author: Garnett, J.

text:
    Wilson Ames v. Robert Moir & Company.

      Limitations — Contract in Writing — Evidence—■Instructions.
    1. There may be a contract in writing although it contains no express promise to pay the consideration. Where a state of facts is acknowledged in writing to exist, which imports an obligation to pay, the lav/ implies a promise but the contract is not thereby reduced to parol.
    2. The court may properly refuse to give an instruction which states an abstract proposition of law.
    [Opinion filed July 3, 1888.]
    Appeal from the Superior Court of Oook County; the lion. Kirk Hawes, Judge, presiding.
    Mr. John G. Reid, for appellant.
    Messrs. Edsall & Edsall, for appellee.
   Garnett, J.

“Contract Chicago, June 9, 1870.
“ I have ‘this day bought of Robert Moir & Co. one hundred (100) barrels highwines, ‘ iron bound,’ at one dollar and seven cents (81.07) per proof gallon. The conditions of sale are as follows: The buyer can call from 1st July to 20th of same month by giving three days notice, and if not called for by the 20th July, the seller has the privilege of delivering up to the end of July by giving three days notice. To be delivered in fifty barrel lots. To insure the fulfillment of this contract, a margin of three hundred dollars will be put up by both parties.
“Wilson Ames.”

The principal point made on this appeal is that the instrument is not a contract in writing or an evidence of indebtedness within the scope of See. 1 of the act of November 5, 1849, prescribing a limitation of sixteen years, but that it is governed by See. 2 of that act which makes five years a bar. This question is directly presented by the 4th and 5th pleas, to which the court below sustained a demurrer.

The argument for appellant assumes that the essential elements of a contract are not to be found in the paper in question. By its terms, the names of both parties, the description of the property forming the subject-matter of the bargain, the price per proof gallon, and the terms, are accurately set forth. The opening sentence of the contract states that Ames has bought of Robert Moir & Co. one hundred barrels of high-wines at 81.07 per proof gallon. That means, that at seine time before the writing was made, a bargain was entered into between these parties. If the first agreement was by parol on the part of appellees, it was a valid consideration for Aines? written agreement. The sufficiency of the consideration is not affected by any conditions the parties chose to attach to the contract. The signing by Ames only, and the necessity for parol proof to establish his liability, makes no material difference in this case. Hooker v. Hyde, 61 Wis. 204; Prenalt v. Runyon, 12 Ind. 174.

The decision in Dunning v. Price, 56 111. 338, is in point. The contract sued on in that case was as follows:

“ 8268. Aukoka, January 22, 1858.
“ Be it known that in May, 1856, Edward H. Price assigned to me a certain judgment against Jonah F. Keene, and whereas said judgment is about to he settled by the note of David and Edgar Keene secured by mortgage on lands in DeKalb county, this is, therefore, to certify that the portion of said judgment, now equitably belonging to said E. Price, is two hundred and sixty-eiglit dollars, which I promise to pay him so soon as said note shall be collected of said D. and E. jieene, with interest from date.
J. D. Dunning.”

To fix Dunning’s liability it was necessary to show by pat-ol proof that the note of David and Edgar Keene was given. The contract only states that it was about to be given. There was no existing indebtedness until he received the note and collected it. Yet, the court held the plea of the statute of limitations of five years could not be sustained. See also Ill. Cent. R. R. Co. v. Johnson, 34 Ill. 389.

It was held in Abrams v. Pomeroy, 13 Ill. 133, that a contract of guaranty, signed only by the guarantor, was a written contract, and could not be varied by parol.

There may be a contract in writing, although it contains no express promise to pay the consideration. Strictly speaking, there is no such express promise in Ames’ contract. But when a state of facts is acknowledged, in writing, to exist, which imports an obligation to pay, the law implies the obligation, but the contract is not thereby reduced to parol. Ashley v. Vischer, 24 Cal. 322. Such a contract is found in the pass-book of a depositor in a bank. The entries in the book are' not express promises to pay, but the law implies such promises, and the liability thereunder has been held not to be barred in five years. Jassoy v. Horn, 64 Ill. 379.

All the instructions asked by appellant and refused, except two, were erroneous. The appellant’s instructions, numbered ó and 16, contain mere abstract principles of law, and, although correct in themselves, having no reference to the evidence and containing no hypothesis upon which the jury was to find, they were apt to mislead, and their refusal was not error. Vigus v. O’Bannon, 118 Ill. 336; International Bank v. Jones, 20 Ill. App. 125.

Of tlxe other points urged by appellant, it is sufficient to say that, on careful examination, we find them all untenable.

The law of the case was fairly presented to the jury by the instructions given, the verdict is fully sustained by tlxe evidence, and, there being no error in the record, the judgment of the Superior Court will he affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Firemen’s Insurance Company v. Charles E. Peck.

      Corporations — Transfer of Stock — Refusal to Alton — Action for Dam-ayes — Competency of Witness — Sufficiency of Evidence to Suppoi t Finding —Practice. ■

    1. Where the trial was without a jury, and it do"s not appear from the bill of exceptions that the defendant excepted to the finding or xnoved for a new trial, he can not, in this court, challenge the sufficiency of the evidence to support the finding.
    2. In an action by the assignee of a certificate of stock against a corporation to recover damages for the wrongful refusal of the defendant to allow a transfer on its books, the death of the original holder of such certificates does not render the plaintiff incompetent as a witness.
    [Opinion filed July 3, 1888.]
    Appeal from the Circuit Court of Cook County; the Eton. Lorin C. Collins, Judge, presiding.
    Messrs. Georue B. Grant and Edward Bo by, for appellant.
    Messrs. William C. Wilson and David L. Zook, for appellee.
   Per Curiam.

This was an action on the case brought by appellee against the insurance company, appellant, to recover damages for the wrongful refusal of the latter to allow a transfer on its books of thirty shares of its capital stock, of $100 each, for which it had issued a certificate in the usual form to one Louise B. W. Bowen, as paid-up stock, who had indorsed said certificate in blank and which appellee had taken of one S. P. Walker for a valuable consideration, bona fide, and, having filled up said blank with an assignment to him, appellee, he de~ manded of appellant the making of such transfer on its books, which the latter refused. The defendant having pleaded the general issue, the case was, by agreement of the parties, submitted to the court for trial without a jury, and the court finding the defendant guilty, assessed plaintiff’s damages at $5,000, for which judgment was given with costs, and defendant took an appeal to this court.

The entire discussion on behalf of appellant relates to the error assigned, that the judgment was against the law and the evidence, and that plaintiff was an incompetent witness in his own behalf.

It does not appear from the bill of exceptions that the defendant either excepted to the finding of the court, or made a motion for a new trial. That being the case, the defendant is precluded in this court from challenging the sufficiency of the evidence to support the finding. Neither does it appear that any propositions of law were submitted to the court by either party.

We do not find, nor are we able to perceive any ground of objection to the competency of the plaintiff as a witness; the ground that the original holder of the certificate having died, rendered plaintiff incompetent, is not tenable.

We are of the opinion that there is no available error in this record, and that the judgment should be affirmed.

Judgment affirmed.


text:
    The New York and Chicago Grain and Stock Excharge v. The Board of Trade of the City of Chicago et al.

      Board of Trade of City of Chicago — ■Market Quotations — Control of— Injunction.

    1. The charter of the Board of Trade of the City of Chicago imposes upon that body no duty of a public nature. The individual business of each of its members is private, and their aggregate business is of like character.
    2. There can he no public policy controlling any course of business unless some public interest will be affected by the failure of such control.
    3. The Board of Trade of the City of Chicago, may collect the market quotations on the floor of its exchange, send them to the telegraph companies as its private dispatches to persons named as its correspondents and prohibit such companies from transmitting them to any person except those so designated.

      4. A person who is not a member of the board, but has been on its list of correspondents, is not entitled to an injunction to prevent, the removal of the “ ticker ” from his office, and to compel the board to continue to furnish him its market quotations.
    [Opinion filed July 19, 1883.]
    In error to the Circuit Court of Cook County; the lion. Borin C. Collins, Judge, presiding.
    Prior to August 29,1883, the Board of Trade of the City of Chicago, permitted the agents of the Western Union Telegraph Company and other telegraph companies to have access to the floor of its exchange room for the purpose of collecting the market quotations of grain, provisions, etc. Wires were connected with the exchange room and the quotations thus secured were sent therefrom by the operators of the telegraph companies to all their customers who were willing to pay for the service. Several years before the date named, the telegraphic instrument known as the “ ticker ” was brought into use, its advantages being that it automatically registered the quotations in print, and could be placed in the office of each customer and connected with the wire at the exchange, so that each fluctuation in the market might be instantaneously transmitted to every customer having one of these instruments. The Gold and Stock Telegraph Company, having acquired a monopoly of the “ ticker,” it made some arrangement with the Western Union Telegraph Company, by which the latter at the time this suit was commenced and for some time previous, had control thereof. One of the instruments was placed in the office of the plaintiff in error and was in use by it when the suit was commenced.
    On August 29, 1883, the Board of Trade adopted new rules, one of which ordered that its board of directors should provide a corps of market reporters to ascertain the current market price of commodities dealt in by the members of the board, and all changes that might occur in the same from time to time; that such reports should be frequently communicated by telegraph to such correspondents as might be willing to pay necessary charges for compiling and transmitting them under such regulations as the directors might make with any telegraph company; that the forwarding of such reports to any firm, individual or corporation should be only on condition that it was an accommodation service to be performed at the pleasure of the board and discontinued with or without notice.
    About the time this rule was adopted the agents of the telegraph companies were excluded from the floor of the exchange, and the board, by its employes, took charge of the telegraphic instruments and wires on the floor of the exchange and the collection of the market reports and the forwarding of the same from the floor to the companies, the latter be, ing prohibited from sending the quotations to any person-firm or corporation except such as the board should approve.
    ' About December 1, 1884, a new plan was adopted. The board then made arrangement with the companies that it would telegraph to them every morning the names of all the correspondents, and through the day would send from the exchange the fluctuations in the market collected by its employes, which the companies were immediately to telegraph to each of the correspondents and none other; at the close of the quotations the name of the Board of Trade was to he sent by telegraph, so that the day’s dispatch, though sent in fragments, was to he treated and considered as a continuous private dispatch from the board to each of said correspondents. The companies were to pay the board for the information thus collected and furnished the sum of 8750 per month, while the collection of the news cost the board about §10,000 a year. The companies collected from the correspondents such compensation as they agreed upon, the Board of Trade having nothing whatever to do with the same.
    Shortly before this suit was commenced, the board struck from its list of correspondents the name of the plaintiff in error, and the companies threatened to remove the ticker from their office, and to sever their telegraphic connection. The bill in this case was tiled to prevent the execution of that threat and to compel the defendants in error to continue to furnish such information to the plaintiff in error, it being ready and willing to pay therefor, and to comply with all reasonable rules and regulations in regard to the same, and to declare void the contract which prohibited the companies from sending the quotations to others than those designated by the Board of Trade.
    A preliminary injunction was granted, hut on the final hearing was dissolved and the bill was dismissed for want of equity. The New York & Chicago Grain and Stock Exchange sued out this writ of error to reverse that order.
    Messrs. Btsbbe, Ahrebs & Decker, for plaintiff in error.
    The question is squarely presented whether, under any circumstances, the defendant corporation can be prevented from monopolizing the information as to the changes and fluctuations of the market of the Board of Trade of Chicago, or, otherwise stated, whether they can be required, if they disseminate this information to some for a consideration, to treat all alike.

      We contend that the franchises of the Board of Trade have for a term of years been so exercised, and the course of business among its members has been such, that there has resulted a standard market for agricultural products, and that the methods adopted for indicating that market and collecting news and information in relation to its fluctuations to be sent abroad for the use of merchants, have been such as to create a property value in such market news and information, and that the market news and information, and the market itself and all the appliances used in the course1 of business by which such market results, and by which such market information is created and transmitted, are affected with a public interest, so that the Board of Trade itself can not discriminate as to the parties who shall receive the same.
    We contend that the same principle applies to the market information as collected and transmitted independent of its relations to the exchange hall or other business appliances of the Board of Trade, or to the rights and privileges of the members of the Board of Trade. In other words, a species of property has been created — by the creation of the market and the collection of the information relating to that market, and the practice of disseminating such information — in the market news, and information so collected and disseminated, which property is so affected with a public interest that it can not be used for purposes of monopoly or discrimination. Kiernan v. Manhattan Co., 50 How. Pr. 194.
    We contend that whatever view may be taken of the rights of the Board of Trade to monopolize its market and market information to its membership while in the transaction of their business on the floor of exchange, it can not, by contract or otherwise, clothe the information in regard to such market, when placed in the hands of the telegraph companies, with any limitation; that the market news or information, when transmitted to the telegraph companies, is of a public nature, and the telegraph company can not use its franchises in the protection of such a monopoly.
    We contend that the methods adopted by the appellees, although intended to avoid the law and to transform the messages ever the circuits of the telegraph company into private messages, failed to accomplish the intended result.
    Underlying our first j>osition, and more or less entering into the others, is the doctrine of Hale in Ms De Portibus Maris to the effect that whenever private property of whatever kind is used in such a manner as that the public interest k affected by it, then reflexiveiv the property or franchise, or whatever it may be, is also affected with a public interest and ceases to be juris privati.

    Tiie application of the doctrine that both the court and the Legislature may regulate with reference to private property affected with public use, so as to prevent discrimination, monopoly, or injury to the public welfare, has in recent years, by the activity of scientific investigation and the wonderful progress in the mechanical art, been largely extended, and by numerous recent decisions the courts have taken almost uniformly the position that this doctrine ought to be applied to ail changes and to all conditions, however new, if the public welfare requires its application. Munn v. Illinois, 94 U. S. 113; Hocton v. State, 105 Ind. 250.
    The common carrier is regulated because its property is affected with the public use just as a wharfinger or warehouse-men are made subjects of both judicial and legislative control. No matter what the business may be called, the principle in every case is this: that no man can so use his property or his rights as to make it a matter of public interest that there should be no discrimination or monopoly whereby ono person or corporation should be favored above another person or corporation, without submitting himself to the control of both the Legislature and, in the absence of legislation, to the jurisdiction of the proper court, to prevent such monopoly or discrimination, and to prevent any use of such property or such franchise as would be prejudicial to public interest. State v. Nebraska Telephone Co., 17 Neb. 126; Pensacola Telegraph Co. v. W. U. Telegraph Co., 96 U. S. 9; State v. The Bell Telephone Co. and others, 36 Ohio St. 296; State of Missouri v. Bell Telephone Co., 23 Fed. Rep. 239; The American Rapid Telegraph Co. v. The Connecticut Telephone Co., 44 Am. Rep. 237.
    An examination of the sources of the doctrine which alleges that the courts may interfere and prevent monopoly and unjust discrimination in the use of private property under certain circumstances, will show very clearly that the real question is, has a person or corporation so used his or its property that the public welfare requires that there should be no discrimination? It was and is always a question of monopoly. Monopolios have always been abhorred by the law; they are against the best interests of the commonwealth. Wherever a monopoly would be injurious to the public interest there is found a case where property or franchise has become affected with a public interest. That is what is meant by saying that property has become affected with a public interest. Ho matter what a man’s business may he, if he pursue such a course of business and gather around him circumstances and bearings until the manner in which he treats his customers has become a matter of public welfare, until it is within his power to monopolize his business to the prejudice of the public interest, then, and always under such circumstances, the property and appliances and results of such business are within the principle. Allnutt v. Inglis, 12 East, 527.
    The doctrine we contend for has nothing whatever to do with corporations as such. The question whether the corporation is a public or private corporation in the sense implied in that opinion, has not the remotest relation to the question under consideration. It is simply a question whether in this case the appellees have so used their property, so conducted their business, that by allowing them to discriminate they can enforce a monopoly to the injury of the public. Ho matter what the nature of their corporation may be, no matter what the nature of their business, it comes back to this question of public interest, as in the case of ferries, wharves, warehouses, elevators and telephones. On this basis alone we have proposed to discuss this case, and we contend that if we can show upon the facts in this case, either that the Board of Trade has so conducted its business with reference to the pub-lie, that market information has become a public interest, or that the telegraph companies have so conducted their business in collecting the market information or transmitting it for the use of the public that by now becoming a party to discrimination in refeience to persons and corporations desiring such information, a monopoly injurious to the public welfare would be created, we establish thereby that the appellees are entitled to the injunction prayed for in their bill, and that it was error in the court below to dismiss appellee’s bill for want of equity. The general rule in regard to all such corporations is, that they can not discriminate against anybody. To allow them to discriminate between persons would be to open the door to the establishment of monopolies more dangerous than any that have heretofore threatened the welfare of the people. If these companies can discriminate under any circumstance or pretense whatever, between persons in the community, they may enrich some and impoverish others. Believe them from the force of this salutary rule and they would soon exercise a power which would be adequate to almost any purpose of oppression. Therefore all contracts or stipulations, whatever may be their form, and all understandings, shifts and devices that may be adopted to justify or protect or cover such an exercise of authority, should be construed by the court as void, being against public policy. Horner v. Nevens, 7 Bing. 743; Craft v. McConough, 79 Ill. 346.
    Mr. Sidney Smith, for the Board of Trade of the City of Chicago, defendant in error.
    The question, and the only question presented by this case, is this: Has the Board of Trade of the City of Chicago the right to determine what telegraphic dispatches it will send directly from its hall of exchange during business hours and to whom it shall send them; or, whether it will send any dispatches whatever? In other words, whether this corporation, which is purely a mercantile association, has the power to control its own private dispatches relating to the private business of its members. The Board of Trade of the City of Chicago existed as a voluntary, unincorporated association for years before it became incorporated; and it was incorporated, not for the purpose of conducting business as a corporation, but merely for the purpose of affording better facilities to the members in the conduct of their private business, and in their dealings with each other. It is safe to assert that this is strictly a private corporation, and that both the individual and aggregate business of its members is as essentially private business, since, as before, its incorporation. Courts have held that telegraph companies chartered for the purpose of conducting the business of transmitting news or information with powers of eminent domain, etc., are. so to speak, common carriers of news or information, and, therefore, are bound to serve all alike who choose to employ them, notin gathering information, but transmitting to such party as the employer shall name, such information as he himself may desire. The Chicago Board of Trade is neither a news gatherer nor a news carrier for the public. Such a business, if assumed, would he outside of the objects for which it is incorporated. It can not, therefore, be chargeable with the duty either of collecting or transmitting market reports or news to any or all, not members of the association, who may choose to employ it in such service. And so the Circuit Courts of the United States have held. Pub. Grain & Stock Ex. v. Board of Trade, 15 Fed. Rep. 847; Marine Grain & Stock Ex. v. Same, 22 Fed. Rep. 23; Bryant v. W. U. Tel. Co., 17 Fed. Rep. 826.
    And I am aware of no reported case to the contrary.
    The Board of Trade of the City of Chicago, a strictly private corporation — an association of merchants for the conduct of the private business of its members — at great expense, defrayed by assessments, having furnished an exchange hall exclusively for the use of its members, and where their business with each other, and through them the business of their principal (when they deal on commission), is transacted, has established this rule in relation to the collection, compiling and transmitting to its own correspondents, or rather, the business correspondents of its members, market news or statistics. This ingenious device, recently invented, by which the complainant and others are seeking to obtain these reports, and thus to obtain the benefits of membership without becoming members, with the attending burdens, can not be sustained upon any known principle of law or justice.
   Garnett, J.

The question presented by this record is whether the Board of Trade of the City of Chicago has the right to collect the market quotations through its employes on the floor of its exchange, send them to the officers of the telegraph companies as its private dispatches to persons named as its correspondents, and prohibit the companies from transmitting them to any person except those designated by its directors.

The Board of Trade was organized as a private corporation in 1859, and has since continuously conducted its affairs for the benefit of its members only, having no pecuniary interest in the operations taking place on its exchange. Its charter is framed in such terms as we should expect to find in the case of an ordinary private corporation, in whose affairs no one is esjiecially interested except its own members. It has grown into an institution of vast commercial influence, and the quotations of prices coming from its exchange may justly be regarded as a potential factor in fixing market values of the necessaries of life. The growth of the corporation in power and influence does not change its character. Its charter does not impose upon it any duty of a public nature, nor has it assumed any. The interest of its members has been its object from its beginning. It has the right to collect the market quotations or refuse to do so. Having chosen to procure this information, it may dispose of it as its board of directors may order. The expense of compiling the quotations is ultimately borne by the members of the corporation. They, being charged with the expense, should, in all fairness, have the advantage of controlling its distribution. The news so gathered is a species of property (Kiernan v. Manhattan Q. Tel. Co., 50 How. Pr. 194), which the corporation holds and disposes of as a quasi trust fund. If the trust is abused or the commands of the directors are disobeyed a member may be entitled to relief on the same principle that any beneficiary of a trust fund may prevent its perversion-But the rights of a member can not be acquired by one who has not submitted to the burdens and conditions of membership. Admission to membership is necessarily a matter vested in the discretion of the board. The validity of its rules and regulations within the scope of its charter can not be denied-One of the rules makes any person of good character and credit, and of legal age, eligible as a member, on presenting a written application indorsed by two members stating the name and business of the applicant, after ten days notice of such application has been posted on the bulletin board of the exchange and approved by at least ten affirmative votes of the directors, and on payment of an initiation fee of 5^10,000, or presentation of an unimpaired or unforfeited membership duly transferred, and signing''an agreement to abide by the rules, regulations and by-laws of the association. We are unable to say there is anything unreasonable in this rule. If it is valid it excludes every person from the benefits of membership who has not conformed to the prescribed terms, and courts have no authority to interfere in the premises. Another of its rules provides for the collection by its employes of the quotations, and their transmission only to such persons as the directors may approve. The rule might have directed that the reports be sent to no person except members, and no just complaint could have been made. In two cases this rule, reserving to the board the power of discrimination in the distribution of its market reports, has been judicially passed upon, and in both instances the power of the board has been upheld. Bryant v. W. U. Tel. Co., 17 Fed. Rep. 825; Marine G. & S. Exchange v. W. U. Tel. Co., 22 Fed. Rep. 23.

■There can be no public policy controlling any course of business unless some public interest will be affected by the failure to control. It is true that the producers and consumers are alike interested in current prices of the great staples which change hands at this point; but the producer and consumer meet face to face, in the persons of their respective brokers, in the operations of the exchange. The market news is equally accessible to both. The agent represents the principal and is liable to him for any neglect or failure in duty which brings him a loss. The instantaneous news which the appellant contends it has the right to receive from the telegraph company, may not reach the principal except by the slower methods of newspaper publication, but his representative, the broker, is at all times in immediate contact with it. and is bound to use it to the best advantage for his principal.

These reports are compiled at the expense of the members of the association and are their private property in. their associated capacity. There is no just principle which can deny them the right to name the parties to whom they shall be sent by the instantaneous or any other method. The individual business of each of the members is of a private character; the aggregate business of the members is not of a different character. They have in effect agreed among themselves to regulate the transmission of the telegraphic dispatches relating to their private business, and their competitors in business, who do not choose to become members and pay their fair share of the expenses of procuring this information, should not be allowed to dictate its disposition.

The order of the court below dissolving the injunction and dismissing the hill will be affirmed.

Order affirmed.


author: Moran, P. J.

text:
    A. H. Andrews & Co. v. P. R. & F. R. Chandler.

      Fixtures — Opera Chairs — Intention—Rights of Mortgagees — Preliminary Injunction — Dissolution of.

    1. Whether articles which are attached to a building and can be removed without injury become part of the realty or remain movable fixtures, depends upon the intention of the party affixing them.
    2. Upon a bill filed by the mortgagee in a mortgage on an opera house to enjoin the foreclosure of a chattel mortgage on the opera chairs contained in such opera house, it is held: That it was the intention of the mortgagor that the chairs should remain personal propert;-; that the rights of the complainant are not affected by the giving of a new chattel mortgage upon the expiration of the first; that under the state of facts disclosed by the record the preliminary injunction should be dissolved.

      [Opinion filed August 1, 1888.]
    Appeal from the Circuit Court of Cook County; the Hon. Lobih C. Colliks, Judge, presiding.
    Appellees filed their bill of complaint on which a preliminary injunction was granted. The bill alleged: That on April 20, 1885, John B. Lanyon, being the owner of lots eleven and twelve, etc., in Town of Lake, Cook County, Illinois, and being desirous of improving the same with a building to be used as an opera house, applied to orators for a loan of $8,000, to be used in making such improvements; that in compliance with such application orators advanced $9,000; that Lanyon delivered to orators three notes for $3,000 each, due in one, two and three years after date, and to secure payment of the same mule and delivered to orator, F. K. Chandler, as trustee, & trust deed of said lots; that during the year 1885, Lanyon; erected on1 said lots an opera house building; that the upper portion thereof was improved as and for an opera house to be permanently used for giving public theatrical entertainments; that in order to meet the demands of the modern public, Lanyon placed upon the floor of said room 7% opera chairs of a mechanical construction peculiarly adapted for use in an opera house; that said chairs were of a character intended to be permanently attached to the floor of said opera house as a permanent fixture; that said chairs were so placed upon tlie floor of said opera house during its construction and were securely attached and fastened to said floor and building by screws firmly imbedded in said floor, by means whereof said chairs, and each thereof, became a permanent incident and improvement of said opera house building; that it was the intention of Lanyon in so attaching said chairs to said floor in the manner above specified, thereby to make them permanent fixtures and improvements in said building; that in view of the distinctive character of said building such chairs constitute an indispensable part of said opera house, and without the same, said house would be valueless for the purposes contemplated in its construction; that said $9,000- is now wholly due, but it is wholly unpaid; that said trust deed remains in full force; that on February 19, 1887, Lanyon delivered to A. H. Andrews <fe Company six notes, $200 each, due in two, four, six, eight, ten and twelve months after date, and to secure the same executed to said Andrews & Company a chattel mortgage upon said 796 opera chairs; that the last of said notes will fall due February 19, 1888, and that Lanyon is in default on five of said notes; that it is the intention of said defendant, to foreclose said mortgage upon the maturity of said last note, and to detach and remove said chairs, the same being permanently attached to said building; that if such intention are carried out it will result in irreparable injury to orators and wholly destroy the utility of said opera house, and greatly impair and lessen their security. Orators attach copy of trust deed, “Exhibit A,” and copy of notes, “Exhibit B.”
    To the end that defendants, A. H. Andrews & Company, J. B. Lanyon, T. O. Dargan and Jos. Allen, all of whom claim some interest in said building, may answer, without oath, and that A. H. Andrews & Company may be enjoined from carrying out its intentions and from detaching and removing or in any wise interfering with said building and chairs in violation of orators’ rights.
    Bill sworn to.
    The answer of A. H. Andrews & Company, filed February 17, 1888, admits delivery of real estate mortgage by Lanyon to F. B. Chandler, April 20, 1885, to secure 89,000. Admits erection of an opera house, so called, on same land during 1885. That opera house was furnished by Lanyon with 796 chairs. Denies that said chairs were peculiarly adapted for use in an opera house, but equally adapted for use in a clmrch. Denies that chairs were intended to he permanently attached to the floor of said opera house as a permanent fixture. Admits that chairs were fastened to the floor with screws. Denies that chairs by such fastening became a permanent improvement of building. Expressly denies that it was the intention of Lanyon in so attaching chairs to floor to make them permanent fixtures. Denies that chairs constitute an indispensable part of said opera house, or the same would be valueless without them for purposes contemplated. Admits that on February 19, 1887, Lanyon delivered to respondent six notes, §200 each, and secured the same by chattel mortgage on said 796 chairs, duly acknowledged and recorded— copy of unpaid notes, “Exhibit A” and mortgage, “Exhibit B ” — and that last note will mature February 21, 1888; only one has been paid, and it was the intention of respondent to foreclose said mortgage upon maturity of said notes, and remove said chairs from said building under powers in said mortgage in case the same were not paid. Denies that such removal would result in any injury to complainants. Avers that building and grounds are worth about §40,000; that Lanyon is indebted to respondent on said notes and chattel mortgage about §1,124; that said notes were given by Lanyon to respondent in renewal of certain other unpaid notes which were secured by chattel mortgage of like import upon said chairs, duly acknowledged and recorded and then about to mature; that said original notes were given by Lanyon to respondent in payment of purchase price of said 796 chairs; that said original notes and chattel mortgage, and said notes and mortgage of February 19, 1887, were given by Lanyon to respondent in'pursuance of the 'original contract of purchase of said chairs by Lanyon from respondent, which contract was in writing, signed by Lanyon; a. copy is “Exhibit O;” that said chairs were not constructed especially for said house, but are of patterns kept in stock by respondent in its business of manufacturer of furniture and bank, church and school fixtures and furnishings; that chairs were in all respects complete and ready for use before the same were placed in said house; that only attachment of chairs to building is by means of screws through the feet of said chairs sunk into the floor; that removal of chairs would in no wise injure building nor chairs, and can be accomplished by simply removing the screws from the feet of chairs; that it was distinctly understood and agreed between Lanyon and respondent at time of purchase of chairs that the same should not become a part of the building, but should remain personal property, at least until the purchase price was fully paid; avers that Lanyon has paid on account of purchase price of said chairs §1,000, and that Lanyon, Dorgan and Allen have at no time questioned the right of respondent to exercise the powers conferred by said chattel mortgage ; and Allen, the present owner of the building, has repeatedly promised to pay said five unjxiid notes.
    Jurat by A. H. Andrews, president.
    “ Exhibit A.” Five notes, §200 each, dated February 19, 1887, Lanyon to A. H. Andrews & Company, due four, six, eight, ten and twelve months.
    “Exhibit B.” “Chattel mortgage, dated February 19, 1887, Lanyon to A." II. Andrews & Company, on 796 chairs, to secure said six notes, §200 each. Lanyon covenants that he is lawfully possessed of said goods and chattels; that the same are free from incumbrances; that he will keep the same insured and make loss payable to holder of notes; that in case of default second party may enter the premises and take possession and remove and sell. Acknowledged and recorded February 21, 1887.
    “Exhibit C.” “Contract, dated July 6, 1885, between A. H. Andrews & Company and J. B. Lanyon, witnesseth: That first party have sold to second party the bill of opera chairs on back thereof for price named therein, to be delivered, set up complete in opera house at Englewood. Second party to make accurate measurements of the space on which the chairs are to be placed; if on a curve, exact length of curve; if straight, exact length of line; and to furnish plan of seating; all information within ten days. Second party to pay §2.75 each for Flo. 3 chairs and §2.25 FTo. 35 chairs, as follows: In cash, §200, after first performance, balance by notes due in six, nine and twelve months, secured by mortgage on the chairs, with interest at seven per cent. Chairs to be insured by J. B. Lanyon, loss, if any, to be paid to A. H. Andrews & Company. Settlement to be made within thirty days from the receipt of goods.
    (Signed) “ J. B. Lanton,
    “ A. H. Andrews & Co.”
    A motion to dissolve the injunction was made by appellants, and on the hearing of said motion, the answer was read and also the affidavit of one Weber, stating that he was the secretary of appellant, and drew np the contract for sale to Lanyon of the opera chairs; that the question of securing the ■ purchase ¡Drice of said chairs was talked over between Lanyon and affiant; that Lanyon agreed to give a chattel mortgage in the usual form to secure the balance of the price; that the chairs were sold and delivered to Lanyon upon the faith of said contract.
    Appellees in opposition to the motion read the bill and an affidavit by Chandler that Chandler & Company had no notice of the notes and chattel mortgage until within two weeks since; that in making said loan affiant contemplated that he was making a loan upon an opera house to be completed with all the appointments and improvements of a modern opera house; that he would not have loaned said money had he known or anticipated that one of the chief and most valuable and necessary features of an opera house, to wit, opera chairs, was to he withheld from him as security for his loan.
    The court.overruled the motion to dissolve the injunction, and from said order the appeal is prosecuted to this court.
    Mr. Lyman M. Paine, for appellant.
    The case of Sword v. Low, 13 M. E. Pep. 826, shows clearly that Illinois is one of the States in which the rule has become established that chattels annexed to realty under an agreement that they shall continue to remain personalty will retain their chattel character against a mortgagee of the real estate.
    In that case the court says: “To determine the irremovable character of a fixture, three tests are by the modern authorities applied, viz.: 1. Actual annexation to the realty or something appurtenant thereto; 2. Application to the use or purpose to which that part of the realty with which it is connected is appropriated, and, 3. The intention of the parties making the annexation to make a permanent accession to the freehold.” See, also, Kelly v. Austin, 46 Ill. 156.
    In the case of Crippen v. Morrison, 13 Mich. 23, where a real estate mortgage was given with a verbal agreement that the mortgagor would erect a saw-mill on the premises, he did erect the saw-mill, but he gave a chattel mortgage on the engine and machinery six months after the real estate mortgage, having bought the engine upon express agreement to secure the purchase price by chattel mortgage. The seller of the engine was held to have the better right in a contest with the real estate mortgagee,and the court said: “The property which was the subject of this litigation was only erected upon the premises upon the agreement that it should be subject to a chattel mortgage for its purchase price. Bv this the parties kept it separate from the realty and it never became poart of it.”
    The complainants in this case must rest their case simply and alone upon the presumption that improvements made by the mortgagor on the mortgaged premises were made for the benefit of the inheritance. This presumption is not absolute, but may be rebutted by agreement between the mortgagor and the owner of chattels annexed. Ewell on Fixtures, 283. But conceding for the moment all that appellees claim respecting the permanent accession of these chairs to the freehold, still appellees can not complain of their removal “unless such severance would impair the mortgagee’s security and render it of doubtful adequacy.” Till they can show that without the chairs their security is of doubtful adequacy, they have “no remedy for such severance either by recaption of the articles severed, action at law for such severance, or for the articles severed, or by injunction to restrain the mortgagor from making the same.” Ewell on Fixtures, 49.
    Mr. Howard Hark, for appellees.
   Moran, P. J.

The question presented for decision is whether, under the circumstances of this case, the opera chairs are to be considered fixtures, as between the real estate mortgagee and the holder of the chattel mortgage, who sold and delivered the chairs upon a contract that the deferred payments for them should be secured by a chattel mortgage upoiW them. "Whether articles which are attached to a building become a part of the realty or remain movable fixtures, will depend, according to the weight of authority, upon the intention of the party affixing them, particularly where the articles attached can be removed without injury to the articles themselves or to the freehold.

Here the intention of Lanyon, that the opera chairs should remain personal property, is very clearly evidenced by his agreement in the contract of purchase that he would give a chattel mortgage upon them to secure part of the purchase money, and that he would insure them, “ loss, if any, payable to A. H. Andrews & Co.”

We can not see that the rights of appellant are at all affected by the fact that the first chattel mortgage expired and that a new one was executed to secure the balance of the purchase money yet remaining unpaid. While the lien secured by the first chattel mortgage expired, the intention with which the chairs were put in the building continued and the new chattel mortgage created a new lien upon them, whereas the lien of the real estate mortgage did not extend to them, they continu-. ing to be chattels. It is not deemed necessary to examine and discuss the various authorities with reference to the law of fixtures as applicable to the facts of this case. We regard, the case as controlled by Sword v. Low, recently decided by the Supreme Court, 11 Western Rep. 719, in which" the cases on the subject are fully cited and considered. And see, also, Campbell v. Roddy, 12 Central Rep. 821.

It is not alleged in the bill that Lanyon is insolvent, or that the removal of the chairs would so reduce the value of the property as to make the security inadequate. The answer alleges that the property covered by the mortgage is of the valúe of §10,000, and the loan secured is §9,000. Under that state of facts it seems to be established that the mortgagee is not entitled to an injunction to restrain the removal of fixtures which are subject to the lien of the mortgage. Ewell on Fixtures, 49, and cases cited.

This condition of the record was proper to be considered on the motion to dissolve, and would, in our opinion, warrant the granting of the order of dissolution.

The order overruling the motion to dissolve the injunction will he reversed, and the case will be remanded to the Circuit Court, with directions to enter an order dissolving the preliminary injunction now existing in said cause.

Reversed and remanded.


text:
    Alexander R. MacDonald v. Daniel M. Lord and Ambrose L. Thomas.

      Libel — -Words Spoken of One in Ms Occupation — -Province of Court and Jury — Advertising Agency — Privilege.
    1. Words spoken of one in his office, trade, profession or business, which tend to impair his credit, or charge him with fraud or indirect dealings, or with incapacity, and that tend to injure him in his trade, profession or business, are actionable without proof of special damages.
    2. A letter stating that the writersLave been applied to by an advertising agent to insert in a certain paper the advertisement of the person addressed and have had to decline it, but will be glad to receive it “ direct, or through any responsible agency,” conveys the idea that the agency in question is not re ‘ponsible.
    [Opinion filed August 1, 1888.]
    In error to the Superior Court of Cook County; the Hon. Kirk Hawes, Judge, presiding.
    This is an action on the case brought by plaintiff in error against defendant in error, to recover damages for the publication of an alleged libel by defendants. A general demurrer to the declaration was sustained and judgment for costs entered against plaintiff, to reverse which he sued out this writ of error.
    The declaration consists of numerous counts, but as the demurrer was sustained to the entire declaration, it is only necessary to state the substance of the first count, which alleged in effect, that the plaintiff carried on business as an advertising agent in Chicago, conducted the same with punctuality, keeping his engagements and paying his debts, and was held in good credit and esteem by his neighbors and by those with whom he had business dealings, and in and through said business acquired gains to support his family and to the increase of his fortune. That plaintiff had entered into a contract with the David C. Cook Company, publishers of a newspaper called “ Church and Home,” for five hundred inches or more of space in the advertising columns of that pa per at a certain price per inch, and had solicited and procured an advertisement from George S. Tibert & Company of Clintonville, Connecticut, at a price greater than he was to pay said publishing company, and before the committing of the grievances, plaintiff had not delivered to said defendants any order to insert any advertisement in the “ Church and Home.” That he was conducting a respectable advertising agency, and the defendants, maliciously contriving to injure his good name reputation and credit in said business, and to cause him to be regarded as a person of no credit and in insolvent circumstances, and to prejudice and injure him with said Tibert & Company and other advertising agents doing business at the place aforesaid, who had dealt, and were then dealing, with the plaintiff in the way of his business, and to induce Tibert & Company and others to leave off dealing with the plaintiff, on November 5, 1885, falsely and maliciously wrote and published a false, scandalous and malicious and defamatory libel, of and concerning plaintiff, and of and concerning his business circumstances and credit, in the form of a letter addressed to said Tibert & Company and others, containing malicious matter as follows: “Gentlemen (meaning the aforesaid George S.Tibert & Co.): We (meaning the defendants) are just in receipt of an order from A. R. MacDonald (meaning the plaintiff in this suit) to insert your (said George S. Tibert & Co.) advertisement in the ‘ Church and Home,’ and of which we (meaning the defendants) own the entire advertising space. We (meaning the defendants) are obliged to decline it (meaning the order aforesaid) for certain reasons, but we would be glad to receive your (meaning the aforesaid George S. Tibert & Co.) order direct, or through any responsible agency.” Thereby meaning to state tfiat the business of the plaintiff as an advertising agent was not a responsible agency.
    Then follows an allegation in the count, of special injury to the plaintiff in his trade and business, resulting in special damages, for which he claims, etc.

      Mr. George C. Buell, for plaintiff in error.
    Messrs. Barker & Thornton, for defendants in error.
   Garnett, J.

The publication charged against the defendants was concerning the plaintiff in liis character as an advertising agent. The inducement alleges that he was engaged in that business at the time of the publication. Tlie rule in such eases is stated in Townshend on Slander and Libel, See. 182, to be, that language which concerns a person in his employment, (if such person’s employment is lawful, and may reasonably be expected to yield pecuniary reward,) will be actionable if it affects him in a manner that may, as a necessary consequence, or does as a natural or proximate consequence, prevent him deriving therefrom reward which probably he might otherwise have obtained.

And in the ease of Clifford v. Cochrane, 10 Ill. App. 570, the court gave the rule thus: “The general rule in relation to the speaking of words of one in a particular calling may be stated as follows: Any words spoken of such a person in his office, trade, profession or business, which tend to impair his credit, or charge him with fraud or indirect dealings, or with incapacity, and that tend to injure him in his trade, profession or business, are actionable without proof of special damages.”

The letter sent by defendants to George S. Vibert & Company, carried with it a strong implication that plaintiff’s agency was not responsible. Such a charge is always regarded as harmful to the business interests of a house, and as surely awakens distrust as a direct attack on its honesty. The injurious character of the communication might have been avoided had defendants informed Vibert & Company that they would be pleased to receive their order through any other responsible agency. But having stated that they declined the order through A. IL MacDonald, and then indicating their pleasure to receive the order through any responsible agency, an ordinary reader would scarcely fail to find in the letter, the reflection upon plaintiff’s business character, which is alleged in the innuendo.

If the words employed are reasonably susceptible of two constructions, the one innocent and the other libelous, it is a question for the jury which is the proper construction. It is for the court to decide whether a publication is reasonably capable of the meaning ascribed to it in the innuendo, and for the jury to decide whether such meaning is truly ascribed. Hays v. Mather, 15 Ill. App. 30.

Taking the letter set forth in the declaration according to its plain and natural import, we think it reasonably susceptible of conveying the idea that plaintiff’s agency was not responsible. The defendant’s counsel have fallen into an error in supposing that the declaration shows the communication was privileged because defendants were the owners of the advertising space, and therefore had the right to address Yibert & Company in the manner charged. But the declaration states that plaintiff was the owner of the space; hence the question of privilege is not before us and we express no opinion thereon.

There was error in sustaining the demurrer. The judgment is therefore reversed and remanded.

Reversed and remanded.


text:
    Leopold Dietz v. K. G. Schmidt.

      Landlord and Tenant — Guaranty—Assignment.
    1. Where a lease contains a covenant on the part of the lessee not to assign without the lessor’s assent, an assignment with such assent, does not discharge the liability of the guarantor, although such assignment was without his knowledge.
    2. In the case presented, it is held: That an agreement between the lessor and the guarantor that the question of the liability of the latter should abide the final judgment in a certain suit, contemplated a judgment rendered on the merits.

      [Opinion filed August 1, 1888.]
    Appeal from the Superior Court of Cook County; the Hon. Elliott Anthony, Judge, presiding.
    Messrs. M. Salomon and J. A. Sleeper, for appellant.
    Messrs. William Yooke and Harvey Storcii, for appellee.
   Garnett, J.

The appellant brought this action against appellee on a guaranty of the payment of rent written on a lease for a term of five years, dated April 17, 1882.

The case was tried by the court without a jury; finding and judgment against the plaintiff, from which he appeals. The defendant interposed several defenses:

.First. After the tenant, Fisher, had occupied the premises for about two years, he sold his stock and fixtures and assigned his lease to Henrietta Krause, she taking possession and paying the rent for some time; and, as appellee insists, this was done with the consent of appellant, and without the knowledge or consent of appellee.

Assignment of the lease by the tenant, with the consent of the landlord, does not discharge the guarantor’s liability. The lease contained a covenant on the part of the lessee not to assign without the landlord’s consent. That was for the benefit of the landlord and impliedly gave him the right to consent to an assignment. Such consent and assignment in no way enlarged or affected the liability of appellee. The ruling of this court in Stein v. Jones, 18 Ill. App. 543, closes discussion of the question in this court.

Second. After the assignment to Krause, certain installments of rent being unpaid, Dietz commenced two suits against Schmidt on his guaranty before a justice of the peace. Thereupon an agreement was made between Dietz and Schmidt, dated January 3, 1885, providing that the two suits should be dismissed and costs therein paid by Schmidt; that Dietz should, within thirty days, bring suit in the Superior Court to recover the amount claimed to be due on the guaranty, in which Schmidt should appear and plead within ten days after notice of its commencement; that any final judgment in that case in Schmidt’s favor, not appealed from, should discharge him from liability as guarantor; that until said suit was determined one Bamberger was to rent the premises as agent, and credit to Schmidt the amount received, less commissions, and that no such renting should be construed to discharge the liability of Schmidt.

It is alleged that suit was commenced by Dietz as agreed, but that he took a non-suit therein, and judgment for costs was rendered against him, from which no appeal was taken. That is claimed by Schmidt to be a final judgment within the terms of the agreement. We can not concur in that view. It is unreasonable to suppose that either party contemplated any judgment as a bar to appellant’s cause of action except such as should be rendered on the merits of the case. But a conclusive answer to appellee’s position is, that the record fails to show a final judgment in the suit commenced by Dietz in pursuance of the agreement.

The record offered in evidence shows a judgment for costs against the plaintiff in the Superior Court, in a cause wherein Leopold Dietz was plaintiff and K. Q-. Schmidt was defendant, but there is no evidence showing what was the issue in that suit, what was sought to be recovered, nor when the suit was commenced.

Third. 'After the making of the agreement of January 3, 1885, Bamberger leased the premises to one Koblitz. Appellee insists upon that leasing as a defense. It was expressly authorized by the terms of the contract. We are at a loss to understand how appellee can interpose this leasing as a discharge of his liability.

The court below erred in its finding and judgment for appellee. The judgment will therefore be reversed and remanded.

Reversed and rema/nded.


text:
    Edgar D. Swift, Impleaded with Julia A. Slafter et al. v. Hugh Martin et al.

      Mechanic’s Lien — Statutory Bond — Discharge of Lien — Practice—Reversal in Part.

    The Supreme Court, having remanded a case involving- mechanic’s liens, improperly decreed by the court below, for this court to consider other errors assigned, it is held: That the decree should stand affirmed except as to so much of each as declares a lien and renders judgment in personam against the defendant.
    [Opinion filed August 1, 1888.]
    Appeal from the Superior Court of Cook County; the Hon. Henry M. Shepard, Judge, presiding.
    Messrs. S. E. Dale and F. W. Becker, for appellant.
    Mr. Joseph B. Leake, for appellees.
   Moran, P. J.

The above entitled cases were, by stipulation, heard and determined together in the court below, and while separate decrees were entered, one certificate of evidence entitled in all the cases was signed, and by agreement they were all brought to this court on one record. They were heard in this court at the October term, 1886, and a judgment was rendered reversing the decrees in the court below. On appeal to the Supreme Court the conclusions reached by this court were in part affirmed and in part reversed, and the cases were remanded to this court for further proceedings. We refer to the opinion of this court, 20 Ill. App. 515, and to the opinion of the Supreme Court reported in 120 Ill. 488, for particulars of the case and a statement of the question involved, which it is deemed unnecessary to repeat here.

This court held that there was error in decreeing a lien’ and that the suits should have been dismissed by the court below upon the filing of the bond, in accordance with the mechanic’s lien act, and reversed the decrees. The Supreme Court agreed with this court that there was error in decreeing liens, but said of the order of the Appellate Court, that “It did not follow, from the error in decreeing a lien, that the decrees must be reversed entirely, but only that they should be reversed in part, in so far as they decreed liens.

“The other errors assigned, among which is one as to the amounts found-due, were never in fact considered or passed upon by that court, and yet it, in effect, sustains that assignment of error by reversing the decrees wholly. Had the cases gone back to the trial court there would have to be a re-trial there of the issues as to the amount due, when there had been no determination by the court of review that the former finding on those issues was erroneous. And as it now stands there is no finding as to the amounts due, and in a suit upon the bond there would have to be the same re-trial of those issues.

“ In order to a reversal of the decree entirely we think the other errors assigned, or at least the one as to the amount due, should have been considered and passed upon by the Appellate Court.”

In obedience to the direction of the Supreme Court we have now considered all the errors assigned upon the record against the decrees entered by the Superior Court, and we are of opinion that there are no errors in said decrees except in decreeing the liens for the amounts found to be due from the owners to appellant, and in giving jndgmentsinjpej'sonam against appellant for the amounts found due from him to appellees. We are of opinion that the evidence supports the finding of the court in respect to the amounts found to be due from appellant to appellees, and that said decrees should stand as to the said amounts so found to be due in each case.

The decrees in said cases will therefore be reversed as to so much thereof respectively as declares a lien for any amount, and as to so much thereof as gives a judgment mpersonam against appellant, and will stand affirmed as to so mncli thereof respectively as finds and determines the amount due from said appellant to appellees in each of said cases. And such other or further proceedings may be had in said cases in the Superior Court as are not inconsistent with' this opinion.

Reversed in part and affirmed, in part.


author: Garrett, J.

text:
    Stephen S. Start v. Patrick Moran et al.

      Practice — Variance—Objection First Raised in This Court — Evidence— Note — Guaranty.
    1. A general objection of variance between the declaration and proof is insufficient. That it maybe available by exception, in what it consists must be made lo appear.
    2. An objection can not be first raised in this court.
    [Opinion filed August 1, 1888.]
    Error to the Superior Court of Cook County; the Hon. Elliott Anthony, Judge, presiding.
    Action of assumpsit on guaranty brought by defendants in error against plaintiff in error. The note and guaranty thereon were as follows t
    $650. Chicago, February 26, 1880.

      a Six months after date I promise to pay to the order of D. H. Tolman & Co., six hundred and fifty dollars, payable at their office, value received, with interest at 8 per cent, per annum. G. E. Boyles.”
    Indorsed:
    <[S. S. Start.

      4C Pay to P. Moran & Go.
    66 D. H. Tolman & Co., without recourse on D. H. Tolman & Co.”
    Payment guaranteed by me, August 28, 1880.
    S. S. Start.”

      The declaration alleged the making of the note on, to wit, February 26, 1880, and that D. H. Tolman & Company afterward, to wit, on the day and year aforesaid, and before the ■maturity of the note, indorsed and'delivered the same to P. Moran & Company, and that on the same day, and before delivery of the note to the plaintiffs, in consideration that plaintiffs would accept and receive said note of said D. H. Tolman & Company, and for a valuable consideration to him in hand paid by the plaintiffs, the defendant, by his indorsement thereon, guaranteed the payment of said note, and promised the plaintiffs to pay the same if Boyles should not; that plaintiffs, relying on the undertaking of the defendant, received said note; that Boyles refused to pay the note, and defendant having notice thereof, became liable, etc.
    On the trial, the evidence showed that the first indorsement, “S. S. Start,” was outlie note when it was delivered to the plaintiffs, but did not show whether it was written there before the note was delivered to the payees or after. It also appeared that the second indorsement by Start was made after the delivery of the note to plaintiffs. The note and indorsement were offered in evidence by plaintiffs, and objected to fey defendant for the reason that the same was incompetent and irrelevant, and variant from the cause of action set forth in the declaration, and that plaintiffs had failed to show any consideration for the supposed guaranty. The objection was overruled, and defendant excepted. Verdict for plaintiffs for §906.07. Motion for new trial by defendant. Motion overruled and judgment on verdict. Defendant sues out this writ of error to reverse the judgment.
    Messrs. Whitehead & Pickard, for plaintiff in error.
    Messrs. Clifford & Smith, for defendants in error.
   Garrett, J.

The plaintiff in error objects to the judgment below, on the ground that neither of the considerations set forth in the declaration was proven as alleged. Whether that point is sound on the merits may be doubted, but the recoid is in such condition that the question can not be raised in this court. The objection to the admission in evidence of the note and indorsement was that they were incompetent and irrelevant; that they were variant from the cause of action described in the declaration, and that no consideration had been shown for the supjiosed guaranty. There can be no pretense that the evidence was incompetent, nor does the plaintiff in error now make any such contention. The objection on the ground of variance was general, and failed to point out in what the variance consisted. That has been held insufficient. St. Clair County Ben. Soc. v. Fietsam, Adm’r, 97 Ill. 474.

If the variance had been specified the declaration could have been amended or further proof introduced to supply any deficiency. In this respect the case is parallel to Watson’s Executors v. McLaren, 19 Wend. 557, where the court, in reply to a similar objection, said: “The objection was general that the guaranty and note varied from each count. The objection stopped there. To be made available by exception the particular discordances should have been pointed out, as they are now, for they were open to be obviated.”

The proof did show a consideration. The law presumes a consideration from the note and guaranty. This is admitted by plaintiff in error, but he insists that the consideration thus presumed is not the consideration alleged in the declaration. The objection alleged on the trial was,' that the proof did not show any consideration, which was not true. It would he unfair to allow this point any weight when the attention of the plaintiff below was not directed to it in time to meet it. The judgment of the court below will be affirmed.

Judgment affirmed.


author: MoAlltsteb, J.

text:
    Cornelia Martin v. Wilson H. Stubbings, Impleaded, etc.
    • Assignment of Insurance Policy and Benefit Certificate — Public Policy— Consideration — Parol Evidence — Bill of Interpleader.

      1. Parol evidence is admissible to prove the consideration for a note and a written assignment of an insurance policy and benefit certificate as security therefor.
    2. The waiver of a legal right is a sufficient consideration for a promise-
    3. In the case presented, it is held: That the sum found due upon an accounting between the husband and his co-partner was at least a sufficient equitable consideration for the note and assignment of the insurance policy and benefit certificate, which were executed by the husband and wife; that the waiver by said co-partner of his legal right to terminate the contract of partnership was an additional consideration; and that such assignment was not against public policy.
    [Opinion filed August 1, 1888.]
    Ebbob to the Superior Court of Cook County; the Hon. Gwxnn Gabnett, Judge, presiding.
    This is error to the Superior Court upon a decree in favor of Stubbings, the defendant in error, and against the plaintiff in error, Cornelia Martin, in proceedings by bill of inter-pleader. brought by the Knights Templar and Mason’s Life Indemnity Company against said parties, for the purpose of having them interpleaded, so that the court might determine which of them was entitled to the money due, and to what extent, upon a policy of life insurance issued in June, 1883, by said company upon the life of Heal K. Martin, the husband of said Cornelia, in the sum of $5,000, payable to the widow, children and heirs of said Martin, unless, otherwise ordered during his lifetime or in his will, and containing the express provision that he might change the beneficiary thereunder at liis pleasure without notice to or consent of the beneficiary designated. The said Cornelia claimed all of said money, as the widow of said Heal K. Martin, he having died July 27, 1886, and said Stubbings claimed a lien upon it, to the extent of the sum of $3,411.66 and interest, on the alleged ground that April 16,1886, the said Heal K. Martin being indebted to him in said sum, made his promissory judgment note for said sum payable to him, said Stubbings, one day after that date; that said Cornelia then signed said note as surety and joined with her said husband in assigning and pledging to said Stubbings as security for the payment of said note, the policy or certificate of insurance aforesaid, and also a certain benefit certificate issued to said Heal K. Martin by the Supreme Council of the Royal League, whereby the latter promised to pay said Cornelia, as the wife of said Heal K. Martin, out of its widows and orphans benefit fund, a sum not exceeding §1,000, in accordance with its laws, etc., both of which policies or certificates were delivered into the possession of said Stubbings, at the time of making said note, as a pledge or security for its payment.
    Cornelia Martin, in order to defeat Stubbings’ right under said assignment and pledge, relied upon two grounds only: First, that there was no good or sufficient consideration for the said note or the assignment. Second, that the policies or certificates, from the nature of the corporation issuing them, were not assignable, because it was against public policy and the implied prohibition of the statute, under which the associations issuing them were created, that they should be so. The material facts, as shown by the record and preponderance of the evidence, out of which the transaction of making said note and transfer of the policy and certificate to Stubbings arose are as follows: April 16,1883, Heal K. Martin and Stubbings entered into articles of co-partnership for the purpose of carrying on the business of painting in all its branches, and the sale of paints, oils, varnishes, brushes, etc., in the city of Chicago. The articles provided that the firm name should be W. H. Stubbings & Company; that said partnership should continue for the term of five years, but might at any time be dissolved upon either party giving to the other three months notice in writing of his desire to dissolve the same; that Stubbings should furnish the cash capital required to carry on said business, provide and keep on hand and replenish from time to time a stock of paints, oils, varnish, brushes, ladders, tools, etc., required to carry on said business; that said Martin should devote all his time and energy to said business, and have the entire control and management of the same; that the profits of said business, after paying for the stock furnished and all expenses of said business, should be equally divided between them. It appears that the parties went into said business as partners, under said articles, and carried on the same thereunder until April 16, 1886; that some time prior to that date, Stubbings discovered that Martin had heen drawing out for his own individual use more than his share of the profits, and upon careful and repeated investigation into the affairs of the firm, it was ascertained to the entire satisfaction of said Martin, that down to January 1, 1886, that being the time to which the accounting extended, Martin had overdrawn from said profits the sum of $3,411.66, which belonged to Stubbings, and a settlement was had between them upon that basis; that is, that on the 1st day of January Martin owed Stubbings that amount. It appears that Stnhbings, immediately upon discovering such overdraft, decided to dissolve said partnership, and gave Martin written notice to that effect; that Martin at that time was in had health and earnestly appealed to Stubbings not to cast him off, as he was without means; that finally Martin proposed to Stubbings that if he would not sever, but renew their partnership relations for another period of time to enable him to pay up said overdraft, he would give his note to Stubbings for said amount,. signed by his wife, and secure the same by turning over to Stubbings his life insurance, in which proposition the plaintiff in error concurred and joined; that Stubbings after awhile acceded to that proposition, and in pursuance thereof all the parties met together April 16, 1886, when, everything being understood and details agreed upon, said Martin executed said note as principal, and his wife as surety, to secure which both joined in a written assignment and pledge of the said policy of life insurance and said benefit certificate, and the wife, having brought them there, they were then and there delivered into Stubbings’ possession; that thereupon Martin and Stubbings executed new articles of co-partnership bearing that date, whereby the former ones were specifically canceled and annulled, and provided, in substance: 1. That said parties thereby formed a partnership for the purpose of carrying on the business of painting and papering in all its branches, and buying and selling painted goods and materials of all kinds of paints, papers, oils, varnishes, brushes, ladders, etc.
    2. That the business should be carried on under the firm name and style of W. H. Stubbings & Company.
    3. That said partnership should continue for the term of two years, but might be dissolved at any time by either party giving to the other three months notice in writing of his desire to dissolve the same.
    4. That Stubbings should allow the plant and stock on hand belonging to him which had been used in the business heretofore carried on by said parties, and which is now located at 541 West Madison street, in the city of Chicago, to continue to be used in the business of said parties, and, when necessary, he should also advance the .cash capital required to carry on said business, and replenish said stock from time to time as may be necessary to carry on said business, the firm allowing interest on the money so advanced.
    o. That said Martin should devote all his time and energy to said business, so far as his health will permit, and shall have the control and management of the same.
    6. That during the continuance of said partnership business said Stubbings shall spend such time in said business as he conveniently can.
    7. That said Martin shall keep, or cause to be kept, just anu true books of account of said business, which shall at all times be open to the inspection of Stubbings.
    8. That said parties shall equally share all profits and losses of said business; but no profits shall be divided until all the expenses of said business have been paid and said Stubbings shall have been reimbursed for the value of the plant and stock contributed by him as aforesaid, and all capital which he may advance, as hereinbefore provided.
    9. “ It is hereby mutually agreed that neither party hereto shall draw from the said business a sum to exceed one hundred and fifty dollars during any one month during the continuance of this partnership, unless the sum shall be mutually agreed upon in writing.”
    It appears that the partnership was launched and business carried on under said articles until July 27, 1886, when said Martin died. At the hearing upon pleadings and proofs, a decree passed in favor of Stubbings, in which the associations issuing said policy and benefit certificate respectively acquiesced, and Cornelia Martin alone brings error to this court.
    Messrs. Millard B. Powers and Egbert S. Iles, for-plaintiff in error.
    We maintain, in the case at bar, that to permit the assignment of such certificates as the ones in issue, by the assured, to pay his debts, is contrary to public policy, because it defeats the provisions of the contract between the company and the assured and deprives the widows and orphans of the fund which was especially set apart for their benefit, thus leaving them liable to become a charge upon the public, which is contrary to the spirit of modern society, hence to public policy; for the spirit of our laws (public policy as we term it), is to protect the citizen and his family, in their person and property, to such an extent as to enable them to be self-supporting and not to become paupers. This is also the manifest object of the creation of the fund in question, and the organization of these mutual benevolent associations.
    That this is the policy-of our law is shown by the enaction of exemption laws, and the decisions thereunder, wherein it is held that a man can not sign away or waive his exemptions, as they are intended for the benefit of his family. Phelps v. Phelps, 72 Ill. 545; Curtis v. O’Brien, 20 la. 376; Recht v. Kelly, 82 Ill. 147.
    Messrs. Hotne & Follansbee, for defendant in error.
    The execution of the new articlesof co-partnership by which the scope of the business theretofore carried on between Stnbbings and Martin was enlarged, and by which Martin was to devote only such time to the same as his health would permit, and by which Stubbings was limited as to the amount of money which he could withdraw from the firm monthly, and by which he waived his right to terminate all business relations existing between them, was a sufficient consideration for the execution of said note by Mr. and Mrs. Martin, and a sufficient consideration for the deposit of said collaterals by them. 1* Parsons on Contracts, 431; Doyle et al. v. Knapp, 3 Scam. 334; Buchanan v. International Bank, 78 Ill. 500, 505; Burch v. Hubbard, 48 Ill. 164, 171; Union Trust Co. v. Rigdon, 93 Ill. 458; Joliet Iron Co. v. Scioto Fire Brick Co., 83 Ill. 548; Benton v. Holliday, 44 Ark. 58; Miller et al. v. Hawker, 66 Ill. 185.
    Parol evidence is admissible to show what the consideration in fact was for the execution of the judgment collateral note and the deposit of the collaterals. Grier v. Puterbaugh, 108 Ill. 602; Kidder v. Vandersloot, 114 Ill. 133; Huebsch v. Scheel et al., 81 Ill. 281; Wolf v. Fletmeyer, 83 Ill. 418 ; Primm v. Legg, 67 Ill. 500; Booth et al. v. Hynes et al., 54 Ill. 363.
    It is no longer an open question in this State that life insurance policies or benefit certificates such as those in controversy are the subject of pledge or assignment, and that no principle of public policy is contravened in permitting the s une to be done. This is also true in other States where not prohibited by statute or the contract of insurance itself. Norwood v. Guerdon, 60 Ill. 253; Pomeroy v. Manhattan Life Ins. Co., 40 Ill. 388, 401; Highland v. Highland, 109 Ill. 366; Johnson v. Van Epps, 110 Ill. 551; Benefit Association v. Blue, 120 Ill. 121; Norris v. Mass. Ins. Co., 131 Mass. 294; Troy v. Sargent, 132 Mass. 408; Mutual Life Ins. Co. v. Allen, 138 Mass. 24; Briggs, Trustee, v. Earl, 139 Mass. 473; Newcomb v. Mut. Life Ins. Co., 9 Ins. Law Jour. 124; Emerick v. Coakley et al., 35 Md. 188; Supreme Lodge Knights of Honor v. Naim & Richardson, 22 Cent. Law Jour. 274; Mut. Aid Ass’n v. Gosner, 1 West. Rep. (Ohio) 4; Kentucky Masonic Mut. Life Ins. Co., etc., v. Miller, Adm’r, 13 Bush (Ky.), 489; Baker, Trustee, v. Young, 47 Mo. 453; Archibald v. The Mut. Life Ins. Co., 38 Wis. 542.
    Even if the policy could not be pledged to Stubbings, that objection could be raised only by the companies, and not by Mrs. Martin. Johnson et al. v. Van Epps, 110 Ill. 551.

      At the time Martin pledged said benefit certificates with Stubbings as collateral security for his indebtedness to him, Mrs. Martin had no interest in them; all she had was a mere expectancy, which, had he retained his interest in the policies, would have ripened into a vested right upon his death. As it was, he disposed of a part of his rights thereunder for a valuable consideration prior to his death, and if not done in conformity to the rules of the associations, they alone can complain. Swift v. R. P. and F. C. Ben. Ass’n, 96 Ill. 309; Maloney v. O’Sullivan, 16 Legal News, 181, 182; Norwood et al. v. Guerdon, 60 Ill. 253; Exp. Aid Soc. v. Lewis, 9 Mo. App. 412, 415.
   MoAlltsteb, J.

The position is broadly taken by counsel for plaintiff in error, that there was no legally sufficient consideration to support either the promissory note or assignment, as security therefor, of the policy of life insurance and benefit certificate in question, either as respected Neal K. Martin in his lifetime or as respects the plaintiff in error, his widow, and that, at all events, the court erred in admitting parol evidence tending to 'prove such consideration. If the instrument creating said note and assignment had recited a particular consideration, and that had been insufficient, then it would have been incompetent to prove another and different considera tion by parol. Schemerhorn v. Vanderheyden, 1 Johns. 139; Arms v. Ashley, 4 Pick. 73. But no such particular consideration was expressed, and by the well settled rule of law, parol evidence was admissible to prove a consideration either directly or circumstantially. Tingley v. Cutter, 7 Conn. 291; Cummings v. Bennett, 26 Maine, 397; Patchin v. Swift, 21 Vt. 292; Thompson v. Blanchard, 3 N. Y. 335; Primm v. Legg, 67 Ill. 500; Wolf v. Fletmeyer, 83 Ill. 418; Huebsch v. Scheel, 81 Ill. 281; Grier v. Puterbangh, 108 Ill. 602; Kidder v. Vandersloot, 114 Ill. 133.

The parol evidence being competent, the next question is, did it show a legally sufficient consideration for said promissory note and assignment as respects both parties making the same? Upon the facts shown by the record and a preponderance of all the evidence, we think it did.

The note was given to Stubbings for and on account of a sum found due and a balance struck upon an accounting, free from fraud or mistake, between the latter and said Heal 3L Martin, as respected all their partnership affairs, down to January 1, 1886. It was not an accounting that was to be preliminary to a final settlement, but was, in fact, and so regarded by the parties, a final settlement down to that period of time. As between said Martin and Stubbings, that indebtedness from Martin constituted, as some authorities hold, a sufficient legal consideration for the note. Pars, on Part. p. 278; 2 Bindley on Part. 1027; Van Ness v. Forrest, 8 Cranch, 30; Sturges v. Swift, 32 Miss. 237. At all events it constituted a good equitable consideration, and this was a suit in equity. But there was an additional consideration. By the first articles of co-partnership Stubbings had the legal right, upon written notice to Martin, to sever their partnership relations, had decided to do so, and given the notice accordingly. But at the request of said Heal K. Martin, in which his wife united, and their proposition to give said promissory note and make said assignment as security therefor, if Stubbings would not sever said partnership relations, but continue the same, Stubbings consented to waive said right and to enter into new articles of co-partnership, which was done as set out in the statement of the case April 16, 1886, and the said note and assignment executed at the same time. The waiver of any legal right, at the request of another, has always been deemed a sufficient consideration for a promise. Miller v. Hawker, 66 Ill. 185.

Aside from that, it appears upon the face of said new articles of ^partnership, that pecuniary benefits would flow therefrom and the business to be carried on thereunder, from Stubbings to Martin, while the former subjected himself to the burden of furnishing the plant, all tools, materials and cash capital necessary to carry it on. Martin was to contribute nothing but his personal services, so far as his poor health would permit, was authorized to draw out one hundred and fifty dollars per month for his expenses, and entitled to one half the net profits.

There being a valuable consideration for the equitable assignment of the policy of life insurance and benefit certificate, in which act Martin and his wife united and as to which there is no pretense of fraud or unfairness, we feel disinclined to enter into a discussion of the objections taken by counsel for plaintiff in error that such assignment was against public policy and impliedly prohibited by the statute under which the associations respectively were created, from which said policy and certificate emanated, because we consider that the decisions of our Supreme Court cover the entire ground against the plaintiff’s contention. Pomeroy v. Manhattan Life Ins. Co., 40 Ill. 398; Norwood v. Guerdon, 60 Ill. 253; Highland v. Highland, 109 Ill. 366; Johnson v. Van Epps, 110 Ill. 551; Benefit Association v. Blue, 120 Ill. 121. The decree below should be affirmed.

Note — The case of Cornelia Martin, implead d with the Supreme Council of the Royal League v. Wilson H. Stubbing, being the same as the above case, is decided in the same way.

Decree affirmed.

Garnett, J., took no part in the decision of this case.