author: Mr. Justice Friend

text:
    H. C. Lust, Appellant, v. The Atchison, Topeka and Santa Fe Railway Company, Appellee.
    Gen. No. 35,374.
    Opinion filed June 15, 1932.
    Rehearing denied June 29, 1932.
    H. C. Lust, pro se, and by Irving E. Greenberger, Ms attorney.

      Emmet Trainor and F. W. Miller, for appellee.
   Mr. Justice Friend

delivered the opinion of the court.

In September, 1924, H. C. Lust, an Illinois attorney, was retained by the Tracy-Waldron Fruit Company of San Francisco, California, to bring suit in the California courts against The Atchison, Topeka and Santa Fe Railway Company to recover damages for failure to furnish empty cars. Lust’s compensation for the proposed legal service was embodied in a written contract entered into between him and the fruit company. The agreement was made and executed in San Francisco. Shortly thereafter Lust and his associate, Max Thelin, a California attorney, filed suit in the District Court of the United States for the Southern District of California against the defendant. For reasons which are immaterial to the issues herein, Thelin subsequently withdrew as attorney in the case. In the fall of 1927, Lust employed one H. A. Frank, a California lawyer, as his associate in the case, Frank filing his appearance in substitution of Thelin. Thereafter in December, 1927, Tracy discharged Lust as his attorney. In January, 1928, Lust, whose offices are located in Chicago, Illinois, wrote defendant, calling his attention to the contract between himself and the fruit company, and stated that he claimed an attorney’s lien under the laws of Illinois. The defendant by its counsel acknowledged receipt of this notification. In April, 1928, the suit which Lust had instituted was tried in the California court resulting in a judgment against defendant for approximately $12,000. The judgment was thereafter paid by defendant and Frank filed a satisfaction piece on behalf of his client. The record discloses that Lust’s appearance as attorney of record for plaintiff was never withdrawn, and was on file at the time the satisfaction piece was filed. In Octoher, 1930, Lust instituted suit in the municipal court of Chicago against the fruit company to recover the fees alleged to be due him by reason of the contract made at San Francisco in 1924. The fruit company filed its appearance in the municipal court and had the cause removed to the United States District Court, where it is now pending. The instant proceeding was filed in October, 1930, to recover the same fees for which suit was instituted in the municipal court. Upon trial, the circuit court found the issues in favor of defendant and entered judgment accordingly.

The sole question presented for review is whether an Illinois attorney may maintain his lien under the Illinois statute for attorney’s fees, based upon a contract for service made and executed in California. Paragraph 13, Cahill’s Illinois Rev. St. 1931, ch. 13, provides that attorneys at law shall have a lien upon all claims, demands and causes of action which may be placed in their hands by clients for suit or collection, or upon which suit or action has been instituted, for the amount of any fee which may have been agreed upon by and between such attorneys and their clients, providing such attorneys shall have served notice in writing upon the party against whom their clients may have such suits, claims or causes of action, stating therein the interest they may have in the matter, and such lien shall attach to any verdict, judgment or decree entered and to any money or property which may be recovered on account of such suit, claim or demand.

Plaintiff contends that upon service of notice under the provisions of the foregoing statute, he became a part owner of the claim in favor of his client and thereafter stood in the same position as if the client had assigned an interest in the claim; that the validity of the contract entered into between him and the fruit company is governed by the law of California, but the question as to whether a legal or equitable action may be brought on the contract is one purely for determination by the lex fori, or place where the remedy is sought; and that service of notice upon defendant whose offices are conceded to be in the City of Chicago, was a sufficient basis for enforcement of the lien by the courts of this State in favor of an Illinois attorney under the local statute. It should be observed that the State of California does not provide for an attorney’s lien.

In support of plaintiff’s first proposition, namely, that the service of notice upon defendant constituted Lust as a part owner of the claim in favor of his client and operates in the nature of an assignment, we are cited the case of Smith v. American Bridge Co., 194 Ill. App. 500. In that case, Carton, an employee of the defendant, was injured at Cary, Indiana, and employed plaintiffs to prosecute his suit for damages for such injury. As compensation, Carton agreed to pay his attorney 50 per cent of the gross amount received by him through suit or settlement. The written instrument by which Carton made such promise was signed by him at Cary, Indiana, and he later came to the office of his attorney in Chicago where he acknowledged and reaffirmed the contract. On the same day, Carton’s attorney sent defendant at his office in Chicago a written notice of his employment and a copy of his contract with Carton, and the defendant acknowledged the receipt of said notice. Subsequently, defendant paid Carton $164 in settlement of his claim, for which they took a release. The trial court allowed plaintiff, as Carton’s attorney, one-half of this sum as attorney’s fees, together with interest thereon. The reviewing court found that the item of interest was entered in error and affirmed the judgment as to the principal sum upon remittitur of the interest item. We are unable to determine from the opinion whether the question before us was raised in that proceeding. In any event, no authority whatever is cited for the court’s conclusion. We are of the opinion, however, that the foregoing decision may be distinguished from the instant proceeding upon several grounds; in the Smith case, no suit was brought in the State of Indiana, while in the case at bar a judgment was obtained against defendant in the California courts; the Smith decision does not show whether the Indiana statute allows an attorney’s lien, whereas, in this proceeding, it appears clearly that the California statute does not; the contract in the Smith case entered into between plaintiff and the client was reaffirmed by plaintiff in the State of Illinois; as heretofore stated, the question of the extraterritorial effect of the Illinois statute was apparently not raised in the Smith case; and lastly, no judgment was entered against the American Bridge Company in the State of Indiana, there being only a settlement with plaintiff out of court.

Plaintiff also cites Burchard v. Dunbar, 82 Ill. 450, as governing in principle the decision in this proceeding. That case had no application to the enforcement of an attorney’s lien under circumstances such as these and merely holds, under entirely different facts, that the law of the place where a contract is made will control in ascertaining the rights and liabilities of the parties, and that when these are ascertained the law of the place where its enforcement is sought will govern as to the remedy.

As we view this proceeding, the question as to whether or not the contract is sufficient to create a lien in Lust’s favor which can be impressed upon a judgment in a California court, is one to be determined solely by the law of California. The California statute makes no provision for an attorney’s lien, but he must sue for services claimed. Therefore, if the contract was not sufficient under the California law to create a right, there is nothing upon which the Illinois courts may predicate relief. In order to be entitled to a remedy at the hands of the lex fori, plaintiff must present a good cause of action, and this is lacking in the case before us. This seems to us to be the logic of the situation, because if plaintiff presents to the lex fori a contract which is not sufficient under the laws of the State in which it was made to confer upon him any substantive rights, then the lex fori cannot grant the plaintiff any relief because he presents nothing upon which relief may be based.

The Illinois statute is silent upon a situation such as this, and with the exception of the case of Smith v. American Bridge Co., supra, we find no decisions in this State as precedents. It has been definitely determined in California, however, that an attorney has no lien upon a judgment recovered in favor of his client as compensation for his services. Mansfield v. Dorland, 2 Cal. 507; McGown v. Dalsell, 72 Cal. App. 197. The common law did not recognize an attorney’s lien. Where that right exists, it has been created by statute. It seems reasonably clear from the decisions both of this State and California that where the statute of another State creates a new right and also provides a special remedy, such right will not be enforced in the State where the remedy is unknown. It was so held in Fowler v. Lamson, 146 Ill. 472, and Russell v. Pacific Ry. Co., 113 Cal. 258, 45 Pac. 323.

Defendants call our attention to Plummer v. Great Northern Ry. Co., 60 Wash. 214, 110 Pac. 989. In that proceeding one Funk had received personal injuries in British Columbia while in the employ of the Great Northern Railway Company. Funk employed an attorney named Latimer to prosecute the case and agreed in writing to pay him one-half of any sum which he might recover as a fee for his services. Latimer served written notice of the terms of his contract upon the local claim agent of the Great Northern Railway Company in Spokane, Washington, in compliance with the statutory provision of the State of Washington, which gave an attorney a lien for his compensation upon money in the hands of the adverse party in any action or proceeding in which the attorney was employed from the time of giving notice of the lien to that party. Latimer then employed counsel in British Columbia who started suit under the Workmen’s Compensation Act of British Columbia. While the proceeding there was pending, the claim agent of the Great Northern Railway Company settled the claim with Funk, acting for himself, and obtained Funk’s release. The amount of the settlement was $500, and an arbitrator awarded Funic’s counsel $85 as costs and attorney’s fees. Following this event, Latimer and his partner filed suit in the State of Washington to recover a sum equal to one-half of the settlement paid Funk in British Columbia. The court held that attorneys are but the representatives of the parties; that their authority is revocable at any time at the pleasure of the client and they cannot legally object to any course which the client may take concerning the matter in controversy; that the rights of the attorney in this regard are not changed by the fact that the attorney is by agreement to receive as a contingent fee a part of the sum which may be recovered; that without an express stipulation to that effect an agreement for a contingent fee will not act as an assignment of a part of a claim and no interest in a future recovery exists without an assignment. The court then proceeds as follows:

“But we think it clear that, in order for a lien to arise from notice under this statute, there must be an action or proceeding pending against the adverse party in some court, and, as the statute can have no extraterritorial effect, it must be an action pending in some one of the courts of this State. Any other rule would make the statute oppressive upon the debtor. He would be compelled to decide at his peril all controversies between the attorney and his client over the question as to which of them was entitled to the money in his hands. Moreover, the statute will bear no other construction. The lien is given ‘upon money in the hands of the adverse party in action or proceeding,’ and this in itself presupposes an action or proceeding pending in a court. . . .

“Having chosen that forum to prosecute the action, and having called upon the arbitrator to make an award, and having accepted the award so made, we think the respondents are estopped from claiming any other fee from their client. And having no cause of action against their client for fees, they cannot of course recover against the adverse party.” The foregoing decision contains a suggestion, as we view it, that there is nothing in the Illinois statute which would indicate an intention to make it applicable to cases pending in the courts of other States. The language of the statute appears to make it applicable only to litigation pending within the State, there being no provision for extraterritorial effect to be given to the statute. We accordingly hold that the trial court properly held that plaintiff was not entitled to impress his claim for services as a lien on the California judgment.

Other questions are raised by plaintiff’s brief which have had our consideration, but in view of the conclusion reached on the main point in the case, we consider it unnecessary to discuss them.

The judgment of the trial court should be affirmed.

Affirmed.

Hebel, P. J., and Wilson, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Nathan Rotche, Appellee, v. Buick Motor Company, Appellant.
    Gen. No. 35,460.
    Opinion filed June 15, 1932.
    A. D. Weaver and Kremer, Branand & Hamer, for appellant; C. W. Greenfield, of counsel.
    Alfred Rot Hulbert, for appellee.
   Mr. Justice Friend

delivered the opinion of the court.

Plaintiff brought an action on the case against Buick Motor Company and Cicero Buick Sales Company, defendants. Upon trial the jury returned a verdict for $20,000 against both defendants and in favor of plaintiff. Subsequent to the verdict and before judgment, plaintiff gave defendant, Cicero Buick Sales Company, a covenant not to sue for a consideration of $2,500, and upon motion of plaintiff, the suit was thereupon dismissed as to that defendant and judgment entered against Buick Motor Company, the appellant herein, for $17,500.

The facts, so far as they are essential to a determination of the issues involved, disclose that on August 13, 1929, plaintiff purchased a Buick passenger sedan from the Cicero Buick Sales Company. He had previously driven Ford and Packard automobiles, but was inexperienced in operating a Buick. When the car was delivered, plaintiff received instructions as to the driving and operation thereof. Thereafter, he drove the car several hours after work on various days, and on Sundays and Saturdays. Prior to the accident, plaintiff had damaged the fenders in going into his garage, and also knocked off two hub caps on the right wheels, and brought the car back to the Cicero Buick Sales Company for these repairs. It is also charged that plaintiff had been in a collision with a taxicab prior to this accident, but that assertion is denied by him. Prior to the accident, the speedometer of the car showed a mileage of about 600 miles.

On Sunday, September 8, 1929, plaintiff, together with his son, aged 10, drove to Libertyville, about 25 miles from Chicago, and on the way back was proceeding on the Rand Road coming toward the city at a rate of about 35 miles an hour. Just before the accident, plaintiff noticed a car about 200 feet ahead of him flash its stop light, and as he applied the brake on his Gar to slacken the speed, he notioed his car turn to the right. According to his testimony, he thereupon turned the steering wheel to the left with both hands, put his foot all the way down on the brake and then, in his own language, “all of a sudden it was right over,” and he remembered nothing that happened thereafter. The evidence discloses, however, that his car swerved to the right off the road, over a three-foot dirt shoulder on the road, striking a culvert, going into a ditch about four feet deep and some 16 feet beyond before it stopped. Generally speaking, the car was a total wreck and plaintiff was severely injured.

Two principal grounds are urged for reversal: (1) That there is no evidence to support the verdict, and (2) that the Buick Company, as manufacturer of the automobile, is not liable for injuries to the ultimate user who purchased it from a middleman, for defective assembly of the brake mechanism.

As applicable to the first proposition, the salient question of fact presented to the jury was whether the proximate cause of the injury resulted from defective assembly of the brake on the left front wheel of the car. It is plaintiff’s contention that the clevis pin, a steel rod or bolt with a shoulder on one end and a hole on the other, through which a cotter key or pin is inserted for security and designed to keep the cable attached to the brake assembly, was improperly assembled, and that as a result thereof the cotter pin which had not been properly spread, permitted the clevis pin to work out of position, causing the brake mechanism in the left front wheel to become inoperative. Upon this question, plaintiff produced the testimony of several witnesses who examined the car after the accident. The first of these was John J. Walsh, owner of a garage, who was called to tow the wrecked car into the shop immediately after the accident. In preparing to tow the car to his garage, Walsh found the cable hanging loose, and the cotter pin and clevis pin missing. His mechanic later found the same situation and also discovered other loose cotter pins which had not yet become detached but could be lifted out with the fingers in and about the left front portion of the chassis. The car was subsequently removed to a garage in Chicago, and it was there likewise discovered that several other cotter pins were loose in and about the brake mechanism. David H. Greenberg, plaintiff’s brother-in-law, arrived within a half hour after the accident and inspected the car on the prairie before it was removed. He observed the cable hanging loose, the clevis and cotter pins missing. It is suggested by defendant’s counsel that Greenberg may have removed these accessories, but Greenberg states his inspection was made in the presence of numerous people. Plaintiff testified that the brake had been working perfectly all day and for three weeks prior to the accident. It also appears reasonably clear from the evidence that none of the parts surrounding the left front brake mechanism was in any way damaged by the accident; that the heavy frame member alongside of the cable of which the clevis and cotter pins are integral parts, below and to the right of the cable, the heavy portion of the axle underneath the cable, the drag link or steering arm below the cable, the drum of the wheel and brake assembly to the left of the cable, and the fender, bracket and braces above the cable were undamaged in any particular. Plaintiff adduced these facts before the court and jury to rebut the inference that the clevis and cotter pins may have been forced out of place by reason of the crash of the car after it left the highway. After the car had been removed to Chicago, plaintiff notified defendants for the purpose of giving them an opportunity to inspect the damaged car, but apparently no inspection was made by them.

It appears, however, that the systematic and usual inspection of the car was made by the Buick Motor Company before the car left the factory, and that subsequent inspections were made by the sales agency from whom plaintiff purchased the automobile. This evidence was introduced to rebut -the testimony of plaintiff’s witnesses upon the question as to whether there was a defect in the assembly of the car which proximately caused the accident.

Defendant earnestly contends that there is no specific proof of any defect in the assembly of the brake mechanism, and that plaintiff’s evidence as heretofore summarized amounts to nothing more than surmise or conjecture based upon presumptions or interferences, which are not permitted as against established facts. We have carefully examined the record and are of the opinion that the determination of this very close question of fact was within the province of the jury. There is definite evidence of several loose cotter pins near the alleged defective brake mechanism, and outward indications, as heretofore enumerated, that this portion of the automobile was not injured in any particular. Furthermore, plaintiff’s testimony that the car swerved to the right when he first applied the brakes, refused to respond when he turned the steering wheel to the left with both hands and then lurched off the road when he again applied the brakes, furnishes the only plausible explanation of the proximate cause of the accident. As against this, there is defendant’s evidence of the inspections made both by the Buick Motor Company and the sales agency. These facts were all presented to the jury and we believe they fairly furnish a basis for the determination of the ultimate inquiry as to the proximate cause of the accident.

The second question presented for review has been considered by the courts of various States, but not by our Supreme Court upon facts pertinent to these. The leading case is MacPherson v. Buick Motor Co., 217 N. Y. 382, in which the defendant manufactured an automobile and sold it to a retail dealer, who in turn resold it to plaintiff. While the plaintiff was riding in the car, one wheel suddenly collapsed and he was thrown out and injured. The evidence discloses that the wheel was made of defective w.ood and its spokes crumbled into fragments. The court found evidence of negligence on the part of the Buick Motor Company in that it failed to discover by reasonable inspection the improper construction of the wheel. The court, after reviewing numerous early decisions and later cases dealing with the principle of liability applicable to similar facts, enunciated the doctrine that a manufacturer who sends out an automobile containing defective material is liable to the purchaser for injuries caused thereby, although the car was purchased through an agent of the manufacturer to whom it had been sold.

In an earlier decision, Olds Motor Works v. Shaffer, 145 Ky. 616, the defendant had manufactured an automobile which was likewise sold to an agency. One of the members of the firm of agents took the plaintiff and others for a ride. Plaintiff occupied a rumble seat in the rear, and while the car was going uphill, the rumble seat fell off and plaintiff was injured. The Supreme Court of Kentucky found considerable conflict in the evidence upon the question as to whether or not members of the agency knew of the unsafe condition of the car before the accident, and also upon the question of the concealment of the defects by the Olds Motor Works. As in this proceeding, evidence of the insecure method of attaching the rumble seat to the body of the automobile was discovered after the accident. The court held that it is indispensable to the safety of persons using vehicles that they be safely and properly constructed with reference to the use for which they are intended; that the liability of their occupants to injury from defects in material of construction is so great as to place upon manufacturers the duty of exercising a high degree of care in construction and in equipping cars in such a manner as will make them reasonably safe when used with proper care; that when an automobile is defectively constructed it is an imminently dangerous thing to life and limb, because no matter how careful the driver or the occupants may be in its use, or how competent they may be to operate it, they are helpless to protect themselves from undiscovered and unknown defects, and that as a proposition of law an automobile comes well within the class of articles for which the manufacturer may be held liable to third persons for injuries occasioned on account of defective construction.

In Johnson v. Cadillac Motor Car Co., 261 Fed. 878, it appears that plaintiff bought a Cadillac car from the retail dealer who had previously purchased the same from the factory. After using the car from February until July, 1909. plaintiff was driving on a pub-lie highway at a reasonable rate of speed when the front right wheel of the car suddenly and without notice broke down. The car turned over and plaintiff was injured. The court held, as a matter of fact, that the automobile was manufactured and assembled and put on the market by defendant with a weak, inadequate and defective wheel thereon, which was the proximate cause of the accident, that the car when put on the market by defendant was dangerous to human life and unsafe for use, and that defendant should, by the exercise of ordinary care, have known this. Cases to the same effect are Quackenbush v. Ford Motor Co., 153 N. Y. S. 131, and Ford Motor Co. v. Livesay, 61 Okla. 231, 160 Pac. 901.

In the case of Colbert v. Holland Furnace Co., 241 Ill. App. 583, which was affirmed in 333 Ill. 78, plaintiff recovered a judgment for personal injuries from a fall resulting from the collapse of the support of a register or grating installed with a furnace in her home. The grate had been placed in a floor and supported by thin pieces of wood which gave way when plaintiff stepped thereon and she fell through and was injured. The defective construction was not discovered until after the accident. We there held that there was ample evidence from which a jury could reasonably find that such support was insufficient for the use to which the grate as a part of the floor would reasonably be subjected, and affirmed the judgment entered by the trial court. The contention was made in the Colbert case, as here, that the happening of the accident some 13 months after the work was completed affected the question of defendant’s liability, but it was held, as stated in the opinion, that reasonably safe construction contemplates continued safety subject to ordinary wear and tear or defects incident to lapse of time, and that if the construction is such that danger may be anticipated therefrom by reason of its defects, it is imminent, even though it does not occur immediately or soon after use.

Defendants, while not conceding the doctrine herein-above discussed to be the settled rule in this State, earnestly contend that there is a difference in principle between defects in construction and defective assembly. They argue that when a manufacturer uses inferior and defective material in construction, the defect can be charged only to the manufacturer, and no matter through how many hands the car may pass, the defect and the consequent weakness of the car continue to exist until, through weakness, the part gives way and possibly causes serious injury, but that in case of a defect in assembling parts which in themselves are free from defects and entirely suitable for the purpose for which they are intended, a different question arises; that a car might be in perfect condition so far as assembly is concerned when it leaves the factory, but in transportation and other handling before and after it reaches the hands of the dealer, the assembly of the car may become so disarranged as to make it defective, and that liability in-such event should rest upon the dealer.

Defendant’s counsel states that they have been unable to find any casé in which this precise question was involved, but cite Breck v. Rollaway Motor Co., 22 Ohio App. 79, 155 N. E. 147, as having at least some bearing upon the question. In that case it was held that the manufacturer of the steering wheel was not liable for injuries caused by reason of the wheel coming off, in the absence of evidence that the wheel was inherently defective. Two theories were there advanced as to the proximate cause of the accident ; one that the pin by which the wheel was attached to the steering post may have been dislodged weeks before the accident by the jarring of the car, and the other that the wheel may have been loosened through a misfit between it and the disk. The court in its opinion said that one of these theories is as good as the other, but that the evidence did not raise any probability of the wheel becoming detached by reason of any inherent defects in its construction. Whatever the rule may be in Ohio with reference to submitting the case to the jury, the established doctrine in this State is that where there is some evidence fairly tending to support plaintiff’s theory of the case, the court is justified in allowing the evidence to be submitted, and in the instant proceeding, we are of the opinion that the evidence heretofore summarized justified the court in submitting the questions of fact for the jury’s consideration.

In the case of Quackenbush v. Ford Motor Co., supra, the court in its opinion employed language which would seem to indicate that they considered the manufacturer of an automobile liable for negligently assembled parts as well as defective material, and upon principle we see no distinction between the two contingencies. The doctrine of liability is based upon the care which the manufacturer owes the user of the car, and the logic of the doctrine would seem to us to require protection to the purchaser against both defective material and defective assembly, because either defect, if it constitutes the proximate cause of the injury, is an omission of the duty upon which the doctrine is founded.

Other rulings complained of have been considered, but no error has been found in them.

For the reasons stated, the judgment should be affirmed.

Affirmed.

Hbbel, P. J., and Wilson, J., concur.


text:
    Maximilian L. Seidman et al., Trading as Seidman & Seidman, Appellants, v. Chicago Eye Shield Company and Robert Malcom, Appellees.
    Gen. No. 35,490.

      Opinion filed June 15, 1932.
    Brown, Fox & Blumberg, for appellants; Jacob Bogan Fox and Charles E. Lewis, of counsel.
    McCulloch & McCulloch, for appellees; Grover C. McLaren and Lewis C. Murtaugh, of counsel.
   Mr. Justice Friend

delivered the opinion of the court.

In September, 1923, there were pending before the government tax department, two cases for additional assessments of income taxes, one against defendant, Robert Malcom, and one against Chicago Eye Shield Company, with respect to income taxes for the years 1917 to 1921 inclusive. Plaintiffs, an accounting firm possessing considerable experience in income tax matters, who were evidently informed as-to the pendency of these matters against defendants, proposed to handle the cases on a per. diem and expense basis. Defendants refused this proposition, and after several telephonic conferences, a second proposal as outlined in the following letter, dated September 29, 1923, was accepted by plaintiffs:

‘ ‘ Gentlemen:

Our fee for the services outlined in our letter of September 25, 1923, relating to the defense of additional Federal tax assessments against yourself and Chicago Eye Shield Company for the years 1917 to 1921, inclusive, will be $2500.00. This fee will include our traveling and incidental expenses.

(signed) Seidman & Seidman,

by Maiwell Wexler,

C. P. A. Manager.”

On October 5, 1923, several days after plaintiffs had been thus employed, the commissioner of internal revenue notified defendants of a further assessment against each defendant, as a penalty imposed on account of alleged fraud in the filing of their tax returns. Notices of these further assessments, prepared by the treasury department, were delivered to Malcom, who communicated the information to Wexler, plaintiffs’ representative. Wexler, according to his testimony, thereupon discussed the contents of these notices with Malcom and called his attention to the fact that the agreement of September 29, 1923, did not cover additional services required for the defense of fraud assessments; that Malcom then inquired of Wexler as to the additional charge for handling these matters and Wexler advised that he was unable to state what the charge would be without an examination of the books and records of defendants, whereupon Malcom requested Wexler to proceed with the work, and that he, Malcom, would meanwhile procure records for his examination; that on December 21, 1923, Malcom again discussed with Wexler the question of plaintiffs’ fees and charges for the additional representation, and after considerable discussion, an oral agreement was reached between plaintiffs and defendants, which is described by Wexler’s testimony as follows:

“On December 21, 1923, I had a conversation in my office with Mr. Malcom, myself and Malcom being present.

“Q. And what was said by yon and what was said by Mr. Malcom? A. I said I had examined the records and had developed some of the information, and that by reason of the injection of the fraud situation, the amount of work would be tremendously increased; but it would require a separate and distinct conference in Washington before the solicitor of internal revenue, in addition to this, that we would have to appear before the income tax unit; that the element of tax assessment and that of fraud was so intermingled that it would be difficult to make any kind of a separation between the two. • The work would involve concurrent action.

“Q. What did he say to that? A. Mr. Malcom asked what it would cost to handle the engagement.

“Q. That is, both cases? A. Yes, what it would cost to enter into a new arrangement, and I said it would be difficult, I cannot name him a lump sum because we cannot foresee what we may be up against, and suggested the better plan would be to put this on a time and- accomplishment and expense, on that kind of a basis rather than a lump sum or other fee arrangement.

“Q. What did he say? A. He said he was quite well pleased with all the work we had done up to that time and that we should proceed on that basis, and I said all right, we would go along on that basis.”

In the latter part of December, 1923, Malcom and Wexler had a further conversation wherein, according to Wexler, Malcom expressed himself as well pleased with plaintiffs’ services and stated that he desired to pay something on account of ■ fees. Wexler advised him that plaintiffs’ time records would not be posted until after January 1, and thereupon Malcom told Wexler to send him a bill for $2,500, which was accordingly done. Upon receipt of same, defendants mailed plaintiffs a check for $1,750.

Thereafter on May 25,1925, which was many months after plaintiffs had completed the major portion of their work, the United States tax officials advised defendants of their final decision to reduce defendants’ aggregate taxes to $73,350, which included the overtax, but not the additional tax levied on account óf alleged fraud. Defendants thereupon on June 2, 1925, mailed to plaintiffs a check for $750, together with a letter containing the following language: “We are enclosing herewith our check in the amount of $750.00, which balances our account as per our contract with .you.”

Wexler testified that following the receipt of this letter and check, he had a conference with Malcom on June 9, in which he said: “What is the meaning of this check for $750.00?” to which Malcom replied, “That is in payment of what I owe you, according to our contract.” That Wexler thereupon further said, “Surely, you haven’t forgotten what our arrangement was” to which Malcom replied, “Well, that is according to the letter you wrote in September.” After an exchange of other remarks between these parties, Malcom is said to have stated to Wexler, “Wait, let us see what the Government will do. Then I will take care of you.” Having heard nothing further from Malcom, Wexler on June 15, 1925, wrote defendants letter, excerpts from which are as follows:

“This will acknowledge receipt of your letter of June 2nd, 1925, together with check enclosed in the amount of $750.00, which you claim to balance our account as per contract. . . . Our fee for the total services to date is $7500.00. Unless we hear from you by June 18,1925, by way of a full settlement of our claim, we will apply your check for $750.00 against your account, and take further action for the recovery of the balance.”

Despite the statement in Wexler’s letter that he would apply defendants’ check for $750 against their account, this check was never cashed, and at the time of the trial still remained in plaintiffs’ possession and was produced upon the hearing. Plaintiff contends that in his conversation with Malcom on June 9, 1925, Wexler offered to return the check for $750 to Malcom, but that the latter refused to accept the same. As applicable to this contention, we find that the following occurred on cross-examination of Wexler:

“Mr. McLaren: Q. (continuing) You never sent that check back to Malcom or the Chicago Eye Shield Company? A. He told me he was not going to accept it.

Q. Did you ever send it back to him? A. No sir.

Q. You kept it? A. Yes, sir.

Q. You never offered to give it back to him? A. No.”

There is nothing of record to show why Wexler could not have returned defendants’ check by mail, if he had so desired. In any event, the check was never returned, nor was it deposited by plaintiffs to apply against defendants’ account.

At the close of plaintiffs’ case, the court peremptorily instructed the jury to return a verdict in favor of defendants and entered judgment accordingly. The grounds assigned for reversal are twofold: (1) Plaintiffs’ evidence establishes every element of affirmative proof necessary for recovery under the declaration upon the issues of the terms of the agreement of employment, complete performance of the agreement by plaintiffs, breach by defendants and damages sustained; and (2) the court erroneously held the conduct of the parties to be an accord and satisfaction as a matter of law.

If the second question were not in the case, we should concur in plaintiffs’ first proposition and hold that there was sufficient evidence of a modified agreement between the parties, the performance thereof by plaintiffs and resultant damages, for submission of the facts to the jury. However, we are inclined to hold with defendants upon the second proposition, namely, that the circumstances and conduct of the parties established an accord and satisfaction as a matter of law, which justified the court in directing a verdict for defendants.

The authorities in this State are numerous and uniform that a payment of a part of a fixed and certain demand which is due and not in dispute is no satisfaction of the whole debt, even where the creditor agrees to receive a part for the whole and gives a receipt for the whole demand. Ostrander v. Scott, 161 Ill. 339, and cases cited therein. This doctrine rests upon the ground that the agreement for a discharge of the entire debt is without consideration, but it is limited to cases where the debt is of the character stated, and has no application to the honest settlement of unliquidated or disputed demands. It appears sufficiently from the record in this proceeding that the controversy between these parties was one fairly in dispute and that plaintiffs’ claim could not be treated as liquidated. The accepted rule applicable to such claims is that where a debtor offers to settle and compromise the debt by sending to the creditor a check in the amount of such offer and compromise, it becomes the duty of the creditor either to accept the check or reject it, and he has no right to cash the check and thereby obtain the benefit of such offer without its accompanying burden of compromise. Snow v. Griesheimer, 220 Ill. 106; Lapp v. Smith, 183 Ill. 179; Canton Union Coal Co. v. Parlin & Orendorff Co., 215 Ill. 244. This case goes one step further, however. Plaintiffs refused to accept the check in full settlement of the account, but protested the same, and after stating that they would apply the check against defendants’ account and take further action for the recovery of the balance, they nevertheless held the check continuously until the trial of the cause. Plaintiffs insist that the mere retention of the check under these circumstances is not as a matter of law an acceptance of defendants’ offer, and, therefore, does not constitute an accord and satisfaction.

Where there is substantially no dispute as to the facts upon which the claim of accord and satisfaction is based, as in the instant proceeding, the great weight of authority in this county, including Illinois, holds that the question of the creditor’s assent is one of law to be determined by the court. Williston on Contracts, Vol. 3, sec. 1854, and cases cited therein; Lapp v. Smith, 183 Ill. 179; Bingham v. Browning, 197 Ill. 122.

We find no reported cases where the circumstances were precisely the same as in this proceeding. However, from the reasoning employed in the reported cases on the doctrine of accord and satisfaction, we find that where a sum of money is tendered in satisfaction of a disputed or unliquidated claim, the party to whom it is offered is bound to understand therefrom that if he takes it subject to such condition, an acceptance of the money offered constitutes an accord and satisfaction, in the absence of fraud, imposition or mistake. The acceptance is an assent de facto, and the creditor is bound by it. If the creditor accepts the check and deposits it to apply on the debtor’s account, it will be held to be an accord and satisfaction notwithstanding the creditor’s protest or his statement that he expects to proceed against the debtor for the balance. Ostrander v. Scott, supra. The position of the creditor in such a situation should be definite and unequivocal. If the proposed settlement and the payment of the account tendered is not satisfactory to him, it is the creditor’s duty immediately to repudiate the offer and return the check. To hold the check indefinitely, after notifying defendants that they would cash it, is not consistent with a repudiation of the offer of compromise, for as stated in Day-Luellwitz Lumber Co. v. Serrell, 177 Ill. App. 30, a check or draft is not intended for indefinite circulation or hoarding. It is supposed to be negotiated promptly or presented promptly, and “if he is not willing to take the lesser sum in full, he must return the check without using it. This seems to be the law of Illinois as declared by the Supreme Court.” Because we believe the doctrine of accord and satisfaction, as expressed in the various citations herein, is in its broadest sense applicable to the instant proceeding, we hold that the trial court properly determined the question of accord and satisfaction as a matter of law in favor of defendants, and the judgment of the court will, therefore, be affirmed.

Affirmed.

Hebel, P. J., and Wilsoh, J., concur.


author: Mr. Justice Wilson

text:
    Sam Lipavsky et al., Appellees, v. 16th Street Building Corporation et al. Central Republic Bank and Trust Company, Appellant.
    Gen. No. 35,554.

      Opinion filed June 15, 1932.
    Poppenhusen, Johnston, Thompson & Cole, for appellant; Frederick Mater, of counsel.
    H. J. Rosenberg and Irving Zazove, for appellees; Abraham Miller and Isadore Fishman, of counsel.
   Mr. Justice Wilson

delivered the opinion of the court.

The complainants Sam Lipavsky and Harry L. Kout, doing business as Lipavsky & Kout, in the month of January, 1922, were general contractors in the City of Chicago and on or about the 15th day of January, 1922, entered into an agreement with the 16th Street Building Corporation to make certain alterations and improvements on a building owned by the defendant, 16th Street Building Corporation, for which work the 16th Street Building Corporation agreed to pay the complainants the cost price for all work, labor and material furnished and the further sum of $2,000 for supervising and superintending the work. It appears from, the evidence that the complainants started the work, hut that an injunction was obtained by one of the tenants of the building and the work was held up for a short time, but finally continued and completed in November, 1922. The building upon which the work was performed, while owned by the 16th Street Building Corporation, was occupied by the 16th Street State Bank. It was a two-story brick building containing stores on the main floor, and flats and a hall above. The work consisted of enlarging the banking quarters on the main floor, and changing the second floor from hall and flats into offices.

Upon the completion of the work complainants presented their itemized statement for labor and work furnished covering millwork, carpenter work, painting, electric fixtures, plumbing, plastering, etc., which amounted to $15,786.01, plus $2,000 for supervising the work, making a total of $17,786.01. The premises were examined by one Maltz, president of the 16th Street Bank and also president of the 16th Street Building Corporation, after the submission of the statement by the complainants. The work done and the material furnished were accepted by him and the statement rendered duly approved on behalf of the 16th Street Building Corporation. The bill, however, was not paid and on February 19, 1923, the complainants filed notice of a claim for a mechanic’s lien in the office of the clerk of the circuit court of Cook county.

February 1, 1922, the 16th Street Building Corporation executed its certain trust deed conveying the premises to the Chicago Title & Trust Company, as trustee, to secure 310 bonds aggregating approximately $100,000. It was part of the plan that the complainants would be paid out of this bond issue, but it appears from the record that these bonds were never sold, but were later put up as collateral to secure a loan from the Greenebaum Sons Bank & Trust Company in the amount of $75,000.

On April 13,1923, the 16th Street Building Corporation by quitclaim deed conveyed the premises in question to Charles A. Pfingsten and on August 6, 1923, Pfingsten and his wife conveyed the premises by a deed of trust to Greenebaum Sons Bank & Trust Company, which was duly recorded in the office of the recorder of deeds of Cook county. Pfingsten appears to have been an employee of Greenebaum Sons Bank & Trust Company at the time he executed the trust deed to that corporation.

The loan of $75,000 to the 16th Street Building Corporation was paid to Greenebaum Sons Bank & Trust Company by Moses E. Greenebaum, Henry E. Greenebaum and James E. Greenebaum, brothers, and the bonds secured by the trust deed were canceled. Greenebaum Sons Bank & Trust Company appears to have held under the provisions of a certain trust agreement dated June 9, 1922, and known as Trust No. 614. From this agreement it appears that the premises were held by the trustee for the use and benefit of Henry E. Greenebaum, one-third, Moses E. Greenebaum, one-third, James E. Greenebaum, one-third. This agreement was not recorded and it provided substantially that “the interest under the trust was personal property and that no beneficiary had or should have any right, title or interest in or to any portion of said real estate as such. ’ ’ The agreement provided further that “so far as the public is concerned, the Greenebaum Sons Bank & Trust Company is the sole owner of the real estate referred to in the agreement. ’ ’

Greenebaum Sons Bank & Trust Company which was made a party defendant to the bill of complaint was succeeded, by consolidation, by the Central Trust Company of Illinois, which was substituted in the proceeding as defendant in lieu of Greenebaum Sons Bank & Trust Company, as trustee. Central Republic Bank & Trust Company, in turn, succeeded Central Trust Company of Illinois by consolidation, and has perfected the appeal to this court.

The bill of complaint made all parties of record parties defendant and also unknown owners. Service was had on the unknown owners by publication, but the beneficiaries named in the trust agreement of June 9, 1922, failed to appear and did not appear in this appeal other than as their interest is represented by the trustee, Central Republic Bank & Trust Company.

One of the reasons urged as a ground for reversal is that these beneficiaries were indispensable parties and necessary to a final determination of the cause. The master and chancellor found adversely to this position of the defendant, and with this we agree. Under the trust agreement of June 9, they make no claim to any interest in the real estate; their interests were fully protected in the course of the litigation by their trustee, and they themselves had notice of the proceeding because'the knowledge of the trustee was their knowledge and they did not see fit to intervene. Moreover, Moses E. G-reenebaum, one of the beneficiaries, was president of the Greenebaum Sons Bank & Trust Company, and held that office during the years 1922 and 1923. He testified in this proceeding.

The Supreme Court of this State in the case of Farmers’ Loan & Trust Co. v. Lake Street Elevated R. Co., 173 Ill. 439, says:

“The first is, that, where the absent parties are properly represented, it is sufficient to make such representatives parties to the suit. In Hale v. Hale, 146 Ill. 227, we said (p. 257): ‘When it appears that a particular party, though not before the court in person, is s,o far represented by others that his interests receive actual and efficient protection, the decree may be held to be binding upon him.’ Jones on Corporate Bonds and Mortgages (sec. 398), says: ‘A trustee for bondholders represents their interests, and, when made a party to a suit affecting their interests, they are as much bound by the decree rendered in the suit as if they were individually made parties to the suit.’ ” To the same effect see Hale v. Hale, 146 Ill. 227.

The fact that the complainant paid out the sum of $15,786.01 for the various items of labor and material furnished under their agreement with the 16th Street Building Corporation is undisputed. By that we mean that there was no evidence showing that such payments had not been made. It is insisted, however, that the proof does not show that such labor and material went into and became part of the real estate and that its value was enhanced to that extent by reason of the work done and material furnished.

Maltz testified that the work was satisfactory and that he himself had had experience in building for over 15 years and had erected about 50 different buildings and had also negotiated loans on real estate. He stated that in his opinion the value of the building, without the ground, before the work was done was approximately $75,000 and that after the work was done and the alterations made it was worth in the neighborhood of $125,000. There is no contradiction of this evidence and standing alone it is sufficient for the purpose of establishing the enhanced value of the property.

In addition to the fact that the statement of account, showing the various items, was .approved by Maltz, president of the 16th Street Building Corporation, the complainants and their witnesses testified as to the work that was done and the material furnished and also as to the reasonable value of the material.

The complainant, Lipavsky, testified from a book of original entries made by his daughter, at his direction, as to the work done and the material purchased and covered the various items in his testimony in detail and the reasonable value of such material and labor furnished.

From the report of the master it appears that these questions received a fair and impartial consideration and there was sufficient evidence in our opinion in the record to sustain his findings, and we see no reason for disturbing them. The master’s report was approved by the chancellor and in our opinion the decree of the superior court should be and is affirmed.

Decree affirmed.

Hebel, P. J., and Friend, J., concur.


author: Me. Justice Wilson

text:
    Henry Ottersen, Complainant, v. Andrew Zerowski and Frances Zerowski, Appellants. James E. Nielsen and Andreas Nielsen, Trading as The Nielsen Bros. Manufacturing Company, Ltd., Appellees.
    Gen. No. 35,588.

      Opinion filed June 15, 1932.
    Rehearing denied and opinion modified June 29, 1932.
    Jacob Levy, for appellants; James M. G-win, of counsel.
    Henry T. Chace, Jr., and M. B. Waltz, for appellees.
   Me. Justice Wilson

delivered the opinion of the court.

Henry Ottersen filed Ms hill of complaint against the defendants Andrew Zerowski and Frances Zerowski, his wife, charging that he was entitled to a mechanic’s lien growing out of the erection of a flat building on the premises of the defendant and praying for. a foreclosure of his lien. The master’s report and the decree sustaining the report found adversely to the complainant and in favor of the defendants. This matter is not before this court on the original bill Q? answer thereto, but comes up on the appeal of Andrew Zerowski and Frances Zerowski from that part of final decree in favor of the intervening petition of James E. Nielsen and Andreas Nielsen, copartners, doing business as The Nielsen Bros. Mnfg. Co., Ltd., hereinafter referred to as Nielsen Bros.

The intervening petition charges that on March 22, 1928, Nielsen Bros, entered into a written agreement with Henry Ottersen, the general contractor, under which the interveners, as subcontractors, agreed to furnish certain material to be used in the construction of the building on the premises of the defendants and the price agreed upon was $1,475. A copy of this contract was attached to the intervening petition and made a part thereof and contained among other things the following clause with reference to payments: “2% 10 days after delivery — 30 days net. No other discount allowed.”

The petition further charges that the intervenors, pursuant to said agreement, completed their work on the 17th day of September, 1928; that by the terms of said contract said sum of $1,475 became due to them on said 17th day of September, 1928, and that the last material was furnished on that date; charges further that certain extras to the amount of $515.90 were furnished at the special instance and request of Ottersen and the defendants. Subsequently this intervening petition was amended so as to show that the intervenors completed their contract on the 17th day of September, 1928, and by the terms of said contract the balance due them, namely, $1,722.90, became due and payable October 17, 1928.

Defendants by their answer claim that the amended intervening petition stated a new cause of action and was not filed within four months after the money became due; that the delivery of certain material on the 17th day of September, 1928, was not sufficient to revive a mechanic’s lien for the value of the extra material delivered July 20, 1928; that the intervenors signed a waiver of lien and that the evidence does not show the value of the work done nor the material furnished after the date of said waiver. The master found in favor of the intervenors, Nielsen Bros., and the decree of the chancellor confirmed this finding and ordered the payment of the amount of the lien, together with interest from October 17, 1928, or the property to be sold. It is from this decree that the defendants appeal.

It is stipulated between the parties that the amount due the defendants is the amount claimed, namely, $1,722.90, and that notice was served on each of the defendants on September 28, 1928. It was further stipulated that the original contract between Ottersen and Nielsen Bros, for material amounted to $1,475 and that extra material was furnished in the amount of $515.90, making a total of $1,990.90; that of this amount the intervenors were paid $268 on May 11, 1928. It was also stipulated that the value of the improvements on the vacant lot owned by the defendant was enhanced by reason of the material furnished by the intervenors to the amount of $1,722.90, the balance claimed to be due.

The intervening petition was filed February 1, 1929', which was more than four months after September 17, 1928, at which time, according to the original petition filed herein, payment was due from the defendants to the intervenors. It charged that the payment for the last material furnished became due September 17, 1928, which was the date of the last alleged delivery. The intervening petition as amended charged that the payment for the last material furnished became due October 17, 1928. If this allegation as to payment as set out in the amendment to the intervening petition was correct, then the intervening petition was filed in apt time.

The Supreme Court of this State in the case of North Side Sash and Door Co. v. Hecht, 295 Ill. 515, expressly held that from the face of the original bill filed in that case, the last delivery of material was more than four months prior to the date of the filing of the bill; that it was essential to the jurisdiction of the court that the bill show on its face a cause of action; that the time fixed for commencing an action under the Mechanics’ Liens Act, Cahill’s St. ch. 82, ¶ 7, is a condition of the liability and operates as a limitation of the liability itself and not of the remedy alone; that the original bill showing on its face that it was not filed within the time, it necessarily should be held that the suit was not begun until the amended bill was filed.

From the facts in the case of North Side Sash and Door Co. v. Hecht, supra, it does not appear that there was anything contained in the original bill which would warrant an amendment. In the case at bar, however, the original intervening petition by reference contained a copy of the original contract upon which the cause of action was based and from this it appears that payment was due 30 days after delivery. The allegation contained in the original intervening petition, that payment was due September 17, 1928, the date of the last delivery, might have been stricken out as surplusage. The petition would have been sufficient because of the contract being made a part thereof, which showed payment was due 30 days thereafter.

The Supreme Court of this State in the case of Eisendrath Co. v. Gebhardt, 222 Ill. 113, in its opinion says:

“It is next argued that if the original bill was filed in time the amended bill set forth a new cause of action on November 10, 1904, and the Statute of Limitations had then run. The cause of action was the same. The property, the building, the work done, the price, the architect, the parties and the date and amount of the architect’s certificate were the same. If relief had been granted under the original bill it would have been a bar to the cause of action for the same work on the same property stated in the amended bill. The amended bill did not state a new cause of action.” See also Smith v. Adcock, 209 Ill. App. 277; Beaudry v. Bell, 250 Ill. App. 468. In the last case cited the'court in its opinion said:

“It is next urged that the bill of complaint failed to confer jurisdiction upon the court because it contained no allegation as to the date of the completion of the contract, nor did it allege when the labor under the contract was performed, or to be performed. There was attached to the bill of complaint as Exhibit ‘ B ’ a copy of the statement of claim filed by the complainant in the office of the clerk of the circuit court. This exhibit, by appropriate allegation, was incorporated in the bill, and stated when the work and the furnishing of materials were completed. This, it has been held, was sufficient to supply the deficiency in the pleading. Smith v. Adcock, 209 Ill. App. 277. In that case the court held that the bill, which omitted several material allegations but incorporated a copy of the statement of claim filed with the clerk of the court which contained the missing allegations, was not obnoxious to a general demurrer.”

The statute of amendments in force in this State was intended to provide against the hardship invoked by a strict construction. Amendments to pleadings should be liberally construed where there is sufficient in the original bill or, as in this case, in the intervening petition upon which an amendment could be predicated. The amended intervening petition stated the cause of action in a different form only, and related back to the original petition filed in the cause. Burgoyne v. Pyle, 261 Ill. App. 356.

We are of the opinion that the chancellor properly permitted the amendment, and that the intervening petition, as amended, did not state a new cause of action. If payment was due 30 days after delivery, as charged in the intervening petition as amended, the intervening petition was filed in apt time. Material Service Corp. v. Ford, 341 Ill. 80.

Objection was made to the admission in evidence of a certain shipping ticket marked exhibit 1-F, on the ground that it showed an alteration on its face and was not admissible until this alteration was satisfactorily explained. We are asked to examine the original exhibit which was ordered certified to this court for the purpose of permitting this court to examine the alleged alteration. The original exhibit was not certified to this court in accordance with Rule 13, but was incorporated in the record. This exhibit was offered in evidence by the intervenors for the purpose of showing delivery of the last material on September 17,1928. It was a receipt for the material and was signed by one of the defendants, namely, Frances Zerowski. Ottersen, the principal contractor, testified that after the delivery of this material he placed it in the building. The man who made the delivery for Nielsen Bros, testified to the fact of delivery, and that it (Ex. 1-F) was made in the regular course of business. We are not disposed to disturb the ruling of the master or the chancellor. Whether or not this was a bona fide delivery of material which was used in the construction of the building was a question of fact and we are not disposed to disturb the finding of the decree holding that it was a good and valid delivery of material and not a subterfuge to maintain the life of the lien.

Defendants insist that a certain waiver of lien, dated May 11, 1928, was a general waiver and a bar to the petitioner’s claim. The case of H. G. Wolff Co. v. Gwynne, 246 Ill. App. 86, is cited in support of this contention. The court held that a similar waiver was a waiver by the subcontractor for material furnished up to the date of the waiver only. In the case at bar, however, it appears that at the time the waiver was signed, a receipt was given for the sum of $236. While this receipt is dated May 9, it is stipulated that the money was paid May 11, the date on which the waiver was signed. The receipt, however, contains the following notation:

“Contract price $1475

Previously paid

This payment $236

Balance $1239.

It also appears from the record that a single shipment of material was made March 27, 1928, and that the balance of the material which apparently constituted the bulk of material furnished, together with all the extras, was furnished under deliveries made May 29, 1928, June 1, 1928, July 2, 1928, July 5, 1928, July 20, 1928, and September 17,1928.

A fair interpretation of the receipt, given at the time of the waiver, would indicate that it waived only so much of the contract price as was paid. The waiver itself expressly states that it is for material furnished only up to the date of the waiver. It would necessarily be assumed from the finding of the chancellor that it was the intention of the parties that the waiver was only to cover the payment made and not the balance of the contract price set out in the receipt. The balance of the contract price set out in the receipt was evidently intended to cover the remainder of the material when and if delivered. There was no dispute between the parties as to the amount due, nor was there any dispute between the parties as to the balance due after the payment of $236. Appeal of Duncanson v. Chicago Title & Trust Co., 188 Ill. App. 551.

We are not disposed to disturb the finding of the chancellor to the effect that the waiver covered only the amount paid on May 11, 1928, namely, $236. We see no reason for disturbing the decree. and for the reasons stated in this opinion, the decree of the superior court is affirmed.

Decree affirmed.

Hebel, P. J., and Friend, J., concur.


text:
    Etta M. McCormick, Appellant, v. Nilas O. Shively, Appellee.
    Gen. No. 35,632.

      Opinion filed June 15, 1932.
    Alfred Boy Hulbert, for appellant.
    Louis N. Blumenthal and Myer H. Gladstone, for appellee.
   Mr. Justice Wilson

delivered the opinion of the court.

Plaintiff, Etta M. McCormick, brought her action against Nilas O. Shively, doing business as Nilas O. Shively & Company, claiming that the defendant had sold her a certain investment contract which was one of the class of securities enumerated in The Illinois Securities Law, Cahill’s St. ch. 32, fí 254 et seq., and that the defendant had not complied with any of the requirements of said law relating to the sale and the offering for sale of such a security or investment contract. The declaration sets out in full the instrument in question, together with the power of attorney attached thereto, and in addition charges that the defendant caused certain advertisements to be inserted in the Chicago Daily Tribune, a newspaper in general circulation in this community, and issued certain circulars or advertisements which induced the plaintiff to enter into the contract and which should be read and considered as part of the agreement. The contract itself appears to be a contract for the sale and purchase of certain real estate situated in Mexico, and provision was made therein for the payment of certain definite sums of money at certain definite periods of time and the giving of a deed to the premises described upon final payment. The contract standing alone is a simple contract for the purchase and sale of real estate under which the purchaser agrees to purchase and the defendant agrees to sell and deliver a deed upon final payment. There appears to be a reservation in the contract to the effect, however, that after the payments have been made and the deed granted, the vendor shall have for a period of 15 years a one-half interest in and to all growing crops, timber, oil, gas, mines and minerals being within, on or under the described premises. The power of attorney attached to the instrument' grants to the vendor the right in her name, place and stead to prospect, explore, bore, drill and mine said property and to do certain other things in connection with the use of said property, provided, however, that the vendee should incur no personal liability by reason thereof and should be held harmless by the vendor from any and all liability or obligation incurred by reason of the exercise of the power set out and enumerated in the power of attorney. This power of attorney granted the right for a period of 18 months and an extension of time as to said rights in the event the vendee should receive certain specified sums of money from the vendor as a result of his efforts in the exploitation of the property, under the power of attorney.

The advertising made part of the declaration, consisting of a full page in the Chicago Daily Tribune, together with the circulars issued by the defendant, contained colored drawings and pictures of Mexico, showing the beauty of the scenery and the wonders of nature; statements of investments made by well-known corporations, glowing descriptions of the fertility of the soil and the possibilities of the underlying mineral worth and a seductive and enticing word picture of the growing possibilities that should inure to the benefit of the purchaser. It is earnestly insisted that these advertisements and this sales propaganda should be read into and considered a part of the agreement and that thereby what might otherwise be a simple contract for the sale and purchase of real estate, would become a security within the meaning of The Illinois Securities Law.

The Securities Law, sometimes referred to as the Blue Sky Law, enacted and in force June 10, 1919, and found in Cahill’s Revised Statutes, 1931, chapter 32, is entitled, “An Act relating to the sale or other disposition of securities and providing penalties for the violation thereof and to repeal Acts in conflict therewith.” Paragraph 255 provides:

“(1) The word 1 securities ’ shall mean and include stock, treasury stock, bonds, debentures, investment contracts, notes, evidences of indebtedness, participation certificates, certificates of shares or interest, etc. ’ ’

Paragraph 259(1) provides:

“Investment contracts, or annuity contracts, or installment investment contracts, or installment investment certificates, or installment participation certificates, or installment investment bonds, or securities of like kind, which contemplate that the issuer shall pay or deliver, or whereby the issuer agrees to pay or deliver, either absolutely or conditionally, to the purchaser or holder of the contract, certificate, bond or like security, a sum of money at a future time, either with or without interest, in consideration of a payment or payments made or contemplated to be made by such purchaser or holder, which securities are hereinafter referred to as investment contracts . . .”

The statute clearly contemplates that only such contracts shall be considered investment contracts as provide for the payment of money at a future time to the purchaser or holder of the contract. No such provision is found in the agreement under consideration. It provides that the payments for the purchase of the property shall be made unconditionally and at certain specified periods of time and that a deed to the property shall be issued upon completion of the payments. The power of attorney attached to the agreement provides that the vendor shall have certain rights in and to the property, namely, the right to explore, drill and mine said property and an interest in and 'to the timber or minerals, oils, coal, etc., upon or underneath the ground. The right to exploit the property, however, is contingent upon the payment of all the expenses by the vendor and without any obligation upon the part of the vendee. There is no definite agreement or understanding that the vendor will develop the property, and the time within which he shall exercise this right is limited in the agreement and in the power of attorney.

If the extraneous matter referred to in the advertisements and the advertising circulars were permitted to enter into and become a part of the agreement, it would open up a field not contemplated by the provisions of the Illinois Securities Law. Every real estate contract providing for the sale and purchase of real estate would become insecure and might be brought within the meaning of the act if this interpretation were recognized by the courts. The act itself provides for a penalty for its violation and courts will not extend its application and will not enlarge, reform or amend it. Iselin v. United States, 270 U. S. 245; People v. Morris, 338 Ill. 335.

Securities are generally defined as written assurances for the return or repayment of money or evidences of indebtedness. Jaffe v. Goldner, 251 Ill. App. 188; 37 Corpus Juris, 275. The act itself, under the definition of investment contract, defines it as one whereby the issuer agrees to pay or deliver a sum of money at a future time. There is nothing in the contract in question which includes any of these essential features. The case of Dobal v. Guardian Finance Corp., 251 Ill. App. 220, cited in support of the argument, is not controlling. It was there held that the contract in question disclosed no specific promise on the part of the defendants to deliver any bonds of any kind or character whatsoever. In the case of Prohaska v. Hemmer-Miller Development Co., 256 Ill. App. 331, it appears that the vendor under the contract agreed to do certain things, among which was the harvesting of the crops upon the land during the life of the agreement and an application of the profits to the purchase price of the land. There is no obligation in the case at bar on the part of the vendor to do anything other than to deliver a deed upon the payment of the purchase price.

If the plaintiff was induced to enter into the agreement by reason of misrepresentation or fraud as to material facts, she might have an action under the common law, but this does not entitle her to recover under the Illinois Securities Law.

A demurrer was sustained by the circuit court to the declaration filed in this proceeding and, the plaintiff electing to stand by her declaration, judgment was entered against her and we see no reason for disturbing this judgment.

For the reasons stated in this opinion the judgment of the circuit court is affirmed.

Judgment affirmed.

Hebel, P. J., and Friend, J., concur.


text:
    George B. Scott, Defendant in Error, v. The Inter-Insurance Exchange of The Chicago Motor Club, Plaintiff in Error.
    Gen. No. 35,684.

      Opinion filed June 15, 1932.
    Miller, Gorham & Wales, for plaintiff in error; Edward B. Adams and Herbert C. De Young, of counsel.
    John H. Kay and Boy J. Egan, for defendant in error.
   Mr. Justice Wilson

delivered the opinion of the court.

The plaintiff, George B. Scott, recovered a judgment against the defendant, The Inter-Insurance Exchange of the Chicago Motor Club, under a certain policy of insurance issued by the defendant to one Peter Hanrahan. The policy of insurance covering Hanrahan contained a clause to the effect that the insurance provided should also inure to the benefit of any person or persons while riding in or operating any of the automobiles owned by Hanrahan and described in the schedule, provided said person was operating said machine with the permission of the assured.

On the night of February 27,1929, the plaintiff Scott was driving one of the automobiles owned by Hanrahan, and with the permission of Hanrahan, who was a passenger at the time. While the plaintiff was operating the machine on the night in question, it struck John Repiscak who received injuries from which he died. The administrator of the estate of the deceased brought his action against Scott, plaintiff here, Hanrahan and one Abraham Sherman, who was driving a truck at the same place and contributed to the injury which resulted in the death of Repiscak.

We are not concerned with the facts surrounding the accident, but the record discloses that upon the trial Hanrahan was found not guilty and a judgment was entered against both Scott, plaintiff here, and Sherman, the other defendant. No appeal was taken from this judgment by Scott, but this action was brought upon the policy issued by the defendant to Hanrahan and the cause was tried by the court without a jury, resulting in a finding in favor of the plaintiff and against the defendant. It is admitted that the policy of insurance covered Scott and insured him against liability arising out of the death of Repiscak. There is no question but that at the time of the accident Scott was driving Hanrahan’s machine with his permission and therefore came within the provision of the policy. It is insisted, however, on behalf of the defendant that both Hanrahan and Scott failed to give immediate written notice of the accident to the defendant; that Scott’s action on the policy was premature; and, lastly, that even though the defendant appeared in the action brought by the administrator and defended on behalf of Hanrahan, this did not amount to a waiver of notice on the part of Scott. Notice of the accident was served upon the defendant by Hanrahan, March 9, 10 days after the accident happened. This notice was accompanied with a detailed statement of the facts concerning the accident and, among other things, stated that Scott, the plaintiff, was, at the time, driving Hanrahan’s car and with his consent. On the same date another statement was given to the defendant company, signed George B. Scott and Peter Hanrahan, giving the details of the accident and the name of the party injured.

The trial court was asked by the defendant to find, as a matter of law, that the written notice of the accident given on March 9 was not an immediate written notice within the terms of the policy. This proposition of law as tendered to the court was marked “refused.” It is insisted that this was error on the part of the trial court and we are referred to the case of Haas Tobacco Co. v. American Fidelity Co., 226 N. Y. 343. From the facts in that case it appeared that a driver of the Haas Tobacco Co., a corporation, while operating one of its trucks, struck and injured a boy, as a result of which the boy died. The driver stated that he did not believe that the boy was seriously injured and no notice of the accident was given until 10 days after it had occurred. The court held, in reversing a judgment of the trial court, that the notice was not such immediate notice as was required by the policy. It is significant, however, that this opinion was by a court divided four to three and that among those dissenting was Cardozo, recently elevated to the Supreme Court of the United States, and whose opinions are considered with the greatest respect. In a subsequent opinion in the case of Rushing v. Commercial Casualty Ins. Co., 251 N. Y. 302, in an opinion rendered by Cardozo, the assured gave notice 22 days after the accident. There was prompt disclaimer of liability. In that case the court did not hold that the length of time in giving notice vitiated the policy, but reversed the judgment and remanded it for a resubmission. In its opinion the court said:

“In the absence of explanation or excuse, a notice of an accident withheld for 22 days is not the immediate notice called for by the policy. There may, indeed, be circumstances, such as absence from the State or lack of knowledge of the accident, that will explain or excuse the delay and show it to be reasonable.”

In the instant case the plaintiff had no knowledge of the fact that there was a policy of insurance issued to Hanrahan, which covered him, the plaintiff, but the defendant within 10 days did have knowledge that Scott was driving the car and came within the terms of the policy. On March 23,1929, Hanrahan delivered to the defendant a copy of the summons served in the suit of the administrator of Bepiscak and this also disclosed to the defendant the fact that Scott, as well as Hanrahan, was a party defendant to that proceeding. There appears nowhere in the record any testimony, either oral or written, showing that the defendant, The Inter-Insurance Exchange of The Chicago Motor Club, ever disclaimed its liability under the policy to Scott for failure of Hanrahan to serve immediate notice as required by the terms of the policy. In consideration of the premiums paid, the defendant agreed to insure Hanrahan, or any person driving his car with his consent, and this included Scott. Scott was, therefore, entitled to the protection of the policy. While the policy provides that the assured shall give immediate notice, there is nothing that can be gathered from the face of the policy to indicate what, if anything, is required of those covered by the policy, other than the one named therein as the assured. Not knowing of the existence of the policy, this class of assured appears to be dependent wholly upon the vigilance of the individual taking out the policy. This fact should be taken into consideration in order to safeguard the right of this particular class of assured in the consideration of the question by the courts as to what constitutes immediate notice. Under such circumstances, the clause requiring immediate notice should be reasonably construed and should not require a construction so strict as to jeopardize the rights of this class of assured. It would also appear that there should be some obligation on the insurance company issuing the policy in such cases to notify this particular class of assured of the company’s intention in regard to their position under the policy as soon as the fact comes to the notice of the company that there are such individuals so covered. The defendant at the time of the alleged disclaimer of liability to Hanrahan, knowing that Scott was driving the car, might easily have notified Scott of its position, but this it failed to do. We believe that the trial court, under the circumstances, was justified in finding as a matter of fact that the notice of Hanrahan to the company was a substantial compliance of the condition of the policy requiring immediate notice.

On April 10,1929, the insured, Hanrahan, had a conversation with Dillon, who appears to have been a representative of the insurance company, and at this time Dillon made a memorandum as to what took place and this, by stipulation of the parties, was introduced in evidence. From this memorandum it appears that Dillon told Hanrahan the company would defend the suit, but would not indemnify him, Hanrahan. Later, on April 16, at another conversation, it appears from a similar memorandum made by Dillon that the defendant company agreed both to handle the suit on behalf of Hanrahan and to indemnify him in case of a judgment. It is claimed that this was a disclaimer of liability so far as Scott was concerned. It is argued that it amounted only to a waiver of the disclaimer as to Hanrahan. There appears nowhere in the record any evidence showing anything done by the company which showed an express disclaimer as to the liability of the company so far as Scott was concerned. It is the rule in this State that forfeitures are not favored and that policies of insurance must be construed most favorably in favor of the assured and this rule applied as well to Scott as to Hanrahan. Treolo v. Iroquois Auto Ins. Underwriters, 348 Ill. 93.

We are referred by counsel to the case of Clements v. Preferred Acc. Ins. Co., 41 F. (2d) 470, in support of this proposition. From the facts in that case it appears that the son of the assured was driving the car at the time of the accident. No notice was given to the insurance company until after two years had elapsed. The company advised the assured that it would assume no obligation on the policy to the son, because it had not received the notice provided for by the policy and that the son would be obliged to defend the suit at his own expense. But, the company did agree to defend the assured himself. The son was notified by the insurance company that it would assume no obligation so far as he was concerned. There was no notice to Scott in the instant case by the company that it would not assume its obligation under the policy, as was done in the case cited. The court held that the failure to give immediate notice, as required under the circumstances, was not such notice as required by the policy, but stated that in its opinion “the provision of the policy requiring immediate notice was a valid provision and substantial compliance with it was a condition precedent to the right to recover under it.” We are of the opinion that the facts contained in the memoranda as to the conversation between Hanrahan and Dillon did not show an unequivocal disclaimer as to any liability so far as Scott was concerned, both because of the indefiniteness of the agreement and understanding and because of the fact that Scott was not present nor notified of the position, if any, taken by the defendant.

It is also insisted that the action is premature because of the failure of Scott to pay the judgment and to prosecute the suit to a final judgment by a court of last resort. The policy, however, contains a clause to the effect that “the insurer will defend any suit brought against the assured to enforce a claim covered by the policy.” After the procurement of the judgment in the superior court of Cook county, plaintiff advised the defendant of the fact that a judgment had been obtained against him and that a bond should be filed within 30 days in order to perfect an appeal from that judgment. Counsel for the defendant represented Hanrahan as a defendant in that proceeding and knew that Scott was defending through his own counsel and was fully cognizant of the judgment and of the facts introduced in evidence concerning the accident. Under the clause of the policy, the defendant was obligated to defend Scott in the personal injury action and was equally obligated to perfect the appeal after the judgment. Ferry v. National Motor Underwriters, 244 Ill. App. 241; Rochester Mining Co. v. Maryland Casualty Co., 143 Mo. App. 555.

Under all the circumstances in this case and in view of the fact that the defendant was fully cognizant of the circumstances and knew that Scott was covered by the policy, we are of the opinion that the present defense, namely, failure to give immediate notice, comes too late to be raised for the first time in an action by Scott under the policy. Indemnity Ins. Co. of North America v. Forrest, 44 F. (2d) 465. The obligation was not alone upon Scott or someone on his behalf to give immediate notice, but thére was also an obligation on the part of the defendant, knowing that Scott was covered by the policy, to have notified him at the earliest opportunity that it would not recognize his rights under the policy. The failure of the company to so notify Scott amounted to a waiver of this condition.

For the reasons stated in this opinion, the judgment of the superior court is affirmed.

Judgment affirmed.

Hebel, P. J., and Friend, J., concur.


author: Mr. Presiding Justice McSurely

text:
    Union Indemnity Company, Appellant, v. W. G. Jeschke et al., Appellees.
    Gen. No. 35,746.
    Opinion filed June 20, 1932.
    Church, Haft, Robertson, Crowe & Spence, for appellant; Burt A. Crowe, of counsel.
    H. E. Kopald, for appellee W. Gr. Jesehke.

      Norman A. Beck, for appellee Henry Eckhart.
    Samuel M. Bague, for appellee Charles W. Clarke.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.

Complainant filed its bill of interpleader but subsequently moved that it be dismissed, which motion was denied and a decree was entered from which it appeals.

The bill, filed August 28,1929, alleged that complainant was qualified to carry on an insurance and bonding business in the State of Illinois, with its principal office in New Orleans, Louisiana; that it entered into a writing obligatory in the sum of $5,000, for the benefit and protection of the public who had business relations with one Fred A. Healy, a registered dealer and broker pursuant to section 23 of the Illinois Securities Act as amended, Cahill’s St. ch. 32, 276; that in and by its bond said Healy was principal and complainant was surety. The condition of the bond was that Healy should comply in all respects with the provisions of the Illinois Securities Law, making all sales of securities without material misrepresentations and faithfully to account to all persons interested for all money and property received by said Healy in payment of securities, and deliver to the purchaser such securities when paid for; that if any of said provisions should not be performed the complainant agreed to pay, upon demand, to persons interested the amount of money and value of property received by said Healy.

The bill further alleged that the complainant was informed that Healy became indebted to W. G-. Jeschke in the sum of $2,490.23 for securities bought and sold by Healy for his account; that complainant was also informed that Healy was indebted to Charles W. Clarke for securities bought and sold for his account in the sum of $8,400, and was also informed that Healy was indebted to Henry Eekhart for securities bought and sold in the sum of $1,000; and that complainant was informed and believes that said Healy has failed to account for said moneys owed to said parties.

Complainant alleged that there may be other parties unknown to it who are entitled to benefits under the bond; that said Jeschke, Clarke and Eekhart are each claiming to be legally entitled to receive part or the whole benefit under said bond and are demanding of complainant the full payment of their claims; that Jeschke has brought a suit at law in the circuit court of Cook county against complainant for the amount of his claim and that Clarke and Eekhart are also threatening to bring similar suits at law.

Complainant represented that it had no interest whatever in the fund and was merely the indifferent holder of the $5,000; that it is now ready to pay said amount to the person or persons legally entitled thereto as the court may determine, and complainant offered to bring and pay said amount of money in court as the court might direct. Complainant prayed that the parties claiming may be made defendants to the bill and set forth their several claims to the fund, and that they may interplead and settle and adjust their demands among themselves, complainant agreeing to pay whatever sum the court adjudged was due the respective defendants. An injunction was also requested to restrain Jeschke from proceeding with his suit at law and all the defendants from instituting any actions at law against complainant upon its bond.

December 2, 1931, the decree was entered substantially in compliance with the prayer of complainant’s bill. The rule is that when it appears on the face of the record that a decree is precisely in accordance with the prayer of the bill and grants the relief asked for, complainant will not be heard to question it in a court of review. In McDonald v. Shimeall, 282 Ill. 42, under similar circumstances the Supreme Court ordered the writ of error dismissed, holding that as the complainant had obtained the relief sought by the bill, error could not be assigned on the decree. To the same effect is Cogswell v. Armstrong, 77 Ill. 139.

This is sufficient to dispose of this appeal, but counsel for both sides have argued the propriety of the order of the chancellor denying complainant’s motion to dismiss its bill, complainant asserting the general rule that a complainant may dismiss his bill at any time before a cross-bill has been filed.

August 28, 1929, the bill of interpleader was filed; September 19, answer of Eckhart was filed; October 5, answer of Jesehke was filed; October 22, answer of Clarke was filed. In these answers each defendant asserted his claim and asked the court to find he was entitled to his share of the fund. The aggregate of these claims was substantially more than the amount of the bond ($5,000). The parties then entered into an agreement as to how the fund should be divided and pursuant to this, on December 13, 1929, signed and filed a stipulation in which they admitted that the bill of interpleader had been properly filed and admitted its allegations and that complainant was a disinterested holder of the $5,000 as mentioned in the bill; that said defendants have interpleaded and settled the matter in controversy among themselves and stipulated and agreed upon the amounts to be paid each of the defendants, thus exhausting the entire fund of $5,000 after deducting therefrom the lawful costs of complainant, and it was agreed that the court might order distribution and payment of the said fund accordingly. December 30, 1929, apparently because of the decision in People v. Federal Surety Co., 336 Ill. 472, holding void section 23 of the Illinois Securities Act, Cahill’s St. ch. 32, U 276, a motion was filed on behalf of the complainant asking the court to dismiss the cause, and on the same day the solicitor for Eckhart filed a cross motion asking for the entry of a decree distributing the fund among the respective defendants in accordance with the stipulation. These motions were continued to January 13,1930. Subsequently, on January 25, Jesehke filed what is termed a cross-bill; February 17, defendant Clarke also filed a cross-bill; subsequently the motion to dismiss was continued to April 14; thereupon complainant filed demurrers to the cross-bills of Clarke and Jesehke. May 14, it was ordered that complainant’s motion to dismiss its bill be denied, its demurrer to the cross-bill of Jesehke was overruled, Clarke was given leave to withdraw his cross-bill and complainant was given leave to amend his bill of complaint within 30 days. Further pleadings were filed and orders entered which we do not think it necessary to note. December 2, 1931, the final decree was entered with findings substantially as stated in complainant’s bill of complaint and awarding to each of the three defendants the amounts as stipulated. The complainant appealed from this decree and this is the appeal now before us.

• Complainant concedes that it would not have the right to have its bill dismissed if cross-bills were pending, but asserts that at the time it made its motion to dismiss only the answers of the defendants were filed and there were no cross-bills filed. An exception to the general rule that complainant may dismiss his bill occurs when the bill is one of interpleader and answers have been filed, the theory being that in such a suit the answer, in which the defendant asserts his claim is in effect a cross-bill, serving the same purpose. Pullman Co. v. Vinegar Bend Lumber Co., 191 Ill. App. 93. This practice was followed in principle in Alley v. Board of Supervisors of Adams County, 76 Ill. 101, where the bill of interpleader was dismissed without settling the rights of the claimants to the fund. This was held to be improper, that the court should have settled the rights of the claimants, and the decree was reversed and the cause remanded for this purpose. In Lackner v. McKechney, 252 Fed. 403, where a bill was filed to wind up a partnership and defendants had filed their claims, the court held that by so doing they had obtained as interveners an independent standing in the cause, and the court should not allow the original bill to be dismissed. In McFarland v. Creath, 35 Mo. App. 112, it was held that where a defendant in an interpleader suit has appeared and answered, admitting complainant’s right to file the bill, his claim cannot be barred without directing an issue between the claimants. In Morrill v. Manhattan Life Ins. Co., 183 Ill. 260, the court quotes with approval from Balchen v. Crawford, 1 Sandf. Ch. (N. Y.) 380, as follows: “In an interpleader suit the complainant’s office is widely different from that of a complainant in an ordinary suit in equity seeking to avoid a liability or to enforce some right against the defendant. Here the complainant comes into court with the money in his hand to discharge an acknowledged debt which he is prevented by conflicting claims from paying to either of the claimants with safety to himself. His duty appears to be at an end when he has brought the rival claimants to interplead by filing their answers and putting the suit at issue.” In Strobil v. Union Cent. Life Ins. Co., 129 Ill. App. 343, it was said that the interpleader, having brought the defendants into court and obtained the relief prayed for, had no further interest in the case and nothing more to do in it. See also Wilcoxon v. Wilcoxon, 111 Ill. App. 90; Judson v. First Trust & Sav. Bank, 238 Ill. App. 531.

In the instant case the claimants had not only made their respective claims by their answers, but had also agreed upon the distribution of the fund. Nothing remained for the complainant to do except to bring the fund into court as it had offered to do in its bill. The rights of the parties had been settled. It was therefore too late for complainant to move to have its bill dismissed and the motion was properly denied.

Complainant attempts to make the point that the court erred in not sustaining its demurrer to the cross-bill of defendant Jeschke. This is not properly before us. The appeal is only from the decree of December 2, 1931. Furthermore, neither the cross-bill nor the demurrer has been abstracted.

The decree was in conformity with the proper practice and the law, and it is affirmed.

Affirmed.

O’Connor and Hatchett, JJ., concur.