text:
    In the Matter of the Estate of Barbara Lukas, deceased. John F. Devine, Administrator, Appellee, v. Lizzie Stepanek, Appellant.
    Gen. No. 17,547.
    1. Gifts—evidence. Certificates of deposit were not received as a gift inter vivos where the gift was conditional, as evidenced hy statements of the donor and hy the conduct of the donee in retaining such certificates for ten months, until the donor’s death, without attempting to collect them, when she collected them, indorsing them as administratrix and presenting her letters of administration.
    2. Evidence—inconsistent statements. Where an administratrix claims securities as a gift from her intestate, her evidence given at the hearing in the probate court may he read in the circuit court where it tends to show admissions and statements inconsistent with her claim.
    Appeal from the Circuit Court of Cook county; the Hon. H. Sterling Pomeroy, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Affirmed.
    Opinion filed December 19, 1912.
    Novak & Pollack, for appellant.
    Lawrence A. Cohen and Lucius J. M. Malmin, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.

After the death of Barbara Lukas, Lizzie Stepanek, the appellant, claiming to be a daughter of the deceased, applied for and was granted letters of administration on her estate. - She thereupon proceeded to collect the money on two certificates of deposit, one for two hundred dollars and the other for seven hundred dollars, which certificates had belonged to Mrs. Lukas.y Lizzie Stepanek was afterwards removed as administratrix, and John P. Devine appointed administrator de bonis non. Appellant retained the money collected on the certificates of deposit, claiming that Mrs. Lukas in her lifetime had delivered the certificates to her as a gift. After hearing, the probate court ordered that she pay over this money to the administrator. Upon appeal to the circuit court the case was tried in that court without a jury, and the court held that the appellant had not received the certificates as gifts inter vivos, and entered judgment for the amount of money she had received thereon, that is nine hundred dollars, from which this appeal is taken.

There is little, if any, dispute about the facts. A witness with whom Mrs. Lukas had deposited the two hundred dollars testified that she said at the time, “If I live I shall pay the special assessment with that two hundred dollars,” referring to an assessment on some real estate belonging to her; and that she also said, “If I die the money shall go to Lizzie Stepanek.” Appellant testified that when the certificates were delivered to her, Mrs. Lukas said: 1 ‘ The money is yours, and in case I need it you will have to give it to me; if I do not need it you will keep it.”

The elements necessary to constitute a gift inter vivos have been clearly stated in Telford v. Patton, 144 Ill. 611 (620):

“It is essential to a donation inter vivos, that the gift be absolute and irrevocable, that the giver part with all present and future dominion over the property given, that the gift go into effect at once and not at some future~tnfié7'tha1T'there”be a delivery of the thing given to the donee, that there be ‘ such a change of possession as to put it out of the power of the giver to repossess himself of the thing given. ’ ”

To the same effect is Selleck v. Selleck, 107 Ill. 389; Shafer v. Manning, 132 Ill. App. 570, and many other cases.

Examining the circumstances of the delivery of the certificates herein, it is at once apparent that Mrs. Lukas expressly reserved to herself the right to call for the return of the certificates whenever she might need them. This is wholly inconsistent with “such a change1', of possession as to put it out of the power of the giver to repossess himself of the thing given.” That it was understood that Mrs. Lukas might at any time repossess herself of the certificates is evidenced by the conduct of the appellant in retaining them for ten months, with no attempt to collect the money until after the death of Mrs. Lukas,í Furthermore, when she did collect the money she did so by presenting her letters of administration and endorsing the certificates as administratrix. Under the rule above announced and the evidence before us, we cannot conclude that the appellant received the certificates as a gift inter vivos.

Complaint is-made of the ruling of the trial court in the circuit court in permitting the testimony of appellant, given at the hearing in the prohate court, to he read. Such testimony was competent as tending to show the admission by appellant and statements made by her inconsistent with her claim of a valid gift inter vivos. There was no error in this regard. In Wig-more on Evidence (vol. 2), sec. 1049, the rule is stated that such admissions “are receivable primarily because of their inconsistency with the party’s present claim and irrespective of their credit as assertions ;_the offerer of the admissions, in other words, does not necessarily predicate their truth, but uses them merely to overthrow a contrary position now asserted.” See also Robbins v. Butler, 24 Ill. 387.

The judgment of the circuit court will be affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice McSurely

license: Public Domain

text:
    Carl F. Mohr et al., Appellees, v. Gustav A. Smith et al., on appeal of The Maytag Company, Appellant.
    Gen. No. 18,917.
    1. Chancery—jurisdiction. A court of equity will exercise jurisdiction where an accounting is sought of funds alleged to have been wrongfully collected in violation of a position of trust and confidence, which funds in fact have come into the hands of others without consideration and with knowledge of the facts1, and where it seems that fraud is present, that relief at law would be impossible tor several of the complainants, that multiplicity of suits would be avoided and that a discovery should be granted. 1
    2. Injunction—verification. A verification of a bill for injunction which recited that the matters and things contained therein “are true in substance and fact as therein alleged,” held sufficiently positive to warrant the granting of the injunction.
    3. Injunction—discretion of chancellor as to bond. An interlocutory injunction order is not erroneous because it does not require all of complainants to sign the bond instead of one or more, since the discretion of the chancellor will be interfered with only when it appears to have been improperly exercised.
    4. Injunction—sufficiency of bond. Where complainants are granted an interlocutory injunction, if the bond signed by one of the complainants is sufficient as to surety and amount, it would not seem that further signatures are necessary.
    5. Injunction'—when objection to bond as to form,. An objection that the bond of complainants in whose favor an interlocutory injunction was granted was signed by only one of the complainants goes to the form thereof and may be remedied upon application to the chancellor if necessary.
    6. Injunction—bill. Bill held sufficiently specific as to notes, • the collection of which it seeks to enjoin.
    Appeal from the Superior Court of Cook county; the Hon. Clarence N. Goodwin, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed December 19, 1912.
    Statement by the Court. This is an appeal by the Maytag Company from an interlocutory order of injunction restraining the defendants from transferring, disposing of or instituting a suit or suits upon certain notes and other choses in action signed by some of the complainants. The controversy grows out of the alleged wrongful doings of Gustav A. Smith, one of the defendants.
    The bill alleges that Smith and one of the complainants, Carl F. Mohr, who were promoting the organization of a certain corporation known as the Mausoleum Securities Company for the purpose of erecting and dealing in mausoleums, organized a syndicate consisting of themselves and the other complainants for said purpose; that Smith and Mohr subsequently were paid a certain amount of the capital stock of said company for their services as promoters and also for procuring and transferring to the company certain territorial rights of using a certain patent for the erection of mausoleums; that the patent was owned and controlled by a concern known as the International Mausoleum Company, of which Smith and the defendant Fred Maytag were officers and principal stockholders ; that said Mausoleum Securities Company was organized primarily for the purpose of so procuring and working said territorial rights; that said Smith, during the promotion and before'the final organization of the Securities Company, represented to the complainants that one W. I. Hood was the owner of 5,606 shares of the capital stock of the International Company, and falsely, wilfully and knowingly represented to the complainants that if the stockholders of the Securities Company would procure the ownership of said stock of the International Company owned by Hood, the same, together with what stock Smith himself held therein, would give them the practical control of the International Company to the great advantage of the Securities Company; that the complainants, relying upon and in pursuance of the representations of Smith and upon the latter’s further representation that he himself could deal more advantageously with Hood with regard thereto, empowered and directed Smith to negotiate with the said Hood for its purchase, and in pursuance thereto Smith, after negotiating with said Hood, reported back that the stock could be bought for the sum of $200,000—$50,000 in cash and the balance of $150,000 in- notes—and that the same were the best terms obtainable from Hood; that the complainants, relying on said representations of Smith decided to purchase the Hood stock on these terms and agreed with each other and with Smith that the same should be purchased for the joint use of the complainants and Smith in the name of Herman H. Mohr, Carl F. Mohr and Henry D. Mohr; that thereafter $10,000 was paid to Hood as earnest money and subsequently the balance of $40,000 in cash was paid and notes in the aggregate sum of $150,000 were executed by the three trustees and delivered to Hood in payment of the balance of the purchase money; that the defendant Smith and the other complainants entered into an agreement indemnifying the three trustees for signing said notes for their use, whereby they became bound in all respects as if they themselves had subscribed said notes as comakers; that thereupon the said stock was transferred by said Hood to the complainants Charles M. Herrig, Herman H. Mohr and Carl F. Mohr, as trustees, who held the same for the common and joint use of all the complainants and the defendant Smith.
    The bill further alleges that the complainants, during all of said negotiations, placed full and explicit reliance and confidence in the integrity, honesty and good judgment of said Smith, and believed that he would at all times hold sacred the fiduciary and confidential relation existing between them, and would not violate the same; that Smith led the complainants to believe, and they did at all times implicitly believe, that Smith in negotiating with said Hood for the purchase of said stock was dealing and acting fairly and impartially for the common benefit of all of them, and would not derive any secret profit or commission to himself or any advantage whatsoever over the complainants, and that they placed full reliance and belief in all the doings and representations of said Smith in the premises; that Smith, notwithstanding he knew the complainants were so relying thereon and placing their full and implicit confidence and reliance in his honesty, integrity and good judgment in the premises aforesaid, nevertheless, in violation of his representations and his relations of trust and confidence, fraudulently, surreptitiously, secretly and unlawfully, and without the knowledge of the complainants, entered into a prearrangement with the said Hood whereby Smith was to receive, and subsequently, in pursuance thereof, did receive, from Hood divers sums of money, credits, choses in action and other valuables, aggregating the sum of not less than $50,000 as secret commission for negotiating and consummating the sale of said stock of the International Company owned by Hood; that Hood, pursuant thereto, immediately paid said sums and also transferred and delivered to Smith certain of the said promissory notes executed by the three complainants acting as trustees which had been received by Hood for the sale of his stocks, and that Smith received the same secretly, unlawfully and in violation of the trust and confidence reposed in him by the complainants, contrary to equity and good conscience, to his own use without accounting for the same to the complainants.
    The bill further alleges that Smith thereupon delivered the whole or part of the notes so received by him from Hood to the defendant Maytag' who was president of and principal stockholder in the International Company; that Smith and Maytag then and for a number of years prior thereto, were closely and intimately associated with each other in business and social affairs, occupying the same offices in the First National Bank Building, in Chicago, Ill., and living together and occupying the same rooms in the greater part of the year at the Grand Pacific Hotel at Chicago, and were frequently associated with each other in business transactions, and that they had complete control of the International Company by reason of their ownership of most of its capital stock and their positions as its officers, and at all times acted in harmony in manipulating its affairs. Upon these premises the bill bases the charge that Maytag, at the time he received the notes from Smith, well and fully knew all the facts surrounding the transaction in which the notes were executed and delivered to Hood and by Hood in turn delivered to Smith and that Smith had received the same by way of secret profit or commission in violation of the trust and confidence reposed in him by the complainants, and that the defendant Maytag, at the time he received the same, well and fully knew that in equity and good conscience they ought not to be paid by the complainants for the reasons aforesaid, and that the notes were either transferred and delivered to Maytag without any good or valuable consideration but purely for the purpose of placing the same ostensibly in the hands of an innocent holder, or else that Maytag was secretly interested with Smith. The hill further alleges that Maytag and Smith connived and conspired together and acted in unison in voting their stock in the International Company so as to deprive the complainants and the Securities Company of any beneficial voice in the affairs of the International Company, all contrary to the prior representations of Smith.
    The bill further alleges that Maytag immediately transferred the notes received by him to the appellant, the Maytag Company, a corporation, which it is alleged is substantially a “one man corporation,” and that Maytag was the owner or in control of all its capital stock and the president thereof, and that by reason thereof the said Maytag Company was in law and in equity and good conscience charged with notice of all the facts, circumstances and details aforesaid. It also alleges on information and belief that the transfer of said notes by Maytag to the Maytag Company was without valuable or good consideration. It is further alleged that certain of said notes were paid to the Maytag Company and that when it received payment thereof it full and well knew that in law and equity and good conscience it should not receive payment thereof for the reasons aforesaid; that the remainder of the notes received by it were subsequently renewed and renewal notes executed by the complainants, Herman H. Mohr, Carl F. Mohr, Henry D. Mohr and Adolph L. Herrig, and by the defendant Smith, and payable to the order of the Maytag Company, and that there are three of said notes in the principal sums of $5,000, $5,000 and $663 now held by the Maytag Company, remaining unpaid and past due.
    The bill further alleges that the defendants are threatening to institute various suits against the various complainants in divers jurisdictions upon said notes; that Herman H. Mohr, one of the signers of said notes, resides in Pierce, Nebraska; Carl F. Mohr and Adolph L. Herrig reside in Nashville, Tennessee; that Henry D. Mohr resides in Chatsworth, Iowa; that Secord Henderson and Emil Herrig reside in Fargo, North Dakota; and that the other complainants reside in other cities in the same states mentioned; that the defendants, by instituting said various suits in said various jurisdictions will divert the litigation and the matters involved to said various foreign jurisdictions to the great and irreparable injury, hindrance, annoyance and expense of the complainants.
    The bill prays that the defendants each be required to give a full and perfect discovery of all matters alleged and' regarding which the complainants may hereafter specially interrogate them, that an accounting be had and that the defendant Smith be required to account for the moneys received by him by way of secret commission, and that the defendants Maytag and the Maytag Company be required to repay to the complainants the sums received by them from the complainants which in equity and good conscience they ought to be required to repay and that the notes now held by the defendants be surrendered or canceled. The bill also makes offers on the part of the complainants to do equity to all the defendants and to pay to the defendants what, if anything, should be found to be due from the complainants upon the final account. The bill also prays for temporary injunction against the defendants from transferring any of said notes and from instituting said suits thereon, and for general relief.
    Upon this bill the injunction was granted, from which order the Maytag Company has prosecuted this appeal.
    Herman Frank and Charles B. Haffenberg, for appellant.
    Ryan & Condon, for appellees; Irvin I. Livingston, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

It is first urged as ground for reversal that complainants have a full and adequate defense in a suit at law. The bill, however, seeks an accounting of funds said to have been wrongfully collected by Smith as secret commissions and profits, in violation of a position of trust and confidence, which funds have in part come into the hands of the other defendants, with knowledge of the facts and without consideration. It has been held repeatedly that courts of equity will take jurisdiction for the purpose of compelling an accounting by one standing in a fiduciary or confidential relation who is charged with fraud against his cestui que trust. Roby v. Colehour, 135 Ill. 300. Other considerations herein justifying equitable cognizance are fraud, discovery, an avoidance of a multiplicity of suits, and the impossibility of relief in a suit at law for certain of the complainants who have not x signed the notes in question but who have agreed to indemnify the three complainants who signed the notes.

Criticism of the verification of the bill is made, in that it recites that the matters and things contained therein “are true in substance and fact as therein alleged;” and it is said that the essential allegations in the bill are made upon information and belief. Consideration of the allegations of the bill, in the light of many decisions of the courts, leads us to conclude that the criticism is not well taken and that the allegations are sufficiently positive to warrant the granting of the injunction. Campbell v. Paris & D. R. Co., 71 Ill. 611; Coryell v. Klehm, 157 Ill. 462; State v. Illinois Cent. R. Co., 246 Ill. 188; Greenberg v. Holmes, 100 Ill. App. 186; Story’s Eq. Pl., sec. 255.

It is next urged that the injunction order is erroneous in that it did not require all of the complainants, instead of one or more, to sign the bond. This is a matter within the discretion of the chancellor, and his action will not be set aside unless it should appear that the discretion was improperly exercised. If the bond is sufficient as to surety and amount, which we must assume to be the fact here, we see no good reason for requiring further signatures to it. At most the objection goes to the adequacy or form of the bond, and if necessary this may be remedied upon application to the chancellor. Herzberger v. Barrow, 115 Ill. App. 79.

In the reply brief of appellant it is argued in substance that the allegations of the bill are not sufficiently specific as to the notes in the hands of the Maytag Company, the collection of which is sought to be enjoined. We think it is sufficiently clear that the notes affected are any and all notes or renewals thereof which came from Hood to Smith in payment of the secret commissions or profits, and from Smith to Maytag and from Maytag to the Maytag Company.

The order granting the injunction is affirmed.

Affirmed.


author: Per Curiam.

text:
    Mrs. W. H. Carter, Defendant in Error, v. J. J. Mines, Plaintiff in Error.
    Gen. No. 18,661.
    1. Municipal court—stenographic report. Where a stenographic report from the municipal court is presented for signature within thirty days to a judge who did not hear the case, and after thirty days is certified and signed by the trial judge nunc pro tunc as of the date presented to the first judge, the Municipal Court Act, § 23, is not complied with and the report is properly stricken from the files on motion of defendant in error.
    2. Municipal court—where stenographic report is stricken from, files. Where the stenographic report is stricken from the files and there are no errors presented in an assignment of errors aside from those based on such report, the judgment is affirmed.
    Error to the Municipal Court of Chicago; the Hon. Joseph Sabath, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed December 30, 1912.
    William E. Keeley, for plaintiff in error.
    Everett & McGonigle, for defendant in error.
   Per Curiam.

Defendant in error presents her motion to strike from the record the bill of exceptions and stenographic report of evidence in this cause and to affirm the judgment of the municipal court, on the ground that the bill of exceptions or report was not signed by the trial judge within the time prescribed by the statute, and because the certificate of the judge is not in conformity with the statute.

Judgment was entered June 20, 1912, by Joseph Sabath, one of the judges of the municipal court, before whom the case was tried. On July 20, 1912, the stenographic report apparently was presented to James C. Martin, one of the judges of the municipal court, who endorsed it as “Presented for signature” on that day. Subsequently, on September 28, 1912, the trial judge, Joseph Sabath, certified to the record as a correct statement of facts and signed it as follows: “Dated this 28th day of September, 1912, and entered nunc pro tunc as of July 20, 1912. Joseph Sabath, Judge of the Municipal Court of Chicago.”

Construing paragraph 6 of section 23 of the Municipal Court Act, together with section 81 of the Practice Act, which has been adopted by rule 23 of the municipal court, the correct practice seems to be that the stenographic report should be presented within thirty days after judgment, to the “judge by whom such final order or judgment was entered,” except in the event that such trial judge is unable to act “by reason of death, sickness or other disability,” which disability must appear from the record; then some judge other than the trial judge may sign such stenographic report. We know of no rule permitting any judge other than the trial judge acting in the premises, except upon some showing that the trial judge was unable to perform his duty in this regard.

It is clear, therefore, that the stenographic report, not being signed and filed within the time provided in section 23 of the Municipal Court Act, or within any extension of time allowed by the trial court within thirty days of the entry of judgment, must be stricken from the record. Gumpert & Co. v. Junker & Co., 161 Ill. App. 445.

The assignment of errors presenting only questions which must necessarily he heard and considered on the stenographic report, we therefore cannot examine it for the purpose of considering the errors assigned, and, no errors appearing in the common law record, the judgment is affirmed.

In view of the conclusion we have reached, we do not deem it necessary to consider the second point suggested by defendant in error.

Affirmed.


author: Mr. Justice Baker

text:
    Produce Reporter Company, Defendant in Error, v. Adams Express Company, Plaintiff in Error.
    Gen. No. 16,581.
    1. Carriers—damage for delayed express shipment. Where a reporter company expresses a credit hook to a subscriber and the express company is not notified of the. existence of the contract or that the hook is shipped in part performance thereof, and has no knowledge of the purpose of the shipment from the circumstances1, there is no liability either in contract or tort to the reporter company for the whole amount agreed to be paid by the subscriber who rescinded the contract on the hook not being delivered.
    2. Carriers—damages for delayed express shipment. Where a subscriber to a credit. service rescinds the contract owing to delay of an express company in delivering a credit hook, and there is no evidence as to what part of the payment under the contract was to he for the use of the book, or of the market or rental value of the hook, the measure of damages in an action against the express company cannot be based on the difference between the market value at the time the hook was delivered and the time it should have been delivered, or, if the book has no market value, the rental value for the time it was delayed.
    3. Carriers—value stated in express receipt. Where a reporter company agrees for sixty dollars to give credit service to a subscriber and expresses a credit book and takes a receipt with knowledge that the value is stated to he ten dollars, on a rescission of the service contract by the subscriber owing to a delay in delivering the book, the reporter company cannot recover in excess of ten dollars from the express company.
    Error to the Municipal Court of Chicago; the Hon. John C. Scovel, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Reversed.
    Opinion filed December 30, 1912.
    Frederick S. Baker, for defendant in error.
    Charles B. Elder, for plaintiff in error.
   Mr. Justice Baker

delivered the opinion of the court.

The Produce Reporter Company, defendant in error, sued plaintiff in error, the Adams Express Company, for damages for alleged negligent delay in carrying and delivering to F. B. Bell at Machipongo, Va., a book shipped by the plaintiff. The case was submitted to the court, plaintiff had judgment for sixty dollars damages and the defendant prosecutes this writ of error.

June 16, 1909, plaintiff entered into a contract with Bell by which he engaged the service “Class C” of plaintiff for one year from July 1, 1909, and agreed to pay therefor sixty dollars. The.service “Class C” consisted of the use of an “annual credit book,” weekly credit sheets, thirty special reports and certain other services and privileges. On the same day plaintiff shipped to Bell by the defendant company said “annual credit book,” but it did not reach its place of destination until about December 7, 1909. Early in July Bell notified plaintiff that the hook had not been received and plaintiff at once gave notice to defendant, and July 31 made a claim on defendant for the value of the book. August 5 Bell rescinded the contract because he had not received the “credit book.” In the receipt taken by plaintiff from defendant for the book its value was stated at ten dollars, and this statement was entered in the receipt by an employee of the plaintiff.

We think the trial court erred in allowing to plaintiff as damages the amount it would have received from Bell if the contract had been performed by both parties. The defendant was not notified of the existence of the contract between plaintiff and Bell, nor that the book was shipped in part performance of any contract between them, nor is knowledge shown of circumstances from which the purpose of the shipment would naturally be inferred, and in the absence of such notice or knowledge defendant is not liable for the special damages suffered by plaintiff by reason of the rescission of the contract by Bell. Hadley v. Baxendale, 9 Ex. 341, 26 E. L. & Eq. 398; Griffin v. Colver, 16 N. Y. 489; Illinois Cent. R. Co. v. Cobb, Christy & Co., 64 Ill. 128; Benton v. Fay & Co., 64 Ill. 417; Chicago, B. & Q. R. Co. v. Hale, 83 Ill. 360.

It is immaterial whether the action is contract or tort. Benton v. Fay & Co., and Illinois Cent. R. Co. v. Cobb, Christy & Co., supra.

The contention of plaintiff in error that the measure of damages is the difference between the market value at the time the article was delivered and such value at the time it should have been delivered, or if the article has no. market value, then the rental value for the time it is delayed, cannot be sustained in this case, for neither the market nor the rental value of the book is shown by the evidence. Bell was to pay sixty dollars for the service “Class C,” and there was no agreement as to what part of this sum was for the use of the book.

In Schulze v. L. & Y. R. Co., 9 C. B. (N. S.) 632, Lord Esher, M. B. said: “The cases in which the courts are bound to consider the market value of the goods are those in which the plaintiff may go into the market and supply himself. If he cannot do so, that measure of damages cannot be applied. Here the plaintiffs could not have supplied themselves with the like goods in the market, and the test of damage to be applied is that laid down in Wilson v. L. & Y. R Co., 9 C. B. (N S.) 632, within the principle of which this case falls.” In Wilson v. L. & Y. R. Co., cited by Lord Esher, the carrier failed to deliver within a reasonable time cloth bought for the purpose of making it into caps, and it was held that the plaintiff was entitled to recover as damages the amount of the diminution in value of the cloth by reason of the season for making up and selling of the caps having passed, but not the anticipated profits, nor the expenses of travelers despatched on journeys rendered fruitless by reason of its inability to execute their orders. In Sutherland on Damages, sec. 1366, it is said that, “When by delay the goods have become worthless, the owner may recover as for their loss,” citing Schulze v. Railway, supra; Wabash R. Co. v. Harris & Co., 55 Ill. App. 159.

In this case plaintiff was in no condition to claim that the value of the book exceeded ten doEars. Its employee stated the value in the receipt at ten doEars, the defendant by signing the receipt and the plaintiff by accepting it with knowledge of its contents agreed that the value of the book was ten doEars, and plaintiff cannot complain at being held to its own valuation. Adams Exp. Co. v. Stettaners, 61 Ill. 184.

The judgment of the municipal court will be reversed with judgment here for the plaintiff for ten doEars damages.

Reversed with judgment here.


text:
    H. H. Mittenthal and I. M. Greenberg, Trading as Mittenthal Bros., Defendants in Error, v. Michigan Central Railroad Company, Plaintiff in Error.
    Gen. No. 16,601.
    1. Cauhtbbs—limitation of liability. A contract exempting the carrier from liability for damage by heat is reasonable and not against public policy where such heat is not caused by the carrier’s negligence.
    2. Cabbiers—when not negligence to fail to re-ice a car. It is not negligence for a carrier to fail to re-ice a car of apples shipped fifth class from Battle Creek to Chicago, though injury thereto results from heat, where the bill of lading exempted the carrier from liability for injury caused by heat, the official classification properly filed and posted provided that consignors should furnish ice at their own cost for property classified less than third class, and plaintiff knew that the ice would not last and that re-icing would be at his cost but gave no order therefor.
    3. Cabbiers—when consignor should order car re-iced. If the consignors of a car of apples wish the car re-iced or consider it necessary they should make a request therefor, where the contract of affreightment exempts the carrier from liability for damage by heat and the official classification properly filed and posted provides that consignors shall furnish ice at their own cost for property classified less than third class.
    4. Cabbiers—knowledge that damage would result if car not re-iced. A carrier is not bound to know that apples in a car without ice would be damaged in shipment from Battle Creek to Chicago where loading was finished Wednesday and the car arrived in Chicago the next day.
    Error to the Municipal Court of Chicago; the Hon. Frank Cbowe, Judge, presiding. Heard in this court at the October term, 1910.
    Reversed.
    Opinion filed December 30, 1912.
    Winston, Payne, Strawn & Shaw, for plaintiff in error.
    Nicholas J. Pritzker, for defendants in error.
   Mr. Justice Baker

delivered the opinion of the court.

The defendants in error brought an action of the fourth class in the municipal court to recover damages to a carload of apples shipped by plaintiffs over defendant’s road from Battle Creek, Michigan, to Chicago June 17,1908, recovered a judgment for one hundred and sixty-six dollars and the defendants sued out this writ of error. The apples had been in a cold storage warehouse in barrels since the preceding Octoher. Monday, June 15, 1908, plaintiffs began to remove them to a packing room, not refrigerated, for the purpose of repacking, and the same day ordered a car from defendant to carry the apples to Chicago. The defendant put 4,000 pounds of ice in a standard refrigerator car at Jackson and sent it empty to Battle Creek. Tuesday morning this car was at Battle Creek and plaintiff began loading. The apples were taken from the shipping room and loaded into the car by one man with a one-horse wagon, the loading occupied all of Tuesday and part of Wednesday, and during the loading the car door opened fourteen times, ten minutes at a time. The proper temperature in a refrigerator car in summer is forty to forty-five degrees. An employee of plaintiffs, who went to the car with the first load of apples, testified that the temperature in the car then was forty to forty-five degrees, which shows that the car was then refrigerating properly. This testimony was not contradicted and there is no testimony as to the temperature of the car or the amount, if any, of ice in its bunkers from that time until Saturday, when there was no ice in the bunkers. There was no delay in handling the car after it was loaded. It reached Chicago Thursday evening, was set on the team track for delivery Friday morning, and twenty-five barrels of apples were then taken from it by the consignee. The apples were found to be “cooked,” that is damaged by heat. The car remained on the team track until the next Wednesday. It was re-iced on the order of plaintiffs Saturday, Sunday and Tuesday. The remainder of the apples were taken out Wednesday and were then in substantially the same condition that the apples taken out of the car Friday were at that time and brought substantially the same prices when sold by order of the plaintiffs. We think that the evidence shows that substantially all the damage to the apples was done before Friday, when the first apples were taken from the car.

The shipment was an interstate shipment and the official classification properly filed with the Interstate Commerce Commission and posted in the station at Battle Creek provided that apples in barrels in carload lots should be fifth-class freight, and that “Bail-road Companies may furnish at their own cost ice and salt when required for the protection of property not classified lower than third class, either in less than carloads or carloads, when loaded in refrigerator or other cars; excepting that when cars are loaded by individual consignors the cost of icing will not in any instance be assumed by the carriers when the weight in each of such cars is less than 10,000 pounds. Consignors must furnish at their own cost ice and salt furnished for property classified less than third class, in less than carloads or carloads.”

The freight tariff duly published and filed gave the rates from Battle Creek to Chicago, for third class 21% cents per 100 pounds, and for fifth class 11% cents. June 17 the plaintiffs signed a shipping order and received in return a bill of lading for the shipment of its car to Chicago, which was also signed by the plaintiffs. The shipping order and bill of lading have similar provisions, among which are the following:

“Beceived subject to the classification in effect on the date of the receipt by the carrier of the property described in this shipping order (original bill of lading). * * * That every service to be performed hereunder shall be subject to all the conditions, whether printed or written, herein contained (see conditions on back hereof), and which are agreed to by the shipper and accepted for himself and his assigns as just and reasonable. * * * No carrier * * * shall be liable for any loss thereof or damage thereto, by causes beyond its control * * * or by leakage, breakage, chafing, loss in weight, changes in weather, heatj frost, wet or decay. * * *
“If the shipper elects not to accept the said tariff rates and conditions, he should so notify the agent of the receiving carrier at the time his property is offered for shipment, and if he does not give such notice it will be understood that he desires his property carried subject to the Uniform Bill of Lading conditions in order to secure the reduced class rates thereon.

A freight bill was made out at the rate of 11% cents per 100 pounds and the freight paid by plaintiffs at that rate.

“The rate sheet, standing alone, does not constitute the schedule of rates required by the law, but is only a part of it; the other part being the official classification referred to in it, and filéd with it; and the two must be read together, as component parts of the schedule of rates.” Mannheim Ins. Co. v. Erie & W. Transp. Co., 72 Minn. 357.

“A carrier is required by law to publish the rate and also clearly to indicate the route over which the published rate is applicable. When so published the rates named and the route designated stand as the law, binding as well upon the shipper as upon the carrier. A schedule of rates published in the manner provided by law speaks with equal authority to the shipper and to the carrier, and both are equally chargeable with notice of the rate and of the route over which the rate is made applicable.” Poor Grain Co. v. Ry. Co., 12 I. C. C. R. 469; Mannheim Ins. Co. v. Erie & W. Transp. Co., supra; Smith v. Great Northern R. Co., 15 N. Dak. 195.

The contract of affreightment exempted the defendant from liability for loss or damage to freight by heat. Such exemption is reasonable and not against public policy where the heat was not caused by the negligence of the defendant. The question then is presented whether the defendant was guilty of negligence in failing to re-ice the car. If it be conceded that the defendant ordered a refrigerator car Monday, June 15, such a car with 4,000 pounds of ice in its bunkers was sent from Jackson to Battle Creek that day. The only testimony in the record as to the time which such a quantity of ice would last, was that it would last about tbirty-five hours if the car was empty and the doors kept shut, and a less time if the car was filled. It was forty-eight hours from the time the ice was put in the car to the time the loading was completed, and the shipping order given.

The official classification provided that the consignors should furnish at their own cost ice furnished for property classified less than third class. The apples were classified fifth class, and we think that if the plaintiffs wished to have the car re-iced before it left Battle Creek, or thought it necessary that it should be re-iced then, they should have notified the defendant and requested it to re-ice the car. Plaintiffs were at the place of shipment. They knew that the car was iced Monday and that if it was re-iced it would be at their cost. They had the right to order the car re-iced or let it go forward without re-icing, and they gave no order to have the car re-iced. We do not think that under the circumstances the defendant was bound to re-ice its car at Battle Creek or between Battle Creek and Chicago without a request to do so by the plaintiffs, and that its failure to so re-ice the car was not negligence.

Neither can we say that the defendant was bound to know that apples in a car without ice would be damaged in shipment for the distance between Battle Creek and Chicago and taking the time required to carry the apples in question to Chicago. In Beard v. Illiniois Cent. R. Co., 79 Iowa, 518, relied on by the defendant in error, butter was carried by the defendant in hot weather from DuQuoin, Illinois, to New Orleans in a box car, and it was held that the employees of defendant must be presumed to know that butter carried in ordinary cars to New Orleans in summer would be greatly injured by the ordinary heat of the climate. Here the distance was not great and there was no difference in climate.

Our conclusion from all the evidence is that it fails to show that the defendant was guilty of negligence in respect to the apples in question, and therefore, under its contract of affreightment, was not liable for damage to such apples by heat.

The judgment of the municipal court will therefore be reversed.

Judgment reversed.


text:
    Romain Blakeslee, Trading as Blakeslee’s Storage Warehouse, Defendant in Error, v. Charles Turgrimson, Plaintiff in Error.
    Gen. No. 16,633.
    1. Warehousemen—liability of chattel mortgagee for storage. The fact that a chattel mortgagee has a lien on goods stored by the mortgagor does not make him liable for the storage; but if his acts and conduct indicate a purpose to take the control and management of the goods, he thereafter becomes liable for subsequent storage charges.
    2. Warehousemen—when chattel mortgagee is liable for storage. Where a chattel mortgagee properly files a bill to foreclose on goods stored by the mortgagor, obtains an order that the sheriff shall take possession, goes with the sheriff to the warehouse, says that he will leave the goods in the warehouse and accepts a warehouse receipt issued to and indorsed by the sheriff, he indicates a purpose to take the control, management and possession of the goods and is liable for subsequent storage charges.
    3. Warehousemen—rate of storage on receipt controls. Where a- chattel mortgagee procures a sheriff to take possession of goods stored by the mortgagor and takes control and possession of the goods and accepts a warehouse receipt given the sheriff that states a certain monthly storage charge, he is liable for the subsequent storage at such rate.
    Error to the Municipal Court of Chicago; the Hon. Arthur W. Deselm, Judge, presiding. Heard in this court at the October term, 1910.
    Affirmed.
    Opinion filed December 30, 1912.
    In an action of the fourth class in the municipal court brought February 23, 1910, by defendant in error Blakeslee against plaintiff in error Turgrimson to recover charges for warehousing certain goods, Blakeslee had ¡judgment for two hundred and four dollars, and Turgrimson prosecutes this writ of error. June 19, 1905, Blakeslee- received the goods into his warehouse and issued his warehouse receipt therefor to Mrs. J. J. Connors. Turgrimson filed his hill in the superior court against Mrs. Connors and Blakeslee to foreclose a chattel mortgage on said goods. November 11, 1905, on an affidavit filed in said cause an order was entered directing the sheriff to seize and take into his possession and turn over to complainant Turgrimson the goods then in the warehouse of the defendant Blakeslee, and in said order described, directing Blakeslee to deliver the said property stored in his warehouse in the name of J. J. Connors to the sheriff and directing Turgrimson to safely keep said goods so to be delivered to him by the sheriff subject to the order of the court. Pursuant to the order the sheriff, November 14, seized said goods, which were then in the warehouse of Blakeslee, received from him a warehouse receipt therefor running to himself, endorsed on said receipt an order to Blakeslee to deliver said goods to Turgrimson, and delivered the receipt so endorsed to Turgrimson. The return of the sheriff states that he seized said goods and turned the same over to Turgrimson and Turgrimson gave to the sheriff a receipt for said goods.
    Clark & Clark, for plaintiff in error.
    Brady, Barnum & Rutledge, for defendant in error.
   Mr. Justice Baker

delivered the opinion of the court.

The fact that Turgrimson had a lien on the goods in question did not make him liable for their storage. But if his acts and conduct indicated a purpose. to take the control and management of the. goods, he thereafter became liable for the subsequent storage of the goods. Driggs v. Dean, 167 N. Y. 121.

Turgrimson’s bill to foreclose Ms mortgage on said goods was necessarily based on the theory that there had been such a breach of the conditions of the mortgage as gave him the right to take possession of the mortgaged property. The statute of June 5,1889, provides that no chattel mortgage on necessary household goods shall be foreclosed except in a court of record, and that no such household goods, etc., shall be taken out of the possession of the mortgagor before foreclosure except by the sheriff, and then only in case the mortgagor or Ms agent shall present to the judge an affidavit and obtain from him an order directing the sheriff to seize such goods, and hold them subject to the order of the-court. Laws of 1889, p. 208.

Turgrimson, by filing the bill to foreclose, presenting an affidavit to the judge and obtaimng an order that the sheriff take possession of the goods and turn them over to Mm, going with the sheriff to Blakeslee’s warehouse with the order when it was executed and a warehouse receipt issued to the sheriff, saying that he would leave the goods in the warehouse, accepting from the sheriff said warehouse receipt with an order of the sheriff endorsed theron directing Blakeslee to turn over the goods mentioned therein to him and giving to the sheriff a receipt for said goods, plainly indicating a purpose to take the control, management and possession of said goods, and the court properly held him liable for the subsequent storage of the goods.

The rate of storage stated on the warehouse receipt delivered to Turgrimson was four dollars per month.

“If a tavern keeper, warehouseman or wharfinger specifies Ms rates of charge, and gives notice to a customer in advance, and the latter afterwards puts up at his tavern, or makes use of his warehouse or wharf, he thereby assents to the proposed charges, and cannot refuse to pay them, upon the ground that they are more than is reasonable or customary. By the use of the wharf, after notice of plaintiff’s rates of charges, the defendants impliedly contracted to pay them, and they cannot now disaffirm their contract.” Steamship Co. v. Sparks, 22 Tex. 659.

The suit was brought fifty-one months after November 14, 1905, and the court properly found that plaintiff was entitled to recover two hundred and four dollars, and the judgment is affirmed.

Affirmed.


text:
    White Oak Coal Company, Plaintiff in Error, v. Charles Beck, Defendant. W. C. Reebie & Bros. Co., Garnishee, Defendant in Error.
    Gen. No. 16,655.
    1. Judgments—practice on motion to vacate. It is proper practice to hear a motion to vacate a judgment on affidavits and counter-affidavits.
    2. Judgments—motion to vacate. On a motion to vacate a judgment the action of the court will be largely controlled by the promptness with which the application is made and by the consideration whether or not the irregularity is one which could have operated to the prejudice of the applicant.
    3. Appearance—answer of garnishee. In an action of the fourth class in attachment in the Municipal Court of Chicago, an “answer” of a garnishee stating that it was not indebted to and had no assets of the debtor constitutes its appearance.
    4. Garnishment—time to file motion to vacate judgment. Where, in an action of the fourth class in attachment in the Municipal Court of Chicago, a judgment against the garnishee is entered without fixing a day for the trial of the garnishment issues as provided by the Municipal Court Act, section 45, an application to vacate the judgment made almost three months thereafter is made with reasonable promptness.
    5. Garnishment—when judgment may he vacated for irregularities. Where, in an action of the fourth class in attachment in the Municipal Court of Chicago, a garnishee appears by filing an answer and is defaulted for failure to appear, and the judgment is entered without fixing a day for the trial of the garnishment issues as required by the Municipal Court Act, section 45, for the amount of the debt, and also ordering the garnishee to turn over a chattel to' a bailiff, the irregularities in the judgment are prejudicial and it may be vacated.

      Error to the Municipal Court of Chicago; the Hon. Chables N. Goodnow, Judge, presiding. Heard in this court at the October term, 1910.
    Affirmed.
    Opinion filed December 30, 1912.
    Plaintiff in error began an action of the fourth class in attachment against Charles Beck in the municipal court and a writ of attachment was issued returnable December 22, 1809. The writ was returned “not found” as to Beck and served on the W. C. Beebie and Brothers Company, a corporation, as garnishee. December 22 the cause was postponed to January 11, 1910, and notice given to Beck by posting and mailing. January 7 the garnishee filed an “answer” verified by the oath of its treasurer, stating that at the time of the service of the writ upon it, it was -not indebted to Beck and neither then nor at any time thereafter had any moneys, property, chattels or effects of said Beck in its possession, charge or custody. January 11 the defendant Beck was defaulted for failure to appear, the damages of the plaintiff assessed at $60.94, and judgment rendered against him for that sum and costs, and a special execution ordered to issue “against the property levied on under the writ of attachment herein.” In the same order, immediately after the judgment against Beck, it is stated that “thereupon” the cause came on for trial on the garnishment issues, and the court found that there was in the hands of the garnishee at the time when, etc., a piano, the property of Beck, on which the garnishee had a lien, and it was ordered that said property be turned over to the bailiff of the court to be by him sold subject to said lien, and the proceeds applied to payment of the judgment against Beck. Then follows, also in the same order, a personal judgment that Beck for the use of the plaintiff recover from the garnishee the sum of $66.94 “as by the court assessed, and that he have the residue, if any, for the use of himself, and that execution issue therefor.” April 1, 1910, the garnishee moved the court to set aside and vacate the judgment entered against it January 11, and the hearing of the motion was postponed to April 9. The same day the garnishee filed in support of its motion its petition, sworn to by its secretary, which states that the garnishee filed an affidavit setting forth that it was not indebted to nor had any goods, chattels or effects belonging to Beck when the writ was served or afterward; that it filed no appearance and received no notice of contest as to the contents of said affidavit; that it moved some goods for Beck, but did not retain possession of any of the goods of Beck, and did not move any piano of Beck nor any piano from his premises or which he had in his charge or possession. The record states that the parties came April 9, and the court after hearing counsel ordered that the judgment against the garnishee entered January 11 be vacated and set aside and postponed the further consideration of the cause to April 15. April 15 the court heard the case as to the garnishment issues, found said issues for the garnishee and discharged the garnishee.
    Cratty Bros. and Jarvis & Hudson, for plaintiff in error
    Frederick Peake, for defendant in error.
   Mr. Justice Baker

delivered the opinion of the court.

Section 21 of the Municipal Court Act gives to that court the same power to vacate judgments that a circuit court has during the term if a motion to vacate is entered within thirty days after entry of the judgment, and provides that if no motion to vacate is entered within that time the judgment shall not be vacated except on appeal, etc., “or by a petition to said municipal court setting forth grounds for vacating, setting aside or modifying the same, which would be sufficient to cause the same to be vacated, set aside or modified by a bill in equity. Provided, however, that all errors in fact in the proceedings in such case, which might have been corrected at common law by the writ of error coram nobis may be corrected by motion, or the judgment may be set aside, in the manner provided by law for similar cases in the circuit court.”

In this state it has always been the practice to hear motions to vacate on affidavits and counter-affidavits. Domitski v. American Linseed Co., 221 Ill. 161. In this case the plaintiff did not, by motion to dismiss or otherwise, question the sufficiency of the petition to vacate or file any counter-affidavit, and plaintiff’s attorney stated that he appeared on the hearing of the motion to vacate specially merely for the purpose of objecting to the jurisdiction of the court, and elected to stand by the record of the judgment theretofore entered.

Section 45 of the Municipal Court Act provides: “That if in any case of the fourth class * * * the defendant shall appear at the time specified in the summons or shall have entered his appearance in writing at or before the time so specified, the court shall, at such time, or as soon thereafter as practicable, fix a time for the trial thereof, and such case shall be tried at the time so fixed or as soon thereafter as the other business of the court will permit.” By filing its “answer” stating that it was not indebted to the defendant Beck and had no moneys, etc., of Beck in its possession, the garnishee entered its appearance, and the statute required that the court fix a time for the trial of the issues joined on the answer. The record shows that immediately after the entry of the judgment against Beck the court proceeded to try the garnishment issues, entered an order that the garnishee turn over to the bailiff a piano which the court found belonged to Beck and was in the possession of the garnishee at the time of the service of the writ, that the same be sold by the bailiff and the proceeds applied on said judgment of $66.04, etc., and then, in the same order, entered a personal judgment that Beck, for the. use of the plaintiff, recover of defendant $66.04 for the use of the plaintiff and that he have the residue, if any, for himself, and that execution issue therefor.

“Irregular and improper conduct in procuring judgment to be entered is a well settled ground for vacating it. This has become one of the settled remedies where the improprity or irregularity has not been induced by the fault or negligence of the judgment debtor. A judgment is said to be irregular whenever it is not entered in accordance with the practice and course of proceeding where it was rendered.” Freeman on Judgments, sec. 97.

The judgment in this case was irregular because, although the garnishee had appeared, it was entered without fixing a day for the trial of the garnishment issues, and because there was both an order that the garnishee turn over to the bailiff a piano and a personal judgment against 'the garnishee for the amount of the judgment against Beck.

On a motion to vacate a judgment the action of the court will be largely controlled by the promptness with which the application is made and by the consideration whether or not the irregularity is one which could have operated to the prejudice of the applicant. Freeman on Judgments, sec. 97.

Here the application was made with reasonable promptness, and it is clear that the irregularity was one which could operate to the prejudice of the garnishee, for he had no trial of the garnishment issues and there was against him the order to turn over a piano and a judgment for the full amount of plaintiff’s judgment against Beck.

Under the facts and circumstances shown by the record, we are of the opinion that it would be inequitable to allow the judgment to be enforced, and we therefore affirm the order vacating and setting it aside.

Affirmed.


text:
    Curt M. Treat and Jessie W. Treat, Defendants in Error, v. Mrs. John F. Gasmire, Plaintiff in Error.
    Gen. No. 16,678.
    1. Landlord and tenant—month to month. Where a tenant vacates a house before the expiration of a lease for a definite term and employs an agent to rent it, who procures a new tenant, informing him that a lease extending beyond the original term can be obtained, and giving him a draft of an unsigned lease to that effect, and there is no evidence that the agent was authorized by the lessor or that his acts were ratified, or that an agreement was made by the lessor or the original tenant, the new tenant is not a tenant from month to month and is not entitled to thirty days’ notice to quit.
    2. Landlord and tenant—notice to quit. Where a lease is made for a definite term, no notice to quit is necessary, when the term expires, and the lessee or any person claiming under him is liable in forcible detainer.
    3. Landlord and tenant—when wife is proper party defendant in forcible detainer. A tenant vacated a house before the expiration of a lease for a definite term and employed an agent to rent it. After a conversation with the agent regarding a lease for a longer term, a husband, wife and daughter moved in, but there was no agreement or consent that the husband might take possession. The agent without authority from the lessor delivered an unsigned draft of a lease to the husband for a longer term. Held, in forcible detainer at the end of the original term, the court might properly find from the evidence that the wife was a proper party defendant.
    Forcible detainer. Error to the Municipal Court of Chicago; the Hon. Michael F. Girten, Judge, presiding. Heard in this court at the October, term, 1910.
    Affirmed.
    Opinion filed December 30, 1912.
    Charles1 Horn demised by written lease a dwelling house inf Chicago to Braithwaite for a term of two years from May 1, 1908, and during the term conveyed the premises to defendants in error. Braithwaite moved out of the house in October, 1909, and employed Dean to rent it. John M. Casmire, his wife and daughter May moved into the house soon after it was vacated. May 3,1910, defendants in error "brought an action of forcible detainer against Mrs. John F. Gasmire, the plaintiff in error, in the municipal court, had judgment for the possession of the premises, and she sued out this writ of error. On the trial of the cause May Gasmire testified that she applied to Dean to rent a house in October, 1909; that Dean said he had a house belonging to Horn which could be rented; that witness told Dean that she wanted a lease for two or three years; that Dean said he thought it could be arranged and would communicate with Horn, and showed her the house; that later on she and her father and mother moved in; that she then asked Dean about the lease and Dean said it would be all right and handed her a writing to have her father sign, which was introduced in evidence by defendant and is a draft of an unsigned lease from Horn to J. F. Gasmire of the house for one year from May 1, 1910; that she paid with her father’s money the rent for November and December to Dean and for January, February, March and April to Braithwaite; that at the time of the trial her father was living with her mother and herself in the house.
    Caswell & Healy, for plaintiff in error.
    Garret V. Weart, for defendants in error.
   Mr. Justice Baker

delivered the opinion of the court.

The contention of plaintiff in error that her husband was a tenant from month to month and therefore a thirty days’ notice should have been given, finds no support in the evidence. There is in the record no evidence tending to show that Dean had any authority from Horn to rent the house, or that Horn in any way ratified anything that Dean did in respect to leasing the house; nor is there any evidence that either Horn or the defendants in error made an agreement with any one to extend Braithwaite’s term, or grant a new term after the expiration of his term.

Where the term expires no notice to quit is necessary, and the lessee or any person claiming under him is by the express provision of the act liable to this action.

Plaintiff in error further contends that she was not a proper party. There is no evidence that any one of the Gasmires took possession of the house under an agreement with any one. May Gasmire testified to a conversation with Dean, but not to any agreement with him or consent that her father might take possession of the house, and that, “later on she and her father and mother moved in.” Mrs. Gasmire did not on the trial contend that she was not in possession of the house, but contended that plaintiff could not maintain the action because Dean had given to her daughter the draft of a lease from Horn to her husband for one year from May 1, 1910, which draft was not signed either by the proposed lessor or lessee. We think that from the evidence the court might properly find that she was a proper party defendant. Whether her husband should also have been made a defendant is a question not presented by the record. The evidence clearly shows that plaintiffs were entitled to the possession of the house when the action was brought, and the judgment is affirmed.

Affirmed.


text:
    Richard Rolfs, Defendant in Error, v. Pooley Furniture Company, Plaintiff in Error.
    Gen. No. 16,726.
    1. Master and servant—constructive service. Where plaintiff was employed for a definite time and was paid in full up to the time he quit or was discharged before the expiration of the definite time, he cannot recover for salary or wages after such payment on the theory of constructive service.

      2. Municipal court—action of fourth class. An action of the fourth class in the municipal court is whatever the evidence makes it, and if the evidence shows a right of action for the amount recovered, judgment should be affirmed on appeal.
    3. Master and servant—implied warranty of competency. An employee impliedly contracts that he is competent to discharge the duties for which he is employed, and a breach thereof warrants his discharge.
    4. Master and servant—when discharge of employee not wrongful. One employed by a decorator as a foreman and cutter is incompetent or negligent, or both, and his discharge before the expiration of his contract is not wrongful where on being furnished plans and sketches of the work he makes numerous errors in expensive hangings, curtains and valances.
    5. Appeals and errors—when defendant’s damages not considered. Where judgment for plaintiff for damages is improper and it seems that defendant on appeal asks only that judgment be reversed, it is not material to determine his damages.
    Error to the- Municipal Court of Chicago; the Hon. John W. Houston, Judge, presiding. Heard in this court at the October term, 1910.
    Reversed.
    Opinion filed December 30, 1912.
    Rehearing denied.
    Lackner, Butz & Miller, for plaintiff in error.
    No appearance for defendant in error.
   Mr. Justice Baker

delivered the opinion of the court.

This was an action in contract of the fourth class in the municipal court by defendant in error against plaintiff in error. Plaintiff’s statement of claim was “for wages for five weeks from September 10, 1909, at $30 per week.” Defendant filed a statement of a claim of set-off for damages sustained by defendant by reason of the unskillfulness, incompetence, carelessness and negligence of the plaintiff. The court found the issues for the plaintiff, gave him judgment for one hundred and fifty dollars and costs, and the defendant sued out this writ of error.

The plaintiff was paid his salary in full up to the time he quit the service of defendant or was discharged, and could not recover salary or wages after that time on the theory of constructive service. Jones v. Dunton, 7 Ill App. 581; Monarch Cycle Mfg. Co. v. Mueller, 83 Ill. App. 359.

But an action of the fourth class in the municipal court, like an action before a justice of the peace, is whatever the evidence makes it, and if the evidence shows a right of action for the amount of the recovery, the judgment should be affirmed. Edgerton v. Chicago, R. I. & P. R. Co., 240 Ill. 311.

The defendant in May, 1909, had a contract for furnishing the LaSalle Hotel. By a contract in writing the defendant employed the plaintiff as foreman and cutter of its work rooms for one year from June 1, 1909, at a salary of thirty dollars per week. He was furnished with plans of the Hotel, on which every floor was drawn to a scale showing all window and door openings, size of rooms and colored to represent the color scheme of each of the different rooms to be furnished ; with a copy of the contract between defendant and the Hotel Company and with a water color sketch of every curtain and valance.

There is an implied contract on the part of an employee that he is competent to discharge the duties for which he is employed, and a breach of such contract will warrant his discharge. To authorize his discharge it must appear that he failed to perform his duties in a reasonably skillful manner. 26 Cyc. 990. He is also bound to use due care, and habitual neglect in the discharge of his duties will warrant his dismissal. A single act of neglect has been held sufficient when injurious. 26 Cyc. 990, note 44.

Some of the errors made by plaintiff in his work, as shown by the record, were the following: Where certain red and certain green hangings were to go in the elevator lobby, the red hangings were cut seven inches longer than the green and had to be recut to the length of the green. There were seven green valances and curtains too many and forty-two valances too many cut for bedrooms. In the ballroom the hangings were made a foot and a half too short and had to be pieced out. For the palm room plaintiff cut the hangings one foot too long; that one foot of material was wasted and it cost eight dollars a yard.

We think that the evidence clearly shows that plaintiff was either incompetent or negligent or both; that he did not perform the duties for which he was employed in a reasonably skillful manner, and that if he did not quit voluntarily, but was discharged by the defendant, his discharge was not without good cause or wrongful.

As the plaintiff in error has not asked for judgment here on the claim of set-off or that the cause be remanded, but only that the judgment be reversed, it is not material to determine the amount of damages it has sustained by reason of incompetence or neglect of the defendant in error.

The judment of the municipal court- will -be reversed.

Judgment reversed.


text:
    North Shore Lumber Company, Appellee, v. South Side Lumber Company, Appellant.
    Gen. No. 16,747.
    1. Evidence—agreement prior to written contract. A contract providing for the sale of specified lumber at a certain price, delivery on dock by plaintiff, shipment and payment by defendant at certain times, is complete, and in an action for the price evidence is not admissible concerning an alleged previous oral agreement by plaintiff that defendant might carry the lumber on a certain barge and that plaintiff would dredge the harbor so that a full cargo could be taken.
    2. Conteacts—written or oral. Whether the parties to a written contract intended to embody the whole contract in the writing is to be determined in the first instance from an inspection of the writing.
    3. Evidence—agreement prior to written contract. Where by a written contract defendant is under an unqualified obligation to ship lumber at certain times after it is piled on the dock, evidence to the effect that by a previous oral agreement such lumber need not be taken away until the harbor is dredged to accommodate a certain barge is inadmissible.
    4. Contracts—construed. Where lumber piled on a dock, and some to be thereafter sawed and piled there, is sold under a contract providing that “lumber to be carried on the docks ninety days, provided we have room, if not, there should be enough of said lumber moved after being sixty days in pile to give us the room,” such provision for removal applies to the lumber then on the dock as well as that to be sawed.
    5. Contracts—extension of time where performance delayed by buyer. Where the seller’s failure to have lumber in pile at the time specified in the contract is due in part to the buyer’s failure to remove certain lumber as agreed, the seller is entitled to a reasonable extension of time.
    6. Contracts—waiver of notice of breach. Where the seller gives the buyer notice before time for complete performance that the lumber contracted for cannot be delivered on the date specified, the contract is kept alive for the benefit of both parties if the buyer shows no intention to treat the notice as a breach but announces an intention to take certain lumber to which it has no right unless the contract is still in force, and insists on its right to have the contract quantity delivered.
    7. Contracts—when divisible. Where a contract for the sale of lumber provides, “Terms 2% off in ten days or sixty days’ acceptance; lumber to be shipped sixty days from completion of each one-half million sawed,” and is for delivery of two and one-half million feet within a certain time, the contract is divisible and the buyer’s promise is to pay for each separate shipment and not when the two and one-half million feet is delivered.
    8. Contracts—set-off. In an action for the price of lumber delivered under a contract, defendant, to maintain a claim of set-off, must show that he is not in default on such contract; and to recoup, the burden is on him to prove that he is not in default and that plaintiff failed to perform.
    9. Damages—measure of. The measure of damages for breach of contract to deliver lumber at a certain place at a certain time is the difference between the market price and the contract price at the place of delivery, and if no market there then at the nearest market with freight therefrom, with compensation for time, trouble and expense involved in procuring the lumber.
    Appeal from the Municipal Court of Chicago; the Hon. Oscar M. Torrison, Judge, presiding. Heard in this court at the October term, 1910.
    Affirmed.
    Opinion filed December 30, 1912.

      Edward Maher and Robert F. Kolb, for appellant.
    Herrick, Allen & Martin and Frank E. Harness, for appellee.
   Mr. Justice Baker

delivered the opinion of the court.

This action was for the price of a cargo of maple lumber delivered by the plaintiff, the North Shore Lumber Co., to the defendant, the South Side Lumber Co., on plaintiff’s dock at Thompson, Michigan, August 25, 1908, pursuant to the following contract:

“Chicago, Ill., Feb. 20th, 1908.
South Side Lumber Co., Chicago, Ill.
Gentlemen:
We propose to sell you our 1908 season’s cut up to Sept. 1st of hard maple lumber estimated to be three million feet including 700 M. now on dock to be principally cut to 4/4, cutting what thicker you may require to be delivered on dock not more than two piles deep at Thompson, Mich., including about 700 M. of dry maple now on our docks, and including about 75 M. strips at the following prices:
First and Seconds, $22.00 per M.
No. 1 Common, 16.00 per M. and
No. 2 or shipping culls, 12.00 per M.
Terms 2°/o off in 10 days or 60 days’ acceptance; lumber to be shipped 60 days from completion of each % million sawed. Lumber to be inspected by J. S. Co-man, Menominee, Mich., or some other competent inspector mutually agreed upon, each party to pay one-half the inspection fees and said lumber to be inspected according to National Hardwood Lumber Association Inspection of 1907. Lumber to be carried on the docks 90 days, provided we have the room, if not, there should be enough of such lumber moved after being 60 days in pile to give us the room.
It being particularly understood that we will deliver you by Sept. 1st not less than 2% million feet and up to 3 million feet if possible, including the 700 M. dry now on dock, and all lumber to be in pile not later than September 1st, 1908, and all such lumber to be removed before the close of navigation or settled for by Dec. 1st, 1908.
The North Shore Lumber Co.,
By A. M. Chesebrough, Secy.
Accepted South Side Lumber Co.
By J. J. Nichols.”

The contract price of the cargo was $3,123.14, and the judgment was for that sum and interest.

The contention of the appellant is that the plaintiff failed to keep and perform the contract, and that thereby the defendant sustained damages which it had the right to recoup or set off against the claim of the plaintiff for the price of the cargo. As a basis of this contention it is claimed that before the contract was signed the parties agreed orally that the defendant should have the right to carry the lumber in its barge, the Sawyer, and that the plaintiff should dredge the harbor at Thompson so that the Sawyer could take away a full cargo.

The contract is complete as written and does not include either an agreement that the defendant should have the right or privilege to carry the lumber by the Sawyer, or any agreement that the plaintiff should dredge the harbor at Thompson so that the Sawyer could carry away a full cargo. No oral evidence of the previous negotiations is admissible to show what the contract was, unless it appears that the writing was not intended to embody the whole contract, and the question whether the parties intended to embody the whole contract in the writing is to be determined in the first instance by an inspection of the writing itself, and not otherwise. Telluride Power Transmission Co. v. Crane Co., 208 Ill. 218; Osgood v. Skinner, 211 Ill. 229; Schneider v. Sulzer, 212 Ill. 93; Seitz v. Brewers’ Refrigerating Mach. Co., 141 U. S. 510.

In the case first cited it was said: “The questions as to what writings should be considered, and whether or not those considered constituted a written contract, and whether or not the written contract fully-expressed the agreement between the parties, were for the court. The rule is, that when the writings show, upon inspection, a complete legal obligation, without any uncertainty or ambiguity as to the object and extent of the engagement, it is conclusively presumed that the whole agreement of the parties was included in the writings. The fact that a point has been omitted which might have been embodied therein will not open the door to the admission of parol evidence in that regard.”

We are clear that evidence tending to show the alleged independent collateral contract was inadmissible.

Again, by the terms of the writing the defendant was obligated to ship the lumber at certain specified times after it had been piled on the dock. Its duty to take away the lumber according to such provisions was, under the terms of the writing, absolute and unqualified. Evidence to show that it was not bound to take away lumber, no matter how long it had been piled on the dock, until the harbor was so dredged as to accommodaté the Sawyer, was evidence tending to vary and contradict its own written undertaking, and for that reason was inadmissible. Ryan v. Cooke, 172 Ill. 302.

A further contention of the defendant is that it was not, under the contract, obligated to take from the dock any part of the 700,000 feet of dry lumber on the dock when the contract was made until the close of navigation. The contract provides that, “Lumber to be carried on the docks ninety days, provided we have the room, if not, there should be enough of said lumber moved after being sixty days in pile to give us the room.”

We concur in the conclusion stated by the learned trial judge that this provision applies to the 700,000 feet then on the dock, as well as to lumber sawed after the contract was made; that the defendant was bound to ship the 700,000 feet of lumber whenever after the expiration of sixty days from February 20 the plaintiff needed the room which it occupied, and in any event was bound to ship said lumber in ninety days from February 20.

The lumber first taken by the defendant from the dock was the cargo of 161,054 feet taken June 23, and the next was the cargo of 202,515 feet taken July 14. This delay was not caused by any fault or omission on the part of the plaintiff, and because of it the plaintiff was hindered and delayed in the manufacture of lumber under the contract. June 3 it was compelled to shut down its mill because its piling space was filled, and it did not resume operation until shortly after July 4. If the 700,000 feet of dry lumber in question had been removed by defendant before June 3, the plaintiff could have run its mill fifteen working days, or allowing for Sundays, two weeks and a half longer than it did. . The failure of the plaintiff to have not less than two and one-half million feet in pile by September 1 was caused in part by the defendant’s delay and default in removing the dry lumber from the dock, and the plaintiff was entitled to a reasonable extension of time in which to saw and pile the remainder of the lumber. T. Wilce Co. v. Kelley Shingle Co., 130 Mich. 319; Tyers v. Rosedale Ferry Hill Co., L. R. 10 Exch. 195.

August 26 the plaintiff wrote the defendant it could not from its plant get out two and one-half million feet during the shipping season. When a party to a contract receives notice of an intended breach by the other party, he may either act on it immediately and refuse to be further bound by the contract, or he may disregard it and treat the contract as still unbroken and in full force and effect.

In Kadish v. Young, 108 Ill. 170, the supreme court stated the rule as follows, quoting from the opinion of Cockburn, C. J., in Frost v. Knight, L. R. 7 Exch. 111: “The promisee, .if he pleases, may treat the notice of intention (i. e., not to perform the contract) as inoperative, and await the time when the contract is to be executed, and then hold the other party responsible for all the consequences of nonperformance; but in that ease he keeps the contract alive for the benefit of the other party as well as his own. He remains subject to all his own obligations and liabilities under it, and enables the other party not only to complete the contract, if so advised, notwithstanding his previous repudiation of it, but also to take advantage of any supervening circumstances which would justify him in declining to complete it.”

The defendant on the receipt of the letter of August 26 manifested no intention to treat the notice contained in it as a breach of the contract. Its next letter demanded how much lumber was in pile. On September 14, in the letter in which it announced its intention to withhold payment for the last shipment, and also on September 21 and 26 when it announced its intention to take the lumber which was in pile in August, which it could not possibly have any right to do unless the contract was still in force, and throughout the correspondence it was insisting on its right to have the full contract quantity of lumber delivered. This conduct “kept the contract alive for the benefit of the other party” and enabled the plaintiff “to take advantage of any supervening circumstances which would justify him in declining to complete it.” Frost v. Knight, supra. Payment for the cargo taken from the dock by the defendant August 25 came due September 4. The defendant had by its conduct kept alive the contract for the benefit of the plaintiff, as well as its own. The contract between the parties is a divisible, separable or apportionable contract. The promise of the defendant was not a promise to pay for the lumber when the full amount of 2,500,000 feet was delivered, but a promise to pay for each separate shipment. “Confusion is often caused by failure to observe the distinction between several contracts and a divisible, separable or apportionable contract. An apportion-able contract enables a certain part of the payment or performance on one side to be recovered before the whole consideration has been given by the other side, but there is nevertheless but a single contract.” Parsons Cont. (9th Ed.), 673.

We concur in the finding of the trial court that up to September 4 there had been no breach of the contract on the part of the plaintiff, and that the failure of the defendant to pay for the cargo of August 25 was a breach of the contract on its part, and that because of such breach it could not maintain an action to recover damages for the failure of the plaintiff to fully perform its part of the contract. To maintain its claim of set-off the defendant must show that it was not in default as to the contract on which it based its claim and to recoup the burden was on it to prove that the plaintiff had failed to perform the contract, and that it was not itself in default as to that contract. Harber Bros. Co. v. Moffat Cycle Co., 151 Ill. 85; Pennsylvania Coal Co. v. Ryan, 107 Ill. 226; Bradley v. King, 44 Ill. 339.

In the case last cited where one million feet of lumber was purchased to be paid for as delivered, and the purchaser accepted a cargo some time after it should have been delivered, it was held that such acceptance placed the purchaser under the same obligation as to payment as he would have been had the lumber been delivered and accepted within the time stipulated in the contract, and if the purchaser refused to perform the obligation on his part, the vendor was excused from further performance. Because the evidence shows that the defendant was in default as to the agreement on which it based its claim of set-off and its right of recoupment, it failed either to maintain its claim of set-off or to prove any right of recoupment.

There is another ground on which the judgment must be affirmed. The contract provided that all the lumber should be in piles by September 1. If there was a breach of the contract by the plaintiff, it occurred at that time. The defendant offered no evidence tending to show that the lumber could not then have been obtained in the market. Its claim is that it does not appear that the lumber could have been obtained in the market October 3 or 13, when it first knew that the plaintiff would not furnish the remainder of the lumber it was required by the contract to furnish. The evidence relied on as showing damages is evidence tending to show loss of profits. We concur in the finding of the trial court, “that the evidence fails to establish that defendant had sustained such damages by delay or failure to deliver at that time or at any time; the court finds that from the evidence that there was a market and supply of hard maple lumber such as contracted for from September 1 to December 1 or close of navigation, 1908, and holds that the measure of damages, if any, for a breach, if any, on the plaintiff’s part of this contract to deliver would have been the difference between the market price and the contract price at place of delivery, and if no market there, then at nearest available market with added freight and compensation for time, trouble and expense involved in procuring the goods from such market and that the loss of profits contended for is not the measure of damages where there is a market and a market value.”

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

Affirmed.


text:
    Sam Weinshenker, Defendant in Error, v. Elias Epstein, Plaintiff in Error.
    Gen. No. 16,766.

      Broker—license. A real estate broker who has not taken out a license as required by a city ordinance cannot recover commissions for sale of defendant’s real estate although employed by a corporation licensed as a broker.
    Error to the Municipal Court of Chicago; the Host. William N. Cottrell, Judge, presiding. Heard in this court at the October term, 1910.
    Reversed.
    Opinion filed December 30, 1912.
    Peter Sissman, for plaintiff in error.
    Nicolas J. Pritzker, for defendant in error.
   Mr. Justice Baker

delivered the opinion of the court.

This is an action of the fourth class brought by defendant in error in the municipal court against plaintiff in error to recover commissions claimed to have been earned by plaintiff as broker, for the sale of certain real estate of defendant. An ordinance of the City of Chicago makes it unlawful for any person to exercise within the city the business of a real estate broker without taking out a license, and it is settled law that such broker cannot recover commissions unless he had a license when the sale was made. The ordinance only applies to persons who make the negotiation of sales of real estate a business or occupation, and not to one who is not in the business, but negotiates a single sale. O’Neill v. Sinclair, 153 Ill. 525. The sale for which commissions were claimed was negotiated December 6, 1909. In answer to the interrogatory propounded to him, “What is your business,” plaintiff answered, May 2, 1910, “Beal estate broker.” On this trial the interrogatory and answer were put in evidence and plaintiff testified, “I am with C. E. Eulette & Company.” He further testified that he had half a dozen customers for defendant’s property, and showed it to about ten people before the contract was signed. It also appeared that defendant bought the property through plaintiff’s office, and that his office was at 167 Dearborn Street. The ordinance further provides that any person employed by a person or corporation licensed as a broker who shall himself engage in the business or act in the capacity of a broker, shall, notwithstanding the fact of such employment, be amenable to the provisions of the ordinance and shall be required to take out a broker’s license. It was admitted by plaintiff’s attorney on the trial that no license ever issued to plaintiff individually. We think that it clearly appears from the evidence that plaintiff was engaged in the business of a real estate broker when he negotiated the sale in question, and that he in that capacity negotiated the sale for which he recovered commissions.

It follows from what has been said that in our opinion the plaintiff was not entitled to recover from the defendant and the finding and judgment should have been for the defendant.

The judgment of the municipal court will therefore be reversed

'Reversed.


text:
    O. E. Florin and Edwin M. Clark, Appellees, v. Charles Rayman, Appellant.
    Gen. No. 19,009.
    1. Injunctions—where prima facie case for specific performance made. Where a hill to enforce specific performance of a contract for the purchase of real estate shows a prima facie case, a temporary injunction to restrain defendant from prosecuting a suit to recover a deposit paid on such purchase is properly granted.
    2. Injunctions—appeal. On appeal from an interlocutory order granting an injunction, defendant is in the same position as though he had demurred to the bill and can raise only such questions as he could have raised by demurrer.
    3. Specific pebfobmace—statute of frauds. The defense of the statute of frauds to a bill for specific performance of a contract to convey land can be raised by demurrer only where it appears from the face of the bill that the contract isi not evidenced by a writing duly signed.
    4. Injunctions—joinder of improper party as complainant not reversible error. On an appeal from an interlocutory order granting an injunction, the joining of an improper party as complainant is not reversible error where it worked no injury to defendant.
    Appeal from the Superior Court of Cook county; the Hon. Henry V. Freeman, Judge, presiding. Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed December 30, 1912.
    Jonas, Morley & Hess, for appellant.
    Julius Limbach, for appellees.
   Mr. Justice Baker

delivered the. opinion of the court.

Appellees Florin and Clark filed their sworn hill in the superior court against appellant Rayman for the specific performance of a contract between Clark and Rayman for the purchase by Rayman of the improvements on certain real estate of Clark and the leasing of said real estate for ninety-nine years by Clark to Rayman, with an option to purchase the fee at a certain price within a certain time, and for an injunction to restrain Rayman from prosecuting a suit in the municipal court against the complainants to recover five hundred dollars paid by him to Florin as a deposit to apply on the purchase price of said improvements. On notice to defendant an order was entered that a writ of injunction issue as prayed in the bill on complainants filing a-bond, etc.

The purpose of the bill is to enforce the specific performance of a contract for the purchase of an interest in real estate, and the jurisdiction of a court of equity to enforce specific performance of such a contract is not questioned. The bill alleges that the money which Rayman by bis suit in the municipal court sought to recover was paid as a deposit on the contract. The injunction is merely ancillary and is necessary to full relief if there is a contract the court will enforce specifically. A temporary injunction in such a case is warranted wherever a prima facie case for specific performance is shown. Chambers v. Alabama Iron Co., 67 Ala. 353; Fry on Specific Performance, secs. 1122-1123; High on Injunctions (4th Ed.), sec. 1120.

We think that the facts stated in the bill make a prima fade case for specific performance.

The appeal was taken from the interlocutory order granting an injunction, and the case stands as though the defendant had demurred to the bill, and he can raise here the questions, and only the questions, which he could have raised by demurrer. Herzberger v. Barrow, 115 Ill. App. 79.

The contention of appellant here that the order granting an injunction was improper because Florin had no written authority from appellant to make the contract, cannot be sustained. The defense of the statute of frauds to a bill for the specific performance of a contract to convey land can be raised by demurrer only where it appears from the face of the bill that the contract is not evidenced by a writing duly signed. Fowler v. Fowler, 204 Ill. 82; Hamilton v. Downer, 152 Ill. 651.

If it be admitted that Florin was not a proper party complainant, the joining of him as a complainant worked no injury to the defendant and is no ground for reversing the order for an injunction. Stookey v. Carter, 92 Ill. 133.

We think that on the facts stated in the bill the chancellor properly granted a temporary injunction, and the order appealed from is affirmed.

Affirmed.


author: Mr. Presiding Justice Smith

text:
    Mississippi Lumber Company v. John K. Joice et al. Charles F. Thompson et al., Appellees, v. John K. Joice et al., Appellants.
    Gen. No. 15,957.

      Equity—cross-bill. A cross-bill is properly dismissed where not germane to the original bill.

      Appeal from the Circuit Court of Cook county; the Hon. George A. Carpenter, Judge, presiding. Heard in this court at the October term, 1909.

      Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed December 30, 1912.
    Archibald Cattell, for appellants.
    Charles E. Pope and D. A. Clithero, for appellees; John S. Miller, of counsel.
    Defress, Buckingham, Ritter & Campbell, for Mississippi Lumber Company.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

The decree in the above-entitled cause is reviewed and as modified affirmed in Mississippi Lumber Co. v. Joice, post, 110, in an opinion filed this date, to which we refer for a more detailed statement of the case and the issues involved. The said decree was in part as follows; “That the cross-bill herein is not germane to the original bill, and is without equity, and that the same should be and is dismissed for want of equity.” The cross-complainants bring this appeal to reverse the said decree only as to the dismissing of the said cross-bill. By the cross-bill the cross-complainants sought to recover individually the secret profit claimed to have been made by Joice, Pope and Pate in the transaction in question; but it is stated by them that if this court affirms the decree finding that the Mississippi Lumber Company is entitled to the relief therein ordered, it is not their desire to urge the reversal here sought.. However, we think that the cross-bill was properly dismissed as not germane to the original bill, and the decree as here appealed from is affirmed.

Affirmed.