text:
    Fred C. Prachthauser, plaintiff, v. Mayer’s Express Storage Warehouse, defendant. Mayer’s Express Storage Warehouse for use of Fred C. Prachthauser, appellee, v. Northwestern Trust & Savings Bank, garnishee, appellant.
    Gen. No. 24,980.
    Garnishment proceedings. Judgment for plaintiff. Appeal from the Municipal Court of Chicago; the Hon. Hugh R. Stewart, Judge, presiding. Heard in the Branch Appellate Court at the March tlrm, 1919.
    Affirmed.
    Opinion filed June 2, 1920.
    I. H. Himes and Benjamin S. Mesirow, for appellant. George L. Reker, for appellee.
   Mr. Justice Taylor

delivered the opinion of the court.


source: Caselaw Access Project

author: Mr. Justice Taylor

license: Public Domain

text:
    Michael Czarnecki by Vincent Czarnecki, appellee, v. Gustav P. Bartnick, Bartnick & Son Company and Bartnick Sand & Gravel Company, appellants.
    Gen. No. 25,045.
    Action for personal injuries resulting from collision between buggy and automobile. Judgment for plaintiff. Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1919.
    Affirmed.
    Opinion filed June 2, 1920.
    Stoll & Shepherd, for appellants. Aaron Soble, for appellee.
   Mr. Justice Taylor

delivered the opinion of the court.


author: Mr. Presiding Justice Holdom

text:
    The People of the State of Illinois, defendant in error, v. William Bechtel, plaintiff in error.
    Gen. No. 25,824.
    Conviction on charge of assault with a deadly weapon. Error to the Municipal Court of Chicago; the Hon. John Stelk, Judge, presiding. Heard in this court 'at the March term, 1920.
    Reversed.
    Opinion filed June 28, 1920.
    Roy D. Keehn, for plaintiff in error; Edward G. Woods, of counsel. Maelay Hoyne and Edward E. Wilson, for defendant in error.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.


text:
    American Express Company, defendant in error, v. Otto Kasch, plaintiff in error.
    Gen. No. 25,845.
    Action in contract for an accounting for funds received from sale of money orders. Judgment for plaintiff. Error to the Municipal Court of Chicago; the Hon. James Donahoe, Judge, presiding. Heard in this court at the March term, 1920.
    Affirmed.
    Opinion filed June 28, 1920.
    Rehearing denied July 12, 1920.

      Certiorari denied by Supreme Court (making opinion final).
    George B. Cohen and C. C. Kirk, for plaintiff in error. Zimmerman, Mack & Garrett, for defendant in error.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.


text:
    In re estate of William E. Bradway, deceased. Charles W. Leeming and Willard E. Pardridge, executors of last will of Sarah Pardridge, deceased, appellees, v. Clara A. Bradway and George R. Bard, administrators of estate of William E. Bradway, deceased, appellants.
    Gen. No. 25,867.
    Action to recover rent. Judgment for plaintiffs. Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding. Heard in this court at the March term, 1920.
    Affirmed.
    Opinion filed June 28, 1920.
    • Elmer J. Schnaekenberg, for appellants. John S. Hummer, for appellees; James E. McGrath, of counsel.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.


text:
    Louis Napthal, appellee, v. Thomas H. Lynch, appellant.
    Gen. No. 25,919.
    Action of forcible detainer. Judgment for plaintiff. Appeal from the Municipal Court of Chicago; the Hon. John R. Newcomer, Judge, presiding. Heard in this court at the March term, 1920.
    Affirmed.
    Opinion filed June 28, 1920.
    Benjamin H. Ehrlich, for appellant. Justin P. McCarthy, for appellee.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.


text:
    Luella McDonald, appellant, v. John C. Livingston, trading as Livingston Express & Storage Company, appellee.
    Gen. No. 25,931.
    Action in replevin for furniture in warehouse. Judgment for defendant. Appeal from the Municipal Court of Chicago; the Hon. Charles E. McKinley, Judge, presiding. Heard in this court at the March term, 1919.
    Reversed and remanded with directions.
    Opinion filed June 28, 1920.
    Thomas S. Hogan and P. E. Murray, for appellant. John B. Pruehtl, for appellee.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.


text:
    City of Chicago, appellee, v. Julia Johnson, appellant.
    Gen. No. 25,941.
    Conviction on charge of fraudulently obtaining money by means of spirit mediumship. Appeal from the Municipal Court of Chicago; the Hon. Daniel P. Trade, Judge, presiding. Heard in this court at the March term, 1920.
    Reversed.
    Opinion filed June 28, 1920.
    William A. Maeintyre, for appellant. Harry B. Miller and Daniel Webster, for appellee.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.


text:
    Clyde R. Travis, appellee, v. Willie Curry, appellant.
    Gen. No. 26,000.
    Action in replevin for an automobile. Judgment for plaintiff. Appeal from the Municipal Court of Chicago; the Hon. Charles P. McKinley, Judge, presiding. Heard in this court at the March term, 1920.
    Affirmed.
    Opinion filed June 28, 1920.
    Rehearing denied July 12, 1920.
    C. J. Waring, for appellant. No appearance for appellee.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.


text:
    William Zuetell, appellee, v. Charles Benson and Ralph A. Drain, appellants.
    Gen. No. 26,009.
    Trover for a one-story temporary office building. Judgment for plaintiff. Appeal from the Circuit Court of Cook county; the Hon. Prank Johnston, Jr., Judge, presiding. Heard in this court at the March term, 1920.
    Affirmed.
    Opinion filed June 28, 1920.
    Rehearing denied July 12, 1920.
    Sinden, Hassell & Osusky, for appellants; Pred W. Story, of coun-. sel. Butz, von Ammon & Marx, for appellee. Í

   Mr. Presiding Justice Holdom

delivered the opinion of the court.


text:
    Hannah Lavander, appellee, v. Chicago Railways Company and Chicago City Railway Company, appellants.
    Gen. No. 26,018.
    Action to recover for injuries sustained while boarding street car. Judgment for plaintiff. Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding. Heard in this court at the March term, 1920.
    Affirmed.
    Opinion filed June 28, 1920.
    Harry P. Weber, George W. Miller, Arthur J. Donovan and Arthur A. Anderson, for appellants; John R. Guilliams and Warner H. Robinson, of counsel. Bari J. Walker, for appellee.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.


author: Mr. Presiding Justice McSurely

text:
    Roy Passey and Joseph Broadbent, surviving partners trading as George Passey & Company, defendants in error, v. Samuel C. Pirie et al., trading as Carson, Pirie, Scott & Company, plaintiffs in error.
    Gen. No. 25,275.
    Action for malicious prosecution. Judgment for plaintiffs. Error to the Superior Court of Cook county; the Hon. Joseph B. David,. Judge, presiding. Heard in this court at the October term, 1919.
    Reversed with findings of fact.
    Opinion filed June 28, 1920.
    David K. Tone and Hiner, Bunch & Latimer, for plaintiffs in error. ■No appearance for defendants in error.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Harry F. Clemmer, plaintiff in error, v. Anna Lucas, defendant in error.
    Gen. No. 25,784.
    Action in replevin for household furniture. Judgment for defendant. Error to the Municipal Court of Chicago; the Hon. John Richardson, Judge, presiding. Heard in this court at the March term, 1920.
    Affirmed.
    Opinion filed June 28, 1920.
    P. R. Boylan and Herbert R. Lloyd, for plaintiff in error. Abel B. Kretske for defendant in error; Prank T. Huening, of counsel.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Elizabeth Pater, defendant in error, v. Stephen Soltes, plaintiff in error.
    Gen. No. 25,802.
    Action to recover for injuries to person struck by automobile. Judgment for plaintiff. Error to the Superior Court of Cook county; the Hon. Joseph H. Fitch, Judge, presiding. Heard in this court at the March term, 1920.
    Reversed with finding of facts.
    Opinion filed June 28, 1920.
    Lefkow & Lefkow, for plaintiff in error. Charles J. Miehal, for defendant in error.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Paul Pater, defendant in error, v. Stephen Soltes, plaintiff in error.
    Gen. No. 25,803.
    Action for injuries to person struck by automobile. Judgment for plaintiff. Error to the Superior Court, of Cook county; the Hon. Oscar Hebei, Judge, presiding. Heard in this court at the March term, 1920.
    Reversed with finding of facts.
    Opinion filed June 28, 1920.
    Lefkow & Lefkow, for plaintiff in error. Charles J. Miehal, for defendant in error.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Ralph Cudney, appellee, v. H. Paulman & Company, appellant.
    Gen. No. 25,850.
    Action to recover proceeds of the sale of plaintiff's automobile. Judgment for plaintiff. Appeal from the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding. Heard in this court at the March term, 1920.
    Affirmed.
    Opinion filed June 28, 1920.
    William A. Jennings, for appellant. McKinney & Borden, for appellee.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Marion Hauser, plaintiff in error, v. Lawrence McCarthy, defendant in error.
    Gen. No. 25,861.
    Petition for release from arrest made under a capias ad satisfaciendum. Petition granted. Error to the County Court of Cook county; the Hon. John H. Williams, Judge, presiding. Heard in this court at the March term, 1920.
    Reversed and remanded with directions.
    Opinion filed June 28, 1920.
    B. M. Shaffner, for plaintiff in error. Mo appearance for defendant in error.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Hartman Furniture & Carpet Company, appellant, v. Chicago City Railway Company and Calumet & South Chicago City Railway Company, appellees.
    Gen. No. 25,870.
    Action by employer to recover from third person amount paid to employee under Workmen's Compensation Act. Judgment for defendants. Appeal from the Circuit Court of Cook county; the Hon. David M. Brothers, Judge, presiding. Heard in this court at the March term, 1920.
    Affirmed.
    Opinion filed June 28, 1920.
    C. W. Greenfield, for appellant. Harry P. Weber, George W. Miller, Arthur J. Donovan arid Arthur A. Anderson, for appellees; John R. Guilliams and Franklin B. Hussey, of counsel.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    The People of the State of Illinois, defendant in error, v. Mary Ristrom, plaintiff in error.
    Gen. No. 25,882.
    Conviction on charge of fortune telling. Error to the Municipal Court of Chicago; the Hon. Prank H. Graham, Judge, presiding. Heard in this court at the March term, 1920.
    Reversed.
    Opinion filed June 28, 1920.
    Charles A. Churan, for plaintiff in error. Maclay Hoyne and Edward E. Wilson, for defendant in error.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    M. Marraccini and Archie Favro, trading as M. Marraccini & Company, appellees, v. International Brokerage Company, appellant.
    Gen. No. 25,935.
    Action to recover the purchase price of a carload of grapes never delivered. Judgment for plaintiffs. Appeal from the Municipal Court of Chicago; the Hon. Wells M. Cook, Judge, presiding. Heard in this court at the March term, 1920.
    Affirmed.
    Opinion filed June 28, 1920.
    Guy M. Walker, for appellant. H. G. Colson, for appellees.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


author: Mr. Justice Dever

text:
    Kirtland Engel Company, appellee, v. Collins & Company, appellant.
    Gen. No. 25,650.
    Action to recover balance due on a contract for advertising. Judgment for plaintiff. Appeal from the Municipal Court of Chicago; the Hon. Arnold Heap, Judge, presiding. Heard in this court at the March term, 1920.
    Affirmed.
    Opinion filed June 28, 1920.
    Rehearing denied and opinion modified July 12, 1920.
    Morrill & Shannon, for appellant; Nahum Morrill, of counsel. James J. Barbour and Edward H. S. Martin, for .appellee.
   Mr. Justice Dever

delivered the opinion of the court.


text:
    Charles E. Schick and Ottilie L. Schick, appellees, v. J. S. Rodman, appellant.
    Gen. No. 25,741.
    Action of forcible detainer. Judgment for plaintiffs. Appeal from the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in this court at the October term, 1919.
    Affirmed.
    Opinion filed June 28, 1920.

      Certiorari denied by Supreme Court (making opinion final).
    Josiah Burnham and Jacob Levy, for appellant: Northup, Fairbank & Klein, for appellees.
   Mr. Justice Dever

delivered the opinion of the court.


text:
    Ole Sannem, plaintiff in error, v. Hugh McNeil, defendant in error.
    Gen. No. 25,786.
    Action for injuries to person struck by automobile operated on wrong side of street. Judgment for defendant. Error to the Circuit Court of Cook county; the Hon. Charles M. Thomson, Judge, presiding. Heard in this court at the March term, 1920.
    Reversed and remanded.
    Opinion filed June 28, 1920.
    Fred C. Smith, S. P. Douthart and H. E. Wynekoop, for plaintiff in error. Fred H. Atwood, Charles O. Loueks and Vernon R. Loueks, for defendant in error.
   Mr. Justice Dever

delivered the opinion of the court.


text:
    Beulah B. Smith, appellee, v. C. W. Sherman et al., appellants.
    Gen. No. 25,839.
    Action to recover amount of a judgment against plaintiff, undel a contract to assume all liabilities. Judgment for plaintiff. Appeal from the Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding. Heard in this court at the March term, 1920.
    Reversed and remanded.
    Opinion filed June 28, 1920.
    , Adams, Follansbee, Hawley & Shorey, for appellants; Mitchell D. Fóllansbee, of counsel. Henry R. Baldwin, for appellee.
   Mr. Justice Dever

delivered the opinion of the court.


text:
    Lillian Cummins, plaintiff in error, v. M. C. Mullen, defendant in error.
    Gen. No. 25,864.
    Action to recover damages for malpractice. Judgment for defendant. Error to the Circuit Court of Cook county; the Hon. Samuel C. Stough, Judge, presiding. Heard in this court at the March term, 1929.
    Affirmed.
    Opinion filed June 28, 1920.
    Nathan Goldberg and Louis L. Gould, for plaintiff in error; Harry F. Brewer and George C. Guthrie, of counsel. Bates, Hicks & Folonie, for defendant in error; Robert J. Folonie, of counsel.
   Mr. Justice Dever

delivered the opinion of the court.


text:
    L. Sweitzer, trading as Sweitzer & Company, appellee, v. Differential Clock Company, appellant.
    Gen. No. 25,907.
    Action to recover commissions earned by the sale of capital stock. Judgment for plaintiff. Appeal from the Circuit Court of Cook county; the Hon. John P. McGoorty, Judge, presiding. Heard in this court at the March term, 1920.
    Reversed with findings of fact.
    Opinion filed June 28, 1920.
    Rehearing denied July 12, 1920.
    Litzinger, Healv & Reid, for appellant. Samuel M. Dague and John C. DeWolfe, for appellee; Charles Dickerson, of counsel.
   Mr. Justice Dever

delivered the opinion of the court.


text:
    Blakely Oswald Printing Company, appellee, v. George S. Kenny, appellant.
    Gen. No. 25,938.
    Petition to set aside a default judgment on ground of nonservice of summons and false return by sheriff. Motion denied. Appeal from the Municipal Court of Chicago; the Hon. John R. Caverly, Judge, presiding. Heard in this court at the March term, 1920.
    Affirmed.
    Opinion filed June 28, 1920.
    George M. Bagby, for appellant. Vose & Page, for appellee.
   Mr. Justice Dever

delivered the opinion of the court.


author: Mr. Presiding Justice Taylor

text:
    Helen V. Conley by Wilford V. Conley, defendant in error v. Lucille Kuznik Best, executrix of last will of Henry Best, deceased, plaintiff in error.
    Gen. No. 24,391.
    Action to recover damages for personal injuries caused by defective railing. Judgment for plaintiff. Error to the Superior Court of Cook county; the Hon. Joseph B. David, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1919.
    Reversed and remanded for a new trial.
    Opinion filed July 7, 1920.
    Custer & Cameron, for plaintiff in error; John M. Cameron and Timothy F. Mullen, of counsel. T. A. Sheehan, for defendant in error,
   Mr. Presiding Justice Taylor

delivered the opinion of the court.


text:
    Andrew Krausz, by Leopold Krausz, plaintiff in error, v. Chicago City Railway Company et al., defendants in error.
    Gen. No. 25,008.
    Action to recover damages for injuries to person riding on rear of wagon struck by a street car. Judgment for defendants. Error to the Superior Court of Cook county; the Hon. Joseph B. David, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1919.
    Reversed and remanded.
    Opinion filed July 7, 1920.
    Carl Strover and Francis J. Woolley, for plaintiff in error. Charles LeRoy Brown, for defendants in error; John R. Guilliams and Franklin B. Hussey, of counsel.
   Mr. Presiding Justice Taylor

delivered the opinion of the court.


text:
    Joseph Burkowski, appellee, v. Peter Umbrasas, appellant.
    Gen. No. 25,103.
    Action to recover damages for injuries resulting from assault with a knife. Judgment for plaintiff. Appeal from the Superior Court of Cook county; the Hon. John J. Sullivan, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1919.
    Affirmed.
    Opinion filed July 7, 1920.
    D. B. Carmichael and Melnerney & Power, for appellant. John A. Irrmann, for appellee.
   Mr. Presiding Justice Taylor

delivered the opinion of the court.


text:
    Mary A. Offutt, appellee, v. Hermann Heinze, appellant.
    Gen. No. 25,110.
    Action to recover damages resulting from an erroneous survey. Judgment for plaintiff. Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1919.
    Affirmed.
    Opinion filed July 7, 1920.
    Harry H. Felgar, for appellant. Montgomery, Hart & Smith, for appellee; Irving Herriott, of counsel.
   Mr. Presiding Justice Taylor

delivered the opinion of the court.


text:
    City of Chicago, appellee, v. Michael Bartuch, appellant.
    Gen. No. 25,178.
    Conviction on charge of breach of peace. Appeal from the Municipal Court of Chicago; the Hon. Frank H. Graham, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1919.
    Reversed and remanded.
    Opinion filed July 7, 1920.
    Q. J. Chott, for appellant. Samuel A. Ettelson and Harry B. Miller, for appellee; Daniel Webster, of counsel.
   Mr. Presiding Justice Taylor

delivered the opinion of the court.


text:
    City of Chicago, appellee, v. Elmer Stuth, appellant.
    Gen. No. 25,179.
    Conviction on charge of breach of peace. Appeal from the Municipal Court of Chicago; the Hon. Frank H. Graham, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1919.
    Reversed and remanded.
    Opinion filed July 7, 1920.
    Q. J. Chott, fo^ appellant. Samuel A. Ettelson and Harry B. Miller, for appellee; Daniel Webster, of counsel.
   Mr. Presiding Justice Taylor

delivered the opinion of the court.


text:
    A. L. Randall Company, appellee, v. Neils Buck, appellant.
    Gen. No. 25,188.
    Action on a contract of guaranty. Judgment for plaintiff. Appeal from the Municipal Court of Chicago; the Hon. Samuel H. Trude, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1919.
    Affirmed.
    Opinion filed July 7, 1920.
    Walter F. Heineman and Clayton W. Mogg, for appellant. Alfred E. Barr and Frank W. Bigelow, for appellee.
   Mr. Presiding Justice Taylor

delivered the opinion of the court.


author: Mr. Justice O’Connor

text:
    Ernest Drake, appellee, v. Chicago Railways Company, on appeal of Chicago, West Pullman & Southern Railroad Company, appellant.
    Gen. No. 25,069.
    Action to recover damages for injuries sustained by the motorman of a street car struck by a train. Judgment for plaintiff. Appeal from Circuit Court of Cook county; the Hon. John P. MeGoorty, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1919.
    Reversed and remanded.
    Opinion filed July 7, 1920.
    Rehearing denied July 27, 1920.
    Edgar A. Bancroft and David A. Orebaugh, for appellant; Victor A. Remy, of counsel. Charles C. Spencer and Arthur A. House, for appellee; Nathan E. Utt, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Produce Distributors Company, appellee, v. Southern Pacific Company, appellant.
    Gen. No. 25,135.
    Action to recover for deterioration of cantaloupes due to delay in furnishing car. Judgment for plaintiff. Appeal from the County Court of Cook county; the Hon. J. J. Cooke, Judge, presiding. Heard in the Branch Appellate ■ Court at the March term, 1919.
    Reversed and remanded.
    Opinion filed July 7, 1920.
    John A. Sheean, for appellant. Charles A. Butler, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Alfred Peats Company, appellee, v. Nathan Rosenzweig and S. Silverman. Nathan Rosenzweig, appellant.
    Gen. No. 25,161.
    Action on joint contract for merchandise. Action dismissed as to one of defendants; judgment for plaintiff against other. Appeal from the Municipal Court of Chicago; the Hon. John R. Newcomer, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1919.
    Affirmed.
    Opinion filed July 7, 1920.
    Hyman Soboroff, for appellant. Maddoek & Jaffe, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Joe Sirotek, appellee, v. Pellet Magneto Company, appellant.
    Gen. No. 25,172.
    Action for malicious prosecution. Judgment for plaintiff. Appeal from the Superior Court of Cook county; the Hon. Joseph B. David, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1919.
    Reversed with findings of fact.
    Opinion filed July 7, 1920.
    Litzinger, Healy & Reid, for appellant; James J. Finn, of counsel. Gustav E. Beerly and Henry 'E. Ayers, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Nick Korson, appellant, v. William F. Wolf and Henry Schmidt, appellees.
    Gen. No. 25,194.
    Action to recover rent. Judgment on set-off for defendants. Appeaj from the. Municipal Court of Chicago; the Hon. Irwin R. Hazen, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1919.
    Affirmed.
    Opinion filed July 7, 1920.
    Myron W. Whittemore, for appellant. W. Knox Haynes and Michael Feinberg, for appellees.
   Mr. Justice O’Connor

delivered the opinion of the court.


author: Mr. Justice O'Connor

text:
    Esther Nelson, appellee, v. Benny Quill, appellant.
    Gen. No. 25,225.
    Action of forcible entry and detainer. Judgment for plaintiff. Appeal from the Municipal Court of Chicago; the Hon. John A. Swanson, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1919.
    Affirmed.
    Opinion filed July 7, 1920.
    William L. Martin, for appellant. John J. Poulton, Thomas A. Green and Roy C. Merrick, for appellee.
   Mr. Justice O'Connor

delivered the opinion of the court,


author: Mr. Justice Thomson

text:
    Rose Reiter, appellant, v. Sovereign Camp of the Woodmen of the World, appellee.
    Gen. No. 25,072.
    Action upon a death benefit certificate. Judgment for defendant. Appeal from the Municipal Court of Chicago; the Hon. Wells M. Cook, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1919.
    Reversed and judgment here.
    Opinion filed July 7, 1920.
    Rehearing denied and opinion modified July 29, 1920.
    William A. Jonesi, for appellant; I. T. Greenacre, of counsel. Maguire, Mooney & Castagnino, for appellee; De E. Bradshaw, Omaha, Neb., of counsel.
   Mr. Justice Thomson

delivered the opinion of the court.


text:
    D. B. Fisk & Company, appellee, v. David G. Robertson, appellant.
    Gen. No. 25,090.
    Action on a contract of guaranty. Judgment for plaintiff. Appeal from the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1919.
    Affirmed.
    Opinion filed July 7, 1920.
    David G. Robertson, pro se, and Cyrus Heren, for appellant. Helmer, Moulton, Whitman & Whitman, for appellee; Charles R. Holton, of counsel.
   Mr. Justice Thomson

delivered the opinion of the court.


text:
    J. J. Schmitt for use of Charles F. Richmond, appellee, v. Ashbrook Electric Company, appellant.
    Gen. No. 25,099.
    Garnishment proceedings. Judgment for plaintiff. Appeal from the Municipal Court of Chicago; the Hon. Hugh R. Stewart, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1919.
    Reversed.
    Opinion filed July 7, 1920.
    J. R. Beckett, for appellant. Gustave Neuberg, for appellee.
   Mr. Justice Thomson

delivered the opinion of the court.


text:
    R. S. Iwaszkiewicz, trading as Garden City Bottling Works, appellee, v. Improved Crown & Seal Company, appellant.
    Gen. No. 25,130.
    Action for damages caused by defective bottle seals sold under an implied warranty. Judgment for plaintiff. Appeal from the Superior Court of Cook county; the Hon. Joseph B. David, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1919.
    Affirmed.
    Opinion filed July 7, 1920.

      Certiorari denied by Supreme Court (making opinion final).
    Darrow, Sissman & Popham, for appellant; Peter Sissman and William L. Carlin, of counsel. John A. Irrmann, for appellee.
   Mr. Justice Thomson

delivered the opinion of the court.


text:
    Duncan Campbell and A. W. Phelps, trading as Duncan Campbell & Company, appellees, v. Southern Pacific Company, appellant.
    Gen. No. 25,136.
    Action for damages caused by failure to safely transport a car of vegetables. Judgment for plaintiffs. Appeal from the County Court of Cook county; the Hon. J. J. Cooke,' Judge, presiding. Heard in the Branch Appellate Court at the March term, 1919.
    Affirmed.
    Opinion filed July 7, 1920.
    John A. Sheean, for appellant. Charles A. Butler, for appellees.
   Mr. Justice Thomson

delivered the opinion of the court.


text:
    F. R. Duarte, appellee, v. Southern Pacific Company, appellant.
    Gen. No. 25,139.
    Action to recover damages for failure to securely transport a car of sweet potatoes. Judgment for plaintiff. Appeal from the County Court of Cook county; the Hon. J. J. Cooke, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1919.
    Affirmed.
    Opinion filed July 7, 1920.
    John A. Sheean, for appellant. Charles A. Butler, for appellee.
   Mr. Justice Thomson

delivered the opinion of the court.


text:
    Hyman Yablonsky, appellee, v. Lena Lesman et al., on appeal of Lena Lesman, appellant.
    Gen. No. 25,157.
    Action to try right of property replevined by plaintiff and levied upon by defendant. Judgment for plaintiff. Appeal from the Municipal Court of Chicago; the Hon. Hugh R. Stewart, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1919.
    Reversed and remanded.
    Opinion filed July 7, 1920.
    Lester L. Bauer, for appellant. B. E. Cohen, for appellee.
   Mr. Justice Thomson

delivered the opinion of the court.


text:
    Nohr, Ullman & Company, appellee, v. Max Sugarman, appellant.
    Gen. No. 25,162.
    Action to recover damages for failure to deliver butter. Judgment for plaintiff. Appeal from the- Municipal Court of Chicago; the Hon. Dennis W. Sullivan, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1919.
    Affirmed.
    Opinion filed July 7, 1920.
    Hyman Soboroff, for appellant. Pines & Newmann, for appellee; Alvin E. Stein, of counsel.
   Mr. Justice Thomson

delivered the opinion of the court.


text:
    Inland Refining Company, appellee, v. Faunt Brothers, appellant.
    Gen. No. 25,175.
    Action to recover contract price of goods sold and delivered. Judgment for plaintiff. Appeal from the Municipal Court of Chicago; the Hon. Wells M. Cook, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1919.
    Affirmed.
    Opinion filed July 7, 1920.
    Landon & Holt, for appellant; John B. Fruehtl, of counsel. Ruekberg & Burr, for appellee; Benjamin P. Buekberg, of counsel.
   Mr. Justice Thomson

delivered the opinion of the court.


text:
    Esther Ruth Haffenberg, appellant, v. Anton J. Cermak and William Klemm, appellees.
    Gen. No. 25,207.
    Action to try right of property. Judgment for defendants. Appeal from the Municipal Court of Chicago; the. Hon. Edmund K. Jarecki, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1919.
    Affirmed.
    Opinion filed July 7, 1920.
    Grossberg & Haffenberg, for appellant. Gilbert F. Wagner, for appdllees.
   Mr. Justice Thomson

delivered the opinion of the court.


text:
    George P. Bent Company, appellant, v. James E. Coston, appellee.
    Gen. No. 25,231.
    Action of replevin involving vietrola. Judgment for defendant. Appeal from the Municipal Court of Chicago; the Hon. Edmund K. Jarecki, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1919.
    Affirmed.
    Opinion filed July 7, 1920.
    Thompson, Tyrrell & Chambers, for appellant. S. L. and Fred Lowenthal, for appellee.
   Mr. Justice Thomson

delivered the opinion of the court.


author: Mr. Presiding Justice Barnes

text:
    The People of the State of Illinois, defendant in error, v. George Stamatides and George Douras, plaintiffs in error.
    Gen. No. 25,254.
    Motion to withdraw plea of guilty on charge of receiving bank deposits with knowledge of insolvency. Motion denied; judgment on plea. Error to the Criminal Court of Cook county; the Hon. Robert E. Crowe, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1919.
    Affirmed.
    Opinion filed July 14, 1920.
    Rehearing denied July 28, 1920.
    Timothy J. Fell and Stedman & Soelke, for plaintiffs in error. Maelay Hoyne, Edwin J. Raber, Edward E. Wilson and Grover C. Niemeyer, for defendant in error.
   Mr. Presiding Justice Barnes

delivered the opinion of the court.


author: Mr Presiding Justice Barnes

text:
    Mary D. Kerr, defendant in error, v. Charles Kotz et al., plaintiffs in error.
    Gen. No. 25,350.
    Creditor’s bill. Decree for complainant. Error to the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1919.
    Affirmed.
    Opinion filed July 14, 1920.
    Charles S. Williston and H. L. Rexford, for plaintiff in error Charles Kotz. Kerr & Kerr, -for defendant in error.
   Mr Presiding Justice Barnes

delivered the opinion of the court.


text:
    Lillian D. Roth, administratrix of the estate of John Walter Roth, deceased, plaintiff in error, v. Ralph Cudney, defendant in error.
    Gen. No. 25,359.
    Action to recover for death of person crushed between automobile and wall of shed. Judgment for defendant. Error to the Superior Court of Cook county-; the Hon. Joseph H. Fitch, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1919.
    Affirmed.
    Opinion filed July 14, 1920.
    Rehearing denied July 28, 1920.
    Kremer & Greenfield and. Bates, Hicks & Folonie, for plaintiff in error. C. E. Heckler, for defendant in error; Hayes McKinney, of counsel.
   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    Grace A. Moon, appellee, v. Hugh F. Coyle, appellant.
    Gen. No. 25,376.
    Action for damages to automobile by collision with another. Judgment for plaintiff. Appeal from the Municipal Court of Chicago; the Hon. Arnold Heap, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1919.
    Affirmed.
    Opinion filed July 14, 1920.
    Bowles & Bowles, for appellant. Burt A. Crowe, for appellee.
   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    W. F. Dougherty, appellant, v. E. E. Lloyd Paper Company, appellee.
    Gen. No. 25,475.
    Action to recover bonus and salary earned as salesman. Judgment for defendant. Appeal from the Municipal Court of Chicago; the Hon. Wells M. Cook, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1919.
    Affirmed.
    Opinion filed July 14, 1920.
    Samuel H. Gilbert, for appellant. Edmund S. Cummings for appellee.
   Mr. Presiding Justice Barnes

delivered the opinion of the court.


author: Mr. Justice Gridley

text:
    Lena L. Beyerlein, appellee, v. Kraus Brothers Loewy Company, appellant.
    Gen. No. 25,328.
    Action to recover rent. Judgment for plaintiff. Appeal from the Municipal Court of Chicago; the Hon. Wells M. Cook, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1919.
    Affirmed.
    Opinion filed July 14, 1920.
    Max Krauss, for appellant; Ignatz Spitz, of counsel. Cavender & Kaiser and Louis T. Orr, for appellee.
   Mr. Justice Gridley

delivered the opinion of the court.


text:
    J. Greenebaum Tanning Company, appellant, v. Crohon & Roden Company, Ltd., appellee.
    Gen. No. 25,344.
    Assumpsit to recover damages resulting from failure to deliver hides. Judgment for defendant. Appeal from the Municipal Court of Chicago; the Hon. Samuel H. Trade, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1919.
    Affirmed.
    Opinion filed July 14, 1920.
    William K. Pattison, for appellant; Douglas C. Gregg, of counsel. Barry & Crowley, for appellee; Rupert Barry, of counsel.
   Mr. Justice Gridley

delivered the opinion of the court.


text:
    Louis Ernst, defendant in error, v. John F. Doyle, plaintiff in error.
    Gen. No. 25,401.
    Action to recover for injuries to person struck by automobile. Judgment for plaintiff. Error to the Superior Court of Cook county; the Hon. Oscar E. Heard, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1919.
    Affirmed.
    Opinion filed July 14, 1920.

      Certiorari denied by Supreme Court (making opinion final).
    Timothy J. Fell, for plaintiff in error; F. O. Floberg, of counsel. Haight, Adcock, Haight & Harris, for defendant in error.
   Mr. Justice Gridley

delivered the opinion of the court.


text:
    Francis Olinski, appellee, v. The Supreme Tribe of Ben Hur, appellant.
    Gen. No. 25,445.
    Action on death benefit certificate. Judgment for plaintiff. Appeal from the Municipal Court of Chicago; the Hon. Joseph S. LaBuy, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1919.
    Reversed with findings of fact.
    Opinion filed July 14, 1920.
    Busby, Weber, Miller & Donovan and Arthur A. Anderson, for appellant. John Jankowski and Busch, Leesman & Roemer, for appellee.
   Mr. Justice Gridley

delivered the opinion of the court.


author: Mr. Justice Matchett

text:
    Paine Lumber Company, Ltd., appellee, v. Edward T. Filer et al., on appeal of Henry A. Sellen et al., appellants.
    Gen. No. 24,712.
    Motion to approve a report of sale and distribution under a decree of foreclosure. Motion granted. Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1918.
    Affirmed.
    Opinion filed July 14, 1920.

      Certiorari denied by Supreme Court (making opinion final).
    M. M. Jacobs, for appellants. George J. Kuebler, for appellee.
   Mr. Justice Matchett

delivered the opinion of the court.


text:
    Paine Lumber Company, Ltd., defendant in error, v. Edward T. Filer et al., plaintiffs in error.
    Gen. No. 25,321.
    Bill to foreclose a trust deed. Decree for complainant. Error to the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1919.
    Affirmed.
    Opinion filed July 14, 1920.

      Certiorari denied by Supreme Court (making opinion final).
    M. M. Jacobs, for plaintiffs in error. George J. Kuebler, for defendant in error.
   Mr. Justice Matchett

delivered the opinion of the court.


text:
    William Anker, defendant in error, v. Louis Meyer, Sr., et al., plaintiffs in error.
    Gen. No. 24,917.
    Trespass. Judgment for plaintiff by default. Error to the Circuit Court of Cook county; the Hon. Oscar E. Heard, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1919.
    Reversed and remanded.
    Opinion filed July 14, 1920.
    Rathje, Lawlor & Connor, for plaintiffs in error; C. H. Sippel, of counsel. Frederick DeYoung and Edward H. Taylor, for defendant in error; Charles M. Haft, of counsel.
   Mr. Justice Matchett

delivered the opinion, of the court.


text:
    E. J. Knothe, for use of Robert L. Leffingwell, appellant, v. J. H. Hartmann and H. E. Clyde, trading as The Foster Street Pharmacy, appellees.
    Gen. No. 25,296.
    Action in garnishment. Judgment for defendants. Appeal from the Superior Court of Cook county; the Hon. John J. Sullivan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1919.
    Affirmed.
    Opinion filed July 14, 1920.
    Channing L. Sentz, for appellant. Winston, Strawn & Shaw, for appellees; John C. Slade and Harold Beacom, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.


text:
    R. C. Pott, appellant, v. Norwich Union Fire Insurance Society, Ltd., appellee.
    Gen. No. 25,311.
    Action on policy of insurance of automobile for theft. Judgment for defendant. Appeal from the Municipal Court of Chicago; the Hon. Leo J. Doyle, Judge, presiding. Heard in the Branch Appellate Court at the October term,.1919.
    Affirmed.
    Opinion filed July 14, 1920.
    Samuel H. Gilbert, for appellant. Bates, Hicks & Folonie, for appellee.
   Mr. Justice Matchett

delivered the opinion of the court.


text:
    Vasa Ciganovich and Zora Zorich, appellees, v. Green River Distilling Company, appellant.
    Gen. No. 25,383.
    Action to recover amount due on warehouse receipts for whisky. Judgment for plaintiffs. Appeal from the Municipal Court of Chicago; the Hon. John Richardson, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1919.
    Reversed and remanded.
    Opinion filed July 14, 1920.
    Adams, Follansbee, Hawley & Shorey, for appellant; Mitchell D. Follansbee ánd John E. Gavin, of counsel. No appearance for appellees.
   Mr. Justice Matchett

delivered the opinion of the court.


author: Mr. Presiding Justice Niehaus

text:
    Second District.
    Gustaf A. Larson, administrator of estate of Gustaf A. Peterson, deceased, appellee, v. Chicago & Northwestern Railway Company, appellant.
    Gen. No. 6,751.
    Action to recover for death caused by train at crossing. Judgment for plaintiff. Appeal from the Circuit Court of Lake county; the Hon. Claire C. Edwards, Judge, presiding. Heard in this court at the October term, 1919. .
    Affirmed.
    Opinion filed April 21, 1920.
    Rehearing denied June 25, 1920.
    Robert H. Widdieombe, E. R. Hart and Ira C. Belden, for appellant; A. A. McLaughlin, of counsel. Philip S. Brown, H. G. Colson and Harvey C. Coulson, for appellee; H. G. Colson, of counsel.
   Mr. Presiding Justice Niehaus

delivered the opinion of the court.


author: Mr. Presiding Justice Dibell

text:
    J. A. Whitsell, appellant, v. H. F. Hunter, appellee.
    Gen. No. 6,785.
    Action to recover commissions for the sale of a farm. Judgment for defendant. Appeal from the Circuit Court of Knox county; the Hon. George W. Thompson, Judge, presiding Heard in this court at the April term, 1920.
    Affirmed.
    Opinion filed June 29, 1920.
    B. D. Robinson and Williams, Lawrence, Green & Gale, for appellant. Hardy & Hardy and Marsh & Bice, for appellee.
   Mr. Presiding Justice Dibell

delivered the opinion of the court.


text:
    McLeish, Baxter & Flanders, appellants, v. Clara A. Fitzgerald et al., appellees.
    Gen. No. 6,830.
    Action to recover commissions for the sale of a farm.- Judgment for defendants. Appeal from the County Court of Winnebago county; the Hon. Fred B. Carpenter, Judge, presiding. Heard in this court at the April term, 1920.
    Reversed and remanded.
    Opinion filed June 29, 1920.
    Frank M. Byan, for appellants. Knight & Mohr, for appellees.
   Mr. Presiding Justice Dibell

delivered the opinion of the court.


author: Mr. Justice Heard

text:
    Benjamin W. Stafford et al., plaintiffs in error, v. Herbert R. Phelps et al., defendants in error.
    Gen. No. 6,773.
    Bill praying for the construction of a will. Bill dismissed. Error to the Circuit Court of Will county; the Hon. Dorrance Dibell, Judge, presiding. Heard in this court at the October term, 1919.
    Affirmed.
    Opinion filed June 29, 1920.
    Dibell, P. J., took no part.
    George Warner Young, for plaintiffs in error. Frank G. Brumand, for defendants in error. Pence B. Orr, guardian ad litem for Dorothy Marshall.
   Mr. Justice Heard

delivered the opinion of the court.


text:
    George A. Genseke, appellee, v. Illinois Light & Traction Company, appellant.
    Gen. No. 6,779.
    Action for damages to automobile caused by collision with street car. Judgment for plaintiff." Appeal from the Circuit Court of LaSalle county; the Hon. Samuel C. Stough, Judge, presiding. Heard in this court at the April term, 1920.
    Affirmed.
    Opinion filed June 29, 1920.
    Edgar B. Elder, for appellant. Boys, Osborn & Griggs, for appellee.
   Mr. Justice Heard

delivered the opinion of the court.


text:
    Helen Johnson, appellee, v. Palace Livery & Taxicab Company, appellant.
    Gen. No. 6,782.
    Action for damages to automobile caused by collision with a taxicab. Judgment for plaintiff. Appeal from the County Court of Peoria county; the Hon. Robert H. Lovett, Judge, presiding. Heard in this court at the April term, 1920.
    Reversed and remanded.
    Opinion filed June 29, 1920.
    Dailey, Miller, McCormick & Badley, for appellant. Scholes & Pratt, for appellee.
   Mr. Justice Heard

delivered the opinion of the court.


text:
    E. J. Wilmering, plaintiff in error, v. Robert Krieger and Alexander Suprun, defendants in error.
    Gen. No. 6,787.
    Motion to set aside an execution levy and a certificate of redemption. Motion granted. Error to the Circuit Court of Peoria county; the Hon. Theodore N. Green, Judge, presiding. Heard in this court at the April term, 1920.
    Reversed and remanded with directions.
    Opinion filed June 29, 1920.
    A. Jacobson and E. J. Galbraith, for plaintiff in error. Charles A. Kimmel, for defendant in error Alexander Suprun.
   Mr. Justice Heard

delivered the opinion of the court.


text:
    Joseph Martindale, appellee, v. General Roofing Manufacturing Company, appellant.
    Gen. No. 6,795.
    Action to recover for wages earned as a helper on a tar machine. Judgment for plaintiff. Appeal from the Circuit Court of LaSalle county; the Hon. Samuel C. Stough, Judge, presiding. Heard in this court at the April term, 1920.
    Affirmed.
    Opinion filed June 29, 1920.
    E. C. Van Hoorebeke and Kelly, Kelly & Kelly, for appellant. Lee O’Neil Browne, for appellee.
   Mr. Justice Heard

delivered the opinion of the court.


text:
    Estella Grabill, administratrix of estate of Amos Morgan, deceased, appellee, v. Hajo H. Block, appellant.
    Gen. No. 6,801.
    Action to recover for death resulting from collision between automobile and sled on which deceased was coasting. Judgment for plaintiff. Appeal from the Circuit Court of Peoria county; the Hon. Charles V. Miles, Judge, presiding. Heard in this court at the April term, 1920.
    Affirmed.
    Opinion filed June 29, 1920.

      Certiorari denied by Supreme Court (making opinion final).
    McRoberts & Morgan, for appellant. Mansfield & Cowan and S. P. McGrath, for appellee.
   Mr. Justice Heard

delivered the opinion of the court.


text:
    Charles Bender Company, appellant, v. John Pacini, appellee.
    Gen. No. 6,816.
    Suit in replevin for goods obtained through fraud and deceit. Judgment for defendant. Appeal from the Circuit Court of Lake county; the Hon. Claire C. Edwards, Judge, presiding. Heard in this court at the April term, 1920.
    Reversed and remanded.
    Opinion filed June 29, 1920.
    Cooke, Pope & Pope, for appellant. E. V, Orvis, for appellee.
   Mr. Justice Heard

delivered the opinion of the court.


text:
    Kate Carroll, administratrix of estate of John Carroll, deceased, appellee, v. Patrick J. Galligan, appellant.
    Gen. No. 6,824.
    Assumpsit for goods sold and delivered at auction. Judgment for plaintiff. Appeal from the Circuit Court of Kane county; the Hon. Clinton P. Irwin, Judge, presiding. Heard in this court at the April term, 1920.
    Reversed and remanded.
    Opinion filed June 29, 1920.
    Prank A. McCarthy, for appellant; N. B. Tyrrell, of counsel. R. S. Egan and E. C. Tobin, for appellee.
   Mr. Justice Heard

delivered the opinion of the court.


author: Mr. Justice Niehaus

text:
    The People of the State of Illinois, defendant in error, v. Max Fensky, plaintiff in error.
    Gen. No. 6,777.
    Conviction on charge of illegal sale of liquor and violation of Sunday closing law. Error to the County Court of DuPage county; the Hon. S. L. Rathje, Judge, presiding. Heard in this court at the April term, 1920.
    Reversed and remanded.
    Opinion filed June 29, 1920.
    Charles E. Erbstein, Charles E. Selleek and Cameron Latter, for plaintiff in error. Charles W.'Hadley, for defendant in error. ,
   Mr. Justice Niehaus

delivered the opinion of the court.


text:
    A. B. Maxwell, appellee, v. Martin H. McAllister, appellant.
    Gen. No. 6,794.
    Assumpsit to recover an excess paid an undertaker for embalming. Judgment for plaintiff. Appeal from the Circuit Court of Winnebago county; the Hon. Robert K: Welsh, Judge, presiding. Heard in this court at the April term, 1920.
    Affirmed.
    Opinion filed June 29, 1920.
    Reynolds & Reckhow, for appellant. Roy F. Hall, for appellee.
   Mr. Justice Niehaus

delivered the opinion of the court.


text:
    Emma Soedler, appellant, v. Chicago, Ottawa & Peoria Railway Company, appellee.
    Gen. No. 6,822.
    Action to recover for personal injuries caused by runaway horse frightened by defendant’s train. Judgment for defendant. Appeal from the Circuit Court of Peoria county; the Hon. Charles V. Miles, Judge, presiding. Heard in this court at the April term, 1920.
    Affirmed.
    Opinion filed June 29, 1920.
    Sucher & Moore and J. L. Murphy, for appellant. J. T. Hunter, G. H. Page and R. J. Kavanagh, for appellee.
   Mr. Justice Niehaus

delivered the opinion of the court.


text:
    E. R. Spencer, appellee, v. Luther Ridge, appellant.
    Gen. No. 6,832.
    Action to recover for labor and materials furnished to repair a well drill. Judgment for plaintiff. Appeal from the Circuit Court of Whiteside county; the Hon. Frank D. Ramsay, Judge, presiding. Heard in this court at the April term, 1920.
    Affirmed.
    Opinion filed June 29, 1920.
    H. A. Brooks, for appellant. Philip H. Ward, for appellee.
   Mr. Justice Niehaus

delivered the opinion of the court.


text:
    William W. Harding, Appellant, v. J. E. Wiley et al., Appellees.
    Gen. No. 6,783.
    Schools and school districts, § 133

      —when tax paid cannot be recovered. One who, though under protest, pays a school tax to a collector who neither makes nor threatens a distraint therefor, makes such payment voluntarily and not under duress or compulsion, and cannot recover it back, notwithstanding the tax had been certified by a board of education against which a judgment of ouster had been affirmed by the Supreme Court and a hill to enjoin the collection of an earlier tax certified by such hoard had been filed.
    Appeal from the County Court of Peoria county; the Hon. Robert H. Lovett, Judge, presiding. Heard in this court at the April term, 1920.
    Affirmed.
    Opinion filed June 29, 1920.
    E. E. Harding, Elmer J. Slough and Charles S. Stubbles, for appellant.

      Cameron & Anderson, for appellees; George W. Hunt, of counsel.

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

   Mr. Justice Heard

delivered the opinion of the court.

This is an action for money had and received, commenced before a justice of the peace of Peoria county, Illinois, on the 18th day of October, 1919. On hearing without a jury judgment was rendered. Appeal was taken to the county court of said county.

At the January term, 1920, of the county court, by agreement of parties, a jury was waived and case submitted to the court upon a written stipulation of facts and propositions of law. The facts as shown by the stipulation are that in April, 1916, a high school district was attempted to be organized under Act of June 5, 1911, and later appellees were elected members of board of education for said district and entered upon the duties thereof. At the June term, 1916, of the circuit court, quo warranto proceedings were instituted against appellees and on November 27, 1916, a judgment of ouster was entered. Later a writ of error was sued out and heard at April, 1919, term of the Supreme Court and judgment of circuit court was affirmed. People v. Wiley, 289 Ill. 173. Appellees, acting as a board of education, certified levies to the county clerk of Peoria county for the purpose of raising taxes for alleged high school purposes for the district in litigation for the years 1916-1917-1918, and the same were spread against the lands and personal property of the district.

The tax of 1916 was enjoined by relators in quo warranto proceedings, but taxes, or sums of money, in the form and under the assumed authority of the revenue laws of Illinois, as taxes, for the years 1917 and 1918 were paid under protest by appellant after a bill for injunction had been filed agaipst the collection of school tax levied for 1916 and also after a conference with the county collector and the local tax collectors of Brimfield, Jubilee and Rosefield townships for the purpose of allowing appellant and ninety-three other relators the opportunity of paying taxes over which there was no dispute and holding back the amount levied by defendants as a school tax, said conference resulting in the county treasurer (ex-officio county collect- or) notifying said local collectors to collect all taxes against property on their books or none. After the foregoing conference the appellant went to his local town collector, who had accompanied him on that occasion and in whose possession the books were held, and paid the tax for the 2 years in question. The collector made no distraint nor threatened to make any distraint for said tax. The local collector did, however, write upon the receipt delivered to the appellant and upon the margin of the tax books then in his possession, the words “High School Tax No. 154 paid under protest.” This indorsement at the time was made at the request of and on behalf of the appellant.

Appellant was one of the relators in the quo warranto proceedings mentioned above and had full knowledge of all the facts with reference to the purported school district and the tax levies.

In Conkling v. City of Springfield, 132 Ill. 420, a case in which the circumstances of payment were like those in the present case, the court said: “As a general rule, where a person is compelled,' by duress, to pay an illegal tax for which he is not liable, he may recover it back. The rule on this subject is well stated by Shaw, O. J., in Preston v. Boston, 12 Pick. [Mass.] 13, as follows: ' A party who has paid voluntarily, under a claim of right, shall not afterwards recover back the money, although he protested at the time against his liability. * * * But it is otherwise when a party is compelled, by duress of his persdn or goods, to pay money for which he is not liable. It is not voluntary, but compulsory, and he may rescue himself from such duress by payment of the money, and after-wards, on proof of the fact, recover it back.’ ‘The warrant to collect * * * is in the nature of an execution. * * * When, therefore, a.party not liable to taxation is called on, peremptorily, to pay upon such a warrant, and he can save himself and his property in no other way than by paying the illegal demand, he may give notice that he so pays it by duress, and not voluntarily, and by showing that he is not liable, recover it back as money had and received. ’ The rule in the case cited was approved by this court in Bradford v. City of Chicago, 25 Ill. 415. The same rule was sanctioned by the Supreme Court of the United States in Union Pac. R. Co. v. Dodge County Com’rs, 8 Otto 541.

“It is manifest, on a moment’s reflection, that the facts relied upon here do not bring the case within the rule announced in the cases cited. So far as the tax on real estate is concerned, the town collector had no authority, under the statute, to levy on personal property. If payment was refused, it was his duty to return the land delinquent to the county collector, and the county collector, in case, payment was not made to him within the time prescribed by the statute, could only collect by obtaining judgment and selling the land. As to the personal property tax, the collector held a .warrant which authorized him to levy on personal property, but before he was authorized to levy, section 155 of the Revenue Law [ J. & A. ft 9374] required him to call on the persons taxed, at least once, at his place of residence, or business, if in the town of the collector, and demand payment of the tax. This had not been done when the taxes were paid, and while the collector held a warrant, as he could make no levy at the time the taxes were paid it cannot be held that the payment was a compulsory one. Had the taxes been demanded by the collector, and after demand he had attempted to levy on personal property, and to avoid a levy and sale the plaintiff had paid under protest, then he might well insist that the payment was made by compulsion; but such is not this case.”

We are of opinion that under the law of this State we must hold that the payments made by appellant were voluntarily made and not made under compulsion or duress and therefore cannot be recovered.

The judgment of the county court is affirmed.

Affirmed.


text:
    John D. Williams, Defendant in Error, v. G. H. Head, Plaintiff in Error.
    Gen. No. 6,786.
    1. Chattel mortgages, § 203

      —When mortgagee must take possession. Possession of mortgaged chattels must be taken by the mortgagee within a reasonable time after default in payment or other condition broken by the mortgagor, and failure to take possession is a fraud per se as to third persons which is not subject to explanation.
    2. Chattel mortgages, § 203*—what is insufficient taking of possession by mortgagee. That a constable to whom chattel mortgages were given with directions to foreclose went to the mortgagor’s farm on which the chattels were located and told the mortgagor he was foreclosing, posting notice of sale, and then went to the farm of the mortgage^, who was the mortgagor’s son-in-law, about a mile and a half away, and designated him as custodian of the chattels does not constitute such a taking and retaining of possession so as to preserve the lien of the mortgages as against a levy by a subsequent judgment creditor, where the mortgagor remained in possession of the chattels, exercised ownership over them in same manner as before, there were several postponements of the sale and nothing further was done by the mortgagee regarding the possession and custody of the chattels until after the levy of the execution by the judgment creditor.

      3. Chattel mobtgages, § r248

      —what is insufficient to establish foreclosure. That the constable to whom chattel mortgages were given for foreclosure testified, in a trial of right of property between the mortgagee and a subsequent judgment creditor, that he “foreclosed the mortgages” and that he indorsed on the mortgages that he had done so, is not sufficient to establish a legal foreclosure.
    Error to the County Court of Kane county; the Hon. S. N. Hooves, Judge, presiding. Heard in this court at the April term, 1920.
    Reversed and remanded.
    Opinion filed June 29, 1920.
    Harry Gr. Hempstead, for plaintiff in error.
    Robert Gr. Barley, for defendant in error; Charles L. Hunt and Paul H. Burdick, of counsel.

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

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

   Mr. Justice Heard

delivered the opinion of the court.

May 19, 1917, William Deckert, a farmer operating a dairy farm in Kane county, to secure a note for $3,000 maturing October 19, 1917, executed to defendant in error, his son-in-law, a chattel mortgage upon the following described property: 26 acres of wheat; 25 acres of barley; 30 acres of oats; 15 acres of timothy and clover hay in meadow; 35 acres of corn; 1 bay mare 8 years old, weight about 1,200 lbs.; 1 Deere manure spreader; 1 sulky plow; 1 three-horse wooden drag; 2 single row riding cultivators.; 1 walking plow; 1 com planter; 1 two-seated buggy; 2 sets double harness; 1 Deere hay loader; 1 top buggy; 1 single harness; 2 three-horse pulverizers; 1 Victor two-unit milking machine and gasoline engine; 50 milk cans. All being upon the farm occupied by said mortgagor and known as the “Newman farm” in township of Campton, Kane county, Illinois. On May 25, 1917, Deckert executed another chattel mortgage to Williams to secure note of $1,000 of even date therewith, due 5 months after date, thus maturing on the 25th day of October, 1917, upon the same property, together with any and all other stock, tools and machinery and growing crops, now on the farm occupied by said mortgagor, known as the “Newman farm” and owned by C. W. Bolcum, in the township of Campton, Kane county, Illinois. The mortgages each provided that the mortgagor should retain possession of the property until default in the payment of the note. Each mortgage contained a provision that if the mortgagee felt himself insecure he could elect to declare the note due, and provided that upon default in payment the mortgagee should have the right to take possession of, keep and store the same on said premises until sold; or remove, and sell and dispose of the said property, or any part thereof, at public auction, to the highest bidder, after giving 3 days’ notice of the time, place and terms of sale, together with a description of the property to be sold, by notices posted up in three public places in the vicinity of such sale, or at private sale, with or without notice, for cash or on credit, as the said mortgagee, his heirs,, executors, administrators or assigns, agents or attorneys, or any of them, may elect.

Deckert, after giving the mortgages, continued in the possession of the property covered by them. On October 20, 1917, M. E. Sinton, a constable, was given the two mortgages, herein described, by E. Gr. Earley, attorney for Williams, with instructions to foreclose same. Sinton went to the farm occupied by Deckert and told Deckert he was foreclosing the mortgages. He posted notices of sale and then went to the farm of Williams about one and one-half miles distant, and told Williams he would put him in charge of the property as custodian. Deckert was left in possession of the property and continued to operate the farm by milking cows, hauling milk to the village, and otherwise running the farm just the same as he had done up to that time.

Williams was not shown by the evidence to have been on Deckert’s farm from the time he was appointed custodian except on the two different days set for mortgage sale. The first date set for the sale was October 25 and on that date Sinton went to the Deckert farm and postponed the sale indefinitely without fixing any time when the sale would be held and without posting new notices. On October 25 a judgment was entered in the circuit court of Kane county in favor of plaintiff in error and against William Deckert on which immediate execution was issued and placed in the hands of the sheriff and on which a levy was made on the same date. No new custodian was appointed by Sinton or nothing further done with reference to the sale until after November 1, when he again, posted notices of sale of the property to be held November 9. He did nothing further, however, about a custodian or about taking possession of the property and Deckert still continued to have possession of and use the property in the same manner as he had been doing for several years up to that time.

On November 9, Sinton again postponed the sale indefinitely by order of mortgagee’s attorney and he then returned mortgage and other papers which he had in his possession in connection therewith to Earley, the attorney for mortgagee.

On November 20, a notice was filed in the county court by Williams, mortgagee, and a trial of right of property had under the statute, resulting in a verdict and judgment for Williams, from which the record was brought to this court on writ of error for review. Subsequent to the filing of said petition a stipulation was entered into between the parties, whereby a sale of the chattel property was had without prejudice to the rights of the parties, the proceeds to be held by the clerk of the sale pending the final determination of the rights of the parties. The vital question in the case is whether or not under these circumstances the mortgagee can hold the mortgaged property as against the levy of an execution in behalf of a judgment creditor.

In Reed v. Eames, 19 Ill. 594, it was said: “Suffering property to remain in the hands of the vendor or mortgagor, after default, is a fraud, because the real ownership being in one person, and the ostensible ownership in another, gives the latter a false credit. Some courts have held that such facts are open to explanation—that they are, at most, but evidence of fraud. We think the better rule is—the safest and founded in the best policy—to hold that such facts constitute fraud per se, and not to be explained.”

In Thompson v. Yeck, 21 Ill. 73, the court says: “Possession of personal property being one of the strongest indications of ownership, the policy of the law is, that so soon as the credit expires, the mortgagee shall take possession, so that others may not be deceived and defrauded by the appearance of ownership in one, while the title is really in another. ’ ’

In Burk v. Faber, 188 Ill. App. 421, it was said: “A chattel mortgage ceases to be a lien as to third parties if the mortgagee upon default does not take possession. Slade v. Kurrus, 133 Ill. App. 99. It is clearly the law that if the mortgagee fails to take possession of the mortgaged property within a reasonable time after the maturity of the mortgage, and it is allowed to remain in the possession of the mortgagor, that such is a fraud as to creditors and purchasers, and such a fraud as cannot be explained.”

In Albert Pick & Co. v. Spoor, 212 Ill. App. 612, it was said: “It has long been the law of this State that possession of mortgaged chattels must be taken by the mortgagee within a reasonable time after default in payment or other condition broken by the mortgagor; that failure to take such possession is a fraud per se as to third parties, not subject to explanation.”

In Shannon v. Wolf, 173 Ill. 253, it was said: “The law of Illinois has always been that if the mortgagee in a chattel mortgage neglects to reduce the property to possession upon the default of the mortgagor, or within a reasonable time thereafter to be determined by the circumstances of the parties, he loses his lien as against the rights of third persons, and that, as affecting the interests and liens of the latter, the mortgage becomes a void instrument.”

The next question which naturally arises is what constitutes a taking of possession within the meaning of the law. To constitute a valid levy of an execution on personal property it is necessary that the officer levying the same “take possession” of the property levied upon. Windmiller v. Chapman, 139 Ill. 163.

In construing what constitutes taking possession of personal property by an officer, in levying an execution, in Minor v. Herriford, 25 Ill. 344, the court said: “The practice in the different States of the Union differs somewhat, but all agree that the property must be within the power and control of the officer when the levy is made, and he must take it into his possession in a reasonable time thereafter, unless a delivery bond is tendered, and in such an open, public and unequivocal manner as to apprise everybody that the property has been taken in execution. He must so deal with the property, in order to constitute a good levy, as, without the protection of an execution, his acts would make him a trespasser.” This rule was followed in Havely v. Lowry, 30 Ill. 446; Davidson v. Waldron, 31 Ill. 120; Windmiller v. Chapman, supra, and many other cases.

In Martin v. Duncan, 156 Ill. 274, in passing upon the question as to what constituted a taking possession of mortgaged personal property by a mortgagee, the Supreme Court said: “It was, therefore, important in this case, as sustaining the validity of the transfer to defendant in error, to show that he was in possession when the property was attached; that there had been a change of possession. Up to May 16, defendant in error had been in possession as agent of his brother, and if, on May 28, he was in possession for himself, the change in the character of the possession should have been indicated by such outward, open, actual and visible signs, as could be seen and known to the public, or persons dealing with the goods. (Claflin v. Rosenberg, 42 Mo. 439.) ”

In First Nat. Bank of Crockett v. George R. Barse Live Stock Commission Co., 198 Ill. 232, the court said: “No particular mode of taking or retaining possession is required. It is not necessary that the property be delivered to the mortgagee in person—delivery to his agent is equally effectual. No removal of the property from the mortgaged premises is essential if the mortgagee has actual control of it there. (Jones on Chattel Mortgages, sec. 180; McPartland v. Read, 11 Allen [Mass.] 231.) What constitutes a change of possession depends much upon the character and situation of the property. * * * From an examination of the authorities it clearly appears if the mortgagee, through his agent, have the property in his view and under his control, and by exercising control over it by virtue of his mortgage indicates an intention of depriving the mortgagor of his apparent ownership and possession, it is sufficient to protect the property from the claim of third parties. ’ ’

In Funk v. Staats, 24 Ill. 632, the court said: “In determining whether the property in this case was, in good faith, reduced to possession by the mortgagee, the court had the right to consider all the circumstances attending the transaction. And a sufficient delivery and possession on a sale of chattels, to operate against creditors and purchasers, will be sufficient on a foreclosure of a chattel mortgage. The reason of the rule ón the one case is the same as in the other, and hence a delivery and possession which will sustain the one will he sufficient in the other.”

In Ticknor v. McClelland, 84 Ill. 471, and in' many other cases it has been held that any sale of personal property, where it remains with the vendor, if it is of that character of property that is capable of being removed, is fraudulent in law as to creditors.

In 35 Cyc. 304, it is said: “In order to pass title as against creditors of or subsequent purchasers from the seller the delivery must be a delivery in its natural sense, that is, a change of possession, and that there must be an actual, visible and continuous change of possession, such as to apprise those accustomed to deal with the seller that the ownership of the goods is changed, or in other words such a manifest, continued and open change of possession as to indicate to the world a change of title; and so it is not sufficient that there has been an actual delivery and actual change of possession if the goods are returned to the apparent possession of the seller so as to indicate there has been no actual change of title.”

In Jones on Chattel Mortgages, 375, it is said: “A delivery and possession, which would be sufficient to operate against creditors and purchasers on a sale of personal property, is sufficient on foreclosure of a mortgage. The mortgaged property need not in all cases be removed from the premises of the mortgagor, particularly if it is so heavy that its removal would be difficult and expensive. If the mortgagee keeps it under his control that is sufficient. There must be something more than a mere formal and temporary change of possession. There must be a real, permanent delivery and change of possession in order to preserve the lien of the mortgage.”

In George Walter Brewing Co. v. Lockery, 134 Wis. 81, 114 N. W. 120, in construing a statute providing that no mortgage of chattels shall be valid as against another than the mortgagor, if unrecorded, unless possession be delivered to and retained by the mortgagee, the court said: “It has been many times declared by this court, both before and since Morrow v. Reed [30 Wis. 81], that the possession necessary to give validity to a chattel mortgage like that essential, under section 2310 [Stat. 1898], to preclude presumption of fraud in a sale, must be actual, open, unequivocal, and exclusive, and accompanied by the ordinary indicia of ownership and control such that those familiar with the situation would naturally draw the inference of a change of ownership. Bank v. Rugee, 59 Wis. 221, 18 N. W. 251; Schneider v. Kraby, 97 Wis. 519, 73 N. W. 61; Missinskie v. McMurdo, 107 Wis. 578, 83 N. W. 758. The delivery required by these statutes is intended as evidence to the world that from the time thereof the grantee or the mortgagee has acquired from the grantor the ownership and control of the property. It differs radically from that mere technical delivery which, as between the parties, is held to evince intent to presently change the title in contradistinction from a mere agreement to transfer some time in the future. ”

Applying the rules of law above stated to the present case, we are of the opinion that defendant in error lost the lien of his chattel mortgage as against plaintiff in error by not taking and retaining possession of the mortgaged property as required by law. It is true that Sinton, the constable, testified “that he foreclosed the mortgages” and indorsed on each mortgage that he had so done, but this statement was merely a conclusion of the witness, and his testimony as to what he actually did falls far short of a legal foreclosure.

The judgment will be reversed and the cause remanded to the county court of Kane county.

Reversed and remanded.


text:
    Louise C. Carr and Frank W. Williams, Appellants, v. Lizzie Butterworth et al., Appellees.
    Gen. No. 6,792.
    1. Brokers, § 36

      —when contract of broker is performed. Where an owner lists his real estate with a broker for sale, the broker has earned his commission where the broker has procured a prospective purchaser who is able, ready and willing to enter into a contract for purchase on the owner’s terms and the owner refuses to enter into such contract.
    2. Brokers, § 38*—when performance is shown by production of purchaser. A broker with whom property is listed by the owner earns his commission where he produces a prospective customer whom the owner, without fraud on the broker’s part, accepts and with whom the owner enters into a valid, binding, enforceable contract for sale, and it is immaterial whether the contract is carried out or fails to be carried out by reason of the prospective purchaser’s default.
    3. Brokers, § 85*—what evidence as to performance is inadmissible. The legal effect of a written instrument is a matter to be determined by the court from the instrument itself, and it is not proper to permit a witness, in testifying, to characterize it as an option, over the objection of the adverse party who contends that it is an enforceable contract for sale of the property.
    4. Vendor and purchaser, § 16*—when contract of sale instead of option is shown. A writing which is headed “Articles of agreement for warranty deed with forfeit,” by the terms of which one of the parties unqualifiedly agrees to pay for certain real estate, and the other agrees to sell and convey to him when the payments are made, which is mutual ando by its terms is made binding on the heirs, executors, administrators and assigns of both parties, and which provides for damages for a breach of the contract by either party, different measures of damages being provided for breaches by different parties, is not an option but a contract for sale.
    5. Vendor and purchaser, § 229*—what contracts may be enforced by court of equity. That a contract for the sale of land contains a provision for liquidated damages in case of breach is not, alone, ground for the refusal of equity to enforce it.
    6. Vendor and purchaser, § 4*—what are essentials of sale. A contract for the sale of real estate is not required to be enforceable in equity to render it a valid, binding, enforceable contract, as it may nevertheless be enforceable at law.
    Appeal from the Circuit Court of Winnebago county; the Hon. Robert K. Welsh, Judge, presiding. Heard in this court at the April term, 1920.
    Reversed and remanded.
    Opinion filed June 29, 1920.
    Garrett, Maynard & Hull, for appellants.
    Charles W. Ferguson, Lathrop, Lathrop & Brown and Patrick H. O ’Donnell, for appellees.

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

   Mr. Justice Heard

delivered the opinion of the court.

This is an action in assumpsit brought by appellants against appellees in the circuit court of Winnebago county for commissions as real estate brokers. A trial before the court without a jury resulted in a judgment for appellees against appellants, from which judgment this appeal is prosecuted.

The undisputed evidence shows that appellants were real estate brokers in Rockford and that appellees, who were the owners of a business property in that city, were desirous of selling the same and listed it with appellants; that appellants found a prospective purchaser in the person of Edward E. Keating; that after negotiations October 11, 1917, Keating drew up duplicate writings with reference to the proposed purchase and signed them; that on that day appellant Carr took these writings together with a check of Keating’s for $300 to the appellee Lizzie Butterworth; that after some conversation Lizzie Butterworth in the presence of appellee John Felch signed the writings and accepted the $300 check; that she retained one of the writings and that the other was taken by Carr and given to Keating; that a few days thereafter Keating came to Rockford and procured- the signature of appellees Felch and Sheaff to his copy of the said writing, but that they did not sign the writing retained by appellee Butterworth; that shortly thereafter Keating placed the writing signed by appellees on record in the office of the recorder of deeds of said county; that but one paper was ever signed by Keating and all of appellees; that Keating prior to the trial destroyed the writing signed by himself and appellees; that a copy of the record of said writing certified by the recorder of deeds of said county is as follows:

“Agreement.
“Articles of Agreement, Made this eleventh day of October, A. D. 1917, Between Mrs. Lizzie Butterworth of Rockford, Ills, party of the first part and Edward E. Keating, of Huntley, Ills., party of the second part:
“Witnesseth, That if the party of the second part shall first make the payments, and perform the covenants hereinafter mentioned on his part to be made and performed, the said party of the first part hereby covenants and agrees to convey and assure to the said party of the second part, in fee simple, clear of all incumbrances, as shown by an authentic abstract made' by a regular abstractor showing a good merchantable and complete title, and by a good and sufficient Warranty Deed, the following described Real Estate, situated in the County of Winnebago and State of Illinois, to-wit:
“Lot (9) Nine in block (3) Three, West Rockford, Ill., said lot being known as (120) Number One Hundred and Twenty North Main street, Rockford, Ill. Size of said lot being (66) sixty-six feet on North Main street by (156) feet deep, said abstract above mentioned to be furnished by October 20th, 1917, and to be continued to date of delivery of deed; the said party of the second part hereby covenants and agrees to pay to the said party of the first part the sum of Sixty-six Thousand Dollars ($66,000), in the manner following :
“Three Hundred Dollars cash in hand, receipt of which is hereby acknowledged. The further sum of Sixty-five Thousand’ Seven Hundred Dollars. To be paid as follows: The sum of ($19,700) Nineteen Thousand Seven Hundred Dollars in cash, also second party is to cause to give back on above property a first Trust Deed securing notes aggregating Forty-six Thousand Dollars which notes are to run ten years and to draw semi-annual interest at the rate of 5%%. This deal is to be closed as soon as abstract is found to be merchantable and at the office of Frank W. Williams, Room 415 Ashton Bldg., Rockford, Ill., and to pay all taxes, assessments, or impositions that may be legally levied or imposed upon said land, subsequent to the year 1917. And in case of failure of said party of the second part to make either of the payments, or any part thereof, perform any covenants on his part hereby made and entered into, this contract shall, at the option of the party of the first part be forfeited and determined, and the party of the second part shall forfeit all payments made by him on this contract, and such payments shall he retained by the said party of the first part in full satisfaction and in liquidation of all damages by her sustained, and she shall have the right to re-enter and take possession of the premises aforesaid, the party of the second part hereby agrees to pay to the party of the second part the sum of $300 as a forfeit in full of all liquidated damages in case of his failure to perform the covenants of this contract.
“It is Mutually Agreed, by and between the parties hereto, that the time of payment shall be the essence of this contract, and that all the covenants and agreements herein contained shall extend to and be obligatory upon the heirs, executors, administrators and assigns of the respective parties.
“In Witness Whereof, the Parties to these presents have hereunto set their hands and seals, the. day and year above written.
Lizzie Butterworth (Seal)
Edward E. Keating (Seal)
John Felch (Seal)
Alice M. Sheaffi (Seal)
“Filed for record on the 30th day of October, A. D. 1917, at 2:40 o’clock, P. M.
“No. 123323 (Comp.)
John A. Bowman, Recorder.”

That the property was never purchased by Keating; that Keating in April, 1918, gave appellees a quitclaim deed of all interest in the property in question which /had accrued to hinj by virtue of said writing, which in the quitclaim deed is called a contract or option; that said deed contained a clause as follows: “The delivery and' acceptance of this deed being also intended as a cancellation of said contract or option, and a cancellation of all rights of each of the parties against the other, by reason thereof, and a settlement in full between the parties on all accounts ’ ’; that appellees retained the $300 paid by Keating and have paid appellants no commissions.

The law in this State is well settled that where an owner lists his" real estate with a broker for sale, the broker has earned his commission (1) where the broker has procured a prospective purchaser, who is able, ready and .willing to enter into a contract for purchase on the owner’s terms and the owner refuses to enter into such contract, or (2) where the broker produces a prospective purchaser, whom the owner, without fraud on the part of the broker, accepts, and with whom the owner enters into a valid, binding, enforceable contract for sale, and in the latter case it is immaterial whether the contract is carried out or fails to be carried out by reason of the default of the prospective purchaser. Monroe v. Snow, 131 Ill. 136; Fox v. Ryan, 240 Ill. 391; Farrell v. Almgren, 211 Ill. App. 654.

Appellees introduced in evidence what they contend was the original writing signed by Keating and Mrs. Butterworth and retained by her and contend that the writing signed by Keating and the three appellees was a duplicate of this paper with the exception of being signed by all three appellees. This writing was certified to this court by the trial judge and now appears in words and figures as follows:

“Articles of Agreement, Made this Eleventh day of October A. D. 1917, between Mrs. Lizzie Butterworth of Rockford, Ills., party of the first part and Edward E. Keating of Huntley, Ills., party of the second part:
“Witnesseth, That if the party of the second part shall first make the payments, and perform the covenants hereinafter mentioned on his part to be made and performed, the said party of the first part hereby covenants and agrees to convey and assure to the said party of the second part, in fee simple, clear of all incumbrances, as shown by an authentic abstract made by a regular abstractor, showing a good merchantable and complete title, and by a good and sufficient Warranty Deed, the following described Real Estate, situated in the County of Winnebago and State of Illinois, to-wit: Lot (9) Nine in block (3) Three. West Rockford, Illinois. Said lot being known as (120) Number One Hundred Twenty North Main street, Rockford, Ills. Size of said lot being (66) Sixty-six feet on North Main St. by (156) feet deep said abstract above mentioned to be furnished by October 20th, 1917, and to be^continued to date of delivery of deed; and the said party of the second part hereby covenants and agrees to pay to the said party of the first part the sum of Sixty-six Thousand Dollars ($66,000.00) in the manner following: Three Hundred Dollars cash in hand Receipt of which is hereby acknowledged. The further sum of Sixty-five Thousand Seven Hundred Dollars. To be paid as follows: The sum of $19,700.00, Nineteen Thousand seven Hundred Dollars in cash. Also second party is to cause to be given back on above property, a first Trust-deed securing notes aggregating Forty-six Thousand Dollars ($46,000). Which notes are to run ten years and to draw semi-annual interest at the rate of 5y3% per annum. This deal is to be closed as soon as abstract is found to be merchantable. At the office of Frank W. Williams, Room 415, Ashton Bldg., Rockford, Ills., and to páy all taxes, assessments, or impositions that may be legally levied or imposed upon said land, subsequent to the year 1917. And in case of failure of said party of the second part to make either of the payments, or any part thereof, or perform any covenants on his part hereby made and entered into, this contract shall be forfeited and determined, and the party of the second part shall forfeit all payments made by him on this contract, and such payments shall be retained by the said party of the first part in full satisfaction and in liquidation of all damages by her sustained, and she shall have the right to re-entér and take possession of the'premises aforesaid, the party of the second part hereby agrees to pay to the party of the second part the sum of $300.00 as a forfeit in full of all liquidated damages in case of her failure to perform the covenants of this contract.
“It is Mutually Agreed, By and between the parties hereto, that the time of payment shall be the essence of this contract; and that all the covenants and agreements herein contained shall extend to and be obligatory upon the heirs, executors, administrators and assigns of the respective parties.
“In Witness Whereof, The Parties to these presents have hereunto set their hands and seals, the day and year first above written.
“Sealed and Delivered in Presence of
Lizzie Butterworth (Seal)
Edward E. Keating (Seal)
(Seal)
(Seal)”

Appellants contend that this latter instrument has been changed since execution and that such change is apparent on the face of the instrument. This latter instrument was not the writing entered into between Keating and appellees and is only material, if at all, as bearing upon the contents of the writing signed by Keating and. appellees and on the question as to whether or not the recorder of deeds of Winnebago county failed to correctly record such writing.

Appellees earnestly contend that the writing entered into between Keating and appellees was not an enforceable contract for sale, but was only an option. Keating was allowed over appellants’ objection when testifying to characterize the writing as an option. This was not proper as the legal effect of the instrument was a matter to be determined by the court from the instrument itself.

In 39 Cyc. page 1179, it is said: “There is a contract of sale and not a mere option when the vendor is bound to convey to the purchaser upon the terms of the contract agreed upon and the latter is bound to purchase, even though the contract may be designated therein as an option.” In 39 Cyc. page 1233, it is said: “In such contract two elements exist: First, the offer to sell, which does not become a contract until accepted; second, the completed contract to leave the offer open for the specified time.” In Adams v. Peabody Coal Co., 230 Ill. 469, it was said: “An option is a continuing offer which the offerer may not withdraw until the expiration of the time limited.” In Ide v. Leiser, 10 Mont. 5, 24 Pac. 695, it was said: “There may be (1) a sale of lands; (2) an agreement to sell lands; and (3) what is popularly called an ‘option.’ The first is the actual transfer of the title from grantor to grantee by appropriate instrument of conveyance. The second is a contract to be performed in the future, and if fulfilled results in a sale. It is a preliminary to a sale, and is not the sale. Breaches, rescission or release may occur by which the contemplated sale never takes place. The third, an option, originally is neither a sale nor an agreement to sell. It is simply a contract by which the owner of property (real estate being the species we are now discussing) agrees with another person that he Shall have the right to buy his property, at a fixed price, within a time certain. He does not sell his land; he does not then agree to sell it; but he does then sell something, viz., the right or privilege to buy at the election or option of the other party. The second party gets, in prcesenti, not lands, or an agreement that he shall have lands, but he does get something of value; that is, the right to call for and receive lands if he elects. The owner parts with his right to sell his lands, except to the second party, for a limited period. The second party receives this right, or rather, from his point of view, he receives the right to elect to buy. That which the second party receives is of value, and in times of rapid inflations of prices, perhaps of great value. A contract must be supported by a consideration, whether it be the actual sale of lands, an agreement to sell lands, or the actual sale of the right to demand the conveyance of lands. A present conveyance of lands is an executed contract. An agreement to sell is an executory contract. The sale of an option is an executed contract; that is to say, the lands are not sold; the contract is not executed as to them; but the option is as completely sold and transferred in prcesenti as a piece of personal property instantly delivered on payment of the price. Now this option, this article of value and of commerce, must have a consideration to support its sale. As it is distinct from a sale of lands, or an agreement to sell lands, so its consideration must be distinct; although, if a sale of the lands afterwards follows the option, the consideration for the option may be agreed to be applied, and often is, as a part payment on the price of the land.” This case is cited with approval in Fulenwider v. Rowan, 136 Ala. 287, 34 So. 975.

In 28 Amer. & Eng. Encyc. of Law 77, it is said:

“The right to purchase land is frequently the subject of contract and such right may be styled an option. It is not an estate in land and an option is not a contract of sale. An option must be for a limited time, and if none is mentioned, will remain in force for a reasonable time to be determined under all the circumstances of the case.”

In Westervelt v. Huiskamp, 101 Iowa 196, 70 N. W. 125, in construing a clause in a contract which read as follows: “And it is hereby agreed and covenanted by the parties hereto that time and punctuality are essential ingredients in this contract, and, in case the second party shall fail to malee the payments aforesaid, and each of them, punctually, and upon the strict terms and times above limited, and likewise to perform and complete each and all of his agreements and stipulations aforesaid, strictly and literally, without any failure or default, then this contract, so far as it may bind said first party (the United States Investment Company) shall become utterly null and void,” the court said: “It is the general rule that a stipulation, in a contract for the sale of land, that it shall be void in case the purchaser fails to perform the conditions of the contract, is for the benefit of the vendor, to be enforced or waived by him at his pleasure. Sigler v. Wick, 45 Iowa 692. The rule is stated in Warv. Vend. 820, as follows: 'A reserved right of forfeiture is the exclusive privilege of the vendor. If the vendee fails to fulfil the conditions of his agreement, the vendor may treat it as void or as in force. If money has been paid on the contract, he may retain it as a forfeit, or, if nothing has been received, he may elect to regard it in force, and sue for the purchase price, or he may declare it forfeited, and proceed for the recovery of the liquidated or other damages. The vendor, on the other hand, has no voice in terminating or continuing the agreement, and, even where an apparent option is given, where the contract provides that the purchase money shall be paid by instalments, and that, if the purchaser at any time fails to meet his payments, he will surrender his possession of the land to the vendor, this does not entitle the purchaser to elect whether he will pay the purchase money, or surrender the possession of the land. ’ ” In Grant v. Beronio, 97 Cal. 496, 32 Pac. 556, the writing in controversy contained a provision: “In case of failure to make deed, money paid to be returned.” In construing the writing the court held it to be a contract for sale and not an option, and said: “The agreement between the parties hereto was an unconditional contract on the part of the defendant to convey the land to the plaintiff upon his complying with its terms. The provision therein that, in case of failure to make the deed, the money was to be returned, was for the benefit of the purchaser alone, and did not give to the vendor the option of conveying the lot or not, as he might choose. He could not refuse to make the deed, and thus, by his own act, against the will of the purchaser, relieve himself of his obligation to convey.”

In Mason v. Caldwell, 10 Ill. 196, a writing which contained the following clause was held enforceable as a bond for a deed of real estate: “But should the said John R. Caldwell, or his assignee, fail to pay the said sum of money specified in said notes, within ten days after the same became due, he hereby forfeits all claim to' said lots, and all moneys paid thereon, and this bond, in such event, shall be void, both in law and equity, and the title to said lots shall continue in the original proprietor as if no sale has been made.” In construing this clause the court said: “The defendant contends, that he can take, advantage of this clause, and because he did not pay the money as he had agreed to do, he is exonerated from paying it at all. It is argued, that because the obligee, in the event of nonpayment, may treat the bond as determined, mutuality requires that the obligor should have the same privilege. This argument refutes itself. It is as much a felo de se, as it would make the bond. To admit the defendant’s position is to leave everything in his own hands. It allows him-to defeat, or make the bond operative, as may best subserve his interest, without any discretion on the part of the obligee. It converts the bond into a naked proposition absolutely binding on the seller, but which the purchaser may accept or reject by the payment or nonpayment of the money. By thus putting the entire control in the hands of the latter, all mutuality is destroyed. It was the undoubted intention of both parties, when they inserted this clause, to provide a penalty to insure a prompt performance by the purchaser. By performance he leaves no discretion in the hands of the obligee, but has a right to enforce the bond, while, if he does not, he agrees to leave it optional with the other party to avoid the contract or not. Here was a real mutuality; for the purchaser had the first discretion, and if he placed himself in the power of the party, it was by his own voluntary neglect to pay the money, as he had bound himself to do, and it was but a just penalty for violating his obligation. But this is not a case of first impression. This precise question has been fully settled by a number of decisions in other States. The first case to which we shall refer is that of Canfield v. Westcott, 5 Cow. (N. Y.) 270; and two other cases are given in a note to that, where the same court had held the same rule, in the last of which (Church v. Ayres) almost the identical words are used which are found in the avoiding clause of this bond: ‘Otherwise, these presents to be void both at law and in equity.’ In all of these cases the court held that the avoiding clause was inserted for the benefit of the obligee, and that the obligor could not take advantage of his own neglect in the nonpayment of the consideration. The same construction was. given to a similar clause in the case of Manning v. Brown, 1 Fairf. [Me.] 49. The same principle was sustained in Kentucky, in Barbour’s Ex’rs v. Brookie, 3 J. J. Marsh. 511. But it hardly requires authority to support what is so easily demonstrated by reason. ’ ’

Applying the rules deduced from these authorities, we are of the opinion that neither the writing signed by-Keating as it appears upon the records of the recorder of deeds of Winnebago county nor the writing as claimed by appellees is an option but each of them is an agreement for sale.

The writing as claimed by appellees had none of the distinguishing characteristics of an option, but all its terms and provisions were those of a contract for sale. It is headed “Articles of Agreement for warranty deed with forfeit.” By its terms Keating unqualifiedly agrees to pay for the property in question and appellees agree to sell and convey it to him when the payments are made. It is mutual, and by its terms is made binding upon the heirs, executors, administrators and assigns of both parties. It provides for damages for a breach of the contract by either party and provides different measures of damages for breaches of the contract by the different parties.

It is contended by appellees that the writing in question is not a valid, enforceable contract on account of the clause which they claim reads: “And in case of failure of said party of the second part to make either of the payment, or any part thereof, or perform any covenants on his part hereby made and entered into, this contract shall * * * be forfeited and determined, and the party of the second part shall forfeit all payments made by him on this contract, and such payments shall be retained by said party of the first part in full satisfaction and in liquidation of all damages by her sustained.” The main reason assigned for it not being enforceable is that it by its terms provides for liquidated damages and for that reason cannot be enforced in a court of equity. When a contract for sale contains a provision for liquidated damages in case of breach a court of equity will not for that reason, alone, decline to enforce it in a court of equity. Lyman v. Gedney, 114 Ill. 388; Koch v. Streuter, 218 Ill. 546; Mikelaiczak v. Kruppa, 254 Ill. 209. In Gron owski v. Jozefowicz, 291 Ill. 266, it was said: “If it had been stipulated in the written agreement that upon a failure to perform the contract the party refusing to perform shall pay $500 as liquidated damages, that provision would not prevent a court of equity from decreeing a specific performance.”

A contract for the sale of real estate need not, however, be enforceable in a court of equity to be a valid, binding, enforceable contract. Contracts are enforceable at law as well as equity, and no one would question for a moment that were Keating to bring suit against appellees for the $300 paid by him, the court would enforce the contract in their favor.

We find from the undisputed facts in the case that appellees listed their property with appellants for sale; that appellants produced a prospective purchaser who was acceptable to appellees and with whom, without fraud on the part of appellants, appellees entered into a valid, binding, enforceable contract and that therefore appellants were entitled to their commissions, amounting to $1,650.

The judgment is not supported by the evidence and the cause is therefore reversed and remanded.

Reversed and remanded.