text:
    Neil H. Crossett, Appellant, v. Ella Wittmore, Appellee.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Divobce, § 159

      —when decree based upon consent of parties as to custody of child not disturbed. On a bill to modify the decree awarded in a prior divorce proceeding between the parties, so that complainant might be relieved from paying the amount decreed for the support of a child and the custody of the child be awarded to him, where it appeared that at the hearing of the divorce case, the parties agreed that if certain letters which the mother, the defendant, had written io the husband were returned to her she would not contest the case; that the letters were returned .and a decree was entered; that the awarding of the custody of the child to the mother, who then resided in another State with the child, was virtually by consent; that both parties were of good repute, and. that the child had a good home and was being well taken care of by its mother who had married again and still resided in such other State, held that, as no good reason had been shown why the care and custody of the child should be changed, the decree dismissing the bill for want of equity should be affirmed.

      Appeal from the Circuit Court of Marion county; the Hon. William B. Weight, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 13, 1917.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Bill by Neil H. Crossett, complainant, against Ella Wittmore, defendant, for modification of a decree of divorce so that complainant might obtain possession of his child and be relieved from paying defendant the amount decreed for the child’s support. From a judgment dismissing the bill for want of equity, complainant appeals.
    Kagy & Vandervort, for appellant.
    Noleman & Smith and Taylor R. Young, 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 Higbee

delivered the opinion of the court.

2. Divorce, § 159 —when decree for possession of child in foreign State not disturbed. While a court will not ordinarily permit a child of divorced parents to be removed from the State, still, where the child is, to the knowledge of the court, residing in another State with the mother at the time a decree pending for the possession of the child by the mother based upon an agreement of the parties is rendered, such decree will not be disturbed, where no other good reason exists for such change.

3. Divorce, § 39*—when copies of letters forming basis for settlement of divorce case are inadmissible on application for modification of decree. On a bill to modify the decree awarded in a prior divorce proceeding between the parties, so that complainant might be relieved from paying the amount decreed for the support of a child and the custody of it might be awarded to him, where, it appeared that at the hearing of the divorce case, the parties agreed that if certain letters which the mother had written to the husband, and which he claimed were violations of the federal law, were returned to her she would not contest the case; that the letters were returned and a decree was entered; that the awarding of the custody of the" child to the mother, who then resided in another State with the child, was virtually by consent; that complainant contended that all evidence introduced in the divorce case should be admitted at the present hearing, and that therefore the said letters were admissible; that complainant merely offered copies which he had taken of the letters, and that such letters were not introduced in the divorce case, held that the court did not err in refusing to admit such copies.

4. Divorce, § 110 —when discretion of court in refusing to modify deoree as to alimony is not abused. On a bill to modify the decree awarded in a prior divorce proceeding between the parties, so that complainant might be relieved from paying the amount decreed for the support of a child of the parties and that the custody of it might be awarded to him, where it appeared that the parties agreed that if certain letters which the mother had written to the husband, and which he claimed were violations of the federal law, were returned to her she would not contest the case; that the letters were returned and a decree was entered; that the awarding of the custody of the child to the mother, who then resided in another State with the child, was virtually by consent, that both parties were of. good repute, and' that the child had a good home and was being well taken care of by its mother who had married again and still resided in such other State, held that the court might well have modified the allowance of alimony, but as that matter was largely discretionary, and as such discretion did not appear to have been abused, the decree dismissing for want of equity should be affirmed.


source: Caselaw Access Project

author: Mr. Justice Higbee

license: Public Domain

text:
    O. R. Morgan, Appellee, v. City of Vienna, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Johnson county; the Hon. William N. Butler, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed and remanded.
    Opinion filed April 13, 1917.
    Statement of the Case.
    Action of trespass guare clausum fregit by O. R. Morgan, plaintiff, against the City of Vienna, defendant, to recover damages for constructing a sidewalk along the side of certain land of plaintiff’s against his consent. From a judgment for plaintiff for $40, defendant appeals.
    Spann & Spann and Charles J. Huffman, for appellant.
    John O. Cowan, for appellee.

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

   Mr. Justice Higbee

delivered the opinion of the • court.

Abstract of the Decision.

1. Trespass, § 40 —what is effect of plea liberum tenementum. In an action of trespass guare clausum fregit against a city to recover damages for constructing a sidewalk along the side of certain land against the objection of plaintiff, where the defendant pleaded liberum tenementum, held that the plea admitted that plaintiff was in possession of the ground and the doing of the acts charged.

2. Trespass, § 52*—when instructions on punitive damages improper because of lack of evidence as basis. In an action of trespass guare clausum fregit against a city to recover damages for constructing a sidewalk along the side of certain land against the objection of plaintiff, where the court on a review of the evidence stated that the proof was not clear of the dedication and acceptance of the strip, but where two instructions were given which advised the jury that punitive or exemplary damages could be awarded, held that while it might be that the defendant had no authority to take possession of the ground in question without first invoking the aid of a court, even though a dedication and acceptance were shown, yet there was no proof justifying the giving of such instructions, and that the giving of them constituted reversible error.

3. Damages, § 95*—liability of city for punitive. It is scarcely conceivable that a case could be made against a municipal corporation justifying punitive damages.


text:
    Farmers State Bank of Tamaroa, Illinois, Appellant, v. Mark Blanchard, Appellee.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Perry county; the Hon. Louis R. Kelly, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed and remanded.
    Opinion filed April 13, 1917.
    Statement of the Case.
    Trial of right of property taken under execution by the Farmers State Bank of Tamaroa, Illinois, plaintiff, against Mark Blanchard, defendant. From a judgment for defendant, plaintiff appeals.
    Abstract of the Decision.
    1. Fraudulent conveyances, § 15

      —when sale of goods in bulk by agent is invalid. Where a debtor assigned his stock of goods and accounts to a particular creditor in trust for the purpose of carrying on the business, selling the stock and paying debts without compliance with the Bulk Sales Act and the stock was sold in bulk at public sale without compliance with the provisions of the law, held that, as the assignee was the agent of the debtor, he had no more right to sell the stock in bulk without compliance with the provisions of the law than his principal had.
    2. Assignments fob benefit of creditors, § 25*—when assignment invalid as against creditors not assenting thereto. An assignment by a debtor of its entire stock of goods, furniture and accounts to a particular creditor for the purpose of carrying on the business collecting the accounts, selling the stock, distributing the proceeds among creditors and returning the balance, if any, to the debtor, although notice is given to known creditors of the assignment, is not valid as a statutory assignment as against creditors not assenting thereto.
    3. Assignments for benefit of creditors, § 25*—when assignment not valid as common-laio assignment against creditors not. assenting thereto. An assignment by a debtor of its entire stock of goods, furniture and accounts to a particular creditor for the purpose of carrying on the business, collecting the accounts, selling the stock, distributing the proceeds among creditors and returning the balance, if any, to the debtor, although notice is given to known creditors, is not valid as a common-law assignment against creditors not assenting thereto.
    4. Assignments for benefit of creditors, § 17*—what is effect of statute on common-law assignment. Since the enactment of the statute regulating assignments for the benefit of creditors, valid assignments can now only be made under that statute, and, when so made, the estate must be administered and distributed substantially in conformity with its provisions, and therefore when a so-called common-law assignment is made, the law steps in and controls the distribution of the assets.

      W. L. Coley and W. O. Edwards, for appellant.
    B. W. Pope, 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 Higbee

delivered the opinion of the court.

5. Assignments fob benefit of cbeditobs, § 25*—when evidence insufficient to show consent hy creditor to assignment. On a trial of right of property consisting of stock of goods purchased in bills at a sale from an agent of the debtor, to whom an assignment had been made in trust for the payment of debts, and which was levied upon by a creditor of the debtor, evidence held insufficient to show any consent by the creditor to the arrangement or sale so as to estop it from objecting as to such arrangement or sale.

6. Principal and agent, § 86 —what authority can he given agent. A principal cannot bestow upon the agent any greater authority concerning the subject-matter of the agency than the principal himself had.


text:
    Manuel H. Boals, Appellant, v. Alexander Wegener, Appellee.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Madison county; the Hoii. Louis Bernreuter, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed and remanded.
    Opinion filed April 13, 1917.
    Statement of the Case.
    Bill by Manual H. Boals, complainant, against Alexander Wegener, defendant, for contribution between cosureties on an indemnity bond given the corporate surety on a contractor’s building- bond. From a judgment for defendant, complainant appeals.
    Levi Davis and William; P. Boynton, for appellant.
    John J. Brenholt and Warnock, Williamson & Burroughs, for appellee.

      Abstract of the Decision.
    1. Principal and surety, § 92

      —when right of contribution between cosureties exists. On a bill for contribution between sureties on an indemnity bond given a corporate surety on a contractor’s building bond, where it appeared that the surety company, upon default of the contractor, called upon complainant to keep it harmless; that complainant notified defendant that they were expected to protect the surety company; that defendant told complainant’s son to go ahead and if there was any shortage he would pay his portion; that complainant thereupon completed the work, and, after deducting the amount due the corporation of which complainant was president, notes of such company were given for the shortage; that such notes were subsequently paid by the check of such company; that the amount of such checks and the account for materials were charged on the books of the company to complainant’s personal account; that the dividend received from the contractor’s bankrupt estate was applied by complainant to the shortage, and the expenses incurred by complainant in securing the dividend and in completing the work and interest on the shortage were included in the amount sought to be recovered, held that the direction of the defendant to go ahead and complete the work and the promise to pay his share of the loss was a promise to complainant, and was sufficient authority for him to complete the work, and that defendant should in equity be held to pay his share of all reasonable costs incurred thereby. "
    2. Principal and surety, § 98*—tvhen burden of proof is on complainant seeking contribution from cosurety. On a bill in equity for contribution between sureties on a bond given to indemnify a surety on a building contractor’s bond, held that the burden of proof was on complainant to show what the reasonable amount of the shortage and expenses incurred by complainant were.
    3. Principal and surety, § 92*—when payment by surety considered as made in cash. On a bill for contribution between sureties, where one of the questions was whether the fact that certain notes given in payment of the shortage in question, and also an account for materials furnished, which was part of the shortage, were charged to complainant’s account on the books of the company, of which he was president, could be considered as though such items had been paid by complainant in cash, held that the benefit to the defendant was the same, and that the transaction must be considered as though payment had been made in cash.

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

   Mr. Justice Higbee

delivered the opinion of the court.


text:
    Jennie P. Colburn, Appellee, v. Clover Leaf Casualty Company and Mutual Health & Accident Association of America. Clover Leaf Casualty Company, Appellant.
    1. Insurance, § 670a

      —when evidence insufficient to show that insured is a custodian of eosplosives within accident policy. In an action to recover on an accident insurance policy, where plaintiff’s intestate made application for a policy as a preferred or class A risk, and gave his occupation as superintendent of a powder mill, classed as E, and agreed that, if injured while engaged in more hazardous work, benefits should be prorated accordingly, and where it appeared that after the issuance of the certificate, a motion was adopted that handlers and custodians of explosives theretofore given various classifications would be classed as X; that judgment was rendered for $2,400 as a preferred or class A risk, and the defendant contended that recovery should have been had for only $240' under the X class, or for not more than $720 under class E, held that as it was not shown that any explosive was ever in the actual or physical custody of the insured, or that he had personal care of the same, he was not a custodian of explosives under the terms of class X, and that therefore plaintiff’s recovery could not be limited to the amount provided for under that class.
    2. Instjbance—when insured deemed to he in preferred ristc class within accident insurance policy. In an action to recover on an accident insurance policy, where plaintiff’s intestate made application for a policy as a preferred or class A risk, and gave his occupation as superintendent of a powder mill, classed as E, and agreed that, if injured while engaged in more hazardous work, benefits should be prorated accordingly, and where it appeared that after the issuance of the certificate to the deceased a motion was adopted that handlers and custodians of explosives theretofore given various classifications would be classed as X; that judgment was rendered for $2,400 as a preferred or class A risk, and defendant contended that recovery should have been had for only $240 under the X class, or for not more than $720 under class E, held that as it appeared that the occupation designated, although referred to as being under manual E, was not so included, and that in fact it was not named under any classification, the insured must be considered as having been insured under class A as stated in the policy.

      3. Insurance—when rules and regulations of association construed most strictly against it. Where an accident insurance company seeks to have the policy so construed that such construction would work a forfeiture of the benefits provided for by the policy, the rules and regulations of the association should be construed most strictly against such association.
    4. Insurance, § 502

      —how provision in accident policy for payment in instalments construed in case of death. In an action against an accident insurance company where the insured was killed, and the policy contained a provision that payment of all amounts for specific disability under a certain paragraph should be made “to the insured, or to his beneficiary, if surviving, or in the event of his prior death, to the legal heirs of the insured” in designated monthly instalments, and the verdict was for a lump sum, held that such provision should be construed as providing for the payment of the principal sum, in case of death, in monthly instalments and not in a lump sum, and that the monthly instalments from the date of death to the date of judgment should be paid in a lump sum and the balance in monthly instalments until the full amount was paid.
    Appeal from the Circuit Court of Madison county; the Hon. George A. Crow, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed in part, reversed in part and remanded with directions.
    Opinion filed April 13, 1917.

      Certiorari denied by Supreme Court (making opinion final).
    Bellatti, Bellatti & Moriarty and Williamson, Burroughs & Ryder, for appellant.
    Burton & Burton and M. U. Hayden, 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 Higbee

delivered the opinion of the court.

This was an action in assumpit brought by appellee, Jennie P. Colburn, against the Clover Leaf Casualty Company and the Mutual Health & Accident Association of America, upon a health and accident policy issued to James A. Colburn, husband of appellee, by the last-mentioned company on May 29, 1909. The covenants and obligations of this policy were assumed by the.Clover Leaf Casualty Company on May 20, 1912, and from that time the premiums thereon were paid to it. The principal sum of the policy was $2,000, and appellee was named therein as beneficiary. At the time the policy was issued James A. Colburn, the insured, was superintendent of the Equitable Powder Mills at East Alton, Illinois. He was killed April 1, 1915, by an explosion of powder in the press mill of that company. The manual of the mutual company classified all risks as of class A, B, C, D, E, F or X according to the hazard attending the occupation of the person insured. The written application made by Colburn for this policy stated among other things: “I hereby apply for a policy of insurance at premium rate of $2.00 per month in the Mutual Health and Accident Association of America as a preferred or class A risk.” “6. My occupations are (name them all) superintendent of Equitable Powder Mills; classed in manual as E.” “16. I understand the classification of my risk according to my occupation as above stated, and agree that for any injuries received while temporarily or otherwise engaged in doing any act or thing pertaining to any occupation or exposure, rated or classified by this association as more hazardous than preferred or class A, I or my beneficiary, as the case may be, shall be entitled to receive only such sum as the premium paid will purchase at the rate fixed by this association for such increased hazard as shown by the classification of risk by this association. ’ ’

On March 7, 1911, the trustees of the Mutual Health & Accident Association adopted the following motion: “After March 1, 1911, the following will be classed as ‘X’: Users, handlers and custodians of explosives heretofore given various classifications will be classed as ‘X.’ ” To the declaration the defendants filed a plea of the general issue and also a special plea averring that plaintiff was not entitled to a judgment for more than $240, that being the amount due under the terms of the policy to a risk of class X; or more than $720, the- amount so due to a risk of class E. Replication was filed denying the averments of the special plea. By agreement the case was tried before the court without a jury and a judgment was rendered in favor of the plaintiff for $2,400. The defendants submitted various propositions of law to the court, some of which were sustained and others refused. The case comes to this court on appeal by the Clover Leaf Casualty Company only. The errors assigned .and argued by appellant are, in substance, that the court erred in (a) rendering judgment for more than $240; (b) rendering judgment for more than $720; and (c) rendering judgment for any “lump” sum, instead of for a sum payable in monthly instalments of $25 each.

Appellant contends that the proof shows the insured was at the time of his death a custodian of explosives in the sense that the term is used in the classification of risks adopted by the defendant association on March 7, 1911, and that his risk should therefore be classified as X. The indemnity paid for that class of risk under the premium paid by insured was only $200 plus accumulations, or in this case $240. Appellee claims the insured was not such a custodian; that the burden was on appellant to shqw insured was such and that it does not appear .the classification was legally made. At the time of his death insured was engaged in the same occupation as at the time the policy was issued, that of superintendent of the Equitable Powder Mills, his duty in that capacity ‘being that of a general overseer, employing and discharging all employees. He had a private office, the general charge and supervision of the entire works, and the exercise of his duties required his presence at different times in all departments of the plant. As the proof showed, he was in charge of the manufacture of the powder from the erode material until the finished product was packed in kegs. It was not shown that any explosive was ever in the actual or physical custody of the insured cur that he had the personal care of the same, and therefore he was not a custodian of explosives under the terms of the classification. Under this holding of the facts it is immaterial whether the classification made on March 7, 1911, by the mutual association was legally made or not, and the propositions of law on that question held and refused by the trial court need not be considered.

Under what class should the occupation of the insured be classified for ascertaining the amount due the beneficiary? The policy issued by the mutual association insured deceased as a “preferred or class A risk,” under which class appellee would be entitled to recover $2,400, while appellant insists that the recovery should be had for the amount designated class E which would entitle appellee to $720, or class X, which would entitle her to only $240. From what is above said it is evident that appellee could not be limited in her recovery to the amount provided for under class X. If the risk is to be considered as placed elsewhere than under class A, such a construction would work a forfeiture of the benefits provided for by the policy, and in such case the rules and regulations of the insured association should be construed most strictly against appellant. In Booth v. Supreme Lodge, 187 Ill. App. 372, it is said: “It is well settled law, not controverted by appellee, that the laws and rules of a benefit society are to be liberally construed in favor of the insured and the beneficiary; that where an attempt is made by such society to work a forfeiture of a benefit certificate the laws, rules and regulations of such society will be construed most strictly against it; that where the language of a contract of insurance is uncertain or ambiguous, it will always be construed in favor of the insured and against the insurer. Coverdale v. Royal Arcanum, 193 Ill. 91; Knights Templars Indemnity Co. v. Vail, 206 Ill. 404; Monahan v. Fidelity Mut. Life Ins. Co., 242 Ill. 488.” To sustain its contentions the burden of proof was upon appellant to show that deceased was insured under another class 'than class A. In his application he stated that his occupation was “superintendent of Equitable Powder Mills” and this is declared therein to be classed in the manual as “E.” The occupation designated, however, was not included in the manual under class E and was, as a matter of fact, not named under any classification. “Powder makers” were listed as not insurable, but the occupation of the insured was not that of a powder maker and appellant admits that it cannot interpose the defense that the risk was not insurable after issuing the policy and accepting premiums for some six years with knowledge of his occupation. We are of opinion that appellant wholly failed to prove that the deceased’s occupation was either actually or inferentially included under any other class, and therefore he must be considered to have been insured under class A as stated in the policy.

It is claimed by appellant that even if appellee could be held to be entitled to recover under class A, yet the court below erred in giving judgment for a lump sum of $2,400. Paragraph A of the policy, under which the recovery was had, contained the following provision: “The payment of all amounts for specific disability in paragraph ‘A’ shall be made to the insured, or to his beneficiary, if surviving, or in the event of his prior death, to the legal heirs of the insured in installments of $25 on the first day of each month until the full disability claim is paid.” This same clause or paragraph was construed in Galewski v. Clover Leaf Casualty Co., 191 Ill. App. 496, as providing for the principal sum in case of death, in monthly instalments and not in a lump sum. We fully agree with that construction of the clause and the judgment here should be so amended as to comply therewith. Appellant should be required to pay appellee an amount equal to $25 a month from the death of the insured to the date of the judgment, in a lump sum, and should thereafter pay her $25 a month on the first day of each month until the full amount of $2,400 be fully paid. The cause will be remanded with directions to the court court below to amend the judgment so as to conform to the views above expressed, and in all other respects the judgment will be affirmed; each party to pay one-half of the costs of this appeal.

Affirmed in part, reversed in- part and remanded with directions.


text:
    City of Centralia, Appellee, v. Warren Basha, Appellant.
    1. Evidence, § 249

      —when certificate of clerk as to publication of ordinance is sufficient to warrant admission of ordinance. If no provision is made by statute as to the mode of proving an ordinance and "its legal publication,” the certificate thereto must contain a recital as to each step required in its passage and publication; but in view of section 82, ch. 24, Hurd’s Rev. St. 1916 (J. & A. K 1354), providing a different mode of proof, a general statement of publication in the certificate of the clerk is sufficient to render the ordinance admissible in evidence.
    2. Evidence, § 249*—when certificate of clerk is prima facie evidence of publication of ordinance. In a prosecution for violation of an ordinance, where the sole question was whether the city clerk’s certificate was sufficient to render the ordinance admissible as evidence, and the only objection raised by the defendant was that such certificate did not contain a recital as to the length of time of publication of the ordinance, section 65, ch. 24, Hurd’s Rev. St. 1916 (J. & A. ¶ 1337), providing for proof by the certificate of the city clerk, and section 82 (J. & A. V 1354), specifying the particular mode for proof of .the publication of a city ordinance, considered and held that the said certificate was prima facie evidence of the legal publication of the ordinance.
    Appeal from the Circuit Court of Marion county; the Hon. William B. Weight, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 13, 1917.
    L. H. Jonas and J. L. Haley, for appellant.
    G. F. Merion, for appellee.

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

   Mr. Justice Higbee

delivered the opinion of the court.

The sole question to be considered in this case is whether the city clerk’s certificate to an ordinance of the City of Centralia is sufficient to render the ordinance admissible in evidence. The only objection made by appellant to the admissibility of the ordinance in question was that the clerk’s certificate did not contain the recital that the newspaper in which it was published had been regularly published for at least six months prior to the first publication of such ordinance as provided by the law in force July 1, 1909 (Hurd’s Rev. St 1916, ch. 100, par. 10, J. & A. ¶ 7859). The ordinance in question prohibits the sale of spirituous liquors within the corporate limits of the City of Centralia, imposing a fine for the violation thereof. Hpon the trial of this cause in the Circuit Court of Marion county, the jury found appellant guilty and his fine was assessed at $112.50, for which amount and costs judgment was rendered.

No evidence was introduced or offered on the trial to show that the newspaper mention in the clerk’s certificate had or had not been regularly published for at least six months prior to the first publication of this ordinance. The dates of the publication were stated in the certificate. Section 65, ch. 24, Hurd’s Rev. St. 1916 (J. & A. ¶ 1337) provides: “All ordinances and the date of publication thereof, may be proven by the certificate of the clerk, under the seal of the corporation.” Section 82 of the same chapter (J. & A. ¶ 1354) reads: “The clerk shall record, in a book to be kept for that purpose, all ordinances passed by the city council or board of trustees, and at the foot of the record of each ordinance so recorded shall make a memorandum of the date of the passage and of the publication or posting of such ordinance, which record and memorandum, or a certified copy thereof, shall be prima facie evidence of the passage and legal publication or posting of such ordinances for all purposes whatsoever. ’ ’ This is the particular mode provided by statute for proof of the publication of a city ordinance, and when complied with is prima facie evidence of “the passage and legal publication” thereof, and, in the absence of evidence, showing the publication or passage to be illegal, renders the ordinance so proved admissible in evidence. (Lindsay v. City of Chicago, 115 Ill. 120.)

Section one (1) of the statute on notices (chapter 100, Hurd’s Rev. St. 1916, J. & A. ¶ 7853) provides the manner of making proof of publication of a notice, “when no other mode of proving same is provided,” and must be followed only when no other mode of proof is provided by statute. (City of Moline v. Chicago, B. & Q. R. Co., 262 Ill. 52; City of Chicago v. Stein, 252 Ill. 409.). The law in force July 1,1909, concerning the publication of notices above referred to, supplements this act, and does not modify or change the provisions of the city and village act above mentioned. If no provision was made by the statute as to the mode of proving an ordinance and its “legal publication,” the certificate thereto would have to contain a recital as to each step required in its passage and publication. Under the provisions of the city and village act, however, a different mode of proof is provided for and thereby a general statement of publication in the certificate of the clerk is sufficient to render the ordinance admissible in evidence. This question is fully discussed in Terre Haute & I. R. Co. v. Voelker, 129 Ill. 540, where the following language is used: “Possibly, if no provision had been made by statute as to the mode of proving the ordinances, it would have been incumbent on the party alleging their existence to prove each of the steps by which they were passed and given effect. Article 7, section 13, of the charter, however, provides as follows: ‘All ordinances and resolutions of the city may be proven by the seal of the corporation; and when printed and published in pamphlet or book form, and purporting to be printed or published by the authority of the city council, the same shall be received in evidence in all courts and places without further proof. ’ Here the proof was made by the corporate seal, and a certificate of the city clerk, who was the proper custodian of the seal. This was all that was required to establish, at least prima facie, the existence of the ordinance and its terms. In Pendergast v. City of Peru, 20 Ill. 51, it was held, under a similar provision of the charter there in question, that a copy of the city by-laws, certified by the city clerk and verified by the corporate seal, was a literal compliance with the charter, and was properly admitted in evidence. In Lindsay v. City of Chicago, 115 Ill. 120, where the question arose under the provisions of article 5, section 4, of the general statute for the incorporation of cities and villages, it was contended that the passage of the ordinance could be established only by the production of the journal containing the proceedings of the city council, showing the vote by which it was passed, but it was held that a certified copy of the ordinance, attested by the clerk under the seal of the corporation, was competent evidence of its passage. In Schott v. People, 89 Ill. 195, we said: ‘It is doubtless competent for the Legislature to exact that the simple production of the ordinance or a copy thereof shall be prima facie evidence that every step has been taken with reference to it essential to make it a vplid ordinance; ’ and it was held that such was the effect of the section of the general incorporation act above mentioned. Under these decisions, as well as upon principle, it must be held that the copies of the ordinances in this case, certified by the city clerk and authenticated by the corporate seal, were competent evidence tending to show that said ordinances had been duly passed by the city council, and that they had gone into effect in one of the modes prescribed by the charter. ’ ’

The clerk’s certificate in this case was prima facie evidence of the legal publication of the ordinance, and, in the absence of proof to the contrary, the trial court did not err in admitting it in evidence. The judgment will therefore be affirmed.

Affirmed.


text:
    Charles Johnson, Appellee, v. Melchoir Leipold and Robert C. Gould, Appellants.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Wabash county; the Hon. J. C. Eagleton, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 13, 1917.
    Statement of the Case.
    Action by Charles Johnson, plaintiff, against Mel-choir Leipold and Robert C. Gould, defendants, to recover damages for failure to carry out an agreement for exchange of property. From a judgment for plaintiff for $1,200, defendants appeal.
    Abstract of the Decision.
    L Appeal and ebbob, § 1411

      —when verdict of jury not disturbed on appeal. In an action to recover damages for failure to carry out an agreement for exchange of property, where it appeared that plaintiff had agreed to turn over his stock of groceries, etc., to the defendants for sixty acres of land claimed to be owned by one of them; that plaintiff turned over the stock, and that the deed to plaintiff gave no title to any of the land to plaintiff, and defendants contended that after the mistake was discovered new deeds were executed and tendered to plaintiff but refused by him, held that all of such facts were raised by the pleadings and were denied by plaintiff and presented questions of fact to be determined by the jury, and, as the evidence was conflicting, their verdict in favor of plaintiff should not be disturbed.
    2. Damages, § 236*—when defendants precluded from complaining as to the measure of damages on appeal. In an action to recover damages for failure to carry out an agreement for exchange of property, under which plaintiff was to turn over a stock of groceries, etc., for certain land claimed to be owned by the defendants, where plaintiff turned over the stock, and the deed from defendants did not convey the land, and, at the trial, counsel agreed that the measure of damages was the value of the land, and the trial court was governed in its rulings by such agreement, held that the defendants could not he heard to complain of the measure of damages adopted by their consent or admission.
    3. Pbincipal and agent, § 8*—when evidence insufflcent to show agency. In an action against two defendants to recover damages for failure to carry out an agreement for exchange of property where defendants contended that no joint liability was shown and that one of the defendants was merely acting as agent for the other, negotiations between the defendants leading up to the making of the agreement in question reviewed, and held that the facts did not prove agency as claimed, but established that the transaction was under some kind of an arrangement and understanding between the defendants.

      Howard P. French and T. G. Risley, for appellants.
    J. E. McGaughey and Noah M. Tohill, for appellee.

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

   Mr. Justice Higbee

delivered the opinion of the court.

4. Pleading, § 3*—when plea denying joint liability is essential. A plea denying joint liability is requisite to entitle parties to defend on the ground of not being jointly liable.

5. Appeal and error, § 1240*—when party may not complain of variance. If a party defendant induces the court to declare to the jury the rules of law applicable to the state of facts disclosed by the evidence, and to direct them to return a verdict in accordance with his legal rights under such state of facts, he cannot complain that the facts proven were not within the scope of the allegations of the declaration.


text:
    City of Herrin for use of John Bradbury and Frank Wilson, trading as Bradbury & Wilson, Appellees, v. Henry Stein, Sr. and Henry Stein, Jr., trading as Henry Stein & Son, et al. United States Fidelity & Guaranty Company, Appellant.
    1. Municipal corporations, § 400

      —when subcontractor may not recover on contractor's bond. In an action on a bond brought in the name of a city for the benefit of a certain partnership, where it appeared that the bond was given to said city to insure the performance by the contractor of a contract to construct a city hall and lodge building, that the beneficial plaintiffs were subcontractors, and said city filed a written statement that the action was brought without its consent or authority, and requested its dismissal as far as it was concerned, held that as both the bond and contract ran directly to the city and nothing appeared by the terms of either to indicate that they were intended for the benefit of third parties, the plaintiffs, as subcontractors, had no right of recovery under the bond.
    2. Contracts, § 349*—when third, party may not recover .under contract. In order to entitle a party to recover under the rule of law that a third party may recover under a contract entered into between two other parties for his benefit, it is necessary that such contract should have been entered into for his benefit, and if it appears from the terms of the contract that the contract was solely for the benefit of the parties thereto, such third party cannot recover under its provisions.
    3. Municipal corporations, § 400

      —when declaration in action on contractor’s bond is insufficient. In an action on a bond brought in the name of a city for the benefit of a certain partnership, where it appeared that the bond' was given to said city to insure the performance by the contractor of a contract to construct a city hall and lodge building, that the beneficial plaintiffs were subcontractors, and said city had filed a written statement that the suit was brought without its consent or authority, and the declaration failed to allege that the city had been required to pay any claims for materials furnished by the beneficial plaintiffs, or for any other cause, held that such declaration did not state a cause of action, and the demurrer thereto should have been sustained.
    Appeal from the Circuit Court of Jackson county; the Hon. William N. Butler, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed and remanded.
    Opinion filed April 13, 1917.
    Hosea V. Ferrell and Schwartz & Hays, for appellant.
    John M. Herbert, L. R. Stewart, Fred G. Bierer and W. R. Kee, 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 Higbee

delivered the opinion of the court.

This was an action of debt on a bond brought in the Circuit Court of Jackson county by the City of Herrin for the use of appellees, John Bradbury and Frank Wilson, partners, doing business as Bradbury & Wilson, against Henry Stein, Sr. and Henry Stein, Jr., partners, doing business as Henry Stein & Son, and The United States Fidelity & Guaranty Company, a corporation. The original declaration was filed December 28, 1914, and a bond in the usual form of a bond for costs used by nonresident plaintiffs was filed and approved. On January 19, 1915, the City of Herrin filed a written statement that the suit was brought without its consent or authority and requested that it be dismissed so far as the city was concerned. At different times the declaration was amended, over the objection of appellant, adding other beneficial plaintiffs. To the original declaration the United States Fidelity & Guaranty Company filed its general and special demurrer, which was overruled by the court. The company elected to abide by its demurrer and judgment was entered against it in favor of the city for the use of the beneficial plaintiffs in the amount of $19,000, the debt to be satisfied on payment of the damages to the beneficial plaintiffs in the respective amounts mentioned in the last amended declaration, and the company has brought the record to this court for review by appeal.

On September 19, 1913, Henry Stein & Son entered into a written contract with the City of Herrin to build and furnish all material and labor necessary for the erection and completion of a brick and stone three-story city hall and lodge building for the city. Appellant became their surety to the city in the sum of $19,000 for the faithful performance of their contract. The suit was brought to recover the respective amounts due the beneficial plaintiffs, who were subcontractors, for materials furnished Stein & Son in the construction of the building. Counsel for appellant contends that the bond was required and entered into for the sole use and protection of the City of Herrin, and no other party, and that the surety is not liable thereunder to any other party. It is insisted in behalf of appellees that the beneficial plaintiffs, who furnished materials under the contract to Stein & Son, the contractors, are entitled to recover for such materials under the terms of the bond and contract. In considering this case the bond and contract must be treated as one instrument. If therefore the subcontractors furnishing materials for the construction of the building are protected under the terms of the bond and contract, they are entitled to recover and the trial court was right in overruling the demurrer. On the other hand, if they are not so protected the demurrer should have been sustained. Searles v. City of Flora, 225 Ill. 167.

Appellees insist they are entitled to recover in this case under the well-established principle of law that a third party may recover on a contract entered into between two other parties for his benefit. But to entitle such third person to recover it is necessary that the contract should have been entered into for his benefit, and if it appears from the term's used that the contract was solely for the benefit of the parties thereto, third persons cannot recover under its provisions. Searles v. City of Flora, supra. As stated by the court in that case, so in this suit: “The question here must therefore be whether, under the terms used in the bond and contract, considered as a single obligation, the plaintiff below was authorized to bring this suit for the use of other parties who furnished material.” The contract provided that Stein & Son were “to build and furnish all material and labor necessary for the erection and completion of a brick and stone three-story city hall and lodge building” for the city and that they should “give suitable bond in the sum of nineteen thousand ($19,000) dollars conditioned for the faithful compliance with the within contract, for the construction of the work on the lot mentioned in the contract, and shall duly and promptly pay and discharge all indebtedness that may be incurred by them in carrying out said contract and completing the same free of all mechanics’ liens and any indebtedness whatever.” The bond contained the following provision:

“The condition of the above obligation is such that, whereas, the above bounden has entered into a certain contract with the City of Herrin, Illinois, bearing date the 19th day of September, A. D. 1913, which said contract is for the furnishing of all labor and material for the erection and completion of a brick and stone three-story city hall and lodge building in Herrin, Illinois, contract price $19,445.00, and hereby made a part of this bond by reference.
“Now, therefore, if the said Henry Stein & Son shall in all respects well and truly keep and perform the said contract on their part to be performed in strict accordance with the terms thereof, and in the time and manner therein prescribed, and further shall indemnify, keep and save harmless the said City of Herrin, against all claims, losses, demands, liabilities, suits, judgments, costs, damages and expenses, which may in any way be made, brought, sustained, or recovered against said city, in consequence of the awarding or execution of such contract, or the doing of the work or making of the improvement therein provided for, or which may in any wise result from carelessness or neglect of said Henry Stein & Son, or their agents, employees or workmen in any respect whatever, or may result on account of any infringement of any patent, by reason of any of the materials, machinery, devices or apparatus used or employed in the performance of said contract, or the work therein provided, and moreover, shall pay to said city any sum or sums of money determined by the City of Herrin council of said city to be due said city by reason of any failure or neglect in the performance of the requirements of said contract wherefore the said city council shall have elected to suspend the same, and shall pay the cost of making good defects, faults and imperfections appearing or existing in said work or improvement, then this obligation to be null and void, otherwise to remain in full force and effect.”

Both the bond and contract run directly to the city, and nothing appears by the terms of either to indicate that they were intended for the benefit of third parties. There is no allegation in the declaration that there was any breach of the bond so far as the city was concerned, and under the well-established principles of law in the consideration of demurrers to pleadings, it must be taken that there was therefore no breach of the bond as against the city. Contracts and bonds very similar to those here under consideration have been construed by the Supreme Court of this State, and the rule of construction so established must be our guide here. In Searles v. City of Flora, supra, the contract provides that the contractor shall “pay for all materials,” etc., and the condition of the bond was that the contractor should “well and truly keep, do and perform each and every, all and singular, the matters and things in said contract set forth and specified to be by said principal kept, done and performed, at the time and in the manner in said contract specified, and shall pay over, make good and reimburse to the above named obligee all loss and damage which said obligee may sustain by reason of failure or default on the part of said principal.” In City of Sterling v. Wolf, 163 Ill. 467, the contractor agreed “to furnish all labor, materials and tools necessary to execute the entire work,” and executed a bond for the faithful performance of his contract. In Spaulding Lumber Co. v. Brown, 171 Ill. 487, the bond requires that the contractor “shall duly perform said contract and all the covenants and agreements therein contained, and shall pay and discharge from said premises all liens for material, labor or otherwise, which may accrue on account of said building contract.” In each of these cases the court held that subcontractors could not recover on the bond, there being no breach thereof as against the obligee named therein, A careful reading of the contract and bond in this case does not disclose any terms or conditions therein evidencing any more intention on the part of the parties thereto that the same were intended for the benefit or protection of any persons not parties thereto, than do the terms and conditions of the contracts and bonds in the above cases. Under these authorities and in the absence of any allegation in the declaration that the city had been required to pay any claims for materials furnished by the beneficial plaintiffs or for any other cause, the declaration as finally amended did not state a cause of action and the demurrer thereto should have been sustained. The case of the Board of Education v. Aetna Indemnity Co., 159 Ill. App. 319, cited by appellees as sustaining their position, is not in point in this case, for the reason the bond in that case expressly provided that the contractor should “promptly make payment to all persons supplying him with labor or materials in the prosecution of the work provided for in said contract.” The fact that appellant is a paid surety does not justify this court in departing from the rule of construction adopted by the Supreme Court in such cases, as urged by counsel for appellees.

For the error in the trial court in overruling appellant’s demurrer to the amended declaration, the judgment will be reversed and the cause remanded.

Reversed and remanded.


text:
    Eugene Lanksford and Minnie Lanksford, Appellees, v. Charles Cruse, Appellant.

      (Not to be reported in full.)
    Abstract of the Decision.
    1. Sales, $ 275

      —what are rights of vendee as to returning goods in case of breach of warranty. In the case of an executed contract of sale of personalty, the rule is that unless the contract gives the vendee the right to return the property then, in case of a breach of the warranty, he must retain it and sue for damages, unless the vendor was guilty of fraud or deceit.
    2. Sales, § 402*—when instruction on vendee's remedies for breach of warranty is inapplicable to facts. In an action to recover the price of á stove purchased by plaintiffs from the defendant, where there was a failure .of warranty, held that a requested instruction which told the jury that a warranty was not part of a contract of sale, except as a part of the consideration received for the price paid, and that the vendee’s remedy upon a sale was on the warranty, without which he had none, and his right of recovery was limited to the amount of depreciation due to the breach, and he could not lawfully compel the vendor to take back the property and return the price paid, was not a correct statement of the law applicable to the facts, as the contract in question by its terms gave the vendee the right to return the property in case of a breach of the warranty.

      Appeal from the Circuit Court of Marion county; the Hon. William B. Wbight, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 13, 1917.
    Statement of the Case.
    Action by Eugene Lanksford and Minnie Lanksford, plaintiffs, against Charles Cruse, defendant, to recover for the price of a stove sold by defendant to plaintiffs. From a judgment for plaintiffs for $40, defendant appeals.
    W. G. Wilson and Noleman & Smith, for appellant.
    Charles H. Holt, 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 Higbee

delivered the opinion of the court.

3. Payment, § 3*—what constitutes. In an action to recover the price of a stove purchased by plaintiffs from the defendant, where there was a failure of warranty, and the refusal of an instruction was complained of, which told the jury that if the defendant made a payment of part of the purchase price after having complained of the stove he could not recover, held that although such part payment consisted of the turning over of an account at the time of the purchase, it constituted a payment of the amount thereof on the stove, regardless of when the account was paid.

4. Instructions, § 480*—what is province of court as to announcing theory of party and instructing accordingly. It is not error for the court at the request of a party to state to the jury the theory upon which a case is being tried and then announce the law applicable to such theory, and it is the province of the jury to decide whether one theory or another is sustained by the evidence under the law announced by the court.

5. Sales, § 401 —when evidence is sufficient to sustain finding for plaintiff on issue of noncompliance with warranty. In an action t& recover the price of a stove purchased by plaintiffs from the defendant, where a failure of warranty was claimed, and it appeared that the stove was to be returned if not as warranted, but the testimony was conflicting as to the nature of the warranty, held that it was for the jury to say which warranty was in fact made, and whether the stove complied therewith, and that the finding of the jury in favor of plaintiff should not be disturbed.


text:
    B. F. Anderson, Appellee, v. A. C. Terhune, Appellant.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Witnesses, § 227

      —what is not proper cross-examination in action on note. In an action on a note, where the defendant claimed that the note was not assigned before maturity and that it was given for medical services performed by the payee, who was not then a licensed physician, and also that when the defendant signed the note he was under the influence of morphine administered by such physician, and there was conflict as to the facts, and the assignee, after having stated on direct examination that his name was indorsed on the note, was asked on cross-examination when he signed it, held, that such question was not proper cross-examination.
    2. Bills and notes, § 421*-—when evidence as to finding maker on street under influence of morphine is properly excluded. In an action on a note, where the defendant claimed that the note was not assigned before maturity and that it was given for medical services performed by the payee, who was not then a licensed physician, and also that when the defendant signed the note he was under the influence of morphine administered by such physician, and there was conflict as to the facts, held that the exclusion of the testimony of a witness that he had found the defendant on the street under the influence of morphine, but could not fix a definite date, was proper, as the witness could not fix the date at or near the time of executing the note.

      Appeal from the Circuit Court of Franklin county; the Hon. Charles H. Miller, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed on remittitur; otherwise reversed and, remanded.
    Opinion filed April 13, 1917.
    Statement of the Case.
    Action by B. F. Anderson, plaintiff, against A. C. Terhune, defendant, to recover on a promissory note for $227, dated August 22, 1914, and due November 22, 1914. From a judgment for plaintiff for $262.85, after filing of a remittitur for $5.15, defendant appeals.
    W. H. Hart and Ernest J. Odum, for appellant.
    Thomas J. Layman and William B. Johnson, 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 Higbee

delivered the opinion of the court.

3. Fraud, § 89*—who has burden of proving. Fraud is never presumed, but must be affirmatively alleged and clearly established, and the burden of proving an allegation of fraud is upon the party making such allegation.

4. Bills and notes, § 462*—when instruction in action on note is improper as to interest and as to attorney's fee. In an action on a note, where the space for the rate of interest was left blank in the note, and wh.ere it was provided that if the note should be collected by suit or foreclosure the judgment or decree should include a reasonable attorney’s fee, and that such fee should become due upon commencement of a suit on the note or the filing of a bill to foreclose, and an instruction was given telling the jury that if they believed that plaintiff was entitled to recover, the judgment should be for the face value of the note together with interest from the date of the note, and such attorney’s fee as might be shown by the evidence to be due, held that such instruction was improper both as to interest and attorney’s fee, as the note only drew interest from maturity and the attorney’s fee did not become due upon the failure to pay at maturity.

5. Bills and notes, § 477*-—when judgment may not include attorney’s fee. Where a note provides that if it is collected by suit or foreclosure the judgment or decree shall include a reasonable attorney’s fee and that such amount shall become due upon commencement of suit on the note or the filing of a bill to foreclose, such fee does not fall due until after the institution of suit, and the amount of such fee cannot be included in the judgment on the note, but a separate suit must be instituted if the fee is to be recovered.

6. Bills and notes, § 90 —when note draws interest only from maturity. Where a note contains no provision as to interest, the same can only draw interest from maturity.


text:
    Mary Belew, Plaintiff in Error, v. The People of the State of Illinois, Defendant in Error.
    (Not to be reported in full.)
    Abstract of the Decision.
    Criminal law, § 595

      —when case reversed and remanded pro forma. A judgment will be reversed pro forma and the case remanded under Rule 27, where the People, in an important criminal case, fail to file briefs.
    Error to the County Court of Madison county; the Hon. Henky B. Eaton, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed pro forma and remanded.
    Opinion filed April 13, 1917.
    Statement of the Case.
    Prosecution by the People of the State of Illinois, plaintiff, against Mary Belew, defendant, for “leaving premises while under quarantine,.” Prom a judgment imposing a fine of $25 and costs and that defendant stand committed until said fine and costs are paid, defendant brings error.
    E. L. Maher and Harry Faulkner, for plaintiff in error.
    No appearance for defendant in error.

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

   Mr. Justice Higbee

delivered the opinion of the court-


text:
    Charles E. Erd and Loren E. Massey, trading as Erd & Massey, Appellees, v. Rapid Transit Company of Illinois and Charles B. Vonnahme, Appellants.
    1. Corporations, § 25

      —when corporation not liable for services of attorneys rendered before incorporation. In an action against a corporation for attorneys’ fees, where the services in question were rendered partly before incorporation and partly thereafter, and no express promise to pay for the services rendered prior to the organization was made by the corporation or its authorized officer, held that plaintiffs were not entitled to recover from the corporation for services rendered prior to its incorporation.
    2. Corporations, § 25*—what is liability for debts contracted prior to organization. In Illinois a corporation is not liable for debts contracted or services rendered under a contract with the incorporators prior to its organization, unless the corporation promises to pay the same after its organization.
    3. Conflict of laws, § 22*—what law governs as to liability for services performed in another State prior to organization of corporation. In an action against an Illinois corporation for attorneys’ fees, where the services were partly rendered before and partly after incorporation, and no promise was made Dy the corporation to pay for services performed prior to the organization, and it was contended that as the services were performed in Missouri, where, contrary to the rule in Illinois, recovery against a corporation could be had under the authorities of that State for services performed prior to the organization, held that under the Missouri authorities recovery was permitted for such services for the reasonable value thereof, not under the contract made prior to "the organization but under a contract implied from the acceptance, after the incorporation, of the benefit of the services, but that the Missouri rule was not applicable, as any implied acceptance by the defendant corporation must have occurred in Illinois, and hence the Illinois rule must prevail.
    4. Conflict of laws, § 12*—what law governs as to enforcement of contract. While the courts of Illinois will enforce contracts made in another State in accordance with the construction given them by the courts of that State, they will not imply a contract from facts out of which no contract can arise under the rules of law adopted by the courts of Illinois.
    5. Continuance, § 10*—when denial of proper. The denial of a continuance on the grounds of the absence of the president and manager of a defendant corporation, and insufficient time to prepare for trial; held properly refused as the affidavit failed to show that the absence of such president was necessary or unavoidable.
    6. Appeal and error, § 1793*—when judgment reversed as to all defendants. In an action against a corporation and one of the incorporators to recover attorneys’ fees for services performed partly prior to incorporation and partly after, where there was no promise by the corporation to pay for the services performed prior to its organization, and the judgment was against both defendants, held that as such incorporator could not in any event have been made liable for services performed after the organization of the incorporation, and as the judgment must be against all or none, such judgment must be reversed.
    7. Appeal and error, § 1793

      —when judgment must he reversed as to all defendants. Where, in an action of assumpsit, a judgment is rendered against several defendants and it is necessary to reverse, the same as to one, it must be reversed as to all.
    Appeal from the City Court of East St. Louis; the Hon. W. M. Vandeventeb, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed and remanded.
    Opinion filed April 13, 1917.
    Terry, Gueltig & Powell, for appellants.
    N. C. Lyrla, for appellees; Erd & Massey, of counsel.

      See Illinois Notes Digest, Yols. 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 Higbee

delivered the opinion of the court!

Appellees, Charles E. Erd and Loren E. Massey are attorneys residing in St. Louis, Missouri, and practicing under the firm name of Erd & Massey. In July, 1915, Charles B. Vonnahme, Daniel P. Boberts, now president of appellant company, A. Hoffman, Jr. and James C. Meyers came to the office of appellees in St. Louis and consulted them with reference to forming a corporation under the laws of Illinois, for the purpose of constructing and operating an electric railway from East St. Louis, Illinois, to some point south. Other conferences were held, and in pursuance of them appellees prepared all papers and took all steps necessary and. secured the organization of the Rapid Transit Company of Illinois, one of the appellants. Appellees then prepared by-laws and minutes of the first meeting of stockholders and directors, directed the incorporators as to the manner of holding these meetings, and purchased a minute book for $3.75. Appellees also prepared, at the request of Daniel P. Roberts, as they claim, forms of city and village ordinances granting the company permission to operate its railway over streets, forms of release for right of way, and other papers necessary for securing the right of way. Appellees claim they" were consulted frequently by officers of the corporation after its organization until about September 8, 1915, when they learned another attorney had been employed. Appellee Erd testified that he was first consulted by appellant Vonnahme and, in a conversation as to their fee in the matter, they finally agreed that if Vonnahme would make the stock of the company worth par, appellees would take $1,000 worth of the stock for their fee, but this did not include fees for drafting ordinances and right of way papers. Appellants contend that appellees are bound to take their fees in stock and appellees contend they are not unless the stock is made worth par, and that having waited a reasonable time for such stock, and no stock having been yet issued, they are now entitled to recover a reasonable amount in cash for their fees. This suit was brought against the Bapid Transit Company of Illinois and Dr. Charles B. Vonnahme for $250 for fees for such services, and $3.75 expended for a minute book for the company. Appellants made a motion for a continuance of the case, on the ground of the absence of F. D. Boberts, president and manager of the company, and also on the ground they had not had sufficient time to prepare the case for trial. This motion was overruled and the case was tried before a jury, resulting in a verdict for $253.75 in favor of appellees, and judgment for that amount having been rendered, defendants appealed.

There is no question but that the fees recovered were reasonable. The court did not commit error in-overruling the motion for a continuance. It did not appear from the affidavit in support of the motion that the absence of Roberts was necessary or unavoidable. He was president and manager of the company and directly interested in the suit. After service of summons it became his duty to attend court and keep informed as to the progress of the case, and the affidavit was amended to show that Roberts came into court during the argument of the motion. The evidence clearly shows that the contract for the services rendered was made with the incorporators and that the appellant corporation received the benefit of such services after it was formed. The evidence does not, however, show any express promise made by the corporation or its authorized officer, after its organization, to pay for the services rendered by appellees prior to the organization, under the contract with the incorporators. The authorities of the different States appear to be in conflict as to the liability of corporations under such circumstances. The decided trend of the decisions of the courts of this State is that a corporation is not liable for debts contracted or services rendered under a contract with its incorporators prior to its organization, unless the corporation expressly promises to pay the same after its organization. Gent v. Manufacturers & Merchants’ Mut. Ins. Co., 107 Ill. 652; Western Screw & Manufacturing Co. v. Cousley, 72 Ill. 531; Rockford, R. 1. & St. L. R. Co. v. Sage, 65 Ill. 328; McCally v. Blue Ribbon Gum Co., 173 Ill. App. 66; Lawrence v. Nyberg Automobile Works, 162 Ill. App. 348. A large portion of the services of appellees were rendered prior to the organization in taking steps necessary in the incorporation of the company. The doctrine adopted by courts of this State would seem to be based on sound reasoning for, as stated in Rockford, R. I. & St. L. R. Co. v. Sage, supra: “A right of recovery against a corporation for anything done before it had a proper existence, does not appear to rest on any very satisfactory legal principle, ” or as said in 10 Cyc. page 265: “It is difficult to understand how the corporation could be estopped by accepting benefits which it had no power to reject, without uncreating itself.” If therefore the contract is to be governed by the rules of law applicable in this State, this judgment cannot be permitted to stand. Counsel for appellant contend, however, that as the contract between them and the incorporation was entered into at their law office in St. Louis, and all the services rendered by them were performed at that place, the lex loci contractus should control and not the lex fori, and that under the laws of the State of Missouri they are entitled to recover. It in fact appears to be well settled in Missouri that an attorney may recover for services rendered by him in the preparation of articles of incorporation and for other necessary services performed by him in the organization of a company as upon an implied promise to pay reasonable compensation if such services are accepted by the company. In Taussig v. St. Louis & K. Ry. Co., 166 Mo. 28, the Supreme Court of that State held that for such services the attorney performing them might recover upon an implied promise to pay their reasonable value. It is to be observed that the language used by the court is that “for such services the plaintiff may recover upon an implied promise to pay their reasonable value” so that the corporation appears to be held liable, not under the contract for services made before its organization but under a contract implied from the acceptance, after the incorporation, of the benefit of such services. In this case the corporation sued is an Illinois corporation, and any implied acceptance by it after the incorporation of services rendered by appellee before that time must have occurred in the State of Illinois, where the corporation was created and existed, ' and therefore such implied contract, if any, must have arisen in this State and should be governed by the laws of this State. While the courts of Illinois will enforce contracts made in another State in accordance with the construction given them by the courts of that State, they will not imply a contract from facts out of which no contract can arise under the rules of law adopted by the courts of this State. Under this rule appellees were not entitled to recover for services rendered the company prior to its incorporation. For services rendered the appellant company after the incorporation, it would be liable to pay appellees, but for services rendered before that time, appellees have only a right of recovery against the parties who employed them.

There is another reason why this judgment cannot be permitted to stand. Charles B. Vonnahme, one of the incorporators, who is made a party defendant to the suit with the Rapid Transit Company, could not in any event be made liable for such portion of the services as were rendered after the incorporation was completed. But “the rule is inflexible that in actions on contract against two or more, and all are served with process, judgment must go against all or none.” Faulk v. Kellums, 54 Ill. 188; Smith v. Condon, 90 Ill. App. 314. Where in an action of assumpsit a judgment is entered against several defendants and it is necessary to reverse the same as to one, it must be reversed as to all. Fuller v. Robb, 26 Ill. 246; Lyons v. Hammond Elevator Co., 139 Ill. App. 495. For the reasons above given, the judgment of the court below will be reversed and the cause remanded.

Reversed and remanded.


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    City of Metropolis, Illinois, Appellant, v. Walter Moreland, Jr., Appellee.
    1. Municipal corporations—what ordinance city has no authority to pass. In a prosecution against a druggist for a violation of a city ordinance against keeping or maintaining, within the corporate limits of said city, any place in which any intoxicating liquor was received or kept for sale as a beverage, where it appeared that such druggist had received fifty bottles of whisky at his drug store, but he was not charged with selling it, and the controlling question was whether said city had legal authority to enact such ordinance, clause 46, sec. 1, art. V (J. & A. If 1334) of the Act providing for the incorporation of cities and villages, and giving power to license, regulate and prohibit the selling of intoxicating liquors; and clause 66, giving power to “pass and enforce all necessary police ordinances,” and clause 98, empowering cities to pass all ordinances and make all regulations proper or necessary to carry into effect the powers granted to cities or villages, considered and held that said city had not the authority to pass the ordinance in question.
    2. Municipal corporations, § 41

      —what powers city may exercise. A city can only exercise such powers as are granted to it by the laws of the State, or such as are necessarily implied from those granted it, and the enumeration of powers operates to exclude such as are not enumerated, and if doubt exists concerning the grant of power, the doubt is to be resolved against the municipality.
    3. Municipal corporations—when power to enact ordinance against sale of intoxicating liquor hy druggist not implied. In a prosecution against a druggist for a violation of a city ordinance providing that whoever should, within the corporate limits of said city, keep or maintain any place in which any intoxicating liquor was received or kept for sale as a beverage, should, upon conviction, be fined, etc., where it appeared that such druggist had received fifty bottles of whisky at his drug store, but he was not charged with selling it, held that the power to enact the ordinance in question was not necessarily or fairly implied in, nor incident ór indispensable to the power to license, regulate and prohibit the selling or giving away of intoxicating liquors.
    Appeal from the Circuit Court of Massac county; the Hon. D. T. Habtwell, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 13, 1917.
    Roy R. Helm, for appellant; H. A. Evans, of counsel.
    C. L. V. Mulkey, for appellee.

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

   Mr. Justice Higbee

delivered the opinion of the court.

On September 27, 1915, the City of Metropolis, Illinois, incorporated under the general law, enacted an ordinance providing: “Whoever shall, within the corporate limits of said City of Metropolis, Illinois, * * * keep or maintain * * * any place in which any intoxicating liquor * * * is received or kept * * * for sale as a beverage * * * shall upon conviction thereof be fined not less than $200.” This ordinance was duly published and became operative October 11, 1915. Afterwards on November 18, 1915, Walter H. Moreland, Jr., a druggist of that place, was arrested for a violation of this ordinance, on a complaint which charged that he “did keep and maintain a certain store room or place, being the building on Lot No. 318 in Block No. 28, in the City of Metropolis, Illinois, in which intoxicating liquor, to wit, whisky, is received and kept for sale as a beverage.” On the trial of the case in the Circuit Court, on an appeal from a police magistrate who had issued the warrant, the court, at the conclusion of the plaintiff’s case, excluded the evidence offered by the plaintiff from the jury as inadmissible and directed a verdict of not guilty, on the theory that the ordinance under which the arrest was made was invalid. The city has brought the case here for review.

The evidence showed that appellee, on November 18, 1915, the day on which he was arrested, had received at his drug store fifty quart bottles of whisky. He was not charged with selling intoxicating liquor and there was no evidence that he, at any time, sold or offered to sell the whisky in question. It is contended by appellee that there was no proof tending to show that the whisky in question was purchased and received by him with intent to sell it as a beverage, in violation of the law, while the contention of appellant is that it is a fair inference to be drawn from the fact that appellee received and kept at his drug store fifty quart bottles of whisky, that he intended to sell the same in violation of the law, as a beverage. Regardless of this contention, however, the controlling question in this case, and the one we are called upon to determine, is did the City of Metropolis have legal authority to enact the ordinance under which the complaint was filed and the arrest made ?

That a city can only exercise such powers as are granted it by the laws of the State, or such as are necessarily implied from those granted it, is a doctrine so well settled that no authorities need be here cited to support it. It is not contended by counsel for appellant that authority to enact this ordinance is expressly granted by the statute, but he claims that such authority is necessarily implied from clause 46, sec. 1, art. V (J. & A. ¶ 1334) of the Act providing for the incorporation of cities and villages. That clause gives cities the power, “To license, regulate and prohibit the selling or giving away of any intoxicating, malt, vinous, mixed or fermented liquor.” Not only does the enumeration of the powers granted a city operate to exclude such as are not enumerated, but it has also been held that if a doubt exists concerning the grant of power, the doubt is to be resolved against the municipality. People v. Village of Oak Park, 268 Ill. 256; City of Chicago v. Ross, 257 Ill. 76; City of Chicago v. M. & M. Hotel Co., 248 Ill. 264; City of Chicago v. Weber, 246 Ill. 304. In Haskell v. Howard, 269 Ill. 550, the question for the decision of the court was the validity of an ordinance prohibiting individuals from maintaining, displaying or posting on private property within the limits of the City of Villa Grove any sign or advertisement of any wholesale or retail liquor dealer, and declaring the same to be a nuisance. The court there held that the city had the power to regulate the construction and use of billboards within its corporate limits, but that such regulation must be reasonable, and it was further said: “The object of the ordinance here involved was not the control and regulation of either the construction, location or use of billboards, but the purpose of its enactment was to prohibit any sign or advertisement of any wholesale or retail liquor dealer being displayed within the corporate limits of the city. The prohibition was not merely against the display of such signs on billboards; but was against their being displayed or posted upon any vehicle, or in, on or about any building or premises in the corporate .limits of the city. The ordinance purports to prohibit the posting or displaying of any advertisement of intoxicating liquor. No express power is given municipalities by the Cities and Villages Act to pass such an ordinance. If the power exists it must be implied from the powers expressly conferred. * * * The prohibition of such advertisements is unnecessary to and has no reasonable connection with the power to prohibit the sale of liquor in said city.” It was therefore held that the ordinance referred to was unauthorized and void.

In Sullivan v. City of Oneida, 61 Ill. 242, a provision in the city charter, empowering the city counsel to declare the selling, giving away or keeping on hand for sale, of any intoxicating liquor, a nuisance, was held not to confer the powef to declare the keeping on hand of intoxicating liquor, for any purpose, a nuisance. In the case of City of Christopher v. Massotti, 173 Ill. App. 241, this court had under consideration an ordinance of the village of the City of Christopher, prohibiting, among other things, the storage of liquor within the corporate limits of the city for the purpose of future delivery, sale or distribution, and we there held that the ordinance was not within the power granted by the' statute to cities, “To license, regulate and prohibit tie selling or giving away of any intoxicating, malt, vinous, mixed or fermented liquor,” and could not be sustained.

From the reasoning followed in the cases above cited, and in other cases bearing upon the subject, we conclude that the power to enact the ordinance in question here is not necessarily or fairly implied in nor incident or indispensable to the power to license, regulate and prohibit the selling or giving away of intoxicating liquors. Neither do we consider the power to pass this ordinance conferred by clause 66 of the section above referred to, which gives the city power to “pass and enforce all necessary police ordinances,” nor by clause 98 which empowers cities “to pass all ordinances, rules and make all regulations proper or necessary to carry into effect the powers granted to cities or villages.” It is not the purpose of either of these clauses to add anything substantial to the powers delegated to cities, but simply to authorize the enactment of proper ordinances to carry into effect the powers so delegated. (City of Chicago v. P. F. Pettibone & Co., 267 Ill. 573; City of Chicago v. O’Brien, 268 Ill. 228.) Under the view of the law as herein expressed, we are of opinion that the Legislature has not granted cities the authority to pass an ordinance such as the one in question, and that it is ultra vires and void. The court below therefore properly directed the jury to find the defendant not guilty and the judgment based on the verdict, given in accordance with that direction, must be affirmed.

Judgment affirmed.