text:
    The Illinois Trust and Savings Bank of Chicago v. Herman Felsenthal et al.

      Money Had and Received—Transfer of Check by Equitable Owner.

    An action for money had and received, brought by one bank against another, does not lie to recover the amount paid on a check drawn against the plaintiff and transferred to the defendant by the equitable owner after indorsing the name of the payee.

      [Opinion filed May 31, 1888.]
    Appeal from the Superior Court of Cook County; the Hon. Elliott Anthony, Judge, presiding.
    Mr. James II. Miller, for appellant.
    A forged indorsement does not pass title to commercial paper negotiable. Sec. 4, Chap. 98, Starr & C. Ill. Stat.; Graves v. American Exchange Bank, 17 N. Y. 208.
    It has been held that a fraudulent indorsement of a fictitious payee’s name will constitute forgery. Rex v. Taft, Leach Cro. L. 172; Tattock v. Harris, 3 T. R. 174; Vene v. Lewis, 3 T. R. 182; Minet v. Gibson, 3 T. R. 482.
    But these payees were not fictitious as to the drawer or acceptor, for the reason that the checks were drawn to real persons, known to exist at the time and present to the mind of the drawer when he drew the checks. Koln v. Watkins, 26 Kan. 690.
    Again, we assert without fear of successful contradiction, that under the rule laid down in Milliard v. National Bank, 3 McArthur, 154, Seventh National Bank v. Cook, 73 Pa. St. 483, Johnson v. First National Bank of Hoboken, 6 Hun, 124, appellees were bound to ascertain that Hertel, on presentation of the checks, was entitled to receive payment, and for not so doing, they are under the penalty of refunding the money so received, or so much as will in conscience and equity make good to appellants the loss they sustained.
    • Mr. Eli B. Felsenthal, for appellees.
    Plaintiff had the undoubted right to elect to treat the indorsements on these checks as genuine, and in the absence of the fraud which was perpetrated upon it, would have suffered no loss, even if the indorsements had not been made by the intended payees. It would have been a case of damnum absque injuria. When Prussing was sent for by Mr. Felsenthal, and informed of Hertel’s fraud, he must he held to have known that the affidavit that Hertel had made was false, and that the checks which he had given to Hertel, and which plaintiff had already paid, could not have gone to satisfy any indebtedness of Hertel’s to mechanics upon a building which never had been erected. Yet the plaintiff made no claim upon the defendants, but regarded the indorsements as sufficient, and entered up judgment upon the note which Hertel had given.
    Subsequently it took a deed from Hertel for the lot upon which it held a trust deed, for which it credited Hertel $900, and we contend they are now estopped from setting up any claim by reason of the indorsement on said checks.
    Upon question of estoppel, see Hefner v. Vandolah, 62 Ill. 483; Same v. Dawson, 63 Ill. 403; Litzelman v. Howell, 2 Ill. App. 588.
   Bailey, J.

This was an action of assumpsit, brought by the Illinois Trust and Savings Bank of Chicago against Herman Eelsenthal and others, for money had and received. At the trial before the court, a jury being waived, the issues were found for the defendants and judgment was entered in their favor for costs.

The money sued for was paid by the plaintiff to the de-. fendants upon two checks, dated October 6, 1885, drawn by Eugene E. Prnssing on the'plaintiff, one being for $400, payable to tlie order of Charles Bi'eyer, and the other for $1,025, payable to the order of H. C. Zimmerman. Both of these checks were paid to the defendants through the Chicago clearing house, October 7, 1885, and at the time of such payment they bore what purported to be the indorsements of the payees therein named. It is now claimed, and the evidence tends to show, that said indorsements were not the genuine indorsements of said payees, but were written on the checks by or by the procurement of one Charles Hertel.

The facts in relation to said checks, as disclosed by the record, are substantially as follows: The plaintiff and defendants are bankers doing business in the city of Chicago, and are engaged in loaning money on real estate securities. Prussing, the drawer of the checks, is an attorney-at-law and at the date of said checks was acting for the plaintiff in negotiating and placing its loans. A short time prior to that date, Charles Hertel applied to Pressing for a loan of §3,000, and offered as security a lot which he described as No. 177 Fremont Street, Chicago, and represented that there was a three-story building on said lot which he had just erected. Pressing referred Hertel’s application for a loan to the plaintiff, and thereupon the plaintiff’s president went upon the premises to examine the sufficiency of the security offered and reported to Pressing that it was sufficient. Pressing examined the title and found it good, and then prepared a note for §3,000 and a deed of trust on said lot to secure the same, and on the 26th day of September, 1885, said papers were executed by Hertel, and on the same day the deed of trustwas tiled for record. On the 6th day of October, 1885, Pressing notified the plaintiff’s cashier that he was ready to close the loan, and thereupon the plaintiff placed to Pressing’s credit the sum of §3,000 which was to be paid over to Hertel.

Before paying over the money. Pressing, as a matter of precaution, required Hertel to make an affidavit in relation to the building on said lot and the claims and liens of mechanics and material men thereon, in which Hertel stated that he was the owner of said lot and building; that he did the mason work therein himself and had paid for the labor and material pertaining to such work in full; that he let the carpenter work, painting, roofing and plastering to H. C. Zimmerman for' §2,500 and had paid him §1,4:75 and that the sum of §1,025 remained due said Zimmerman; that he let the plumbing and gas-fitting to Charles Breyer for §100, all of which ivas still owing to him; that these two sums were all that was owing on account of said building, and that he had received no notice of any lien on the premises from any source whatever.

After taking this affidavit, Pressing, at the suggestion of Hertel, drew his checks for the amounts of said claims, payable respectively, to Zimmerman and Breyer, and expressed on the face of the checks that they were in full of all claims on account of said building and delivered them to Hertel to be by him delivered to the payees therein named. Hertel, instead of delivering the checks to Zimmerman and Breyer, caused the names of said payees to be indorsed and then negotiated the checks to the defendants, who immediately collected them of the plaintiff through the clearing house, as already stated.

Shortly after the checks were paid it was discovered that the lot known as Ho. 177 Fremont Street had no building whatever on it, but that the building examined by the plaintiff’s president was, in fact, standing on another lot. It follows that neither Zimmerman nor Breyer had any claim or lien on the lot mortgaged by Hertel to the plaintiff, or to the moneys represented by said checks, Heither of them put any labor or materials into any building on the lot mortgaged, or, so far as appears, into any building on any lot owned by Hertel.

It is plain from the foregoing facts, that, as between Hertel on the one hand, and Zimmerman and Breyer on the other, Hertel was the equitable owner of the moneys represented by said checks, and therefore the equitable owner of the checks themselves. They were given for money which he had borrowed from the plaintiff and for which he had given the plaintiff his note and deed of trust. He was owing Zimmerman and Breyer nothing, and they, therefore, had and could have no claim on said money or any portion of it. If Hertel had retained the. checks in his own possession, they would have been powerless to compel him to deliver the same over to them. Hor can they have any claim upon the plaintiff based upon the checks, or upon the payment of them by the plaint-, iff without their indorsement.

Hertel, by selling and delivering the checks to the defendants, transferred to them his equitable title. We may entirely disregard the indorsement of the names of the payees, and treat such indorsements as mere forgeries. The rights of the defendants in that case are the same as though Hertel had sold them the checks without indorsement, which would have amounted to an equitable assignment. The defendants’ equitable title to the checks gave them an equitable right to the moneys payable thereon, a right which they could doubtless have enforced by a proper proceeding. The plaintiff then havingjíshe defendants1 2**5 money, which the latter were equitably entitled to receive, we see no ground upon which said money can be recovered back. The action for money had and received is an equitable action, and lies where a defendant has received money which ex mquo et bono he ought not to retain. In this case, however, the money in controversy belongs ex aequo et bono to the defendants, and it is, therefore, plain that the plaintiff’s action therefor should not be maintained.

The judgment of the court is, in our opinion, the proper result to be drawn from all the evidence, and it will therefore be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Bailey, J.

license: Public Domain

text:
    Anglo-American Packing and Provision Company v. Albert Lewandowski.

      Personal Injuries—Fellow Servant—Ineompeteneij—Evidence—Instructions.
    1. A servant can not recover damages from his master for an injury caused by the negligence of a fellow servant.
    2. In the case presented, it is held: That the evidence touching the question of the incompetency and unskillfulness of the plaintiS’s fellow servant clearly preponderates in favor of the defendant; and that an instruction touching the negligence of such fellow servant is erroneous. ■
    [Opinion filed May 31, 1888.]
    Appeal from the Superior Court of Cook County; the Hon. Joseph E. Gaby, Judge, presiding.
    Messrs. Page & Booth, for appellant.
    Messrs. Hynes & Dunne, for appellee.
   Bailey, J.

This was an action on the ease, brought by Albert Lewandowski against the Anglo-American Packing and Provision Company, to recover damages for a personal injury resulting in the loss of two fingers on the plaintiff’s left hand. The dee1 oration consists of one count which alleges, in substance, that on the 22d day of ¡November, 1884, the defendant was in possession and control of a certain chopping-block and all the necessary instruments, tools, utensils and machines used in and about the business of chopping meats, and that it was the defendant’s duty to employ skilled and competent workmen to use and operate said instruments, etc., in and about said business; that the defendant, disregarding its duty in that behalf, directed, allowed and permitted an inexperienced, unskillful and incompetent workman to' use and operate said instruments, etc., the inexperience and incompetency of said workman being well known to the defendant but unknown to the plaintiff, and whilst said inexperienced, unskilled and incompetent workman, under the directions and orders of the defendant, through its foreman, was engaged in chopping meats on said chopping-block with said instruments, etc., and whilst the plaintiff, who was then and there in the employ of the defendant, was, with all due care and diligence, rightfully, lawfully and properly engaged, by the orders of the defendant, in removing meat from said chopping-block whilst the same was being chopped by the said inexperienced, unskilled and incompetent workman, the said workman used said instruments, etc., in such an awkward, bungling and unskillful manner, that, owing to said use, two of the plaintiff’s fingers were amputated and cut off by said workman. The defendant pleaded not guilty, and, on trial before the court and a jury, the issues were found for the plaintiff and his damages assessed at §2,500, and for that sum and costs the plaintiff had judgment.

,It appears from the evidence that, at the time the plaintiff was injured, he, Frank Sanke and Peter Noel, all servants of the defendant, were engaged in cutting up sides of pork on the chopping-block mentioned in the declaration. Noel was placing the sides of pork on the block, Sanke was using the cleaver, and the plaintiff was removing the pieces of pork from the block and assorting them by placing them in several boxes standing near. The sides of pork were being cut into four pieces by three strokes of the cleaver, and in almost every case a fourth stroke was required to trim off a small piece of fat from the flank. It was the custom of the choppers to make the four strokes in quick succession, and then, as a signal to the assistant to remove the pieces from the block, to rest the cleaver on the shoulder or set it in a vessel of hot water.

On the occasion of the plaintiff’s injury, Sanke had made the three strokes cutting the side of pork into four pieces, and as he was making the fourth stroke to trim the small piece from the flank, the plaintiff attempted to take hold of the flank piece with his left hand, and as he was doing so, Sanke made the fourth stroke and cut off the plaintiff’s fingers.

There is a conflict in the evidence as to the precise circumstances of the injury. It appears that there was occasionally a side piece of pork from which the small piece of fat did not have to he trimmed, and in such cases only three strokes were made, and then the signal was given for removing the pieces of pork from the block. The plaintiff testifies that at the time of the injury Sanke made three strokes and then rested his cleaver on his shoulder, and that he, the plaintiff, acting on such signal, was in the act of removing the pieces of pork from the block, when Sanke, without warning, struck a fourth blow, cutting off his fingers. Both Sanke and bToel, on the other hand, testify that no such signal was given, but that the four strokes followed each other in rapid succession without any pause, and that the plaintiff received his injury by attempting prematurely to remove the pieces of pork from the block.

The evidence clearly shows, and it is admitted, that Sanke, jSToel and the plaintiff were fellow servants of the same master, the defendant, and that the ordinary rule applicable to injuries from the negligence of fellow servants applies. The plaintiff bases his right to a recovery solely upon the allegation of negligence on the part of the defendant in éinploying Sanke to act as a chopper. Evidence was given on both sides in relation to Sanke’s experience, competency and skill as a chopper, the plaintiff’s evidence pending to show that he had had but very little previous experience in chopping meats, while the defendant’s evidence tends to show that he had had very considerable previous experience, and was, in fact, a very competent and skillful chopper.

We have carefully considered all the evidence bearing upon the question of Sanke’s skill and competency as a chopper, and of the defendant’s negligence in employing him in that capacity, and are forced to the conclusion that it strongly preponderates in favor of the defendant. We purposely refrain from discussing the evidence in detail, as such discussion would be likely to embarrass rather than aid the court and parties on another trial, but simply say that, as we view the case, the preponderance in favor of the defendant upon this vital question in the case is so clear and decisive that the matter should be submitted to another jury.

We are not altogether satisfied with the finding of the jury upon the question of the plaintiff’s contributory negligence. If the testimony of Sanke and lío el is to be believed, the plaintiff’s injury resulted from his own carelessness. lioel, so far as appears, is a wholly disinterested witness, and Sanke has certainly no greater interest in the result than has the plaintiff. They tell substantially the same story, and are disputed only by the testimony of the plaintiff, whose interest in the event of the suit should, of course, be taken into the account.

The first instruction given to the jury at the instance of the plaintiff is subject to just criticism, in that it submits to the jury the question of the negligent acts of Sanke as an element to he considered in determining the liability of the defendant. It is too well settled to require argument or authority, that a servant can not recover from his master damages for an injury caused by the negligence of a fellow servant. It was therefore error to submit to the jury the question of Sanke’s negligence, as distinguished from his incompetence and unskillfulness.

For the reasons stated the judgment will he reversed and the cause remanded for a new trial.

Reversed and remanded.


author: McAllister, J.

text:
    Patrick Sanders v. Michael Hutchinson.

      Building Contracts—Architect as Umpire—Certificate as Evidence— Trial—Surprise.

      1. The parties to a building contract which designates the architect as umpire, are bound by his decision.
    2. In an action by a contractor to recover a balance claimed to be clue under such a contract, it is held: That the certificate of the architect specifying defects and variances was improperly excluded; and that it was not rendered inadmissible by an item therein contained as to which the architect exceeded his authority.
    3. It seems that the architect, in the case presented, should have been permitted to use said certificate as a memorandum with which to refresh his memory.
    [Opinion filed May 31, 1888.]
    Appeal from the Superior Court of Cook County; the Hon. Elliott Anthony, Judge, presiding.
    Messrs. Mason Brothers, for appellant.
    The court should have allowed the witness, G. M. Hawks, to refresh his recollection by reference to the written statement dated November 11, 1885. Flynn v. Gardner, 3 Ill. App. 253; Bonnett v. Glattfeldt, 120 Ill. 166; Wharton on Ev., Sec. 523; 1 Greenleaf on Ev. (12th Ed.), Sec. 438; Chicago and Alton R. R. Co. v. Adler, 56 Ill. 344, 348; Marcly v. Shults, 29 N. Y. 346, 351.
    The statement itself should have been admitted in evidence, being the decision of the architect and superintendent, selected by the contracting parties to pass upon the merits of the job Taylor v. Renn, 79 Ill. 181, 184; Korp v. Lull, 70 Ill. 420.
    The court allowed plaintiff to introduce evidence in rebuttal which properly belonged to his evidence in chief, but refused to allow appellant to meet this additional evidence. Chillicothe, etc., Co. v. Jameson, 48 Ill. 281.
    Mr. Thomas J. Walsh, for appellee.
   McAllister, J.

This was an action by the appellee, Ilutchinson, against appellant, Sanders, upon the common counts in assumpsit, to recover a balance claimed to be due from the latter to the former upon a building contract and for extra work. The plaintiff introduced in evidence a contract under seal between him and the defendant, bearing date July 9, 1885, which he claimed to have performed, and that there was still due of the agreed price some §1,500. He also gave evidence tending to prove extra work. The contract contained the following provisions: “To wit: M. Hutchinson, the party of the first part, agrees to furnish all material of every sort and kind, and perform all labor required to be furnished and performed, in the erection and completion of a building to be built at Woodlawn Avenue, on 63d Street, for the party of the second part, in strict accordance with the plans and specifications drawn and written by Gr. M. Hawks, architect, in a good and workmanlike manner, and satisfactory to said architect, and the party of the second part, for the sum of five thousand nine hundred and eighty-five dollars, to he paid as the work progresses, in accordance with the certificates of tlie architect, always reserving fifteen per cent, of the cost of material furnished and labor done from each and every certificate until the whole if completed to the superintendent’s satisfaction, when said balance shall be paid to the party of the first part or his heirs.

“ P. Sanders, the party of the second part, agrees to pay, or cause to be paid, to the party of the first part, the aforesaid sum of §5,985 in manner above written.

“And it is further agreed between the parties hereto, that should there be any difference of opinion between the parties in regard to the quality of tlie material used or labor done, that such differences shall be referred to.the superintendent, and Ms decision shall he final, without recourse to any other remedy.”

The plaintiff at the trial produced no evidence tending to prove that the building had been erected and completed in accordance with the plans and specifications and to the satisfaction of said Hawks, or that the latter had given him any final certificate to that effect. The plaintiff gave evidence tending to show facts upon which to predicate a legal excuse for not obtaining a final certificate of the architect, hut there was a clear preponderance of evidence against him as to such facts.

The defendant set up as a defense by way of recoupment or set-off the non-performance of the contract by plaintiff, claiming damages, and introduced evidence in support of it. Hawks was called as a witness on defendant’s behalf to prove such non-performance, and testified that about the time plaintiff surrendered the building as finished, he made an examination of it as to compliance with the plans and specifications, found numerous defects and variances, and thereupon prepared a certificate of dissatisfaction, and in it specified such defects and variances, as follows:

“Chicago, ¡November 11, 1885.

“¡Deductions made by G- ¡M¡. Hawks, architect and superintendent of a building at Woodlawn Avenue and 63d Street, of two stories, including basement and a hall in second story, for P. Sanders, Esq., in accordance with the contract made between said Sanders and M. Hutchinson for material and labor not furnished or done in accordance with the plans and specifications and to the satisfaction of the superintendent and owner, as per contract, to wit:

“ Gr. M. Hawks,
uArchitect and SufermtendentP

The witness, having in his hand the original paper so made by him (of which the foregoing was a copy), was about to refer to it to refresh his memory, when the trial judge excluded it for that purpose on the ground that it was not made contemporaneously with the facts. The defendant’s counsel offered the' said certificate of the architect and memorandum of deficiencies in evidence, but, on objection of plaintiff’s counsel, the court excluded it.

After both parties had rested, the court, against the objection of defendant, permitted the plaintiff to introduce four new witnesses to testify to matters belonging to his case in chief, and not rebutting. The defendant then offered to introduce additional witnesses to meet such testimony, but the court would not permit him. No instructions were given to the jury, who returned a verdict against the defendant for $1,000. In support of the motion for a new trial by defendant, lie introduced affidavits showing surprise by said action of the court by which he was prejudiced. The court overruled the motion, gave judgment, and defendant appealed.

We are of opinion that it was competent for the witness Ilawks to refer to the certificate and memorandum which he had made for the purpose of refreshing his memory as to items of deficiencies. It was made upon a personal examination by him as architect and superintendent of the work and materials in the building, and made while the matters were all fresh in his mind. The cases in support of its admissibility-for that purpose are too numerous and the doctrine too familiar to justify citations of authority.

But the matter is left by the record so much in obscurity as to there being any reason, need or necessity for the use by the witness of this paper for the purpose of refreshing his recollection, and consequently as to the defendant being prejudiced by the refusal to permit its use, that, if that were the only error in the case, we should be disinclined to reverse.

The second point for reversal made by appellant’s counsel is the exclusion by the court of said certificate of the architect from the evidence when offered by the defendant. No question was made on the trial that the contract was not fairly entered into. No objection was made to the certificate of the architect that it was procured by, or in furtherance of, fraud, or that Hawks was not, at the time of making it, still the architect and superintendent of the work contracted to be done. By the contract the plaintiff agreed u to furnish all material of every sort and kind and perform all labor required to be furnished and performed in the erection and completion of a building to be built at Woodlawn Avenue, on 63d Street, for the party of the second part, in strict accordance with the plans and specifications drawn and written by G. M. Hawks, architect, in a good and workmanlike manner, and satisfactory to said architect and the party of the second part, for the sum of §5,985, to be paid as the work progresses, in accordance with the certificates of the architect, always reserving fifteen per cent, of the cost of materials furnished and labor done from each and every certificate, until the whole is completed to the superintendent's satisfaction, when said balance shall be paid to the party of the first part, or his heirs.”

By those provisions, the parties designate an umpire, whose powers are impliedly commensurate with the scope of the matters to be considered and passed upon by him, and agree to abide by his decision. In Tucker v. Butler, 24 Wend. 448, which was a similar case, the court, by Bronson J., said: “But when parties fix on an umpire and agree to abide his decision, neither of them, without the consent of the other, can withdraw the question of performance from the common arbiter for the purpose of referring it to the decision of a jury.” The duty confided to the arbiter in such a case requires the exercise of skill and judgment and he has the power of determining everything requisite to the performance of the contract in accordance with the plans and specifications. Smith v. Briggs, 3 Den. 76. And the cases all agree that, in the absence of impeaching circumstances, the finding of such umpire or arbiter is conclusive. Canal Trustees v. Lynch, 5 Glim. 526; McAvoy v. Long, 13 Ill. 147; McAuleyv. Carter, 22 Ill. 53; Railroad Co. v. Spurck, 24 Ill. 587; Wallace v. Holmes, 36 Ill. 156; Alton, etc. R. R. Co. v. Northcott, 15 Ill. 49; Barney v. Giles, 120 Ill. 154.

It necessarily and logically follows, that if in such case it be competent for the umpire to make a decision and give a cer•tiiicate in favor of the contractor and against the owner, it must be equally competent to give one in favor of the latter and against the former. And if one be admissible in evidence, so must the other be.

We understand from the record that the certificate in the case here was rejected on the ground that the architect, as to one or-more items of non-performance or deficiency, exceeded his powers. We think that as to the last item such was the case. But according to the case of Mills v. Weeks, 21 Ill. 596, that is no ground for excluding it altogether, but the jury should be directed to disregard the part as to which the architect exceeded his power.

There was clearly no cause of action shown as respected the balance claimed upon the contract. There was an irregularity at the close of the trial which operated to the prejudice of the defendant by surprise. It being error to exclude the architects certificate showing non-performance the judgment must be reversed and cause remanded.

Reversed and remanded.


author: Horan, P. J.

text:
    George M. Fadner et al. v. E. B. Hibler.

      Agency—Contract—Execution by Agent—Evidence.
    2. A contract signed by an agent is inadmissible in evidence against the principal, without proof of the agent’s express or implied authority to sign.
    2. No inference of such authority can be drawn fiom evidence that the agent had. in the presence of the principal on two occasions, drawn up and signed contracts embodying terms made by the principal.
    [Opinion filed May 31, 1888.]
    Appeal from the County Court of Cook County; the Hon. li;chard Prendergast, Judge, presiding.
    Hr. S. H. Meek, for appellants.
    Hr. C. S. Thornton, for appellee.
   Horan, P. J.

This action was brought to recover an alleged balance due to appellee for commissions in obtaining orders for nursery stock for appellants. The right of appellee to recover depends upon the terms of the contract of employment, and those terms were the subject of dispute on the trial. Appellee called Geo. M. Fadner as his witness, and he swore, among other things, that hiring the men to go out in the country to take orders for the sale of stock was a matter which he personally attended to; that he made the bargain with appellee, and that the terms were that appellee should have thirty per cent, on the order's he should send in, provided the orders “cashed up,” so that the loss thereon should not exceed ten per cent.; but if the loss did exceed ten per cent, then appellee should make it good.

Appellee then sought to produce in evidence a written contract signed by himself, and also signed “Fadner Bros. & Co., per M.” It was admitted that “M. ” stood for Meyers, who was bookkeeper for Fadner Brothers, and that the signature was in Meyers’ handwriting. Appellant objected that Meyers had no authority to sign such a contract, and to prove him authorized, appellee introduced a witness who swore that Meyers was in the habit of signing contracts with the men in the name of Fadner Brothers & Company; that he knew of two instances of his having done so, each being contracts with the witness.

On cross-examination the witness stated that on each occasion when Meyers signed a contract with him in the name of Fadner Brothers, the terms of the contract were agreed upon by George M. Fadner and himself in the presence of said Meyers, and thereupon Meyers was directed by Fadner to draw up the contract and sign it, which was done then and there in the presence of Fadner.

The court admitted the contract offered by appellee in evidence; said contract provided that appellee should be paid thirty per cent, on all orders sent in, but contained no provision with regard to the percentage of loss on orders, nor any guaranty of orders.

The jury returned a verdict for the balance claimed to be due on the basis of the written contract. It was clearly erroneous to admit the said contract in evidence under the proof. It purported to be signed by an agent, and before it could be admitted against the principal, proof should have been furnished of an express authority to sign, or of authority implied from a holding out of the agent as authorized. There was no attempt to show an express authority, and the proof of holding out was simply that, on two occasions, the said agent had drawn up and signed contracts embodying terms made by the principal and had signed the said contracts in the principal’s presence and by his express direction.

From such proof no inference of the agent’s authority to sign the contract admitted in evidence, could be drawn.

For the error in admitting said contract without evidence tending to show the agent’s authority to sign it, the judgment must be reversed and the cause remanded.

Reversed and remanded.


text:
    Ernst Ammon v. The City of Chicago.

      Municipal Corporations—Spirituous and Vinous Liquors—Classification of Licenses in Respect to Quantity.
    A municipal ordinance requiring a license before making sales of spirituous or vinous liquors in quantities of one gallon or more at a time, is authorized and valid.
    [Opinion filed May 31, 1888.]
    Appeal from the Criminal Court of Cook County; the Hon. Abba E. Watebmar, Judge, presiding.
    Messrs. Blum <& Blum, for appellant.
    Mr. Berj. F. Bacholsoh, for appellee.
   Bailey, J.

In this case Ernest Ammon, the defendant, w'as tried, convicted and sentenced to pay a fine of 050 for a violation of the following ordinance of the city of Chicago, viz.:

“ Sec. 1. Eo person, firm or corporation shall sell, or offer for sale, any spirituous or vinous liquors, in quantities of one gallon or more at a time, within the city of Chicago, without first having obtained a license therefor from the city of Chicago, under a penalty of not less than fifty nor more than two hundred dollars for each offense; but no distiller who lias taken out a license as such, and who sells only distilled spirts of his own production at the place of manufacture, shall be required to pay the license herein prescribed on account of such sales.

“ See. 2. All such licenses shall be issued in accordance with the general ordinances of the city concerning licenses, and for every such license there shall he charged at the rate of $250 per annum.”

The defendant is charged in the complaint with selling spirituous liquors within said city, in a quantity of more than one gallon, and at the trial, which was had before the court, a jury being waived, it was admitted that, at the time mentioned in the complaint, the defendant was a wholesale liquor dealer in said city, and that as such lie made the sale of liquor alleged in the complaint, and that at the time of making such sale he had no license from the city of Chicago to carry on business as a wholesale liquor dealer.

The only ground upon which the defendant seeks to obtain a reversal of the judgment is that the ordinance in question is invalid by reason of the want of legal power on the part of the City Council to pass it. As that question has been conclusively settled adversely to the defendant by the Supreme Court in Dennehy v. City of Chicago, 120 Ill. 627, the judgment must be affirmed.

Judgment affirmed.


text:
    Marshall Field et al. v. August F. Medenwald et al.

      Injunctions—Dissolution — Damages—Creditor's Bill—Husband and Wife.

    1. Only such counsel fees and expenses as have been incurred for the si ne'e purpose of procuring the dissolution of an injunction can be recovered as damages.

      2. Where counsel fees and expenses are incurred in defeating the action, the dissolution of the injunction being merely incidental, such fees and expenses can not be allowed as damages. ,
    [Opinion filed May 31, 1888.]
    Appeal from the Superior Court of Cook County; the Hon. Gwrra G-arnett, Judge, presiding.
    Mr. Frank P. Leeeingwell, for appellants.
    Mr. W. G. Minard, for appellees.
   Bailey, J.

This was a creditor’s bill, brought by Field and others against Mendenwald and wife, to subject certain lands then recently conveyed to Mrs. Medenwald to the payment of the complainants’ judgment against her husband. For some time prior to said conveyance, Medenwald had been carrying on a small retail mercantile business in Chicago. In September, 1886, he transferred his stock of goods, then being of the value of about §3,000, to one Gossitt, in exchange for a tract of land of the same value, and caused said land to be conveyed to Mrs. Medenwald. The complainants claim by their bill that said conveyance to Mrs. Medenwald was without consideration on her part, and was made to hinder and delay the collection of their judgment, while the defendants, by their answer, allege that Medenwald was indebted to his wife in the sum of about §2,700, for money which she had loaned to him several years before that time out of certain advances made to her by her father, and that said indebtedness, with interest, exceeded the value of said land, and that said conveyance was made to Mrs. Medenwald in good faith in payment of said indebtedness. At the hearing, which was had on pleadings and proofs, the court found the issue of fact thus presented in favor of the defendants, and entered a decree dismissing the bill for want of equity.

We do not deem it necessary to discuss the evidence in detail, but only to say that, after giving it careful consideration, we are of the opinion that it strongly preponderates in favor of the defendants. The decree dismissing the bill must therefore be affirmed.

A preliminary injunction having been issued restraining Mrs. Medenwald from conveying or incumbering said land during the pendency of the suit, the defendants, before the entry of the final decree, filed their suggestion of damages by reason of said injunction, the only damages claimed being for moneys paid out and expended for the fees and charges of their solicitor and counsel in obtaining a dissolution of said injunction. On the hearing of said suggestions tiie only evidence produced was that of the defendants’ solicitor, that he was employed by the defendants to defend said suit, and that they had paid him 8120 for his services; that the services rendered in said cause were worth $150; that he spent one day in court watching said cause, and one day at the hearing, besides preparing the cause for trial; that the necessary services rendered in said cause in procuring the dissolution of said injunction were worth $70; that it was necessary, in order to secure such dissolution, to prepare the answer filed in said cause, and that the preparation of such answer was reasonably worth $50. On this evidence the court awarded the defendant damages in the sum of §50, and the allowance of said damages is assigned for error.

We are of the opinion that the decree in this respect can not he sustained. The rule is, that costs and expenses, reasonable in amount, incurred for the single object of obtaining a discharge of the injunction, are allowable as part of the damages by reason of the injunction. But where counsel fees and expenses are incurred in defeating the action, and the dissolution of the injunction is only incidental to that result, such fees and expenses are not allowable. Gerard v. Gateau, 15 III. App. 520, and authorities there cited.

There is no evidence that any of the services mentioned by the witness were rendered for the single object of obtaining a dissolution of the injunction. Mo motion to dissolve appears to have been made, and the dissolution which was finally obtained was only incidental to the decision of the cause on the merits. The only service pointed out, which is claimed to have had any special relation to the injunction, was the drafting of the answer, and that obviously was a necessary part of the defense of the suit. It was not used as a basis for a motion to dissolve, and was not prepared or filed for that purpose, only so far as a dissolution would follow as a necessary part of a general decree for the defendants.

That portion of the decree awarding damages to the defendants will be reversed, and in all other respects the decree will be affirmed, and the canse will be remanded to the court below for further proceedings, the defendants to pay all the costs in this court.

Decree affirmed mjpart and reversed in jpart.


text:
    Walter C. Newberry v. MoBes Bowen.

      Jurisdiction—Appeals—Police Magistrates.

    Appeals lie'from police magistrates to the Circuit Court. The Act of June 13, 1887, has not changed the law in this regard.
    [Opinion filed May 31, 1888.]
    Appeal from the Circuit Court of Cook County; the Hon. Bichabd S. Tuthill, Judge, presiding.
    Mr. Geobge H. Kettelle, for appellant.
    Mr. M. S. Bowen, for appellee.
   Bailey, J.

This was a suit by Bowen against Newberry before a police magistrate of the village of Biver Forrest) Cook County, where judgment was rendered January 8,1886, in favor of the plaintiff, for §15 and costs. The defendant, with a view of removing said cause into the Circuit Court by appeal, filed his appeal bond in the office of the clerk of that court within the time allowed by law for taking appeals from judgments of justices of the peace, and thereupon the police magistrate submitted to the Circuit Court a transcript of the proceedings before him, and the same was duly filed. Afterward the plaintiff entered his motion to dismiss the appeal on the ground that there was, by law, no appeal to the Circuit Court from a judgment of a police magistrate, which motion was sustained and the appeal dismissed, with a procedendo to the police magistrate. From this judgment the defendant has appealed to this court.

The statute, as it stood at the time the judgment in question was rendered, provided for appeals to the Circuit Court from judgments of justices of the peace, but no mention was made of police magistrates, and the only question is, whether the term “justices of the peace,” as used in said statute, should be construed to include police magistrates.

The office of police magistrate was not mentioned by name in either the Constitution of 1818, or in that of 1848. Section 8, Article IT, of the Constitution of 1818 provided that “a competent number of justices of the peace shall be appointed in each county in such manner as the General Assembly may direct, whose time of service, power and duties shall be regulated and defined by law.” Section 1, Article Y, of the Constitution of 1848 disposed of the entire judicial power of the State as follows: The judicial power of the State shall be, and is hereby, vested in one Supreme Court, in Circuit Courts, in County Courts and in justices of the peace, provided that inferior local courts of civil and criminal jurisdiction in ay be established by the General Assembly in the cities of this State; but such courts shall have a uniform organization and jurisdiction in such cities.” By Section 27 of the same Article, it was provided that there should bq elected in each county in the State, in such districts as the General Assembly might direct, by the qualified electors thereof, a competent number of justices of the peace, who should hold their offices for the term of four years, and until their successors should be elected and qualified, and who should perform such duties and receive such compensation, and exercise such jurisdiction, as might be prescribed by law.

Under the Constitution of 1818 the entire State was divided into election precincts, and it was provided by statute that two justices of the peace should he elected in each precinct, except in those in which county seats were located, and that in such precincts three should he elected, such justices of the peace to hold their offices for the term of four years, and exercise certain prescribed civil and criminal jurisdiction. These provisions were continued in force under the Constitution of 1848, except that in counties which should adopt township organization, the townships were to become the election districts in which justices of the peace were to be elected, and the number to be elected in each township was to be based, to some extent, upon the population of the township.

In 1854, in consequence, as it may be presumed, of the growing need of an increased number of inferior magistrates in the incorporated cities and towns of the State, the General Assembly passed an act providing for the establishment in each of the cities of the State of an inferior court of civil and criminal jurisdiction, to be called the police magistrate’s court, and also providing for the election in each of the incorporated towns and cities of the State, according to population, of from one to three officers, to be styled police magistrates, such officers to be elected, commissioned and qualified in the same manner, to hold their offices for the same term and to exercise the same jurisdiction as justices of the peace.

The foregoing act being challenged as unconstitutional was sustained, not as an exercise of the power conferred on the General Assemby to establish inferior courts of civil and criminal jurisdiction in the cities of the Btate, but of the power to create justices of the peace, and that a police magistrate was in reality a j ustice of the peace, the latter being a generic term of which the former is only a species. Re Welch, 17 Ill. 161. In People v. Matteson, 17 Ill. 167, it is held that while the statute provided for the election of police magistrates, the constitutional name of the office was justice of the peace; and in Herkelrath v. Stookey, 58 Ill. 21, it is said : “This court has held that these officers are, under the Constitution and the law, justices of the peace. By changing the name of things, their nature or qualities are in no wise changed. Calling these officers magistrates does not render them, any the less justices of the peace.

The Constitution of 1870, unlike the two preceding Constitutions, recognizes and names the office of police magistrate. Section 21, Article YI, is as follows: “Justices of the peace, police magistrates and constables, shall be elected in and for such districts as are or may be provided by law, and the jurisdiction of such justices of the peace and police magistrates shall be uniform.

The statutes passed since the adoption of the Constitution of 1870, bearing upon the question under consideration, are the following: Section 15, of Article XI, of the general law for the incorporation of cities and villages, provides that “there may be a police magistrate elected at a regular election in each village, who shall give bonds, qualify and have the same jurisdiction as other justices of the peace, and hold his office for four years, and until his successor is elected and qualified.” An act to authorize the election of police magistrates in towns, cities and villages, was passed April 13,1875, which provides that all towns, cities and villages in the State which have been incorporated under charters granted by special acts, or under a general act, when the law under which they are incorporated does not authorize the election of a police magistrate, should be authorized to elect one police magistrate at the first annual election of town, city or village officers, which should occur after the passage of said act, and quadriennially thereafter, snch police magistrates to hold their offices for the same term, be commissioned and qualified, and have the same jurisdiction and fees as police magistrates of villages under the general law for the incorporating of cities and villages. 1 Starr & 0. Ill. Stat. 244.

At the time of the adoption of the present Constitution, police magistrates were officers well known to our laws, having a well defined character and jurisdiction, and constituting a division or class of the body of magistrates, known under the general designation of justices of the peace. They had the same jurisdiction, received the same compensation, were subject to the same rules of practice and procedure, and held their office for the same term as other justices of the peace, differing from other magistrates of the same class only in districts by which they were elected. The framers of the Constitution, in thus adopting without qualification the name of an office in existence and having a character and jurisdiction well defined by law, will be presumed to have used the name as descriptive of the office precisely as it then existed. If, instead of so doing, they had intended to create a new office, having different powers and jurisdiction, and forming a new and separate class of magistrates, they would doubtless have used language manifesting such intention. The only distinction between them, viz., the districts in which they were respectively elected, was recognized in the provision that they should both be elected in and for the districts which then wore or thereafter might be provided by law. At the adoption of our previous Constitutions, police magistrates were not known to our judicial system, and, consequently, were not mentioned or provided for by either of those instruments. Having subsequently sprung, as they did, out of the necessities of our rapidly growing municipal corporations, they were adopted by our present Constitution precisely as it found them. Ho change was made in their jurisdiction, powers or duties, and, therefore, if they-were justices of the peace before the adoption of the Constitution, they are equally f o now. This clearly was the view taken by the Legislature in passing the statute above quoted in relation to the election of police magistrates in villages organized under the general law, where is provided that such magistrates shall have the “ same jurisdiction as other justices of the peace.”

“Justices of the peace” then, being a generic term, which includes police magistrates as a subordinate class, the statute in force at the time the judgment in the present case was rendered providing for appeals from justices of the peace, included as well judgments rendered by police magistrates. Wo are of the opinion, then, that the court below erred in holding that such appeal did not lie, and in dismissing the appeal for want of jurisdiction. Ho inference adverse to this conclusion is to be drawn from the fact that the Legislature at its last session saw fit to so amend the statute in relation to appeals from the judgments of justices of the peace as to make it apply in terms to police magistrates. Sufficient reasons for such amendment may be assigned without resorting to the theory of a legislative interpretation of the statute as it stood prior to the amendment.

The court below also erred in refusing to allow the defendant to amend his appeal bond. Said bond, as it seems, was defective in some respects in its description of the judgment appealed from, but it was not a nullity, and was subject to amendment, and the defendant should have been permitted to file a sufficient bond.

For the errors above pointed out, the judgment will be reversed and the cause remanded.

Reversed and remanded.


text:
    City of Chicago v. The Phœnix Insurance Company of Brooklyn.

      Municipal Corporations—Special Tax on Insurance Companies— license—Police Power.

    A municipal corporation, Incorporated under the general law, has no authority to impose a special license tax on foreign insurance companies.
    [Opinion filed May 31, 1888 ]
    Appeal from the Superior Court of Cook County; the Hon. Joseph E. Gaby, Judge, presiding.
    Messrs. Hempstead Washbhbne and Olakenqe A. Knight, for appellant.

      Messrs. Paddock, Alois & Wright, for appellee.
   Bailey, J.

This was an action of debt, brought by the city of Chicago against the Phoenix Insurance Company, a corporation organized under the laws of the State of Hew York, to enforce the provisions of an ordinance of said city in relation to foreign insurance companies. The first section of said ordinance provides that no corporation, company or association, not incorporated under the laws of this State, shall effect fire insurance in said city without first obtaining a license therefor, under a penalty of not less than §50 nor more than §100. The second section of said ordinance is as follows:

“Licenses may be granted to such corporations, companies and associations, not incorporated under the laws of this State, to engage in the business of effecting fire insurance in the city of Chicago, upon the payment of the sum of two dollars upon the one hundred dollars of the gross receipts of the agency of such corporation, company or association, in the city of Chicago. Said licenses shall be semi-annual and shall expire respectively on the thirtieth (30th) days of June and December in each year, and there shall be paid for the same the amount of two per cent, upon the gross receipts of such agency for the preceding half year. Said license fee shall be paid to the City Collector, and shall be accompanied by a statement under oath, as to the amount of said gross receipts for said preceding half year. Upon the receipt given by the Collector, the license shall be issued by the Mayor.”

The third section imposes upon any broker placing any insurance with any such foreign insurance company or association which has not complied with the terms of said ordinance, a penalty of not less than §25 nor more than §100 for each offense, and the fourth section imposes a like penalty upon persons acting as agents of such companies or associations.

The declaration consists of two counts, both of which set out said ordinance in extenso, and allege that said city became incorporated under the general incorporation law, A]nil 23, 1875, and that at that time it had and has ever since had and maintained an organized fire department; that the defendant is a corporation organized under the laws of the State of Hew York, and was and for a year then past had been engaged in effecting fire insurance in -said city. The first count alleges that for the six months next prior to July 1, 1886, said company had received for premiums upon insurance effected within said city the gross sum of $100,000, whereby, and by force of said ordinance, there became due and owing from said company to said city the sum of $2,000. The second count alleges that said company had been engaged in effecting fire insurance in said city as aforesaid through its duly constituted agents without a license as required by said ordinance, whereby, and by force of said ordinance there became due and owing from the defendant to the plaintiff the sum of not less than $50 nor more than $100. A general demurrer to each of said counts being sustained by the court and the plaintiff electing to abide by its declaration, judgment was rendered in favor of the defendant for costs.

The demurrer was doubtless sustained on the ground that the ordinance in question is invalid, such invalidity arising from a want of power on the part of the City Council to pass it. It is claimed that the power to pass such ordinance is given by the proviso of section 30 of the statute in relation to fire insurance companies, as amended May 31, 1879. 1 Starr & C. Ill. Stat. 1127. This precise question was fully considered by the Appellate Court of the Third District in City of Springfield v. City of London Ins. Co., 21 Ill. App. 156, and the conclusion reached that cities incorporated under the general incorporation law are not within the terms of said proviso. With this conclusion we are disposed to concur. As no other authority to pass said ordinance is shown, we are of the opinion that the demurrer was properly sustained.

It is urged, however, that the power to license, regulate and tax the business of fire insurance is a police power, and is embraced within the power granted to the City Council by subdivision 66 of section 63 of the general incorporation law. The power there given is to “'regulate the police of the city, and pass and enforce all necessary police ordinances.” The statute, while giving such general power, specifically sets forth a great number of subjects of municipal legislation, most of them matters of police regulation, and prescribes the manner and extent of the exercise of the police ]30wer over them respectively. Among the subjects thus specifically subjected to police regulation are various avocations and kinds of business, that of fire insurance not being of the number. In another part of the statute, however, the contribution which foreign insurance companies are required to make to the municipal government is specifically prescribed, and no provision is there made for any control by the municipal authorities over such companies or their agents beyond that of collecting and receiving the tax thus imposed. Under these circumstances it is manifest that the licensing and taxing of foreign insurance companies, even if held to be proper subjects for police regulation, are not within the grant of power given to the Common Council by the general clause of the statute authorizing it to regulate the police of the city.

Judge Dillon, in his treatise on municipal corporations, says: “ Occasionally the charter or incorporating act, without any specific enumeration of the purposes for which by-laws may be made, contains a general and comprehensive grant of power to pass all such as may seem necessary to the well-being and good order of the place. More frequently, however, the charter or incorporation act authorizes the enactment of bylaws in certain specified ■ cases and for certain purposes; and after this specific enumeration, a general provision is added that the corporation may make any other by-laws or regulations necessary to its welfare, good order, etc., not inconsistent with the Constitution or laws of the State. This difference is essential to be observed, for the power which the corporation would possess under what may, for convenience, he termed the general welfare clause, if it stood alone, may he limited, qualified, or, when such intent is manifest, impliedly taken away by provisions specifying the particular purposes for which by-laws may he made.” 1 Dillon on Municipal Corporations, 315. See also State v. Furguson, 33 N. H. 424.

The judgment will be affirmed.

Judgment affirmed.


text:
    City of Chicago v. Charles H. Case.

      Municipal Corporations—Licenses—Insurance Agent.

    A municipal corporation, incorporated under the general law, has no authority to require the agent of a foreign insurance company to procure a special license before effecting insurance within its limits.
    [Opinion filed May 31, 1888.]
    Appeal from the Superior Court of Cook County; the Hon. Joseph E. Gary, Judge, presiding.
    Messrs. Hempstead Washburns and Clarence A. Knight, for appellant.
    Messrs. Paddock, Alois & Wright, for appellee.
   Bailey, J.

This is an action of debt, brought by the city of Chicago against Charles H. Case, for the collection of the penalty imposed by an ordinance of the city in relation to foreign insurance companies. The facts are identical with those in the case of the City of Chicago v. The Phcenix Insurance Company, except that in this case the defendant is charged as an agent effecting insurance within said city for said insurance company, said company not having a license as required, by said ordinance. In this case judgment was rendered for the defendant on demurrer to the declaration, and upon the principles decided in the case against the Phoenix Insurance Company, said judgment must be affirmed.

Judgment affirmed.


author: MoA llister, J.

text:
    George Railton v. John Lauder.

      Notices—Publication.

    The Chicago Daily Law Bulletin is a secular newspaper of general circulation within the meaning of the statutes providing for notice by publication.
    [Opinion filed June 13, 1888.]
    Appeal from the Circuit Court of Cook County; the Hon. Richard S. Tüthill, Judge, presiding.
    Mr. D. S. Gooding, for appellant.
    Messrs. Knickerbocker & Holdom, for appellee.
   MoA llister, J.

This was a suit by attachment brought by appellee against the appellant as a non-resident of the State. There was no personal service upon or appearance by the appellant, but notice in due form was published for the requisite time, in a paper known as The Chicago Daily Law Bulletin. The only question presented by this appeal is, whether that paper was of the character and description required by the statutes prescribing the manner of constructive service or notice in such cases. Sec. 22 of the Attachment Act makes it the duty of the clerk of the court in which the suit is pending “to give notice by publication at least once in each week for three weeks successively in some newspaper published in this State, most convenient to the place where the court is held,” etc.

Then in the chapter entitled “Hotices,” Sec. 5, is this provision: “When any notice is required by law or contract to be published in a newspaper (unless otherwise expressly provided in the contract) it shall be intended to be in a secular newspaper of general circulation, published in the city, town or county, or some paper specially authorized by law to publish legal notices, in the city, town or county.”

The proof adduced in the court below shows that the Chicago Daily Law Bulletin had' been established and published in the city of Chicago for the period of about thirty years; that it was issued every secular day; that while its columns were largely devoted to legal matters and court notices, yet they contained various advertising matters, not being confined to such as related to any particular calling, and also news and information of a general and secular character, besides information of a legal character, generally denominated legal news. It was also shown that it had a general circulation throughout the city of Chicago and county of Cook, among Judges, lawyers, real estate dealers, brokers, merchants and business men generally.

Upon due consideration we are of opinion that the Chicago Daily Law Bulletin is a secular newspaper of general circulation within the meaning of the statute. Kerr v. Hitt, 75 Ill. 51; Hernandez v. Drake, 81 Ill. 34; Kellogg v. Carice, 47 Mo. 157.

The judgment should be affirmed.

Judgment affirmed.


author: Morait, P. J.

text:
    Leander Choate v. Emily Blackford et al.

      Attachment—Ansioer of Garnishee—Burden of Proof—Evidence.

    1. The burden is on the plaintiff in an attachment proceeding to disprove the statements contained in the answer of a garnishee under oath.
    2. In'the case presented the evidence contained in the record docs not sustain the verdict against the garnishee.
    [Opinion filed June 13, 1888.]

      Appeal from the County Court of Cook County; the Hon. Biohaeb Pbebtobegast, Judge, presiding.
    Suit was commenced by attachment, by appellee, to recover against one Charles H. Choate, for certain rent claimed to he due from him. Appellant and others were summoned as garnishees, and interrogatories filed.
    In addition to the usual interrogatories to garnishee, appellant was required to answer the following: “Has said Charles H. Choate, during two years last past, transferred, assigned, executed or delivered to you, or to any person for you, any property, money, credits or effects, or any mortgage, trust deed, bill of sale, deed, promissory note, due bill, or other commercial paper, or evidence of indebtedness, or of title or right of any money, property or valuable thing? If so state the date, amount of property, and description of same, thu amount of every valuable thing and right; the consideration whereof, to whom, and when and how paid.” To said interrogatory appellant answered that in August, 1884, said' Charles H. Choate, made to him certain chattel mortgages, a particular description of which is given, in all amounting to §10,000, on property in Chicago, to secure the notes of said Charles H. Choate for said sum, which was then due and owing from said Charles for money theretofore loaned by appellant to said Charles.
    That on or about March 2-5,1886, defendant transferred and assigned to him (Leander) twenty-five joint notes made by Daniel W. and Louisa Albaugh, payable to said defendant, for the aggregate sum of §12,720, one of said notes being an interest note for §720; also a chattel mortgage from said Louisa Albaugh on furniture, fixtures, etc., of 268 and 276 State Street, Chicago, to secure said notes, said notes and mortgages being dated March 15, 1886, and which notes were indorsed to him in blank by Charles H. Choate; that at the date of said transfer said defendant owed said Leander the sum of §7,500, for money theretofore actually loaned defendant, and for which Leander held defendant’s promissory notes, payable to said Leander’s order; that in addition to said notes defendant also owed him at that time on account, $3,000, for which he held no notes; that he accepted from defendant the said Albaugh notes in payment of defendant’s said notes for $7,500, and in payment of said account, and also paid defendant $600 in money, making a consideration to defendant of about $10,000 for said Albaugh notes and mortgage; that appellant conveyed to him by warranty deed, dated May 5, 1886, the equities in two lots in Chicago for an expressed consideration of $6,000, the real value being, according to his best information and belief, about $2,500; that he (Leander) has since conveyed them to said Louisa Albaugh, and has also returned all said Albaugh notes to their makers, and accepted in return for said equities and notes the notes of Louisa Albaugh for $9,250, secured by chattel mortgage on certain furniture and goods, and also by a trust deed on one of said lots; that the consideration for said equities in said lots, moving from said Leander to said defendant, is the liability for the rent of the Carson House in Chicago, which rent he has assumed, agreed to pay and is liable for, and will be so liable for three years to come. Said rent is $300 per month.
    To the general interrogatories appellant replied in the negative. To this answer appellee filed a general replication that said garnishee hath not truly discovered, etc.
    The jury found that appellant was indebted to Charles H. Choate in the sum of $625.-
    Messrs. Fbahk J. Craweoed and George A. Gaby, for appellant.
    Messrs. A. M. Tagert and E. L. Stbwabt, for appellee.
   Morait, P. J.

The answer set out in the foregoing statement, was responsive to the special interrogatory. The answer does not introduce new matter in evidence but states in answer to the question, the consideration paid to Charles H. Choate for the Albaugh notes, and when and how it was paid, and also the consideration for the conveyance of the equities in the lots.

The answer being under oath, and answering no more than was specifically called for by the interrogatory, must stand as true until disproved. The burden was on the appellees to disprove the statements contained in the answer, in order to entitle them to a verdict against the garnishee defendant. Truitt v. Griffin, 61 Ill. 26.

We have examined the record with care, and we are unable to find evidence from which it can be inferred that the garnishee was indebted to the defendant in any sum. A statement from an answer made by appellant in a certain suit in chancery was introduced, but separated from the context as it is, it is difficult to conclude that it contradicts the statements of appellant’s answer in this ease, that Charles H. Choate was indebted to him on notes secured by chattel mortgages, which he paid out to said Charles as part consideration for the Albaugh notes. That appellant makes a confused statement on his cross-examination of the amount of money which he had loaned to Charles H. Choate, is true, but we do not find anything in such statement which overcomes his answer. If the burden was on appellant to prove his answer, the testimony given by him on his cross-examination would aid him little; but the burden being on the other party, his inability to give the dates and amounts of transactions which occurred Jong previously, can not be treated as evidence contradieting the statements of his answer.

Neither do we find any evidence controverting the statement that the equities in the lots conveyed to him by said Charles H. Choate, were conveyed to secure him for his liability for guaranteeing the rent. Counsel argue that he is the assignee of the lease on which he became surety, but we can find no evidence in the record that the lease ever was assigned to him. If such is the fact it should not be difficult to prove it.

If his liability on the guaranty has terminated, by his becoming assignee of the lease, then he may be held to account for the value of the equities conveyed to him as indemnity against such liability.

We have searched the record in vain for evidence which sustains the verdict of the jury against the answer of appellant, and counsel for appellees have entirely failed to point out any evidence which establishes that appellant was owing to defendant, or held as trustee for defendant, the amount found by the verdict or any other definite sum.

The j udgment against appellant must be reversed and the cause remanded.


author: Mr. Presiding Justice Barry

text:
    James H. Chessen et al., Appellees, v. Adam Morick, Appellant.

      Heard in this court at the May term, 1930.
    Opinion filed September 22, 1930.
    John F. McGinnis, Jr. and C. C. Ellison, for appellant.
    Wm. P. Boynton, for appellees; Wm. Wilson, of counsel.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

On July 6, 1925, appellant entered into a written contract for the sale and conveyance of real estate to O. H. Kramer for the sum of $7,000, $3,000 to be paid within 30 days and the balance in three years with interest at 6 per cent. Kramer paid the $3,000 within 30 days from the date of the contract. On February 20, 1926, Kramer gave Mary E. Hess a written assignment of the contract to secure his notes to her to the amount of $5,500. The contract bearing that assignment, and the assignment, were filed for record in the recorder’s office on March 3, 1926.

On May 18, 1926, appellant loaned Kramer $3,000 for which he took a note falling due in one year, and a written contract in and by the terms of which Kramer agreed to pay the said sum of $3,000 in addition to the balance due on the real estate contract before a deed from appellant should be required to be delivered. On April 16, 1928, Mary B. Hess procured an' absolute assignment of the real estate contract from Kramer and had the assignment made to James H. Chessen.

Chessen filed a bill for specific performance making appellant and Mary E. Hess defendants. The defendants answered the bill and each of them filed cross-bills. Issues were joined and the cause referred to a special master in chancery who found the issues in favor of Mary E. Hess and recommended a decree for specific performance and such a decree was entered. The title to the real estate is not involved as the only question is whether appellant is entitled to withhold the execution and delivery of a deed until he is paid the amount of the $3,000 loan made to Kramer on May 18, 1926. The evidence shows that on May 11, 1928, appellant was tendered $4,000 and the interest then due, that being the balance due on the real estate contract.

The general rule of law is that the assignee of a chose in action takes it subject to all equities and defenses between the assignor and the debtor existing at the time of the assignment, but the rule does not extend to a set-off or counterclaim arising out of an independent contract, whether the contract was made before or after notice of the assignment. 5 C. J. 965; Howe Machine Co. v. Hickox, 106 Ill. 461; Holy Cross Gold Mining & Mill Co. v. Goodwin, 74 Colo. 532, 223 Pac. 58; Greene v. Darling, 5 Mason (U. S.) 214. In the Howe Machine Co. case, supra, that company entered into a contract with W. C. and J. M. Hickox. The same contract contained another agreement between the company and W. C. Hickox individually and the contract was dated March 3, 1874. On May 23, 1878, the company recovered a large judgment against W. C. and J. M. Hickox. On August 23, 1878, the company had become indebted to W. C. Hickox in the sum of $2,200 under the terms of the contract of March 3, 1874. On August 23, 1878, W. C. Hickox sold and assigned all of his claims and demands, founded on the contract aforesaid, against the Howe Machine Company, to I. B. Hickox, the said assignment being indorsed on the contract. The assignee brought an action in the name of W. C. Hickox, for his use, to recover said amount and the Howe Machine Company filed a bill seeldng to have the amount sued for by W. C. Hickox applied as a credit on its judgment against W. C. and J. M. Hickox and to enjoin the further prosecution of the suit of W. C. Hickox for the use of I. B. Hickox.

In that case the court quoted from Greene v. Darling, supra, as follows: “Where a chose in action is assigned, it may be admitted that the assignee takes it subject to all the equities existing between the original parties as to that very chose in action so assigned. But that is very different from admitting that he takes it subject to all equities subsisting between the parties as to other debts and transactions.” In the Howe Machine Co. case the court applied that rule of law even though the contract under which the assignee sought to recover was embodied in the same instrument upon which the Howe Machine Company recovered its judgment. The court held that even though there was but a single instrument, yet it contained two separate and distinct contracts and that the assignee did not hold his assignment subject to equities arising out of a separate and independent contract.

In the case at bar Mrs. Hess procured an assignment of the Kramer contract as security for the payment of notes amounting to $5,500 and the contract and the assignment indorsed thereon were recorded on March 3, 1926, and appellant made his loan to Kramer on May 18, 1926. While Mrs. Hess took her assignment subject to all equities appellant had under the real estate contract we would not be warranted in holding that before she is entitled to a deed she must pay him the $3,000 which he loaned to Kramer under a separate and independent contract.

When appellant executed and delivered the contract of sale to Kramer the latter became the equitable owner of the real estate and could dispose of his interest therein by an assignment of his contract. Miedema v. Wormhoudt, 288 Ill. 537. Kramer assigned his contract to Mrs. Hess on February 20, 1926, and she thereby acquired an equitable mortgage on his interest in the land. Allen v. Woodruff, 96 Ill. 11. Three months later appellant loaned Kramer $3,000 under a separate and independent contract the legal effect of which was to give him an equitable mortgage on Kramer’s interest in the land. Fitzhugh v. Smith, 62 Ill. 486. The interests thus acquired by each of the parties from Kramer were purely equitable. Between persons having only equitable interests, if their interests are in all other respects equal, priority in time gives a better equity. 21 C. J. 209; 10 E. C. L. 386.

Appellant’s equitable interest is in no way superior to that held by Mrs. Hess and as she acquired her interest prior to the time appellant acquired his interest she has the better equity. Then again, appellant delivered the contract of sale to Kramer on July 6, 1925, and when he made the $3,000 loan to Kramer he did not require Kramer to produce his copy of the contract and have the new contract indorsed thereon. Under the circumstances of this case it would be highly inequitable to require Mrs. Hess to pay $3,000 more than the balance of the purchase price before she can get a deed.

Appellant contends that the court erred in not requiring Mrs. Hess to pay interest on the balance of the purchase price after the date of her tender to appellant. He insists that as Mrs. Hess was in possession of the real estate and did not actually bring the balance of the purchase money into court, she should be required to pay interest since the date of her tender. His contention in that regard finds some support in Rankin v. Rankin, 216 Ill. 132, and cases therein cited. The latest utterance of the Supreme Court upon the question is Thompson v. Crains, 294 Ill. 270. It was there held that in equity a debtor will not be required to bring the money into court to make the tender good, and if his contention as to the correct amount is upheld he will not be charged with interest after the tender, where the record shows that he has always been ready to pay said amount. In the case at bar the master found that Mrs. Hess made the tender of the balance of the purchase price with interest to the date of the tender and that she has" always been ready, able and willing to pay said amount.

In our opinion she was not required to actually bring the money into court in order to stop interest. It clearly appears that if she had done so the tender would not have been accepted. When she made the tender and demanded a conveyance she was entitled to a deed and the rents and profits from the real estate. If she had brought the money into court and appellant had refused to accept it, appellant would have been in no way benefited. The clerk of the trial court would not have been required to loan the money at interest. No good reason appears why Mrs. Hess should be required to pay interest since May 11, 1928, the date of her tender. Appellant’s motion to strike the additional abstract of . the record from the files will be allowed and no costs for such additional abstract will be taxed against appellant. The filing of the additional abstract was not necessary for the proper consideration and determination of the case. The motion to strike portion of appellees’ statement, brief and argument is denied. The decree is affirmed.

Affirmed.


text:
    Henry Calbreath et al., Appellees, v. Forrest P. Beckwith, Appellant.

      Heard in this court at the May term, 1930.
    Opinion filed September 22, 1930.
    Maurice Y. Joyce and Louis P. Zerweok, for appellant.
    D. B. Webb and W. E. Knowles, for appellees.
   Mr. Presiding Justice Barry

delivered the opinion of the court,

Henry Calbreath and his wife Ida purchased some real estate from appellant for which they agreed to pay $3,500, $700 in cash and the balance in monthly payments; and the agreement was evidenced by a written contract, dated August 8, 1921. The purchasers occupied the premises for about two years when domestic trouble resulted in a divorce. The wife married again and became Ida G-ravot. In 1923, Cal-breath informed appellant that he could not keep up his payments and returned the contract. Sometime later appellant sold and conveyed the premises to another party. Calbreath and his former wife sued appellant in an action of assumpsit to recover the payments made under the contract of purchase and also to recover for improvements alleged to have been made after the date of purchase. That case resulted in a judgment in favor of appellant. The case was tried before the court, without a jury, on February 16, 1927, and was taken under advisement and during the April term of court, on July 20, 1927, the judgment aforesaid was rendered. No appeal orders were taken and the April term of court was finally adjourned on September 3, 1927.

The plaintiffs in that suit filed a bill in equity to set aside the judgment aforesaid and for a new trial. Their bill averred that the January term 1927 of the circuit court was duly convened on the second Monday of January with Judge Crow presiding; that the cause was set for trial on February 16, at which time the parties and their counsel appeared and waived a trial by jury; that the cause was then and there heard by Judge Bernreuter, one of the judges of the circuit; that at the close of the evidence the judge announced that he would take the case under advisement; that it was agreed that written briefs would be submitted to the court by the respective counsel; that no briefs were filed, and that the January term closed on April 9, and the cause was continued; that the April term of court was duly convened on the second Monday of April with Judge Crow presiding.

The bill avers that on July 14, 1927, court was adjourned until July 20, 1927; that on July 20, an order was entered in the said cause as follows: “The court finds the issues for the defendant. Judgment in bar of action and against plaintiffs for costs”; that the judgment was expanded by the clerk as follows: “Now on this 20th day of July A. D. 1927, it being one of the regular judicial days of the present term of this court, comes the parties to this suit by their attorneys, respectively, trial by jury waived, and cause heard by the court — agreement of parties, evidence heard, finding for defendant, judgment in bar of action and against plaintiffs for costs. Therefore it is considered by the court that the defendant do have and recover of and from the plaintiffs his costs and charges in this behalf expended, and that execution issue therefor.” (We have omitted the title of the cause.)

The bill avers that neither the complainants nor their attorneys were present in court on July 20, 1927, and that they never learned that a judgment had been rendered on that day until sometime in November; that the April term of court closed on September 3, 1927; that when they le'arned of the entry of the judgment it was too late for them to appeal or procure a bill of exceptions; that it was the practice, in that court, for the judge on entering a judgment, in a case taken under advisement, when counsel were not present, to notify counsel of the entry of the judgment, or for the clerk to give such notice either with or without the direction of the court.

The material averments of the bill upon which complainants based their right to relief are: That the record does not show that Judg-e Bernreuter was the presiding judge of the court on February 16, 1927, when he heard the cause and took it under advisement, and that by reason thereof the proceedings had on that day were null and void; that although the court adjourned on July 14,1927 to July 20,1927, the record does not show a reconvening of the court on the latter date or that any one of the judges presided on that date; that the judgment entered on July 20, was not entered while the court was in session but was entered in vacation; that no notice was given of the entry of the judgment in violation of a custom or practice in such cases; that the judgment rendered was contrary to the law and the evidence presented in the case and that plaintiffs were entitled to recover $5,000; that the judgment was entered through accident, mistake, misprision, or inadvertence without any fault or negligence of complainants or their attorneys. During the pendency of the chancery suit Henry Calbreath died and the cause was prosecuted by his former wife, Ida Gfravot, alone.

If the common law cause was heard and taken under advisement on February 16, 1927, by a judge who was not then holding court, and a judgment was rendered on July 20, 1927, when court was not in session, the judgment would be null and void. That being true, appellee could have had the judgment vacated, on motion, at a subsequent term. A judgment which the court had no jurisdiction to enter may be vacated at a later term. City of Chicago v. Nodeck, 202 Ill. 257; People v. Weinstein, 298 Ill. 264. For that reason appellee had an adequate remedy at law by a motion to vacate a void judgment. A bill in equity to vacate a judgment at law and allow a new trial cannot be maintained where the complainant has an ample remedy in the law court to set aside the judgment of which complaint is made. Simpson v. Simpson, 273 Ill. 90. The record shows that on February 16, 1927, the parties waived a jury and that there was a trial by the court. Appellee offered no evidence in support of the averment of her bill that Judge Bernreuter was not the presiding judge on February 16, 1927, when he heard the cause and took it under advisement. She averred, in her bill, that the court was in session on July 14, and adjourned until July 20, 1927, but that the record does not show the reconvening of the court on the latter date or that any one of the judges presided on that day. The evidence shows that the April term of court was duly convened with Judge Crow presiding. A placita for the term at which judgment was entered is sufficient to show the legal organization of the court. Leaf green v. Leaf green, 127 Ill. App. 184; Paul v. Weber, 223 Ill. App. 257.

The record does not seem to contain a special placita for July 20, 1927, but it does show that on that day Judge Bernreuter entered a formal order signed by him, appointing a court reporter, and in which order it is recited that July 20, 1927, was one of the judicial days of the April term 1927 of said court. The judgment entered in the case under consideration July 20, 1927, was shown to be in the handwriting of Judge Bernreuter and as written up by the cl'erk the judgment recites that July 20, 1927, was one of the judicial days of the April term of court.

It clearly appears, both from the averments of the bill and the proof, that the April term of court was duly convened and was in session on July 14, 1927, and at that time was adjourned until July 20, 1927. It also appears that Judge Bernreuter was present on July 20,1927, and transacted judicial business. Whenever a judge is present at the time and place designated by law for the transaction of judicial business, and there assumes to transact such business, his acts may be considered as the acts of the court of which he is judge; 15 C. J. 816.

After a defendant is served with process, both parties are bound to be in court, and are charged with knowledge that any proper order may be made at any time, in the absence of a rule excusing attendance unless notice is given. Bonney v. McClelland, 235 Ill. 259; Hickman v. Ritchey Coal Co., 252 Ill. App. 560. An alleged custom or practice cannot become a rule of court because a rule of court is not valid unless spread upon the records of the court. Illinois Cent. R. Co. v. Haskins, 115 Ill. 300. The existence of a rule must be shown by the records of the court and cannot be shown by affidavits. Davis v. Northwestern El. R. R. Co., 170 Ill. 595. In any event the custom alleged to have existed was that after the entry of a judgment, when counsel were not present, the judge or clerk would notify counsel that a judgment had been rendered. Nothing’ was averred or proved with reference to the length of time within which such notice would be given under the alleged custom.

The averments of the bill, to the effect that appellee lost her right to appeal and to procure a bill of exceptions was without any fault or negligence on her part or that of her attorneys, was very material. No evidence was offered in support of that averment other than a failure to observe the alleged custom or practice of giving notice to counsel after the entry of a judgment. The evidence shows beyond question that the cause was heard on February 16, 1927, at which time it was agreed that counsel would submit briefs to the court and that no briefs were ever submitted. The court had the cause under advisement until July 20, 1927, and there is no pretense that appellee, or her attorneys, ever made any inquiry of the clerk, or that they examined the docket until someone else called their attention to the fact that a judgment had been rendered. In our opinion the decree is contrary to the law and the evidence and it is therefore reversed.

Reversed.


author: Mr. Justice Fulton

text:
    Charles Agles, Plaintiff in Error, v. Stolze Lumber Company et al., Defendants in Error.
    Heard in this court at the May term, 1930.
    Opinion filed September 22, 1930.
    Egbert Ferdinand Tunnell, for plaintiff in error.
    Warnock, Williamson & Burroughs, for defendant in error. Bosooe 0. Forth, for W. W. Haven and Buth E. Haven.
   Mr. Justice Fulton

delivered the opinion of the. court.

Defendants in error, partners under the firm name of Stolze Lumber Company, filed a petition in the circuit court of Madison county to foreclose a mechanic’s lien against certain property in Granite City, owned by the defendant, W. W. Haven. Charles Agles, plaintiff in error, was made a party defendant and answered the petition.

He was a subcontractor and at the instance and request of the original contractor furnished the labor and material for the brickwork on the flat or building’ constructed on the premises.

The cause was referred to a master in chancery who heard the proofs and reported that there was due plaintiff in error the sum of $1,737, but that he was not entitled to a mechanic’s lien, because he had not personally served the owner, W. W. Haven, with a notice of his claim for lien.

■ A decree was entered by the court which found that plaintiff in error was not entitled to a mechanic’s lien against the premises for the reason that he failed to personally serve upon the owner, W. W. Haven, within 60 days from the date on which he completed his work, a written notice Of his claim as required by section 24 of the Mechanic’s Lien Law of 1903, Cahill’s St. ch. 82, j[ 24. From that decree Charles Agles prosecutes this writ of error.

We do not find any merit in the contention of plaintiff in error that there was an implied contract in this case between himself and the owner which would void the requirements of section 24. Neither do we give any consideration to the statement that to deny plaintiff in error a lien in this case would be a violation of his constitutional'rights.

The requirements of section 24 providing for service of personal notice of the character therein described upon the owner, or his agent, or architect, or superintendent in charge of work within 60 days from the completion, of his work, are plain and must be complied with in order to give the subcontractor a mechanic’s lien. Throgmorton v. Mosak, 245 Ill. App. 330.

The decree of the circuit court, denying a lien to the plaintiff in error, is correct, and is hereby affirmed.

Affirmed.


text:
    Peter Makarewicz, Appellee, v. National Lead Company et al., Appellants.
    Heard in this court at the May term, 1930.
    Opinion filed October 29, 1930.
    Pope & Driembyer^ for appellants.
    Keeps, Bandy & Listeman, for áppellee.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

On August 13, 1928, Boss Johnson, chief of police of Granite.City, filed a complaint before a justice of the peace in which he charged that he had just and reasonable grounds to believe that appellee killed and murdered Julius Koseta. Appellee was thereupon arrested and taken before the justice, a preliminary hearing was waived, and he was committed to jail. Two days later, upon a petition for habeas corpus, he was admitted to bail and has never been indicted. On November 29, 1929, he sued Mr. Johnson and appellants for malicious prosecution. When reached for trial he dismissed his suit as to Mr. Johnson. The trial resulted in a verdict and judgment for $5,000.

After the case was dismissed as to Mr. Johnson, he became a witness for appellee and testified that appellants’ superintendent insisted that he should file the complaint against appellee, after he told the superintendent that there was not sufficient evidence. He asked the superintendent to go with him to the office of the Assistant State’s Attorney, and when they reached that office all of the evidence that he and the superintendent had was laid before the Assistant State’s Attorney. Mr. Johnson says he then told that officer that he was willing to sign a complaint if he thought that there was enough evidence. The Assistant State’s Attorney then made out the complaint and it was signed and sworn to by Mr. Johnson.

Mr. Johnson is the only witness who testified that the superintendent said he wanted a complaint filed against appellee. Two days after the filing of the complaint appellee presented to the court his petition for a writ of habeas corpus in which he averred that his attorney had been informed that Boss Johnson merely signed the complaint for the purpose of having appellee held because he was requested so to do by the Assistant State’s Attorney. Mr. Bandy was appellee ’s attorney in that proceeding and it was he who prepared and filed the petition. Mr. Bandy testified that the facts averred in that petition were obtained from Mr. Johnson. It is apparent, therefore, that within two days after Mr. Johnson filed the complaint upon which appellee was arrested, he told appellee’s attorney that he had signed the complaint because he was requested so to do by the Assistant State’s Attorney. Mr. Johnson does not deny that he made such a statement to Mr. Bandy. That statement is utterly inconsistent with his testimony in this case to the effect that he signed the complaint because appellants’ superintendent insisted that he should do so. Under the evidence in this record, the jury was not warranted in finding that Mr. Johnson signed the complaint at the instigation of appellants’ superintendent.

Before a recovery can be had in a case of malicious prosecution, the plaintiff must prove that the defendant acted maliciously and without probable cause. If malice and want of probable cause do not concur, an action for malicious prosecution must fail; Israel v. Brooks, 23 Ill. 575; Glenn v. Lawrence, 280 Ill. 581.

Appellee and Julius Koseta had been employed at appellants’ plant for several years. Koseta was appellee’s helper and they worked together every night. They were on duty on the night of July 19, 1928, and about 10 o’clock appellee missed Koseta and searched for him off and on until about 1:30 A. M. when he found him under a trapdoor in a building where he had no occasion to go in the usual course of his employment on that night. Appellee was the one who found Koseta’s body and he says that the head was under the door, but he couldn’t remember whether the face was up or down. He says the door weighed about 450 pounds and rested on Koseta’s head. A bloody hatchet was found near the body. The undisputed evidence is that a doctor examined the body carefully and also held an autopsy. He testified that the only injury found upon Koseta was a fracture in the back of the head which had the appearance of having been inflicted with a hatchet. No other cut or bruise was upon the head, face or body.

Appellants ’ plant and grounds were inclosed within a very high wire fence. Appellee and Koseta were the only persons employed in the building in which they were working on the night in question. When Koseta’s body was found, the police were called to the plant and made investigations to" determine whether any stranger had entered the premises, but could find no evidence of such an entry. The police were of the opinion that a crime had been committed and continued their investigations for several days.

Five nights after the death of Koseta, appellee was engaged in his usual work at the plant. He says he was down in the pit and all the lights went out; that he climbed the ladder and that his body must have been at about the top of the ladder when some person or something hit him. He says there was nothing that he could have bumped against as he climbed the ladder; that he did not know who hit him; that he knew of no way that he could have been hurt except by someone hitting him; that he did not know who or what hit him because the lights were out. He says that when he came to he was under the No. 5 trapdoor, a door similar to the one under which Koseta was found. Appellee had two fractures of the skull, a broken nose, six broken ribs and other injuries.

The police were again called to the plant and could find no evidence of any stranger having entered the premises. On their advice appellants’ superintendent procured bloodhounds, but to no avail. Other employees were uneasy and afraid to work at the plant at night. The police continued their investigations and appellants placed guards on duty and employed two detectives in an effort to ascertain the real cause of these apparent criminal assaults. The detectives learned of certain facts tending to show, in the absence of explanation, a motive on the part of appellee to get rid of Koseta, but it is unnecessary to set them out. They reported their findings to Mr. Johnson, the Assistant State’s Attorney and appellants’ superintendent. Those parties were also informed as to the other facts hereinabove mentioned. Taking into consideration all of the facts and circumstances which were known to° Mr. Johnson and appellants’ superintendent at the time the complaint was filed against appellee, the jury was not warranted in finding that there was no probable cause for appellee’s arrest.

Appellee testified that he and appellants’ superintendent had been on friendly terms for more than 20 years; that appellee’s son has been working for appellants for several years and that he is still in their era-ploy. There is no evidence tending to show that the said superintendent was actuated by malice in anything that was done prior to appellee’s arrest. Sometime after appellee was admitted to bail he applied to the superintendent for work but was informed that he could not put him to work unless he would dismiss his suit. It seems to us that the verdict in this case is due to the fact that appellee was arrested and put in jail before he had recovered from his injuries; that the condition of the jail was unsanitary and that one of the appellants is a hundred million dollar corporation. The judgment is reversed.

Reversed with finding of fact.

The clerk will insert in the judgment the following : “The court finds that appellee failed to prove malice and want of probable cause.”