text:
    Rifkin & Hart, Inc., Appellant, v. S. Buchsbaum & Company, Appellee.
    Gen. No. 33,624.

      Opinion filed May 14, 1930.
    Herbert J. Friedman and Alec E. Weinrob, for appellant.
    Eisendrath, Solomon & Borden, for appellee; Jerome L. Abrahams, of counsel.
   Mr. Justice Ryner

delivered the opinion of the court.

The plaintiff brought suit in the municipal court of Chicago to recover the sum of $803.12, representing the principal amount of a note for $773.25 together with $27.37 accrued interest and $2.50 protest fees.

The defendant admitted execution of the note, but claimed a set-off in the amount of $397.80. The defendant claimed that it, at the request of the plaintiff, delivered diamonds of the cost value of $497.25 to a third party, Bouer & Gfoldstein; that Bouer & Gfoldstein became bankrupt and that the defendant received a dividend of $99.45 to apply on its claim, leaving a balance due it from the plaintiff of $397.80.

The trial judge entered two judgments in the cause. The first was in favor of the plaintiff for the sum of $375.45, the amount admitted by the defendant to be due, together with costs of suit to the date of the entry of the judgment. Four months later the court entered a final judgment that the plaintiff take nothing by his suit and that the defendant recover costs from the plaintiff.

Upon the trial of the case the plaintiff introduced the note in evidence and rested its case.

Herbert Buchsbaum testified as a representative of the defendant. He said that he had known Joseph Rif kin, president of the plaintiff, since he was a boy; that in October, 1927, Rifkin said he wanted some small diamonds and that the witness said he would let Rifkin have them at “exact cost, as an accommodation”; that Rifkin said to bill them to his firm, which the witness did; that later Rifkin said that the diamonds were for Bouer & Goldstein, a customer of his; that Rifkin requested that the diamonds be invoiced directly to Bouer & Goldstein for him, because by so doing immediate payment could be expected; that he told Rifkin that Bouer & Goldstein were competitors of the defendant and that he did not believe that their credit was any good; that Rifkin said that Bouer & Goldstein were financially responsible and that if the bill was sent direct to them for him he would see that the witness was paid. These diamonds were paid for.

The same witness further testified that in the following December Rifkin asked for some more diamonds to be delivered to Bouer & Goldstein upon the same basis as the previous transaction; that after the diamonds were delivered Rifkin telephoned asking “if he could have 90 days time on this lot.” He also said that he did not know any of the officials of Bouer & Goldstein and that he told Rifkin that he could have 90 days. He further stated that, when he demanded payment of the bill from Rifkin, the latter said that there was nothing in writing to indicate that he had guaranteed payment of the debt.

Bouer & Goldstein became bankrupt. The defendant filed a claim in the bankruptcy court against the estate for $497.25. It was in the usual form except in the body of it were inserted the words:

“Also guarantee of Joseph Rifkin of New York.” It was verified by Buehsbaum. He testified that he had some argument with the party who filled out the claim for him but that the above-quoted words were inserted because “I wanted it mentioned that Mr. Joseph Rifkin was responsible on this obligation because I did not want the bankruptcy court to understand that I was the sole creditor.” He also testified, without any .objection being interposed, that he sold the diamonds to the plaintiff.

It was stipulated that a Miss Goldfarb, an employee of the defendant, would, if present, testify to the conversations to which Buchsbaum testified.

Bifkin denied that he told Buchsbaum that he would pay for the diamonds or that any invoice was ever made out to him.

Copies of certain sheets of the defendant’s books were received in evidence, showing that the account in question was carried upon the defendant’s books as an obligation of Bouer & Goldstein.

Bifkin also testified that he did not tell Buchsbaum that he would pay for the diamonds but said that he did not remember whether he said that he would see that the bill was paid. At the time of the transaction in question Bouer & Goldstein were indebted to either Bifkin or his firm to the extent of $14,000.

Bach witness testified that his firm would receive no profit from the transaction if the invoice was paid. Bifkin admitted, in effect, that he told Buchsbaum he could not collect from the plaintiff because there was no written evidence of any obligation. He denied that he requested for himself 90 days ’ credit, and said that he asked that the credit be extended to Bouer & Gold-stein.

The first contention of the plaintiff is that its obligation, if any, was as guarantor, and that it is not bound by its agreement because it contravened the provisions of the statute of frauds, it not having been reduced to writing. No pleading was filed in the trial court which presented this issue. Counsel for the defendant have, however, discussed the question as if it was a matter of review in this court. Buchsbaum testified that he sold the diamonds to the plaintiff and that the president requested 90 days’ credit, which was granted. Bifkin, president of the plaintiff company, said that he did not agree to pay for the diamonds but could not remember whether he promised to see that they were paid for. The issue presented to the trial court was one of fact. Evidently he found the facts to be in accord with the testimony of Buchsbaum and we find nothing in the record which would warrant us in disturbing that finding.

The second and final proposition advanced on behalf of the plaintiff is that the defendant, by filing a claim in the bankruptcy proceeding and collecting a dividend, is estopped from claiming that the sale in question was made to the plaintiff. The case of Sartain v. Dixie Coal & Iron Co., 150 Tenn. 633, 266 S. W. 313, is the strongest authority cited in support of this contention. The rule in Tennessee is stated in the syllabus to be that, “Judicial estoppels are estoppels arising from sworn statements made in the course of judicial proceedings, generally in a former litigation, in the absence of a showing that the statement was made inadvertently or through mistake and are based on public policy and not upon prejudice to the adverse party, as in the case of equitable estoppels.”

The case of Heimann v. Kinnare, 92 Ill. App. 232, is also cited. The judgment of the court was reversed by the Supreme Court but on other grounds. The Appellate Court said in its opinion:

“It is further claimed that the court erred in allowing oral evidence to prove appellant’s title to the land on which the accident happened. The evidence of which complaint is made is as to what appellant testified to on the former trial as to his ownership of the land. The evidence was competent, it being an admission made in open court, which he is estopped to deny. Greenleaf’s Evidence, secs. 27 and 96; I Phillips on Evid. pp. 421 et seq., 432 and 459; Mason v. Park, 3 Scam. 532; Stribling v. Prettyman, 57 Ill. 371-7; Hensoldt v. Town of Petersburgh, 63 Ill. 111.”

It will be noted that the question arose upon a second trial between the same parties with the issues the same. Under such a state of facts the rule has been stated to be:

“It may be laid down as a general rule that a party will not be allowed in a subsequent judicial proceeding to take a position in conflict with a position taken by him in a former judicial proceeding, where the later position is to the prejudice of the adverse party, and the parties and the questions involved are the same. And it has been held that an admission made at the first trial, if reduced to writing or incorporated into a record of the case, will be binding at another trial of the case, unless the presiding justice, in the exercise of his discretion, thinks proper to relieve the party from it.” Ruling Case Law, Vol. 10, p. 702. The same authority, however, says: “But, ex vi termini, the rule underlying these propositions does not apply to suits in which the issues and the parties are not the same, nor to a position not precisely that taken on the prior proceeding,” citing, among other authorities, Snydacker v. Brosse, 51 Ill. 357. In that case the Supreme Court of this State said:
“It is urged, that appellee, having sworn, in her affidavit, that the property was her husband’s when she commenced the replevin suit, is estopped from now suing for any damage to it. Such an affidavit is, no doubt, strong evidence to prove that the property belonged to her husband, but at the same time it is not conclusive. She might, if she could, explain the affidavit, and show that the property belonged to her; and it is for the jury to say, from all the circumstances, whether she succeeded in the proof.”

In the case of Greenberg v. Stevens, 114 Ill. App. 483, this court said:

“There was proof tending to show that in the course of bankruptcy proceedings instituted by appellee’s mother, appellee before bringing the present suit had sworn that a small part of the property in question belonged to her mother and not to herself. It is therefore contended that she is now estopped from claiming this part and that the damages are excessive, even after the remittitur, because they include the value of the part. Whatever may be the rule elsewhere, under the law of this State no estoppel arises from the mere fact that appellee had previously sworn the goods belonged to somebody else. To have such conduct on her part operate as an estoppel in pais appellants should have shown further that by reason thereof and in reliance thereon they had altered their position to their detriment,” citing Hefner v. Vandolah, 57 Ill. 520 and Snydacker v. Brosse, 51 Ill. 357.

We think that the rule announced in the two cases just quoted from is applicable to the instant case. According to the testimony of Buchsbaum, Bifkin said he wanted to buy the diamonds but that he wanted the transaction to be conducted so that it would appear that the defendant was making the sale directly to Bouer & Groldstein. The reason for this, given by him, is a plausible one. Bouer & Groldstein were indebted to Bifkin’s firm to the extent of $14,000. It is a matter of common knowledge that many debtors will delay or decline to make payment to their creditors but at the same time pay promptly to other parties.

The judgment of the municipal court of Chicago is affirmed.

Judgment affirmed.

Wilsoh, P. J., concurs,

Holdom, J., not participating.


source: Caselaw Access Project

author: Mr. Justice Ryner

license: Public Domain

text:
    H. S. Vandervoort, Plaintiff in Error, v. John T. Flaherty, Defendant in Error.
    Gen. No. 33,656.
    Opinion filed May 14, 1930.

      Loyal L. Smith, for plaintiff in error.
    Edmond W. Pottle and J. Glen Jacobs, for defendant in error.
   Mr. Justice Ryner

delivered the opinion of the court.

This proceeding is a writ of error to review an order of the municipal court of Chicago. On January 4, 1927, the plaintiff obtained a default judgment, in a suit upon a promissory note, in the sum of $1,731.05, against the defendant. Garnishment proceedings were instituted against certain parties.

On July 9, 1927, the defendant filed his verified petition in which he set forth that he was a resident of the City of Dallas, Texas, that he had been adjudicated a bankrupt in the United States District Court, held in the City of Dallas, on January 31, 1927, and that on June 14,1927, he was duly discharged from liability on his debts and claims, existing on January 31, 1927.

Upon the trial, counsel for the defendant put in documentary evidence as follows:

1. The petition of the defendant which had been filed in the trial court, alleging his discharge in bankruptcy, and praying for the discharge of the garnishees and for a perpetual stay of the collection of the judgment.

2. A certified copy of a part of the schedule in bankruptcy, listing the judgment of the plaintiff.

3. A certified copy of the order adjudicating the defendant to be a bankrupt.

4. A certified copy of the order of discharge in bankruptcy. The order is in the usual form, discharging the defendant from all debts and claims provable against his estate, “except such debts as are by law excepted from the operation of a discharge in bankruptcy.”

5. A certified copy of the objections to the discharge of the defendant’s debt to him, filed by the plaintiff in the bankruptcy proceeding. They charge that during the years 1920 and 1921 the defendant misappropriated, embezzled and applied to his individual use, moneys of the Flaherty Candy Company, of which he was president, treasurer and business manager, as evidenced by checks totaling the sum of $2,842.12; that upon discovery of the defalcation the defendant was desirous of making an amicable adjustment and that the plaintiff, as a creditor of the defendant, accepted the note of the defendant for $1,421.06, which was reduced to judgment, without waiving any legal rights and upon condition that the note be paid at maturity. In what manner, if any, the plaintiff was defrauded, it is not made to appear.

6. The opinion and order of the judge who presided in the bankruptcy proceeding, reciting that the referee had failed to advise the court of the filing of objections, and directing that the order of discharge, previously entered, should stand.

The foregoing is all of the evidence offered or received on the trial. The trial court entered an order granting a perpetual stay of execution of the judgment obtained by the plaintiff.

The copies of the objections to the discharge of the bankrupt and the opinion and order of the judge of the United States Court, although admitted without any objection being made as to their competency, possess no evidentiary value other than to show that the order of discharge was made final and that the plaintiff had knowledge of and participated in the bankruptcy proceedings. '

The principal contention of counsel for the plaintiff is that the order of discharge was conditional and that the burden rested upon the defendant to show that the plaintiff’s claim represented a debt of such a character as to render it exempt from the operation of a discharge in bankruptcy. With this contention we cannot agree. The plaintiff’s judgment was the result # of a suit in assumpsit upon a promissory note. Furthermore there is no evidence in the record showing, or tending to show, that the defendant perpetrated any fraud or tortious wrong, of any character, upon the plaintiff.

As to the burden of proof, we are of the opinion that, from the mere fact that a person has his business affairs administered in a court of bankruptcy, no presumption arises that he has committed any fraudulent acts. The rule, as laid down by the Supreme Court of this State, where the defense of a discharge in bankruptcy is interposed, places the burden upon the party charging fraudulent or other illegal acts to prove them. Van Norman v. Young, 228 Ill. 425. There the court said:

“The court instructed the jury that the burden of proof was upon the plaintiffs in error to show that their debt from defendant in error was not barred by his discharge in bankruptcy. The authorities upon the question as to where rests the burden of proof in such case are not in entire harmony. We think, however, the better rule is that a discharge in bankruptcy is presumed to cover all the debts of the bankrupt, and that the introduction in evidence by the bankrupt, when sued, of a certified copy of the order of discharge, or other proof of his discharge in bankruptcy, is prima' facie a bar to the claim sued on, and that the burden of proof is upon the plaintiff to show that the claim sued on is not within the terms of the bankrupt’s discharge. (Collier on Bankruptcy, p. 174; Brandenburg on Bankruptcy, sec. 433.) In Sherwood v. Mitchell, 4 Denio 435, it is said: ‘The discharge is presumptive evidence of all the facts asserted in it, and is conclusive until overthrown by evidence of some fraud which by the act avoids it. Debts arising out of a violation of an official or private trust are not affected by it unless the creditor chooses to prove the demand under the bankruptcy. The discharge, it is true, is general in its terms, and prima facie is a discharge of the bankrupt from all his debts. But the creditor may, notwithstanding, show that his debt is' of the excepted class. The owns, however, is on him, and if he fails to make the proof the debt will be taken to be one of an ordinary character.’ ”

The judgment of the municipal court of Chicago is affirmed.

Judgment affirmed.

Wilson, P. J., concurs,

Holdom, J., not participating.


text:
    Anastazia Grabowski and Stephen R. Carynski, Appellees, v. William L. MacLaskey, Appellant.
    Gen. No. 34,220.

      Opinion filed May 14, 1930.
    Harold O. Mulks, for appellant.
    William C. Jaskowiak, for appellees.
   Mr. Justice Ryner

delivered the opinion of the court.

This is an appeal from an interlocutory order of the circuit court of Cook county, appointing a receiver in a foreclosure proceeding. The bill to foreclose was filed on January 4, 1930, and the material allegations are that:

1. The complainant, Anastazia Grabowski, is the legal owner and holder of a certain principal promissory note for the sum of $16,000, together with interest coupons, and all secured by a trust deed conveying the premises described in the bill.

2. A default occurred by reason of the failure to pay interest coupon number 8, for $480, which matured on December 2,1929.

3. A further default occurred on account of the failure to pay a premium of $5.20 on $2,000 of fire insurance, and a premium of $1.60 on a policy of tornado insurance in the sum of $1,000, both premiums being due on October 30, 1929.

4. The premises were sold on August 31, 1928, for the general taxes for the year 1927, amounting to $373.72 and were again sold on November 15, 1928, for the fourth instalment of a certain warrant amounting to $4.04. Each sale carried a penalty of 12 per cent.

5. Prior to the filing of the bill, the complainant elected to declare the entire indebtedness due, amounting to $16,480, together with interest.

6. The premises have a “steam heat plant and that it is necessary that fuel be bought to keep the plant running, and that said Andrew Nelson and Carrie Nelson, refuse to buy said fuel, which refusal may cause the entire building to become vacant because of lack of heat during the winter season, and that said premises are neglected and are in great danger of loss by reason of such neglect.”

7. Unless a receiver is appointed pending the hearing on the bill, the complainant will lose a large sum of money.

8. Each defendant liable for the indebtedness secured by the trust deed being foreclosed is financially irresponsible.

9. The premises are incumbered by a junior trust deed given to secure an indebtedness of $5,000.

William L. MaeLaskey, who brings this appeal, is named as a party defendant, together with others. The bill charges that the defendants have, or claim to have, some interest in the premises, as purchasers, mortgagees, lienholders, judgment creditors, tenants, or otherwise, but that their rights are subordinate to those of the complainant.

The bill does not show the value of the property being foreclosed. It does not even plead the conclusion that it is scant security. It does not allege a continuation, to the time of filing the bill, of the defaults charged, except the failure to pay the interest coupon for $480. An attempt is made to show waste by alleging that Andrew Nelson and Carrie Nelson refused to buy fuel for heating purposes and that the premises are neglected. There is no showing as to any obligation of the Nelsons in reference to maintaining the premises. It merely appears that, at some time, the Nelsons took the premises subject to the lien of the trust deed under foreclosure. There is no charge that MacLaskey, who evidently was the owner of the property, refused to furnish fuel. There is not even an allegation as to who the owner of the property is, or who is in possession.

The verification to the bill is as follows:

“Anastazia Grabowski and Stephen E. Carynski, Trustee, being first individually and separately sworn upon oath depose and say that they are the complainants in the above entitled cause; that they have read the above and foregoing Bill of Complaint, and that the same is true in substance and in fact, except as to such portions thereof as are stated on information and belief, and as to those parts they believe them to be true. ’ ’

This form of verification has been repeatedly held bad. An examination of the bill fails to disclose what allegations are based upon information and belief. To determine that, it would be necessary to search the mind of the pleader. If the bill contained false allegations and the complainant was prosecuted for perjury she could escape the penalties of the law by saying that the false allegations were based solely upon her belief, whether she, in fact, believed them to be true or false. Such an affidavit has no evidentiary value. Sherman Park State Bank v. Loop Office Bldg. Corp., 238 Ill. App. 450; Christian Hospital v. People, 223 Ill. 244.

Counsel for the complainant relies upon the case of Hulse v. Nash, 332 Ill. 500, to support his position that the affidavit is sufficient. But the case, in fact, refutes his contention. Among other things, the court said:

“The affidavit as to the representations made on information and belief is in the identical form approved in Farrell v. Heiberg, supra, but appellee insists that that part of the affidavit is defective because it is impossible to tell,what is sworn to positively and what is sworn to on information and belief. He states that the form should be, ‘except as to those matters therein stated to be on information and belief.’ It is true that an affidavit that the facts in a pleading ‘are true, except so far as they are stated on information and belief,’ has been held defective in failing to distinguish between matters stated on the pleader’s own knowledge and those stated on information and belief. (Christian Hospital v. People, 223 Ill. 244.) Such an affidavit, instead of referring the court to the pleading to ascertain what is represented to be on information and belief, requires a search of the mind of the pleader for what he intended to assert on information and belief. ’ ’

In Christian Hospital v. People, supra, the court in its opinion said:

“Another ground for insisting that the injunction was void is, that it was issued without any evidence of the truth of the statements made in the bill, and that the bill was not verified. There was an affidavit to the bill in which the complainant stated that the matters and things related in the bill were true in substance and fact, except so far as they were stated on information and belief, and it was defective in failing to distinguish between matters which were stated upon complainant’s own knowledge and those which were stated on information and belief.”

According to the affidavit of one Mary J. Sajewski, she on the evening of January 8,1930, deposited in the U. S.- Mail a notice of the making of an application for the appointment of a receiver of the premises on January 10, 1930. The affidavit states that one copy was' addressed to William L. MaeLaskey at 155 North Clark Street, Chicago. No reason is shown why an attempt was made to serve him by mail instead of personally.

On January 10,1930, a receiver of the premises was appointed. His bond was fixed at the sum of $1,000. The complainants ’ bond was waived. The only ground stated in the order for waiving it was that:

“Complainants’ bond, for good cause shown, is hereby expressly waived.”

It does not appear that MacLaskey was present or represented upon the hearing of the motion.

On January 21, 1930, on motion of his solicitors, the receiver’s bond was approved. Incorporated in the order of approval is the following:

“The Court finds that due notices had been served on all parties concerned and upon a full hearing of the subject matter herein, the Court is of the opinion that the complainants’ bond, for a good cause shown, should be and the same is hereby expressly waived.”

Again it does not appear that MacLaskey was present or represented upon the hearing of the motion. In fact it does not appear that he was served with notice of any kind. By what right or authority the receiver applied for and obtained an order waiving the complainants’ bond is beyond legal comprehension. In common parlance, it was none of his affair.

On January 22, 1930, MacLaskey’s appearance in the cause was entered. On February 8,1930, his appeal bond was approved and filed with thé clerk of the court. •

On February 15,1930, the complainants obtained an order reciting the entry of the orders of January 10 and January 21, 1921. It further recited that these orders waived the complainants’ bond but that they had elected to give bond pursuant to the statute. They were ordered to give bond in the sum of $500 within five days. If they failed so to do the two previous orders were to be vacated. If they gave bond the two orders were to be confirmed.

On February 17, 1930, MacLaskey filed his answer, supported by a positive verification. It calls for strict proof of the allegations of the bill. It contains a denial that there was any failure or refusal to furnish heat or that the defendants, liable for the indebtedness secured by the trust deed under foreclosure, are financially irresponsible. It alleges that MaeLaskey is the owner in fee simple, of the premises, and that he is in possession, through his various tenants.

On the same day the complainants filed and had approved their bond. Its material recitals and provisions are:

1. The complainants and the surety bind themselves “unto the People of the State of Illinois in the sum of $500,” etc.

2. Signed, sealed and dated January 21, 1930.

3. On January 10, 1930, Victor A. Porazinski was appointed receiver “of all the property, equitable interests, things in action and effects of the defendant, William L. MaeLaskey et al., except such as are by law exempt.”

4. “Now, therefore, if the above bounden Victor A. Porazinski shall well and truly pay to the said defendant all damages, including reasonable attorneys’ fees, sustained by reason of the appointment and acts of said Receiver, in case the appointment of such Receiver is revoked or set aside, then the obligation to be void, otherwise to remain in full force and effect.”

It will be noted that the bond falsely recites that a receiver of all of the property and effects of William L. MaeLaskey “et ah,” was appointed. The receiver, who is not a party to the bond is to pay all damages in the event the receivership is held to be wrongful. He is to pay them to “the defendant.” But which one of the twenty defendants, named in the bill is to be protected by the bond is not designated.

The entire proceedings are so permeated with error as to require a reversal of the order of January 10, 1930, appointing the receiver. The bill of complaint does not state the value of the property or even plead the conclusion that it is scant security. It does not show that any of the alleged defaults, except the failure to pay an interest coupon of the face value of $480, continued to the time of the filing of the bill. It contains- no statement as to the ownership or possession of the premises. The only charge of waste is made against persons not shown to be owners or in possession of the property.

In addition, the verification is fatally defective to give the bill, of complaint evidentiary value upon the application for a receiver. There • are authorities which appear to hold that where the verification is direct, but coupled with a defective information and belief statement and the bill does not state that any of its allegations are upon information and belief, we should assume that all of the allegations are stated upon direct knowledge. With this view we cannot agree. The very fact that the party making the affidavit says that the allegations of the bill are true, except that he merely believes those to be true which are stated upon information and belief, should be regarded as conclusive evidence that he does not vouch that all of the allegations are true of his own knowledge.

An attempt to serve notice by mail upon MacLaskey of the application for a receiver on January 10, 1930, was made. The notice was ineffective because it did not comply with the law or the rules of court. Haj v. American Bottle Co., 261 Ill. 362.

The order of January 21, 1930, excusing complainants’ bond in the language of the statute was entered upon application of counsel for the receiver. Counsel for MacLaskey states in his brief that no notice of the application for the entry of this order or the order of February 15, 1930, was served upon MacLaskey. The truth of this statement is not challenged by counsel for the complainants or by the record.

The bond finally given by the complainants, contrary . to the statute, obligates them to the People of the State of Illinois, instead of to the defendants and is conditioned upon the receiver paying to “the said defendant” (without naming him) all damages, including reasonable solicitor’s fees in case the appointment of the receiver should be revoked or set aside.

Counsel for the complainants raises no objection about the incorporation in the transcript of record of the proceeding subsequent to the filing of the appeal bond. We refer to them because they emphasize the utter disregard by counsel of sound law and practice throughout the entire proceeding.

The order of the circuit court of Cook county of January 10,1930, appointing a receiver, is reversed.

Order reversed.

Wilson, P. J., concurs,

Holdom, J., not participating.


author: Mr. Presiding Justice McSurely

text:
    Chicago Title & Trust Company, Appellee, v. Gladys McDowell et al., Defendants. Appeal of Westinghouse Electric Elevator Company et al., Appellants.
    Gen. No. 34,353.

      Opinion filed May 15, 1930.
    Epstein & Arvey, for appellants.
    Butz, Von Ammon & Marx, for appellee; Joseph D. Lawyer, of counsel.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.

This is. an interlocutory appeal by certain defendants from an order entered February 26, 1930, extending the receivership of Joseph H. Optner appointed in another and prior cause pending in the circuit court to the premises involved in the above-entitled cause, which is a proceeding to foreclose the lien of a trust deed on the premises number 6938 Cregier Avenue, Chicago.

February 5, 1930, complainant filed its bill of complaint seeking the foreclosure of a trust deed securing bonds aggregating $110,000, executed by Gladys McDowell and William McDowell, her husband, conveying the premises in question. The bill alleged a balance of $2,383.32 due on unpaid interest coupons and prayed for the usual relief including the appointment of a receiver in accordance with the provisions of the trust deed. The trust deed expressly conveyed the rents, issues and profits as part of the security. The bill made as parties defendant Joseph II. Optner, the receiver in the prior cause, the above-named defendants and others. Subsequently, after notice, complainant asked that this receivership be extended to cover the premises and property described in the bill of complaint and the rents, issues and profits thereof. This motion was supported by affidavits and the requested order was entered.

The appealing defendants say that the order is erroneous in that it fails to fix a time limit within which complainant is required to file its bond. This point is unimportant, as the record shows that the complainant filed its bond concurrently with the entry of the order.

It is next said that the court erred in failing to consider the verified answer of defendants and in not hearing testimony on questions of fact raised by the answers. We do not understand why we should assume that the trial court did not consider the answer of defendants. The record shows that before the order was entered complainant was given leave to file instanter affidavits supporting its motion for receivership and defendants were given leave to file an answer in five days. When the order was entered the court had before it the bill of complaint, the motion, supporting affidavits and the answer of defendants, and we must assume that the court passed upon the record then before it.

Counsel for defendants seems to assume that the answer must be taken as true because it is verified. The bill expressly waived answer under oath. Therefore the answer was nothing more than pleading, although it may be considered as an affidavit upon the motion to appoint a receiver. Dunne v. County of Rock Island, 273 Ill. 53, is not authority for the proposition that it was error for the court to consider affidavits filed by complainant. That &ase involved an injunction and the court held that it was error to consider the affidavits filed by the defendant in the absence of any answer filed by it. It has long been the practice upon motion for a receiver for the court to consider affidavits. Leeds v. Townsend, 74 Ill. App. 444; Murphy v. Hoyt, 93 Ill. App. 313; Richey v. Guild, 99 Ill. App. 451.

It is said that the complainant failed to obtain leave to make the receiver in the prior cause a party defendant in the instant cause. The record is silent on this point, but such an order would properly appear in the record of the prior cause and not in the present record. However, we do not think the point important, as it appears that both causes were heard by the same chancellor, who, necessarily, when entering the order extending the receivership, must have given his consent. The failure to obtain leave does not affect the jurisdiction of the court but merely raises the question of contempt. Possession by the receiver is possession by the court. Mulcahey v. Strauss, 151 Ill. 70; Evans v. Illinois Surety Co., 319 Ill. 105; Mavor v. Northern Trust Co., 93 Ill. App. 314.

The foregoing points relate merely to errors in the proceedings. We have recently held in Central Trust Co. v. McGurn, 257 Ill. App. 45, that if the case is a proper one for .the appointment of a receiver, such appointment will be upheld although erroneous in some respects.

It is said that the extension of the receivership is improper because the receiver is placed in a position where he must maintain conflicting interests arising in the respective causes. A receiver is the instrument of the court to adjust and determine conflicting causes. A receiver represents both the debtor and the creditors whose interests are in their nature antagonistic. It was so held in Peabody v. New England Water-Works Co., 184 Ill. 625, where the court said, in substance, that while as a general rule a receiver “is to be regarded as the representative of the corporation, asserting its rights, taking its title and subject to its liabilities, in one respect occupies a broader position, and represents not only'the corporation but also the creditors. . . . He stands as a trustee of its funds for all creditors, and may intervene to see that no injustice is done to any one.” See also High on Eeceivers, 4th edition, page 814, section 663, where the author says:

“In appointing a receiver over mortgaged premises, it is not imperative upon the court to extend the appointment over the entire estate, and the receiver may be limited in the first instance to such portion of the lands as is primarily liable for the payment of the mortgage indebtedness. But the order should be limited strictly to the premises embraced in the mortgage, and should not extend to other property of the mortgagor.” This was done in the present order.

The substantial question is, did the case call for the appointment of a receiver? The bill alleged a first mortgage of $110,000, executed May 18, 1928, the conveyance of the premises and the rents and profits as security and a default in the sum of $3,575. William McDowell, who with his wife executed the notes and trust deed, by affidavit stated that both he and his wife were indebted jointly and severally to various parties in excess of their assets and that each of them was insolvent. The affidavit of Earl D. Beese stated that the McDowells on July 6, 1926, conveyed the property to the No. 6938 Cregier Ave. Building Corporation, subject to the lien of the trust deed now being foreclosed, but the grantee did not assume or agree to pay the indebtedness described in the trust deed; that December 15,1928, this grantee conveyed the premises by trust deed to the Cosmopolitan State Bank to secure an indebtedness of $30,000; that subsequently mechanics’s lien claims were filed for various amounts aggregating approximately $3,000; that on December 2, 1929, the Westinghouse Electric Elevator Company, which is one of the defendants herein, filed its bill in the circuit court of Cook county asking for the dissolution of the Building Corporation and for other relief; that in the bill it alleged it had a judgment against the Building Corporation for the sum of $1,466.16 still in effect and unsatisfied; that January 17, 1930, a petition was filed in the cause then pending in the circuit court by the Ames Construction Company alleging that it had a claim against the corporation in the snm of $6,588 with interest; also another claim by the Wittenmeier Machinery Company for $1,919.59; also a claim by the Illinois Lighting Fixture Company for $600; that on January 21, 1930, the court entered a finding that the Building Corporation was indebted to divers parties in sums largely in excess of its, as sets and that said indebtedness remained wholly unpaid and unsatisfied, and that the Corporation was hopelessly and irretrievably insolvent and it was ordered that it be dissolved; that according to the records the Building Corporation appeared on February 3, 1930, as the owner of the equity of redemption of the premises involved in this foreclosure proceeding. The answer filed by the defendants does not negative these allegations of fact. It alleges that Joseph Optner was appointed receiver of the Building Corporation and duly qualified; that the value of the premises is in excess of $140,000 and ample security for the indebtedness of $110,000, and more than adequate security for the interest coupons now sought to be foreclosed.

The case calls for the appointment of a receiver. The record shows that the mortgagor is insolvent, the Building Corporation (grantee) is decreed insolvent and there is no responsible owner of the property who could be made to answer for the indebtedness secured by the trust deed. We are not holding that the receiver'was properly appointed solely because of the provisions of the trust deed pledging the rents and profits as partial security for the mortgage debt, although such provisions may be taken into account. A court of chancery will appoint a receiver upon a consideration of all the equities of the case. Bothman v. Lindstrom, 221 Ill. App. 262. In view of the conflicting interests, the amounts of the respective claims, the insolvency of the mortgagors and their grantee and other considerations, we hold that the court properly entered the order in question.

The order appealed from is affirmed.

Affirmed.

Matchbtt and 0’Connor, JJ., concur.


author: Mr. Presiding Justice Barnes

text:
    Hawthorne Kennel Club, Appellant, v. John A. Swanson, State’s Attorney et al., Appellees.
    Gen. No. 34,356.

      Opinion filed May 16, 1930.
    Litsinger, Healy & Reid, for appellant.
    John A. Swanson, State’s Attorney, for appellees; John E. Northup, of counsel.
   Mr. Presiding Justice Barnes

delivered the opinion of the court.

May 9, 1928, complainant filed a bill in equity and later a supplemental bill to enjoin the State’s Attorney and the sheriff of Cook county and town officials of the town of Cicero, their deputies and agents, from preventing the operation, or interfering with the use of complainant’s track and grounds in said town for the running of dog races and the payment of so-called prizes.

Two days later the court granted a temporary injunction for such relief and with the exception of about three weeks such an injunction has been kept in full force and effect to the present time.

Defendants answered, averring among other things, that in connection with the dog races conducted by complainant, it operated and maintained a common gaming house, in violation of the laws of the State. Reference was had to a master in chancery who recommended the relief prayed for. Exceptions to his report were sustained and a decree was entered dismissing the bills for want of equity, but continuing the temporary injunction in force pending the final disposition of the cause in the Supreme Court to which an appeal was allowed. The appeal having been improperly taken to that court on the mistaken theory that the issues involved the validity of the so-called Horse Racing Act of 1927 (Laws of 1927, Cahill’s Stat. 1929, ch. 38, pars. 316 [1]-316 [17]), the case was transferred to this court (339 Ill. 220.) In view of its importance it has been advanced for hearing.

Complainant maintained and operated a race course for dogs where persons were permitted to come together and engage in or patronize what is known as the “Pari-Mutuel or Certificate System” of wagering on the results of dog races conducted at such grounds by complainant.

In its appeal to the Supreme Court appellant took the position that if, as now held by that court, the validity of the Horse Racing Act, Cahill’s St. ch. 38, U 316 (1) et seq., is not involved, and if it be held that the pari-mutuel system of wagering is not unlawful, nor prohibited by said act, the act is not involved at all. On the other hand if it be unlawful and in violation of any other statute then no necessity arises for the construction of said act. Counsel proceeds to argue that the pari-mutuel system of wagering, considered as mere betting, is not prohibited by the common law, nor expressly prohibited by statute unless the Horse Racing Act be so construed. The logic of the argument is that use of such system in conducting dog races cannot be regarded as a violation of either the Gaming Act (section 127 of the Criminal Code, Cahill’s St. ch. 38, fí 305) or of the Pool Selling Act of 1887 (Cahill’s Stat. 1929, p. 947, ch."38, if 316): not under the former because placing money under such a system on dog racing is not “playing money at a game” within the meaning of said act, and not under the latter because such method or system is not embraced within the term “Pool. Selling” as prohibited by the Pool Selling Act.

We cannot concur with either of these conclusions and therefore need not attempt to apply the Horse Racing Act to this case further than to note that it expressly recognizes said system as a form of wagering and gambling and excludes its being conducted at any races except horse races at the race track where such system is conducted. (Section 10 of said act.)

While counsel cites cases from other jurisdictions in support of the contention that money placed on the results of horse racing is not gaming, such rulings are not in harmony with the construction given the Gaming Act by the courts of this State. We need only to refer to Tatman v. Strader, 23 Ill. 493 and Swigart v. People, 154 Ill. 284, and authorities there cited as decisive of that question. The reasoning whereby our Supreme Court has thus held that betting on a horse race is gaming and a violation of the statute is equally applicable to betting on dog racing. While the gambling practice in the Swigart case was bookmaking and the selling of pools, as forbidden by the Pool Selling Act, and was not specifically described as the pari-mutuel system, yet such system is nevertheless one of selling pools. Under it the money the several patrons bet or wager on the contest of speed by the racing animals is placed in a common pool from which is distributed to those betting on the winning animals the amounts of money their respective tickets or certificates bought under such system call for. The very argument of counsel for appellant concedes that said system is a form of betting, and the circumstances and methods by which it was conducted on complainant’s premises, as disclosed by the evidence, constitute a clear violation of both the gaming* and pool selling acts, of the former by “permitting persons to come together to play for money at a game” — that of dog racing, and of the latter by selling pools upon the result of a trial or contest of speed of beasts.

We shall not attempt to follow the somewhat specious reasoning whereby counsel for appellant attempts to distinguish the method employed by complainant from gambling by a form of receipt printed on the back of the ticket the patron receives for his money acknowledging the sum so paid as “a voluntary contribution to the prize to be awarded to the owner of the dog. ’ ’ In the face of the actual facts importing a clear case of intentional gambling such language is a mere subterfuge and affords no basis for convincing argument.

Holding then, as we do, that the facts and circumstances of the case disclose a clear violation of the criminal statutes, which it was the legal duty of the State’s Attorney and the other defendants in the exercise of their official duties to suppress it was clearly not within the power of a court of equity to enjoin them from the performance of such official and political duties. As said by Mr. Chief Justice Fuller in World’s Columbian Exposition v. United States, 56 Fed. Rep. 654, a court of equity “is conversant only with questions of property and the maintenance of civil rights and exercises no jurisdiction in matters merely political, illegal, criminal or immoral.” In People v. Barrett, 203 Ill. 99, 107, quoting from In re Sawyer, 124 U. S. 200, the court said:

“The office and jurisdiction of a court of equity, unless enlarged by express statute, are limited to the protection of rights of property. It has no jurisdiction over the prosecution, the punishment or the pardon of crimes or misdemeanors or over the appointment and removal of public officers. To assume such a jurisdiction, or to sustain a bill in equity to restrain or relieve against proceedings for the punishment of offenses, or for the removal of public officers, is to invade the domain of the courts of common law or of the executive and administrative department of the government. ’ ’

It is needless to cite other cases on this fundamental proposition. If on the face of the bill there is any showing for the intervention of a court of equity to protect property rights the answer must have disclosed to the court that it was a mere pretext to avoid prosecution under the criminal statutes. While the temporary injunction was granted before the filing of the answer the very nature of the case should in view of the doubtful propriety of the injunction and its effect upon public interests, have prompted immediate inquiry by the chancellor into the facts.

Nor does the contention that raids and arrests were made of persons' or patrons on complainant’s racing grounds without warrants and not “on view,” furnish a basis for a bill to enjoin the State’s Attorney or such officers of the law from the performance of their duties in the future. The bills were wholly without merit and properly dismissed.

But while the decree will be affirmed so far as it dismisses the bill and supplemental bill for want of equity it must be reversed, at appellant’s costs, so far as it continues said temporary injunction in full force and effect pending a final disposition of this cause in the Supreme Court, which has operated to permit an open violation of the law for about two years. The insertion of this provision in the decree is without precedent or authority. This is not an appeal from an order entered on a defendant’s motion dissolving a temporary injuction under the Injunction Act, Cahill’s St. eh. 69, 21, wherein an injunction may be continued under section 21 of the act. The practice in such a case is well established. (Titus v. Mabee, 25 Ill. 257; Weaver v. Poyer, 70 Ill. 567; Prout v. Lomer, 79 Ill. 331; Williams v. Chicago Exhibition Co., 188 Ill. 19.) Here the temporary injunction though once vacated was restored and the case heard on the master’s report as to his conclusions on the merits of the case. It is anomalous that a court after such procedure should dismiss a bill for want of equity and at the same time give the complainant equitable relief under it.

That such a plain violation of the law as the facts of this case disclose should be countenanced and prolonged for two years under forms of judicial procedure is so repugnant to the theory on which courts of justice are organized as not to be viewed with complacency, and must, therefore be condemned.

Affirmed in part and reversed in part.

Scaulas" and Gridley, JJ., concur.


text:
    Dominick Shemaitis, Appellant, v. Anton Kasputis and Frank Butkus, Executors of the Estate of Frank Yurkman, Deceased, Appellees.
    Gen. No. 34,291.
    Opinion filed May 26, 1930.
    Rehearing denied June 9, 1930.
    Hermann P. Haase, for appellant.
    Theodore B. Janovsky, for appellees.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.

Plaintiff appeals from a judgment disallowing his claim against the estate of Frank Turkman, deceased, on a promissory note for the sum of $1,500, dated December 1, 1921, payable on demand.

The claim was first filed in the probate court and there disallowed. On appeal to the circuit court the validity of the claim was tried by the court, resulting in a finding against the plaintiff. The signature of Frank Turkman on the note is not denied but the executors claim that the indebtedness represented thereby was absorbed in a subsequent transaction in which plaintiff bought certain stock from Turkman for $15,000.

Plaintiff and Turkman were employed by the Peoples Furniture company and had been intimate friends for 35 years. December 2, 1921, Turkman executed the note in question. Although there were no indorsements on the note, plaintiff testified that interest was paid up to 1926. September 18, 1927, plaintiff bought from Turkman 100 shares of the capital stock of the Peoples Furniture company for $15,000 giving as part of the purchase price his note for $10,000 due one year after date, bearing interest at 7 per cent per annum. Plaintiff testified that he paid the balance of $5,000 in cash to Turkman, raised by drawing $2,000 from his bank and borrowing $3,000 from a cousin. Plaintiff also testified that he requested Turkman to allow him $1,500, the amount of Turkman’s note, in the sale but Turkman told him he needed $5,000 cash.

Pertinent to this situation is the language in 48 C. J. 689, par. 191:

“Even though it is proved or admitted that there was at one time an indebtedness from one person to another, subsequent acts of the persons concerned, inconsistent with the continued existence of such indebtedness, may raise a rebuttable presumption that the debt has been paid. Thus, where one person pays money to another or executes and delivers to such other his written obligation for the payment of money, it will be presumed that any pre-existing indebtedness of the latter to the former has been paid.” Lindsay v. McCormick, 82 Va. 479; Coe v. Anderson, 92 Iowa 515, 61 N. W. 177; McMichan’s Estate, 33 Pa. County Reports 273. We would, therefore, naturally expect that when plaintiff bought the stock from Turk-man for $15,000, the $1,500 demand note held by plaintiff would be taken into consideration.

In April, 1928, Turkman was taken sick and was in the Burnside Hospital. Witnesses testified to a conversation with him in the hospital on April 22, at which were present plaintiff, Frank Butkus (subsequently appointed executor), Frank Stasulis (a real estate broker) and plaintiff’s son. Butkus and Stasulis testified, in substance, that when plaintiff came into the room he had some insurance papers and that he said to Turkman, “I forgot this, to bring in the note for $1,500 for you,” to which Turkman replied, “That’s all right, you bring that note another time; it isn’t worth anything.” Stasulis' says that Turkman replied, “The matter is settled. Ton bring it any time.” Turkman died April 29, 1928, but although plaintiff attended the funeral and knew the executors and had subsequent conversations with them he did not make any claim on account of the $1,500 note until his own note for $10,000 became due to the estate.

There were inconsistencies in the testimony of witnesses for the plaintiff. William Makevetzki, secretary of the Peoples Furniture Company, of which plaintiff was vice-president, first testified as to a conversation with Turkman about two months before he died, which would be about February, 1928, in which Turkman said, in substance, that he had some heavy obligations to meet and “I owe Mr. Shemaitis a note and I need some money,” and requested that all the money coming to him from the company, about $3,000, be paid to him, Turkman, on New Tear’s Day. This witness subsequently testified that this conversation was in November, 1927, and that Turkman got his money after New Tear’s. It appears, however, from the testimony of Anton Kasputis, one of the executors of Turkman’s estate, that the money due Turkman from the furniture company was not paid until some time in August or September, 1928, after Turkman’s death. Again, the son of plaintiff testified that his father had paid the hill for Turkman’s insurance and his version of the conversation at the hospital was that, when Turkman referred to the matter as settled and all right and paid, he was referring to the bill for the insurance. This witness repeated that the bill for insurance was paid by his father, the plaintiff, but the plaintiff contradicted him by testifying that he did not pay the insurance bill and did not bring the receipted bill to Turkman at the hospital.

The trial judge who saw the witnesses and heard them testify was in a much better position than are we to pass upon their credibility. Both the probate court judge and the circuit court judge gave credence to the testimony of Butkus and Stasulis. Their testimony is consonant with what would be the reasonable expectation from the situation, namely, that the $1,500 note was taken into account in the purchase of the $15,000 worth of stock. In any event, we cannot say that the finding of the trial court is manifestly against the weight of the evidence. The judgment will therefore be affirmed.

Affirmed.

Matchett and O’Connor, JJ., concur.


author: Mr. Justice O’Connor

text:
    Ben T. Dempsey and Edward P. Way, Appellees, v. Albert C. Thuner and American Surety Company of New York, Appellants.
    Gen. No. 34,109.

      Opinion filed May 26, 1930.
    James F. Hutchison, for appellants.
    Ning Eley and Kenneth G. Meyer, for appellees.
   Mr. Justice O’Connor

delivered the opinion of the court.

Plaintiffs brought suit against the defendants to recover damages claimed to have been sustained by them by reason of the breach of a bond signed by the defendants in appealing a judgment entered in a forcible detainer case. There was a verdict and judgment in plaintiffs’ favor for $580 and the defendants appeal.

The record discloses that plaintiffs brought an action of forcible detainer .against defendant Albert C. Thuner and obtained a judgment in the municipal court of Chicago. The defendant appealed to this court and gave bond as required by the statute, signed by himself as principal and by the American Surety Company of New York, the other defendant, as surety. The judgment was affirmed by this court. Dempsey v. Thuner, 236 Ill. App. 619 (Abst.). Plaintiffs after-wards brought the instant case claiming that on account of the breaches of the condition of the bond by the defendants, plaintiffs had been damaged $1,-110. The condition of the bond was that “if said Albert C. Thuner shall duly prosecute his said appeal with effect, and moreover pay all rent now due or that may become due before the final determination of this suit, and also all damages and loss which the plaintiffs have sustained or may sustain by reason of the withholding of the premises in controversy and by reason of any injury done or to be done thereto during said withholding until the restitution of the possession thereof to the plaintiff together with all costs accrued or that may accrue, in case said judgment is affirmed or said appeal dismissed, then the above obligation to be void, otherwise to remain in full force and effect. ’ ’

Plaintiffs’ evidence was to the effect that in the spring of 1923 they were conducting a meat business at 2406 West Madison Street as tenants under a written lease which expired April 30, 1923, at a rental of $75 a month; that in March, 1923, they bought the premises at 2436 West Madison Street, then occupied by defendant Albert C. Thuner under a lease expiring April 30,1923; that when that lease expired defendant Thuner refused to vacate the premises and did not do so until the last few days of July. Shortly after May 1, 1923, plaintiffs brought the action of forcible detainer against Thuner to recover possession of the premises, with the result above stated. The evidence is further to the effect that shortly after plaintiffs purchased the premises at 2436 West Madison Street they advised defendant Thuner of that fact and further that they expected to move their meat business on May 1 from 2406 West Madison Street into the premises. They told Thuner that if he would vacate the premises on April 15 they would give him free rent up to that time; that Thuner said he would accept the proposition but later changed his mind and refused to vacate the premises until the latter part of July.

The evidence further shows that plaintiffs had been conducting their meat business in the immediate vicinity for about 11 years; that on account of Thuner’s failure to vacate the premises at 2436 West Madison Street on April 30 and plaintiffs’ inability to obtain other quarters in the locality in which to conduct their meat business, they were forced to remain in the old premises during May and June, during which time they were required to pay and did pay to the owner of the premises $250 a month as rent. At the end of the two months, apparently for the reason that plaintiffs were unable to pay such high rent, they had their fixtures moved and stored and closed up their business until defendant vacated the latter part of July.

On the question of damages the evidence was to the effect that the reasonable rental value of the premises occupied by Thuner at 2436 was $150 a month, making a total of $450 for the three months Thuner wrongfully remained in possession. The reasonable rental was testified to by two witnesses called by the plaintiffs and one witness called by defendants. Another witness called by the defendants put the rental value at a much lower figure. Plaintiffs further proved that they had paid (1) $10 Appellate Court costs in the forcible detainer suit; (2) $500 to the owners of the premises at 2406 rent for May and June; and (3) $78 for the cartage and storage of their fixtures. These items total $1,038, occasioned, plaintiffs contend, by the failure of Thuner to vacate the premises on April 30.

Defendants contend that there was no warrant for the allowance of the item of $500 or any part thereof for rent the plaintiffs paid for May and June, and that there was no warrant for the allowance of $78 cartage and storage expenses. It seems to be conceded that plaintiffs were entitled to recover the two items of $450 and $10, or a total of $460.

Section 19, chapter 57 of Cahill’s Rev. St. If 20, which provides the conditions required in a bond such as the one in suit, given by the defendant in a forcible detainer case, is as follows: “If the defendant appeals, the condition of the bond shall be that he will prosecute such appeal with effect, and pay all rent then due or that may become due before the final determination of the suit, and also all damages and loss which the plaintiff may sustain by reason of the withholding of the premises in controversy, and by reason of any injury done thereto during such withholding, until the restitution of the possession thereof to the plaintiff, together with all costs that may accrue in case the judgment from which the appeal is taken is affirmed or the appeal dismissed.” It will be noted that the condition of the bond in suit follows the statute. It provides that in case a judgment in a forcible detainer suit from which the defendant appeals is affirmed, the defendant will pay all rent due or that may become due for the premises he wrongfully withholds until they are restored to the plaintiff, and that he will also pay “all damages and loss which the plaintiff may sustain by reason of the withholding of the premises.” We think it clear that plaintiffs were entitled to recover on account of each of the four items, but that they are not entitled to recover the full $500 rent they paid for the months of May and June. The most that they could recover for this item is the excess they were required to pay over and above the reasonable rental value of their own premises, which was $100 a month. Plaintiffs, having been required to pay $250 a month during these months and having proven that the reasonable rental value of their premises was $150 a month, were damaged to the extent of this excess of $100 a month. We think the statute is plain and unambiguous, as is the bond, and does not limit the recoverable damages to court costs and to reasonable rental value of the premises wrongfully withheld, as defendants contend.

It will be observed that the jury did not award plaintiffs the $1,038 which the evidence tended to prove was the amount of their damages, but only $580, making a deduction of $458. So that the defendants are not required to pay as much as we think the evidence warrants. But the defendants say that there was no evidence that the rental paid by plaintiffs for the months of May and June was the reasonable rental value. The evidence shows that plaintiffs were required to pay $250 a month in order to continue their business in the neighborhood. They were also required to pay the $78 for storage. In the circumstances as disclosed by the evidence, we think this was sufficient (Cloyes v. Plaatje, 231 Ill. App. 183; Byalos v. Matheson, 243 Ill. App. 60; same case affirmed 328 Ill. 269), in the absence of any countervailing evidence or suspicious circumstances.

The judgment of the municipal court of Chicago is affirmed.

Affirmed.

McSurely, P. J., and Matchett, J., concur.


text:
    The People of the State of Illinois, Defendant in Error, v. John Koscielniak, Plaintiff in Error.
    Gen. No. 34,177.

      Opinion filed May 26, 1930.
    Louis Greenberg, for plaintiff in error.
    John A. Swanson, State’s Attorney, for defendant in error; Edw. E. Wilson and John Holman, Assistant State’s Attorneys, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.

An indictment was returned by the grand jury of Cook county charging that the defendant, John Koseielniak, fraudulently obtained $200 from Bose Dobrowski by means of the confidence game; and the second count of the indictment charged that the defendant obtained $200 from Bose Dobrowski by means of false pretenses. The false pretenses were alleged to be that the defendant falsely represented that he was a brother of the clerk of the superior court of Cook county and by reason thereof had certain influence and that he would use such influence in “fixing” a case pending against one Aloyza Dobrowski, who was charged with larceny, and it was charged that these representations were falsely made to Rose Dobrowski for the purpose of defrauding her of $200. The defendant entered a plea of not guilty to the indictment and later on, when the cause came on for hearing in the criminal court of Cook county an order was entered on motion of the State’s Attorney waiving the felony charge. The defendant then withdrew his plea of not guilty to the indictment and entered a plea of not guilty to the remaining count of the indictment, viz., the obtaining, of money by false pretenses from Rose Dobrowski. A jury was waived and the cause submitted to the court, who, after hearing the evidence, found the defendant guilty and sentenced him to 90 days in the House of Correction and imposed a fine of one dollar. The common-law record only is before us on this writ of error.

The defendant contends that the judgment is wrong and should be reversed because the statute which defendant was convicted of violating does not apply where the prosecuting witness was “particeps criminis” and, in support of this, the cases of McCord v. People, 46 N. Y. 470; People v. Stetson, 4 Barb. (N. Y.) 151; State v. Crowley, 41 Wis. 271, and State v. Alexander, 76 Ore. 329, 330, are cited. Paragraph 228, sec. 96, ch. 38, Cahill’s Statutes 1929, provides: “Whoever, with intent to cheat or defraud another, ... by any false pretense, . . . obtains from any person any money, personal property or other valuable thing, shall be fined in-any sum not exceeding $2,000, and imprisoned not exceeding one year, and shall be sentenced to restore the property so fraudulently obtained, if it can be restored.” A contention similar to the one urged here was made in the case of Gilmore v. People, 87 Ill. App. 128, and the court expressly refused to follow the McCord and Crowley cases, supra. The court there said that it was contended (p. 137) “that as Chisholm and Hileman were engaged with defendants in a criminal transaction, none of them can be convicted for cheating or attempting to cheat a confederate therein.” And continuing the court said (p. 140): “The rule contended for by defendants is based chiefly upon the majority opinion in McCord v. People, 46 N. Y. 470, and upon State v. Crowley, 41 Wis. 271. In the former case the rule was thus stated:

“ ‘Neither the law nor public policy designs the protection of rogues in their dealings with each other, or to insure fair dealing and truthfulness, as between each other, in their dishonest practices. The design of the law is to protect those who, for some honest purpose are induced, upon false and fraudulent representations, to give credit or part with their property to another, and not to protect those who, for unworthy or illegal purposes, part with their goods.’
“We entirely approve the doctrine as applied to a civil suit between rogues for contribution or reimbursement, but we think it has no proper application to a criminal prosecution against one of several wrongdoers for a crime committed against a fellow-criminal.” The court continues and refers to authorities from other States and also to the case of Maxwell v. People, 158 Ill. 248.

We approve of the rule announced in the Gilmore case. The crime here sought to be punished was against the People of the State of Illinois and not against an individual. In a note in 17 L. R. A. (N. S.) 276, it is said that according to the weight of authority it is no defense to a criminal prosecution to obtain money under false pretenses that the prosecuting witness himself in the very transaction of which he complains was guilty of an intent to defraud. And a great many authorities are there cited and discussed, sustaining the statement.

Nor do we think there is any merit in the contention that the misrepresentation, as alleged in the indictment, was not a representation of an existing fact. The defendant here was charged with imposing on Bose Dobrowski with the intention of cheating and defrauding her of $200 by falsely representing to her that by reason of his political connection he could “fix” a case then pending against Aloyzy Dobrowski.

A further point is made that although the finding of the court is equivalent to a verdict of a jury, and although there was a special finding that the money was obtained from the prosecuting witness, Bose Dobrowski, by means of false pretenses, yet there was no finding that it was obtained with the intention to cheat or defraud Bose Dobrowski.

The judgment order as written up by the clerk is almost unintelligible. There is no finding that the money obtained was the money of Bose Dobrowski. This finding we think is essential. People v. Novotny, 305 Ill. 549; People v. Bartosh, 244 Ill. App. 631. In the Novotny case the defendant was indicted charged with obtaining money of Bapan Mananianian by means of the confidence game, but the proofs showed that the money belonged to a person of a different name. This was held fatal. The court said (p. 556): “In indictments for offenses against the persons or property of individuals the Christian and surnames of the parties injured must be stated if known, and the name stated must be either the real name of the party injured or that by which he is usually known; (Aldrich v. People, 225 Ill. 610; Sykes v. People, 132 Ill. 32; Willis v. People, 1 Scam. 399;) and it is essential that the name of the party injured should be proved as laid. There is no conflict of authority on this point.” The judgment order states that the court, “being fully advised in the premises, doth find the said defendant guilty of obtaining $200 by false pretenses.” Then follows the overruling of the motions for a new trial and in arrest of judgment and the order continues: “And now neither the said Defendant nor his Counsel for him saying anything further why the judgment of the Court should not now be pronounced against him on the Finding of Guilty, heretofore rendered to the indictment in this cause . . . it is . . . ordered and adjudged . . . that . . . the said Defendant ... is guilty of the said crime of false pretenses value of property $200 upon the indictment in this cause on said Finding of Guilty.” Then follows the sentence to the House of Correction. It will therefore be seen that there is no finding that the defendant was guilty of obtaining the $200, the property of Rose Dobrowski. Nor is there any finding, as counsel for the defendant contends, that the money was obtained with intent to cheat or defraud, which we think is necessary.

For the reasons stated the judgment of the criminal court of Cook county is reversed and the cause is remanded.

Reversed and remanded.

McSurelt, P. J., and Matchett, J., concur.


author: Mr. Justice Jones

text:
    In re Estate of Clara Dedmore, Deceased. Fred James Waggoner, Appellant, v. Clinton E. Dedmore, Individually and as Administrator of the Estate of Clara Dedmore, Appellee.
    Gen. No. 8,117.

      Opinion filed May 22, 1930.
    Silber, Isaacs, Silber & Woley, for appellant; Donald N. Clausen and Herbert W. Hirsh, of counsel.
    Donovan, Bray & Gray, for appellee.
   Mr. Justice Jones

delivered the opinion of the court.

Fred James Waggoner and Clinton E. Dedmore each claim to be the surviving husband of Clara Dedmore, deceased, Waggoner by virtue of a marriage consummated in 1916, and Dedmore by a marriage entered into in 1927. Decedent died at Joliet, Illinois, on September 10, 1928, as the result of an automobile accident. On October 16, 1928, Clinton E. Dedmore was appointed administrator of her estate, and on October 19, he made ex parte proof of heirship, upon which proof the probate court entered a finding that he is her surviving husband.

On November 22, 1928, Fred James Waggoner filed in the probate court his petition for the removal of Dedmore as administrator and his own appointment as administrator de bonis non. Later, he filed a petition to vacate the finding of heirship previously made, and for a new finding. In each petition he set out his marriage to decedent in 1916 and his alleged rights under that marriage. After a hearing the probate court removed Dedmore as administrator and appointed Wag-goner administrator de bonis non. The finding of heir-ship was vacated and the court found that Fred James Waggoner is the surviving husband of decedent. From both orders Dedmore appealed to the circuit court where the causes were consolidated. The circuit court found that Dedmore is the surviving husband and is entitled to letters of administration. This appeal is prosecuted from that decree.

It is a general rule that where a valid marriage is shown, a presumption exists that the status of that marriage continues. A second marriage is void where either of the parties to it has a living undivorced spouse by a former marriage. But in the absence of evidence to the contrary, a first ceremonial marriage , will be presumed to have been terminated by death or divorce prior to the time of a second ceremonial marriage by one of the parties. The second marriage being shown, the law raises a strong presumption in favor of its legality, which is not overcome by mere proof of a prior marriage and that one of the parties thereto had not obtained a divorce, because the other party to such prior marriage may have obtained such divorce, thus terminating the marriage. (Schmisseur v. Beatrie, 147 Ill. 210; Potter v. Clapp, 203 Ill. 592.)

The law is so positive in requiring a party who asserts the illegality of a marriage to take the burden of proving it, that it sometimes involves the proving of a negative. (Schmisseur v. Beatrie, supra.) Because of the presumption that the second marriage was valid, the burden of proof rested upon appellant to show there had been no divorce from the ties of the prior marriage. Although the responsibility was upon appellant of proving that a divorce had not been obtained before the marriage of decedent to Dedmore, yet he was not required to make plenary proof of a negative averment. It is enough that he introduce such evidence as, in the absence of all counter-testimony, will afford reasonable ground for presuming that the averment is true, and when this is done, the onus probandi will be thrown on his adversary. (Schmisseur v. Beatrie, supra; Vigus v. O’Bannon, 118 Ill. 334; Cole v. Cole, 153 Ill. 585.)

The law jealously regards the marriage relation and makes reasonable assumptions in its favor, but it has no special regard for second marriages in preference to first marriages. (Turner v. Williams, 202 Mass. 500.) The validity of the second marriage is presumed ■ only because of the presumption that a person will not commit the crime of bigamy. (Cole v. Cole, supra.) The presumption that the marriage between decedent and Dedmore was valid is not, however, evidence in itself, but is a mere legal conclusion from the fact of the marriage, which may be rebutted by evidence. Presumptions are never indulged in against established facts. They are indulged in only to supply the place of facts. As soon as evidence is produced which is contrary to the presumption, the presumption vanishes entirely. (Osborne v. Osborne, 325 Ill. 229; Lohr v. H. Barkmann Cartage Co., 335 Ill. 335.)

The testimony shows that Fred James Waggoner and Clara Dorothy Ehlers were lawfully married at Fort Dodge, Iowa, on February 16, 1916. After their marriage they lived in Omaha, Nebraska, from 1919 until 1923, when they moved to Chicago. They rented a furnished apartment at 1617 North LaSalle Street. Their name appeared on the mail box and decedent introduced Waggoner as her husband. They lived together in Chicago from 1923 until 1926, separating occasionally on account of differences between them. In 1925, Waggoner worked in Dayton, Ohio, for a few weeks, during which time his wife visited him, but he never established a home there.

They separated in Chicago in 1926, the exact time not being shown by the record. Clara Waggoner remained in Chicago, living with her brother’s family from the first part of August, 1926, until the spring of 1927, when she moved to Joliet. On May 27, 1927, she went through a marriage ceremony, under the name of Clara Ehlers, with appellee, Dedmore. Waggoner received two letters from Clara, mailed at Joliet on October 23, 1927, and September 4, 1928, respectively, addressed to him at 17 Quincy Street, Chicago, and 2258 Orchard Street, Chicago, respectively. No testimony tending to show that he changed his residence from the City of Chicago appears in the record. His residence being established in Chicago in 1926, the presumption is that it continued there and the burden of proof to show a change of residence is upon the party asserting such change. (People v. Estate of Moir, 207 Ill. 180; In re Estate of Colton, 129 Iowa 541.)

Testimony was introduced showing an examination of the records and files of the courts having chancery jurisdiction, in both Cook county and Will county, had been made and that no divorces had been granted in either county to appellant or decedent from 1916 to and including 1928, and no bill for divorce had been filed by either of them. So far as shown by this record, a divorce could not have been lawfully granted to appellant, or to decedent in any other place than in one of those two counties during the period specified. Cases where the record shows only that one of the parties had not been divorced are not controlling or persuasive where the record fairly shows that neither of the parties had obtained a divorce. It is said in Gamble v. Bucher, 124 Tenn. 415, “The burden is upon the person attacking the validity of such (second) marriage to show that there was no such divorce. This may be shown, and generally should be shown, by evidence that the records of the courts have been searched where such decree or judgment should be found, if it existed at all, and that they show no such entry.? ’

The letter which decedent wrote to appellant under date of October 23, 1927, from Joliet, tells him he is the only one she really and truly loves, and concludes by saying “So will close with all my love to you from your wife still in the eyes of God.” ' The closing expression indicates that the fact she had never been lawfully divorced from Waggoner was preying on her mind. Her letter of September 4, 1928, is to the effect that she had been happy the week before when she thought he would take her back and tells of her suffering when she learned differently. There is nothing in the record to show that Waggoner ever knew of her marriage to Dedmore.

A letter was introduced in evidence, purporting to have been written by Waggoner in which he suggested a divorce, but he and his wife lived together as husband and wife for about two years after the letter was written. Dedmore wrote a letter on October 31, 1928 to Dr. F. F. Ehlers, a brother of decedent, relative to Clara’s life insurance. This letter malíes it evident that Dedmore was possessed of information which caused him to doubt that decedent had ever been divorced.

The evidence in the record is sufficient to overcome the presumption that decedent and Waggoner were divorced prior to her marriage to Dedmore, and as there is no affirmative proof tending to show a divorce, the chancellor was in error in rendering a decree finding that Dedmore was the surviving husband of decedent and denying the petitions of appellant.

The order of the circuit court is reversed and the orders of-the probate court are affirmed.

Order of circuit court reversed. Orders of probate court affirmed.

“June 25, 1930. On motion of appellant the order herein reversing the order of the Circuit Court and affirming the order of the Probate Court is hereby modified so as to read as follows: ‘The order of the Circuit Court is reversed and the cause is remanded to that court with directions to enter an order in conformity with the prayer of the petitions of the said Fred James Wagoner.’

“The said order in this court is further amended by striking out the following language in the opinion herein, to wit: ‘Order of Circuit Court reversed. Orders of the Probate Court affirmed,’ and by inserting in lien thereof, the following: ‘Order of Circuit Court reversed and cause remanded to that .court with directions.’ ”


text:
    Percy Newby, Appellee, v. Martin Yellin, Appellant.
    Gen. No. 8,135.

      Opinion filed May 22, 1930.
    Lester James Galvin, for appellant; Frank G. Plain and John G. Plain, of counsel.
    Charles A. Darling, for appellee.
   Mr. Justice Jones

delivered the opinion of the court.

Percy Newby recovered a judgment for $100 against Martin Tellin before a justice of the peace on June 20, 1928. On June 30, 1928, Tellin filed an appeal bond in the office of the clerk of the city court of Aurora, and paid the clerk the sum of $5 as the fee for filing and docketing the case in that court. Thereupon the bond was approved and the cause docketed. Tellin did not within 20 days after the judgment was entered by the justice of the peace pay the fee provided by law for the transcript of the record, and has never paid it to the clerk or to the justice, and has never procured or filed in the office of the clerk of the city court any such transcript.

On December 5, 1928, Newby paid for and obtained from the justice of the peace a transcript of the record. On April 25, 1929, a stipulation embodying the above facts was filed and on the same day Newby filed a motion to dismiss the appeal. An order dismissing the appeal was entered on April 30, 1929, and this appeal is prosecuted to reverse that order.

The question arising on the record is whether or not an appellant is required to pay the cost of a transcript within 20 days from the rendition of a judgment by a justice of the peace, in order to perfect an appeal. Section 14 of the Fees and Salaries Act (j[ 27, ch. 53, Cahill’s 1929 Rev. Stat.) provides for the advance payment of an appeal fee of $5 in each case of an appeal from or petition for a writ of certiorari to a justice of the peace. By section 40 of the same act it is provided that justices of the peace shall be entitled to collect a fee of $1 for each transcript. Section 1, Art. X, ch. 79, Cahill’s Rev. Stat., as amended July 1, 1919, provides that, “The party praying for an appeal shall, within 20 days from the rendition of the judgment, pay the fee provided by law for the filing of such appeal and enter into bond with security to be approved, and . . . The justice shall, within 20 days after the filing of the bond with him and the payment of the appeal fee, or the service upon him of the supersedeas, deliver to the clerk of the court to which the appeal is taken, all the papers in the case and a transcript of his docket in the case.” The requirement that the appeal fee be paid within the time prescribed is mandatory, whether the appeal bond be filed with the justice of the peace or in the court to which the appeal is taken.

Notwithstanding the language of the statute, it is well settled that a justice of the peace is not .required to make or deliver a transcript until his fees therefor are paid. (People v. Rockwell, 2 Scam. 3; People v. Harlow, 29 Ill. 43; Meserve v. Delaney, 112 Ill. 353.) The only substantial change in the statute relating to appeals made since those cases were decided is the amendment of 1919. It was the duty of appellant to prepay the appeal fee and the transcript fee before the amendment was enacted. (Garrity v. Bash, 84 Ill. 73; Edwards v. Duling, 36 Ill. 351; Meserve v. Delaney, supra.) If he failed in that duty, the appellee could pay the fees and the cause was then for trial or the appeal would be dismissed upon a failure to refund under a rule to do so. The amendment did not add anything to the duties of appellant, but its effect is to enforce the duty of paying the appeal fee by an appellant as a condition precedent to any further step in taking such an appeal.

Prior to that amendment the appeal fee and the transcript fee might be paid by the appellee, if the appellant failed to pay them, and upon a failure of the appellant to comply with a rule to refund such costs, the appeal would be dismissed. (Garrity v. Bash, supra; Edwards v. Duling, supra; Meserve v. Delaney, supra.) But the court had no power to dismiss an appeal for failure to pay such costs without first entering such a rule. (Edwards v. Duling, supra.) Since the amendment the appeal bond must be filed and the appeal fee paid by the appellant within 20 days of the rendition of the judgment. Unless both of those duties are performed by the appellant within the statutory 20 days, the appeal is not perfected. (Berkel v. Schmitt, 244 Ill. App. 437; Conklin v. Tobey, 224 Ill. App. 142; Malzahn v. Gronwald, 240 Ill. App. 349.) The right to appeal is strictly statutory, and a party to avail himself of that right must conform to the conditions prescribed by the statute. The fee required by statute to be paid is by express terms “the fee for the filing of such appeal.” That fee is fixed by statute at $5. It is the only fee which the letter of the statute requires to be prepaid within 20 days from the rendition of the judgment. The question then arises whether or not the transcript fee is by necessary implication embraced within the terms of the statute requiring the appeal fee to be paid by an appellant within the twenty day period.

In Meserve v. Delaney, supra, it was held that under a rule to refund “appeal costs,” an appellant must refund the transcript fee as well as the docket fee, both of which had been advanced by the appellee after the appellant had filed her appeal bond and done nothing further. It is said on page 358 of the opinion: “We have no doubt that the cost of the transcript to get the appeal in the Appellate Court is as fully within the necessary costs as is the docket fee.” Under a like situation in Garrity v. Bash, supra, the money advanced by the appellee was denominated ‘‘appeal fees” and the same rule was applied. But it is to be observed that in each case the court was applying the rule only to the necessity of refunding all fees advanced by an appellee.

The amendment of 1919 is a remedial statute. (Conklin v. Tobey, supra.) A remedial statute must be construed liberally so as to afford all relief within the power of the court which the language of the act indicates that the legislature intended to grant (25 R. C. L. Statutes, sec. 299; Deere v. Chapman, 25 Ill. 610; Chicago, B. & Q. R. Co. v. Dunn, 52 Ill. 260; McNulta v. Lockridge, 137 Ill. 270), without departing, however, from the plain and obvious meaning of the language used. (Deere v. Chapman, supra.)

Courts cannot read into the statute something that is not within the manifest intention of the lawmaking body as gathered by the statute itself, for to depart from the. meaning expressed by the words is to alter the statute, and is to legislate rather than to interpret. In the construction of a statute the intention of the legislature must primarily be determined from the language of the statute itself and not from conjectures aliunde. (Sup v. Cervenka, 331 Ill. 459.) Statutes should be read and understood according to the natural and most obvious import of the languagb used, without resort to subtle or forced constructions for the purpose of limiting or extending their operation. (People v. Shader, 326 Ill. 145.) The office of the courts is to interpret the language used by the legislature in a statute where it requires interpretation, and to declare and enforce the law as enacted, and they cannot annex new provisions to a statute or substitute different ones. (People v. Barnett, 319 Ill. 403.)

The plain and obvious meaning of the language used by the legislature is the safest guide to follow in construing any act. The language of the statute now under consideration is not ambiguous nor uncertain. Under its plain provisions, when a party desiring to take an appeal from a judgment rendered by a justice of the peace files his bond and pays the statutory appeal fee of $5 within 20 days of the rendition of the judgment, he has done all that the statute requires of him to remove the cause from the jurisdiction of the justice of the peace. If he does not perfect the appeal and the other party desires to do so, he can pay the transcript fee and file the transcript.

The transcript fee is not a part of the statutory appeal fee required to be paid within 20 days from the rendition of a judgment in justice court by a party taking" an appeal. The statute does not require it to be paid within that time. The justice is given 20 days after the filing of the bond and the payment of the appeal fee, or the service upon him of a supersedeas, to file the transcript and the papers in the suit. Neither the filing of the transcript and papers nor the payment of the fee for making the transcript is made a condition precedent to the right of appeal. It was error to. dismiss the appeal from the justice of the peace until the appellant was in default under a rule on him to refund the transcript fee paid by appellee. (Edwards v. Duling, supra.) The order dismissing the appeal is reversed and the cause remanded.

Reversed and remanded.


author: Mr. Presiding Justice Wilson

text:
    Outagamie Milk & Produce Company, Appellee, v. Western Dairy Company, Appellant.
    Gen. No. 33,969.
    Opinion filed May 28, 1930.
    Edelson & Paullin, for appellant; Hyland J. Paullin, of counsel.
    Allen, Ward & Gallagher, for appellee; William H. Gallagher and Henry L. Phoenix, of counsel.
   Mr. Presiding Justice Wilson

delivered the opinion of the court.

The plaintiff, Outagamie Milk & Produce Co., a corporation, filed its suit against the defendant, Western Dairy Co., a corporation, for goods sold and delivered, with a statement of the account attached to the declaration. The affidavit of claim stated that there was due from the defendant the sum of $6,379.07. The defendant filed its plea setting forth that it had a good defense to the action, except as to the sum of $2,043.40. As to this amount, the defendant brought it into court, together with costs amounting to $11.95, and on its own motion leave was granted to defendant to pay said amount to the clerk of the court as a tender by the defendant in full satisfaction of the amount claimed by the defendant to be due to the plaintiff, together with the court costs to the date of the motion. The clerk was directed by said order to accept it in full payment and satisfaction of the plaintiff’s claim. The money was not received by the plaintiff nor accepted by it and, so far as the record shows, still remains in the hands of the clerk of the superior court.

At a later date, on motion of plaintiff, judgment was entered in the superior court for the sum of $2,043.40, based on defendant’s affidavit of merits. Said suit was ordered to proceed as to the balance of plaintiff’s demand in dispute. From this judgment defendant prays an appeal to this court.

Defendant seeks to reverse this judgment on the ground that the payment of the money to the clerk of the superior court was a satisfaction of plaintiff’s claim and that the trial court was in error in entering the judgment for that amount and ordering the cause to proceed to trial as to the balance.

Section 55 of the Practice Act, Cahill’s St. ch. 110, If 55, provides, among other things, that “If the affidavit of defense is to only a portion of the plaintiff’s demand, the plaintiff shall be entitled to a judgment for the balance of his demand, and the suit shall thereafter proceed as to the portion of the plaintiff’s demand in dispute as if the suit had been brought therefor.”

This section of the Practice Act, however, has not repealed the statute in relation to tender known as the Tender Act, chapter 135, Cahill’s Illinois Revised Statutes, 1929. The Tender Act provides that if money is tendered as a condition that acceptance will be in satisfaction of the demand, it must be accepted upon the terms offered and the acceptance is a bar to a right of action on the demand. In the case before us, however, there does not appear to have been an acceptance of the tender by the plaintiff. The money was paid to the clerk of the court on defendant’s own motion, where it still remains. There having been no acceptance of the tender by the plaintiff, the trial court properly entered judgment for that amount and directed the cause to proceed as to the balance.

It requires something more than a tender to create a satisfaction. There must be an acceptance by the plaintiff, or such a set of circumstances as would imply an acceptance. It was not necessary that the money be paid into the hands of the clerk. It would have been sufficient if the money had been brought in and tendered in open court.

We are referred by counsel to the case of Watson v. Lee Loader & Body Co., 302 Ill. 276. From the facts in that case it appears that the defendant in that case did not bring itself under the terms of the statute by bringing the money into court. If the plaintiff in the case at bar had accepted the money and satisfied the judgment, it would have amounted to an acceptance, but such was not the fact.

In the case of Central Trust Co. of Illinois v. Hagen, 249 Ill. App. 507, the money was brought into court and tendered in full settlement and the plaintiff took the money so tendered and applied it in satisfaction of the judgment. In that case the money was paid in the court on the condition that its acceptance would amount to a satisfaction of all claims. Central Trust Co. v. Hagen has since been reversed by the Supreme Court [339 Ill. 384, and a petition for rehearing was denied June 4, 1930].

As we have pointed out, there does not appear in the record in this cause anything to indicate that the tender was accepted or the judgment satisfied.

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

Judgment affirmed.

Ether and Holdom, JJ., concur.


text:
    Elizabeth Ferguson Hess, Defendant in Error, v. Charles H. Canode, Plaintiff in Error.
    Gen. No. 34,111.

      Opinion filed May 28, 1930.
    John Elliott Byrne, for plaintiff in error; Gerald T. Wiley, of counsel.
    Herrick, Vette & Peregrine, for defendant in error.
   Mr. Presiding Justice Wilson

delivered the opinion of the court.

Plaintiff’s statement of claim is for services rendered as á broker at the special instance and request of the defendant, as a result of which services plaintiff secured a purchaser for the premises known as number 734 North Elmwood Avenue, Oak Park, Illinois, for which, as charged by the plaintiff, the defendant agreed to pay a reasonable and customary broker’s fee. There is not much dispute as to the evidence.

It is practically admitted or proved by the over-€ whelming weight of the evidence that the defendant was the owner of the premises in question and that the plaintiff in the year 1924, was engaged in the real estate business with offices located at Oak Park, Illinois. The plaintiff had in her employ a saleswoman by the name of Mary Quinn, who first met the purchasers of the property, Frederick W. Boss and Kathryn Boss, his wife, in June, 1924. During this month she showed this property to Boss and his wife and, at the same time, they were introduced to the defendant. The property had been listed for sale with the plaintiff and remained with her for sale until November 26, 1924, at which time the defendant wrote a letter, which is in evidence as plaintiff’s exhibit 3, in which he stated that he desired to withdraw the property from the sale list.

December 5, 1924, the defendant entered into a contract of sale with Boss and his wife, to convey the property in question, the terms for the sale being-arranged by one Hernán. The defendant admitted on the stand that it might have been through bim that Hernán obtained the information that the Bosses were interested in the purchase of the property.

It is apparent from the facts that the sale of the property to Boss and his wife was made within a very short period of time after the plaintiff was notified not to proceed further. The natural inference to be drawn from the evidence is that the plaintiff was the procuring cause, and that the purchasers of the property were introduced to the defendant through her efforts.

The jury found the issues on these questions in favor of the plaintiff and assessed her damages at the amount of $600, upon which verdict judgment was entered.

It is insisted as a ground for reversal that Mary Quinn should have been joined with the plaintiff as a partner in the 'proceeding, but there is no evidence showing- any such partnership. It is also urged that the court erred in admitting plaintiff’s exhibits 2 and 3. The former was the contract of sale. We see no force in this argument as, in our opinion, it was properly admitted. It is insisted further that it should not have gone to the jury because of the fact that certain lines of the contract, relating to the commission, were erased, but still legible. We see no force in this argument as it was the instrument of the parties as they prepared it. Exhibit 3 was the letter of November 26, 1924, from the defendant to plaintiff, stating that he had withdrawn his property from the sales list. This letter was competent as showing the employment of the plaintiff and for the further reason that it indicated an attempt on the part of the defendant to avoid the payment of commission. It is apparent that negotiations were immediately undertaken through Heman to proceed with the sale of the property even though the defendant had expressly stated in his letter that his property was withdrawn because it was too late for him to start building that fall.

Some objection was made to the instructions of the court. That part of the instructions objected to was to the effect that the plaintiff must show that she was the cause of the sale, and not merely that she brought in a buyer who did, eventually, purchase. This part of the court’s instruction was more favorable to the defendant than it was to the plaintiff and, moreover, was not in our opinion erroneous. The further objection was, in fact, not an objection to the instructions, but appears to have been a discussion with the court in regard to whether or not it might be misleading. There was no force in the argument that the instructions were erroneous. There appears to have been no material error, either in the trial or in the giving of instructions.

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

Judgment affirmed. '

Byner and Holdom, JJ., concur.