text:
    Horace H. Stoddard, Appellee, v. Illinois Improvement & Ballast Company, Appellant.
    Gen. No. 20,972.
    1. Mines and minerals, § 22

      —when covenant to work quarry implied. Where a lease demises land for the purpose of quarrying stone, and contains a covenant to pay to lessor in lieu of rent a royalty of a stated amount on each 2,500 pounds of stone removed therefrom under the terms of the lease, the law implies a covenant on the part of lessee and his assigns to work the demised premises 'with reasonable diligence and in a proper manner so that lessor may receive the contemplated returns from the lease.
    2. Mines and minerals, § 22

      —when right to use land for other purposes not excuse for failure to work quarry. Where a lease demises premises for the purpose of quarrying stone, it is immaterial whether or not lessee had also the right to make use of the land for other purposes, such as for cultivation, such right if possessed not tending to excuse lessee for failure to perform the duty of working the quarry with reasonable diligence, and such fact not being competent in mitigation of damages in an action to recover for such failure.
    3. Landlord and tenant, § 415

      —when assignee of lease takes subject to obligations of assignor. In an action to recover for breach of the covenants of a lease whereby premises were demised by plaintiff for the purpose of quarrying stone, where defendant is the assignee of the original lessee, the fact that defendant, in accepting^ such assignment, did not expressly assume and agree to perform the covenants imposed by the lease on the original lessee is immaterial, it appearing that defendant based his right to possession of the demised premises on the lease, for the reason that defendant stands in the shoes of such lessee and is thereby precluded from asserting that it is not bound by the duties and obligations of such lessee as determined by the lease.
    4. Pleading, § 117

      —when allegations not denied stand as admitted. In an action to recover for breach of the covenants of a lease, demising premises for the purpose of quarrying stone, which action was originally commenced in the Municipal Court of Chicago, and where plaintiff’s pleadings allege that at the time defendant entered into possession under an assignment of such lease the demised premises contained large quantities of stone suitable for quarrying, such allegations stand admitted under the rules of such court where they are not denied in defendant’s affidavit of merits, and where defendant admits that it never removed any stone from such premises.
    5. Pleading, § 117

      —when evidence to support undented allegation not necessary. In an action to recover for breach of the covenants of a lease demising premises for the purpose of quarrying stone, defendant cannot assert in defense that the demised premises contained no stone fit for quarrying, nor is plaintiff required to offer any evidence to prove such fact in order to maintain the action, where defendant does not set up such defense in its affidavit of merits, for the reason that such defense is thereby waived and is unavailable at the trial.
    6. Mines and minerals, § 35

      —when lessee estopped to set up unsuitability of land for purpose for which leased. In an action to recover for breach of the covenants of a lease demising premises for the purpose of quarrying stone, which demise was until “January 2, 1913, or as long thereafter as( the property is suitable for quarrying purposes,” defendant is precluded from asserting that there is no evidence that the demised premises contain stone suitable for quarrying purposes which with reasonable skill and diligence might have been removed with profit where defendant retained possession of such premises after such date, it also appearing that defendant’s assignor worked the quarry with profit to plaintiff.
    7. Mines and minerals, § 35

      —what instruction as to measure of damages for breach of quarry lease proper. In an action to recover for breach of the covenants of a lease demising premises for the purpose of quarrying stone, wherein lessee in lieu of rent agreed to pay a royalty on each 2,500 pounds of stone removed therefrom, and where the injury sought to be recovered for' consisted in the failure of defendant to work the quarry, an instruction that the measure of damages was the difference between the amount of agreed royalty on the stone which defendant ought to have removed and on the amount actually produced, if any, held to state the correct rule of law.
    8. Mines and minerals, §22

      —when lessee not relieved from liability. Lease providing for payment of royalty on stone quarried construed as not relieving lessee from obligation to work quarry merely because it could not be worked at a profit.
    9. Appeal and error, § 479

      —when error in instruction not reviewable. Where a party fails in the trial court to make specific objection to an instruction, such party is precluded from asserting on appeal that such instruction was erroneous.
    10. Contracts, § 177

      —when construction to effectuate intents of parties favored. In an action to recover for breach of the covenants of a lease demising premises for the purpose of quarrying stone, where defendant failed to use reasonable diligence in operating the quarry, the fact that during defendant’s occupation of the premises under the lease no stone was removed by it is competent on the question of damages, for the reason that in such case defendant could not retain possession of the demised premises and arbitrarily refuse to operate the quarry, as such a construction of the contract would be absurd, and lead to results clearly not contemplated by the parties.
    11. Mines and minerals—when instruction as to measure of damages properly refused as misleading. In an action to recover for breach of the covenants of a lease demising premises for the purpose of quarrying stone, whereby lessee agreed in lieu of rent to pay plaintiff a royalty on each 2,500 pounds of stone removed, an instruction that the amounts paid plaintiff by the original lessee and an assignee of such lessee, both of whom operated such quarry and under assignment from whom defendant derived its title to occupy the demised premises, were not the measure of plaintiff’s .damages in this action held properly refused, as tending to mislead the jury, as though such amounts were not the measure of plaintiff’s damages in this action, such amounts were evidence competent to be considered by the jury in connection with other evidence in determining how much stone, if any, defendant could have removed by the exercise of reasonable diligence.
    12. Mines and minerals, § 85

      —when damages not excessive. In an action to recover for breach of the covenants of a lease whereby plaintiff demised premises to defendant’s assignor for the purpose of quarrying stone, which lease contained a covenant to pay to plaintiff in lieu of rent a stated sum on each 2,500 pounds of stone quarried under the lease, a verdict for plaintiff for $2,500, held reasonable under any view of the evidence, where it appeared that defendant breached the lease by retaining possession and failed to work the quarry at all for a period of about three and one half years prior to the bringing of the action.
    Appeal from Municipal Court of Chicago; the Hon. Henry C. Beitleb, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed December 8, 1915.
    Rehearing denied December 21, 1915.
    Statement by the Court. Horace H. Stoddard, appellee, hereinafter called the plaintiff, brought suit, against the Illinois Improvement & Ballast Company, a corporation, appellant, hereinafter called the defendant, in the Municipal Court of Chicago, in an action of the first class. The case was tried before a court and jury, and there was a verdict returned awarding the plaintiff $2,500 damages. Judgment was entered upon the verdict and the defendant has prayed this appeal.
    In the amended statement of claim it is alleged: Plaintiff’s claim is for the recovery of certain damages resulting from the defendant’s failure to comply with a certain lease to develop and quarry rock in certain premises theretofore leased by the defendant (a copy of which lease is attached and made a part of said statement); which said lease was on January 2, 1903, executed by Bales & Son, who in said indenture covenanted to pay the plaintiff for rent of said premises, at the rate of six cents per yard for stone removed from said premises and (after the first year) nine cents per yard for rubble stone; that said leasehold was to continue to January 2, 1913, or as long thereafter as the property was suitable for quarrying purposes; that Bales & Son entered upon said premises and found therein stone suitable for quarrying purposes and quarried the same, and thereafter assigned said lease to M. J. Carpenter, doing business as the La Grange Stone Company, who quarried from said premises large quantities of stone until December, 1910, paying to the plaintiff as royalties and rent upon the said premises $12,046.08; that on December 6,1910, Carpenter assigned said lease to the defendant who thereupon took possession of the premises and all the improvements thereon; that the defendant was under a duty to proceed with due diligence to develop the said premises, which then contained and still does contain large quantities of stone 'for quarrying purposes; that the defendant by reason of said assignment became liable to fulfil and carry out the obligations of its predecessors to proceed and develop said land under the terms of said lease; but the defendant disregarded its implied duty in that behalf under said lease, and wholly failed and refused and still continues to fail and refuse to proceed and develop said premises for quarrying purposes, contrary to the full intent of said lease and the covenants therein expressed and implied. By reason whereof plaintiff has received nothing for the use and occupation of said premises by defendant since December 1, 1910, and has received no rent or royalties since that date and the plaintiff has also been damaged because of the defendant’s failure to quarry rock from said premises; to the damage of the plaintiff in the sum of $7,500.
    The defendant’s affidavit of merits alleges: “1. That the only obligation of the defendant to the said plaintiff arises under a certain lease and assignments thereof to it, copies of which are to the answers of this defendant to interrogatories attached, pursuant to which this defendant went into possession of the premises by said lease demised on, to-wit: December 6, 1910; that since which time this defendant has not removed from the said premises any stone of any kind and under which lease and assignments thereon this defendant was not required to quarry stone from said premises. 2. That this defendant did not promise or undertake with the plaintiff that it would operate or develop the premises conveyed by said lease by quarrying stone therefrom. 3. That the entire obligation of the defendant is in the terms of said lease and assignments thereof referred to under the heading 1 above. 4. That the defendant did not promise the plaintiff that it would develop and quarry stone upon the land and with due diligence fully develop the said premises which were by said lease and assignments thereof referred to under heading 1 conveyed to this defendant. 5. Plaintiff has not suffered any damage as set out in said statement of claim.' 6. That defendant is not indebted in any amount as set out in said statement of claim. 7. That there is no custom of the country where the land or premises conveyed by said lease and assignments thereof, referred to under heading 1 above, were situated that defendant should develop or quarry stone upon said lands or premises.”
    The plaintiff is the owner of a 480-acre farm near La Grange, Cook county, Illinois. On January 2, 1903, he and Bales & Son entered into a lease, the material portions of which are as follows:
    “This indenture made this 2nd day of January, 1903, between H. H. Stoddard, party of the first part, and L. Bales & Son, party of the second part WITNESSETH:
    That Stoddard in consideration of the covenants and agreements hereinafter mentioned to be kept and performed by Bales & Son, their executors, administrators, successors and assigns, has demised and leased to Bales & Son, a tract of land (describing it) containing 10 acres more or less in Cook County, Illinois.
    To have and to hold said premises with the appurtenances unto Bales & Son, their executors, successors and assigns from January 2, 1903, until January 2, 1913, or as long thereafter as the property is suitable for quarrying purposes.
    Said Bales & Son in consideration of the leasing of said premises covenant and agree with Stoddard, his heirs, etc., to pay Stoddard as rent for said demised premises, the sum of six cents per yard of 27 cubic feet, or 2,500 pounds, for stone removed from the above described premises; and it is further agreed after the first year if good rubble stone is found and sold, it is to be paid for at the rate of nine cents per 2,500 pounds or cubic yard, payable quarterly on the first days of January, April, July and October of each year, during said term.
    Stoddard is to have the privilege of examining the books of Bales & Son whenever wanted, after payments are due to verify the accounts rendered.
    It is agreed by Bales & Son, their heirs, etc., that the whole amount of rent reserved and agreed to be paid for said demised premises and each and every installment thereof shall be and is hereby declared to be a valid and first lien upon any and all buildings and improvements on said premises, or that may at any time be erected on said premises by Bales & Son, their heirs, etc., and upon his or their interest in this lease and the premises hereby demised.”
    On August 15,1905, this lease was assigned by Bales & Son to Myron J. Carpenter and his assigns; and on December 6,1910, it was assigned by Carpenter to the defendant company.
    Knapp & Campbell, for appellant; John R. Cochran, of counsel.
    Earl J. Walker, for appellee.

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

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

   Mr. Presiding Justice Scanlan

delivered the opinion of the court.

The following are the only grounds urged by the defendant for the reversal of the judgment: (1) “The motion made at the close of all the evidence to direct a verdict for the defendant should have been granted.”. (2) “Appellant did not expressly or impliedly covenant and agree with the appellee to remove stone from the demised premises.” (3) “The burden of proof was upon the appellee to establish that the demised premises contained stone suitable for quarrying purposes, and by the exercise of reasonable skill and diligence could have been profitably removed.” (4) “The court erred in the admission and exclusion of evidence.” (5) “The court erred in its charge to the jury and in its refusal to charge as requested by appellant.”

As to the first of these contentions, the defendant insists that it was error for the court to refuse to direct a verdict for the defendant, for the reason that the plaintiff predicated his right of recovery in the present case solely upon the theory that the lease in question was for a single purpose, viz., to develop and quarry rock; whereas, under the terms of the lease, the defendant had the right to make other uses of the premises. It is a sufficient reply to this contention to say, that under the terms of the said lease, the law implied a covenant on the part of the lessees and their assigns to work the quarry with reasonable diligence, and in a proper manner, so that the lessor might receive the returns contemplated in the lease (Watson v. O’Hern, 6 Watts (Pa.) 362; In re Koch’s Appeal, 93 Pa. St. 434; Daughetee v. Ohio Oil Co., 263 Ill. 518; Id. 151 Ill. App. 102; 1 Taylor on Landlord and Tenant [1904] sec. 369); and it is no answer to the present suit to say that the defendant had the right under the lease to till the land, or make other uses of the premises than removing stone therefrom. If such a right existed, it would not affect the defendant’s duty to work the quarry, nor would it tend to lessen the damages of the plaintiff in the present suit. We do not wish to be understood, however, as intimating from what we have said, that we think that the defendant, under the terms of the lease, had the right it claims.

In support of its second contention, the defendant relies upon Chicago & W. I. R. Co. v. Chicago & E. I. R. Co., 260 Ill. 246. That decision is not an authority in favor of the defendant’s present contention for the reason that the lease in that case was of a different character from the one now under consideration. The cases that we have cited in passing upon the defendant’s'first contention are adverse to its present one and dispose of it.

In connection with its second contention the defendant argues that: “It by no means follows that if the appellee’s contention, that the lease contains certain implied covenants be sustained, that he is entitled to relief which the lower court granted him as against this appellant. The assignment to the appellant by Carpenter was a mere assignment of Carpenter’s rights, but without any assumption on the part of the appellant of Carpenter’s obligations, if any, under the lease. The same is true of the assignment by Bales & Son to Carpenter. Therefore, the judgment below cannot be sustained upon the ground that the appellant had contracted with the appellee and that by reason of certain express provisions of the contract other implied provisions must be read into it. What the appellee’s rights may be against Bales & Son growing out of the contract which he made with them is not, of course, a question that is involved in this case. Had the appellant assumed and agreed to perform the covenants and agreements of Bales & Son an entirely different question would be presented. ’ ’ The fact that the defendant bases its right to possession of the premises on the lease would seem to preclude it from taking this position. The defendant, clearly, stands in the shoes of the original lessee, and its rights, duties and obligations are to be determined by the lease entered into by the plaintiff and Bales & Son.

As to the third contention of the defendant it is said, that “it is alleged in the statement of claim at the time the appellant took possession of the demised premises the property contained large quantities of stone suitable for quarrying purposes. The appellee having alleged that the quarry contained stone that could have been, but was not, quarried, undertook the burden of proving those facts. The facts so alleged are a necessary part of the plaintiff’s cause of action. It is obvious that if there was no stone to be quarried there was no obligation to quarry, and therefore, the plaintiff was not damaged. ’ ’ The plaintiff’s statement of claim sets forth that “Bales Son entered upon the said premises and found therein stone suitable for quarrying purposes and quarried said stone and thereafter assigned said leasehold interest to Myron J. Carpenter, * * * and said lessee and assignee did quarry from said premises large quantities of stone until the month of December, 1910, paying to the said plaintiff herein as royalties and rent upon the said premises the sum of $12,046.08 * * * that on to-wit: the 6th day of December, 1910, the said Myron J. Carpenter by an instrument in writing assigned the said lease to the defendant herein who thereupon took possession of the said premises * * * which then and still contains large quantities of stone suitable for quarrying purposes.” As these allegations of fact are not denied in the defendant’s affidavit of merits, they stand admitted, under the rules of the Municipal Court introduced in evidence. The sole defense stated by the defendant in its affidavit of merits, save the one that the plaintiff was not damaged, is, in substance, that under the terms of the lease and assignments thereof, and regardless of the question as to whether the defendant could quarry stone profitably, the defendant was not required to remove stone from the premises and develop the premises by quarrying stone therefrom; and the defendant admits in the said affidavit that it has never removed any stone from the premises. All defenses, the nature of which are not stated in the affidavit of merits, are considered waived by the defendant and are unavailable on the trial. Kadison v. Fortune Bros. Brewing Co., 163 Ill. App. 276; Hamill v. Watts, 180 Ill. App. 279; West Coast Timber Co. v. Hughitt, 185 Ill. App. 500. The defendant did not interpose as a defense that it could not profitably remove the stone from the premises (in fact, it admits that it never made any effort to do so), and it predicates its sole defense upon the terms of the lease and the assignments thereof. Its defense, save in the matter of damages, only called for a construction of the lease and assignments. It appears that Carpenter worked the quarry with profit to the plaintiff, but that as soon as the defendant obtained possession of the premises from Carpenter no more stone was removed, but the defendant still insists on holding possession of the premises, without making any effort to work the quarry and without paying any royalty to the plaintiff. The lease provided that the lessee should have and hold the premises until January 2, 1913, “or as long thereafter as the property is suitable for quarrying purposes.” The defendant retained possession of the premises after January 2,1913, by virtue of the aforesaid clause, and it, therefore, seems rather inconsistent, to say the least, that it should contend in this case that there is no evidence to establish the fact that the premises contains stone suitable for quarrying purposes, that by the exercise of reasonable skill and diligence could be profitably removed.

As to the contention of the defendant that the court erred in the admission and exclusion of evidence, we are satisfied, in view of the sole defense set up in the affidavit of merits and the nature of the same and the admitted facts in this case, that it is without the slightest merit. The statement of counsel that “according to the theory of the trial judge, it was the appellant’s duty to get out this stone even if, after it was gotten out, it could not be sold at a price which would yield a profit,” and that because of the said theory the defendant was not allowed to show that it could not work the quarry at a profit, is not warranted by the record. Both in the oral charge and by statements made during the course of the trial, the trial court held that if the defendant by the exercise of reasonable skill and diligence could not operate the quarry at a profit, the case of the plaintiff failed. We are of the opinion that the court erred in so holding. Under the lease in question, the defendant was not released from its obligation to work the quarry merely because the same could not be worked at a profit; and furthermore, the defendant persisted in retaining possession of the premises by virtue of the lease, and we think it is thereby precluded from'claiming that the quarry could not be operated at a profit, especially in view of the clause in the lease (to which we have heretofore referred) under which the defendant held possession of the premises, after January 2, 1913. It would be a strange doctrine if the defendant, by virtue of the lease, could hold possession of the premises, in the manner that it did, and at the same time be heard to say that the quarry could not be worked at a profit. The nature of the sole defense interposed in the affidavit of merits would also prevent the defendant from now asserting that the quarry could not be worked profitably.

The defendant contends that the court erred in giving the following part of the oral charge to the jury: “You are instructed that if you find for the plaintiff you have a right to and may consider the amount of the plaintiff’s damages and in arriving at your verdict you should subtract from the amount of stone which you find should have been quarried from the premises during the period from December 6, 1910, to September 10, 1913, the time of bringing this suit, the quantity actually produced, if any, and allow the plaintiff 6 cents per yard of such difference.” As the defendant made no specific objection to the aforesaid part of the charge, at the time it was made, it is not now in a position to complain of the same. In any event, there is no merit in the complaint as the trial court announced the correct rule. Daughetee v. Ohio Oil Co., 151 Ill. App. 102.

The defendant contends that under the charge to the jury the latter were not authorized to consider, in estimating the damages, the fact that no stone had been removed from the premises. This contention is answered by the Supreme Court and adversely to the defendant, in Daughetee v. Ohio Oil Co., 263 Ill. 518-527.

The defendant contends that the court erred in the following portion of the charge: “The jury are instructed that the burden of proving by a preponderance of the evidence that from the 6th day of December, 1910, to the 10th day of September, 1913, the defendant in this case could, by the exercise of reasonable skill and diligence, have operated the quarry referred to in the evidence in this case and have made a profit by such operation over and above all the cost of operating said quarry and of selling the product thereof, rests, with the plaintiff, and that if the plaintiff failed to show by a preponderance of the evidence that said quarry could be operated during said time at a profit over and above the cost of operation and selling the product thereof, then they should find a verdict for the defendant.” This charge would have been erroneous for reasons that we have heretofore stated. However, as we have previously said, the trial court did charge the jury that if they believed from the evidence that the defendant could not by the exercise of reasonable diligence and skill during the said period have made a profit thereby over and above all the costs of operating the quarry and of selling the products thereof, then they should find the issues for the defendant.

The defendant next contends that the court erred in refusing to charge the jury, as requested by the defendant, as follows: ‘ ‘ The jury are instructed that if under the evidence and the instructions in this case they find a verdict for the plaintiff, then they are further instructed that the amount heretofore paid to the plaintiff by those who operated the quarry described in the evidence in this case prior to the 6th day of December, 1910, is not the measure of the amount of the verdict which they should find in this case, if they find a verdict for the plaintiff.” This charge would have tended, in our judgment, to have misled the jury. While it is true that the amounts paid to the plaintiff by Carpenter “are not the measure of the amount of the verdict” which the jury should find in this case, nevertheless, this evidence was proper for the jury to consider, together with all the other facts and circumstances in the case, in determining the amount of stone, if any, that could reasonably have been removed by the defendant. Daughetee v. Ohio Oil Co., 151 Ill. App. 102.

The defendant insists that under the lease and the assignment, it may retain possession of the premises in question without making any effort to remove stone from the quarry; that it may escape paying the plaintiff any royalty and may deprive him of the opportunity to work the quarry himself, or to permit others to do so. It would be a serious commentary on the law, if this position could be successfully maintained. The law, however, reads the lease differently from the defendant. The plaintiff is clearly entitled to recover; the damages awarded are reasonable in any view of the evidence (in fact, none of the defendant's five contentions question the amount of the same), and the judgment of the Municipal Court of Chicago should be, and it is, affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Scanlan

license: Public Domain

text:
    Ben Abramowitz, Appellee, v. N. Langknecht, Appellant.
    Gen. No. 20,977.
    1. Judgment, § 242

      —when not invalidated by abbreviations in minute. While a minute of the proceedings in a cause is ineffective as a record of a judgment as being in conflict with section 18 of the schedule of the Constitution of 1870, requiring all judicial proceedings to be in the English language, yet such a minute is sufficient to enable the clerk properly to enter a judgment of record.
    2. Judgment, § 242

      —when insufficiency of record does not affect validity of judgment. Although the record of a judgment as it stands may be invalid, by reason of the use of abbreviations, the judgment is not thereby rendered invalid, as it is within the right and power of the judgment creditor to have a valid record of the judgment entered.
    3. Quieting title, § 11

      —when relief refused for failure to do equity. In an action in chancery to remove a cloud on title, where the cloud sought to be removed was a sale under an execution issued to enforce a judgment which complainant still owed, on the ground that the record of the same was invalid as not being in the English language, a decree relieving against the judgment without decreeing the payment of the judgment as a condition precedent to the relief granted, held erroneous, as until such payment is made or tendered, complainant cannot be said to have done equity, the maxim, “He who seeks equity must do equity,” being applied to the case.
    4. Quieting title, § 62

      —when tender of equity essential in hill. Whenever the object of an action is to remove a cloud on title, complainant must in his bill expressly offer to do equity.
    5. Quieting title, § 84

      —when relief against payment of judgment debt denied. In a suit in chancery to remove an alleged cloud in title, consisting of a sale on execution issued to enforce a judgment, the record of which was invalid as not being in the English language, a court of equity will not relieve against the judgment where complainant has had his full day in court and where it has been adjudged that complainant owes the judgment, as equity will not aid a party to avoid payment of a debt.
    Appeal from the Superior Court of Cook county; the Hon. Denis E. Sullivan, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Reversed and remanded with directions.
    Opinion filed December 8, 1915.
    Statement by the Court. The appellee, Ben Abramowitz, filed a bill in chancery in the Superior Court of Cook county against the appellant, N. Langknecht. The bill alleged that the appellee was the owner of certain real estate (describing it) of the value of $5,000; that on June 19, 1909, one Benjamin Class-man recovered an alleged judgment of $200 in the Municipal Court of Chicago against the appellee, and that said judgment was thereafter assigned to Leopold Saltiel; that the only record of said alleged judgment upon which the lien and levy hereinafter set forth were and are founded was the following:
    “No. 39917 Tort 1000
    Papers filed and writs issued 1909
    Feby. 25. Prae & state of claim fid sum 9:30 AM Mar 4 to Boom No 1001 •iss retb
    demand for tr by J. & Affdts filed
    Feby 27 Sum fig Nov 2-26 J
    Nov 1 Exn iss 80264 B
    PM elks fees 1100 Deft Clrk’s fees 2
    BM 100 1000 00
    Date Papers filed and writs issued
    Mch 4 App. fid.
    June 2, 1909 Verd. Fid.
    June 3, No. for new tr fid J
    June 29, 09 stay of exec bond fid
    June 28 Writ of error fid.
    July 16 Not fid.
    July 16 draft order fid.
    Aug. 4 B. of ex fid
    Aug 26 Trans iss to App Ct
    Orders entered
    Bate Judge orders entered
    June 2, 1909 Cottrell Tr by Jr Verd for PM two Hundred dollars Mo deft
    N. T. end J
    June 19, 1909 Cottrell Mo N. T. over. Judg on verd “ “ “ $200.00 & costs Bond, $300.00
    7/16 Hume deft time fl B x ext 30 ds as per draft ord (see spl. Book page 410).
    Date Memoranda or Postponements.
    Mch. 4 09 Post to next Jury Calendar
    June 2 1909 Postp June 5
    June 5 1909 By agr Post June 12
    June 12 Post June 19
    OK transcript F. E. E. 8/4/09.”

      That on or about the 10th day of October, 1912, a certain alias execution issued upon such alleged judgment for the sum of $200 and $14 costs, and was delivered to Thomas M. Hunter, bailiff, who levied said execution upon the property of the appellee, and that on November 25, 1912, the said bailiff sold the premises to Leopold Saltiel for the sum of $269.45; that the judgment so recovered was and is invalid and of no force or effect by reason of the judgment appearing of record in unintelligible abbreviations of words; that the execution founded upon such invalid judgment was void and of no effect; that thereafter the bailiff issued a certificate of levy to said Saltiel; that the alleged judgment and execution were and are invalid and of no effect; that after the issuance of the certificate of levy, Saltiel sold, transferred and assigned the said certificate to the appellant, who is now the owner of the same, and in consequence of the alleged judgment, levy and sale, the title of the said real estate has become clouded and has the effect to greatly depreciate the value of the property and to prevent its sale. The bill prayed that the levy and sale be declared null and void, and as a cloud upon the title be removed and the certificate of sale be delivered up to be canceled; that the real estate be declared free and clear of the alleged judgment, execution and sale; that defendant be restrained by injunction from taking any proceedings with reference to the certificate of sale and that he be restrained from procuring or obtaining a deed to the property and from selling or transferring the certificate of levy.
    To this bill the appellant filed the following plea: That on or about the 19th day of June, 1909,' one Benjamin Glassman, in the Municipal Court of Chicago, recovered a judgment against complainant in the sum of $200 and costs of suit; that thereafter complainant appealed said case to the Appellate Court of Hlinois for the First District; that on the 5th day of October, 1911, said judgment of said Municipal Court was affirmed by said Appellate Court; that said judgment of affirmance has not been appealed from and still stands of record in said court; that the judgment which complainant alleges to be invalid is the same judgment which said Appellate Court has affirmed; that complainant is barred from questioning the validity of said judgment of the Municipal Court by reason of the fact that said judgment was, by the Appellate Court, declared a valid judgment and that the question of the validity of said judgment is now res adjudicata. Thereafter the appellant filed the following additional plea in substance: That complainant by giving bond in the Municipal Court of Chicago and suing out the writ of error in the proceedings in which the complainant now complains there was error, recognized the validity of said judgment and is now estopped from questioning the validity of the same. The cause was heard upon the bill, the two pleas and proof, and a decree was entered in accordance with the prayer of the bill. From this decree the appellant appeals. The facts in the case are admitted.
    Saltiel & Rossen, for appellant.
    B. M. Shaffner, for appellee.

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

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

   Mr. Presiding Justice Scanlan

delivered the opinion of the court.

The appellant urges two grounds for the reversal of the decree: First, that the question of the validity of the record of the judgment in the case of Olassman v. Abromovich is res adjudicata as between the parties to the present proceedings; that it is res adjudicata, notwithstanding the fact that the appellee did not raise the said question in the Appellate Court, for the reason that the doctrine of res adjudicata extends to any matter properly involved and which might have been raised and determined by the Appellate Court on the writ of error sued out by the appellee to review the judgment of the Municipal Court in the said case; second, that the appellee in his bill does not allege that he does not owe the amount of the judgment in the case of Glassman v. Abromovich, nor does he offer to pay to the appellee the amount of the said judgment, or to do equity between the parties, and the decree removes the alleged cloud caused by the judgment from the property of the appellee without compelling the latter to do equity to the appellant; that the maxim, “He who seeks equity must do equity;” applies to the present case, and that the appellee should have been denied the relief he sought, unless, as a condition precedent to the granting of the same, he was made to pay the appellant the amount of the judgment in the case of Glassman v. Abromovich.

A judgment was rendered against the appellee in the Municipal Court of Chicago in the case of Glassman v. Abromovich. The complainant had that judgment reviewed by the Appellate Court of this district, and that court in its opinion (Glassman v. Abromovich, 163 Ill. App. 388) sustained the judgment of the lower court.

The Supreme Court held (Stein v. Meyers, 253 Ill. 199; City of Chicago v. Mitchell, 256 Ill. 236) that a certain record of the clerk of the court of a so-called judgment (the entry in that case being similar to the one now before us) was, because of the manner in which it was made, in conflict with section 18 of the schedule of the Constitution, and was therefore invalid, and of no effect, as a record of a judgment. This branch of the Appellate Court held (Hunter v. Empire State Surety Co., 191 Ill. App. 634; Phelps v. Hunter, No. 20,889, ante, p. 181), that while an entry like the one in question in this case was not itself the judgment, nor the formal record of the judgment, it still was a sufficient minute of the proceedings to enable the clerk to properly enter of record the judgment in the case. While under the rulings of the Supreme Court, the record of the judgment in the case of Glassmann v. Abromovich, supra, is invalid, nevertheless, it is within the right and power of the appellant to have a valid record of the judgment entered. The judgment of the court in that case is not invalid, even though the record of the same, as it now stands, is. The appellee owes the amount of the judgment that he asks to have removed as a cloud upon his title. He has not done equity, nor has he offered to do so, by paying the appellant the amount of the judgment, and it would be opposed to every principle of equity to permit him to obtain the aid he seeks, and that the decree gives him, without first compelling him to pay to the appellant the amount of the judgment. Cases, almost without number, might be cited in support of our position. We will refer to a few of them. Winslow v. Noble, 101 Ill. 194; Byars v. Spencer, 101 Ill. 429; Chambers v. Jones, 72 Ill. 275; Reed v. Tyler, 56 Ill. 288. Whenever the object of the action is the removal of a cloud on complainant’s title, he must expressly offer in his bill to do equity. 32 Cyc. 1355.

The appellee relies upon the case of Hooper v. Bank of Two Rivers, 255 Ill. 549, in support of his contention that the complainant is not obliged to show that the judgment was unjust, nor is he obliged to pay the. same, to entitle him to the relief he seeks. In that case Hooper filed a bill against the Bank of Two Rivers to remove a judgment lien as a cloud upon the title to certain real estate owned by him. It appeared that on July 10, 1907, the said bank recovered a judgment against Frederick J. Norton and Henry Rennick for $2,193.07, which was written up by the clerk of the Municipal Court in about the same form as was followed in the present case. On July 6,1908, an execution was issued on the judgment. On September 14, 1909, Norton was declared a bankrupt, and a trustee was appointed of his estate. At the time the judgment was entered and at the time he became a bankrupt, Norton was the owner of the premises in question. After Norton was declared a bankrupt, Hooper purchased the premises from the trustee and took possession thereof, and thereupon the bank threatened to sell the same on the said execution in satisfaction of the said judgment, whereupon the bill was filed. While the court held that Hooper—whose situation in that case was not like that of the complainant in the present proceedings—was entitled to have the alleged judgment lien removed as a cloud upon his title without showing that the judgment was unjust, and without paying the same, nevertheless, the court strongly intimates that if Norton and Eennick were the complainants, a different rule would apply.

The appellee in the present case was not warranted in seeking the aid of chancery. He has had his full day in court, and it has been adjudged that he owes the judgment that he calls a cloud upon his title, and equity will not aid him to avoid the payment of his debt. The decree of the Superior Court of Cook county will be reversed and the cause remanded with directions to the chancellor to dismiss the bill of the appellee for want of equity.

Reversed and remanded with directions.


text:
    Herman Cohn, Appellee, v. Flanagan & Biedenweg Company, Appellant.
    Gen. No. 20,989.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Edward M. Mangan, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Reversed and remanded.
    Opinion filed December 8, 1915.

      Statement of the Case.
    Action by Herman Cohn, plaintiff, against the Flanagan & Biedenweg Company, a corporation, defendant, in the Superior Court of Cook county, to recover on a written contract. From a judgment for plaintiff for $115, defendant appeals.
    The defendant contracted with St. John’s Church in Jacksonville, Florida, to furnish the windows for its church, and it then entered into the following contract with the plaintiff:
    “The Flanagan & Biedenweg Company.
    Artists—Stained Class
    Chicago, March 2,1906.
    We, The Flanagan & Biedenweg Co., agree to pay to Herman Cohn Two Hundred Dollars ($200.00), for setting all of the glass in St. John’s Church at Jacksonville, Fla., as per plans and specifications.
    He, Herman Cohn, is to furnish all the necessary material excepting glass and lead, and to place same in position, including sixty-seven ventilators to the satisfaction of the committee. The work to be set in stone.
    He is to use cement of the best quality obtainable in Jacksonville and the best grade of putty, if putty is selected by the committee and all work to be left clean and to the satisfaction of the church committee.
    We, the Flanagan & Biedenweg Co., to be in no way held responsible for any expenses in the delay of shipment by the railroad company.
    (Corporate Seal.)
    The Flanagan & Biedenweg Co.
    Joseph E. Flanagan, President (Sign)
    Herman Cohn (Sign)”
    The plaintiff went to Jacksonville in March, 1906, and began work under the contract. On March 13th, after the plaintiff had completed about one-third of the work, the committee of the said church complained that a certain portion of the glass then on the grounds was too dark in color and, according to the plaintiff, ordered him not to use the same. The plaintiff immediately telegraphed the defendant as follows: “Dark glass rejected, send other, can’t wait. Coming back.” The next morning he received the following telegram from the defendant: “Glass made special at factory from their sample, is correct. Don’t come back unless at your own cost till further orders. Letter follows.” On March 15, 1906, the plaintiff received from the defendant the following letter:
    “March 13, 1906.
    Mr. H. Cohn, c/o Bond & Bours Go., Jacksonville, Fla.
    Dear | Sir:—
    We received your telegram at 4:40 p. m. this day, the 13th, as follows: ‘Dark glass rejected, send other, can’t wait—coming back’ and we wired you as follows: ‘ Glass made special at factory from their sample is correct. Don’t come back unless at your own cost till further orders. Letter follows.’ We also telegraphed Bond & Bours Co. as follows: ‘Cohn telegraphed glass rejected. Too dark. Glass made from your sample at factory. Glass O. K.o Cannot accept rejection on that ground. Letter follows.’
    You have no authority to take it upon yourself to say anything about the glass being rejected. You are only there for the purpose of setting the glass and if there is anything of this kind to be said it must come from the people who are buying the goods. . We cannot regard you but as a hired man setting the work, therefore, you should not take the responsibility of sending the telegram.
    We wish to state that this glass was made special for this job from a sample received from Bond & Bours Co., Jacksonville, Fla., and was sent to the Pittsburgh Plate Glass Co. at Chicago who reserved the sample as it was sent in to the factory to be made after sample, the glass was made after same and is the same commercial number as known throughout the U. S. and it is the same as sample now furnished for the windows in St. John’s Church, Jacksonville, Fla. I am enclosing herewith a small piece taken from the sample which I shall use for reference showing the small piece of the glass that may be compared with their sample.
    The only difference there might be is the question of thickness. We have compared it with our sample and find it O. K. also compared it with the Pittsburgh Plate Class Co. ’s sample and find it O. K. There must be some mistake. But it is well known that when cathedral glass is leaded in flat lead that the flat lead has the effect of giving it a darker appearance and it is darker in appearance in large sheets than it is in small sheets.
    We do not propose to accept a rejection on technicalities, furthermore, we will not stand any expense of yonr returning unless the officials at Jacksonville give satisfactory reasons and refuse to allow you to set the work in place in writing, this will give us an opportunity for action, but do not take any verbal reasons for stopping this order, it must be in writing and in such clear language that there will be no question on your part about returning to Chicago. We hold that we have fulfilled our contract and the responsibility will have to develop on the other end as to rejection.
    Very truly yours,
    The Flanagan & Biedenweg Co.”
    The glass objected to by the church authorities constituted only a small proportion of the total used in the work.
    Immediately upon the receipt of this letter the plaintiff returned to Chicago, arriving there on March 16th. When he left Jacksonville, all the material necessary to complete the job to the satisfaction of the church people was on the ground. Telegrams and letters had passed between the defendant and the church people, and the trouble in reference to the color of the glass was settled at once, and the church people requested the plaintiff to remain and finish the work. The plaintiff admitted that he knew that the defendant was financially responsible and well able to pay any damage that he might suffer by reason of the delay. When the plaintiff left Jacksonville, the defendant immediately sent an employee to complete the work covered by the contract with the plaintiff. This employee arrived in Jacksonville on March 17,1906; found all the material necessary to complete the work on the ground, and the work was completed under his supervision. The defendant claimed that the work done by the plaintiff was very unsatisfactory, and that it expended, altogether, $398.19 in completing the work the plaintiff had contracted to perform, and that after allowing the plaintiff the amount of his contract, $200, there was a balance due the defendant of $198.19.
    Abstract of the Decision.
    1. Contracts, § 387

      —when evidence insufficient to sustain judgment. In an action to recover on a contract for setting glass, evidence held insufficient to sustain a judgment for plaintiff, it being clearly apparent from the evidence that plaintiff abandoned the contract without just cause.
    2. Contracts, § 282

      —when contractor not entitled to abandon contract because of delay. A contractor whose performance is slightly delayed by the fault of a contractee is not justified thereby in abandoning the contract.
    3. Contracts, § 282

      —when party not entitled to abandon contract because of neglect. A slight or partial neglect by one of the parties to a contract, not defeating the object of the contract or rendering it unattainable, will not justify the other party in abandoning the agreement, for the reason that to justify such abandonment the failure of the opposite party must be total, and that for partial noncompliance in matters not necessarily of the first importance, the party injured must seek his remedy upon the contract.

      William J. Stapleton, for appellant.
    No appearance for appellee.

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

   Mr. Presiding Justice Scanlan

delivered the opinion of the court.


text:
    State Bank of Chicago et al., Appellees, v. John Christensen et al., on appeal of Board of Trustees of Park College, Appellant.
    Gen. No. 21,024.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Denis E. Sullivan, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed December 8, 1915.
    Statement of the Case.
    Action by the State Bank of Chicago and others, plaintiffs, against John Christensen apd others, defendants, in the Superior Court of Cook county, to foreclose a trust deed. From a decree dismissing the original bill and the cross-bill of defendant Park College, defendant Park College appeals.
    The State Bank of Chicago as trustee of the trust created by the last will and testament of John It. Parsons, deceased, filed its bill in the Superior Court of Cook county, Illinois, to foreclose a trust deed given by John Christensen and Bosalba A., his wife, to secure the payment of their promissory note for three hundred dollars. Cross-bills were filed by Kathryn Crispe, John Christensen and Park College.
    In the fall of 1907, plaintiff John Christensen secured a loan of three hundred dollars from Arthur B. Pease, and gave his note, dated November 20, 1907, for the amount. The note was secured by a trust deed on the home of Christensen at 639 Boot street, Chicago. Pease afterwards sold the note and trust deed to a
      man named Griffin, who in turn sold it to the Thompson & Taylor Spice Company, and the note and trust deed was owned by the Thompson & Taylor Spice Company on the date of its maturity. Upon the maturity of this note, plaintiff Christensen again applied to Pease to secure for him a loan of five hundred dollars on his said property, the said three hundred dollar note to be paid out of the five hundred dollar loan and the remainder of the same to be turned over to Christensen. Christensen secured the loan of five hundred dollars from plaintiff Kathryn Crispe through Pease. Christensen gave his note for five hundred dollars, secured by a trust deed on his said property, signed by himself and wife. This loan of five hundred» dollars was made with the understanding between the three parties that the said three hundred dollar note was to be paid out of the five hundred dollar loan, and that the note and trust deed given by Christensen to secure the loan of five hundred dollars was to become a first lien on his property. On December 15, 1909, Pease paid for and took up this three hundred dollar note and trust deed from Thoinpson & Taylor Spice Company, but he never released the trust deed securing the note, and he kept the note and trust deed in his possession; he also kept in his possession the five hundred dollar note and trust deed securing the same. On or about March 16, 1901, Caroline M. Parsons, who was then acting as the sole executrix of the last will and testament of John R. Parsons, deceased, died testate, and Walter M. Howland qualified and entered upon his duties as executor under her will. Howland received with the assets of the Caroline M. Parsons estate the assets of the John R. Parsons estate, and he thereafter acted as trustee of both estates. On March 24,1902, Howland was relieved as trustee of said estates and Pease was appointed trustee of the same. The trust created by the last will and testament of Caroline M. Parsons, deceased, provided that the income of certain property should be paid to one Alice M. Babcock during her life, and upon her death the said trust property should go to defendant Park -College. The will further provided that if for any reason the gift to Park College failed, the said property should go to the children of Alice M. Babcock. During the lifetime of Alice M. Babcock, at the request of Park College, and with the consent of Alice M. Babcock, Pease accelerated the trust and turned over to the said college certain cash and securities claimed by Pease to be the corf us of the Caroline M. Parsons trust fund. Among the securities and cash so delivered to the said college was the five hundred dollar Christensen note, with interest coupons, and trust deed securing the same. Pease remained trustee of the John B. Parsons estate until his death, April 7,1911, when the defendant State Bank of Chicago was appointed trustee of the said estate, and obtained from Pease’s executrix possession of the three hundred dollar Christensen note and trust deed securing the same. The bill filed by the State Bank of Chicago was for the purpose of foreclosing the trust deed and securing payment of the three hundred dollar note. The chancellor dismissed the bill of the State Bank of Chicago for want of equity, and his action in this regard was urged as error by the said bank.
    The cross-bills and answers filed by the said Park College and Kathryn Crispe,presented the question as to the ownership of the five hundred dollar Christensen note and trust deed above referred to, the college claiming to be a holder of the same in due course. The court found the issues on this question in favor of Kathryn Crispe and against Park College, and dismissed the cross-bill of the latter for want of equity..
    Scott, Bancroft & Stephens and William Pettis, for appellant; John E. MacLeish and Willard J. Dixon, of counsel.

      Abstract of the Decision.
    1. Appeal and error, § 1269

      —when presumption arises that evidence heard in support of bill was not included in certificate. Where the certificate of the trial judge shows that the evidence included in the certificate was “all the evidence” heard on issues raised by a cross-bill, it must be assumed that the evidence heard' in support of the bill is not included in the certificate.
    2. Appeal and error, § 1269

      —when presumed that decree is sustained by evidence. A complainant is precluded from assigning as error a decree dismissing a bill for want of equity where the evidence heard in support of a bill does not appear in the certificate of evidence tendered, for the reason that in order to entitle itself to a reversal defendant must show that there was evidence entitling it to the relief prayed for, without which showing it will be presumed that the decree is sustained by the evidence.
    3. Appeal and error, § 1394

      —what necessary to support decree. In chancery cases a decree granting relief must be supported by a finding of specific facts in the decree itself, or by evidence appearing in the record.
    4. Equity, § 358

      —when decree dismissing bill for want of equity necessary. Where there is no evidence in support of a bill- or where the evidence is insufficient to warrant the court in granting the relief asked for, the proper decree is a decree dismissing the bill for want of equity.
    5. Appeal and error, § 726

      —burden of proof to show decree not warranted by evidence. The fact that defendant secured the incorporation of affirmative findings of fact in a decree dismissing a bill for want of equity does not relieve complainant, if it assigns such decree as error, from the burden of showing by a proper certificate of evidence that the decree is not warranted by the evidence in order to entitle itself to a reversal, as the incorporation of such findings in such a decree is unnecessary, and it is therefore immaterial whether such findings be findings of fact or conclusions of law and fact.
    Chytraus, Healy & Frost and John Peter Barnes, for appellee State Bank of Chicago as trustee.
    Gustave Nelson, for appellee Kathryn Crispe; James A. Donnelly, of counsel.

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

   Mr. Presiding Justice Scanlan

delivered the opinion of the court.

6. Appeal and error, § 726 —necessity of proper certificate of evidence. Where a complainant assigns as error a decree dismissing the bill for want of equity, the burden of showing that the decree was not warranted by the evidence cannot be sustained where complainant fails to file a proper certificate of evidence.

7. Bills and notes, § 446 —sufficiency of evidence to establish ownership of note. On a cross-bill raising the question of title to a note secured by a trust deed of which defendant was in possession, claiming to be a holder in due course, a decree finding affirmatively that plaintiff was the owner of the note and deed and that defendant was not a holder in good faith and for value in due course and had no title thereto, held sustained by the evidence.


text:
    George M. Lyle, Appellee, v. Austin J. Sears, Jr., Appellant.
    Gen. No. 21,606.
    (Not to be reported in full.)
    Abstract of the Decision.
    Appeal and error, § 671

      —when order extending time for filing bond invalid. An order of the County Court extending the time for filing an appeal bond in an appeal granted by such court is invalid when made after the expiration of the time fixed by the order granting the appeal for filing the bond.

      Appeal from the County Court of Cook county; the Hon. Andrew D. Webb, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1915.
    Appeal dismissed.
    Opinion filed December 8, 1915.
    Statement of the Case.
    Action by George M. Lyle, plaintiff, against Austin J. Sears, Jr., defendant, in the County Court of Cook county. From a judgment for plaintiff, defendant appeals.
    Frank J. Hogan, for appellant.
    Charles C. Spencer, for appellee.

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

   Mr. Presiding Justice Scanlan

delivered the opinion of the court.


author: Mr. Justice O’Connor

text:
    Thomas H. Kelly, Defendant in Error, v. Supreme Court of the Independent Order of Foresters, Plaintiff in Error.
    Gen. No. 20,085.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1914.
    Reversed and remanded.
    Opinion filed December 8, 1915.
    Statement of the Case.
    Action by Thomas H. Kelly, plaintiff, against the Supreme Court of the Independent Order of Foresters, defendant, in the Municipal Court of Chicago, to recover on a certificate of insurance. To reverse a judgment for plaintiff for $500, defendant prosecutes this writ of error.
    The defendant is a fraternal insurance society, made, up of the Supreme Court of the order and subordinate courts. The defendant issued a certificate to the plaintiff for the sum of $1,000, and the beneficiary therein named was Carrie McLaughlin, plaintiff’s mother. It provided, among other things, that in. case the plaintiff was totally and permanently disabled by reason of accident (of which disability the executive council was to be the sole judges), one-half of the certificate—$500 —should be paid to Kelly. The by-laws, which were made a part of the certificate, defined total disability to be that the member be “forever totally unfit to follow or direct any employment, labor, trade, occupation, business or profession.” Certain dues and assessments were to be paid by the member each month, with a period of thirty days ’ grace, and it was provided that upon failure to pay within the period of grace, the member should ipso facto immediately stand suspended ; that in case of total disability, certain proofs should be made, and that no legal action should be commenced until all remedies provided in the constitution were exhausted, and that any legal proceeding must be brought within six months after final action of the chief ranger or executive council.
    Kelly continued a member in good standing until November 30, 1909, although shortly prior thereto, October 20, 1909, he was reinstated, having been theretofore suspended for nonpayment of dues. The defendant contended that on January 1, 1910, Kelly was again suspended for nonpayment of the December dues. The evidence tended to show that the plaintiff either in January or the first part of February, 1910, received a notice from John Hauseman that he had been suspended. Hauseman was the financial secretary of Court Weidner, having held such position since 1899. His duties were to collect dues and assessments and forward the same to the High Court. He and the plaintiff had been acquaintances for more than ten years.
    There was a conflict, in the evidence as to what took place at that time, Kelly’s version being that he asked Hauseman what the notice meant; that Hauseman said he had been suspended for nonpayment of dues, to which Kelly replied that his mother, Mrs. McLaughlin, had sent the dues by mail during the latter part of December, 1909, and which dues Hauseman stated he had not received; that thereupon Kelly offered to pay the dues, but Hauseman refused to accept the money, stating that he would take the matter up with the postal authorities; that Hauseman gave him no application for reinstatement.
    Hauseman’s contention was that he told Kelly he was suspended; that Kelly told him his mother had sent the money in December; that he, Hauseman, had not received the same; that he, Hauseman, said he would take the matter up with the postal authorities and notify Kelly; that Kelly did not offer any money at that time, but stated he was out of work and wanted him to wait for a few weeks; that he, Hauseman, said he could wait as long as he pleased, but not more than ninety days; that he then gave Kelly a blank application for reinstatement, which Kelly signed and took with him, and was to return when he was ready. Kelly denied this and stated that he signed the application at the hospital, as hereinafter noted. A court reporter testified that on a former trial, Kelly testified that at that meeting he received an application for reinstatement, and that he signed the same. The testimony also shows that nothing further was done in the matter until March-15, 1910, when Kelly’s mother called on Hauseman where he was employed and said she came to pay her son’s dues, and to have him reinstated; that, although she had paid the dues on December, she would pay them again. She returned the application blank, signed by her son, to Hauseman. Hauseman took the money and the application. The application stated that the money was received and held by Hauseman as trustee until action was taken by the head office in Toronto, and that Kelly had been suspended for nonpayment of dues for January, February, March and April, 1910. Hauseman then wrote in Kelly’s pass book, which Mrs. McLaughlin had, that the Decehiber dues were then paid. He also gave her a receipt which acknowledged payment of $8.52 from Kelly for the months of January to May, “to apply on reinstatement.” At. that time nothing was said by Mrs. McLaughlin that her son had been severely injured the day before.
    Hauseman sent the application for reinstatement which he received from Mrs. McLaughlin on March 15, 1910, to Toronto. It was returned to him on account of its not being dated. Thereupon, Hauseman mailed a new application blank to Kelly. This was on or about April 3rd. He was then notified by Mrs. McLaughlin that Kelly had been injured on March 14th, and was in the hospital, and she requested Hauseman to go and see him there, which he did. Kelly was in bed at the hospital, and signed a new application blank for reinstatement. Hauseman stated that he thought nothing could be accomplished in the way of reinstatement, but that he would see what could be done. He then wrote to the High Court, and was advised by it that under all the circumstances, Kelly could not be reinstated, and liability was denied.
    Mrs. McLaughlin appears to have had considerable experience with similar organizations. She had been financial secretary of an order for seventeen years. She stated that the reason she did not tell Hauseman when she paid the money that her son had been injured was that she did not think it was necessary. The evidence tended to show that Kelly or his mother had previously, on a few occasions, mailed money to Hauseman in payment of dues. The mother testified that during the latter part of December, 1909, she placed three $1 bills in an envelope addressed to “John Hauseman, 2419 Forty-third, north of Fourth avenue, Chicago, Illinois”; properly stamped and sealed the same, and on the back thereof placed her name and address so that it might be returned in case of nondelivery; and that she then mailed the letter. Hauseman testified that he did not receive the letter or money, and that his address was “4047 North 43rd avenue.”
    The defendant having denied liability, and refusing to pay, this suit was brought October 5, 1910. The affidavit of merits stated that the defense was that the plaintiff had failed to pay dues and assessments falling due prior to January 1,1910, and was suspended, and that the certificate,was void. The case was tried before the court and jury on February 4, 1913. The jury found the issues against the plaintiff. The court afterwards granted a new trial. On September 22, 1913, by leave of court, the defendant filed an additional affidavit of merits, stating, among other things, that the plaintiff'had failed to file notice, as required, of his disability; that the suit was not brought within sis months from the date of his injury, and that he was not totally disabled. The case was tried before the court and jury, and a verdict of $500 was returned in favor of the plaintiff, and judgment entered thereon.
    Abstract of the Decision.
    1. Insurance, § 432

      —what constitutes total disability under accident insurance policy. Total disability, as used in an accident insurance policy, does not mean absolute physical disability to perform any kind of work.
    2. Insurance, § 898

      —insufficiency of evidence to show payment of dues. In an action to recover on a certificate of accident insurance, where at the time of the accident sought to be recovered plaintiff had been suspended by defendant, a fraternal organization, for nonpayment of dues as required by the certificate, and where plaintiff claimed that the dues in question had been sent by mail to defendant’s agent, a judgment for plaintiff held not sustained by the evidence, it appearing by a preponderance thereof that the letter containing such dues was not sent.
    3. Insurance, § 884

      —when evidence that member of fraternal organization signed request for reinstatement admissible. The fact that a member of a fraternal organization who has been suspended signs a request for reinstatement is competent on the question of whether the suspension was lawful, but such evidence is not conclusive of the issue.
    Charles F. Vogel, for plaintiff in error.
    Morse Ives and Charles C. Bodenstab, for defendant in error.

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

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

   Mr. Justice O’Connor

delivered the opinion of the court.

4. Insurance, § 804 —when beneficiary not estopped to assert that suspension was unlawful. The fact that a member of a fraternal organization, who has been suspended, has signed a request for reinstatement does not estop him from asserting that such suspension was unlawful.

5. Insurance, § 854 —when action on mutual benefit certificate not prematurely brought. If when a claim is presented against defendant, a fraternal organization, it at first denies liability, an action brought without exhausting certain remedies as required by defendant’s by-laws is not prematurely brought, although such by-laws are expressly made part of the contract, and though plaintiff is expressly required thereby to exhaust such remedies before bringing suit, for the reason that in such case defendant is precluded from setting up the provisions of such by-laws as a defense to the action.


text:
    Josiah Cratty, Defendant in Error, v. William F. Buker, Plaintiff in Error.
    Gen. No, 20,401.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John J. Sullivan, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed December 8, 1915.
    Statement of the Case.
    Action by Josiah Cratty, plaintiff, against William F. Buker, defendant, to recover on a contract for professional services as an attorney at law. To reverse a judgment for plaintiff for $343.40, defendant prosecutes this writ of error.
    Plaintiff is an attorney at law, and was retained by the defendant to represent him in a certain litigation then pending in the Superior Court of Cook county. It was agreed that plaintiff should receive $5 per hour for the time necessarily employed. January 26, 1912, a memorandum of the agreement was signed by the defendant, which stated that $100 had been paid as a retainer, and that the fees earned should be “paid as fast as can be, and secured on Buker’s Estate.” In accordance with the agreement, plaintiff proceeded to represent the defendant in the case in the Superior Court, and continued to do so until some time in July, 1912. At that time plaintiff claimed he had been necessarily engaged 127% hours in the litigation, and requested that the defendant secure him for his fees before proceeding further. At the time of the request the amount of his services rendered had not been computed. Plaintiff requested that he be secured on the interest which the defendant had in the property involved in the case in the Superior Court, the security to cover the services rendered and to be rendered. The defendant refused to do so, stating that as he did not know the amount of plaintiff’s bill, he was unwilling to give the security. Thereupon plaintiff said he would have nothing further to do with the case.
    Abstract of the Decision.
    1. Trial, § 183

      —when motion for peremptory instruction must he made. A motion for a peremptory instruction made at the close of plaintiff’s evidence and denied is waived unless renewed at the close of all the evidence.
    2. Appeal and error, § 1410

      —when verdict will not he set aside as against weight of evidence. A verdict will not be set aside on review of the judgment unless it is manifestly against the weight of the evidence.
    3. Attorney and client, § 135

      —sufficiency of evidence to sustain verdict for fees. In an action to recover on a contract for professional services as attorney at law, a judgment for plaintiff held sustained by the evidence.
    Thomas W. Prindeville, for plaintiff in error; Jay C. Lytle, of counsel.
    Charles Hudson, for defendant in error.

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

   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    H. Bass, Defendant in Error, v. Erie Railroad Company, Plaintiff in Error.
    Gen. No. 20,466.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Joseph S. La Buy, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Reversed and remanded.
    Opinion filed December 8, 1915.
    Statement of the Case.
    Action by H. Bass, plaintiff, against the Erie Railroad Company, defendant, to recover for goods lost in transportation. To reverse a judgment for plaintiff for $400, defendant prosecutes this writ of error.
    In 1911, plaintiff, who was a resident of Passaic, New Jersey, was moving to Chicago, Illinois. The evidence tended to show that the plaintiff took his household goods to the freight depot of the defendant, located in New Jersey, on September 4, 1911. That being Labor Day, no goods were being received. The plaintiff then took them and delivered them to an expressman, to be taken by the latter to the defendant the next day for shipment to Chicago. The defendant and his family left for Chicago on September 4th. The next day the expressman delivered the goods to the railroad company. He paid the freight, $6, received a bill of lading, and mailed the same to the plaintiff in Chicago. The articles were household goods. One item was “11 case contents.” All of the goods weighed eight hundred pounds.. Stamped on the bill of lading in red ink by the agent in New Jersey was the following:
    “For the purpose of enabling the carrier to apply the proper published rate, as explained in its Classification and Tariffs, I hereby declare that the value of the property herein described does not exceed $10.00 per 100, and that in case of loss or damage thereto, I will not assert claim against the carrier on a higher basis of value than $10.00 for each 100 pounds or fraction thereof in weight of the property so lost or damaged.” (This was signed by plaintiff’s agent.)
    Abstract of the Decision.
    1. Commerce, § 4

      —what constitutes interstate commerce. In an action to recover for goods lost by a carrier in transportation from Passaic, New Jersey, to Chicago, Illinois, the refusal of the trial court to hold, as a proposition of law, that the transaction in question was interstate commerce, held erroneous.
    2. Commerce, § 5

      —exclusiveness of power of Congress to regulate interstate commerce. By the Act of Congress of February 4, 1887, as amended, it was the intention of Congress to take possession of the whole subject of interstate commerce, and to supersede all state regulation with reference thereto, and such act applies to every detail of such commerce, '

    3. Carriers, § 138

      —when schedules of rates filed with Interstate Commerce Commission admissible in evidence. In an action to recover for goods lost by a carrier in interstate transportation, the exclusion of copies of the schedules of rates filed with the Interstate Commerce Commission held error, for the reason that such schedules are expressly made competent by section 18 of the Interstate Commerce Act.
    4. Appeal and error, § 1173

      —when defense not presented to trial court not considered on appeal. In an action without a' jury to recover for goods lost in interstate transportation, defendant is precluded from relying in defense .upon the fact that suit was not commenced within the time required by its schedules of rates when such defense was not made in the trial court, as such point cannot be made on review for the first time.
    5. Carriers, § 165

      —when provision in bill of lading limiting liability valid. An agreement in a bill of lading for interstate transportation which limits the liability of the carrier in case of loss to $10 per hundred weight of the goods transported under the bill of lading is valid.

      When the goods arrived in Chicago, plaintiff was notified and he received all of his property except one case of goods, which the plaintiff testified consisted of curtains, silk, embroidery, etc.
    W. O. Johnson and Bull & Johnson, for plaintiff in error; Arthur S. Lytton, of counsel.
    Bernard J. Brown and Ira Fogel, for defendant in error.

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

   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    The People of the State of Illinois, Defendant in Error, v. Western Electric Company, Plaintiff in Error.
    Gen. No. 20,736.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Taxation, § 188

      —when Act of 1898 construed as revising assessment procedure. The Revenue Act of 1898 (J. & A. ¶¶ 9516-9576) provides for an entirely new system of assessment, with new modes of procedure and a new system of review, and as to that subject is practically complete in itself, constituting an entire plan for the making of assessments.

      Error to the County Court of Cook county; the Hon. John E. Owens, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Reversed.
    Opinion filed December 8, 1915.
    Statement of the Case.
    Prosecution by the People of the State of Illinois against the Western Electric Company, a corporation, defendant, by which defendant was charged with violation of Hurd’s Eev. St., ch. 120, sec. 24 (J. & A. if 9238) in that it failed, refused and neglected to make out and file a statement of its personal property as required by such statute. To reverse a judgment of conviction imposing a fine of one hundred and fifty dollars, defendant prosecutes this writ of error.
    Holt, Cutting & Sidley, for plaintiff in error.
    Maclay Hoyne and Hayden N. Bell, for defendant in error; Francis E. Hinckley and Henry A. Berger, of counsel.

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

   Mr. Justice O’Connor

delivered the opinion of the court.

2. Statutes, § 148 —when revision operates as repeal. A subsequent statute which revises the whole subject of a former act and is intended as a substitute for it operates as a repeal of the former, although containing no express words of repeal.

3. Taxation, § 665 —what effect of Act of 1898 on prior acts. The provision of Hurd’s Rev. St., ch. 120, sec. 24 (J. & A. ¶¶ 9238), that one failing to file a schedule of his personal property for taxation as therein required shall be guilty of a misdemeanor, is repealed by section 19 of the Act of 1898 (J. & A. ¶ 9534), providing that in such ease the assessor shall list the property at its fair cash value and shall add to such list an amount equal to fifty per cent, of its valuation.


text:
    Ernst E. Lehmann, Appellant, v. Wesley Shimeall and John W. Dorgan, Appellees.
    Gen. No. 20,871.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Reversed and remanded.
    Opinion filed December 8, 1915.
    Rehearing denied December 21, 1915.
    Statement of the Case.
    Bill by Ernst R. Lehmann, complainant, against Wesley Shimeall and John W. Dorgan, defendants, in the Circuit Court of Cook county, praying relief against notes alleged to be usurious. From a decree dissolving a preliminary injunction and dismissing the bill for want of equity, complainant appeals.
    Francis W. Walker and Charles E. Selleck, for appellant.
    Jonas O. Hoover, for appellees.

      Abstract of the Decision.
    1. Appeal and error, § 16

      —when right of appeal from order does not exist. Since the right to appeal is entirely statutory, no appeal lies from an order dissolving an injunction under section 123 of the Practice Act (J. & A. fl 8661), providing for appeals from interlocutory decrees granting an injunction, overruling a motion to dissolve, and enlarging the scope of such injunction.
    2. Appeal and error, § 270

      —when order not final so as not to authorize appeal. An order dissolving a preliminary injunction is interlocutory and not final, and therefore no appeal will lie from such order.
    3. Appeal and error, § 1853

      —when appeal bond sufficient in form. An appeal from a decree dismissing a bill is properly before the Appellate Court although the appeal bond recites that “Ernst” E. Lehmann is principal, while in the condition of the bond appellant’s name is given as “Ernest” E. Lehmann, “Ernst” and “Ernest” being idem sonans.

    4. Usuby, §45

      —when hill sufficiently alleges usury. An allegation in a bill alleging that the notes against which relief is sought were given for double the amount of the loan alleges that the notes were usurious.
    5. Usury, § 64

      —when relief will he granted from a usurious transaction. The question whether a loan is usurious is a question of fact, and in determining the question equity will look at the substance of the transaction, disregarding the color or form given it by the parties, and will not permit parties to evade the statute by any conceivable scheme or expedient, for which reason, if in any form or shape the transaction appears to be usurious, it will be so declared, and the proper remedy applied.
    6. Usury, § 65

      —when relief granted in equity. In equity a complainant praying for affirmative relief against a usurious contract must pay the amount of the loan with legal interest, although at law the whole of such interest is in such case forfeited.
    7. Equity, § 52

      —when remedy at law inadequate so as to give equity jurisdiction. Although in an action at law between the original parties to a note, want of consideration is such a defense to the note as to make the remedy at law adequate, yet a bill alleging that at the time when the bill was filed such notes were not yet due, and that the holder had threatened and was about to dispose of some of the notes against which relief is sought, states a case where such remedy is inadequate save in a court of equity, for the reason that the defense of want of consideration as between the parties cannot be set up in an action where plaintiff is a bona fide holder.

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

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

   Mr. Justice O’Connor

delivered the opinion of the court.

8. Tender, § 20 —when hill offering to pay into court amount found due sufficient tender. An averment in a bill seeking relief against notes alleged to be usurious, which alleges that complainant is ready and willing and offers to pay whatever amount the court may find to be due, is a sufficient tender of such amount to enable complainant to maintain his bill.

9. Equity, § 263 —when supplemental hill will not aid original hill. Where a bill fails to state grounds for relief the defect cannot be cured by a supplemental bill, for the reason that the office of a supplemental bill is to bring before the court matters which have taken place since the bill was filed.

10. Injunction, § 13 —when preliminary injunction will issue to prevent disposal of usurious notes. A bill praying relief against usurious notes which alleged that such notes were not yet due and that defendant threatened and at the time the bill was filed was about to dispose of some of the notes, and in which a sufficient tender was made to pay the amount legally due on the notes against which relief is sought, held to entitle complainant to a preliminary injunction.

11. Equity, § 344 —when hill should not he dismissed for want of equity. Where a bill, with its amendments and a supplemental bill, stated grounds for relief and also entitled complainant to a preliminary injunction, a degree dissolving such injunction and dismissing the bill for want of equity held erroneous.