author: Mr. Presiding Justice Gridley

text:
    J. Lipke and Minnie Lipke, appellees, v. Foreman-State Trust and Savings Bank, appellant.
    Gen. No. 35,051.
    Opinion filed November 24, 1931.
    Rehearing denied December 7, 1931.
    D’Ancona, Pflaum & Kohlsaat, for appellant. Harold A. Fein, for appellees; Bachrach & Abt and Leo L. Stone, of counsel.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.


source: Caselaw Access Project

license: Public Domain

text:
    Frank A. Garden, appellant, v. Eugene J. Sullivan and Catherine Sullivan, appellees.
    Gen. No. 35,091.
    Opinion filed November 24, 1931.
    Rehearing denied December 7, 1931.
    Julius S. Neale, for appellant; Clarence T. Morse and Philip Appel, of counsel. Francis J. Sullivan, for appellees.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.


text:
    Walsh Motors, Inc. for the use of Aetna Acceptance Company, appellee, v. Harbor State Bank, appellant.
    Gen. No. 35,141.
    Opinion filed November 24, 1931.
    Rehearing denied December 7, 1931.
    Gilbert G. Wolfe, for appellant. William S. Kleinman, for appellee.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.


text:
    Madison-Kedzie Trust & Savings Bank, appellee, v. A. J. Dean, appellant.
    Gen. No. 35,150.
    Opinion filed November 24, 1931.
    Rehearing denied December 7, 1931.
    Shulman, Shulman & Abrams, for appellant; Meyer Abrams, of counsel. Winston, Strawn & Shaw, for appellee; Anthony L. Michel, of counsel.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.


text:
    Fine Hing Company and Joe Eng, appellees, v. City of Chicago et al., appellants.
    Gen. No. 35,359.
    Opinion filed November 24, 1931.
    William H. Sexton, Corporation Counsel, for appellants; Martin H. Foss and Carl J. Appell, Assistant Corporation Counsel, of counsel. No appearance for appellees.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.


text:
    Max M. Cohn, complainant, v. Herman Weissman et al., defendants. Foreman-State National Bank of Chicago, cross-complainant, v. Herman Weissman et al., on appeal of Herman S. Strauss, appellant.
    Gen. No. 35,604.
    Opinion filed November 24, 1931.
    Pritzker & Pritzker, for appellant; Reuben L. Freeman, of counsel. Baraneik & Dolin, for appellee.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.


text:
    Chicago Title & Trust Company, appellee, v. Viggo N. C. Kragh et al., defendants, on appeal of Sydney J. Lumley, appellant.
    Gen. No. 35,620.
    Opinion filed November 24, 1931.
    Harold A. Fein, for appellant. TTrion, Drueker, Bishop & Boutell, for appellee; Jerome J. Sladkey, of counsel.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.


author: Mr. Justice Kerner

text:
    Moir Hotel Company, appellant, v. Gustav Mann et al., appellees.
    Gen. No. 35,061.
    Opinion filed November 24, 1931.
    Rehearing denied December 7, 1931.
    Campbell, Clithero & Fischer, for appellant; John G. Campbell and Carlton L. Fischer, of counsel. Pines, Morse & Stein, for appellees; Clarence T. Morris and Alvin E. Stein, of counsel.
   Mr. Justice Kerner

delivered the opinion of the court.


text:
    Olive Ludvigsen, administratrix of the estate of Edwin Ludvigsen, deceased, defendant in error, v. Richard A. Olsen, plaintiff in error.
    Gen. No. 35,084.
    Opinion filed November 24, 1931.

      Schroeder & Metzger and Werner W. Schroeder, for plaintiff in error. Rose & Symmes and Philip H. McGrath, for defendant in error.
   Mr. Justice Kerner

delivered the opinion of the court.


text:
    In re Estate of Kachadoor Manoogian, deceased. Zakar Markarian, appellant, v. Avedis Bogosian, administrator of the estate of Kachadoor Manoogian, deceased, appellee.
    Gen. No. 35,116.
    Opinion filed November 24, 1931.
    Martin M. Gross, for appellant. McDonald & Richmond, for appellee.
   Mr. Justice Kerner

delivered the opinion of the court.


text:
    Winifred L. Donly et al., complainants, v. Hermina Boyer and Lawrence R. Boyer, defendants. Hermina Boyer and Lawrence R. Boyer, appellees, v. Winifred L. Donly et al., defendants, on appeal of Winifred L. Donly, appellant.
    Gen. No. 35,123.
    Opinion filed November 24, 1931.
    Edward H. Kubitz, for appellant. Cavender, Milehrist & Kaiser, for appellees.
   Mr. Justice Kerner

delivered the opinion of the court.


text:
    Portia G. Lee, appellant, v. Robert H. Sage and The Duco Corporation of Chicago, appellees.
    Gen. No. 35,132.
    Opinion filed November 24, 1931.
    Enoch J. Price, for appellant. Schuyler, Dunbar & Weinfeld and Arthur J. Murphy, for appellees; Arthur J. Murphy, George W. Lennon and Jack S. Morris, of counsel.
   Mr. Justice Kerner

delivered the opinion of the court.


text:
    Al. Simon, appellee, v. Fred M. Johns, appellant.
    Gen. No. 35,225.
    Opinion filed November 24, 1931.
    Rehearing denied December 7, 1931.
    Joseph H. Hinshaw, for appellant; William A. Hanson, of counsel. Nicholas J. Mascha, for appellee.
   Mr. Justice Kerner

delivered the opinion of the court.


author: Mr. Justice ICerner

text:
    Anne Kramer, appellee, v. Julia King, Inc., and Carders, Inc., appellants.
    Gen. No. 35,236.
    Opinion filed November 24, 1931.
    Cutting, Moore & Sidley, for appellants; James F. Oates, Jr., Ralph F. Himmelhoch and W. Clyde Jones, of counsel. Irving G. Zazove, for appellee; S. E. Quindry, of counsel.
   Mr. Justice ICerner

delivered the opinion of the court.


text:
    Charles J. Dempsey, Inc., appellee, v. Daniel P. Franklin, appellant.
    Gen. No. 35,245.
    Opinion filed November 24, 1931.
    Rehearing denied December 7, 1931.
    Gliek & Sehlifkin, for appellant; Irving L. Block, of counsel. Harry R. Adler, for appellee.
   Mr. Justice ICerner

delivered the opinion of the court.


text:
    Andrew C. Olsen and Ida M. Olsen, appellants, v. Continental National Bank and Trust Company et al., defendants. Continental Illinois Bank and Trust Company, appellee.
    Gen. No. 35,258.
    Opinion filed November 24, 1931.
    Monahan & Monahan, for appellants. Mayer, Meyer, Austrian & Platt, for appellee.
   Mr. Justice ICerner

delivered the opinion of the court.


text:
    The Flash Sales Corporation, complainant, v. L. C. Berry et al., defendants. R. M. Eddy Foundry Company, appellee, v. L. C. Berry et al., defendants, on appeal of L. C. Berry and John M. Berry, appellants.
    Gen. No. 35,363.
    Opinion filed November 24, 1931.
    Philip A. Lozowiek and J. Willis Dix, for appellants; Philip A. Lozowiek, of counsel. Castle, Williams, Long & McCarthy, for appellee; Neil Williams, of counsel.
   Mr. Justice Kerner

delivered the opinion of the court.


text:
    Al Holtz, appellee, v. Morris Isaacson et al., defendants. Morris Isaacson, appellant.
    Gen. No. 35,610.

      Opinion filed November 24, 1931.
    Aaron Soble, for appellant. No appearance for appellee.
   Mr. Justice Kerner

delivered the opinion of the court.


author: Mr. Justice Scanlan

text:
    The Metropolitan Community Center, The Peoples Church, appellant, v. Harvey A. Watkins et al., appellees.
    Gen. No. 34,910.
    Opinion filed November 24, 1931.
    Rehearing denied and additional opinion filed December 7, 1931.
    Walter M. Farmer, for appellant; Sheridan E. Fry, of counsel. Hart, Frank & Shomberg, for appellees; Milton Hart, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    Thomas Maloney, appellee, v. Thomas J. Grady, trading as T. J. Grady & Company, appellant.
    Gen. No. 34,944.
    Opinion filed November 24, 1931.
    Rehearing denied December 7, 1931.
    Henry N. Miller and John M. Grimes, for appellant; George A. Knuti, of counsel. Lawrence M. Fine, for appellee.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    Proctor D. Rensenhouse, appellee, v. W. H. Wade, appellant.
    Gen. No. 35,078.
    Opinion filed November 24, 1931.
    Myer N. Rosengard, for appellant; Irving L. Block, of counsel. Thomas M. Poynton, for appellee.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    N. A. Cobb, appellant, v. Laura Harney Rathbone, executrix of the last will and testament of Henry R. Rathbone, deceased, appellee.
    Gen. No. 35,087.
    Opinion filed November 24, 1931.
    O’Connor & Conroy, for appellant; N. A. Cobb, pro se, and Frank J. Conroy, of counsel. Schroeder & Metzger, for appellee; Werner W. Schroeder, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.


author: Mr. Justice Seanlan

text:
    Angie Broll, appellee, v. City of Chicago, appellant.
    Gen. No. 35,109.
    Opinion filed November 24, 1931.
    Francis X. Busch, Corporation Counsel, and Alexander M. Smietanka, for appellant; Carl J. Appell, Assistant Corporation Counsel, of counsel. Albert Schaffner and Earl J. Walker, for appellee.
   Mr. Justice Seanlan

delivered the opinion of the court.


text:
    Henry Herman, appellee, v. Edwin McNeal, trading as McNeal & Company, appellant.
    Gen. No. 35,138.
    Opinion filed November 24, 1931.
    Adams, Hawley, Brown & Adams, for appellant. Lucius, Buehler & Lucius, for appellee; Albert E. Lucius and Matthew M. Schulte, of counsel.
   Mr. Justice Seanlan

delivered the opinion of the court.


text:
    In re petition of George Kit to be discharged under the Insolvent Debtors’ Act. Frank Brady, administrator of the estate of Nellie Brady, deceased, appellee.
    Gen. No. 35,147.
    Opinion filed November 24, 1931.
    Coburn, Kearney & Coburn, for appellant; Marshall V. Kearney, of counsel. John W. Costello and Ralph Gutgsell, for appellee.
   Mr. Justice Seanlan

delivered the opinion of the court.


text:
    James L. Kearns for the use of James W. Murray, appellee, v. Franklin Company, appellant.
    Gen. No. 35,156.
    Opinion filed November 24, 1931.
    Myron E. Wiseh, for appellant; Sidney R. Tarkoff, of counsel. Charles V. Falkenberg, for appellee.
   Mr. Justice Seanlan

delivered the opinion of the court.


text:
    James H. Hooper, plaintiff in error, v. H. Leopold Spitalny, defendant in error.
    Gen. No. 35,189.

      Opinion filed November 24, 1931.
    James H. Hooper, pro se. Mark D. Goodman, for defendant in error.
   Mr. Justice Seanlan

delivered the opinion of the court.


text:
    James H. Hooper, plaintiff in error, v. W. D. Foreman, defendant in error.
    Gen. No. 35,201.
    Opinion filed November 24, 1931.
    James H. Hooper, pro se. No appearance for defendant in error.
   Mr. Justice Seanlan

delivered the opinion of the court.


text:
    Landfield-Kupfer Printing Company, appellant, v. Sidney Smith, appellee.
    Gen. No. 35,212.
    Opinion filed November 24, 1931.
    Moses, Kennedy, Stein & Baehrach, for appellant; Albert Langeluttig, of counsel. O’Bryan & Bishop, for appellee.
   Mr. Justice Seanlan

delivered the opinion of the court.


text:
    William H. Brown & Company, appellant, v. John Eberson et al., appellees.
    Gen. No. 35,228.
    Opinion filed November 24, 1931.
    Heineman, Ronan & Langsett, for appellant. William McKinley and Paul E. Price, for appellees.
   Mr. Justice Seanlan

delivered the opinion of the court.


text:
    Catherine Walsh, appellee, v. Union Bank of Chicago et al., defendants. Personal Home Mortgage Company, appellant.
    Gen. No. 35,372.
    Opinion filed November 24, 1931.
    Reginald C. Darley, for appellant. Hoffman & Golder, for appellee; Ludwig Loewenstein, of counsel.
   Mr. Justice Seanlan

delivered the opinion of the court.


author: Mr. Presiding Justice Hebei

text:
    Foreman Trust & Savings Bank, administrator of the estate of Frank Chandler, deceased, plaintiff in error, v. Chicago Surface Lines et al., defendants in error.
    Gen. No. 34,485.

      Opinion filed December 2, 1931.
    Irving G. Zazove, for plaintiff in error. Brown, Fox & Blumberg, for defendants in error; Frank L. ICriete, Charles LeRoy Brown and A. R. Peterson, of counsel.
   Mr. Presiding Justice Hebei

delivered the opinion of the court.


text:
    Mary Laughlin, defendant in error, v. Checker Taxi Company, plaintiff in error.
    Gen. No. 34,775.
    Opinion filed December 2, 1931.
    Lester L. Bauer, for plaintiff in error; Ernest D. MaeDougall, of counsel. No appearance for defendant in error.
   Mr. Presiding Justice Hebei

delivered the opinion of the court.


text:
    Martin Eckles et al., appellees, v. Western & Southern life Insurance Company, appellant.
    Gen. No. 34,820.
    Opinion filed December 2, 1931.
    Rehearing denied December 22, 1931.
    Hoyne, O’Connor & Rubinkam, for appellant. Levisohn & Levisohn, for appellees.
   Mr. Presiding Justice Hebei

delivered the opinion of the court.


text:
    Edgar Wenger, appellee, v. Motorists Association of Illinois, appellant.
    Gen. No. 34,826.
    Opinion filed December 2, 1931.
    Rehearing denied December 22, 1931.
    Rufus M. Potts and C. W. Armstrong, for appellant. Robert D. Elder, for appellee.
   Mr. Presiding Justice Hebei

delivered the opinion of the court.


text:
    Helen Janos, appellee, v. Albert A. Henry, appellant.
    Gen. No. 34,895.
    Opinion filed December 2, 1931.
    Walter Hamilton, for appellant. No appearance for appellee.
   Mr. Presiding Justice Hebei

delivered the opinion of the court.


text:
    McCormick Building Corporation, appellee, v. David E. Kennedy, Inc., appellant.
    Gen. No. 34,907.
    Opinion filed December 2, 1931.
    Boyle, Murphy & Nelson, for appellant; Thomas E. Murphy, of counsel. Cohen & Berke, for appellee; Harry F. Brewer, of counsel.
   Mr. Presiding Justice Hebei

delivered the opinion of the court.


text:
    Lloyd F. Neely, trading as Neely Printing Company, appellee, v. The Midland Club, appellant.
    Gen. No. 34,968.
    Opinion filed December 2, 1931.
    Stevens, Carrier & Griffith, for appellant; George M; Stevens, of counsel. Haffenberg, Kopald & Burns, for appellee; Harry E. Kopald and Joseph Rosenbaum, of counsel.
   Mr. Presiding Justice Hebei

delivered the opinion of the court.


text:
    Louis E. Nelson, receiver of the Citizens State Bank of Melrose Park, Illinois, appellee, v. Margareth Thiele, appellant.
    Gen. No. 35,360.
    Opinion filed December 2, 1931.
    Ode L. Rankin, for appellant. Crowe, Gorman & Savage, for appellee; C. J. Odenweller, Jr., of counsel.
   Mr. Presiding Justice Hebei

delivered the opinion of the court.


text:
    Fred P. Heitman, appellee, v. Julius E. Evensen et al., defendants. Lena Lomanto, individually and as guardian of Joseph Charles Lomanto and Sarah Ruth Lomanto, minors, appellant.
    Gen. No. 35,405.
    Opinion filed December 2, 1931.
    Jacobson, Merrick, Nierman & Silbert, for appellant. William B. Berger, for appellee.
   Mr. Presiding Justice Hebei

delivered the opinion of the court.


text:
    Chicago Title and Trust Company, appellee, v. Charles C. Weinz et al., on appeal of Harry Cook, defendant, from interlocutory order entered August 14, 1931, appointing receiver, appellant.
    Gen. No. 35,617.

      Opinion filed December 2, 1931.
    Concannon & Dillon, for appellant. Butz, Von Ammon & Marx, for appellee; Frederick Z. Marx and Joseph D. Lawyer, of counsel.
   Mr. Presiding Justice Hebei

delivered the opinion of the court.


author: Mr. Justice Friend

text:
    The People of the State of Illinois, defendant in error, v. John David Sheridan, Jr., plaintiff in error.
    Gen. No. 34,873.
    Opinion filed December 2, 1931.
    Everett Jennings and W. W. Smith, for plaintiff in error. John A. Swanson, State’s Attorney, for defendant in error; Otho S. Fasig, Henry T. Chace, Jr., and Edward E. Wilson, Assistant State’s Attorneys, of counsel.
   Mr. Justice Friend

delivered the opinion of the court.


text:
    Chicago Water Purifying Company, appellee, v. Palmer Flour Company, appellant.
    Gen. No. 34,901.
    Opinion filed December 2, 1931.
    L. A. Sherwin, for appellant. Lowcnhaupt & Wolff, for ai)pellee; James R. O’Leary, of counsel.
   Mr. Justice Friend

delivered the opinion of the court.


text:
    Edward J. Willette, appellee, v. The Chicago, Rock Island and Pacific Railway Company and The Baltimore and Ohio Railroad Company, appellants.
    Gen. No. 34,929.
    Opinion filed December 2, 1931.
    Rehearing denied and opinion modified December 22, 1931.
    Charles D. Clark, Henry D. Sheean and Daniel Taylor, for apxiellants. Joseph D. Ryan, for appellee; W. W. Patterson, of counsel.
   Mr. Justice Friend

delivered the opinion of the court.


text:
    Elmer A. Rich, appellant, v. Edward Levin, trading as North Star Loan Bank, appellee.
    Gen. No. 34,939.
    Opinion filed December 2, 1931.
    J. B. Luse, for appellant. Freundlich & Froehlich, for appellee; Alfred Beck, of counsel.
   Mr. Justice Friend

delivered the opinion of the court.


text:
    Amelia Redlin et al., appellants, v. Alfred M. Rozanski et al., appellees.
    Gen. No. 34,952.
    Opinion filed December 2, 1931.
    George N. Kotin, for appellants; James B. Cashin, of counsel. Harry A. Fleck, for appellees.
   Mr. Justice Friend

delivered the opinion of the court.


text:
    M. Salk, appellee, v. Louis Bomash, appellant.
    Gen. No. 34,981.
    Opinion filed December 2, 1931.
    Eisendrath, Solomon & Borden, for appellant; David S. Eisendrath and Jerome L. Abrahams, of counsel. Morton A. Mergentheim, for appellee; Theodore Sharf and I. M. Auerbach, of counsel.
   Mr. Justice Friend

delivered the opinion of the court.


text:
    Pearl Simon, appellee, v. City of Chicago et al., appellants.
    Gen. No. 34,990.
    Opinion filed December 2, 1931.
    Samuel A. Ettelson, Corporation Counsel, William D. Saltiel, City Attorney, and Robert G. Louis, Assistant City Attorney, for certain appellant; Cora B. Hirtzel, Assistant Corporation Counsel, of counsel. Irving G. Zazove, for appellee.
   Mr. Justice Friend

delivered the opinion of the court.


text:
    Carl Ulbrich, appellee, v. Charles Ludwig et al., defendants, on interlocutory appeal of Solomon Goldberg and Anna Goldberg, his wife, appellants.
    Gen. No. 35,367.
    Opinion filed December 2, 1931.
    Edelson, Latter & Wise, for appellants; William N. Wise, of counsel. Charles Rudolph, for appellee; William Annan Taylor and Harold M. Goldstein, of counsel.
   Mr. Justice Friend

delivered the opinion of the court.


text:
    Oscar H. Haugan, appellee, v. Carl Thorgersen et al., defendants, on appeal of Bernard Given, appellant.
    Gen. No. 35,629.

      Opinion filed December 2, 1931.
    Rehearing denied December 22, 1931.
    Irving L. Block, for appellant.; Irving Mantel, of counsel. Miller, Gorham & Wales, for appellee.
   Mr. Justice Friend

delivered the opinion of the court.


author: Mr. Justice Wilson

text:
    W. P. Cooney and T. S. Korshak, trading as Cooney & Korshak, defendants in error, v. Missouri, Kansas, Texas Railroad Company of Texas et al., plaintiffs in error.
    Gen. No. 35,008.
    Opinion filed December 2, 1931.
    Rehearing denied December 22, 1931.
    Leesman & Roemer, for plaintiffs in error. O’Connell, MeGlinn & O’Gallagher, for defendants in error.
   Mr. Justice Wilson

delivered the opinion of the court.


text:
    The First National Bank of Palatine, appellant, v. Hahnemann Institutions of Chicago, Inc., appellee.
    Gen. No. 35,070.
    Opinion filed December 2, 1931.
    Rehearing denied December 22, 1931.
    William Annan Taylor, for appellant. Altheimer & Mayer, for appellee; Leo L. Weil and Charles Blumenfeld, of counsel.
   Mr. Justice Wilson

delivered the opinion of the court.


text:
    Bernard McKiernan, appellant, v. Taylor & Lynch Cartage Company, appellee.
    Gen. No. 35,079.
    Opinion filed December 2, 1931.
    Morris A. Gold and Aaron R. Eppstein, for appellant. Sonnenschein, Berkson, Lautmann, Levinson & Morse, for appellee; Isaac E. Ferguson, of counsel.
   Mr. Justice Wilson

delivered the opinion of the court.


text:
    David R. Forgan et al., appellants, v. Gordon Motor Finance Company, appellee.
    Gen. No. 35,142.
    Opinion filed December 2, 1931.
    Rehearing denied December 22, 1931.

      Goldman, Allshouse & Healy, for appellants; Robert G. Dreffein, of counsel. Short, Rothbart, Willner & Lewis, for appellee; Seymour M. Lewis, of counsel.
   Mr. Justice Wilson

delivered the opinion of the court.


text:
    Schwarzenbach Huber Company, appellee, v. More Manufacturing Company, appellant.
    Gen. No. 35,154.
    Opinion filed December 2, 1931.
    Rehearing denied December 22, 1931.
    Jacob Katz, for appellant; Max Lurie, of counsel. Musgrave', Oppenheim, Price & Ewins, for appellee.
   Mr. Justice Wilson

delivered the opinion of the court.


text:
    Equitable Trust Company of Chicago, appellee, v. A. Warshawsky & Company, Inc., appellant.
    Gen. No. 35,182.
    Opinion filed December 2, 1931.
    Rehearing denied December 22, 1931.
    Henry H. Koven, for appellant. Ungaro & Sherwood, for appellee; Gerard M. Ungaro, of counsel.
   Mr. Justice Wilson

delivered the opinion of the court.


text:
    The Reuben H. Donnelley Corporation, appellant, v. W. M. McInerney, appellee.
    Gen. No. 35,210.
    Opinion filed December 2, 1931.
    Jaffo & Green, for appellant. No appearance for appellee.
   Mr. Justice Wilson

delivered the opinion of the court.


text:
    Cody Trust Company, appellee, v. Nathan Grossman et al., defendants, on interlocutory appeal of James H. Hooper, appellant.
    Gen. No. 35,612.
    Opinion filed December 2, 1931.
    Rehearing denied December 22, 1931.
    A. G. Dicus, for appellant. Defrees, Buckingham, Jones & Hoffman, for appellee; Vincent O’Brien and John M. Baker, of counsel.
   Mr. Justice Wilson

delivered the opinion of the court.


author: Mr. Justice Boggs

text:
    Second District.
    Oscar Ennenga, appellant, v. James Chilton, a minor, by Freda Chilton, his next friend, appellee.
    Gen. No. 8,273.
    Opinion filed February 17, 1931.
    Rehearing denied February 5, 1932.
    R. R. Tiffany, for appellant. L. A. Jayne, for appellee.
   Mr. Justice Boggs

delivered the opinion of the court.


author: Mr. Justice Jones

text:
    A. J. Ashley, defendant in error, v. The Farmers’ Pioneer Mutual Fire & Lightning Insurance Company, plaintiff in error.
    Gen. No. 8,242.
    Opinion filed March 5, 1931.
    Rehearing denied February 5, 1932.
    Chas. X>. Henry, Jr. and Edward F. Braden, for plaintiff in error. John W. Thomson, Free P. Morris and Roseoe C. South, for defendant in error.
   Mr. Justice Jones

delivered the opinion of the court.


text:
    Sophia Munson, appellee, v. City of Ottawa, appellant.
    Gen. No. 8,269.
    Opinion filed April 9, 1931.
    Rehearing denied December 17, 1931.
    Thomas E. White, City Attorney, for appellant; C. B. Chapman, of counsel. George V. B. Weeks and John H. Armstrong, for appellee; George V. B. Weeks, of counsel.
   Mr. Justice Jones

delivered the opinion of the court.


author: Mr. Justice Jett

text:
    Roanoke State Bank of Roanoke, Illinois, appellee, v. David. C. Belsley, appellant.
    Gen. No. 8,302.
    Opinion filed June 18, 1931.
    Quinn, Quinn & O’Hern and Arthur C. Fort, for appellant; Emerson T. Anthony, of counsel. Ridgely & Ridgely and Todd, Morgan, Pendarvis &, Arber, for appellee; Chester L. Anderson, of counsel.
   Mr. Justice Jett

delivered the opinion of the court.


text:
    L. A. Fabrick and H. B. Mathews, appellees, v. Guilford Farmers’ Mutual Insurance Company of Winnebago County, appellant.
    Gen. No. 8,254.
    Opinion filed August 20, 1931.
    Rehearing denied January 15, 1932.
    Shelby E. Hood, for appellant. David D. Madden and Lisle W. Menzimer, for appellees.
   Mr. Justice Jett

delivered the opinion of the court.


text:
    Fred E. Gardner, appellant, v. Claude E. Clark, appellee.
    Gen. No. 8,280.
    Opinion filed August 20, 1931.
    Rehearing denied December 17, 1931.
    Welsh & Welsh and Fred E. Gardner, for appellant; C. K. Welsh, of counsel. John M. Zane, Harold W. Norman, Franklin D. Trueblood and Karl J. Mohr, for appellee.
   Mr. Justice Jett

delivered the opinion of the court.


author: Mr. Presiding Justice Jones

text:
    Arthur R. Brinkworth, appellee, v. Charles J. Rohe, appellant.
    Gen. No. 8,268.
    Opinion filed August 29, 1931.
    Rehearing denied December 14, 1931.
    Frank J. Jones, for appellant. Faulkner & Faulkner, for appellee; James W. Faulkner, of counsel.
   Mr. Presiding Justice Jones

delivered the opinion of the court.


text:
    A. B. Sheadle, trustee of the estate of Kathryn Southworth, a bankrupt, appellant, v. Peoples Loan & Trust Company, appellee.
    Gen. No. 8,278.
    Opinion filed August 29, 1931.
    Rehearing denied January 15, 1932.
    Fred E. Gardner and Martin V. Peterman, for appellant. S. V. Wiriek and Seyster & Fearer, for appellee.
   Mr. Presiding Justice Jones

delivered the opinion of the court.


text:
    M. H. Fitzsimmons, appellee, v. William Cowan et al., defendants. Fred Siebel, appellant.
    Gen. No. 8,288.

      Opinion filed August 29, 1931.
    Rehearing denied January 15, 1932.
    David T. Smiley, for appellant. Vincent S. Lumley, for appellee.
   Mr. Presiding Justice Jones

delivered the opinion of the court.


text:
    City of Lockport, Will County, Illinois, appellee, v. Dowdle Bros. Co. and Fidelity & Deposit Co. of Maryland, appellants.
    Gen. No. 8,297.
    Opinion filed August 29, 1931.
    Rehearing denied January 15, 1932.
    Morton S. Oressy and John J. Dowdle, for appellants; Preston Clark, of counsel. Snapp, Heise & Snapp, for appellee; Wm. W. North, of counsel.
   Mr. Presiding Justice Jones

delivered the opinion of the court.


text:
    The First National Bank of Aurora, guardian of the estate of Ruth Schroeder, a minor, appellee, v. Harold L. Schroeder and George E. Lidecka, trading as Aurora Welding Service, appellants.
    Gen. No. 8,367.
    Opinion filed August 29, 1931.
    Rehearing denied January 15, 1932.
    Emil J. Benson and Barthell & Rundall, for appellants. Alsehuler, Putnam, Flannigen & Johnson, for appellee; A. L. Puklin and W. O. O’Brien, of counsel.
   Mr. Presiding Justice Jones

delivered the opinion of the court.


author: Mr. Justice Wolfe

text:
    Elgin City Banking Company, appellee, v. Ethel Webster et al., defendants and appellees. American Missionary Association, appellant.
    Gen. No. 8,255.
    Opinion filed October 20, 1931.
    Rehearing denied November 24, 1931.
    Charles G. Seidel and Roy R. Phillips, for appellant. Lawrence M. McNerney, for appellees William Hubbard family. Healy & Beverly, for appellee Elgin City Banking Co.-
   Mr. Justice Wolfe

delivered the opinion of the court.


text:
    E. H. Morgan, administrator of the estate of Eleanor Jean Morgan, deceased, appellee, v. T. H. Culhane, appellant.
    Gen. No. 8,264.
    Opinion filed October 20, 1931.
    Large & Reno and William L. Pierce, for appellant. Melville W. Clark and North, Linseott, Gibboney & North, for appellee.
   Mr. Justice Wolfe

delivered tne opinion of the court.


text:
    Louise Risius, appellee, v. F. H. Heinz, appellant.
    Gen. No. 8,322.
    Opinion filed October 20, 1931.
    Hunter, Kavanagh & McLaughlin, for appellant. Roseoe Herget and Ernest J. Galbraith, for appellee.
   Mr. Justice Wolfe

delivered the opinion of the court.


text:
    Charlotte Osborn, administratrix of the estate of Roy Osbom, deceased, plaintiff in error, v. Homer L. Parkhill, defendant in error.
    Gen. No. 8,344.
    Opinion filed October 20, 1931.
    C. Helmer Johnson and Robert M. Niven, for plaintiff in error. F. A. Ortman and Adsit, Thompson & Herr, for defendant in error.
   Mr. Justice Wolfe

delivered the opinion of the court.


author: Per curiam.

text:
    Reuben H. Stripe, appellee, v. City of Waukegan et al., appellants.
    Gen. No. 8,300.
    Opinion filed October 20, 1931.
    Arthur Bulldey, Corporation Counsel, and Matthias Coneannon, for appellant. City of Waukegan. E. V. Orvis, for appellee; Daniel S. Wentworth, Henry O. Nickel and J. B. Mikesell, of counsel.
   Per curiam.


text:
    Stacy J. Merriner, trading as Merriner Land Company, appellee, v. Edward Baker, appellant.
    Gen. No. 8,332.
    Opinion filed October 20, 1931.
    Arthur H. Shay, for appellant. Duncan & O ’Conor and Robert B. Larkin, for appellee.
   Per curiam.


author: Mr. Presiding Justice Jett

text:
    Cecile Martin, appellee, v. Cable Piano Company, appellant.
    Gen. No. 8,251.
    Opinion filed November 30, 1931.

      George R. Warner and Werner H. Sommers, for appellant. Alselmler, Putnam, Flannigen & Johnson, for appellee; W. C. O’Brien and Clarence J. Ruddy, of counsel.
   Mr. Presiding Justice Jett

delivered the opinion of the court.


author: Mr. Presiding Justice Niehaus

text:
    Third District.
    A. W. Frankenfeld, receiver of H. N. Schuyler State Bank, plaintiff in error, v. H. H. Moxley et al., defendants in error.
    Gen. No. 8,497.
    Opinion filed November 4, 1931.
    Springstun & Springstun and E. E. Dowell, for plaintiff in error. Hershey & Vogelsang and Carl H. Preihs, for defendants in error.
   Mr. Presiding Justice Niehaus

delivered the opinion of the court.


text:
    J. F. Long, appellee, v. Jessie Ray and Ethel Ray, appellants.
    Gen. No. 8,505.
    Opinion filed November 4, 1931.
    Costigan & Wollrab, for appellants; Beulah E. Irvin, of counsel. J. B. Jiskra, for appellee.
   Mr. Presiding Justice Niehaus

delivered the opinion of the court.


text:
    John E. Barber, administrator of the estate of John Elmer Barber, deceased, appellant, v. Francis Thatcher and Dean Dickerson, appellees.
    Gen. No. 8,508.
    Opinion filed November 4, 1931.
    Rehearing denied January 7, 1932.
    Harry I. Hannah, for appellant. Cráig Van Meter and Craig & Craig, for certain appellee. Raymond G. Real, for certain other appellee.
   Mr. Presiding Justice Niehaus

delivered the opinion of the court.


text:
    Independent Bottle Company, appellee, v. Henry M. Schoen, trading as “Bottlers Supply Company,’’ appellant.
    Gen. No. 8,522.
    Opinion filed November 4, 1931.
    G. G. Ginnaven, for appellant. Herman H. Cohn and Alfred H. Greening, for appellee.
   Mr. Presiding Justice Niehaus

delivered the opinion of the court.


text:
    John Greenleaf, appellee, v. Clark Cox and Pierson-Hollowell Walnut Company, Inc., appellants.
    Gen. No. 8,525.
    Opinion filed November 4, 1931.
    Rehearing denied and opinion slightly modified January 7, 1932.
    O’Harra & O’Harra, Clyde P. Johnson and Burton A. Roeth, for appellants. C. E. Flesher, Samuel Naylor and Lee Siebenborn, for appellee.
   Mr. Presiding Justice Niehaus

delivered the opinion of the court.


author: Mr. Justice Niehaus

text:
    William Dyer, appellee, v. Insurance Company of North America, appellant.
    Gen. No. 8,531.
    Opinion filed November 4, 1931.
    Townley & Williams, for appellant. Loren B. Lewis, for appellee.
   Mr. Justice Niehaus

delivered the opinion of the court.


text:
    Ruth Long, appellee, v. Review Publishing Company, appellant.
    Gen. No. 8,536.
    Opinion filed November 4, 1931.
    ■ Whitley & Fitzgerald and Arthur F. Delahuntv, for appellant. Redmon & Redmon and W. S. Bodman, for appellee.
   Mr. Presiding Justice Niehaus

delivered the opinion of the court.


author: Mr. Justice Eldredge

text:
    Adolph A. Schoen, appellee, v. Henry Wolfson, appellant.
    Gen. No. 8,515.
    Opinion filed November 4, 1931.
    Hoopes & Pefferle, for appellant. Knotts & Knotts, for appellee.
   Mr. Justice Eldredge

delivered the opinion of the court.


text:
    Florence O. Miner, appellee, v. Ethel Crispin, appellant.
    Gen. No. 8,518.
    Opinion filed November 4, 1931.
    Rehearing denied January 7, 1932.
    Mann & Coleman, for appellant. Graham & Dysert, for appellee.
   Mr. Justice Eldredge

delivered the opinion of the court.


text:
    Le Roy Kring, appellee, v. H. W. Funk, appellant.
    Gen. No. 8,534.
    Opinion filed November 4, 1931.
    William R Bach, for appellant. Elmer G. Henning and W. W. Whit-more, for appellee.
   Mr. Justice Eldredge

delivered the opinion of the court.


author: Mr. Justice Shurtleff

text:
    Lincoln Park Coal & Brick Company for the use of United States Fidelity & Guaranty Company, appellant, v. Wabash Railway Company, appellee.
    Gen. No. 8,484.
    Opinion filed November 4, 1931.
    Johnson & Pefferle and Thos. W. Hoopes, for appellant. Allen & Converse, for appellee.
   Mr. Justice Shurtleff

delivered the opinion of the court.


author: Mr. .Justice Shurtleff

text:
    Joseph Hoskins, appellee, v. Frank Heavner, appellant.
    Gen. No. 8,511.
    Opinion filed November 4, 1931.
    L. T. Graham, for appellant. Edwin Johnston, for appellee; Merrill H. Johnston, of counsel.
   Mr. .Justice Shurtleff

delivered the opinion of the court.


text:
    William P. Dunn, appellee, v. The Paul Brothers Amusement Company, appellant.
    Gen. No. 8,516.
    Opinion filed November 4, 1931.
    J. B. Vaughn, for appellant. Jesse Peebles, for appellee.
   Mr. Justice Shurtleff

delivered the opinion of the court.


text:
    Eliza Hamm, administratrix of the estate of Oscar Hamm, deceased, appellee, v. Metropolitan Life Insurance Company, appellant.
    Gen. No. 8,535.
    Opinion filed November 4, 1931.
    Bellatti, Samuell & Moriarty, for appellant. Hairgrove & Absher, for appellee.
   Mr. Justice Shurtleff

delivered the opinion of the court.


text:
    R. D. Bowden, Appellee, v. Board of Education of School District No. 41, DuPage County, Illinois, Appellant.
    Gen. No. 8,296.

      Opinion filed September 10, 1931.
    Rehearing denied December 23, 1931.
    Locke, Baker & Snyder, Carnahan & Slusser and Gale C. Marquess, for appellant; Richard F. Locke and Thomas H. Slusser, of counsel.
    Hadley & Weaver, for appellee; Willard E. Cain and John S, Woodward, of counsel.
   Mr. Justice Jett

delivered the opinion of the court.

R. D. Bowden, appellee, instituted this proceeding in assumpsit in the county court of DuPage county, Illinois, to recover for services rendered by him for the school district in supervising its schools from May 11 to June 7,1929.

The declaration as originally filed consisted of the common counts to which the appellant pleaded the general issue. Appellee's affidavit of claim set up that it was for services rendered to the appellant. Appellant thereupon filed an affidavit of meritorious defense denying that appellee had performed services as averred. Subsequently appellee filed an additional count in which he set forth a written contract between himself and the board of education and averred that the board had wrongfully terminated his contract and discharged him; that he had performed all of the duties imposed upon him by the contract and was ready and willing to continue to perform. Upon the filing of the special count appellee withdrew his affidavit of claim. To the special count the appellant pleaded the general issue with notice of special matters of defense. The special matters of defense relied upon by the appellant were stricken by the court because they could be given in evidence under the general issue.

The cause was tried by the court without the intervention of a jury, a jury having been waived. The court found the issues in favor of appellee and rendered judgment ag*ainst the appellant for the sum of $500 and costs of suit and this appeal followed.

From an examination of the record we are of the opinion there are but two questions involved of any considerable importance in the decision of this case. We are of the opinion there can be no recovery under the common counts because it is admitted that appellee rendered no services from May 11 to June 7,1929. For that reason there is no right of recovery for services as contended for by reason of the common counts.

It is next insisted that there can be no recovery under the special count for services during a period of time which does not include the whole term of the contract. This objection is based upon the theory that if any recovery could be had by appellee at all, it must be based upon a breach of the contract.

It appears that Bowden, appellee, was employed as superintendent of schools by the board of education of School District No. 41, DuPage county, Illinois, in the spring of 1924, in which capacity he served under yearly contracts until he started to perform services under a written contract dated the 4th day of June, 1928. Among the provisions of the contract we find the following: “It is understood and agreed that said Board of Education shall cancel this contract only for incompetency, cruelty, negligence, immorality, a violation of any of the conditions of this agreement, continued ill-health, or in case the certificate of the said R. D. Bowden as a teacher or a supervisor shall be revoked by competent'authority.” It further appears that appellee entered upon his duties as such superintendent under said contract; that on the 18th day of April, 1929, the appellant adopted the following resolution:

“Whereas, the Board of Education of School District No. 41, DuPage County, Illinois, pursuant to authority vested in it by the Statutes of the State of Illinois, did on or about the 20th day of April A. D. 1928, enter into a contract with R. D. Bowden to act as a superintendent of schools of said school district for the period of three years commencing with the school year beginning in September 1928, and
“Whereas, it is the opinion of this Board of Education that the retention of said Bowden as superintendent is contrary to the best interests of the schools of this district,
“It is, therefore, hereby resolved by this Board of Education of School District No. 41, DuPage County, Illinois, pursuant to authority vested in it by section 127 of chapter 122 of the Revised Statutes of the State of Illinois, that the said contract between said Board of Education be and it is hereby cancelled and determined and the said Bowden discharged as superintendent of schools of this school district.”

On the day following the adoption of the resolution appellee reported for duty as usual, going to his office and to the four school buildings where he was informed by the principals that they were not to take any further instructions from him; that he was no longer superintendent. He continued to report to his office and attempted to act as superintendent each day thereafter but on the third morning he found the lock on the door had been changed and his key would not fit, and after that he could no longer get into the office except when someone was there.

It is urged by the appellant that the special count filed by appellee does not state a cause of action, if construed as a suit for wages alleged to be due under the contract, on account of services which appellee was ready, able and willing to perform but was prevented from performing because of the alleged wrongful act of appellant in discharging appellee. .This objection is based upon a line of authorities which holds where a contract of the character here involved has been breached, the recovery must be for the breach. The case relied upon in support of this contention is Doherty v. Schipper & Block, 157 Ill. App. 413, and affirmed in 250 Ill. 128. There can be no criticism made of the decision in Doherty v. Schipper $ Block as applied to the facts and the pleadings. In the case relied upon last above cited it was held that where one employed for a fixed period is discharged without cause and is paid in full up to the time of his discharge, he may treat the contract as continuing in force and bring an action for breach thereof, and if such suit is not begun, or if begun before is not tried until after the time of employment has expired, he may recover the contract price of his wages for the unexpired term, less what he has earned or by the exercise of reasonable diligence could have earned since his discharge. The rule, however, announced in Doherty v. Schipper & Bloch, supra, is not applicable in the instant cause because of the fact that the parties and the court tried the case on a different theory. It was not tried upon the theory of a rescission of the contract but that the contract was kept in force for the benefit of appellee in order that he might sue thereon.

The record shows that during the progress of the trial the following took place. Mr. Snyder was one of the attorneys for - appellant and Mr. Hadley for appellee.

“Mr. Snyder: Our contention is that the plaintiff treated this contract as alive and in full force and effect.

Mr. Hadley: Yes.

Mr. Snyder: Under section 2 as provided in the contract.

Mr. Hadley: Yes.

Mr. Snyder: And we in turn are not precluded from setting up the defense under the contract.

Yes, Your Honor, where they elect to treat this contract as in existence we are entitled to show defenses to it.

Mr. Hadley: Do you contend this contract is in full force and effect?

Mr. Snyder: We have defended on the theory you are suing on.” This is the colloquy between the court and counsel and in view thereof appellant cannot be heard in this court to advance a claim inconsistent with that which he presented in the trial court.

Appellee introduced evidence showing the making of the contract and his activities thereunder. He further testified that the school year closed on June 7, 1929; that he had received nine instalments on the first school year and he was suing for the tenth instalment; that there was $500 due him when he brought suit.

There is no doubt as to the rule that the law gives a party to the contract which has been rescinded on one side the right to keep it in force for the purpose of a suit. Appellee has an election to pursue either of three remedies: He may (1) treat the contract as rescinded, and recover upon quantum meruit so far as he has performed ; or (2) keep the contract alive for the benefit of both parties, being at all times himself ready and able to perform, and at the end of the time specified sue and recover under the contract; or (3) treat the repudiation as putting an end to the contract for all purposes of performance, and sue for the profits he would have realized if he had not been prevented from performing, continuing the contract in force for the latter purpose only. Lake Shore & Michigan Southern Ry. Co. v. Richards, 152 Ill. 59.

The next question which arises, bearing upon the right of appellee to recover under the special count of the declaration, is whether or not the case was decided properly upon the facts. It has already been seen that the board of education could cancel the contract only for “incompetency, cruelty, negligence; immorality, a violation of any of the conditions of the agreement, continued ill-health, or in case the certificate of the said R. D. Bowden as a teacher or superintendent was revoked by competent authority.”

The evidence tends to show that on the 28th day of March, 1929, Bowden, who had heard rumors with reference to a resolution to oust him, called on Mr. March, president of the appellant board, at his home and asked him whether or not there was such a resolution. March said he had had such a resolution in his pocket for several days. Bowden replied that it was the first he had heard of it; that he did not know there was any dissatisfaction with his work in any way and that no complaint had been made to him about anything by any member of the board or by the board itself, and he asked on whose complaints the resolution was presented. March replied he had no grounds himself, that Mr. Richardson, a member of the board, was the author of the resolution and Richardson had told March that it was on account of a milk bill of the Natoma Farm which had remained unpaid for two years. Bowden then and there told March that the matter had been settled in May or June of 1927, and that he had given the board a complete report of the whole proceeding. Bowden then asked March if they could not have the entire matter thrashed out at the next meeting of the board and see what the difficulty was. March agreed that would be the proper thing to do. The next meeting of the board was on April 2. Nothing, however, was done at that time relative to any complaints. At that meeting March asked for reports on certain school bonds. Bowden prepared these reports and was present at the next meeting of the board on April 18. He had three-or more reports. He read one, when, according to his testimony and the testimony of Mrs. Hitt, March called for the next order of business and did not give Bowden a chance to complete the reading of his other reports. At the meeting of April 18, the resolution discharging Bowden ivas presented. There was no discussion of it. No reasons were assigned why the resolution should be adopted. No charges were made against Bowden; he was given no hearing and was never advised of the character of the charges against him. The appellant offered no evidence showing what the charges were.

The school board at once issued orders to the principals and teachers not to receive any further orders from Bowden. Counsel stipulated that Mr. Richardson acted for the board in giving instructions to all teachers not to follow further instructions from Bow-den. Bowden reported to the schools the next morning and was advised that the principals had received orders not to follow his directions any further.

On April 20, 1929, appellee wrote to the president and members of the board of education a letter as follows : “In view of the attempt of the Board of Education, expressed in its action at a special meeting of the Board on the evening of April 18th, to determine my contract as superintendent of the schools, I wish to state that I have fulfilled all provisions of said contract and do not concede your right to terminate said contract. I have been advised to state to you that I stand ready to continue to fulfill faithfully and efficiently all the requirements and terms of the contract which you entered into in good faith and shall continue to report to duty as usual. ’ ’

The question now arising out of the evidence is, had the appellant the right as contended to arbitrarily determine whether appellee’s dismissal was in the interests of the schools. It is argued by appellee that the board of education has power to discharge a teacher when the interests of the schools require it but that it has no power to remove a superintendent under whose orders the teachers must function. This is the construction that appellee places upon the provisions of the statute defining the powers of school directors and of boards of education. Cahill’s St. ch. 122, 137. We have examined the statute and without setting forth its provisions we are of the opinion that a board of education, for a sufficient cause and upon a proper showing, would have the same right to remove a superintendent as it would have to remove one employed as a school-teacher.

We cannot agree with the contention of the appellant that the board of education had an arbitrary right to determine whether appellee’s dismissal was in the interests of the schools.

In School Directors v. Reddick, 77 Ill. 628, the teacher was discharged because she was incompetent and the court at page 629 said: ‘ ‘ The burden of proving the incompetency of plaintiff as a teacher rested on the party alleging it. The evidence in the record on this question is quite meagre.....No marked deficiency is' proven in her management or government of the school, certainly nothing that would warrant the directors in discharging her for that reason. School directors cannot capriciously discharge a teacher before the expiration of the time for which he or she was employed. In the language of the statute, it must be for ‘incompetency, cruelty, negligence, immorality, or other sufficient cause. ’ The charge in this case is incompetency. The record, in our opinion, does not contain that degree of proof that would justify a rescission of the contract.”

In Neville v. School Directors, 36 Ill. 71, the teacher was discharged as incompetent and brought suit to recover and the court at page 73 said: “The order first spread upon the record kept by the directors, dismissing plaintiff, specifies no reason for the action of the board. A subsequent and amended order, however, was made, in which incompetency and neglect of duty are assigned as the causes. This, however, is perhaps unimportant, as such an order is not conclusive upon plaintiff, leaving the directors to prove the facts they allege in the order, precisely as if it had not been made. It is, nevertheless, binding on the directors, and estops them from showing any other or different causes.”

In Robinson v. School Directors, 96 Ill. App. 604, the teacher was discharged and brought suit to recover salary. At page 605 the court said: “The evidence discloses the fact that the directors dismissed the plaintiff as a teacher upon what they considered a sufficient cause. ’ ’ At page 606 the court further said: “Upon the whole evidence we are constrained to the conclusion that in this particular school the plaintiff failed to portray the requisite qualities of temper, discretion and fortitude of a good teacher, and thereby and by his own fault, deprived the school of the benefit of all the good qualities he commanded. It was in our opinion, under the circumstances, for the best interests of the school that his relation with it as a teacher then ceased, and the directors were justified in dismissing him, as they did, for sufficient cause.”

It is quité apparent from the language used by the court in the foregoing opinions that appellee was entitled to a hearing upon the question as to whether or not the interests of the schools required that he be dismissed. When appellee presented to the court his contract and testified that he had performed all of his duties as superintendent according to the terms of the contract, except wherein he had been prevented by appellant, he was entitled to a judgment unless the appellant showed he had been lawfully discharged in the interests of the schools. After an examination of the evidence we are of the opinion that'the board of education has entirely failed to establish by facts and circumstances that the interests of the schools required the adoption of the resolution in question and the rescission of the contract.

The appellant has failed to bring itself within the rule, and in view of the state of the record, we are of the opinion that the trial court was justified under the law and the evidence in finding in favor of appellee under the special count of the declaration. The judgment is affirmed.

Judgment affirmed.


author: Mr. Presiding Justice O’Connor

text:
    James L. Preisler, Defendant in Error, v. Antoni Gulezynski and Rozalia Gulezynski, Plaintiffs in Error.
    Gen. No. 35,291.
    Opinion filed December 28, 1931.
    Alanson C. Noble, for plaintiffs in error; Chester D. Kern, of counsel.
    Leon A. Semerak, for defendant in error.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

January 16,1931, at 10 o’clock in the morning, plaintiff caused judgment by confession to be entered in the circuit court of Cook county against the defendants for $3,850, which included $350 attorney’s fees. The basis of the judgment was a document entitled “Extension of Loan.” Afterwards, April 3, 1931, the defendants filed their verified petition to open up the judgment and for leave to defend, and on the same day an order was entered denying the motion. There next appears in the record an order entered April 14, which recites that the defendants, by their counsel, moved the court to vacate and set aside the order of April 3, and to open up the judgment, and that they be given leave to defend. The motion was again denied and the defendants appeal to this court. They were given time within which to file their bond and bill of exceptions. The bill of exceptions was approved and filed, and afterwards this writ of error was sued out from this court.

The record discloses that the defendants purchased a piece of real estate in Chicago on which there was a mortgage of $3,500 secured by a trust deed executed by the prior owners of the property. The $3,500 came due on January 16, 1931, and on that date the defendants executed the document on which the judgment was confessed. At the top of this document, in large letters, appears the following: “Extension of Loan.” It then recites that in consideration of the extension of the time of payment of the $3,500 which was evidenced by a note and trust deed executed January 16,1928, by the former owners of the property, for a period of three years, the defendants agreed to pay the $3,500 on January 16, 1934, with interest payable semiannually as evidenced by interest coupons executed by the defendants. And it was further provided that all of the covenants and agreements in the note and trust deed should remain unchanged except the time of payment. Then followed the authority to confess judgment for the amount remaining due, together with $350 attorney’s fees.

It will be noted that this “Extension of Loan” was executed by the defendants January 16, 1931, and on the morning of the same day plaintiff caused judgment to be entered in the circuit court of Cook comity. It is obvious that this confession of judgment was a fraud on the defendants. The record discloses that the defendants had little education and were practically unable to read or write the English language, and that they were led to believe that plaintiff was extending the time of payment of the loan for three years. Of course plaintiff could not confess judgment against the defendants on the note evidencing the $3,500 which was secured by the mortgage then on the property because the defendants had not signed that note and obviously he could not obtain a judgment for attorney’s fees against them. The document on which judgment was confessed can in no sense be deemed a promissory note. It is entitled an “Extension of Loan.” That is what it purports to be, and plaintiff ought not to have had the defendants execute this document under the guise of extending the time of payment of the loan, and then turn around and claim it was a promissory note on which judgment might be confessed.

We have condemned somewhat similar documents on which it was sought to have judgment confessed. Elaborated Ready Roofing Co. v. Hunter, 262 Ill. App. 380. In that case we said (pp. 384 — 5): “Plaintiff declared on a promissory note, but the copy of it attached to and made a part of the statement of claim can in no sense be construed as a promissory note. It is an order given by defendant to plaintiff to repair defendant’s property. Plaintiff ought not be permitted, under the guise of an order to repair buildings, to claim that the document is a promissory note upon which a judgment might be confessed. ”

There are a great many other errors in the record, on account of which the court should have vacated the judgment, one of which is that the declaration filed was not signed by any attorney and that a number of blank spaces in the printed declaration were not filled out, so that it is more or less meaningless. In view of the fact that we hold that the docume.nt, which is the basis of the judgment, was an agreement to extend the time of the payment of the loan and not a promissory note, the order of the circuit court refusing to vacate the judgment is erroneous and it is reversed and the matter is remanded to the circuit court for further proceedings not inconsistent with the views herein expressed.

Reversed and remanded.

McStjrely and Hatchett, JJ., concur.


author: Mr. Presiding Justice O ’Connor

text:
    Frederick A. Turner and Henry P. Heizer, Appellants, v. Agnes Porter, Appellee.
    Gen. No. 35,387.

      Opinion filed December 28, 1931.
    Amos W. Marston, for appellants.
    Slottow & Levitón, for appellee; Charles Levitón, of counsel.
   Mr. Presiding Justice O ’Connor

delivered the opinion of the court.

By this appeal the complainants seek to reverse a decree of the circuit court of Cook county, by which their bill to foreclose a mortgage executed by the defendant was dismissed for want of equity, and it was further decreed that the mortgage be removed as a cloud on defendant’s property.

The record discloses that Fred L. White was a real estate broker and in September, 1925, sold a piece of real estate belonging to complainant Turner to Margaret A. Leek. Under the terms of the written contract entered into between the parties, $4,000 earnest money was paid to White. The deal was consummated and afterwards, November 19, 1925, White sent his check for $2,956.97 to Turner, being the amount remaining of the $4,000 in White’s hands. The check was returned to Turner by the bank because White did not have sufficient funds to meet it. When the check was not paid, Turner, through his counsel, brought pressure to bear on White to secure the payment of the amount due. White sought assistance from Bessie M. Gannon, a woman about 58 years of age, with whose relatives he, as a real estate broker, had had two real estate transactions about six years before the time in question. She was unable to assist him but induced her friend, the defendant Agnes Porter, who was unacquainted with White and had had no business transactions with him, to come to White’s assistance. Miss Porter was about 58 years of age and unfamiliar with business transactions. White induced her to execute her note dated November 27,1925, for $3,000, and a trust deed conveying a piece of property owned by her to complainant Turner as security for White’s indebtedness. She received no consideration from anyone in the matter. The note was payable six months after date and as no part of it was paid, complainants filed their bill in the instant case to foreclose the trust deed. The defendant filed her answer and the cause was referred to a master to take the evidence and make up his report. After most of the evidence was in, the defendant amended her answer and filed her cross-bill praying that the mortgage be removed as a cloud on her property. The master recommended a decree of foreclosure in accordance with the prayer of the bill, and that the defendant’s cross-bill be dismissed. The chancellor sustained exceptions to the report and a decree was entered dismissing complainants’ bill and awarding the defendant relief under her cross-bill, and the complainants appeal.

In addition to what we have heretofore stated, the evidence was to the effect that two or three days before the note and trust deed were executed by defendant, White was introduced to her by Miss Gannon. He was seeking assistance on account of his failure to pay Turner the money deposited with him, as above stated. Miss Porter was induced to deliver to White her certificate of registration showing the title to her lot under the Torrens Act. White took the certificate to counsel for Turner and the two men then went to look over the property. It was apparently arranged by the counsel and White that on that evening White would take the two women to counsel’s home to execute the note and trust deed which counsel was to prepare. This was done and White and the two women went to counsel’s home where the note and trust deed were executed by defendant. It further appears from the evidence that a few days before this, counsel for Turner had gone to the municipal court at Grand Crossing, Chicago, and Turner swore to a complaint charging White with a crime on account of his failure to pay Turner the amount deposited with White. The nature of the charge made in the complaint is uncertain.

On the hearing before the master, Turner’s counsel, who had prepared the note and trust deed, testified that the charge made was a felony, but he later testified that it was a misdemeanor; that the complaint had never been filed in court but was retained by him. It was not produced on the hearing, but in the view we take of the case, we think it immaterial whether the offense alleged was a felony or a misdemeanor. The evidence is further to the effect that at the time of the execution of the trust deed and note White had not been advised that the complaint had been sworn to by Turner. Nor did either of the women know of this fact. There is-evidence that at the time of the execution of the note and trust deed counsel for Turner stated to the parties present at his home, that White had given a check to Turner which had been returned by the bank unpaid because of insufficient funds.

It further appears from the evidence that some time thereafter White disappeared and a number of criminal complaints were lodged against him by other parties on account of "White’s shortages growing out of real estate transactions. Four witnesses testified— Turner’s counsel, former Judge Sheridan E. Fry, Turner, the" complainant, and the two women, Miss Porter and her friend, Miss Gannon. All of the evidence shows that neither of the women had ever heard of Mr. Turner and that he had not heard of them until after the execution of the note and trust deed. Judge Fry’s testimony is to the effect that just before Miss Porter executed the note and trust deed the matter was explained by him to Miss Porter and that she understood what she was about to do. The testimony of Miss Porter and Miss Gannon is somewhat incoherent but is to the effect that Miss Porter thought she was putting up her deed or title to her property to help White; that White was to later bring in some notes to Judge Fry, who was to collect them and thereby satisfy White’s indebtedness to Turner. Miss Porter was a housekeeper and was working for wages for a family in Chicago. Miss Gannon was also working as a housekeeper nearby the place where Miss Porter was employed. They had been friends for a number of years. At one time Miss Porter had assisted Miss Gannon at a bank where the latter owed some money, apparently pledging Miss Porter’s property as security.

The evidence we think further discloses the fact that Miss Porter did not know White and knew nothing about his business affairs except that he needed some financial assistance, she having been introduced to him only a day or two before she executed the trust deed and note. Concerning what took place at Judge Fry’s house, at the time the trust deed was executed, Miss Porter testified that she asked Judge Fry “for security for my deed”; that she didn’t know at the time White had given the check which had been returned on account of insufficient funds; that she wanted a receipt for her deed, which she thought Judge Fry was to keep in his desk; that she understood White and Judge Fry were very good friends, and that “At the time I thought it was a collateral deed that Judge Fry was taking up himself to hold my title to get some money out for this Fred White.”

The chancellor found in the decree that the defendant Porter did not owe anyone connected with the transaction any money, that there was no consideration for the mortgage, and it was decreed that the bill be dismissed for want of equity and a decree entered in Porter’s favor on her cross-bill, removing the mortgage as a cloud on her property.

We are of the opinion that there was no consideration to support the note and trust deed. There was none passing to Miss Porter and none passing between White and Turner; and in these circumstances the trust deed cannot be enforced. Scott v. Leaf River State Bank, 242 Ill. App. 268; Edgerton v. Weaver, 105 Ill. 43; Beggs v. First Nat. Bank of Arcola, 134 Ill. App. 403; 19 R. C. L. par. 67, p. 293; 41 Corpus Juris, sec. 202, par. 4, p. 386; Bryson v. Day (Ore.), 178 Pac. 184; Bynum Mercantile Co. v. First Nat. Bank of Anniston, 187 Ala. 281.

In the Scott case, where a note and trust deed were executed by the father to the creditors of his son, it was held that the transaction was void for want of consideration where it did not appear that the creditor, in consequence of the execution of the note and trust deed, either extended the obligation of the debtor or released him from the debt. The court there said (p. 288): “If it was not agreed that Linus Brantner was to be released, or the debt was to be extended as to him, there was nothing to ratify. Moreover, where a debt is incurred and after the incurring of the same a third party promises to pay or guarantee it, some additional consideration is necessary to support such promise. (Citing cases.) ... In Edgerton v. Weaver, 105 Ill. 43, and Hahn v. Maxwell, 33 Ill. App. 261, it is held that when one person promises to pay the debt of another without any understanding or agreement for forbearance by the creditor, against the original debtor, there is no consideration for the agreement.”

And in the Edgerton case (105 Ill. 43), it was held that where forbearance was relied upon as the consideration of a promise, the evidence must show more than that it was followed by forbearance; that it must appear not only that the promise was made for the purpose of obtaining time, and that time was actually given, but also that the indulgence was accorded pursuant to a request. The court, speaking by Mr. Justice Scholfield said (p. 46): “A promise to pay the debt of another, it has been held, cannot be rendered binding by proof that it was followed by forbearance, unless there be something to show, not only that it was made for the purpose of obtaining time, and that time was actually given, but that the indulgence thus accorded was in pursuance of the request implied by the promise.”

In the Beggs case (134 Ill. App. 403) Mrs. Beggs, the mother of Frank Beggs, who was indebted to a bank, turned over to the bank certain certificates of stock as collateral security for her son’s past due notes. After-wards the certificates were returned to the mother and she then signed her son’s notes. She was sued upon the notes; it was held that there was no consideration and the judgment against her was reversed. The court there said (pp. 407, 408): “She (the mother) received nothing whatever for transferring such stock to appellee, neither did Frank receive any advantage or thing of value; nor did the bank part with anything of value or waive any right or claim it then had, nor did it agree to postpone the enforcement of its claim against Frank Beggs. In fact, when the stock was first turned over by appellant (the mother) there was no undertaking of any character entered into by appellee nor any right it then had released or impaired. The fact that the bank did not sue Frank cannot of itself afford a consideration in the absence of a contract or agreement to forbear or postpone collection. In such cases there must be an agreement to forbear, or an extension of credit to the debtor. Vehon v. Vehon, 70 Ill. App. 40.”

In 19 R. C. L., par. 67, it is said: “One who has executed a mortgage to secure the precedent debt of another may show that there was no consideration therefor and in that manner avoid the mortgage.” And in 41 Corpus Juris, sec. 202, par. 4, p. 386, in announcing the law of consideration of mortgages it is said that a pre-existing debt is a sufficient consideration to support a mortgage given as security for the debt; and that there need be no new consideration at the time of the mailing of the mortgage; and “Where, however, the mortgagor is a stranger to the debt and there is no other consideration, the mortgage cannot be sustained” citing the Bynum Mercantile case, supra (187 Ala. 281) in which case, after a note was made and delivered, collateral security was given the owner of the note. The court there said (pp. 283-284): “It is well settled by the authorities that a mortgage or pledge given as security for the pre-existing debt of the mortgagor or pledgor is valid and binding upon that consideration alone, and requires no new or additional consideration to support it. . . . It is .equally well settled that such a mortgage or pledge by a stranger to the original obligation given upon that consideration alone is not binding for want of a valid consideration. ’ ’

In the instant case, we think the evidence shows that there was no consideration for the note and trust deed in question. At the time they were executed by defendant Porter nothing was said that the time of payment of the debt from White to Turner would be extended. It is true that Judge Fry testified that at that time he said White’s indebtedness was canceled by the execution of the note, but he further testified, at least five times, that the note and trust deed were given as security for White’s indebtedness, and in the bill filed by complainant it was alleged that “Agnes Porter . . . on consideration of an indebtedness to your orator, Frederick A. Turner, of the sum of $3,000, in security and as evidence thereof,” made and delivered her promissory note. At the time the note and trust deed were executed, counsel for plaintiff had in his possession the check which had been issued by White and which was returned on account of insufficient funds. No release of the indebtedness was given to White by Turner. Wé think it was understood by the complainant that the note and trust deed were given as security and not in payment of White’s indebtedness to Turner. And as stated in the Beggs case, supra, “In fact, when the stock was first turned over by appellant there was no undertaking of any character entered into by appellee nor any right it then had released or impaired.” In the instant case we think there was no understanding by the parties that White’s debt was paid by the delivery of the note and trust deed.

The decree of the circuit court of Cook county is affirmed.

Affirmed.

McSurely and Hatchett, JJ., concur.


text:
    De Wolf & Company, Inc., Appellee, v. Foreman National Bank, Appellant.
    Gen. No. 35,424.

      Opinion filed December 28, 1931.
    A. H. Brown and A. J. W. Appell, for appellant ; A. J. W. Appell, of counsel.
    George 0. Bliss, for appellee.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

Plaintiff brought suit against the defendant to recover $3,201.75, with interest thereon, which was the amount of three checks drawn by plaintiff on the defendant bank and paid by the bank on the forged indorsement of the payee. Plaintiff filed its declaration and an affidavit of claim. The defendant filed a plea of the general issue, notice of special matters which it claimed it would prove under the general issue, and an affidavit of merits. The affidavit of merits, on motion of plaintiff, was stricken and the defendant was given leave to file an amended affidavit of merits which it later did, and this also was stricken on motion of plaintiff. Apparently the defendant decided to stand on its amended affidavit of merits, its pleas were then stricken, and judgment was entered on plaintiff’s affidavit of claim although the judgment order recites that the court heard proofs submitted by plaintiff. The judgment is for $3,748.66, and the defendant appeals.

■ The court held that the affidavit of merits was insufficient and it was therefore the proper practice to strike it and cause judgment for the plaintiff without striking the pleas from the files, although such practice is common and not improper. Firestone Tire & Rubber Co. v. Ginsburg, 285 Ill. 132; Brown Plastering Co. v. Gottschalk, 261 Ill. App. 147.

The record discloses that plaintiff carried a checking account with the defendant bank and on February 4, March 9, and April 26, 1927, drew its three checks on the defendant bank for $504.84, $1,498.58 and $1,198.33 respectively, all payable to the order of John L. Melkus. The checks were issued to Melkus in business transactions had between him and plaintiff. When they were issued plaintiff delivered them to one of its employees by the name of Snyder to be delivered to Melkus. They were never delivered to Melkus but Snyder or someone else forged the name of the payee, cashed them at the Lake Shore Trust ■& Savings Bank, converted the money, and in the regular course of business the checks were paid by the defendant bank. In its affidavit of claim plaintiff averred that as soon as it discovered that the indorsements of the payee were forged it notified the defendant bank.

In its amended affidavit of merits defendant denied any liability for two reasons: First, that from February 4, 1927, to May 1, 1927, and thereafter, it sent monthly statements to plaintiff showing all deposits and withdrawals made by plaintiff; that plaintiff made no objection to any of the statements and its failure to do so constituted an account stated; and that each statement contained the following printed matter: “Please examine at once. If no error is reported in 10 days the account will be considered correct. Please report any difference in thisxstatement to the auditor. ’ ’ Second, that plaintiff was negligent in failing to examine the monthly statements and canceled checks, and further negligent in failing to keep proper supervision over its employees to whom it entrusted checks for delivery.

In support of these defenses chief reliance is placed upon the cases of Kaszab v. Greenebaum Sons Bank and Trust Co., 252 Ill. App. 107, and Osborn v. Corn Exchange Nat. Bank of Chicago, 218 Ill. App. 28. It is unnecessary to discuss the holding in those two cases because our Supreme Court in a later case passed on the question now. under consideration in Cosmopolitan State Bank v. The Lake Shore Trust & Savings Bank, 343 Ill. 347, where a bank was held liable for the paying of a check on the forged indorsement of the payee. The court there said (pp. 351-2): “The general rule is well settled that the obligation of a bank is to pay, on demand, the funds of the depositor to the payee named in each check, or to his order or to bearer, as the check may direct, and it must ascertain at its peril the identity of the payee and the genuineness of the indorsements, though each indorsement is a guaranty of all prior indorsements.” And on page 353 the court said: “The sixth point concerns Anderson’s (the drawer of the check) supposed negligence in not sooner discovering and reporting the unauthorized indorsement. This indorsement was not one with which Anderson might be supposed to be familiar. . . .

“A depositor of a bank who receives from it a statement of his account with its paid checks as vouchers is bound to examine the account and vouchers and report to the bank, without unreasonable delay, any errors which may lie discovered. (Morgan v. United States Mortgage and Trust Co., 208 N. Y. 218; Prudential Ins. Co. of America v. National Bank of Commerce, 227 id. 510; Dana v. National Bank, 132 Mass. 156; Leather Manufacturer’s Nat. Bank v. Morgan, 117 U. S. 96.) This rule does not extend to an examination of the indorsements of the payee of checks to ascertain their genuineness. (Critten v. Chemical Nat. Bank, 171 N. Y. 219; Welsh v. German Nat. Bank, 73 id. 424; Shipman v. Bank of State, 126 id. 318.) In the cases cited, the reason given for excluding from the rule the requirement of an examination of indorsements for the purpose of determining whether they are genuine is that the depositor has no greater knowledge on the subject of the genuineness of the signature of the payee than the bank. In Jackson v. Bank, 92 Tenn. 154, it is said: 'A bank is obliged by custom to honor checks payable to order and pays them at its peril to any other than the person to whose order they are made payable. It must'see that the check is paid to the payee therein named upon his genuine indorsement or it will remain responsible.’ ” See also United States Cold Storage Co. v. Central Mfg. Dist. Bank, 343 Ill. 503.

The questions decided in the two cases just referred to are decisive of the questions involved in the case before us, and the judgment of the circuit court of Cook county is affirmed.

Affirmed.

McStjrely and Matchett, JJ., concur.


text:
    The People of the State of Illinois ex rel. George B. Thornton, Appellee, v. Emmett Whealan and Frank Venecek, Appellants.
    Gen. No. 35,485.
    Opinion filed December 28, 1931.
    John A. Swanson, State’s Attorney, and William B. Walrath and Louis H. G-eiman, Assistant State’s Attorneys, for appellants.
    R. E. Blackwood, for appellee.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

By this appeal the defendants seek to • reverse a judgment of the circuit court of Cook county awarding a writ of mandamus directing them to restore the petitioner, Thornton, to the position of attending nnrse in the irresponsible ward of the Oak Forest Infirmary.

The record shows that George B. Thornton was a civil service employee assigned to the irresponsible ward of the Oak Forest Infirmary and that at his request he was given a leave of absence by the proper officials on March 5, 1929, for a period of 90 days. June 3, 1929, it was renewed for a like period and again September 1 the leave of absence was again renewed for a like period of 90 days, and on November 30, 1929, there was another renewal for 90 days.

Defendants’ answer says that “on March 6, 1930,, his name appeared on the payroll for one day; that he was then granted a leave for 90 days beginning March 6, 1930; that said leave of absence was renewed for 90 days beginning June 3, 1930; that it was renewed for 90 days beginning September 1, 1930, and renewed for 90 days beginning November 30, 1930; that his name appeared on the payroll during the month of February and two days during the month of March, 1931.”

There is evidence to the effect that on the last of February, 1931, and the first two days of March, the defendant, Frank Venecek, permitted Thornton to work at the institution because, as Venecek testified, he was not certain whether Thornton was entitled to his position. The evidence further shows that some time prior to the time Thornton returned, his place had been filled from the civil service list in the regular way.

Paragraph 4 of section 2 of the rules of the Civil Service Commission of Cook county provides: “Special Leave: Where leave of absence without pay is requested by an employe and approved by the head of the department on application filed and approved in advance by the Commission, the Commission shall authorize the head of the department to grant the same for a period of days not to exceed 90 days. The Commission may in its discretion grant renewals of such leave of absence without pay, provided, however, that the total period of continuous leave shall not exceed one year. ’ ’

One of the contentions made by counsel for the defendants, as stated in the brief, is: “The petitioner’s leave of absence exceeded 90 days, almost two years. The rules prohibit leaves of absence exceeding one year and provide that an employee’s position shall not be held open for him if his absence exceeds 90 days. He worked one day between the first year and second year of his absence.' This was a mere subterfuge and device to defeat and nullify the rules of the Civil Service Commission. It was not a bona fide and actual return to service, and if permitted as a practice would work an injustice on other civil service employees removed to make a place for the petitioner who cared so little for his position that he remained away almost two years.” No answer is made to this contention by counsel for the petitioner except to say that the leaves of absence were legal, and a number of witnesses were called on behalf of the petitioner, who were civil service employees of the Oak Forest Infirmary, some of whom testified that they had been given leaves of absence which extended for a period of more than a year. Obviously this evidence was immaterial and would not change the rule of the Civil Service Commission. If other employees had been given leaves of absence, that were unwarranted, that would not authorize the plaintiff to have the court hold that his leaves of absence, extending over a period of two years, were legal. We think the contention of the defendants, which we have just quoted from their brief, is sound, and the leaves of absence purported to be granted to Thornton which extended beyond one year, were wholly unwarranted. Thornton did not testify on the hearing and it is obvious from this record that he merely returned for one day with no intention of taking np Ms work again at the institution, but only for the purpose of again going through the form of securing further leaves of absence. The leaves of absence given to Thornton having exceeded one year, he was not in a position to compel Ms reinstatement.

The judgment of the circuit court of Cook county awarding the writ of mandamus is reversed.

Judgment reversed

MoSurely and Hatchett, JJ., concur.


author: Mr. Presiding Justice 0 ’Connor

text:
    London Guarantee and Accident Company, Ltd., Appellee, v. Edward P. Steinberg, Appellant.
    Gen. No. 35,494.

      Opinion filed December 28, 1931.
    Lawrence A. Jacobson, for appellant.
    Ryan, Condon & Livingston, for appellee.
   Mr. Presiding Justice 0 ’Connor

delivered the opinion of the court.

October 3, 1930, plaintiff caused judgment by confession to be entered on a lease for $391.87, which included $58.53 for attorney’s fees. The rent claimed was for October and November, 1929. Afterwards, on motion of the defendant, the judgment was opened and he was given leave to defend. There was a trial before the court without a jury, and a finding and judgment in plaintiff’s favor, the judgment was confirmed and defendant appeals.

The record discloses that on November 5,1926, plaintiff, as landlord, and defendant, as tenant, entered into a written lease demising the premises described as room 1801 London Guarantee and Accident Building, Chicago. The lease by its terms covered a period from December 1, 1926, to November 30, 1929. The tenant paid all rent as it accrued under the lease up to October 1, 1929. He vacated the premises on the next day, October 2, 1929, and surrendered possession of them to plaintiff; and it is the contention of defendant that he vacated the premises on that date by agreement with the landlord under a mutual mistake, both parties being of the opinion that the lease, by its terms, expired October 1, 1929. Plaintiff concedes that the defendant might surrender up the premises and thereby terminate the lease if this were done with the consent of the landlord, but it is contended that on this question the evidence is in conflict — that there was no mutual agreement.

The evidence is to the effect that the defendant occupied the offices covered by the lease in the conduct of his business as an architect; that about August, 1929, Mr. Drake, who was plaintiff’s manager of the London Guarantee Building, in which the offices were located, and to whom all rent was paid, called on defendant in reference to making a new lease. At that time the defendant stated that he thought he would not stay after the expiration of his lease unless there was a reduction of rent, and stated that he expected to move to the Carbide Building. The defendant testified that at that conversation Mr. Drake said to him “ ‘Tour lease is up on October 1st and are you going to sign a new lease?’ And I told Mr. Drake I wasn’t going to sign a new lease at those rents. He said, ‘Maybe we can get together’ ”; that Drake refused to reduce the rent and he later obtained quarters in the Carbide Building; that afterwards Drake said defendant would have to vacate by October 2nd and that defendant did so and turned the keys over to Mr. Drake.

Drake testified that he spoke to the defendant in August about renewing the lease and at that time he did not know when defendant’s lease expired; that defendant stated at that time the lease expired October 1st, and Drake assumed this to be the fact.

A consideration of all the evidence we think discloses the fact that beginning in August, 1929, when the parties were negotiating for a new lease they were both of the opinion that the lease expired October 1, 1929, and that they were not able to come to an agreement for a new lease; that acting under this mutual mistake, defendant obtained new quarters and vacated and surrendered up the premises. We think this was the understanding of plaintiff, because so far as the record discloses no attempt was made to collect the rent for October and November, 1929, until judgment was confessed, almost a year later. This is significant when the evidence discloses that defendant paid his rent promptly. The defendant, having surrendered the premises by mutual agreement, obviously could not be held liable for rent afterwards.

Nor do we think there is any merit in plaintiff’s contention that Drake had no authority to enter into such an agreement. The evidence shows that Drake was the manager of the building, all rents were paid to him and in fact defendant had dealings with no one but Drake. We think it clear that what Drake did in the matter was binding on the plaintiff.

The judgment of the municipal court of Chicago is reversed, but since no recovery can be had' the cause will not be remanded.

Judgment reversed.

McSurely and Hatchett, JJ., concur.