bill alleges that defendant knowingly permitted the complainant to enter into the contract by reason of the fact that she visited the premises, had conversations with the lessees and with the men in charge regarding the work and that she directed that certain repairs be done, whereas the proof shows that the right to make a contract for improvements was derived, if at all, from the lease.

The first of these alleged variances is entirely immaterial and trivial. • As to the second, while the bill does allege that defendant knowingly permitted the complainant to enter into the contract, it also alleges “that all of the work under said contract, as herein-before set forth was done with the authority, knowledge, consent and permission of the said Mary Meyer.” As to the third, we do not understand that complainant contends or attempted to prove, nor does the proof show that he derived the right to make the contract from the lease. The question at issue here was whether defendant had, knowingly, permitted the work to be done. On that question it was proper to introduce the lease in evidence under the allegation of the bill quoted above.

It is next urged by the defendant that the proof does not establish the fact that she “knowingly permitted” the making of the improvements and the doing of the work in question and that it is necessary to show more than mere knowledge on her part that some work was being done to establish such fact, and in support of this proposition defendant cites McRae v. Murdoch Campbell Co., 94 Ill. App. 109. There is an element present in the case at bar that was not present in that case. In the case cited by defendant, the court says at page 110: “It does not appear that the firm (lessees) had possession of the store under any agreement which provided for the making of the improvement.” The contrary appears here, for the lease expressly authorized changing the store front of the building, under the conditions specified, namely, that the lessor was to have 10 days’ previous notice in writing and that the lessees were to pay for it. In addition to this the evidence is clear that defendant visited the premises at a time when the whole store front was out and she saw the alterations going on. This, especially when taken in connection with the knowledge she must have had of the express stipulation in the lease about changing the store front, amounted to her “knowingly permitting,” at least that part of the work to be done. Wertz v. Mulloy, supra; R. Haas Elec. & Mfg. Co. v. Springfield Amusement Park Co., 236 Ill. 452, 460; Friebele v. Schwartz, 164 Ill. App. 504, 508; Carey-Lombard Lumber Co. v. Jones, supra.

Defendant further contends that the proof failed to show that the alterations in question enhanced the value of her property. On this question of fact the court below found to the contrary, and that finding seems to have been warranted by the evidence.

Defendant further assigns as error the finding of the trial court that there was any competent evidence showing the fair and reasonable value of the work done upon the building. The record discloses that complainant testified that the fair and reasonable value of the work done was $2,747, and there is no evidence to the contrary.

It is alleged by defendant that it has not been shown how much was realized out of the bankruptcy proceeding involving the lessees. As has already been pointed out, the record discloses that complainant had received all except the balance of $632. A further point raised by defendant is to the effect that where the contract is for the payment of a gross sum for the entire labor agreed to be performed, for part of which the statute gives a lien and for part of which it does not, the lien cannot be enforced as to any part of the price to be paid. The case of Adler v. World’s Pastime Exposition Co., 126 Ill. 373, cited by defendant, is to that effect. This, however, is not applicable to the situation we have in the ease at bar, for here every item involved in the contract was such an item as is covered by our Mechanics’ Liens Law, and in such a case where the proof shows that complainant is entitled, on the facts, to the lien he claims on some of the items involved, but is not so entitled as to other items involved, the court will allow the lien as to all items which the evidence shows complainant is entitled to. Fehr Const. Co. v. Postl System of Health Building, 189 Ill. App. 519; E. R. Darlington Lumber Co. v. Burton, 156 Ill. App. 82, 86; R. Haas Elec. Mfg. Co. v. Springfield Amusement Park Co., 236 Ill. 452, 465.

In the case at bar the work which was done by the complainant was clearly divisible into distinct and separate items and the court below held that, under the facts in the case, he was entitled to a lien on some of those items and not as to some other items, although all the items involved were such as are within the Mechanics’ Liens Law. The items on which the court below allowed the complainant his lien are those which entered exclusively into the store front. Upon the authority of the foregoing cases the complainant was entitled to his lien on all those items, notwithstanding the fact that the court found that, in view of the testimony, a lien could not be allowed on other items.

Defendant contends that if a payment is made generally a court of equity will credit the payment according to its own view of the intrinsic justice and equity of the case. As to this point it is clearly established that such payment should be applied upon nonHenable items, if such are involved, so as to leave the creditor with his security of a mechanic’s lien on those items as to which he. has a lien. Fehr Const. Co. v. Postl System of Health Building, supra, at page 524; Monson v. Meyer, 190 Ill. 105, 108; Barbee v. Morris, 221 Ill. 382, 384.

We find no error in the record and the decree is affirmed.

'Affirmed.

ADDITIONAL OPINION ON PETITION FOB BEHEADING.

Mr. Justice Thomson

delivered the opinion of the court.

In petitioning for a rehearing in this cause, the appellant urges that the provisions of the lease involved in this case, to the effect that the lessees were to make repairs only after giving the lessor 10 days’ notice in writing, and that all repairs were to be paid for by the lessees, prevent the appellee from having his lien by reason of the fact that he had knowledge of the presence of these provisions in the lease, and that the notice referred to was not given her.

As to the provision in the lease to the effect that notice, the appellee (the contractor) was warranted in assuming that the provision had been complied with when he saw the appellant (the owner) about the premises at the time the repairs and alterations were being made and she made no objection to the'work.

As to the provision in the lease to the effect that all repairs were to be paid for by the lessees, the Supreme Court has held, in the cases .cited, that such a provision will not prevent the contractor from having his lien, especially where the lease provides, as it does in this case, that any alterations or improvements made during the term of the lease shall be the property of the lessor upon the termination of the lease. So far as we know, the precise point at issue here has never been passed upon in this State, and, in none of the cases cited, was it shown that the contractor had knowledge of the fact that the provisions in question were included in the lease; but, as we have stated in our previous opinion, we hold that such knowledge on the part of the contractor will not operate to deprive him of his lien. He is not a party to any arrangements that have been made, between the lessor and the lessee as to payment, and he is not bound by any such arrangements and may avail himself of the statute giving him a lien as against the interests of the lessor if the lessee, with whom he makes his contract, fails to pay him, notwithstanding the fact that at the time he enters into the contract he knows that the lessee has agreed with the lessor that he (the lessee) will pay the bill. This question arose in the case of Mosher v. Lewis, 31 N. Y. Supp. 433. That was a mechanic’s lien action and there was some question about the necessity of the complainant proving that he was without knowledge of a provision in the lease to the effect that any repairs which were made were to be at the expense of the lessees. The court holds that the question is immaterial. On page 436 the court says:

“The right to such a lien did not exist at common law. * * * It ‘is a peculiar, particular, and special remedy, given by statute, founded and circumscribed by the terms of its own creation. ’ 15 Am. & Eng. Enc. Law, p. 5. It is created by the statute.but arises, not from contract, but from the employment of services and the use of materials in improvements or repairs with the ‘owner’s’ consent, though it may be incidental to a contract. * * * The present Mechanics’ Liens Law does not prescribe ignorance of the mechanic or materialman of the ‘owner’s’ agreement with another, whereby the latter has assumed the expense, as a condition of the right to acquire the lien; hence we may not annex it. The determinative fact is that the services were employed or the materials furnished with the ‘owner’s’ consent.”

What the court there said with reference to the Mechanics’ Liens Law of that jurisdiction applies to our law. Under the theory of the law, it is considered inequitable for an owner to authorize or knowingly permit one to contract with another to repair, alter or improve the owner’s property and retain the benefit thereof without compensating the one who has furnished the materials or performed the labor in case the one who has been so authorized by the owner fails to pay as agreed. If the owner has a contract or understanding with the one whom he authorizes or permits to repair, alter or improve his property, that the latter is to pay for it, the equity of the situation is the same, whether the one who furnishes the materials or performs the labor knows of that agreement or not. This rule works no hardship upon the owner. He may amply protect his interest in the property from liens by requiring the contractor to enter into an agreement with him (the owner), waiving the right to mechanics’ liens, before permitting the work to be done.

Rehearmg dmied.


author: Mr. Justice Thomson

text:
    William A. & Allan Pinkerton, Copartners, as Pinkerton’s National Detective Agency, Appellants, v. Matt W. Pinkerton et al., Appellees.
    Gen. No. 23,156.
    1. Appeal and error, § 855

      —when certificate of evidence unnecessary. No certificate of evidence is necessary where there is no oral testimony heard by the court, and its decree is based on the master’s report and the evidence submitted therewith.
    2. Appeal and error, § 735*—what is part of record of trial court. Where no oral testimony is heard by the court and the decree is based on the master’s report and the evidence submitted therewith, such report, including the evidence submitted therewith, is a part of the record of that court which should remain there.
    3. Appeal and error, § 735*—what should not be included in transcript of record. The original report of the master and the evidence submitted therewith, being a part of the record in the court below, should not be included in the transcript filed in the Appellate Court.
    4. Appeal and error, § 733*—what papers should remain in lower court. In the absence of a statutory provision or rule of the court of review to the contrary, original papers filed in a cause should remain in the lower court.
    5. Appeal and error, § 735*—original report of master and evidence may not be inserted in transcript. Rule 13 of the Appellate Court, providing for the inspection of original papers, does not authorize the insertion in the transcript of the original report of the master and the evidence submitted therewith, notwithstanding an order of the trial court permitting such insertion, pursuant to a stipulation of the parties.
    6. Appeal and error, § 759*—inspection of exhibits. Rule 13 of the Appellate Court, which provides for the inspection of original papers in an action, is intended to apply to exhibits.
    7. Appeal and error, § 759*—how exhibits brought to Appellate Court. Exhibits brought to the Appellate Court under rule 13 do not come as a part of the record or as a part of transcript, but in connection with the transcript.
    8. Appeal and error, § 735*—what may not be incorporated into transcript of record. There is no statute or rule of court by which either the original master’s report, the evidence taken and certified to by him or the exhibits introduced in connection with that testimony can be incorporated into the transcript of the record on appeal.
    9. Appeal and error, § 1749

      —when judgment affirmed for incompleteness of record. Where, on appeal, the transcript of the record is incomplete, the decree will be affirmed unless there is manifest error in such part of the record as is properly before the court of review.
    10. Equity, § 548*—when, evidence need not he preserved hy certificate of. evidence. The rule that, in order to sustain a decree granting affirmative relief, the successful party must, when the facts are not found or recited in the decree, preserve the evidence by a certificate of evidence, does not apply to a decree dismissing a bill for want of equity.
    11. Appeal and error, § 1199*—when decree dismissing hill on merits not disturbed. A decree dismissing a bill on its merits needs, on appeal, no evidence to support it and must stand unless it affirmatively appears that there was evidence introduced hy complainant or heard at the trial which entitled him to the relief prayed.

      12. Appeal and error—when original paper inserted in transcript ordered returned to lower court. Where an original paper from the files of the lower court has been improperly inserted in the transcript on appeal, the Appellate Court will direct that its clerk, on the request of either party, detach such paper and return it to the clerk of the court below.
    Appeal from the Circuit Court of Cook county; the Hon. Frederick A. Smith, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1917.
    Affirmed.
    Opinion filed January 30, 1918.
    John A. Brown, for appellants.
    George H. Mason, 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 Crnnnlatire Quarterly, same topic and section number.

   Mr. Justice Thomson

delivered the opinion of the court. ,

■ This is an appeal from a decree of the Circuit Court reversing and overruling the findings of the master in chancery, and dismissing the bill for want of'equity.

Appellee insists that the decree must be affirmed for want of a complete record. The clerk, in mailing up the transcript of record, inserted therein the original master’s report, including the evidence taken before the master, and the original exhibits offered in evidence, submitted with and attached to the master’s report. The certificate of the clerk of the Circuit Court is that the transcript of record, which has been filed in this court, together with a transcript previously certified and filed in this court, consisting of the decree entered by the court below in this case, and the appeal bond filed in connection with the appeal, constitutes “a true, perfect and complete Transcript of the Becord * * * excepting the Master’s Beport, testimony taken before said Master and exhibits filed in this office, * * * the originals of which are being incorporated herein and transferred to the Appellate Court, First District of the State of Illinois, pursuant to a certain order had and entered of record.” The order referred to in the certificate of the clerk reads as follows:

“On motion of the solicitor for complainants, and upon stipulation and agreement of the parties by their respective solicitors, it is ordered that the original testimony, Master’s report, and Exhibits be, and the same are hereby ordered to be incorporated in the Transcript of Becord to the Appellate Court of the First District of Illinois, and that the same be transferred to the Clerk of said court by the Clerk of said Circuit Court.”

It is only the original bill of exceptions or certificate of evidence that can be incorporated in the record by agreement of the parties. Illinois Annotated Statutes, sec. 5696. In the case at bar, no oral testimony was heard by the court and the decree is based on the master’s report and the evidence submitted therewith. No certificate of evidence was necessary and there is nope in the record. Under such circumstances, the master’s report, including the evidence therewith submitted, is a part of the record.

A court of review acts upon a transcript of the record and not upon the record itself. The original report of the master, including the evidence taken and certified by him, is a part of the record in the court below but not of the transcript which the statute requires to be filed in this court.

Original papers filed in the court below should remain there for the benefit and security of all parties in interest, except where a different course is pointed out by the statute or by the rules of the court exercising appellate jurisdiction to which the case is taken for review. Counsel for appellants urges that rule 13 of this court does prescribe a different course and that the stipulation of the parties, followed by the order of the court, incorporating the original master’s report, including the evidence taken and certified by him, and exhibits, in the record, is within, and was done pursuant to, the provisions of rule 13. That rule reads as follows:

“Whenever, in the opinion of the presiding judge of any inferior court, an inspection of an original paper in an action on appeal or writ of error shall be important to a correct decision of the case, such judge may make such order for the transmission, safe-keeping and return of such original paper as to him may seem proper. And the clerk of this court will receive such original paper in connection with the transcript, and hold same subject to such order.”

This rule clearly is intended to cover exhibits and not such things as the master’s report and evidence taken before him. It could hardly be considered important to a correct decision of a case that the court of appeal make an inspection of the original master’s report and evidence taken before him. But, further, the rule in question was never intended to serve and cannot serve the purpose claimed for it in this case by appellant as to the exhibits involved in the case. If, in the opinion of the trial court, an inspection of the original exhibits appeared to be important to a correct-decision of the case, the court might properly have made an “order for the transmission, safe-keeping and return of sneh original exhibits.” Such an order would have been within the provisions of rule 13, but that rule does not authorize nor warrant the entering of an order incorporating the exhibits in the transcript of the record as was done in this case. When such original exhibits come up to this court under the provisions of rule 13, they do not come as a part of the record proper, or as a part of the transcript of the record, but, in the language of the rule, " in connection with the transcript” of the record. Crane v. Blackman, 100 Ill. App. 565.

There is no statute or rule of court by which either the original master’s report, the evidence taken and certified to by him, or the exhibits introduced in connection with that testimony can be incorporated into the transcript of the record made up in connection with an appeal of the cause.. Beth Hammidrash Hagodol Ub’nay Congregation v. Oakwoods Cemetery Ass’n, 200 Ill. 480; Martin v. Todd, 211 Ill. 105; Trustees of Schools v. Welchley, 19 Ill. 64; Carey v. Scherer, 55 Ill. App. 421; Phelan v. Cuddy, 57 Ill. App. 590; Bottigliero v. Cozzi, 176 Ill. App. 311.

The want of a complete transcript of the record, owing to a misconception of the seemingly rigid requirements of the law, unfortunately prevents ns from considering the case upon its merits, and, following the authorities before cited, the decree will have to be affirmed unless there is manifest error in that part of the record properly before us. It is urged by appellants that there is. It is apparent, however, that a consideration of matters, which would be shown by the transcript of the master’s report and the evidence taken before the master, is necessary for a proper determination of the errors assigned, all of which go to the merits of the cause.

To sustain a decree granting affirmative relief, the party in whose favor the decree is rendered must, when the facts are not found or recited in the decree, preserve the evidence by a certificate of evidence, but this rule does not apply to a decree which grants no affirmative relief but dismisses the bill for want of equity. Kelly v. Funkhouser, 171 Ill. 205; Lyons v. Lyons, 272 Ill. 329; Ryan v. Sanford, 133 Ill. 291; First Nat. Bank of Chicago v. Baker, 161 Ill. 281.

The decree for the defendant dismissing the bill on its merits needs no evidence to support it, and it must stand unless it affirmatively 'appears that there was evidence adduced by the complainant or heard at the trial which entitled him to the relief prayed for in the bill. Ryan v. Sanford, supra, at page 298.

For the reasons stated, the decree in this case must be affirmed. The clerk of this court is directed to detach from the transcript in this case, on request of either party, the original papers constituting a part of the record of the court below, and return them to the clerk of the Circuit Court of Cook county.

Affirmed.


text:
    C. L. Hartwell, trading as C. L. Hartwell & Company, Appellee, v. Crane & Macmahon, Inc., trading as Virginia & North Carolina Wheel Company, Appellant.
    Gen. No. 23,190. (Not to be reported in full.)
    Abstract of the Decision.
    1. Sales, § 18

      -—when counter proposition deemed accepted. Where one who receives an offer of goods of a certain description at a certain price replies with a counter proposition, and in reply thereto the offerer advises the former that he has concluded to ship the goods as per its first letter and ships the goods, billing them at the price named in the counter proposition, not at that contained in the original offer, he must be deemed to have accepted the counter proposition, and the terms of the contract between the parties is fixed by the terms of the counter proposition and the letter accepting it.
    2. Sales, § 114*—when contract for sale of lumber not complied with by seller. In an attachment to recover for lumber sold and delivered, evidence examined and held to show that plaintiff failed to comply with the specifications of the contract as to the dimensions of the lumber.

      Appeal from the Municipal Court of Chicago; the Hon. John Stelk, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1917.
    Reversed.
    Opinion filed January 30, 1918.
    Statement of the Case.
    Attachment by C. L. Hartwell, trading as C. L. Hartwell & Company, plaintiff, against Crane & Macmahon, Inc., trading as the Virginia & North Carolina Whéel Company, defendant. From a judgment for plaintiff for $577.20 and costs, defendant appeals.
    Charles C. Stilwell, for appellant.
    Herbert A. Schryver, for appellee.

      See Illinois Notes Digest, Vois. XI to XV, and Cumulative Quarterly, same topip and section number.

   Mr. Justice Thomson

delivered the opinion of the court.


text:
    Edward Gans, Appellee, v. Lincoln Stars, corporation, et al., on appeal of Lincoln Stars, Appellant.
    Gen. No. 23,202. (Not to be reported in full.)
    Abstract of the Decision.
    1. Evidence, § 122

      —when copy of contract admissible as secondary evidence. In an action to recover for services alleged to have been rendered under a contract, where, on the hearing, on a motion by plaintiff to order defendant to produce the original contract at the trial defendant’s counsel states in open court that the original document is not in defendant’s possession and that he denies that it ever existed, plaintiff may, on the trial, introduce a copy of the alleged agreement as secondary evidence thereof.

      Appeal from the Municipal Court of Chicago; the Hon. John Stelk, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1917.
    Affirmed.
    Opinion filed January 30, 1918.
    Rehearing denied February 13, 1918.
    Statement of the Case.
    Attachment by Edward Cans, plaintiff, against Lincoln Stars, a corporation, defendant, to recover under an alleged contract with defendant, for an amount claimed to be due for services rendered. From a judgment for plaintiff for $53.53 and costs, defendant appeals.
    Laurence M. Fine and Edward Drobnis, for appellant.
    Ellis & Westbrooks, for appellee.

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

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

   Mr. Justice Thomson

delivered the opinion of the court.

2. Municipal Court of Chicago, § 13 —non-necessity of formal pleadings. In cases of the fourth class in the Municipal Court of Chicago, while the statement of claim filed must set forth a cause of action, formal pleadings are not necessary.

3. " Municipal Court of Chicago, § 13a*—what is rule as to variance in actions of fourth class. Cases of the fourth class in the Municipal Court of Chicago are governed, as to variance, by the rule, which controls in actions before justices of the peace, that the action is what the proof makes it.

4. Municipal Court of Chicago, § 13a*—when variance in action of fourth class does not prevent recovery. Even though the statement of claim in a fourth class case in the Municipal Court of Chicago declares on a written contract while the proof discloses an oral contract or one partly oral and partly written, plaintiff may recover if the statement sets forth a good cause of action.

5. Attachment, § 246*—what is sufficient proof to sustain. Where an affidavit for attachment alleges two statutory grounds and defendant denies only one of them in its traverse, the ground not alleged is admitted and is sufficient to sustain a judgment for attachment.