author: Mr. Justice Wolfe

text:
    The People of the State of Illinois ex rel. Oscar Nelson, Auditor of the Public Accounts of the State of Illinois, v. Peoples Loan and Trust Company. Henry C. Warner, Appellant, v. William L. O’Connell, as Receiver of Peoples Loan and Trust Company, Appellee.
    Gen. No. 8,968.
    Opinion filed May 15, 1936.
    Cutting, Moore & Sidley, of Chicago, for appellant; James F. Oates, Jr., and Howard Neitzert, both of Chicago, of counsel.

      Welsh & Welsh and John B. Hayes, all of Rochelle, for appellee; C. K. Welsh, of counsel.
   Mr. Justice Wolfe

delivered the opinion of the court.

In November, 1927, George D. Whitcomb Company, a corporation, opened an account with the Peoples Loan and Trust Company, a corporation of Rochelle, Illinois. Before the account was opened with the bank the following resolution was adopted on November 25, 1927: “At a meeting of the Board of Directors of the George D. Whitcomb Company, held at the offices of the corporation, Corner of Second Street and Fifth Avenue, Rochelle, Ill., on the 25th day of November, 1927, at which meeting a quorum of said Directors was present, it was on motion unanimously:

“Resolved, That an account be carried with the Peoples Loan & Trust Company of Rochelle, Ill., in the name of this corporation; and

“Resolved, further, that the Peoples Loan & Trust Company of Rochelle, Ill., is hereby authorized to honor checks and other orders of any character whatsoever for the payment of funds, signed in the name of this corporation by any one of the three of the following officers or employees of this corporation:

President Treasurer Secretary

W. C. Whitcomb Carl Heim Arthur T. Guest “Resolved, further, that said The Peoples Loan & Trust Company of Rochelle, Ill., is hereby authorized and directed to honor and pay any checks or any such other orders so drawn when so signed, whether such checks or any such other orders be payable to the order of the person or persons (if more than one) so authorized to sign checks, or any such other orders, in his or either of their (if more than one) individual capacity or not, and whether such checks or any such other orders are deposited to his or their (if more than one) individual credit or not; and

“Resolved, further, that any one of the following officers or employees of this corporation:

“W. C. Whitcomb, President; Carl Heim, Treasurer, Arthur T. Guest, Secretary, are authorized from time to time to borrow money in the name of this corporation from the Peoples Loan & Trust Company of. Rochelle, 111., and to give the notes or other obligations of any kind whatsoever of this corporation therefor in such amounts and for such period of time and rates of interest and discount as they may see fit, and of any character whatsoever of this corporation as security for money borrowed and/or obligations now or hereafter incurred to said Bank, and to discount with said Bank receivables of this corporation, and any one of such persons acting individually is authorized from time to time to withdraw, receipt for, and/or execute individually and deliver trust receipts for savings deposits, securities, or other property of any kind whatsoever purchased from, left with, or held by said Bank for safe keeping, or as collateral security, or for delivery and/or collection, and said Bank is hereby expressly authorized to deliver to any of the persons designated in this paragraph any such savings deposits, securities or other property of any kind whatsoever upon a receipt or trust receipt executed by any of such persons in his individual name and without affixing the name of the company to such receipt or trust receipt.

“Be it further Resolved, that said the Peoples Loan & Trust Company of Rochelle, 111., is authorized to accept as the endorsement of this corporation on any checks, drafts, or bills, or any other orders of any character whatsoever for the payment of money, made payable to, or to the order of this corporation, or otherwise, whether such endorsement be for deposit or for the purpose of having the same cashed and securing the proceeds thereof, or for any other purpose, an endorsement made in the manner herein-above authorized for the signing or drawing of checks; provided, however, that for the purpose of deposit said bank may accept an endorsement made by - any person affixing an endorsing stamp thereon in the name of this corporation, with or without stating the name or title of an official of this corporation; and

“Be it further Resolved, that the foregoing resolutions and powers therein contained shall be binding upon this corporation and said Bank until written notice of any change or changes therein shall have been given to the President, a Vice-President, Cashier or an Assistant Cashier of said Bank.

“I, Arthur T. Guest, hereby certify that I am the Secretary of the' George D. Whitcomb Company, a corporation organized under the laws of Illinois, and as such Secretary, I certify to The Peoples Loan & Trust Company of Rochelle, Ill., that I have custody and control of the corporate records of said corporation ; and that the foregoing is a true copy of a resolution duly adopted by the unanimous vote of all of the directors present at a meeting of the directors of said corporation duly convened and held according to law and to the by-laws of said corporation, at which meeting a majority and a quorum of the directors was present, all as taken from and compared with the minutes of said meeting. I further certify that said resolution has not been repealed or amended.

“I further certify that the following have been duly elected to the offices and/or appointed to the positions set opposite their respective names; that they continue to hold these offices and/or positions at the present time; and that such facts are shown by said corporate records:

W. C. Whitcomb, President.

Carl Heim, Treasurer.

Arthur T. Guest, Secretary.

“In witness whereof, I have hereunto set my hand as Secretary and affixed the corporation seal of said corporation this 25th day of November, 1927.

(Signed) Arthur T. Guest, Secretary.

(Signed) Carl Heim, Director. ’ ’

Carl Heim mentioned in the aforesaid resolution was treasurer of the George D. Whitcomb Company. Heim was also a customer of the Peoples Loan & Trust Company of Rochelle, Illinois, and carried an individual account in that bank. In October, 1929, and prior thereto, Heim was speculating on the stock exchange and maintained the marginal and speculative account with Babcock Rushton & Company of Chicago. On Thursday, October 24, 1929, the Babcock Rushton & Company called upon Heim for $25>,000, to protect his account with their firm. At this time Heim had on deposit in his personal account with the Peoples Loan & Trust Company $44.24. On that day he wrote a check on the Peoples Loan & Trust Company for $25,000, payable to the order of Babcock Rushton & Company, which was received by them on October 25, 1929. They duly indorsed this check and deposited it with the Continental Illinois National Bank and Trust Company of Chicago and in due course of business it arrived at the Peoples Loan & Trust Company on Saturday Morning, October 26, 1929. The bank did not protest his check, but held it and tried to get into communication with Mr. Heim. Mr. Heim was out of the city and someone at the Whitcomb Company told them that he would be back Monday and this overdraft would be cared for.

On October 28, 1929, which was the following Monday morning after the bank had received the $25,000 check drawn by Heim on the Peoples Loan & Trust Company, the bank received a check drawn on First National Bank & Trust Company of Chicago and made payable to the Peoples Loan & Trust Company of Rochelle, for $25,000. This check was drawn by the George D. Whitcomb Company and signed by Heim as one of its officers. Accompanying this check was a deposit slip prepared by Heim in which it directed that this $25,000, be placed to the credit of Heim in his personal account. Mr. James C. Fesler, the president of the bank, called the First National Bank of Chicago and ascertained that this check for $25,000 would be honored by them when presented for payment, and without making any further inquiry in regard to the validity of this transaction, Heim’s personal account was credited with the proceeds of the Whitcomb Company check of $25,000. and Heim’s check to Babcock Rushton Company for $25,000 was paid. Later on, the Whitcomb Company learned that Heim had embezzled a large amount of their funds. In February, 1931, the Whitcomb Company demanded payment of the bank of this $25,000, but the bank refused to refund the money. On March 5, 1931, the Whitcomb Company had taken advantage of the bankruptcy law and Henry C. Warner was duly appointed trustee to liquidate the affairs of the defunct corporation.

On March 15, 1932, the Peoples Loan & Trust Company of Rochelle was found to be insolvent and Mr. William L. O’Connell was appointed receiver of the bank to liquidate the same. Suit was started in the circuit court of Ogle county for this purpose, and Henry C. Warner, as trustee of the defunct 'Whitcomb Company, filed his claim against the bank for $25,000. The judge of the circuit court of Ogle county referred this claim to a special master in chancery to take proof and report his conclusions of fact and law. The master reported back to the court and. recommended that the claim be disallowed. Exceptions to this report were argued, and overruled by the court. An order was entered sustaining the master’s finding’s, and disallowing the claim.

The appellant in his brief says, “The pertinent facts in this case are not contraverted. The main issue is whether or not the Bank, by the resolution of the company in November 1927, was authorized to handle the Company’s check signed by Carl Heim, as it did.” The appellant in its reply brief admits that this is the vital question in the case.

The same question was presented to this court in the case of People ex rel. Nelson v. Peoples Bank & Trust Co., 271 Ill. App. 41, in which this court said: “Where a bank upon accepting a check drawn to its order by one who is not indebted to it and with whom it has no account,' credits the proceeds thereof to the account of the person presenting it without taking any precaution to determine the authority of the person receiving the same, it will be liable to the maker for failure to hold the proceeds of ,the instrument subject to the order of + m maker, and under such circumstances the bank would not be a holder in due course of law. Milano v. Sheridan Trust & Savings Bank, 242 Ill. App. 362; Paine v. Sheridan Trust & Savings Bank, 255 Ill. App. 250, aff’d 342 Ill. 342.” Both parties to this litigation agree that this is the general rule, but the appellee contends that it was not necessary for the bank to make further inquiries than the resolution which they had on file from the Whit-comb Company, authorizing the officers of his company to execute and cash checks. It was just as seriously insisted by the appellant that this resolution is not broad enough to authorize the payment of a check made payable to the bank to be deposited of the account of Heim, an officer of the corporation.

The appellee has cited and discussed the case of Paine v. Sheridan Trust & Savings Bank, 255 Ill. App. 250. We have carefully examined this opinion and find nothing therein stated which helps in the construction of the resolution that we are now considering. The other case cited is Napoleon Hill Cotton Co. v. Franklin Bank (Mo. App.), 236 S. W. 910. An examination of the facts in this case discloses that there is a material difference from the one we are nowr considering. In the Missouri case the checks were not made payable to the bank but to the officer drawing the check who then cashed it and deposited the proceeds thereof to his individual account. The statement in the opinion is as follows: “This certificate recited that Upshaw was the treasurer, and authorized to receive and give receipts for all moneys due plaintiff, ‘to draw checks against the deposits of the company to his own order or to bearer, as well as to the order of third persons, to sign and indorse notes for the company, as shown by the above extract from its books. ’ ’ ’ Upshaw, mentioned in this certificate, is the party who cashed the checks in question.

At the time the Brokerage Company presented Heim’s check for $25,000 to the Peoples Loan & Trust Company for payment, the bank knew that Heim had only a small balance in his account and that the Whit-comb Company was not indebted to it. Heim presented the Whitcomb Company’s check drawn on the Chicago Bank, made payable to the Peoples Loan & Trust Company, and requested that the company’s check made payable to the bank should be credited to his individual account. Considering all the circumstances concerning the transactions, it is our conclusion that the officers of the bank should have made inquiry from the Whitcomb Company as to whether this was a legitimate transaction. It is further our conclusion that the resolution in question is not broad enough to authorize the bank to deposit the check which was drawn in its favor to the individual account of Heim.

It is our opinion that the circuit court erred in disallowing the claim of the trustee in bankruptcy, and the case is hereby reversed and remanded to the circuit court of Ogle county with directions to enter an order allowing the claim.

Reversed and remanded with directions.


source: Caselaw Access Project

license: Public Domain

text:
    William Schwartz, Appellee, v. Emanuel Schwartz, Appellant.
    Gen. No. 9,033.

      Opinion filed May 15, 1936.
    Rehearing denied June 20, 1936.
    Brown, Fox & Blumberg, of Chicago, and William L. Pierce, for appellant; Charles LeRoy Brown, Jerome F. Dixon, of Chicago, and Clifford E. Fix, of counsel.
    Hall & Hulse, of Waukegan, for appellee; Albert L. Hall and Marshall Meyer, of Waukegan, of counsel.
   Mr. Justice Wolfe

delivered the opinion of the court.

This case involves an appeal from a judgment for $50,000, recovered by the appellee against the appellant in an action on the case for an alleged malicious prosecution by the defendant, of a common law action against the plaintiff. The common law action, the basis of the claimed malicious prosecution, was an ordinary cognovit on an unpaid and overdue judgment note of William Schwartz to Emanuel Schwartz for the sum of $15,000. Judgment was confessed for the principal and interest due on this note of William Schwartz and for attorney’s fees in the collection of the same. There was no arrest of William Schwartz and no seizure of any of his property. There was no proof of any damage suffered by the defendant in the confession of judgment case. Eight days after the judgment was confessed, the appellee tendered to appellant the full amount of principal of the note and interest due to the date of maturity. The judgment was vacated, the amount tendered accepted by the appellant, the note surrendered by appellant to appellee and the action on the note was dismissed.

The case was tried by a jury and by their verdict they awarded the plaintiff damages to the amount of $150,000. The trial judge found that the verdict of the jury for $150,000 was excessive and required a remittitur of $100,000. An order was entered to this effect. Judgment was then rendered in favor of the plaintiff for $50,000.

William Schwartz, the plaintiff and appellee and Emanuel Schwartz, the defendant and appellant, are brothers. From 1920 to 1929, they were partners in a real estate loan and insurance business in the City of Waukegan, Illinois. In 1929, William Schwartz purchased Emanuel Schwartz’s interest in the partnership and paid for the same by turning over to Emanuel numerous real estate mortgages and a series of notes aggregating $119,328. These notes matured on March 1 of each year from 1929 to 1934. Sometime during the year 1930, the brothers had a serious disagreement, and thereafter were not on speaking terms. The notes maturing in 1929, 1930 and 1931 were paid. After the disagreement between the brothers, it was William’s custom to mail checks to Emanuel for the sum due on the notes as principal and interest. He did this with respect to the principal and interest payable in 1931, and the interest payable on February 1,1932. All payments either of interest or principal were sent to the office of Emanuel Schwartz.

In the early part of the year 1932, Emanuel Schwartz had been absent from the City of Waukegan. He returned to his home on March 21, 1932, The note on which suit was brought was due March 1, 1932. William Schwartz went to the office of his brother Emanuel and told the office girl that he was ready to pay the note and interest then due, but he demanded the surrender of the note before payment. The office girl did not have possession of the note and told him that she could not deliver it. William left a letter with Emanuel’s office girl, in which he stated that he had a check ready to pay the note and interest. When Emanuel returned from his trip, he found an accumulation of mail and according to his testimony, he did not receive the letter that his brother, William, had left for him, stating that he was ready to pay the note, until several days after the confession of judgment on the note. The evidence shows that while the brothers were not on speaking terms, they lived in the same house, and slept in the same bedroom and ate at the same table at the home of their father. William did not make any offer or say anything to his brother, Emanuel, with reference to payment of his overdue note. On March 22, Emanuel consulted his lawyer, who advised him to wait a day or two, before he took judgment by confession on the note. On March 24, 1932, the judgment was confessed in the circuit court of Lake county for the principal on the note, unpaid interest and attorney’s fees. On April 1, William made a motion to vacate the judgment and stated in open court that on March 1, he had tendered in payment of the note a check for $15,075, at Emanuel’s office and that he now retendered that sum in open court. On April 2, the case came up again on the motion to vacate the judgment and at this time William Schwartz again tendered the sum of $15,075, and instead of a check he made the tender in currency. The tender was accepted, the note surrendered and the suit dismissed.

It is seriously insisted by the appellant that the trial court erred in overruling his motion for a directed verdict, at the close of the plaintiff’s case. He insists that the suit cannot be maintained.

Both the appellant and appellee have cited numerous cases of our own courts and of other States in support of their different contentions. After examining the cases of our own Supreme and Appellate Courts, it is our conclusion that the law applicable to this case has been well settled and the decisions of other States need not be considered. The leading case on this subject is Smith v. Michigan Buggy Co., 175 Ill. 619. The court reviews many cases in the opinion and on page 627, they use this language. “We are of the opinion, and so hold, that an action for the malicious prosecution of a civil suit without probable cause will not lie where the process in the suit so prosecuted is by summons only, and is not accompanied by arrest of the person, or seizure of the property, or other special injury not necessarily resulting in all suits prosecuted to recover for like causes of action.” The court then cites numerous cases from other jurisdictions.

Both the appellant and appellee cite the case of Norin v. Scheldt Mfg. Co., 297 Ill. 521. In this case the Supreme Court affirmed the judgment and damages for a malicious prosecution. The plaintiff charged that the defendant maliciously and without probable cause filed a petition in the United States District Court, asking that he, the plaintiff, be adjudged a bankrupt. The court on page 525 of their opinion use this language, “In an ordinary civil suit to recover money damages, whether it be in contract or tort, the business world recognizes that such suit may be filed for any one of many reasons, one of which is that the debtor is unable to pay; while a bankruptcy proceeding is filed on but one basis, and that is that the defendant is a bankrupt. While it is true that the Bankruptcy Act provides that certain acts of the debtor, such as fraudulent concealment or disposition of his property, may be ground for declaring him a bankrupt though solvent, yet the whole basis of the action and the effect of adjudication of bankruptcy is to affect his status by declaring him insolvent and unable to pay. This is not the theory upon which a money judgment is sought in a civil suit. Such steps are taken to force payment, not on the theory that the defendant is unable to pay, but rather the contrary. A petition in bankruptcy is sui generis and is most far-reaching and drastic in its effects. Whether the property of the bankrupt be actually seized or not, no prudent person will buy from him or sell anything to him on credit, because all transactions between the bankrupt and third persons after the petition in bankruptcy has been filed are liable to be investigated, reviewed, set aside or controlled should there be an adjudication of bankruptcy.”

‘ ‘ The principal question involved here is whether or not the action for malicious prosecution will lie in this case. If the same rule is applied to malicious prosecution of an action on an involuntary petition in bankruptcy as obtains in the case of an ordinary civil action the question is no longer open in this State. In Smith v. Michigan Buggy Co., 175 Ill. 619, it was definitely held that an action for the malicious prosecution of a civil suit without probable cause will not lie where the process in the suit so prosecuted is by summons, only, and is not accompanied by the arrest of the person or seizure of the property, or other special injury is sustained not necessarily resulting in all suits prosecuted to recover for like causes of action. This rule was adhered to by this court in Bonney v. King, 201 Ill. 47. In the former of these cases the original cause of action upon which the suit for malicious prosecution was based was an action of trespass on the case for damages, while in the second the action was assumpsit.”

In the case of Shedd v. Patterson, 302 Ill. 355, relied upon by both appellant and appellee, Shedd had brought suit against Patterson for malicious prosecution and the proof showed that Patterson had brought five suits in equity and four actions at law, relative to the same subject matter, and in each instance Patterson was unsuccessful. The court in their discussion of the law recognized the rule as set forth in the opinion of Smith v. Michigan Buggy Co., supra, but held in the present ease that it was a question of fact for the jury to decide whether the instigation by Patterson of nine suits in which he was unsuccessful in all of them, was done with a malicious intent to damage Shedd.

In the case of Martin v. Summers, 79 Ill. App. 392, the Appellate Court of the Third District were considering a case wherein a judgment had been entered on a cognovit the same as the case that we are now considering. That court held that where a person has authority given him in a power of attorney to confess judgment, he cannot be held liable for the effect of the entry of such judgment merely because his motives were malicious. It is conceded in the case we are considering that the plaintiff and defendant were bitter enemies. The court in the Martin case in discussing what bearing malice has on the merits of the action use this language: “The appellant further contends that even if the appellees had the right to procure the judgment as .they did on July 26, 1897, yet inasmuch as the declaration shows that the appellees, in doing so then, were actuated by malice toward the appellant, and that the effect was to injure and damage the appellant, and he was injured and damaged thereby, then the appellees are liable on that account.

“We think, however, that law and justice require us to hold that the appellees, having the legal authority expressly given them by the appellant, in the power of attorney, to have the judgment entered when it was entered, can not be held'by the appellant liable to the effect of the entry of such judgment, merely because the motives prompting them to do so were malicious; for the courts will not inquire into the motives actuating a person in the performance of a legal right. Phelps v. Nowlen, 72 N. Y. 39. Judge Cooley, in his admirable work on ‘Torts,’ on page 699, says that ‘the exercise by one man of his legal right can not be a legal wrong to another. . . . Any transaction which would be lawful and proper if the parties were friends, cannot be made the foundation of an action merely because they happen to be enemies. As long as a man keeps himself within the law, by doing no act which violates it, we must leave his motives to Him who searches the heart. To state the point in a few words, whatever one has a right to do, another can have no right to complain of.’

“Again at page 690, he says: ‘Bad motive, by itself, then, is no tort. Malicious motives make a bad act worse, but they can not make that a wrong which in its essence is lawful. When in legal pleadings the defendant is charged with having wrongfully and unlawfully done the act complained of, the words are only words of vituperation, and amount to nothing unless a cause of action is otherwise alleged.’ ”

The case of Stevick v. Vennum, 227 Ill. App. 86, was a suit for malicious prosecution in which the plaintiff alleged that the defendant had maliciously instituted an involuntary bankruptcy proceeding against the plaintiff when he was solvent and for that reason he had been greatly damaged. The court in this case held that there was a distinction between starting a civil suit for the recovery of money and filing a petition charging the person with bankruptcy and held that the suit could be maintained. In the case of Dooley v. Meisenbach, 83 Ill. App. 75, the court held that in an action for malicious prosecution where the plaintiff was not arrested or any of his property seized in the prosecutions complained of and, it does not appear that he suffered any special damages on account of such prosecutions, beyond the expense and trouble attended upon the suits, he can not recover, and they cite the case of Potts v. Imlay, 4 N. J. L. 377. In this case the court after reviewing numerous cases from other jurisdictions and their own State courts, on page 381, of their opinion use this language: “Upon the whole, upon the strength of these authorities, I think it may be laid down as law, that this action cannot be maintained for prosecuting a civil suit in a court of common law having competent jurisdiction, by the party himself in interest, unless the defendant has upon such prosecution been arrested without cause and deprived of his liberty, or made to suffer other special grievances different from, and superadded to, the ordinary expense of a defense.”

From a review of the evidence, it is our conclusion that the appellee has not shown that he has suffered any damages aside from the inconvenience of defending the suit to have the judgment vacated and set aside. According to the authorities of the State of Illinois, the suit cannot be maintained and the court erred in not directing a verdict for the defendant.

The judgment of the circuit court of Lake county is hereby reversed.

Reversed.


text:
    The Union Central Life Insurance Company, Appellant, v. Charles A. Weber et al., Appellees.
    Gen. No. 9,050.

      Opinion filed May 15, 1936.
    Rehearing denied June 20, 1936.
    Claude M. Granger, of Kankakee, for appellant.
    Vernon G. Butz, of Kankakee, for appellees.-
   Mr. Justice Wolfe

delivered the opinion of the court.

On June 19, 1935, the appellant filed suit against Charles A. Weber et al. to foreclose a mortgage. The appellant, for convenience, will he hereafter designated as plaintiff and the appellees as the defendants. The original mortgage was given by Charles A. Weber. The property covered by the mortgage had been deeded to a son, Carl P. Weber. The other defendants, aside from the Webers, were nine junior (judgment) lien creditors. The complaint which was in "the usual form, alleged the execution of the mortgage, the default in the payment of interest, taxes and insurance, and election to accelerate the indebtedness pursuant to the terms of the mortgage. The mortgage was for the sum of $8,000. The appellee prayed for an accounting and claimed as due on the mortgage the sum of $9,804.37, which included the principal, interest, abstract, expenses, attorney’s fees, etc. The Webers' filed an answer to the bill in which they admitted the execution of the mortgage and transfer of the property, but denied the exercise of the plaintiff’s option to accelerate the payments; or that plaintiff was entitled to foreclosure and prayed proof of the rights of the judgment creditors.

The answer averred that upon plaintiff’s inducement, Carl P. Weber and his wife, Edna, applied to the Federal Land Bank and the Land Bank Commissioner who granted them loans for $15,000, provided that amount paid all' their debts and all liens against the property; that on their request the plaintiff did on October 14, 1934, sign a statement of indebtedness in effect that upon the payment of $8,250, this sum would be accepted in full settlement of the mortgage debt which might be paid in Federal Farm Mortgage Corporation Bonds. It listed the creditors that had agreed to accept the compromise and the sums of their indebtedness. The answer avers that there was a delay in closing the loans, but that the loans were reapproved on March 10, 1935, and were ready for closing in the latter part of that month, but at this time the plaintiff refused to accept the $8,250, in full settlement for their claims; that the loans are still available to defendants who are ready and willing to pay to the plaintiff the sum of $8,250. The answer concludes with a prayer that the plaintiff be required to accept $8,250 in full settlement of its claim and that the cause.be dismissed. The plaintiff’s reply denied all the affirmative matter stated in the answer, but averred that while plaintiff had agreed tentatively to compromise its mortgage if the amount was paid within a reasonable time, that there was no consideration therefor, that the specific amount was not paid to the plaintiff in a reasonable time and that the plaintiff is not bound or its action barred thereby.

The case was submitted to the court who found the issues in favor of the plaintiff so far as the execution of the note and mortgage and default on interest, etc. The amount of indebtedness was fixed at $10,203.12, and the court found in favor of the defendants on their claim that the plaintiff had agreed to accept as a compromise of their claim the sum of $8,250.00. The decree ordered that the defendants pay to the plaintiff the sum of $8,250 with lawful interest within 30 days from the date of the decree and that the plaintiff accept it in full satisfaction of its mortgage indebtedness. If the defendants failed to pay the $8,250 within said time, or if they did not within the succeeding five days pay the amount found to be due, $10,203.12, together with interest and costs of suit, that the mortgage premises should be sold at public sale in the usual manner. From this decree the plaintiff perfected its appeal.

It is conceded by both parties that the Webers made an application for a federal farm loan and they communicated this fact to Mr. Charles Murray, the agent of the plaintiff. In a conversation between Murray and the Webers, the Webers said that they could get a loan for $15,000 provided that amount would pay all of their debts, but that their debts exceeded that amount and therefore it would be necessary fór all the creditors, including the plaintiff, to reduce their claims. The Webers suggested that the plaintiff’s claim be reduced to the sum of $8,250. Mr. Murray said that he could not accept this offer as he had no authority to do so, but would submit it to his company. Mr. Murray, as representative of the plaintiff, attended a meeting of creditors of the Webers on May 8, 1934, and stated that he had recommended that his company accept the $8,250 in settlement of their claim. On October 19, 1934, the plaintiff, by its district manager signed the following statement:

“Defendants’ Exhibit No. 2.

“Creditor’s Statement of Indebtedness and

Authority for Payment (Copy)

“Application No. N. F. L. A. or L. C. No. Applicant Carl Weber.

To Union Central Life Insurance Co., Cincinnati, Ohio,

(Name of Creditor) (City) (State)

Oct. 19, 1934.

(Date)

Cincinnati, Ohio

(P. O. Address)

“You hold a mtg. & notes as an obligation of

(Note, account, etc.)

Carl Weber, Manteno, Illinois for $8,000.00. Kindly

(Name) (Address)

state below the earliest date said indebtedness can be paid, giving the amount which you will accept in full satisfaction of the same on or before said date, or thereafter, and return this statement to me.

“ (Signed)

(Secretary-Treasurer or Loan Correspondent)

“To John Krueger Date October 19th., 1934.

Secretary-Treasurer or Loan Correspondent and to The Federal Land Bank of St. Louis and/or Land Bank Commissioner.

“The'amount of the indebtedness referred to above is $8,017.66 as unpaid principal and $1,531.51 unpaid interest up to the 1st day of Oct. 1934, upon which date or after which date said debt can be paid. Said indebtedness is evidenced by notes

(Note, Account, etc.)

due on the 1st day of July, 1928 to 1938 inclusive. The debt is secured by a real estate mortgage which is re-

(is or is not) (real estate-chattel)

corded in book 371, page 370 of the records of Kankakee County, State of Illinois. Upon payment to the undersigned of $8,250.00 on or before the xx day of xx , 19 or if paid thereafter, by including interest at the rate of xx per centum per annum on $ xx from said date to the date of payment, said sum will be accepted in full satisfaction of this claim. In connection with any loan or loans that may be made by The Federal Land Bank of St. Louis and/or the Land Bank Commissioner to the above-named application, it is further agreed that said sum may be paid in Federal Farm Mortgage Corporation bonds of the last issue preceding the date the proceeds of the loan are disbursed, fully and unconditionally guaranteed both as to principal and interest by the United States. It is understood that such bonds will be accepted in payment at their face value with any necessary adjustments for interest accrued to the date of payment.

‘ ‘ The Union Central Life Insurance Co.

Witnesses:

(Signed) E. H. Bispham,

Asst. Mgr., Northeast Dist.

I. J. Frischolz

L. Stanley (Signed)-”

The above statement contains other matters that are not pertinent to the issues involved in this litigation, so the whole statement is not quoted. The other creditors of the defendants signed like statements.

The plaintiff repudiated this statement and refused to be bound by it, and now claims that the same was without consideration and therefore void. It also claims that' all of the creditors of the Webers did not consent to the scaling down of their claims according to the compromise agreement and that the court erred in so finding in the decree. Part of the testimony of the witness, John Krueger, as abstracted (after the witness identified the consent agreement of the plaintiff) is as follows: “The other creditors of Carl Weber consented to accept the remaining proceeds of that loan. There were 20 or 25 of them. I have in my files copies of the consent to accept the 15% by all creditors. The original was with the Federal Land Bank.” The trial court heard this witness together with the other testimony in the case and it was his province to give this witness such credit as he thought the testimony was entitled to. Evidently he believed this statement to be true, for in the decree he found in accordance with the testimony as given by this witness.

We think that the evidence clearly shows that there was an agreement among all the creditors of the defendants to scale down their indebtedness and accept a smaller sum in full satisfaction of their claims and that the same were dependent upon the defendants procuring a Federal loan for $15,000. Since the earliest cases, courts have recognized the rule that the payment of a smaller sum in satisfaction of a larger sum is not full discharge of the debtor, but there is a well known exception to this rule, which is that it does not apply in bona fide cases of compromise and settlement. In the case of National Time Recorder Co. v. Feypel, 93 Ill. App. 170, the court in discussing what is a good consideration for a compromise of an indebtedness have this to say: “We understand the rule to be that where several creditors join in an agreement of this kind with their common debtor, and in so doing give up their present rights for the general advantage, no other consideration need be shown — the consideration to each creditor being the undertaking by the others — and all are bound, unless it can be shown that the debtor has refused to fulfill his part of the agreement. See Good v. Cheesman, 22 Eng. Com. Law, 142; and see, also, note on page 612 of Cumber v. Wane, 1 Smith’s Leading Cases, 606. ‘And if parties mutually agree to postpone the performance of a contract, this is effectual, the promise of the one being a consideration for that of the other.’ Bishop on Contracts, sec. 76.”

It is our conclusion that the agreement of the various creditors of the defendants that they would scale down and compromise their indebtedness was a valid consideration for the various agreements and cannot be avoided on the ground of lack of consideration.

It is "next insisted by the plaintiff that they had a right to revoke their agreement to compromise this indebtedness, because there was no time mentioned in which the payments were to be made and that the same was not made in a reasonable time. It will be observed that the statement executed by the plaintiff to compromise this indebtedness, was dated October 19, 1934. It is a well known fact that it usually takes considerable time to secure such a loan. Some time in December, 1934, the plaintiff forwarded to the Federal Land Bank an abstract of title to the lands in question, and the correspondence between the plaintiff and the bank shows that they were relying upon the bank to furnish $15,000 to pay the indebtedness. The evidence shows that the plaintiff did not notify the defendants of the cancellation of their agreement until some time in March, 1935. The evidence further shows that the loan was practically ready to be closed at this time. We think that the court properly held that the defendants were not guilty of unreasonable delay in closing this loan.

It is next insisted that the court erred in not finding the issues in favor of the plaintiff because the defense could not be raised by answer, but only by a cross-bill. In the case of Gillfillan v. Farrington, 12 Ill. App. 101, 107, this court considered a very similar case to the one now before us. Many of the questions raised by the plaintiff in this case were discussed by the court in the Gillfillan case, and especially the consideration for the compromise of creditors of a failing debtor. In their opinion the court use this language: “It is true that ever since the decision in Cumber v. Wane, 1 Strange, 426, it has been held that a debt cannot be satisfied by the payment of a less sum of the money of the debtor, and that a promise to discharge it upon such payment is void for want of consideration; but the rule does not'apply to an agreement, mutual in its obligation, between several creditors with a failing debtor. In such a case the promise of each is supported by those of the others, which is deemed a sufficient consideration. Compliance with its terms on the part of the debtor is a good defense to an action by the creditor for the residue of his original demand— not, indeed, as a technical accord and satisfaction, but upon principles of equity as showing a new adjustment of the debt, so made that he cannot repudiate it without committing a fraud upon other and more faithful creditors.

This displaces the original contract and hence may be proved under the general issue as well as under a special plea setting up the facts. Upon the same reason, such an agreement by a portion of the creditors, unless conditioned upon the concurrence of others is as valid against them as if made by all. And a tender by the debtor, according to its terms, being equivalent to performance, is sufficient whether such tender be accepted or not. The creditor having by his own fault prevented its actual performance will not be heard to say that the agreement is still executory.”

The court in this opinion cited many cases as authority for the rule as above announced, among them, Mellen v. Goldsmith, 47 Wis. 573, 3 N. W. 592. In the Mellen case, the court reviewed many of the cases cited in the Gillfillan case and we quote a part of the opinion in the Mellen case. “The really important and only material question here is, Was this agreement valid and binding upon the appellants, so that its performance by the other creditors and the respondent, in respect to their claims, and the offer of performance by the respondent in respect to the claims of the appellants, constitute a valid defense to this action, brought to recover the full amount?

‘ ‘ The validity of such an agreement does not depend upon the technical and strict rules which govern accord and satisfaction, release and discharge, but upon principles of equity, which treat the violation of or failure to execute such an agreement as a fraud, not only upon the debtor, but more especially upon the other creditors, who have been lured in by the agreement to relinquish their further demands, upon the supposition that the debtor would thereby be discharged of the remainder of his debts. In Anstey v. Marden, 1 Bos. & Pull, 124, the plaintiff at one time orally agreed with the other creditors to accept a composition of 10 shillings on the pound, and to assign his claim to Weston, who was to advance the money; but when the agreement was drawn up he refused to sign it, although the other creditors had signed it and received their money. Rooke, J., said: ‘Anstey is not the only person here concerned. If he were suffered to recover, he would be guilty of a gross fraud on the other creditors. ’

“In Norman v. Thompson, 4 Exch. 755, the plaintiff verbally agreed with the debtor defendant, and a part of his other creditors, that he would accept 10 shillings on the pound for his claim, if they would do the same, and afterwards refused to carry out the agreement. Upon demurrer to the replication of the plaintiff, averring that he did not so agree, modo et forma, Pollock, C. B., said: ‘I do not think there is any ground for doubting that such an agreement is binding. It is a good consideration for one to give up part of his claim, ■that another should do the same. ’

“In Bradley v. Gregory, 2 Comb. 383, the plaintiff verbally agreed with the debtor and the other creditors, to execute a composition deed, containing a clause of release, for and by the payment of 10 shillings on the pound of his claim, if the other creditors would do so, and then, upon the execution of the deed by the other creditors, he refused to sign it. Lord Ellen-borough said: £I think the agreement in the present case operates as a satisfaction. But it is said the agreement is executory, and therefore can be no bar. I think it is executed. Everything on the defendant’s part was performed. As far as depended upon him there has been satisfaction as well as accord. It is the plaintiff’s own fault that he has not enjoyed the full benefit of all that he stipulated for. It would be unjust if the defendant could be sued in this action; and I am of opinion that, in point of law, the action is not maintainable. ’

“In Wood v. Roberts, 2 Starkie R. 417, in which the facts are similar to those here, Abbott,. L. C. J., said: ‘If the plaintiff had, by his undertaking to discharge the defendant, induced any other creditor to accept a composition and discharge the defendant from further liability, he could not afterwards enforce his claim, since it would be a fraud upon that creditor. ’

“In Butler v. Rhodes, 1 Esp. 236, the plaintiff and the other creditors had agreed with the defendant to sign a deed of composition for 10 shillings on the pound; and after the other creditors had signed, the plaintiff refused to do so. Lord Kenyon said that ‘it therefore never should be allowed to the plaintiff to recede from what he had undertaken, and to evade the effect of the composition by a refusal to execute the deed which had been prepared with his consent’ and directed the jury to find for the defendant. ’ ’

The defendants by their answer show that they had performed their part of the agreement, or were ready to perform it, and it is our opinion that such defense was properly raised by the answer to the original bill.

The plaintiff claims that under the pleadings and proof it was entitled to an unconditional decree of sale to satisfy its debt in full with interest, costs and expenses, and that the court erred in not signing a decree to this effect. The plaintiff together with the other creditors of the Webers entered into a compromise agreement whereby they were to scale down their indebtedness and the plaintiff agreed to accept $8,250 in full settlement for their claims against the Webers. The plaintiff should be bound by that agreement. The defendants were ordered to pay the plaintiff the said sum of $8,250, and then the mortgage indebtedness was to be canceled and fully paid. If the defendant does not make payment as ordered, then plaintiff is fully protected by "the further provision of the decree.

We find no reversible error in the case and the decree of the circuit court of Kankakee county is hereby affirmed.

Affirmed.


author: Mr. Justice Hebei

text:
    First District.
    Thomas Terry, appellant, v. Illinois Central Railroad Company, appellee.
    Gen. No. 37,910.
    Opinion filed April 17, 1936.
    Royal W. Irwin, for appellant. John W. Freels and Herbert J. Deany, for appellee; Edward C. Craig and Vernon W. Foster, of counsel.
   Mr. Justice Hebei

delivered the opinion of the court.


author: Mr. Presiding Justice MeSurely

text:
    Charles V. Falkenberg, appellee, v. Robert P. Gust, appellant.
    Gen. No. 38,612.
    Opinion filed April 20, 1936.
    Charles R. Smith, for appellant. A. A. Pantelis, for appellee; Charles V. Falkenberg, of counsel.
   Mr. Presiding Justice MeSurely

delivered the opinion of the court.


text:
    Lillian Kay, appellee, v. Meyer Rothschild and Mrs. Meyer Rothschild, appellants.
    Gen. No. 38,672.
    Opinion filed April 20, 1936.
    Harry J. Lurie, for appellants. Frederick J. Bertram, for appellee.
   Mr. Presiding Justice MeSurely

delivered the opinion of the court.


author: Mr. Presiding Justice McSurely

text:
    Village of River Forest, appellee, v. George S. Forbes, appellant.
    Gen. No. 38,733.

      Opinion filed April 20, 1936.
    Rehearing denied May 4, 1936.
    Edward H. Kubitz, for appellant; George A. Mason, of counsel. Bryant, Roberts, Hwass & Colwell, for appellee; Henry L. Wells, of counsel.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


author: Mr. Justice Matchett

text:
    Hans Bentsen, administrator of the estate of Nettie Bentsen, deceased, appellee, v. William C. Panzer and Frederick. C. Panzer, appellants.
    Gen. No. 38,631.
    Opinion filed April 20, 1936.
    Rehearing denied May 4, 1936.
    Stebbins, McKinley & Price, for appellants; William McKinley and Paul E. Price, of counsel. Charles C. Spencer and Richard M. Spencer, for appellee.
   Mr. Justice Matchett

delivered the opinion of the court.


text:
    Ora L. Perry, appellee, v. W. H. Darlington et al., defendants. William D. Meyering, appellant.
    Gen. No. 38,660.
    Opinion filed April 20, 1936.
    William J. Flaherty, for appellant; George H. Mason, of counsel. Justus Chancellor, for appellee.
   Mr. Justice Matchett

delivered the opinion of the court.


text:
    The People of the State of Illinois ex rel. Oscar Nelson v. Logan Square State and Savings Bank. Lafayette Council No. 361, Knights of Columbus, appellant, v. William L. O’Connell, appellee.
    Gen. No. 38,709.
    Opinion filed April 20, 1936.
    P. F. Murray, for appellant; John T. Murray, of counsel. Roy D. Keehn and W. M. Keeley, for appellee.
   Mr. Justice Matchett

delivered the opinion of the court.


author: Mr. Justice O’Connor

text:
    The First National Bank of Hoboken, appellant, v. Helen M. Tobin and A. C. Tobin, appellees.
    Gen. No. 38,616.

      Opinion filed April 20, 1936.
    Rehearing denied May 4, 1936.
    Mayer, Meyer, Austrian & Platt, for appellant; David F. Rosenthal, Frank D. Mayer and William D. Doggett, of counsel. Robert L. Wright, for appellees.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Gus Plonsker, appellant, v. Al Sider, appellee.
    Gen. No. 38,656.
    Opinion filed April 20, 1936.
    Henry Pollenz, for appellant. Morris Sider, for appellee; Ira S. Kolb, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Louis Cohen, plaintiff, v. Max Kirchheimer and Kirchheimer Bros. Company, defendants. M. C. Livingston and Leo T. Kaufman, appellants, v. Max Kirchheimer et al., appellees.
    Gen. No. 38,716.
    Opinion filed April 20, 1936.
    Rehearing denied May 4, 1936.
    Stebbins, McKinley & Price, for appellants; Wm. McKinley and Paul E. Price, of counsel. Jones, Key & Chapman, for appellees; John Wm. Chapman, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    The First Union Trust and Savings Bank, as executor of the estate of Herman W. Mallen, deceased, appellee, v. Charles Stolof et al., defendants. H. Austin, trading as Ernest Scott and Company, appellant.
    Gen. No. 38,727.
    Opinion filed April 20, 1936.
    I. W. Kaufman, for appellant; Morris H. Cohen, of counsel. Gann, Seeord & Stead, for appellee; Guy Van Sehaiek, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    The People of the State of Illinois ex rel. Oscar Nelson v. Immel State Bank. Frenzel Brothers Company, appellee, v. William L. O’Connell, appellant.
    Gen. No. 38,736.

      Opinion filed April 20, 1936.
    Louis J. Behan and Wm. J. Corrigan, for appellant. Joseph W. Sehuhnan, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.


author: Mr. Presiding Justice Hall

text:
    Robert Bruner et al., appellants, v. Thomas J. Courtney, State’s Attorney, et al., appellees.
    Gen. No. 38,106.
    Opinion filed April 22, 1936.
    Fink & Daniels, for appellants; Meyer Fink and Max Daniels, of counsel. Thomas J. Courtney, State’s Attorney, and William H. Sexton, Corporation Counsel, for appellees; Jacob Shamberg, William P. Kearney, Gerald E. Hornidge, J. L. Sheer, Assistant State’s Attorneys, Otto F. Weiner and William V. Daly, Assistant Corporation Counsel, of counsel.
   Mr. Presiding Justice Hall

delivered the opinion of the court.


text:
    Jesse W. Ritter, appellee, v. City of Chicago, appellant.
    Gen. No. 38,130.
    Opinion filed April 22, 1936.
    William H. Sexton, Corporation Counsel, and Alexander M. Smietanka, City Attorney, for appellant; Quin O’Brien and Michael W. Kaveney, Assistant Corporation Counsel, of counsel. Clark & Clark and John W. Costello, for appellee; Russell S. Clark and Chester D. Kern, of counsel.
   Mr. Presiding Justice Hall

delivered the opinion of the court.


text:
    The First National Bank of Chicago et al., appellees, v. Amandus N. Anderson et al., appellants.
    Gen. No. 38,204.
    Opinion filed April 22, 1936.
    Rehearing denied May 5, 1936.
    Justus Chancellor, for appellants. Burry, Johnstone, Peters & Dixon, for appellees; James E. Elworth, of counsel.
   Mr. Presiding Justice Hall

delivered the opinion of the court.


text:
    Joseph Perlman, appellee, v. Sam Samson, appellant.
    Gen. No. 38,212.

      Opinion filed April 22, 1936.
    Rehearing denied May 5, 1936.
    Landis, Landis & Landis, for appellant; Alvin Landis, of counsel. William B. Steinberg, for appellee.
   Mr. Presiding Justice Hall

delivered the opinion of the court.


text:
    Julia Cobb, administratrix of the estate of Louis Cobb, deceased, appellant, v. Rush Butler, Jr., appellee.
    Gen. No. 38,227.
    Opinion filed April 22, 1936.
    Irving N. Stenn and O. Helmer Johnson, for appellant. Robertson, Crowe & Spence, for appellee; Egbert Robertson and Burt A. Crowe, of counsel.
   Mr. Presiding Justice Hall

delivered the opinion of the court.


text:
    In re Estate of John W. Lallithan, deceased. Albert B. Fulton, trading as Madison Oil Company, appellee, v. Gertrude P. Lallithan, administratrix of the estate of John W. Lallithan, deceased, appellant.
    Gen. No. 38,299.
    Opinion filed April 22, 1936.
    Rehearing denied May 5, 1936.
    Harold T. Halfpenny and James E. McGrath, for appellant; Richard P. Hahn, of counsel. Rathje & Connor, for appellee; William A. Connor, of counsel.
   Mr. Presiding Justice Hall

delivered the opinion of the court.


text:
    Thomas Hoist Company, appellee, v. William J. Newman Company et al., appellants.
    Gen. No. 38,168.
    Opinion filed April 22, 1936.
    Litsinger, Healy, Reid & Bye, for appellants; Daniel M. Healy, of counsel. Wetten, Pegler & Dale, for appellee; Greydon L. Walker, of counsel.
   Mr. Justice Hebei

delivered the opinion of the court.


text:
    In re Estate of James Thomas Kelly, deceased. The People of the State of Illinois, defendant in error, v. Nicholas Radis, plaintiff in error.
    Gen. No. 38,222.

      Opinion filed April 22, 1936.
    Rehearing denied May 5, 1936.
    Brodldn & Bieber and Ode L. Rankin, for plaintiff in error; Ode L. Rankin, of counsel. Levinson, Becker, Peebles & Swiren, appearing herein as a/mims muriae; Don M. Peebles and H. M. Newburger, of counsel.
   Mr. Justice Hebei

delivered the opinion of the court.


text:
    Sylvester Adams and Robert Brodzinski, appellees, v. Edward Zeutschel, appellant.
    Gen. No. 38,266.
    Opinion filed April 22, 1936.
    John W. Browning, for appellant. Peden, Melaniphy, Ryan & Andreas, for appellees.
   Mr. Justice Hebei

delivered the opinion of the court.


text:
    Wiley Hitchcock, appellee, v. Winifred Hitchcock, appellant.
    Gen. No. 38,292.
    Opinion filed April 22, 1936.
    Rehearing denied May 5, 1936.
    Roy S. Gaskill, for appellant. John E. Groves, for appellee.
   Mr. Justice Hebei

delivered the opinion of the court.


text:
    In re Petition of Fred Holy, appellee, v. Winifred Hitchcock, appellant.
    Gen. No. 38,293.
    Opinion filed April 22, 1936.
    Roy S. Gaskill, for appellant. Fred Holy, pro se.

   Mr. Justice Hebei

delivered the opinion of the court.


text:
    Ruth Q. Mortell, administratrix of the estate of Cyril J. Quail, deceased, appellant, v. Guy A. Richardson et al., appellees.
    Gen. No. 38,315.
    Opinion filed April 22, 1936.

      Nordstrand & Riley and Charles C. Spencer, for appellant. Frank If. Kriete, Charles B. Green and Arthur J. Donovan, for appellees; John R. Guilliams, of counsel.
   Mr. Justice Hebei

delivered the opinion of the court.


text:
    Overhead Door Company of Illinois, appellant, v. Adolph H. Bernstein et al., appellees. Jason A. Imes and David Rest, trading as M. Rest and Son, cross appellants, v. Adolph H. Bernstein, appellee.
    Gen. No. 38,351.
    Opinion filed April 22, 1936.
    Rehearing denied May 5, 1936.
    Charles S. Hamilton, for appellant. Samuel E. Davidson, for cross appellants. Myer N. Rosengard, for appellee; Seymour Rady and Charles H. Shapiro, of counsel.
   Mr. Justice Hebei

delivered the opinion of the court.


text:
    Western Suburban Finance and Thrift Company, appellee, v. Edward A. Graham et al., appellants.
    Gen. No. 38,380.
    Opinion filed April 22, 1936.
    Rehearing denied May 5, 1936.

    Silber, Isaacs, Clausen & Woley, for appellants; Herbert W. Hirseh, of counsel. Max Murdock, for appellee.
   Mr. Justice Hebei

delivered the opinion of the court.


text:
    Western Suburban Finance and Thrift Company, appellee, v. Edward A. Graham et al., appellants.
    Gen. No. 38,381.
    Opinion filed April 22, 1936.
    Rehearing denied May 5, 1936.
    Silber, Isaacs, Clausen & Woley, for appellants; Herbert W. Hirseh, of counsel. Max Murdock, for appellee.
   Mr. Justice Hebei

delivered the opinion of the court.


text:
    South Shore Securities Company, appellee, v. John E. Newberg et al., appellants.
    Gen. No. 38,420.
    Opinion filed April 22, 1936.
    Albert 0. Olson, for appellants. No appearance for appellee.
   Mr. Justice Hebei

delivered the opinion of the court.


text:
    Anthony Balcunas and Eleanor Balcunas, appellants, v. Anna Zebas et al., appellees.
    Gen. No. 38,537.
    Opinion filed April 22, 1935.
    Earl J. Walker, for appellants. No appearance for appellees.
   Mr. Justice Hebei

delivered the opinion of the court.


author: Mr. Justice Denis E.. Sullivan

text:
    Stanley Werdell, appellee, v. Walter Reczek and Katarzyna Reczek, appellants.
    Gen. No. 38,286.
    Opinion filed April 22, 1936.
    Nathan Schwartz, - for appellants; Bernard .Allen Fried, of counsel. Mitchell Kilanowski, for appellee.
   Mr. Justice Denis E.. Sullivan

delivered the opinion of the court.


author: Mr. Justice Denis E. Sullivan

text:
    John W. Keogh, appellee, v. E. J. Millspaugh, appellant.
    Gen. No. 38,392.
    Opinion filed April 22, 1936.
    Rosen, Francis & Rosen, for appellant; Frederic L. Goff, Jr., of counsel. No appearance for appellee.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.


author: Mr. Justice Denis É. Sullivan

text:
    Worth Merritt, appellee, v. Morton Sand and Gravel Company et al., appellants.
    Gen. No. 38,455.
    Opinion filed April 22, 1935.
    Rehearing denied May 5, 1936.
    Stearns & Jones, for appellants; Lloyd M. BcBride, of counsel. Chapman & Cutler, for. appellee; Roscoe C. Nash, of counsel.
   Mr. Justice Denis É. Sullivan

delivered the opinion of the court.


text:
    Joseph Stumpfel, appellant, v. Anna Stumpfel, appellee.
    Gen. No. 38,541.
    Opinion filed April 22, 1936.

      Edward T. Morris and Edward A. Biggs, Jr., for appellant. John J. Maciejewski, for appellee.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.


text:
    Louis Kontos, appellee, v. Mike Gagidis and Gust Gagidis, appellants.
    Gen. No. 38,572.
    Opinion filed April 22, 1936.
    Gilbert Melson, for appellants. Paul V. Pallaseh and Ewart Harris, for appellee. ,
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.


text:
    George F. Kremm, appellee, v. William H. Gehl et al., defendants, on appeal of William H. Gehl, appellant.
    Gen. No. 38,639.
    Opinion filed April 22, 1936.
    John J. McMahon, for appellant; Ernest A. Eklund and John M. Thornburn, of counsel. Mo appearance for appellee.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.


text:
    John C. Taylor, complainant, v. Carl Poch et al., defendants. Robert J. Watt, appellant, v. Howard K. Hurwith, appellee.
    Gen. No. 38,667.
    Opinion filed April 22, 1936.
    Cummings & Wyman, for appellant; Austin L. Wyman and Daniel P. Magle of counsel. Daniel Bomckill, for appellee; Frank E. Reiein and Edward H. White, of counsel.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.


author: Mr. Justice Matehett

text:
    In re Estate of Maria Turner, deceased. Mary Fletcher Brammer et al., appellants, v. Ferdinand W. Penn et al., appellees.
    Gen. No. 38,407.
    Opinion filed May 11, 1936.
    Rehearing denied June 11, 1936.
    Litsinger, Healy, Reid & Bye, Leon L. Drolet and John P. Conmy, for appellants; Daniel M. Healy, of counsel. Ellis & Westbrooks, Richard E. Westbrooks and Blaine G. Alston, for appellees Ferdinand W. Penn et al; Heber T. Dotson, William H. Haynes and Joseph E. Snowden, for appellees George W. Blackwell et al. Henry 0. Ferguson, for appellee Ida Williams; Heber T. Dotson, William H. Haynes and Richard E. Westbrooks, of counsel.
   Mr. Justice Matehett

delivered the opinion of the court.


text:
    Hercules Novelty Company, Inc., appellee, v. Lightner Publishing Corporation and Carroll E. Vetterick, appellants.
    Gen. No. 38,730.
    Opinion filed May 11, 1936.
    Kane, Northup, Rathbun & Ash, for appellants. Sugarman & Rothmann and Krohn & MacDonald, for appellee; Stuart B. Krohn, of counsel.
   Mr. Justice Matehett

delivered the opinion of the court.


text:
    The People of the State of Illinois ex rel. Sterling Cleaners and Dyers, Inc., et al., petitioners, v. The Circuit Court of Cook County and Benjamin P. Epstein, respondents.
    Gen. No. 38,486.
    Opinion filed May 13, 1936.
    Irving Breakstone, Martin J. McNally and Pines, Stein & Beber, for appellants; Alvin E. Stein, Alfred Broady and William Rosenthal, of counsel. Lavin & Jaffe, for appellees; Maurice Walk, William Jaffe, George S. Lavin and Ira S. Kolb, of counsel.
   Mr. Justice Hebei

delivered the opinion of the court.


text:
    Cleaning and Dyeing Plant Owners Association of Chicago et al., appellees, v. Edward A. Fink and Peacock Cleaners and Dyers, Ltd., appellants.
    Gen. No. 38,496.
    Opinion filed May 13, 1936.
    Irving Breakstone, for appellants. Lavin & Jaffe, for appellees; George S. Lavin, William Jaffe and Ira S. Kolb, of counsel.
   Mr. Justice Hebei

delivered the opinion of the court.


text:
    Cleaning and Dyeing Plant Owners Association of Chicago et al., appellees, v. Edward A. Fink and Peacock Cleaners and Dyers, Ltd., appellants.
    Gen. No. 38,497.
    Opinion filed May 13, 1936.
    Irving Breakstone, for appellants. Lavin & Jaffe, for appellees; George S. Lavin, William Jaffe and Ira S. Kolb, of counsel.
   Mr. Justice Hebei

delivered the opinion of the court.


text:
    Provident Mutual Life Insurance Company of Philadelphia et al., appellees, v. Wilton B. Martin, appellant.
    Gen. No. 38,916.
    Opinion filed May 21, 1936.
    Rehearing denied May 29, 1936.
    Charles A. Williams and J. B. Hugg, for appellant. Gordon, Pierce, Edmonds & Martin, for appellee; Elbridge Bancroft Pierce, of counsel.
   Mr. Justice Matehett

delivered the opinion of the court.


author: Mr. Presiding Justice Scanlan

text:
    The People of the State of Illinois ex rel. Lilla H. Walter, appellee, v. Martin Durkin et al., appellants.
    Gen. No. 38,099.
    Opinion filed May 26, 1936.
    Rehearing denied June 12, 1936.
    Otto Kerner, Attorney General, for appellants; W. 0. Clausen, E. B. Dickerson, Assistant Attorney General, afid J. J. Neiger, of counsel. Michael F. Ryan, for appellee.
   Mr. Presiding Justice Scanlan

delivered the opinion of the court.


text:
    Charles Breyer et al., appellants, v. Edna E. Andrews et al., defendants. Clara Dierschmidt, appellee.
    Gen. No. 38,422.
    Opinion filed May 26, 1936.
    Jacob Levy, for apimllants; Edward McTiernan, of counsel. Owens & Owens, for appellee.
   Mr. Presiding Justice Scanlan

delivered the opinion of the court.


text:
    R. B. Hayward Company, appellant, v. The Lundoff-Bicknell Company, appellee.
    Gen. No. 38,433.
    Opinion filed May 26, 1936.
    Rehearing denied June 12, 1936.
    C. S. Bentley Pike and Norman A. Boholm, for appellant. Sonnensehein, Berkson, Lautmann, Levinson & Morse, for appellee; Jesse H. Brown, of counsel.
   Mr. Presiding Justice Scanlan

delivered the opinion of the court.


text:
    David Kahn, Inc., appellant, v. Sales Stimulators, Inc., appellee.
    Gen. No. 38,454.
    Opinion filed May 26, 1936.
    Rudolph and Arthur E. Frankenstein, for appellant. Ryan, Condon & Livingston, for appellee; John M. Tuohy and David J. Greenberg, of counsel.
   Mr. Presiding Justice Scanlan

delivered the opinion of the court.


text:
    Anton Bedner, defendant in error, v. Frank Kajer et al., defendants. Paul Holubek and Julia Holubek, plaintiffs in error.
    Gen. No. 38,463.
    Opinion filed May 26, 1936.
    Rehearing denied June 12, 1936.
    Jose Ward Hoover, for plaintiffs in error; Morton S. Cressy, of counsel. Edward Francis Herdlieka, for defendant in error.
   Mr. Presiding Justice Scanlan

delivered the opinion of the court.


text:
    Frank B. Arata, appellee, v. Fremont Gordon, appellant.
    Gen. No. 38,506.
    Opinion filed May 26, 1936.
    Henry Blumberg and A. Charles Lawrence, for appellant. Pritzker & Pritzker, for appellee; Richard Weinberger, of counsel.
   Mr. Presiding Justice Scanlan

delivered the opinion of the court.


text:
    Selma Conn, appellee, v. Chicago Musicians’ Club, appellant.
    Gen. No. 38,528.
    Opinion filed May 26, 1936.
    Samuel Sehein, for appellant; Roy S. Gaskill, of counsel. Blanksten & Lansing, for appellee.
   Mr. Presiding Justice Scanlan

delivered the opinion of the court.


text:
    American Trust and Safe Deposit Company, plaintiff, v. Sherman Garage Company et al., defendants. H. R. Halterman et al., appellants, v. Robert Bass et al., appellees.
    Gen. No. 38,567.
    Opinion filed May 26, 1936.
    Max Richmond Kargman, for appellants; Frank E. Reiein and Irwin A. Goodman, of counsel. Wilson & Mellvaine, by William B. Hale and Calvin F. Selfridge, and Scott, MacLeish & Falk, by George W. Swain, for appellees.
   Mr. Presiding Justice Scanlan

delivered the opinion of the court.


text:
    Edwin L. Brashears, appellee, v. James C. O’Brien, appellant.
    Gen. No. 38,647.
    Opinion filed May 26, 1936.
    McCarthy & Toomey, for appellant; John E. Toomey, of counsel. No appearance for appellee.
   Mr. Presiding Justice Scanlan

delivered the opinion of the court.


text:
    Theodore J. Johnson, appellant, v. Theodore A. Buenger, appellee.
    Gen. No. 38,676.
    Opinion filed May 26, 1936.
    Markman, Donovan & Sullivan, for appellant; Henry O. Nickel, of counsel. Harry Z. and Bernard Perel, for appellee; Abraham H. Mailer and Isadore Brandzel, of counsel.
   Mr. Presiding Justice Scanlan

delivered the opinion of the court.


author: Mr. Justice Friend

text:
    Esther Samuel, appellee, v. Jacob Samuel, appellant.
    Gen. No. 38,291.
    Opinion filed May 26, 1936.
    Seymour N. Cohen, for appellant; Grenville Beardsley, of counsel. Leslie H. Whipp and David Lefkovits, for appellee.
   Mr. Justice Friend

delivered the opinion -of the court.


text:
    In re Estate of Eugenia Crimp Bridge, deceased. The First National Bank of Chicago, appellant, v. Walter Crimp et al., appellees.
    Gen. No. 38,325.
    Opinion filed May 26, 1936.
    Winston, Strawn & Shaw, for appellant; James H. Cartwright, of counsel. Ivor Jeffreys, for appellees.
   Mr. Justice Friend

delivered the opinion of the court.


text:
    Marie Conroy, appellee, v. Mrs. Harry J. Renn, appellant.
    Gen. No. 38,405.
    Opinion filed May 26, 1936.
    W. Harold Rutherford, for appellant; Richard E. Keogh, of counsel. John E. Johnson, for appellee; Clyde C. Fisher, of counsel.
   Mr. Justice Friend

delivered the opinion of the court.


text:
    John Chrenka and Florence Chrenka, appellees, v. William D. Meyering, appellant.
    Gen. No. 38,457.
    Opinion filed May 26, 1935.
    William J. Flaherty, for appellant; George H. Mason, of counsel. Kabaker & Kabaker, for appellees; Julius L. Kabaker, of counsel.
   Mr. Justice Friend

delivered the opinion of the court.


text:
    Hobart Brothers Company, defendant in error, v. Louis G. Tatter et al., plaintiffs in error.
    Gen. No. 38,469.
    Opinion filed May 26, 1936.
    Roy S. Gaslrill, for certain plaintiff in error. Rothbart, Peterson & Rosenfield, for defendant in error.
   Mr. Justice Friend

delivered the opinion of the court.


text:
    Philip A. Naughton, appellant, v. J. S. Bache et al., appellees.
    Gen. No. 38,534.

      Opinion filed May 26, 1936.
    Frank L. Hume, for appellant. Townley, Wild, Campbell & Clark, for appellees; Morris Townley, of counsel.
   Mr. Justice Friend

delivered the opinion of the court.


text:
    Isabel Heneghan, appellee, v. Carson Pirie Scott and Company, appellant.
    Gen. No. 38,830.
    Opinion filed May 26, 1936.
    Robertson, Crowe & Spence, for appellant; Carl E. Abrahamson, of counsel. Charles E. Smith, for appellee; Irving R. Mandelson, of counsel.
   Mr. Justice Friend

delivered the opinion of the court.


author: Mr. Justice John J. Sullivan

text:
    The People of the State of Illinois ex rel. John S. Rusch, defendant in error, v. Henry Lynch et al., plaintiffs in error.
    Gen. No. 38,387.
    Opinion filed May 26, 1936.
    Haas & Leffmann, for plaintiffs in error; John F. Haas, of counsel. Thomas J. Courtney, State’s Attorney, for defendant in error; John F. Cashen, Jr., of counsel.
   Mr. Justice John J. Sullivan

delivered the opinion of the court.


text:
    The National Bank of the Republic, complainant, v. James K. Sweney et al., defendants. Charles E. Bartley, appellant, v. Paul Corkell, appellee.
    Gen. No. 38,409.
    Opinion filed May 26, 1936.
    C. Lysle Smith, for appellant; John Alden Powers, of counsel. Milton Hart, for appellee; Max Raphael, of counsel.
   Mr. Justice John J. Sullivan

delivered the opinion of the court.


text:
    In re Estate of Melbert W. Lorch. State Mutual Life Assurance Company, appellant, v. Harry S. Lorch, appellee.
    Gen. No. 38,474.

      Opinion filed May 26, 1936.
    Rehearing denied June 12, 1936.
    Defrees, Buckingham, Jones & Hoffman, for appellant; Arthur O. Graves, of counsel. Blech & Herson and Reuben Freedman, for appellee.
   Mr. Justice John J. Sullivan

delivered the opinion of the court.


text:
    In re Estate of Melbert W. Lorch. Equitable Life Assurance Society of the United States, appellant, v. Harry S. Lorch, appellee.
    Gen. No. 38,487.
    Opinion filed May 26, 1936.
    Mayer, Meyer, Austrian & Platt, for appellant; Frederic Burnham and Miles G. Seeley, of counsel. Blech & Herson and Reuben Freedman, for appellee.
   Mr. Justice John J. Sullivan

delivered the opinion of the court.


text:
    In re Estate of Melbert W. Lorch. New England Mutual Life Insurance Company, appellant, v. Harry S. Lorch, appellee.
    Gen. No. 38,488.
    Opinion filed May 26, 1936.
    Rehearing denied June 12, 1936.
    Judah, Reiehmann, Trumbull, Cox & Stern, for appellant. Blech & Herson and Reuben Freedman, for appellee.
   Mr. Justice John J. Sullivan

delivered the opinion of the court.


author: Mr. Presiding Justice Huffman

text:
    Second District.
    In re Last Will and Testament of James Larkins, deceased. City Trust and Savings Bank, as executor of the last will and testament, of James Larkins, deceased, appellant, v. Nolia Eyrich et al., appellees.
    Gen. No. 8,972.
    Opinion filed April 13, 1936.
    A. L. & C. M. Granger, for appellant. H. H. Whittemore> for appellees.
   Mr. Presiding Justice Huffman

delivered the opinion of the court.


text:
    Cletus Rielly, a minor, by Martha Rielly, his mother and next friend, appellant, v. Fannie Hamilton, appellee.
    Gen. No. 9,027.

      Opinion filed April 13, 1936.
    B. J. Knight and J. E. Goembel, for appellant; Perley T. Lupton, of counsel. Frank E. Maynard, for appellee.
   Mr. Presiding Justice Huffman

delivered the opinion of the court.


text:
    The People of the State of Illinois ex rel. Harry H. Holz, appellee, v. City of Kankakee et al., appellants.
    Gen. No. 9,039.
    Opinion filed April 13, 1936.
    Rehearing denied July 7, 1936.
    "Victor N. Cardosi and T. R. Johnston, for appellants. Noel A. Diamond, for appellee.
   Mr. Presiding Justice Huffman

delivered the opinion of the court.


text:
    Alfred Mess, appellant, v. Seth L. Pettit, appellee.
    Gen. No. 9,043.
    Opinion filed April 13, 1936.
    Bell, Farrar & Scott, for appellant; Earl L. Scott, of counsel. Stafford & Schoede, for appellee.
   Mr. Presiding Justice Huffman

delivered the opinion of the court.


author: Mr. Justice Dove

text:
    Joseph Ingrassia and Nunzio Ingrassia, appellants, v. Daisy K. Magoon and Ezra P. Magoon, appellees.
    Gen. No. 8,944.
    Opinion filed April 13, 1936.
    North, Gibboney & North, for appellants. Hall & Dusher, for appellees.
   Mr. Justice Dove

delivered the opinion of the court.


text:
    Lawrence H. Williams, administrator of the estate of Stanley Buches, deceased, appellee, v. Chicago and North Western Railway Company, appellant.
    Gen. No. 8,993.
    Opinion filed April 13, 1936.
    D. T. Smiley, Nelson J. Wilcox and Nelson Trottman, for appellant. J. J. McCauley, for appellee.
   Mr. Justice Dove

delivered the opinion of the court.


text:
    Embert Erickson, administrator of the estate of Earl J. Erickson, deceased, appellee, v. Fred Ball, appellant.
    Gen. No. 9,012.
    Opinion filed April 13, 1936.
    Wm. Biester, for appellant. Alexander J. Strom, Harold C. Sewell and Owen M. Johnson, for appellee,
   Mr. Justice Wolfe

delivered the opinion of the court.


text:
    Annie Dennehy, appellee, v. W. A. Wood Company, appellant.
    Gen. No. 9,028.
    Opinion filed April 13, 1936.
    Bartley & Tounge, for appellant. Cassidy & Knobloek; for appellee.
   Mr. Justice Wolfe

delivered the opinion of the court.


text:
    Stanley Boski, appellee, v. Anthony Durka, appellant.
    Gen. No. 9,031.
    Opinion filed April 13, 1936.
    J. A. Miller, for appellant. Gerald 0. Snyder, for appellee.
   Mr. Justice Wolfe

delivered the opinion of the court.


text:
    J. Edward Radley, appellant, v. Phalen and Company, Inc., et al., appellees.
    Gen. No. 9,040.
    Opinion filed April 13, 1936.
    Leo Cavanaugh, for appellant; George W. Hunt, of counsel. Bartley & Tounge, for appellees.
   Mr. Justice Wolfe

delivered the opinion of the court.


text:
    John Hodak and Marie Hodak, appellees, v. P. J. Marlaire, appellant.
    Gen. No. 9,046.

      Opinion filed April 13, 1936.
    Rehearing denied May 5, 1936.
    E. A. Mareotte and Chas. D. Henry, Jr., for appellant. Mayhew & Drolet, for appellees.
   Mr. Justice Wolfe

delivered the opinion of the court.


author: Mr. 'Presiding Justice Huffman

text:
    James H. Hooper, appellant, v. Marie Ellemund and Edmund Kelly, appellees.
    Gen. No. 9,055.
    Opinion filed May 15, 1936.
    Rehearing denied June 20; 1936.
    James H. Hooper, pro se. Johan Waage, for appellees; William Daniel Johnson, of counsel.
   Mr. 'Presiding Justice Huffman

delivered the opinion of the court.


text:
    Leader Ice Cream Company, appellant, v. John Doy, appellee.
    Gen. No. 9,008.
    Opinion filed May 15, 1936.
    Golden & Golden, for appellant. George W. Field, for appellee.
   Mr. Justice Dove

delivered the opinion of the court.


text:
    Ruth A. Bailey, administrator de bonis non of the estate of Lindy E. Bailey, deceased, appellee, v. Harvey Kyle, appellant.
    Gen. No. 9,036.
    Opinion filed May 15, 1936.
    Wm. Biester, for appellant. David R. Joslyn, Jr., and William L. Pierce, for appellee.
   Mr. Justice Dove

delivered the opinion of the court.


author: Mr. Justice Wolfe

text:
    William J. Lynn, administrator of the estate of Raymond J. Lynn, deceased, appellee, v. Bert Haff, appellant.
    Gen. No. 9,044.
    Opinion filed May 15, 1936.
    Lord & Parker, for appellant; Maurice F. Lord and Gilbert L. Wood, of counsel. Frank A. McCarthy and Charles A. O’Connor, for appellee; Frank A. McCarthy, Bernard F. Martin and James C. O’Brien, Jr., of counsel.
   Mr. Justice Wolfe

delivered the opinion of the court.


author: Per curiam.

text:
    Third District.
    George Fisher, administrator of the estate of Blanch Hopson Fisher, deceased, appellant, v. Russell Wittler, appellee.
    Gen. No. 8,936.
    Opinion filed November 16, 1935.
    Rehearing granted January 7, 1936.
    (See 285 Ill. App. 261.)
    Wilson & Sehmiedeskamp, for appellant. Lancaster & Nichols, for appellee.
   Per curiam.


author: Mr. Presiding Justice Davis

text:
    Mary Coultis, appellee, v. Illinois Terminal Company, appellant.
    Gen. No. 8,938.
    Opinion filed April 17, 1936.
    Rehearing denied May 27, 1936.
    Frank K. Lemon, Wirt Herrick and E. Bentley Hamilton, for appellant. Louis O. Williams and Emerson M. Williams, for appellee.
   Mr. Presiding Justice Davis

delivered the opinion of the court.


text:
    Arthur Burton, appellee, v. W. A. Doss, appellant.
    Gen. No. 8,943.
    Opinion filed April 17, 1936.
    W. A. Doss and B. E. Morgan, for appellant. N. E. Hutson, for appellee.
   Mr. Presiding Justice Davis

delivered the opinion of the court.


text:
    Frank P. Weindorf, appellee, v. B. H. Keck, appellant.
    Gen. No. 8,961.
    Opinion filed April 17, 1936.
    C. Everett Smith and C. Marvin Hamilton, for appellant. Edwin C. Mills and Russell, Murphy, Curran & Pearson, for appellee.
   Mr. Presiding Justice Davis

delivered the opinion of the court.


text:
    Helen Keckich, appellant, v. New England Mutual Life Insurance Company and Thomas J. Keckich, appellees.
    Gen. No. 8,980.

      Opinion filed April 17, 1936.
    Green & Costigan and William C. Wines, for appellant. Gillespie, Burke & Gillespie, for certain appellee.
   Mr. Presiding Justice Davis

delivered the opinion of the court.


author: Mr. Justice Allaben

text:
    John W. Cherry, appellant, v. Aetna Casualty and Surety Company, appellee.
    Gen. No. 8,948.
    Opinion filed April 17, 1936.
    Rehearing denied May 27, 1936.
    Hutton & Clark and Gunn, Penwell & Bindley, for appellant. Acton, Acton & Baldwin, for appellee; W. M. Acton, of counsel.
   Mr. Justice Allaben

delivered the opinion of the court.


text:
    In re Estate of Enoch Brock, deceased. Electa Fenstermaker, appellee, v. Mattie Brock, appellant.
    Gen. No. 8,950.
    Opinion filed April 17, 1936.
    Rehearing denied May 27, 1936.
    Whitmore & Whitmore, for appellant. Costigan & Wollrab, for appellee.
   Mr. Justice Allaben

delivered the opinion of the court.


text:
    Agnes Fromme, appellant, v. City of Girard, appellee.
    Gen. No. 8,963.
    Opinion filed April 17, 1936.
    R. W. Gill and Leo J. Scott, for appellant. Samuel 0. Smith, Jr., for appellee.
   Mr. Justice Allaben

delivered the opinion of the court.


text:
    William C. Means, executor of the last will and testament of W. L. Green, appellee, v. H. W. Green et al., appellants.
    Gen. No. 8,975.
    Opinion filed April 17, 1936.
    Thomas S. Weldon, for appellants. William R. Bach and William J. Bach, for appellee.
   Mr. Justice Allaben

delivered the opinion of the court.


author: Mr. Justice Fulton

text:
    Herman Stroops and Charles M. Peirce, plaintiffs in error, v. David P. Jones and Forest Ackman, defendants in error.
    Gen. No. 8,929.
    Opinion filed April 17, 1936.
    Charles M. Peirce, for plaintiffs in error. Wm. J. Long and T. E. Bottenberg, for defendants in error.
   Mr. Justice Fulton

delivered the opinion of the court.


text:
    Paul J. Melahn, appellant, v. Charles Mayhew, appellee.
    Gen. No. 8,951.
    Opinion filed April 17, 1936.
    A. J. B. Showalter and O. B. Dobbins, for appellant. Frank B. Leonard and John L. Franklin, for appellee.
   Mr. Justice Fulton

delivered the opinion of the court.


author: Mr. Presiding Justice Edwards

text:
    Fourth District.
    Arthur F. McClain, appellant, v. Brotherhood of Railroad Trainmen, appellee.
    Opinion filed May 8, 1936.
    Frank C. Smith, for appellant. Kramer, Campbell, Costello & Wieehert, for appellee.
   Mr. Presiding Justice Edwards

delivered the opinion of the court.


author: Mr. Justice Murphy

text:
    The W. Q. O’Neall Company, appellee, v. Commissioner of Highways, Town of Deming, appellant.
    Opinion filed May 8, 1936.
    Frank E. Trobaugh, for appellant; Stephen E. Brondos, of counsel. Paul A. Jones and Nealy I. Glenn, for appellee.
   Mr. Justice Murphy

delivered the opinion of the court.


author: Mr. Justice Stone

text:
    Melba Kreitner, appellee, v. Eugene W. Kreitner, appellant.

      Opinion filed May 8, 1936.
    Eugene W. Kreitner, pro se; Frank E. Liekhalter, oí counsel. Kramer, Campbell, Costello & Wieehert, for appellee.
   Mr. Justice Stone

delivered the opinion of the court.


text:
    Frank C. Toombs, trading as Frank C. Toombs and Company, appellee, v. James Lewis, appellant.
    Opinion filed May 8, 1936.
    Rehearing stricken June 29, 1936.
    F. C. Meserve and Sumner ¿^Lewis, for appellant. Fred W. Gee, for appellee; John Sebat, of counsel.
   Mr. Justice Stone

delivered the opinion of the court.


text:
    The People of the State of Illinois ex rel. Village of Xenia and C. R. Book, Appellees, v. Glenn Lee and Grace Lee, Appellants.
    Opinion filed May 29, 1936.
    Harry P. Johnson, of Salem, Alfred S. Pfaff and William A. Miller, for appellants.
    E. Harold Wineland, State’s Attorney, for appel-lees.
   Mr. Justice Stone

delivered the opinion of the court. In 1933 Grace Lee opened a restaurant in the Village of Xenia, and sold beer and later liquor when the sale of the same was permitted by the law. She complied with Federal, State and Village requirements by obtaining licenses from the respective agencies thereof. Her village license for the year 1934-1935 was to expire on April 30,1935, and she applied for and obtained a renewal thereof, a short time prior to the expiration date of the old license which renewal was granted by one H. E. Junkins, president of the village and liquor commissioner for the same.

On June 1,1935, a complaint was filed by the People of the State of Illinois ex rel. The Village of Xenia naming as defendants said Grace Lee and her husband Glenn Lee, who operated a radio shop in the same building with the restaurant which building was owned by him. The complaint set up a certain set of facts and prayed an injunction against the sale of liquor on defendants’ premises, that the liquor be confiscated and the place closed for one year as a nuisance. A notice of the filing of the complaint was served upon defendants on June 3, 1935.

On June 13, 1935, plaintiff filed a motion for a temporary injunction against defendants to which motion defendants on June 18, 1935, filed a motion to strike and on the same day filed a motion to dismiss the complaint. The court sustained the motion to strike and denied plaintiff’s motion for temporary injunction and granted defendants’ motion to dismiss plaintiff’s complaint, giving plaintiff leave to file an amended complaint.

On June 27, 1935, plaintiff Village of Xenia filed an amended complaint, adding as plaintiff, O. E. Book, liquor control commissioner, and setting* up additional facts, asking for substantially the same relief as in the first complaint.

On July 8,1935, defendants filed a motion to dismiss the plaintiff’s amended complaint and this motion was granted by the court, leave being given plaintiffs to file a second amended complaint.

On July 11, 1935, plaintiffs filed an amendment to the amended complaint setting out certain additional facts and praying for the same relief as in the amended complaint. On July 19, 1935, defendants filed a motion to dismiss the amended complaint as amended, which motion was denied and the defendants were ruled to file answer.

On August 13,1935, defendants Grace Lee and Glenn Lee each filed separate answers.

The suit is abated as- to Glenn Lee.

Numerous issues were raised by the pleadings.

Upon hearing the court found that the equities were with the plaintiff and entered its decree, finding among other things that the license to sell alcoholic liquor theretofore issued to Grace Lee on or about April 24, 1935, by H. E. Junldns expired April' 30,1935, and was void after that date; that since that date defendants Grace Lee and Glenn Lee had been unlawfully selling alcoholic liquor at their place of business in Xenia; that the defendant Grace Lee had paid to plaintiff the sum of $225 in payment of said void license and that said defendants had sold alcoholic liquor within said village at said place of business for a period of four months, or one-third of one year without having any license from said village, and that part of said sum of money should be returned to the defendant, Grace Lee.

Upon said finding the court ordered that the license theretofore issued to Grace Lee on or about April 24, 1935, authorizing her to sell alcoholic liquors at their place of business was void, and ordered said license canceled and revoked. Said decree further ordered said Grace Lee to surrender said license to C. E. Book, liquor control commissioner of said Village of Xenia for cancellation, and said C. E. Book and the said Village of Xenia to pay to the said Grace Lee upon the surrender of said license the sum of $150 provided said lease wras so surrendered. The court further ordered that the defendants be restrained and enjoined from selling or keeping for sale any alcoholic liquors whatsoever at the aforesaid place of business until they or either of them first obtained a village license from said village to sell and keep liquors upon said premises. The court further ordered defendants to pay the costs of the proceeding.

An appeal was taken to this court. Appellants'assign errors on practically all findings and orders of the court. Appellees filed in this court two pleas of release of errors, which allege in substance that defendants subsequent to the decree entered in this cause, on the 6th day of September, 1935, voluntarily accepted the benefits of said decree in this; that among other things said decree provided that Grace Lee should surrender her license to C. B. Book, liquor control commissioner of said Village of Xenia for cancellation, and that the said C. B. Book was authorized by said decree to pay to the said Grace Lee the sum of $150 upon the surrender of such license; that on September 7,1935, the said appellants Grace Lee and Glenn Lee each having notice of said decree, appellant Grace Lee surrendered the said license to the said C. B. Book, as she was decreed to do and requested payment of the said sum of $150 provided in said decree, and that she did so voluntarily and that said amount was paid to her; that she retained said money and that the city council of the Village of Xenia afterwards ratified the payment to the said Grace Lee of said amount.

To these pleas defendants filed answer which amounts to denials of the matters recited in the pleas most of which were matters and things taken from the decree itself. Appellee filed its replication to said answer, said replication tendering an issue in substance whether appellants did accept voluntarily the benefits of the decree aforesaid in manner and form as set out in said pleas.

There seems to be no question notwithstanding the answer to the pleas, that the said Grace Lee did voluntarily tender her license back to be canceled and that she did then and there receive the $150 provided for her in said decree, retained the same, and that the action of the said Book in paying said amount of money in pursuance of said decree was afterwards ratified by appellee.

By the act of surrendering her license pursuant to the order of court, appellant Grace Lee did the major thing that was required of her as a result of this litigation. It was a voluntary surrender. She could have appealed the case then as easily as she has since appealed it, and without difficulty could have filed a bond and obtained supersedeas pending said appeal.

A still stronger argument in favor of the plea of release of errors is that the said Grace Lee accepted that which the decree provided for her. The same reasoning applies to the acceptance of the $150 as applied to the surrender of the lease; she did not have to do so; she could have taken her appeal then.

Our courts have consistently held that one cannot take the benefits that the decree provides for him and yet assign error and have an appeal on such matters- in a decree or judgment as he does not approve of. It is unnecessary to discuss the illogical effects of allowing such appeals.

We are of the opinion that the record in this case bears out the matters and things alleged in the plea,— that the plea of release of errors is good, and that having accepted the benefit of the decree, appellant cannot now complain that said decree is erroneous in other parts. In other words, appellant Grace Lee has released all errors which she now complains of. We think this holding is fully born out by the following authorities: Langher v. Glos, 276 Ill. 342; Kellner v. Schmidt, 237 Ill. App. 428; Thomas v. Negus, 2 Gilm. (Ill.) 700; Morgan v. Ladd, 2 Gilm. (Ill.) 414; Hartshorn v. Potroff, 89 Ill. 509; Scott v. Scott, 304 Ill. 267; Gridley v. Wood, 305 Ill. 376; Boylan v. Boylan, 349 Ill. 471; Chicago Title & Trust Co. v. Stut, 271 Ill. App. 32; Trapp v. Off, 194 Ill. 287; Fishburn v. Green, 291 Ill. 350.

The appeal is dismissed.

Appeal dismissed.


text:
    First-Trust Joint Stock Land Bank of Chicago, Appel-lee, v. Luella Cutler et al., Appellants. Elmer Cutler, Appellee.
    Gen. No. 8,989.
    Opinion filed June 3, 1936.
    Springstun & Springstun, of Pana, for appellants.
    Dove & Dove, of Shelbyville, for appellee.
   Mr. Justice Allaben

delivered the opinion of the court.

This was an action brought by the First-Trust Joint Stock Land Bank of Chicago, an Illinois corporation, to foreclose a mortgage executed by the defendants appellants on December 21, 1922. At the time the mortgage was signed one of the appellants, Elmer Cutler, who owned an undivided one-fourth interest in the mortgaged premises, was a minor. The mortgage was signed on behalf of the minor by Alvin R. Cutler, his guardian, pursuant to a petition and order of the county court of Shelby county so to do. The mortgage note was payable in instalments, the last instalment maturing on May 1, 1957.

After the institution of this suit the minor defendant, Elmer Cutler, entered his special and limited appearance in the case for the sole purpose of making a motion to quash the service and return of process, and to dismiss the suit. Later an amendment was filed to said motion. The other defendants also filed motions to dismiss, all assigning as their reasons for granting the motion that at the time the note and mortgage were executed Elmer Cutler was a minor ,• that the signature of the guardian on the mortgage was void, being made without the court’s authority; that the note and mortgage by their terms mature in 1957, this being beyond the time when the minor reached his legal majority; and that the note and mortgage, therefore, were void under the statute; that the circuit court has no jurisdiction to grant the relief sought, since the mortgage itself showed that it involved the interest of a minor; finally, that the matter involved in this suit was involved in a suit covering the same matter, and the identical parties, in the county court; that, therefore, the action is barred.

After a hearing on the motions to dismiss, the trial judge filed a written opinion, in which he found that he had jurisdiction of the proceedings; that the mortgage was not enforceable as against the minor defendant; that the statute in reference to the maturity of the note and mortgage was not followed, but that the unauthorized execution of the mortgage by the guardian did not render the mortgage invalid as to the other defendants.

The trial court on January 20,1936, entered a docket order dismissing the cause as to the defendant, Elmer Cutler, on his motion. The motion filed by the other defendants for dismissal was denied. A rule was entered ordering the said defendants to answer the petition within 10 days from the date of the order. From this order defendants appellants appealed to this court, notice of appeal being filed on January 20, 1936. On February 11,1936, an order of the trial court was filed, containing the same findings as set forth in the court’s written opinion, including the same order as was entered on January 20,1936, and, in addition, appointing a receiver for the premises involved in this suit.

On February 24, 1936, the plaintiff appellee filed a notice of appearance and cross appeal. Neither the order from which the original appeal in this case was taken, nor the draft order, filed on February 11, 1936, finally disposed of the rights of all the parties to this suit.

While it is argued to the contrary, it seems perfectly clear to this court that when an order was entered ruling certain of the defendants to answer within 10 days it left the complaint standing without any answer being filed. Such a situation of the pleadings is not a final disposition of the case in the trial court in so far as it concerns the defendants who were ordered to answer. From such portion of the order appeal will not lie.

In Miller v. Bunn, 336 Ill. 203, in which a demurrer was filed, overruled, and an appeal taken, the court said: “The only order or decree rendered was one overruling the demurrer, but no final disposition of the bill was made by any order. Overruling the demurrer left the bill standing without any answer to it. Such an order was not a final disposition of the case and an appeal will not lie from such a decree.” The same situation pertains in the instant case. The order in this case did not terminate the litigation between the plaintiff and those parties who were ordered to answer. (Free v. Successful Merchant, 342 Ill. 27; People ex rel. Englum v. Curtis, 341 Ill. 628.)

It is contended by plaintiff appellee that the portion of the order of February 11, 1936, dismissing the complaint as to the minor defendant, Elmer Cutler, was a final disposition of the case, as to it in the trial court. It was from this portion of the order that the plaintiff appellee sought to prosecute its cross appeal. Rule 35 of the Illinois Civil Practice Act, Ill. State Bar Stats. 1935, ch. 110, ¶ 259, recites, in part, as follows: “Each appellee who desires to prosecute a cross appeal from all or any party of the judgment, decision, order or decree, and each co-party who did not join in the notice of appeal but who desires to join as appellant or to prosecute a separate appeal, shall, within 10 days after service of notice of appeal, serve a notice upon each party or attorney or firm of attorneys who signed the notice of appeal, and upon each appellee, or in case of a cross appeal upon each co-appellee, and file a copy thereof in the trial court.” Inasmuch as this rule is mandatory and not directory, and since the notice of cross appeal in this case was not filed until more than 10 days after the appellant’s notice of appeal, we are constrained to hold that such cross appeal is not effective.

For the reasons heretofore stated the appeal and cross appeal are hereby dismissed.

Appeal and cross appeal dismissed.