text:
    Henry Felau, Appellee, v. Lake Sand Company, Appellant.
    Gen. No. 23,255.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Appeal and ebbob, § 1411

      —when finding not disturbed. A finding, in a negligence case, based upon conflicting evidence, will not be disturbed on appeal.
    2. Damages, § 175*—when evidence as to financial condition of plaintiff is improper. It is prejudicial and reversible error, in an action for personal injuries, for plaintiff’s attending physician to testify as to plaintiff’s impecunious condition and to state that plaintiff had always been a pensioner of his, and he never had received pay for any services performed.
    3. Tbial, § 124*—when argument of counsel constitutes reversible error. It is prejudicial and reversible error, in a personal injury case, for counsel for plaintiff, in attempting in his argument to explain the visit of the engineer in control of the device, and through whose alleged negligence plaintiff claimed to have been injured, to the office of plaintiff’s counsel during the course of the trial ■ and conference with the latter, before he was called upon to testify on behalf of defendant, and his failure to call the engineer as a witness, to state that the engineer had a deep motive, and he did not think that it would be fair to put him on the stand and ask him to “incriminate” himself, and after objection, in stating that by the use of the word “incriminate” he did not mean anything criminal, that the engineer must have had a deep motive and that it was not human nature for a man to take the stand and say, “yes, it was my fault for crippling a human being for the rest of his life,” and asking whether he should have asked the engineer to say that, and, in discussing the pain and suffering endured by plaintiff while being treated by his physician, to ask the jury if they did not think that plaintiff suffered intense pain when he had pieces of bone taken from his leg and in stating that the work was done without the humane office of an anaesthetic.

      Appeal from the Circuit Court of Cook county; the Hon. Os cab M. Tobbison, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1917.
    Reversed and remanded.
    Opinion filed April 16, 1918.
    Statement of the Case.
    Action by Henry Felau, plaintiff, against Lake Sand Company, a corporation, defendant, to recover for personal injuries. From a judgment for $11,500 for plaintiff, defendant appeals.
    Winston, Payne, Strawn & Shaw, for appellant; John D. Black and Charles J. McFadden, of counsel.
    Henry B. Bathbone, for appellee.

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

   Mr. Justice McDonald

delivered the opinion of the court.


source: Caselaw Access Project

author: Mr. Justice McDonald

license: Public Domain

text:
    E. A. Hey, Appellee, v. United States Bottlers' Machinery Company, Appellant.
    Gen. No. 23,262.
    (Not to he reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Sheridan E. Fry, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1917.
    Reversed and judgment here.
    Opinion filed April 16, 1918.
    Statement of the Case.
    Action by E. A. Hey, plaintiff, against United States Bottlers’ Machinery Company, defendant, to recover for a balance, due on account of commissions on orders for the sale of bottle washing and filling machines and tomato pulping machines. From a judgment for plaintiff for $923.75, defendant appeals.

      Abstract of the Decision.
    1. Master and servant, § 66

      —when evidence does not support finding for plaintiff as to right to commissions on machines returned. A finding for plaintiff, in an action to recover commissions on the sale of machines, on the basis of all orders taken, whether returned or not, as to right to payment for machines returned, is improper where the only evidence to sustain the finding is plaintiff’s own testimony, and his testimony on cross-examination is of such a character as to leave the mind in great doubt as to whether his version- of the contract of employment is true, and his evidence is opposed by that of three officers of the defendant as well as by a stipulation between the parties at the time of trial that plaintiff was not seeking to recover items of commission where the machines had been returned.
    2. Master and servant, § 71*—when allowances for alterations in unsatisfactory machines or reduction in price are proper in action for commissions. Evidence held to warrant a finding for the allowance to defendant of a certain sum .and deduction thereof from commissions earned iby plaintiff, because of alterations in unsatisfactory machines or the granting of a reduction in the price to the purchasers.

      The orders procured by plaintiff were in writing and contained an express guaranty that the machines would give satisfaction to the purchaser. Subsequently it developed that a number of the pulping machines so shipped proved unsatisfactory and were either returned by the purchasers or were retained after the defendant had made certain alterations in their construction or a suitable allowance in price. Such expenditures or allowances were charged to plaintiff.
    'Ashcraft & Ashcraft, for appellant; E. M. Ash-craft & C. F. Bathbun, of counsel.
    Longeneoker & Heise, for appellee; Bolla B. Longeneoker, of counsel.

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

   Mr. Justice McDonald

delivered the opinion of the court.


text:
    D. H. Buxton et al., Appellees, v. Bliss & Laughlin, Appellant.
    Gen. No. 23,275.
    (Not to he reported in full.)
    Abstract of the Decision.
    1. Sales, § 65

      —when special provision in contract as to time for specifying requirements hy seller prevails over general provision. The express provision in a contract for the sale of steel shafting, to be made according to specifications, that specifications for less than carload lots could be ipade prior to a certain date prevails over a general provision requiring the purchaser to specify his requirements in ample time to permit the seller to make and ship the material during the life of the contract, and the seller breaches the contract where he refuses to fill an order for less than a carload lot, received one day before the time limited for specifications for less than carload lots.

      Appeal from the Municipal Court of Chicago; the Hon. Wells M. Cook, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1917.
    Reversed and judgment here with finding of facts.
    Opinion filed April 16, 1918.
    Statement of the Case.
    Action by D. H. Buxton and others, plaintiffs, against Bliss & Laughlin, a corporation, defendant, to recover for the alleged breach by defendant of two contracts for the sale of steel shafting. From a judgment for plaintiffs for $2,855.55, defendant appeals.
    Frank & Lurie, for appellant.
    Musgrave, Oppenheim & Lee, 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.

   Mr. Justice McDonald

delivered the opinion of the court.

2. Sales, § 366 —when purchasers cannot complain of breach of contract. Where the purchasers of steel shafting fail to make payments as required by the contract and, after the seller’s rescission of the contract because thereof, write the seller to continue shipments, it is incumbent upon them to perform their part of the contract by making payments as they become due thereunder, and, failing therein, they are in no better position than the seller, and cannot complain of a breach of contract.

3. Sales, § 373*—when waiver of provision in contract for payment for shipments within SO days not shown. Evidence held insufficient to show a waiver, by the seller of a provision in a contract for the sale of steel shafting, requiring that shipments be paid for within 30 days from date thereof.


text:
    Charles B. Ensign, trading as C. B. Ensign & Company, Appellant, v. William J. Leahy, Jr., Appellee.
    Gen. No. 23,291.
    (Not to he reported in full.)
    Abstract of the Decision.
    Bills and notes, § 440

      —when judgment for defendant not warranted ly evidence. In an action to recover the balance due on a note, which was a part of an outline of studies, which were never given, and was detached and sold to plaintiff for value before maturity, where the evidence was undisputed that plaintiff was an innocent purchaser for value and defendant made payments on the note in its detached form at plaintiff’s office, where he admitted he saw the note, evidence held insufficient to warrant a judgment for defendant.
    Appeal from the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. ■
    Heard in the Branch Appellate Court at the March term, 1917.
    Reversed and judgment here.
    Opinion filed April 16, 1918.
    Statement of the Case.
    Action by Charles B. Ensign, trading as C. B. Ensign & Company, plaintiff, against William J. Leahy, Jr., defendant, to recover a balance due on a certain promissory note. From a judgment for defendant, plaintiff appeals.
    Oliver M. Olson, for appellant.
    No appearance for appellee.

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

   Mr. Justice McDonald

delivered the opinion of the court.


author: Mk Justice McDonald

text:
    Mrs. Charles Rockstroch, Appellee, v. Calumet & South Chicago Railway Company and Chicago City Railway Company, Appellants.
    Gen. No. 23,314.
    (Not to he reported in full.)
    Abstract of the Decision.
    Cabbiebs, § 476

      —when verdict for plaintiff in action for injuries received while alighting from car not sustained 6y evidence. In an action by a street car passenger to recover for personal injuries received while alighting from a street car where the verdict was based upon plaintiff’s unsupported testimony that she was injured by the sudden starting of the car while attempting to alight therefrom at a street intersection, but the evidence was undisputed that she was picked up near the middle of the next block at a considerable distance from where she claimed to have fallen, and plaintiff became unconscious immediately after the fall, and there was no evidence that plaintiff was dragged any distance, evidence held insufficient to sustain the verdict for plaintiff and to show that she stepped off the moving car in the middle of the block.

      Appeal from the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1917.
    Reversed with finding of facts.
    Opinion filed April 16, 1918.
    Statement of the Case.
    Action by Mrs. Charles Bockstroch, plaintiff, against Calumet & South Chicago Railway. Company and Chicago City Railway Company, defendants, to recover for personal injuries sustained while a passenger in a car operated by the defendants. From a judgment for plaintiff for $450, defendants appeal.
    William H. Symmes and Frank L. Kriete, for appellants; J. R. Cuilliams and William C. McHenry, of counsel.
    Riohberg, Ickes, Davies & Lord, for appellee; Morgan L. Davies and John S. Lord, of counsel.

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

   Mk Justice McDonald

delivered the opinion of the court.


text:
    Andra Husar, Appellee, v. International Harvester Corporation, Appellant.
    Gen. No. 23,198.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the’ Hon. Joseph B. David, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1917.
    Reversed with finding of facts.
    Opinion filed April 16, 1918.
    Statement of the Case.
    Action by Andra Húsar, plaintiff, against International Harvester Corporation, defendant, to recover for personal injuries sustained by plaintiff while in the employ of defendant. From a judgment for plaintiff for $1,000, defendant appeals.
    David A. Orebaugh, for appellant; Píhilip S. Post and Edgar A. Bancroft, of counsel.
    Frank H. Novak and Charles E. Milroy, for appellee^

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

   Mr. Justice McDonald

delivered the opinion of the court.

Abstract of the Decision.

1. Master and servant, § 683 —when not shown that injury to employee due to fall from window while attempting to place wheel on machine table. In an action by an employee to recover for personal injuries due to a fall out of a window in defendant’s plant, the evidence was insufficient to warrant a finding that plaintiff fell out of the window while in the act of lifting a wagon wheel to place it on the table of the machine he was operating, where plaintiff’s evidence was vague and indefinite, and, in light of the surrounding circumstances, incredible, it appearing that the sill of the window was 12 inches wide; that a rivet bin 18 inches wide was located immediately in front of the window and on a level with the sill; that the machine on which plaintiff was working was,4 or 5 feet from the window; and the testimony of other witnesses tended to show that he fell out after he had opened the window and.was attempting to get some air.

2. Master and servant, § 126*—when employer not required to guard factory window. An employer is not required, under Rev. St. eh. 48, sec. 1 (J. & A. 1T 5386), relating to the guarding of dangerous places in factories and workshops, to guard a window in a wagon factory which is located 4 or 5 feet from an operator, the sill of which is 12 inches wide and 33 inches from the floor, especially where a bin for rivets about 18 inches extends across the full width of the window and the top of it is on the level with the sill.


text:
    Carl Christianson, Appellee, v. Edward J. Devine, Appellant.
    Gen. No. 23,526.
    (Not to he reported in full.)
    Abstract of the Decision.
    1. Automobiles and garages, § 6

      -—when ordinance as to passing street cars wrongfully excluded in action for injury to automobile by another automobile. A city ordinance prohibiting vehicles from passing or approaching within 10 feet of a street car stopped for the purpose of discharging or taking on passengers is wrongfully excluded, in an action to recover for injury to plaintiff’s automobile as the result of a collision with defendant’s automobile at a street intersection, where it appeared that plaintiff was going in the same direction as a street car which stopped on the near side of the intersecting street, and defendant’s car, which was traveling on the intersecting street, collided with plaintiff’s car after the street car, which had started up again, had stopped to let defendant’s automobile cross, even though there is a conflict in the evidence as to whether or not plaintiff’s automobile came to a stop upon overtaking the street car at the intersecting street.

      Appeal from the County Court of Cook county; the Hon. Andrew D. Webb, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1917.
    Reversed and remanded.
    Opinion filed April 16, 1918.
    Statement of the Case.
    Action by Carl Christianson, plaintiff, against Edward J. Devine, defendant, to recover damages for injury to plaintiff’s automobile as the result of a collision with defendant’s automobile*at a street intersection. From a judgment for plaintiff' for $160, defendant appeals.
    Donigan & Devine, for appellant.
    George E. Gorman, 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 McDonald

delivered the opinion of the court.

2. Appeal and error, § 452 —when objection as to admission of ordinance is too late. An objection as to the admission of a city ordinance, in a negligence action, comes too late where made for the first time on appeal.

3. Trial, § 91*—-what is purpose of specific objection to evidence. The purpose of a specific objection to evidence in the trial court is to enable the other party to meet it.

4. Appeal and error, § 551*—non-necessity of exceptions to rulings. Under section 81 of the Practice Act (J. & A. If 8618), the necessity of excepting to all adverse rulings of the trial court is dispensed with.


author: Mr. Justice Matchett

text:
    Bessie Zurasky, by John Zurasky, Defendant in Error, v. Handycap Company, Plaintiff in Error.
    Gen. No. 22,577.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Joseph P. Raeeerty, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1916.
    Affirmed.
    Opinion filed April 16, 1918.
    Statement of the Case.
    Action by Bessie Zurasky, a minor, by John Zurasky, her father and next friend, plaintiff, against Handycap Company, a. corporation, defendant, to recover for personal injuries sustained by plaintiff, a minor over 14 and less than 16 years of age, while working in defendant’s factory. From a judgment . for plaintiff, defendant brings error.
    Fyffe, Ryneb & Dale, for plaintiff in error.

      Abstract of. the Decision.
    l. Workmen’s Compensation Act, § 4

      —when minor may bring action at law. A minor between the age of 14 and 16 years who is injured while employed in a factory at work, prohibited by the Child Labor Act, sec. 11 (J. & A. IT 5317), may bring an action at law for the damages under the act, although the employer is operating under the Workmen’s Compensation Act, .she not being an employee legally permitted to work under section 5 of the latter Act [Callaghan’s 1916 St. Supp. j[ 5475(5)].
    2. Courts, § 150*—necessity of following Supreme Court decisions. The"Appellate Court is bound by a prior decision of the Supreme Court on a question involved" in the case.
    3. Damages, § 133*—when verdict for personal injuries not excessive. A verdict for $750 in favor of a minor between 14 and 16 years of age, held not excessive, where it appeared that the thumb of plaintiff’s right hand was crushed by reason of the accident and she lost approximately half of the first phalange of it; that she was under a physician’s care for 25 days; that her arm was swollen for about a month; that she did not work for 5 months, and that the pain was severe and continued until the time of trial.
    David K. Tone, Frank A. Bockhold and Henry Pollenz, for defendant in error.

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

   Mr. Justice Matchett

delivered the opinion of the court.


author: Mr. Justice Matohett

text:
    Wilder P. Bowers, Appellant, v. James T. Jarrell et al., Appellees.
    Gen. No. 23,141.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1917.
    Reversed and remanded with directions.
    Opinion filed April 16, 1918.
    Statement of the Case.
    Bill by Wilder P. Bowers, complainant, against James T. Jarrell; Pulaski Lumber Company; John A. Wickum; Thomas. F. Kelly; M. Stangarone; Thomas C. Naylor; A. Slevin, trading as Kedzie Fixture Company; American Heating & Plumbing Corporation, defendants, to foreclose a mortgage on the premises of defendant Jarrell. From a decree of foreclosure by which certain claims for mechanics’ liens were held to be superior to the trust deed foreclosed, complainant appeals.
    John A. Brown and James A. Donnelly, for appellant. •
    J. E. Crawford, for appellee Stangarone.
    'Mather & Hutson, for appellee Pulaski- Lumber Company; Claude B. Church, of counsel.
    J. S. Dudley, for appellee American Heating & Plumbing Corporation.
    Silber, Isaacs, Silber & Woley, for appellee Slevin; Martin J. Isaacs, of counsel.
    Hollett, Sauter & Hollett, for appellee Naylor.

      Abstract of the Decision.
    1. Mechanics’ liens, § 135

      —when waivers of liens and receipts given by unpaid contractors and subcontractors to owner are based upon sufficient consideration. Where a trust deed is given to the vendor of land to secure the balance of the purchase price and it is agreed that the premises should be improved by the erection of a building and that a loan not exceeding a certain per cent, of the cost of the improvements might be made and the loan secured by a trust deed which should be a first lien upon the premises, and an agreement is made that the proceeds of the loans should not be paid to the purchaser until the liens of contractors and subcontractors should be paid, waivers of liens and receipts furnished by unpaid contractors and subcontractors to the purchaser for the purpose of enabling him to obtain the proceeds of the mortgage loan are based on sufficient consideration.
    2. Mechanics’ liens, § 135*—when claimants estopped to claim lien superior to second mortgage to secure purchase price. Mechanic’s lien claimants who furnish fictitious receipts and waivers of lien to the owner to enable him to procure the proceeds of a trust fund which was to be used in improvements, and the amount of which was secured by a trust deed which was a first lien upon the premises, are estopped by their receipts and waivers from claiming a lien superior to that of the vendor under a second mortgage to secure the payment of the purchase price.
    3. Mechanics’ liens, § 135*—who entitled to benefit of waivers of liens. Waivers of liens which are addressed generally “to whom it may concern” are a representation to any one interested in the premises.
    4. Mechanics’ liens, § 135*—when contention that second mortgagee did not act upon fictitious waivers of liens is untenable. The contention that the holder of a second mortgage on premises, the first mortgage on which was given to secure a loan for improvements, did not act upon fictitious waivers of liens by contractors and materialmen given to the mortgagor to enable him to procure funds out of the loan, is untenable where the second mortgagee relied upon the trustee having charge of the funds to protect him and such trustee in acting upon these representations in fact acted for the second mortgagee.
    5. Mechanics’ liens, § 135*—when second mortgagee injured by procurement by mortgagor of false waivers of liens and receipts.
      A second mortgagee is injured by the procurement by the mortgagor of false waivers of liens and receipts from contractors and subcontractors for the purpose of obtaining proceeds of a loan to be used for improvements from a trustee holding such funds, where such procurement was in violation of an agreement between the mortgagor, mortgagee and such trustee that the funds should not be paid to the mortgagor until he had made advancements sufficient to take care of all claims of contractors and subcontractors that might imperil the lien of the second mortgagee, and it is immaterial that the liens of the claimants might be superior to the lien under the trust deed if the waivers had not been executed.

      See Illinois Notes Digest; Yolg. 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 Matohett

delivered the opinion of the court.

6. ■ Mechanics’ liens, § 125*—when attach. A mechanic’s lien attaches from the time the contract is made. It attaches to the interest of those who make the contract, and to that of all those who authorize or knowingly permit such contract to be made.

7. Tobeens Act—effect of Mechanics’ Liens Act upon as to filing and registering claims for liens. The Mechanics’ Liens Act of 1903 (J. & A. ¶ 7139 et seq.), although a later enactment than the Torrens Act, did not have the effect of operating to repeal sections 89, 90, 92 of the latter Act (J. & A. ¶¶ 2365, 2366, 2368), relating to the filing and registering of claims for mechanics’ liens.

8. Mechanics’ liens, § 204 —when general payments applied on unsecured claims. Although a part of property against which it is sought to enforce mechanics’ liens has not been registered as required by sections 89, 90, 92 of the Torrens Act (J. & A. ¶¶ 2365, 2366, 2368), a court of equity, will apply general payments which have been made on account of all the claims to the unsecured portion thereof.


author: Mr. Justice Hatchett

text:
    Gifford Wood Company, Appellant, v. Chicago Coated Board Company, Appellee.
    Gen. No. 23,245.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Contracts, § 387

      —when unavoidable delay in installation of shafting in plant is shown. In an action on a contract for the sale and installation of shafting in defendant’s plant, evidence held sufficient to show that plaintiff was delayed eight days in completing the' work under the contract in not being able to get the specified goods from a certain manufacturer on account of an accident caused by the breaking down of the latter’s plant, and that plaintiff was delayed three days by the loss for such period of a car of shafting shipped by the manufacturer, and that each of .such delays was beyond the control of plaintiff.

      Appeal from the Municipal Court of Chicago; the Hon. Jambs C. Martin, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1917.
    Reversed and remanded.
    Opinion filed April 16, 1918.
    Statement of the Case.
    Action by Gifford Wood Company, a corporation, plaintiff, against Chicago Coated Board Company, a corporation, defendant, to recover for breach of a contract for the sale and installation of new shafting in defendant’s plant. From a judgment in favor of defendant on his set-off, plaintiff appeals.
    Ninian H. Welch and William J. Lacey, for appellant.
    Boss C. Ball, Clarence N. Booed and Oscar H. Olsen, for appellee.

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

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

   Mr. Justice Hatchett

delivered the opinion of the court.

2. Sales, § 300 —when seller not in default under contract to install shafting. One who contracts to sell and install shafting in the plant of another is not in default where the time limit in the contract is extended for a valuable consideration, and, after the expiration of the time then limited but before the expiration of the number of days the seller was delayed, due to no fault of its own, the purchaser takes possession of the premises, the contract providing that the seller should not be liable for any “loss, damage or delay” caused by accidents or contingencies beyond its control.

3.. Contbacts, § 300*—when seller of shafting not liadle for damages for time plant is idle. Where a contract for the sale and installation of shafting provides that the shafting shall be procured by the seller from a certain manufacturer and that the contract shall be finished by a certain time, but the time for completion is extended before work is commenced and the seller learns that the manufacturer will be delayed in the furnishing of materials because of a breakdown in his plant before the time is extended and does not notify the purchaser until after the time is extended, he is not liable for damages for the days the plant is idle due to such delay, especially where the purchaser gets notice from the manufacturer within a day or two after the seller receives notice.


text:
    Cesare Lenzi, Appellee, v. Michael Zimmer, Sheriff, Appellant.
    Gen. No. 23,257.

      Execution, § 74*—when levy by officer not untimely. Under the personal property Exemption Act, sec. 2 (J. & A. ¶ 5584), providing that whenever “any debtor against whom an execution, writ of attachment or distress warrant has been .issued, desires to avail himself of the benefit of this act he shall, within ten days after ‘a copy’ of the execution, attachment or distress warrant is served upon him * * * make a schedule of all his personal property of every kind and character, * * * and shall deliver the same to the officer * * *, and any property owned by the debtor and not Included in said schedule shall not be exempt," etc., an officer who, before the expiration of the 10-day period from service of the copy of an execution on the judgment debtor and prior to the execution and delivery of a schedule by the debtor, levies upon the property thereafter rightfully claimed as exempt is not liable under section 5 (J. & A. ¶ 5587), for double the value of the property taken, especially where the property is released from the levy prior to execution and delivery of the schedule.
    Appeal from the Municipal Court of Chicagos the Hon. Harry Olson, Judge, presiding.
    Heard in the Branch Appellate Court at the March, term, ’1917.
    Reversed with finding of fact.
    Opinion filed April 16, 1918.
    Winston, Payne, Strawn & Shaw, for appellant; Rupert D. Donovan and Leslie M. O’Connor, of counsel.
    J. Ambrose Gearon and Eugene D. Sullivan, for appellee.
   Mr. Justice Matchett

delivered the opinion of the court.

Appellee, plaintiff, sued under section 5 of the personal property Exemption Act (Hurd’s Rev. St. p. 1317, J. & A. If 5587) to recover double the value of property claimed to have been illegally taken or seized by the defendant who was sheriff of Cook county.

There is practically no controversy as to the facts. An execution from the Superior Court was issued and on September 4, 1914, was placed in the hands of the sheriff.

On September 5th the sheriff served the execution upon the plaintiff by delivering to him a copy thereof with an indorsement thereon, notifying him to file a schedule of his property within 10 days if he desired to claim exemptions.

On the same day, and it seems immediately after delivering notice, the sheriff levied upon a miscellaneous lot of wines and liquors belonging to plaintiff of the value of about $100, and put a sign “Closed by the Sheriff” on the door of his place of business. Four hours later on the same day, plaintiff paid the sheriff the full amount of the judgment and costs, amounting to $77.51, and the levy was thereupon released.

On September 11th thereafter, the plaintiff filed with the sheriff a schedule of his property listing therein the property levied on and some household goods which had not been levied on, together with $80 in cash. In the schedule affiant set up that he was the head of a family and claimed this property (except the $80 in cash) as exempt.

The court found the defendant guilty and entered judgment upon the finding in the sum of $200, thus in effect holding that an officer who before the expiration of 10 days from service of the copy of the execution on the judgment debtor and prior to the execution and delivery of a schedule by the debtor levies .upon property thereafter rightfully claimed as exempt, is liable under section 5, although the property has been released from the levy prior to the execution and delivery of the schedule.

The determination of the question involved requires a construction of section 2 of the same Act (J. & A. ¶ 5584). It provides:

“Whenever any debtor against whom an execution, writ of attachment or distress warrant has been issued, desires to avail himself of the benefit of this act he shall, within ten days after ‘a copy’ of the execution, attachment or distress warrant is served upon him * * * make a schedule of all his personal property of every kind and character, * * * and shall deliver the same to the officer * * *, and any property owned by the debtor and not included in said schedule shall not be exempt as aforesaid, * * * the debtor shall then select from such schedule the articles he or she may desire to retain, the aggregate value of which shall not exceed the amount exempted, to which he or she may he entitled, and deliver the remainder to the officer having the writ. * * *” This section was originally inserted in the Exemption Statute by the Act of May 24, 1877.

Prior thereto the law on this subject was expressed in the Act of March 4, 1843, which exempted specific articles and where the debtor was the head of a family, $60 worth of other property to be selected by him. The exemption provided for by that statute was absolute and not conditional.

The statute was construed in Cook v. Scott, 6 Ill. 333. It was held to be the duty of the officer having the writ to give the debtor reasonable notice and opportunity to make-his selection where that was practicable. It then became the duty of the judgment debtor to make such selection in a reasonable time, which, if he did not do, all his property except that specifically described' by the statute was subject to levy. If the sheriff would levy without notice, then the debtor could, nevertheless, make his selection, but if he had other property sufficient to satisfy the execution, he must offer to surrender it to the officer and, if he failed so to do, the officer might sell the property levied on, although claimed exempt by the debtor, unless the total value of the property claimed and retained did not exceed $60, in which case it was all exempt. But if the judgment debtor had transferred all his property except that claimed as exempt in fraud of his creditors, his right to exemption was thereby defeated.

By the Act of May 24, 1877, the amount of property which might be' selected by the debtor, head of a family, was increased to $400. At the same time section 2, requiring the debtor to make a schedule and present the same to the officer having the writ, was enacted.

The construction placed upon that section by the courts was that, so far as the property to be selected by the debtor was concerned, the same was not exempt until the schedule was presented and that the right to the exemption was lost by a failure to present it. Amend v. Smith, 87 Ill. 198; Figueira v. Pyatt, 88 Ill. 402; Cook v. Bohl, 8 Ill. App. 293; Chapin v. Hoel, 11 Ill. App. 309; Biggs v. McKenzie, 16 Ill. App. 286.

But the statute did not designate a time within which the debtor should make and file his schedule. This led to much litigation.

In Johnston v. Willey, 21 Ill. App. 354, decided in December, 1886, the court held: “That it must be' within a reasonable time. What is a reasonable time will depend upon the special circumstances, and is a question of fact for the jury. In some cases it should be before levy; in others it will be in time if before sale. "

Evidently, to provide a definite and uniform rule, the Legislature by Act approved June 10, 1887, amended section 2, inserting therein the provision on which appellee relies, to the effect that: “He or she shall, within ten days after notice of the execution, attachment or distress warrant, make a schedule of all of his or her personal property,” etc.

Prior to that time it had in some cases been held that under certain circumstances it was the duty of the sheriff to levy an execution immediately. People v. Palmer, 46 Ill. 398; Lindley v. Miller, 67 Ill. 244; Wright v. Deyoe, 86 Ill. 490. In no case had it been held that he was liable for so doing.

Can it be said that it was the intention of the Legislature by this amendment to change the time within which the levy should be made? We do not think so. Such a limitation would be wholly inconsistent with the construction which the courts had uniformly put upon this section of the statute. If the Legislature intended to make such a limitation it seems to us it would have used words clearly expressing such intention and leaving no room for doubt.

It is, we think, significant that the time within which the amendment provided the debtor’s schedule should be filed was 10 days, the exact time required for notice by the officer before making sale of goods and chattels under execution. Hurd’s Rev. St. ch. 77, sec. 48 (J. & A. ¶ 6795). We are also constrained to take this view because the statute, in its preamble and throughout, refers to “attachment, sale on execution and distress for rent,” and the construction which appellee contends for is inconsistent with the practice and statutes with reference to these remedies. Chapter 11, sec. 8 of the Revised Statutes (J. & A. ¶ 499), relating to attachments, expressly provides, “such officer shall without delay execute such writ * * By immemorial usage distress warrants are to be speedily executed.

- The construction which appellee contends for would in many cases virtually destroy the rights which these statutes are intended to protect. Nor would the fact that an execution is a lien from the time that it reaches the hands of the sheriff in all cases afford protection to the creditor as appellee contends, since the lien might easily be defeated by the secretion of the property, or its removal from the jurisdiction which, unless he could levy, a sheriff would be powerless to prevent.

We do not believe the Legislature intended by this amendment to produce these results. While a majority of the Appellate Court for the Third District have expressed different views, we are constrained to adopt those herein expressed, not alone because they seem reasonable, but also because in other States having similar statutes the highest courts thereof have given to them a similar construction. Mann v. Welton, 21 Neb. 541, 32 N. W. 599; Settles v. Bond, 49 Ark. 114, 4 S. W. 286; Frost v. Shaw, 3 Ohio St. 270; Sullivan v. Farley, 11 Daly (N. Y.) 157; Scanlan v. Guiling, 63 Ark. 540, 39 S. W. 713; Hammersmith v. Avery (Neb.), 2 Pac. 55; Parsons v. Evans, 44 Okla. 751, 145 Pac. 1122; Wilcox v. Howe, 59 Hun 268, 12 N. Y. Supp. 783.

Our holding here must he understood as having application only to the prqperty which the statute says is “to be selected by the debtor” and not to the specific articles of property which are named as exempt in the first clause of section 1 of the statute (J. & A. ¶ 5583). Nor does it refer to such articles of property as the debtor might possess which are exempted by common law.

For the reasons indicated the judgment of the Municipal Court will be reversed with a finding of fact.

Reversed with finding of fact.

Finding of fact. The court finds as a matter of fact . that the property owned by the plaintiff, upon which the execution in the hands of the defendant was levied, was not exempt from execution at the time of the levy, nor while held by the sheriff thereunder.


text:
    New York Central Railroad Company, Appellee, v. Philadelphia and Reading Coal & Iron Company, Appellant.
    Gen. No. 23,278.
    (Not to he reported in full.)
    Abstract of the Decision.
    Carriers, § 201a

      —when earner not estopped to recover freight charges on interstate shipment from consignor. Under the Federal Act to Regulate Commerce, approved February 4, 1887, a consignor of an interstate shipment is primarily liable for the freight charges thereon and can only be discharged by payment, and the carrier cannot be estopped from enforcing this liability by its extension of credit to another to whom the shipment is delivered by the consignor’s orders and by its failure to notify the consignor of the nonpayment of the charges.
    Appeal from the Municipal Court of Chicago; the Hon. William; N. Gemmill, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1917.
    Affirmed.
    Opinion filed April 16, 1918.
    Statement of the Case.
    ■ Action by the New York Central Railroad Company, successor to the Lake Shore & Michigan Southern Railway Company, a corporation, plaintiff, against the Philadelphia and Reading Coal & Iron Company, a corporation, defendant, to recover freight charges. From a judgment for plaintiff for $109.90, defendant appeals.
    Hoag & Ullmann, for appellant.
    E. T. Glennon, Robert J. Cart and Bertrand Walker, for appellee; F. W. Flott, of counsel.

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

   Mr. Justice Matchett

delivered the opinion of the court.


text:
    Whitehead & Hoag Company, Appellee, v. John L. Donovan, Appellant.
    Gen. No. 23,294.
    (Not to he reported in full.)
    Abstract of the Decision.

      Associations—when member not individually liable on debt. In an action to recover for goods sold and delivered, where the evidence shows that the goods were ordered in the name of a voluntary association of a committee of which defendant was chairman, that they were charged to the association on plaintiff’s hooks, were used by the association and that all payments on account thereof were made by the association and so credited by plaintiff, defendant cannot be held personally liable therefor.
    Appeal from the Municipal Court of Chicago; the Hon. Leo J. Doyle, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1917.
    Reversed with finding of fact.
    Opinion filed April 16, 1918.
    Statement of the Case.
    Action by the Whitehead & Hoag Company, a corporation, plaintiff, against John L. Donovan, defendant, to recover for goods sold and delivered. From a judgment for plaintiff, defendant appeals.
    William M. Johnson, for appellant.
    Edward L. England, for appellee.
   Mr. Justice Matchett

delivered .the opinion of the court.


text:
    Sam Simpson, Appellee, v. Grand Trunk Western Railway Company, Appellant.
    Gen. No. 23,306.
    (Not to foe reported in full.)
    Abstract of the Decision.
    1. Cabriebs, § 30

      —wliat law governs in action for injuries to interstate freight shipment. In an action to recover for injuries to an interstate shipment of freight, the Federal Interstate Commerce Act and the decisions of the United States courts' construing it control.
    2. Cabriebs, § 241*—what is effect of failure to comply with provision of contract as to filing of claim for loss or damage to live stock,. A shipper of an interstate shipment of live stock who fails to comply with a provision of the contract which requires him to file a written and verified claim for loss or damage with the agent of the carrier within 5 days from the time the stock is removed from the car, as a condition of his right to receive payment or to sue for damages to such stock, cannot recover for damages to the stock where he has failed to comply with such provision of the contract.

      Appeal from the Superior Court of Cook county; the Hon: Samuel C. Stough, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1917.
    Reversed.
    Opinion filed April 16, 1918.
    Statement of the'Case.
    Action in assumpsit by Sam Simpson, plaintiff, against Grand Trunk Western Railway Company, a corporation, defendant, on a contract for the transportation of freight alleged to have been damaged in transportation. From a judgment for plaintiff for $380, defendant appeals.
    L. L. Smith, for appellant.
    Muhsoh T. Case, 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 Matchett

delivered the opinion of the court.

3. Gabblers, § 241 —right to waive provision of contract as to notice of loss or injury to live stock. Under the Interstate Commerce Act as construed by the United States courts, a carrier of an interstate shipment cannot waive a provision of the contract of carriage requiring the shipper to give notice of loss or injury within a specified time as a condition to recovery therefor.


text:
    Ottomar Carliczek, Appellee, v. Otto Rothenstein, Appellant.
    Gen. No. 23,321.
    (Not to he reported in full.)
    Abstract of the Decision.
    1. Bills and notes, § 420*—What evidence inadmissible in action on note where no claim of offset is filed. In an action to recover a balance alleged to be due on a promissory note in which no claim of offset is filed, evidence of sums due by plaintiff to defendant on account of commissions and wages earned under alleged contracts between the parties made subsequently to the execution and delivery of the note, and the subject-matter of which was in no way connected with the note, is inadmissible.

      Appeal from the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1917.
    Affirmed.
    Opinion filed April 16, 1918.
    Statement of the Case.
    Action by Ottomar Carliczek, plaintiff, against Otto Rothenstein, defendant, to recover a balance claimed to be dne on a promissory note. From a judgment for plaintiff, defendant appeals.
    Morris K. Levinson, for appellant.
    Allen Gr. Mills, for appellee.
   Mr. Justice Matchett

delivered the opinion of the court.

2. Set-off and becottpment, § 17*—what inadmissible by way of recoupment. In an action to recover a balance alleged to be due on a promissory note, items arising out of matters unconnected with the execution and delivery of the note are inadmissible by way of recoupment.


author: Mr. Presiding Justice Taylor

text:
    Alice H. Greenleaf and Ida Greenleaf, Executrices, Defendants in Error, v. Jacob Feinberg, William Lorimer, Adolph J. Sabath, Frances Loeffler, Executrix, and Mamie Murphy, Executrix, Plaintiffs in Error.
    Gen. No. 22,246.
    1. Mortgages, § 477

      —when history of partnership need not be set forth in bill for foreclosure. Where the recitations in an amended and supplemental bill in foreclosure against certain defendants as members of a syndicate or partnership alleged that such defendants, members of the original partnership, held the title and executed the notes and trust deed under a stated name and style, it is not necessary that they give in detail a history of the proceedings of the syndicate or partnership.
    2. Mortgages, § 477*—what is necessary to set forth in bill to foreclose. In a bill to foreclose, the elements which it is important to set forth are the notes, the trust deed, default and parties, and, even though an accounting is prayed, it is not necessary to anticipate the items and set them out in the pleading.
    3. Partnership, § 59*—right to adopt individual name of partner. A partnership may adopt the individual name of one of its members as the name under which it will do business.
    4. Partnership, § 133*—when members jointly and severally liable on trust deed and note. Where several individuals agree together that they will buy a certain piece of property, take title thereto in the name of one of their number for the benefit of all, subdivide the property and handle it on a prearranged plan for their mutual profit, and such agreement is carried out and notes and a trust deed for the purchase price are signed in the name agreed upon, the parties to the agreement constitute a partnership and are liable jointly - and severally on the deed and notes, even though the deed is under seal.
    5. Partnership, § 223*—when members may not claim as defense that notes and trust deed, are not signed by them. Where notes for the purchase price of realty and a trust deed securing them are signed by one member, of a partnership on behalf of the other members with their consent and they ratify his act, they cannot set up as a defense that the instruments were not signed by them and that the Statute of Frauds therefore relieves them.
    6. Partnership, § 246*—when parol .evidence admissible to show act of. Parol evidence is admissible to show that notes and a trust deed securing them, though signed in the name of an individual, were in fact the act of a partnership of which he is a member.
    7. Partnership, § 125*—when evidence shows ratification of execution and delivery of notes and trust deed by one subsequently becoming partner. In an action to hold certain persons liable as partners on notes and a trust deed executed by one of them, evidence held to show that the purchaser of the interest of one of the parties after the formation of the original agreement became a partner, participated in the transactions of the partnership and ratified the execution and delivery of the instruments.
    8. Witnesses—when evidence of partner as to conversations with deceased partner is admissible. Under J. & A. jf 5521, evidence of one of several partners of conversations had with a deceased partner in the presence of other partners is admissible against the executor of such deceased partner.
    9'. Bills and notes—when release of one obligor does not release co-obligors. An “indirect understanding’’ that a deficiency decree to be obtained in the future in a pending suit will not be “enforced or pushed” against one of the obligors of the notes and trust deed in suit is* not such a release as will release also his co-obligors.
    10. Partnership, § 133

      —when members bound by act of member signing trust deed and notes for taxes, assessments and expenses of foreclosure. The provisions and terms of a trust deed, signed by one member of a partnership in his own name but for the partnership, rendering the. grantor of the deed liable for taxes, assessments, cost of foreclosure and solicitor’s fees, bind the members of the "partnership and are properly included in the decree on foreclosure.

      Error to the Circuit Court of Cook county; the Hon. Oscab E. Heabd, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1917.
    Affirmed.
    Opinion filed April 24, 1918.
    Charles B. Stafford, for plaintiff in error Adolph J. Sabath.
    Sidney S. Pollack and Benjamin Levering, for plaintiff in error Frances Loeffler.
    Harper E. Osborn, for defendants in error.

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

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

   Mr. Presiding Justice Taylor

delivered the opinion of the court.

The writ of error in this cause brings here for review a record of certain foreclosure proceedings which were prosecuted in the, Circuit Court. The decree which was entered provided, not only for a foreclosure of certain real estate, but for a deficiency decree in the sum of $54,223.80, against, amongst others, the plaintiffs in error, Adolph J. Sabath and Frances Loeffler, executrix of the estate of William Loeffler, deceased.

The original bill of complaint was filed on October 19, 1905. After various proceedings, among them an amended bill of complaint, the defendants in error, Alice H. Greenleaf and Ida Greenleaf, as executrices of the last will and testament of Sarah A. Greenleaf, deceased, on December 14, 1910, filed an amended and supplemental bill of complaint. That pleading alleged, among other things, that on or about September 1, 1892, Jacob Feinberg, William Loeffler, William Lorimer, William J. Murphy, John F. Dorman, Adolph J. Sabath and Charles H. Bromann, being indebted in the sum of $90,000, executed and delivered five promissory notes each for $18,000, payable in 2, 3, 4, 5 and 6 years after date, with interest at 6 per cent, payable semiannually; that said notes were executed by them under the name and style of Charles H. Bromann: that to secure said notes and interest they gave a trust deed, dated September 1, 1892, recorded October 3, 1892, of a certain 30 acres of real estate in the City of Chicago; that the trust deed provided, in addition to certain conventional recitations, “that, whereas said grantors were about to subdivide the above described real estate into 272 lots, it was agreed that when said subdivision should have been made” they would be entitled to have, from time to time, two or more lots released from the lien of said trust deed, on payment of certain sums of money provided for in a schedule attached to the trust deed; that the above-named seven persons “held the title to said premises” under the name and style of Charles H. Bromann, and that they executed said trust deed under the name and style of Charles H. Bromann; that default has been made as to a large part of the principal indebtedness and certain interest; that the premises described in the trust deed were afterwards subdivided into 8 blocks containing 272 lots and “that said subdivision is commonly known as ‘Kedzie Avenue Land Association Subdivision’ ”; that certain lots have been released, and that certain others, which are set forth, remain unreleased from the lien of said trust deed. The prayer was for foreclosure, an accounting, a deficiency decree, and for general relief.

Certain demurrers were filed to the amended and supplemental bill and all were overruled. Owing to the property being subdivided and many lots, from time to time, being sold and conveyed, the defendants to the amended and supplemental bill of complaint numbered between seven and eight hundred.

The defendants Jacob Feinberg, Frances Loeffler, executrix, etc., "William Loeffler having died June 22, 1909, "William Lorimer, Adolph J. Sabath and William J. Murphy, duly filed their answers, and the defendants John F. Dorman and Charles H. Bromann, being nonresidents, service was had upon them by publication and a copy of the bill. They, however, failed to enter an appearance. After appropriate defaults and filing of replications, the cause was referred to a master in chancery to take testimony and report the same, together with his conclusions as to the law and the facts. Evidence was introduced on hehalf of the complainants but none was offered on the part of the defendants except as to the condition of the Loeffler estate.

The master made his report recommending the relief prayed for by the complainants, and upon the exceptions thereto being overruled by the chancellor, it was, on May 11, 1915, confirmed and the property ordered sold. The decree found that there was due to the complainants $57,649.40, with interest from July 9, 1914, and costs. It also provided for the sale of the property and that, in case the receipts arising from the sale should be insufficient, the complainants should have execution for the balance, against, among others, the plaintiffs in error. The property was' sold on June 30, 1915, and on November 1, 1915, a deficiency decree in the sum of $54,223.80, was entered against, among others, Adolph J. Sabath and Frances Loeffler, as executrix, etc. From that decree this appeal is taken.

Some time in the latter part of April, 1892, one Dorman, a defendant, who was associated in business with the defendant Bromann, presented to Bromann a proposition made to him by the defendants William Lorimer and William J. Murphy, for the purchase, subdivision and sale of the real estate herein involved. The property was to be bought for $110,000, on a 90-day option, $2,000 down, $18,000 more at the end of 90 days, and the balance of $90,000 to be paid in five annual instalments of $18,000 each. The proposition involved a subdivision into lots and a quick sale of the lots at a fair profit; the actual payments collected from the purchasers of the lots to carry along the deal without further investment, and that it should be handled on the syndicate plan. Others beside Murphy and Lorimer were mentioned as being willing to interest themselves in the property. Bromann went with Dorman and had several interviews with Murphy, Lorimer, Loeffler, Feinberg and Engel. The matter was discussed and it was agreed that the property should be divided into 272 lots and sold at an average price of $550 a lot; that it should be handled on the so-called syndicate plan; that certificates should be issued representing the lots and then sold, $25 earnest money to be collected as each certificate was sold; that when all the shares were sold the lots should be sold at auction, according to a prearranged plan; that whatever lots were left would then be distributed, by lot, among.those of the seven who had not bought any lots. Each one agreed to take one-seventh of the lots and bound himself either to dispose of one-seventh of the lots or be responsible for that amount. Pursuant to those negotiations Murphy, Lorimer, Feinberg, Loeffler, Dorman, Bromann and Fred C. Engel, together, contracted for the purchase of the property by paying down the $2,000, each paying one-seventh of that amount.

There was some discussion.as to whose name the title should be taken in and it was finally agreed that it should be taken in the name of Bromann. Accordingly, on June 27,1892, a written contract was entered into between Sarah A. G-reenleaf and Charles H. Bromann for the purchase, by the latter, of the property for $110,000. The $2,000 was then paid down, $18,000 was to be paid in 90 days, and the balance in five annual payments of $18,000 each. Provision was made in the contract that when the trust deed was executed lots might be released from time to time on the payment of sums to be ascertained from a schedule of prices which was to be attached to the trust deed when executed. The time for the completion of the contract was subsequently extended to September 30, 1892. Some time in June, 1892, Engel, after having paid his one-seventh of the $2,000, finding that he was unable to dispose of his share of the lots, sold his interest to the defendant Adolph J. Sabath. Thereafter, all seven of the interested parties—Sabath having taken the place of Engel—proceeded with the work of subdivision, surveying, platting, obtaining of abstracts, preparation of certificates, putting in of curbing, lamp-posts, sidewalks, and doing all that was essential in the furtherance of the purposes of the syndicate. About 230 of the certificates, each representing a lot, were sold to outsiders; the remainder of the 272 being held by those who failed to sell their full one-seventh share. When each share was sold, $25 in earnest money was collected. The money that was taken in was kept by different members and meetings were held, from time to time, at which the business of the syndicate was discussed. The property was popularly known as the 1 ‘ Kedzie Avenue Land Association Subdivision. ’ ’ The rules .that were to govern interests in the property were agreed upon by the seven and were printed on the backs of the receipts which were given for deposits made on account of the purchase of shares. Those rules provided, among other things, that when all the shares were subscribed for, a meeting of the shareholders of the syndicate would be held for the purpose of auctioning off the lots; that the lots should be sold in a certain order, which was mentioned, and none but shareholders would be entitled to bid; that no one could buy more lots than he had shares. The terms as to payment were: “$25 per share as earnest money; 10 per cent, on the night of the auction, and the balance of one-quarter of the amount of the purchase price on the delivery of the contract, and the balance on or before 1, 2, 3, 4, 5 and 6 years.”

■ On September 21, 1892, two days prior to the time set for the auctioning off of the lots, the seven members of the syndicate, Feinberg, Loeffler, Lorimer, Murphy, Dorman, Sabath and Bromann, entered into a written agreement which recited, among other things, whereas they were all interested in and “owned a certain contract executed and entered into by and between Charles H. Bromann and Sarah A. Greenleaf * * # for the purchase of a certain tract of land * * * and whereas, * * * Bromann now holds said contract for the mutual benefit of the above named persons, and whereas, each of the,above named persons contributed one-seventh of the purchase money * * * and each of the above persons own an equal one-seventh share or interest in said purchase, * * * it is agreed * * * that they will subdivide the said premises into 272 lots and sell the same at the average price of $550 per lot or share. * * * that each of the above named persons shall sell his proportionate share * * * 0r * * * he will then hold the balance of his shares unsold. * * * that each * # * shall be entitled to the benefits and profits derived from the sale of his proportionate share. * # * that all the expenses and loss maintained in this undertaking shall be borne by the parties hereto. ’ ’

On September 23, 1892, an auction was held and about 85 per cent, of the lots were sold, and each purchaser paid $25 on each lot and 10 per cent, of the balance of the purchase price. Shortly after deeds were issued and, at that time, each purchaser paid up the balance in cash, if any, and received his deed. Each buyer assumed his proportion—according to the schedule attached to the trust deed, of the $90,000— which remained due of the original purchase price, and the balance, if any, of the three-fourths of the purchase price of each lot, which was not represented by the original trust deed, was paid in cash or by a note secured by a second mortgage, which the purchaser signed at the time he took up his deed. Those second mortgages were payable in one year. Although the trust deed from Charles H. Bromann to John A. Phillips, trustee, and the five promissory notes, each in the sum of $18,000, were all dated Septembef 1, 1892, they were all actually signed and the trust deed acknowledged on October 3, 1892, and filed for record on the same date.

On December 5, 1892, Lorimer, Sabath, Loeffler, Feinberg, Murphy, Dorman and Bromann met and had an accounting and divided among themselves the net proceeds of the sale. The accounting showed that the gross receipts from the sale of the lots amounted to $39,833.97; that out of the gross receipts the following amounts had been paid: $18,000 to said Phillips,, trustee, on account of- the contract of purchase of said property from Sarah A. G-reenleaf, together with $975 accrued interest; $540.28 for assessments ; $1,838.85 for sidewalks; $150 for abstracts; $204 to Bromann for services as secretary; $235 for laying out streets; $51.75 sundry expenses; $208.50 for surveying; $23.50 for recording fees; $150 to Fliehman for attorney’s fees, and $375 to John D. Casey for attorney’s fees, making a total expense of $22,751.88, leaving a balance of $17,082.09, which latter sum was equally divided among the seven, namely: William J. Murphy, William Lorimer, Jacob Feinberg, William Loeffler, A. J. Sabath, J. F. Dorman and Charles H. Bromann. The second mortgage notes above described were likewise equally divided between the same seven parties and where an exact division was not possible, the amounts were equalized by notes from one partner to another.

. The various amounts to be paid for the release of lots in said subdivision were figured out after the auction sale and a schedule thereof was subsequently attached to the trust deed. The trust deed contained the conventional covenants and agreements but also provided for the release, from time to time, of certain lots on the payment of certain fixed sums. The first two of the $18,000 notes were paid in full, the last three remaining unpaid. On May 26, 1898, the trustee, John Phillips,” resigned, and Telman Strong bec'ame trustee in his stead. Lots were released from the lien of the trust deed from time to time, leaving, at the time the amended and supplemental bill of complaint was signed, about 36 lots unreleased and subject to the lien of the trust deed for part of the purchase price of said property.

On June 22, 1909, "William Loeffler died testate and the defendant Frances Loeffler was appointed executrix. On June 28, 1909, his will was admitted to probate. Frances Loeffler was the sole legatee and devisee. She paid out over $50,000 worth of claims which were not presented in the Probate Court but which claims were found to be valid claims against the estate. When the estate was finally closed in the Probate Court in May, 1912, there was no balance left.

As to the principal and interest due defendants in error, the obligation of the copartners and syndicate, Bromann made collections, from' time to time, of amounts that were due from different lot owners and turned the money over to defendants in error and credit was given therefor on the principal, interest and taxes that were due. In the years 1896 and 1897, the defaults began to endanger foreclosure, and in the year 1898 he called a meeting, through his attorney, of the seven interested parties, and their assistance was asked in order to prevent foreclosure. The defaults continuing, foreclosure proceedings were instituted, the property sold and the deficiency decree, complained of, was entered.

The contentions of the plaintiffs in error may he classified as follows: (1) that the allegations in the amended and supplemental bill of complaint are insufficient; (2) that the plaintiffs in error are not personally liable for the deficiency; (3) that the defendant in error A. J. Sabath, not having taken part in the original oral contract, is not personally liable; (4) that as to the defendant in error Frances Loeffler, executrix, the testimony of Bromann was incompetent; (5) that the defendants in error released Bromann from liability and as a result his co-obligors were likewise released; (6) that inasmuch as the defendants in error did not sign the trust deed they were not bound for taxes, special assessments and other similar charges.

(1) It is contended that the allegations in the amended and supplemental bill are insufficient. It was not necessary in such a pleading, after alleging that the seven persons—evidently meaning those constituting the original copartnership—held the title and executed the notes and trust deed, under the name and style of Charles H. Bromann, to go on and give in detail a history of the syndicate or copartnership proceedings. The recitations in the amended and supplemental bill of complaint amply informed the defendants in,error of the claim that was made and were a sufficient basis for the decree which was entered. In a bill to foreclose the important elements are the notes, trust deed, default and parties, all of which were properly set forth in the pleading in question, and, further, although an accounting was prayed, it was not necessary that the items of the prospective account should be anticipated and set forth in the pleading. An examination of the record leads us to the conclusion that the amended and supplemental bill of complaint was sufficient to justify the evidence that was offered, and also that the pleading and evidence considered together amply supported the decree.

(2) It is contended by plaintiffs in error that they are not personally liable for the amount of the deficiency and that, accordingly, the decree which was entered is erroneous. The evidence shows—no evidence was offered on behalf of the plaintiffs in error to the contrary—that at the outset the seven participants, Feinberg, Loeffler, Lorimer, Murphy, Dorman, Engel and Bromann, entered into an oral agreement that they would buy a certain piece of real estate, take the title thereto in the name of Bromann for the benefit of all of them, subdivide the property into lots and then handle it on a certain prearranged syndicate plan for their mutual pecuniary profit. It is the law that a partnership may adopt the individual name of one of its members as the name under which it shall do business, and bind itself and each of the partners by the use of that name. “The firm name is such as the copartners choose to adopt. It may disclose the names of all the partners or of none of them, or the name of but one of them may be used as the firm name. * * * Where a written instrument bears the name of but one person, presumably it is the undertaking of that person; but it is competent to establish by parol proof that the contract is that of the copartnership and that the firm entered into the contract in the name and style of the individual.” Daugherty v. Heckard, 189 Ill. 239; Story on Partnership (6th Ed.), sec. 138; Morse v. Richmond, 97 Ill. 303. In the latter case, the fact that the word “trustee” was used after the signature of the partner does not materially distinguish the facts in that case from those in the instant case. When the name Bromann was signed to the' trust deed —even though with a seal—and to the notes, it represented an act which was directed and authorized by the copartnership. Also, the latter, at that time, had received the consideration—the property having already been conveyed for its benefit—and certainly it would be highly inequitable, after receiving that consideration pursuant to the agreement of the copartnership, to hold that Bromann alone was liable on the notes and trust deed. Such cases as Walsh v. Van Horn, 22 Ill. App. 170, in which latter case the court refused to hold an indorser at the suit of a mortgagee, and said, “In this case there are no circumstances of equitable jurisdiction,” are all clearly distinguishable from the one we are now considering. Further, if in the instant case the other members of the copartnership had paid the purchase price to Bromann, that would be a strong reason for holding that the defendants in error had no right against the plaintiffs in error, which latter might be said to have stood in the position of an undisclosed principal. But, considering all the evidence as it stands, and the principles of law that are applicable thereto, we are of the opinion that the result of the oral agreement of the seven parties, and the execution by Bromann, in fulfilment of that agreement of the notes and trust deed—all of which, taken together, constitute the creation and the act of a copartnership—and the long series of acts constituting unquestionable ratification by the copartnership, was in equity to make each and all of them jointly and severally liable for the notes and trust deed. Morse v. Richmond, supra; Mission Ridge Land Co. v. Nixon (Tenn.), 48 S. W. 405; Tyler v. Waddingham, 58 Conn. 375; Brooke v. Washington, 8 Gratt. (Va.) 248.

Some claim is made that the Statute of Frauds is a defense as to all those who did not sign the notes and trust deed. The court said, in Van Housen v. Copeland, 180 Ill. 74: “An oral agreement to form a partnership for the purpose of trading in real estate for profit is not within the Statute of Frauds.” Fitch v. King, 279 Ill. 62. From that it follows, of course, that any one member of a copartnership may sign a conveyance of real estate, and if with their consent, and ratified by them, as in the instant case, bind the co-partnership and each of the members. Although partners may thus become liable for obligations growing out of the conveyance of real estate without their signatures, and, seemingly, therefore, without compliance with the requirements of the Statute of Frauds, such is the settled law of this State. As to the introduction of parol evidence, it did not contradict the writing itself, the one who signed was not discharged, it merely made additional parties also liable. Byington v. Simpson, 134 Mass. 169.

• (3) It is contended on the part of the defendant A. J. Sabath that, as he did not take part in the early transactions which led up to the original oral contract and was not a party to the latter, and as there is no writing signed by him by which he undertook to ratify, adopt or accept any part of the agreement of Bromann in connection with the notes and trust deed here sought to be enforced, he is not liable. The negotiations began in April, 1892, and on June 27, 1892, the written contract of purchase was entered into. In the latter month, Engel, after paying his one-seventh of the $2,000 earnest money, and finding that he would be unable to go on with his part, sold his interest to defendant in error Sabath, and from then on the latter took part in all the work undertaken and done in consummation of the purposes of 'the syndicate. On September 21, 1892, Sabath, in place of Engel, together with the other six interested partners, signed the agreement which recited that they owned the contract of purchase—referring to the contract of June 27, 1892, for the purchase of the property in the name of Bromann—that it was for their mutual benefit; that each one owned ‘ ‘ an equal one-seventh share or interest in said purchase”; that they would subdivide and sell it in lots for $550 each; that each should sell his proportionate share or hold the balance unsold; that each should he entitled to the profits derived from the sale of his proportionate share; “that all the expenses and loss maintained in” the undertaking “should be borne by the parties” thereto.

Of course, as stated above, the trust deed and notes were not signed until October 3, 1892, almost 3 months after Engel sold his interest to Sabath. Then, too, Sabath took part in the auction of the lots and subsequently received his pro rata share of the $17,082.09, that is, his one-seventh of that amount, and his share of the second mortgage notes. A "careful examination of the fact leads us to the conclusion, not only that, as stated above, a partnership was created, but that Sabath by his purchase from Engel, by his signature to the agreement of September 21, 1892, by his conduct and its ratification by the other six interested par-ties, became a partner, and was, therefore, jointly and severally liable to the same extent as the other six. Counsel for Sabath insist that the evidence shows that each of the seven only agreed that the real estate should be divided and that each should “handle his own individual share.” A careful analysis of the conduct of the parties and considering particularly the purport of the agreement of September 21, 1892, and the division of the proceeds at the time of the accounting, when each of the seven, including Sabath, was paid approximately $2,447.51, and his pro rata share of the second mortgages, leads us to the conclusion that it was a copartnership and resulted in the obligations here sought to be enforced.

(4) It is further contended that the testimony of Bromann, who was a defendant and an interested witness, is incompetent as against the defendant in error Frances Loeffler, who defended in her representative capacity as executrix, under the last will and testament of William Loeffler, deceased, and error is assigned on the ground that a motion to strike out his testimony was overruled. Section 4 of chapter 51, Ill. St. Ann. (J. & A. ¶ 5521) provides that: “In any action, suit or proceeding by or against any surviving partner or partners * * * no adverse party or person adversely interested in the event thereof, shall, by virtue of section 1 of this act, be rendered a competent witness to testify to any admission or conversation by any deceased partner * * * unless some one or more of the surviving partners * * * were also present at the time of such admission or conversation,” etc. The principle of that section of the statute seems to be to make Bromann a competent witness to testify to any admission or conversation by Loeffler (the deceased) which took place in the presence of any one or more of the other partners. We do not agree with counsel for plaintiffs in error that section 4 does not remove the disability created by section 2 (J. & A. ¶ 5519) in so far as the former pertains to admissions or conversations by a deceased partner in the presence of other partners. It will be observed that the latter part of section 4, which pertains to persons who have contracted with an agent of the adverse party, the agent having since died, expressly provides that witnesses who have been in that situation must also be competent according to sections 2 and 3 of the Act’ (J. & A. ¶¶ 5519, 5520). It seems to have been the purpose of the Legislature that section 2 should not apply to the situation of Bromann in the present case.

(5) It is contended that Bromann was released from his liability on the notes and trust deed and, therefore, that the plaintiffs in error, as co-obligors, likewise were released. Bromann testified that he had an “indirect understanding” with the defendants in error that “The deficiency decree will not be enforced or pushed” against him. “An indirect understanding” that a deficiency decree—to be obtained in the future in a pending suit—is not to be “enforced or pushed, ’ ’ is not an absolute and unconditional release. It certainly does not rise quite to the dignity of a covenant not to sue, and the latter has been held to be insufficient to discharge co-obligors. City of Chicago v. Babcock, 143 Ill. 358. The reason why a release of one is a discharge of all is because it destroys the right of contribution. Parmelee v. Lawrence, 44 Ill. 405. Where that right, as here, is unaffected, the liability of the co-obligors remains unimpaired. Further, the phrase “an indirect understanding” does not necessarily mean a binding contract; so that, from the evidence, as the record presents it, we are unable to conclude that Bromann and, therefore, his co-obligors were released.

(6) As to the contention of the plaintiffs in error that—as they did not sign the trust deed and were not mentioned therein—no liability was incurred by them by reason of the agreements and covenants contained in said trust deed for the outlays of taxes, special assessments, cost of foreclosure and solicitor’s fees, it is sufficient to say that the copartnership and, therefore, each and all of the copartners, having made the contract of purchase, and having bought the property, and having given the trust deed to secure the indebtedness represented by the notes, were bound, necessarily, by all the provisions and terms of the trust deed, and as the particular items of charge, referred to, were embraced within the provisions of the trust deed, they were properly included in the decree.

Finding no error in the decree, it is affirmed.

Affirmed.


text:
    Leo Kravitz, by Julius Kravitz, Plaintiff in Error, v. Chicago City Railway Company, Defendant in Error.
    Gen. No. 23,362.
    (Not to be reported in full.)
    Error to the Superior Court of Cook county; the Hon. M. L. McKinley, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1917.
    Affirmed.
    Opinion filed April 24, 1918.
    Statement of the Case.
    Action by Leo Kravitz, a minor, by Julius Kravitz, his next friend, plaintiff, against CMcago City Railway Company, a corporation, defendant, to recover damages for personal injuries alleged to. have been received through being struck by defendant’s car at a street intersection. To reverse a judgment for defendant, plaintiff prosecutes this writ of error.
    Abstract of the Decision.
    1. Street railroads, § 131

      —when shown that plaintiff was injured while “flipping’’ defendant’s street car. In an action to recover for personal injuries, evidence examined and held sufficient to support a finding that plaintiff, a boy between 12 and 13 years of age, was injured while “flipping” defendant’s street car.
    2. Instructions, § 10*—limitation on number. The number of instructions given may not be arbitrarily limited by the trial court.
    3. Street railroads, § 140*—when instructions in action for personal injuries not reversibly erroneous. In an action against a street railway company for personal injuries, instructions given, examined and held not ground for reversing a judgment for defendant. •
    , 4. Instructions, § 14*—when reiteration of principles of law is not ground for reversal. Even though a number of instructions involve the reiteration of certain principles of law which are more favorable to one party than the other, the repetition is not ground for reversal if the instructions are appropriate to the law and evidence of the case.
    Moses, Rosenthal & Kennedy, for plaintiff in error.
    John E. Kehoe and Watson J. Perry, for defendant in error; W. W. G-urley and J. R. G-uilliams, of counsel.

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

   Mr. Presiding Justice Taylor

delivered the opinion of the court.