text:
    Greenebaum Sons Bank & Trust Company and Greenebaum Sons Investment Company, appellees, v. Michigan Building Corporation et al., defendants, on appeal of Ossian Cameron, appellant (formerly entitled Greenebaum Sons Bank & Trust Company and Greenebaum Sons Investment Company, appellees, v. Roy A. Dallager et al., defendants, on appeal of Ossian Cameron, appellant.)
    Gen. No. 33,250.
    Opinion filed October 11, 1929.
    A. W. Martin and Edward H. S. Martin, for appellant. Poppenhusen, Johnston, Thompson & Cole, for appellees; James W. Hyde, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.


source: Caselaw Access Project

author: Mr. Justice Scanlan

license: Public Domain

text:
    Frances M. O’Connor, defendant in error, v. Lee Hammond, plaintiff in error, and Charles D. Tomlins, defendant.
    Gen. No. 33,418.
    Opinion filed October 11, 1929.
    Newby & Murphy, for plaintiff in error; John K. Murphy, Geo. M. Burditt and O. I. Bingaman, of counsel. John A. Bloomingston and James A. Tracy, for defendant in error.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    Hyman S. Flaxman et al., appellees, v. Murphy In-A-Dor Bed Company, appellant.
    Gen. No. 33,424.
    Opinion filed October 11, 1929.
    Meyer Shapiro, for appellant. Walter Truc and James S. Wight, for appellees.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    Milton J. Kausal, appellee, v. Ray F. Mudd Motor Company, appellant.
    Gen. No. 33,463.
    Opinion filed October 11, 1929.
    Parker, McKeon & Clusman, for appellant. William Levine for appellee.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    Thomas H. Mullay, appellant, v. Bertha Haviar and John Haviar, appellees.
    Gen. No. 33,481.
    Opinion filed October 11, 1929.
    Rehearing denied October 22, 1929.
    Thomas J. Young, for appellant. Irene M. Lefkow, for appellees.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    Novak Grocery Company, appellee, v. George Rasmussen Company, appellant.
    Gen. No. 33,490.
    Opinion filed October 11, 1929.
    Soelke, Koehn & Loewy, for appellant. Poppenhusen, Johnston, Thompson & Cole, for appellee; Edward R. Johnston, Floyd E. Thompson and Henry Jackson Darby, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court,


author: Mr. Presiding Justice McSurely

text:
    Davis Miller for use of Arthur H. Framheim, defendant in error, v. Chicago City Bank & Trust Company, plaintiff in error.
    Gen. No. 33,261.
    Opinion filed October 14, 1929.
    ' Rathje, Wesemann, Hinckley & Barnard, for plaintiff in error; Francis E. Hinckley, of counsel. Clarence A. Samuel, for defendant in error.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Anna Malinowski, appellee, v. Metropolitan Life Insurance Company, appellant.
    Gen. No. 33,429.
    Opinion filed October 14, 1929.
    Rehearing denied and opinion modified October 28, 1929.
    Hoyne, O’Connor & Rubinkam, for appellant. Henry W. Hammond, for appellee.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Charles J. Young and Robert G. Becker, trading as Young & Becker Company, appellees, v. H. O. Stone & Company, appellant.
    Gen. No. 33,480.

      Opinion filed October 14, 1929.
    Rehearing denied October' 28, 1929.
    Alvin Glen Hubbard, for appellant. Levinson, Becker, Frank & Glenn, for appellees; Arthur C. Bachrach and L. Julian Harris, of counsel.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Catherine Stukel, defendant in error, v. Le Roy Kloeckner, plaintiff in error.
    Gen. No. 33,534.
    Opinion filed October 14, 1929.
    Miller, Gorham & Wales, for plaintiff in error; Edward R. Adams, of counsel. James C. O’Brien, for defendant in error.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


author: Mr, Justice Matchett

text:
    Carl D. Kinsey, appellant, v. W. C. Zimmerman et al., appellees.
    Gen. No. 30,415.
    Opinion filed October 14, 1929.
    Schein & Beckwith, for appellant; John W. Beckwith, of counsel. West & Eckhart, for appellees.
   Mr, Justice Matchett

delivered the opinion of the court.


author: Mr. Justice Matchett

text:
    Alexander Weiss et al., appellees, v. Harry M. Englestein et al., appellants.
    Gen. No. 33,327.
    Opinion filed October 14, 1929.
    Samuels, Lawton & Wittelle, for appellants; Samuel T. Lawton, of counsel. John A. Bloomingston, for appellees.
   Mr. Justice Matchett

delivered the opinion of the court.


text:
    Chicago Musical Instrument Company, appellant, v. Iva Cragun, appellee.
    Gen. No. 33,367.
    Opinion filed October 14, 1929.
    Sonnenschein, Berkson, Lautmann & Levinson, for appellant; Henry L. Kohn, of counsel. Tourje, Waugh & McClellan, for appellee; J. J. Goshkin, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.


text:
    Edward M. Miller, guardian of the estate of Samuel Letizia, appellee, v. Chicago & North Western Railway Company et al., defendants. Chicago & North Western Railway Company, appellant.
    Gen. No. 33,417.
    Opinion filed October 14, 1929.
    A. A. McLaughlin and I. C. Belden, for appellant. Finn & Miller, for appellee.
   Mr. Justice Matchett

delivered the opinion of the court.


text:
    Raymond E. Gidley, appellee, v. Chicago Short Line Railway Company, appellant.
    Gen. No. 33,426.
    Opinion filed October 14, 1929.
    Rehearing denied October 28, 1929.
    Knapp & Campbell, for appellant; Joseph L. Earlywine and Paul R. Conaghan, of counsel. H. A. Earnhardt, for appellee.
   Mr. Justice Matchett

delivered the opinion of the court.


text:
    Arnold Wallace, by Rubin Wallace, his next friend, appellee, v. Crane Company, appellant.
    Gen. No. 33,449.
    Opinion filed October 14, 1929.
    Alden, Latham & Young, for appellant; Charles Martin, of counsel. Charles C. Spencer, Arthur A. House and Anson H. Brown, for appellee; A. J. W. Appell, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.


author: Hr. Justice Matchett

text:
    Max Wertheimer, appellee, v. United Cigar Stores Company of America, appellant.
    Gen. No. 33,489.
    Opinion filed October 14, 1929.
    John Clark Baker, for appellant. Philip D. Hoffman, for appellee.
   Hr. Justice Matchett

delivered the opinion of the court.


text:
    Catherine Hinz, defendant in error, v. Theodore Hinz, plaintiff in error.
    Gen. No. 33,500.

      Opinion filed October 14, 1929.
    Rehearing denied and opinion modified October 28, 1929.
    Loyal L. Smith, for plaintiff in error. Socrates & Davis, for defendant in error.
   Mr. Justice Matchett

delivered the opinion of the court.


text:
    Alliance Finance Corporation, appellant, v. M. A. Michna, trading as Michna Motor Sales, appellee.
    Gen. No. 33,540.
    Opinion filed October 14, 1929.
    Rehearing denied October 28, 1929.
    William Jaffe, for appellant. Joseph C. Pisha and Ewart Harris, for appellee.
   Mr. Justice Matchett

delivered the opinion of the court.


text:
    Albert Paschke, Sr., appellee, v. Walter P. Schneider, appellant.
    Gen. No. 33,562.
    Opinion filed October 14, 1929.
    Simpson & Baker and Gustav E. Beerly, for appellant; Corinne L. Rice, of counsel. No appearance for appellee.
   Mr. Justice Matchett

delivered the opinion of the court.


text:
    Dovenmuehle, Inc., appellee, v. Albert J. Terwell et al., defendants. Albert J. Terwell, appellant.
    Gen. No. 33,731.
    Opinion filed October 14, 1929.
    Edward H. Kubitz, for appellant. Otto G. Ryden, for appellee.
   Mr. Justice Matchett

delivered the opinion of the court.


author: Mr. Justice O’Connor

text:
    E. C. Winter, appellee, v. Louis Torch et al., trading as Hyde Park Hotel Garage, appellants.
    Gen. No. 33,423.
    Opinion filed October 14, 1929.
    Rehearing denied October 28, 1929.
    Joseph H. Hinshaw, for appellants. Julius S. Neale, for appellee; Philip Appel, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.


author: Mr, Justice O’Connor

text:
    Amalgamated Union of Operating Engineers, appellee, v. West Englewood Trust & Savings Bank, appellant.
    Gen. No. 33,432.

      Opinion filed October 14, 1929.
    Rehearing denied October 28, 1929.
    Deneen, Healy & Lee, for appellant. Kremer, Branand & Hamer, for appellee.
   Mr, Justice O’Connor

delivered the opinion of the court.


text:
    Union County Trust Company of Elizabeth, New Jersey, appellee, v. Charles L. Schwerin, appellant.
    Gen. No. 33,453.
    Opinion filed October 14, 1929.
    Fred M. Outhouse, for appellant. Mayer, Meyer, Austrian & Platt, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    H. Wagner, appellee, v. Ziff Brothers, appellant.
    Gen. No. 33,462.
    McSurely, P. J., dissents.
    Opinion filed October 14, 1929.
    Otto F. Reich and Ode L. Rankin, for appellant. John J. Sonsteby and Joseph J. Berzin, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Arthur H. Rance et al., trading as The Prudential Realty Company, appellants, v. Edith A. Wallin, appellee.
    Gen. No. 33,580.
    Opinion filed October 14, 1929.
    Harold Engstrom, for appellants; Austin L. Wyman, of counsel. Isidore Vise, for appellee; Menz I. Rosenbaum, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Jennie J. Silberman, appellee, v. Harry Shraiberg et al., defendants. Louis T. Volin, appellant.
    Gen. No. 33,776.
    Opinion filed October 14, 1929.
    Rehearing denied October 28, 1929.
    Maurice L. Davis, for appellant. Sonnenschein, Berkson, Lautmann & Levinson, for appellee; I. E. Ferguson, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.


author: Mr. Presiding Justice Boggs

text:
    Second District.
    A. B. Booth, appellant, v. Ray Gore and Andrew Wagner, appellees.
    Gen. No. 8,038.
    Opinion filed June 26, 1929.
    Rehearing denied October 16, 1929.
    Fred W. Potter and George W. Hunt, for appellant. Joseph T. Skinner and J. L. Spaulding, for appellees.
   Mr. Presiding Justice Boggs

delivered the opinion of the court.


text:
    The People of the State of Illinois, defendant in error, v. Anthony Fiorenza, alias John Doe, plaintiff in error.
    Gen. No. 8,001.
    Opinion filed August 5, 1929.
    Douglas Pattison and Ray T. Luney, for plaintiff in error, Martin V. Peterman, State’s Attorney, for defendant in error.
   Mr. Presiding Justice Boggs

delivered the opinion of the court.


text:
    The People of the State of Illinois, defendant in error, v. Albert Caruso, alias John Doe, plaintiff in error.
    Gen. No. 8,002.
    Opinion filed August 5, 1929.
    Douglas Pattison and Bay T. Luney, for plaintiff in error. Martin V. Peterman, State’s Attorney, for defendant in error.
   Mr. Presiding Justice Boggs

delivered the opinion of the court.


text:
    The People of the State of Illinois, defendant in error, v. Jasper Cureia, alias John Doe, plaintiff in error.
    Gen. No. 8,003.
    Opinion filed August 5, 1929.
    Douglas Pattison and Ray T. Luney, for plaintiff in error. Martin V. Peterman, State’s Attorney, for defendant in error.
   Mr. Presiding Justice Boggs

delivered the opinion of the court.


text:
    Fred Franzmeier, appellee, v. L. D. Brown, appellant.
    Gen. No. 8,068.

      Opinion filed August 5, 1929.
    Frank T. Sheean and Louis A. Nack, for appellant. T. J. Campbell, for appellee.
   Mr. Presiding Justice Boggs

delivered the opinion of the court.


text:
    First Trust & Savings Bank of Sterling, Illinois, defendant in error, v. Edward N. Peterson et al., plaintiffs in error.
    Gen. No. 8,071.
    Opinion filed August 5, 1929.
    Rehearing denied October 17, 1929.
    H. A. Brooks, for plaintiffs in error. Carl E. Sheldon, for defendant in error.
   Mr. Presiding Justice Boggs

delivered the opinion of the court.


text:
    The People of the State of Illinois, defendant in error, v. Joe Guston and Paul Scamardo, plaintiffs in error.
    Gen. No. 8,082.
    Opinion filed August 5, 1929.
    North, Linscott, Gibboney, North & Dixon, for plaintiffs in error. William D. Knight, State’s Attorney and A. B. Louison, Assistant State’s Attorney, for defendant in error.
   Mr. Presiding Justice Boggs

delivered the opinion of the court.


author: Mr. Justice Jett

text:
    City of Highland Park, by Olaf Lindblom, appellee, v. V. C. Musser, appellant.
    Gen. No. 7,955.
    Opinion filed August 5, 1929.
    Arthur Bulkley, for appellant. Ernest S. Gail, Leslie A. Needham and Bowen E. Schumacher, Corporation Counsel, for appellee.
   Mr. Justice Jett

delivered the opinion of the court.


text:
    Harvey B. Ramsey, appellant, v. R. M. Morgan, appellee.
    Gen. No. 7,992.
    Opinion filed August 5, 1929.
    A. J. Boutelle, for appellant. R. C. Rice, for appellee.
   Mr. Justice Jett

delivered the opinion of the court.


text:
    Bruce Johnson, appellee, v. Shidler Construction Material Company, appellant.
    Gen. No. 8,015.

      Opinion filed August 5, 1929.
    Rehearing denied October 10, 1929.
    H. H. Whittemore, for appellant. Miller & Streeter, for appellee.
   Mr. Justice Jett

delivered the opinion of the court.


text:
    The People of the State of Illinois, defendant in error, v. Albert Calacurcio, plaintiff in error.
    Gen. No. 8,039.
    Opinion filed August 5, 1929.
    North, Linscott, Gibboney, North & Dixon, for plaintiff in error. William D. Knight, State’s Attorney and A. B. Louison, Assistant State’s Attorney, for defendant in error.
   Mr. Justice Jett

delivered the opinion of the court.


text:
    Presley B. Price, appellee, v. The City of Geneseo, appellant.
    Gen. No. 8,022.
    Opinion filed August 13, 1929.
    Joseph L. Shaw, for appellant. Bartlett S. Gray, for appellee.
   Mr. Justice Jett

delivered the opinion of the court.


author: Mr. Justice Jones

text:
    Mary Kuhre, appellee, v. David Kuhre, appellant.
    Gen. No. 8,061.
    Opinion filed August 13, 1929.
    William Roe and C. B. Chapman, for appellant. Josef T. Skinner, for appellee.
   Mr. Justice Jones

delivered the opinion of the court.


text:
    Maggie Fey Off et al., appellees, v. Exposition Coaster Co., Inc. et al., appellants.
    Gen. No. 7,947.
    Opinion filed August 20, 1929.
    Shurtleff & Niehaus, Charles C. Dickman and George W. Hunt, for appellants. Weil, Bartley & Weil, for appellees; Joseph F. Bartley and Herbig Tounge, of counsel.
   Mr. Justice Jett

delivered the opinion of the court.


text:
    Renier Music House, Inc., for the use of Irwin and Ralph Renier, trading as Renier Bros., appellant, v. Alberta Gassman, appellee.
    Gen. No. 8,054.

      Opinion filed September 24, 1929.
    F. J. Campbell, for appellant. Frank T. Sheean and Louis A. Naek, for appellee.
   Mr. Presiding Justice Boggs

delivered the opinion of the court.


text:
    East Butte Copper Mining Company, appellant, v. G. L. Cole, appellee.
    Gen. No. 8,063.
    Opinion filed September 24, 1929.
    Early & Early, for appellant. Welsh & Welsh, for appellee.
   Mr. Presiding Justice Boggs

delivered the opinion of the court.


text:
    Nettie T. Slemmons, appellant, v. Dime Savings & Trust Company et al., appellees.
    Gen. No. 8,073.
    Opinion filed September 24, 1929.
    Behearing denied December 10, 1929.
    Shelton F. McGrath and C. R. Birkett, for appellant. Frank J. Quinn, Max Murdock and Jay T. Hunter, for appellees.
   Mr. Presiding Justice Boggs

delivered the opinion of the court.


text:
    Joseph A. Jadrich, appellee, v. Maude R. Reinhardt, appellant.
    Gen. No. 7,989.
    Opinion filed September 24, 1929.
    Paul J. Donovan, for appellant. George W. Field, for appellee.
   Mr. Justice Jett

delivered the opinion of the court.


text:
    Paver Canneries, Inc., appellant, v. David L. Martin, appellee.
    Gen. No. 8,023.
    Opinion filed September 24, 1929.
    Van Sant & Besse and Haffenberg, Kopald & Burns, for appellant. Carl E. Sheldon, for appellee.
   Mr. Justice Jett

delivered the opinion of the court.


text:
    Jacob Engelkens, plaintiff in error, v. Katie Engelkens, defendant in error.
    Gen. No. 8,045.

      Opinion filed September 24, 1929.
    A. M. Blodgett, for plaintiff in error. Van Sant & Besse, for defendant in error; Lloyd H. Brown, of counsel.
   Mr. Justice Jett

delivered the opinion of the court.


text:
    Glouster State Bank, appellee, v. Henry W. Horst Company, appellant.
    Gen. No. 8,072.
    Opinion filed September 24, 1929.
    Rehearing denied December 10, 1929.
    Benj. D. Farrar and Sweeney, Eagle & McNamara, for appellant; Benj. D. Farrar and Edw. L. Eagle, of counsel. Connelly, Weld, Walker & Searle and Albert M. Crampton, for appellee; Franklin P. Searle, of counsel.
   Mr. Justice Jones

delivered the opinion of the court.


text:
    Ida M. Hinkle, appellee, v. Block & Kuhl Company, appellant.
    Gen. No. 8,076.
    Opinion filed September 24, 1929.
    Rehearing denied October 16, 1929.
    Miller, Elliott & Westervelt, for appellant; Frank T. Miller, of counsel. John E. Cassidy, for appellee.
   Mr. Justice Jones

delivered the opinion of the court.


text:
    Frank E. Oursler et al., appellants, v. Marvin Gustafson et al., trading as Johnson & Johnson, appellees.
    Gen. No. 8,080.
    Opinion filed September 24, 1929.
    Frank M. Ryan, for appellants. Garrett & Fell, for appellees.
   Mr. Justice Jones

delivered the opinion of the court.


text:
    Walter E. Heller and Armand S. Deutsch, trading as National Traders Finance Company, appellants, v. George V. Andrew, appellee.
    Gen. No. 8,041.
    Opinion filed October 1, 1929.
    James J. McCauley, for appellants. Vincent S. Lumley, for appellee.
   Mr. Justice Jones

delivered the opinion of the court.


text:
    In re Estate of Sarah J. Owen.
    Gen. No. 8,051.

      Opinion filed October 1, 1929.
    Welsh & Welsh, for appellants. North, Linscott, Gibboney, North & Dixon, for appellee.
   Mr. Justice Jones

delivered the. opinion of the court.


text:
    R. A. Gross, appellant, v. Frederick Klag et al., appellees.
    Gen. No. 8,019.
    Opinion filed October 3, 1929.
    C. B. Chapman, for appellant. J. L. Spaulding, for appellees.
   Mr. Justice Jett

delivered the opinion of the court.


author: Mr. Presiding Justice Niehaus

text:
    Third District.
    The People of the State of Illinois, defendant in error, v. Charles Freitag, plaintiff in error.
    Gen. No. 8,243.
    Opinion filed January 24, 1929.
    Rehearing denied April 4, 1929.
    William N. Hairgrove, for plaintiff in error. John A. McKeene, State’s Attorney, for defendant in error.
   Mr. Presiding Justice Niehaus

delivered the opinion of the court.


author: Mr. Justice Eldredge

text:
    The People of the State of Illinois, defendant in error, v. Roy Z. McKown, plaintiff in error.
    Gen. No. 8,246.
    Opinion filed April 17, 1929.
    W. St. J. Wines and Edmund Burke, for plaintiff in error. N. E. Fullenwider, State’s Attorney, and J. M. Weldon, Assistant State’s Attorney, for defendant in error.
   Mr. Justice Eldredge

delivered the opinion of the court.


text:
    Frank Swisher, appellee, v. Frank Willingham, appellant.
    Gen. No. 8,256.
    Opinion filed April 17, 1929.
    Robert B. Rodman, for appellant. Acton, Acton & Snyder, for appellee; William M. Acton, of counsel.
   Mr. Justice Eldredge

delivered the opinion of the court.


text:
    John M. Prief, appellant, v. A. H. Hillemeyer et al., appellees.
    Gen. No. 8,275.
    Opinion filed April 17, 1929.
    Wm. A. Potts, for appellant; Robert H. Allison, of counsel. Wm. C. Worley, for appellees.
   Mr. Justice Eldredge

delivered the opinion of the court.


author: Mr. Justice Shurtleff

text:
    Betha Frantz, defendant in error, v. Bruner G. Cox, plaintiff in error.
    Gen. No. 8,294.
    Opinion filed April 17, 1929.
    Costigan & Wollrab, for plaintiff in error. Orman Ridgely and Charles Williams, for defendant in error; Francis M. Ridgely, of counsel.
   Mr. Justice Shurtleff

delivered the opinion of the court.


text:
    The People of the State of Illinois ex rel. Marian Shryack, appellee, v. Ross Shryack, appellant.
    Gen. No. 8,299.
    Opinion filed April 17, 1929.
    Philip E. Elting, Scofield & Bell and Dan J. Curran, for appellant. Wallace A. Walker, State's Attorney, for appellee; R. B. O’Harra, of counsel.
   Mr. Justice Shurtleff

delivered the opinion of the court.


text:
    B. L. Renfrow, appellant, v. Henry Kramer and Margaret Kramer, appellees.
    Gen. No. 8,306.
    Opinion filed April 17, 1929.
    Carey E. Barnes, for appellant. Gillespie, Burke & Gillespie, for appellees; Hugh J. Dobbs, of counsel.
   Mr. Justice Shurtleff

delivered the opinion of the court.


text:
    Fred Genzel, administrator of the estate of Charles Wellman, deceased, appellee, v. New York, Chicago & St. Louis Railroad Company, appellant.
    Gen. No. 8,252.
    Opinion filed June 11, 1929.
    H. M. Steely and H. M. Steely, Jr., for appellant; John B. Cockrum and J. T. Markey, of counsel. H. Earnest Hutton and Louis J. Bremer, for appellee.
   Mr. Presiding Justice Niehaus

delivered the opinion of the court.


text:
    Leroy Garrett, appellee, v. University State Bank of Champaign, appellant.
    Gen. No. 8,270.
    Opinion filed June 11, 1929.
    Rehearing denied October 9, 1929.
    Busch & Harrington, for appellant; O. A. Harker, of counsel. Frank T. Carson and C. H. Swick, for appellee.
   Mr. Presiding Justice Niehaus

delivered the opinion of the court.


text:
    Lantie Underwood, appellee, v. W. V. Deahl and Ethel Deahl, appellants.
    Gen. No. 8,277.
    Opinion filed June 11, 1929.
    H. J. Buxbaum, for appellants. O’Hair & McClain and Riley McClain, for appellee.
   Mr. Presiding Justice Niehaus

delivered the opinion of the court.


text:
    The People of the State of Illinois, defendant in error, v. Ora Williams, plaintiff in error.
    Gen. No. 8,295.
    Opinion filed June 11, 1929.
    William N. Hairgrove, for plaintiff in error. John A. McKeene, State’s Attorney, for defendant in error.
   Mr. Presiding Justice Niehaus

delivered the opinion of the court.


text:
    Carrie Greenway et al., appellants, v. Frederick W. Beck and Frederick W. Beck, executor of the last will and testament of Chris Beck, deceased, appellees.
    Gen. No. 8,304.
    Opinion filed June 11, 1929.
    Rehearing denied October 9, 1929.
    Johnson & Pefferle and Thomas W. Hoopes, for appellants. Hogan & Reese and C. A. Prater, for appellees.
   Mr. Presiding Justice Niehaus

delivered the opinion of the court.


text:
    Illinois-Indiana Fair Association, appellee, v. Louis Deutsch et al., trading as Deutsch Brothers, appellants.
    Gen. No. 8,209.
    Opinion filed June 11, 1929.
    Gunn, Penwell & Lindley, for appellants. Charles Troup and Acton, Acton & Snyder, for appellee; William M. Acton and Charles Troup, of counsel.
   Mr. Justice Shurtleff

delivered the opinion of the court.


text:
    C. E. Andrews, appellant, v. C. A. Thrift, appellee.
    Gen. No. 8,289.
    Opinion filed June 11, 1929.
    Rehearing denied October 9, 1929.
    Arthur O. Frazier, for appellant. Emanual Rosenberg, for appellee.
   Mr. Justice Shurtleff

delivered the opinion of the court.


text:
    Ray Bitner, defendant in error, v. Gerald Brown, by C. D. Brown, his next friend, plaintiff in error.
    Gen. No. 8,309.
    Opinion filed June 11, 1929.
    A. C. & Ben F. Anderson, for plaintiff in error. J. B. Lane, Brewer & Grant, for defendant in error.
   Mr. Justice Shurtleff

delivered the opinion of the court.


text:
    Nellie Barr Flickner, appellee, v. Hanna Barr, appellant.
    Gen. No. 8,312.
    Opinion filed June 11, 1929.
    Jay Stough, Justin K. Orvis and Frank C. Van Sellar, for appellant. O’Hair & McClain, for appellee.
   Mr. Justice Shurtleff

delivered the opinion of the court.


text:
    Catherine Knox, executrix of the last will and testament of Isabelle Cooney, deceased, appellant, v. William Maher and Pleasant Plains State Bank, appellees.
    Gen. No. 8,319.
    Opinion filed June 11, 1929.
    A. M. Fitzgerald, H. C. Moore and Barber & Barber, for appellant. O. B. Irwin and Doyle, Sampson & Griffin, for appellees.
   Mr. Justice Shurtleff

delivered the opinion of the court.


text:
    Frank B. Coleman et al., appellants, v. Robert R. Doherty et al., appellees.
    Gen. No. 8,323.
    Opinion filed June 11, 1929.
    William and Barry Mumford, for appellants. C. C. Worthy and Clark, Munts & Young, for appellees.
   Mr. Justice Shurtleff

delivered the opinion of the court.


author: Mr. Presiding Justice Barry

text:
    Fourth District.
    Harry Shaffer, appellee, v. Reuben Teffertiller, appellant.
    Opinion filed July 26, 1929.
    Everett Lewis, for appellant. R. E. Smith and D. F. Moore, for appellee.
   Mr. Presiding Justice Barry

delivered the opinion of the court.


author: Mr. Justice Newhall

text:
    Eva Bracken and Hugh Bracken, appellees, v. Clarence Gibson, executor of the estate of Walker Winter, deceased, appellant.
    Opinion filed July 26, 1929.
    Jacob Zimmerman, for appellant. Parker & Bauer, for appellees.
   Mr. Justice Newhall

delivered the opinion of the court.


text:
    August Dallape and Bertha Dallape, appellees, v. Standard Oil Company (Indiana), appellant.
    Opinion filed July 26, 1929.
    Rehearing denied September 6, 1929.
    Le Forgee, Black & Samuels and Pulverman & Cantrell, for appellant; L. L. Stephens, of counsel. William H. Hart and William W. Hart, for appellees.
   Mr. Justice Newhall

delivered the opinion of the court.


text:
    Myra Turbaville, defendant in error, v. Harry V. Handley, Jr. and Herbert W. Handley, executors of the estate of Harry V. Handley deceased, plaintiffs in error.
    Opinion filed July 26, 1929.
    E. L. Merchant, for plaintiffs in error; C. S. Miller, of counsel. D. B. Reid, for defendant in error.
   Mr. Justice Newhall

delivered the opinion of the court,


author: Mr. Justice Wolfe

text:
    H. N. Finney, appellee, v. L. R. Hilleary, appellant.

      Opinion filed July 26, 1929.
    John H. Meyer, for appellant. J. W. Browning and C. A. Whiteside, for appellee.
   Mr. Justice Wolfe

delivered the opinion of the court.


text:
    Anna Suttles, plaintiff in error, v. Jacob Zimmerman, defendant in error.
    Opinion filed July 26, 1929.
    G. P. Denton and Harold J. Taylor, for plaintiff in error. Jacob Zimmerman, for defendant in error.
   Mr. Justice Wolfe

delivered the opinion of the court.


text:
    Cecelia Drone, appellee, v. City of Belleville and City of East St. Louis, appellants.
    Opinion filed July 26, 1929.
    Arthur W. Peth, City Attorney, Dan McGlynn, Jr., Corporation Counsel and L. N. Nick Perrin, Jr., for appellants. Eugene W. Kreitner and A. B. Davis, for appellee.
   Mr. Justice Wolfe

delivered the opinion of the court.


text:
    Zardia S. Koontz, appellee, v. Continental-Commercial Finance Corporation, appellant.
    Opinion filed July 26, 1929.
    Griffith & Lueders, for appellant. Robert P. White, for appellee. Mr. Justice Wolfe delivered the opinion of the court.


text:
    Joseph Skomoroske, Appellee, v. A. G. Marcotte, Appellant.
    Gen. No. 8,044.

      Opinion filed October 8, 1929.

      Chas. D. Henry, Jr., for appellant; Butz & Taylor, of counsel.
    Amos H. Robillard and C. M. Granger, for appellee.
   Mr. Justice Jones

delivered the opinion of the court.

A judgment by confession was entered on a note for $1,500 signed by defendant, A. G. Marcotte, payable to the order of Bernard C. Curby and by him indorsed to plaintiff. On motion of defendant, the judgment was opened and leave granted to plead. A plea of the general issue and four special pleas were thereupon filed.

The first special plea avers that the consideration for the note was a share in a proposed invention to be represented by an assignment of an interest in the patent therefor; that it was the understanding between the parties that the note should not be sold or enforceable until a working model of the invention had been built, successfully operated, and said assignment made; that the consideration wholly failed because the working model was never built or operated and said assignment was never made, all of which was known to plaintiff. The second special plea contains the same averments and charges a want of consideration.

The third special plea avers that Curby falsely and fraudulently represented to defendant that the invention was of great value, a complete success, could be commercially sold, and that he had a purchaser willing to pay $30,000 for the patent rights, all of which Curby knew to be false; that defendant believed and relied on such representations, and by reas on. thereof signed and delivered the note, the consideration for which, the terms of delivery, failure to build and operate a working model and assign an interest to defendant are averred in substantially the same terms as in the first two special pleas. It is then charged that plaintiff knew all of said facts at the time the note was assigned to him.

The fourth special plea avers that defendant and others, including plaintiff, bought shares in Curby’s invention uncler an agreement that a working model was to be built, the invention perfected, shares assigned to them, and the invention sold; that each of them was to share proportionately in the proceeds of the sale; that before the note in question was indorsed, plaintiff obtained a share in the said venture; that the money and notes advanced by the purchasers of the shares were to develop and sell the invention; that defendant’s indebtedness, if any, “relates to this partnership venture”; that defendant furnished $50 as his proportionate share to build a working model; that the accounts of the members of said venture are unsettled; and that no cause of action exists at law. Defendant’s affidavit of merits covers substantially the same ground as the special pleas.

Plaintiff filed a replication to the special pleas averring that he had no knowledge of any understanding between Curby and defendant or of the original consideration for the note, but purchased it before maturity for a valuable consideration without any notice or knowledge of any infirmity, and that he purchased an interest in the invention paying in full therefor before he purchased the note. At the close of all the evidence, the court directed a verdict in favor of plaintiff. This appeal is, prosecuted from a judgment on the verdict.

The ground urged for reversal of the judgment is s that the court erroneously limited the defendant in his ■ efforts to show that Curby’s title to the note was defective. Section 59 of the Negotiable Instruments Act, If 79, ch." 98, Cahill’s Eev. St., provides that every holder is deemed prima facie to be a holder in due course, but when it is shown that the title of any per-

son who has negotiated the instrument was defective, the- burden is on the holder to prove that he or some person under whom he claims acquired the title as a holder in due course. Section 55 of the act, Cahill’s St. ch. 98, If 75, provides that the title of a person who negotiates an instrument is defective within the meaning of the act when he obtained the instrument, or any signature thereto by fraud, duress, force, fear, or other unlawful means, or for an illegal consideration, or when he negotiates it.in breach of faith, or under such circumstances as amount to a fraud. Under the provisions of these two sections, defendant had a right to prove, if he could, that the title of Curby was defective under section 55, Cahill’s St. ch. 98, IT 75, and if such a showing was made then the burden would be on plaintiff to show a holding in due course as required by section 59. (Justice v. Stonecipher, 267 Ill. 448; Peru State Bank v. Waggett, 230 Ill. App. 522.)

The note sued on is dated. September 23, 1926, due one year after its date, and indorsed to plaintiff on November 5, 1926. The testimony shows that Curby assigned it to plaintiff in part payment for plaintiff’s interest in a blacksmith shop; that the purchase price was paid by the assignment of the note and $300 in cash; that plaintiff did not know defendant, but had heard of him; that when the note was indorsed, Curby told plaintiff he had promised defendant not to cash it until it was due. Curby testified that he told plaintiff he had agreed not to cash the note through the bank before it was due so as not to interfere with defendant’s bank account. No attempt was made to cash it or collect it until after it was due. Plaintiff testified that he acquired the note before maturity for value and without notice of any of the matters relied upon as a defense.

Objection is made that the court unduly limited the cross-examination of plaintiff. Usually the cross-examination of a party may go beyond the scope of the direct examination (Felsenthal Co. v. Northern Assur. Co., Ltd., 284 Ill. 343), but in the case at bar, the record shows that the facts sought by the questions to which objections were sustained were afterwards brought out in plaintiff’s testimony; consequently, the defendant was not prejudiced by the court’s rulings.

Upon examination in chief, the defendant was asked, “How did you come to sign your name' to that note?” An objection was sustained to the question. Defend-' ant was later recalled and his counsel stated, “I want to make an offer of proof of a failure of consideration and a lack of consideration, of fraud at this time, and promise to connect up the evidence on the part of Skomoroske.” The court ruled that unless there was something tending to indicate Skomoroske was not an innocent purchaser for value without notice at the time of the note’s transfer, it was not competent. The examination of the witness proceeded but there was no offer to prove any specific fact relating to the- general offer. In order to predicate error on the refusal to allow a witness to testify, the person making such complaint must show by the record what the testimony of the witness would be if he were allowed to testify; and he must preserve his objections to the ruling after making such offer of proof. (Owens v. Guerney, 241 Ill. App. 477.) If defendant, desired to show facts constituting defective title in Curby, he should have brought himself within the rule. Failing to do' so, he cannot complain that he was not allowed to make proof of such defective title. Until such a showing was made, plaintiff was entitled to the presumption under section 59, Cahill’s St. ch. 98, If 79, that he was a holder in due course, and unless such presumption was overcome, he was entitled to a directed verdict. .

Defendant also contends that fair and reasonable inferences may be drawn from the facts in evidence tending to prove bad faith on the part of the plaintiff and that the court therefore erred in directing a verdict. We take a different view of the proof. The record shows that the defendant got a fair price for his interest in the blacksmith shop, that before plaintiff took the note, he inquired of a mutual friend if he thought it was all right, and accepted it upon the information he received. The fact that he was informed the note was given for an interest in a patent and that the payee had agreed not-to cash it before maturity does not tend to show bad faith on' his part. There is no testimony in the record even tending to show he had any knowledge that Curby had agreed not to cash the note until a working model of the invention had been perfected and a share in a patent assigned to defendant. Neither is there any testimony to show plaintiff had any knowledge that the note was procured by fraud. He traded for a half interest in another share of the invention after this note was indorsed to him. The record does not show any fact or circumstance from which an inference of bad faith can reasonably be drawn against plaintiff, but to the contrary, the evidence shows that plaintiff was a holder in due course; therefore the court did not err in directing a verdict.

It was not shown that a partnership existed among the parties interested in the invention. The most that can be said of the arrangement is that it was a joint enterprise. Special agreements for a particular venture and joint undertaldng do not make a partnership. (Page v. Hallam & Co., 212 Ill. App. 462.) But even if there were a partnership, an action lies to enforce an agreement to advance a certain sum as capital irrespective of whether or not the partnership actions have been settled. (Mayhew v. Craig, 253 Ill. App. 238.)

We are of the opinion that the trial court did not err in directing a verdict in favor of plaintiff and the judgment is affirmed.

Judgment affirmed.


author: Mr. Presiding Justice Wilson

text:
    M. Leininger, Appellee, v. Amalie Thoma, Appellant.
    Gen. No. 33,342.
    Opinion filed November 6, 1929.
    Frank H. Novak, for appellant.
    Julius Limbach and Blaine B. Gernon, for appellee.
   Mr. Presiding Justice Wilson

delivered the opinion of the court.

M. Leininger, plaintiff, brought his suit in the municipal court against the defendant Amalie Thoma, charging that on or about December 20,1922, the plaintiff, at the request of Fred Thoma, the husband of the defendant, made a set of upper and lower teeth at an agreed price of $700, for him, for which the said Fred Thoma during his lifetime and later the defendant refused to pay, although requested so to do,

The cause was tried by the court without a jury resulting in a finding in favor of the plaintiff and judgment for the sum of $700, from which judgment this appeal is taken.

The plaintiff introduced in evidence certain books of account, kept in the regular course of business, showing several entries covering the time taken in making two sets of teeth and certain adjustments covering a period of time from August 8, 1922 to December 30, 1922. The books of entry also showed certain entries for October 1923, about a year later, which were replacements and repairs made at the requést of Fred Thoma. The defendant introduced evidence to the effect that the teeth were unsatisfactory and would frequently drop out while the husband was eating.

The defendant Amalie Thoma testified that the teeth were taken back by Fred Thoma and left with the plaintiff and that he obtained his old teeth from plaintiff and wore them thereafter until he had a new set made. This testimony, however, is unsatisfactory in that Amalie Thoma was not present. The plaintiff testified in rebuttal that he repaired the teeth for Fred Thoma on October 30,1923, and later Thoma called for them and took them with him. This was the date of the last entry in the books of the plaintiff concerning the transaction.

It appears from the record that on several occasions bills were rendered Fred Thoma for the work done, to which there was no reply and suit was started against him during his lifetime, but no service was had in that case. This testimony was introduced for the purpose of showing the reason for the delay in not attempting to collect the account during the lifetime of Fred Thoma: The court saw and heard the witnesses and was able to observe their demeanor while upon the stand, and we see no reason for disturbing the verdict.

It is urged as a ground for reversal that there was an express warranty that the work would be satisfactory to Fred Thoma. This was based upon the testimony of Herbert Leininger, a son of the plaintiff, who testified as to the original conversation between Fred Thoma and the plaintiff at the time the work was contracted for. This is upon the alleged statement of the witness to the effect that they would be satisfactory, based upon the following question and answer on cross-examination:

“Q. And that you would make him a set that he would be satisfied with and which would give him service?”

“A. That is what he wanted.”

We do not believe that this could be considered a warranty. It was not stated by the witness that they would be satisfactory.

. It is urged on behalf of counsel for the defendant that the furnishing of the teeth to the husband, Fred Thoma, was not a household necessity and that, therefore, plaintiff could not recover against the wife. Under the statute in this State, Cahill’s St. ch. 68, If 15, expenses of the family are chargeable against the property of either husband or wife. It has been held in this State that medical services rendered a member of a family were a family expense and chargeable against the property of either the husband or the wife. Cole v. Bentley, 26 Ill. App. 260; Walcott v. Hoffman, 30 Ill. App. 77.

We see no reason to differentiate between medical and dental services. They are of the same class and character. Proper care of the teeth is -as conducive to the health as proper care of the stomach or any other part of the human anatomy. The services rendered the deceased husband are chargeable against the wife as a necessary family expense within the meaning of the statute, Cahill’s St. ch. 68, ff 15.

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

Judgment affirmed.

Ryner and Holdom, JJ., concur.


text:
    David Beiman and Morris Beiman, Appellees, v. Union Bank of Chicago et al., Defendants. Arthur Michel, Appellant.
    Gen. No. 33,366.
    Opinion filed November 6, 1929.
    Rehearing denied November 22, 1929.

      E. R. Elliott, for appellant.
    Isidore Fried, for appellees; Bernard A. Stol, of counsel.
   Mr. Presiding Justice Wilson

delivered the opinion of the court.

David Beiman and Morris Beiman filed their bill of complaint in the circuit court, charging that the Union Bank of Chicago was the legal, and Arthur Michel the equitable, owner of certain real estate situated in Cook county; that William Z. Magid was employed by Michel as sales manager or in some similar capacity; that the said Magid solicited the complainants to buy the real estate in question stating that the title to the premises had been acquired through foreclosure proceedings, which was false, and that its value was $25,000, which was also false; that the said Magid insisted upon becoming and did become a joint purchaser of the property with complainants, although representing that he at no time had received or was to receive any commission by reason of the sale and purchase of the property in question. The answer of the defendant Union Bank of Chicago, admitted that it was the legal owner but charged that Michel was only one of the equitable owners; admitted that Magid was a salesman employed by Michel and had received a commission for the sale of the property; denied all allegations of fraud. Said defendant also filed its cross-bill charging the complainants as cross-defendants with having defaulted in the payment of certain installments due under the contract and praying for performance by the complainants or that the contract be removed from the records as a cloud on the title. ' The answer of Michel admitted Magid was employed by him and received a commission of $1,800 in and about the sale of the property and denied all the other ¡material allegations of the bill.

The cause was tried before the chancellor and a decree entered finding the issues in favor of the complainants in the sum of $2,850, setting aside the contract of purchase on the ground that it had been procured by fraud and ordering execution against the Union -Bank of Chicago as trustee and the lien of the decree to attach only to the specific property involved in the transaction. From this decree the defendants Union Bank of Chicago and Michel appealed. Magid failed to follow the appeal.

From the facts it appears that David Beiman was a jeweler and had known Magid for many years. The property was, in fact, not acquired by defendants through foreclosure proceedings. Magid did receive from Michel a commission for at least $1,600. Neither of the Beimans knew of the payment of the commission to Magid unless it could be inferred by reason of Magid’s connection with Michel.

Morris Beiman, complainant, testified that he was told by Magid that he was not receiving anything by reason of the sale of the property, and that he, Magid, told him that the property was acquired by foreclosure proceedings and was worth $25,000, but could be purchased for $15,000 and resold at a profit; that he relied upon the representations and thereupon the complainants joined with Magid in the purchase of the property, upon equal terms, and paid on behalf of himself and son $2,000 to Michel and later an additional $558.60; that he only learned of thé receipt of the commission by Magid shortly before the filing of the bill of complaint. Magid stated that he never paid anything on the purchase price other than the original $1,000 and denied that he told Beiman that he, Magid, was receiving no commissi on. He stated that he was at the time of the transaction acting as a purchaser, the same as Beiman and also acting as a seller for Michel.

An examination of the record fails to disclose any equitable owners of the property other than Michel.

The cause of action does not come within that class of cases where parties deal at arm’s length. Consequently, a great deal of appellant’s brief, devoted to the argument that the statements must be false when made, known to be false and relied upon by complainants, has no bearing on the case. The present action is based on the theory that the vendor aided one. of the purchasers to procure for himself a secret profit and therefore became a party to the transaction and equally responsible to the injured party purchasing property without full knowledge of the facts. Felt v. Bell, 205 Ill. 213; Gullett v. Leaverton, 202 Ill. App. 527.

■David Beiman in his testimony stated that he met defendant Michel and that he, Michel, told him that Magid was not receiving any commission. This was denied by Michel but the chancellor, who saw and heard the witnesses, evidently placed more reliance upon the testimony of complainant than that of defendant. It is insisted that anyone should have presumed that a salesman would receive a commission. This would apply if the parties were dealing at arm’s length, but, from the facts in this case, no such presumption necessarily follows. The complainants had a right to rely upon the fact that a fellow purchaser would not attempt to take an unfair advantage and that the vendor would not stand by and permit it. The complainants were not dealing with a full knowledge of all the facts, and the law says that under such circumstances it will aid the purchaser, particularly where the fact concealed was one not ascertainable through the ordinary channels of information. The chancellor saw and observed the witnesses and the decree should not be reversed unless.clearly erroneous.

For the reasons stated in this opinion, the decree of the circuit court is affirmed.

Decree affirmed.

Ryner and Holdom, JJ., concur.


text:
    First National Bank of Cass Lake, Minnesota, Appellant, v. M. S. Lamoreaux, Appellee.
    Gen. No. 33,448.

      Opinion filed November 6, 1929.
    Alden, Latham & Young, for appellant.
    Levin & Bernstein, for appellee; Morris Bernstein, of counsel.
   Mr. Presiding Justice Wilson

delivered the opinion of the court.

Plaintiff, First National Bank of Cass Lake, Minnesota, filed its claim in the municipal court of Chicago against the defendant, M. S. Lamoreaux, based on certain promissory notes, issued by the Kenfield-Lamoreaux Company and indorsed by the defendant, M. S. Lamoreaux. On motion of the defendant, plaintiff’s second amended statement" of claim was stricken, to which an exception was taken and the plaintiff elected to stand on the amended statement of claim. A judgment for defendant was entered in the cause, from which judgment this appeal was perfected.

The second amended statement of claim charges that on October 4, 1921, Kenfield-Lamoreaux Company executed three .promissory notes, payable respectively to the order' of the First National Bank of Cass Lake, Minnesota, Bemidji Box Company and Northern Pine Crating Co., payable April 4, 1922. These notes bore on their face the following notation:

‘ ‘ This note is issued pursuant to an agreement dated April 4, 1921, between Kenfield-Lamoreaux Company and others, and this note and the indebtedness represented thereby is subject to all the provisions of said agreement.”

Charges further that said notes were signed by the Kenfield-Lamoreaux Company, by M. S. Lamoreaux, its president, and countersigned by Frank H. Shaw, comptroller; charges further that the defendant and E. E. Kenfield guaranteed payment of said notes by making their indorsement thereon and thereafter delivered them to the respective payees; charges further that the notes payable to the order of the Bemidji Box Company and the Northern Pine Crating Company were then indorsed by Kenfield-Lamoreaux Company, and the respective payees named in the notes and delivered to the plaintiff; charges further that the plaintiff is the assignee and bona fide owner of said notes for value and obtained title to the last two notes described on October 4, 1921, through the indorsement by the respective payees and the delivery of said notes to the plaintiff; charges further that said notes were given pursuant to an agreement, a copy of which is attached to the statement of claim, and that said notes have matured and have not been paid; charges further that the Kenfield-Lamoreaux Company was insolvent before and after maturity of said notes and has been adjudged a bankrupt; that the defendant was president of said Kenfield-Lamoreaux Company and acted on their behalf in connection with the making of said notes.

The agreement referred to in the notes and attached to the statement of claim recites, among other things, that it has become necessary to extend the time of payment of claims of creditors in order to save the business of said company from impairment and that, therefore, said company and said creditors have agreed upon a plan for the best interest of those concerned. Among other things contained in said agreement is a provision for the creation of an advisory committee, the appointment of a comptroller satisfactory to said committee, the extension of the time of payment of certain claims; that the debts be evidenced by extension promissory notes accepted by the creditors in lieu of the claims due from the company; that all notes so given should contain the recital hereinbefore set forth in the statement of claim; that in case of payment or of partial payment, each creditor should receive the same pro rata share of the amount of his debt, and that all payments should be proportionate; that all claims for labor, material and operating expenses should have a preference in priority of payment over all other liabilities, including, the indebtedness represented by the notes. Certain other provisions were made for the purpose of authorizing the committee to do certain things in order to protect the interest of creditors.

It is insisted on behalf of the plaintiff, that the defendant Lamoreaux, by writing his name on the back of the instruments in question, became a guarantor of. the indebtedness.

On the other hand, it is the contention, of the .defendant that the instruments in question are. not promissory notes, either negotiable or non-negotiable and further that, the defendant did not become liable as a guarantor and the plaintiff had no right to write a contract of guaranty above his signature. Furthermore, that the allegation in the amended statement of claim that the notes were indorsed by the payees therein to the plaintiff is not sufficient to evidence an assignment of the claims of Bemidji Box Company and Northern Pine Crating Company- because of the fact that the instruments themselves are not negotiable promissory notes, and, therefore, the indorsement does not constitute an assignment of the instrument under section 18 of the Practice Act, Cahill’s St. ch. 110, If 18.

No instrument is a promissory note, negotiable or non-negotiable, which does not provide for payment absolutely and unconditionally.

The instruments in question on their face bore a notation to the effect that they were subject to the conditions of a certain agreement made at the same time between the parties. The agreement itself clearly stated that they were not given for a definite amount, but were to be payable out of the assets of the corporation executing the notes and that each of said notes should be paid in proportion to the amount realized after the liquidation of the company. From a reading of the agreement, it appears to have been an' offer on behalf of the creditors to assist the company in working out its indebtedness and to extend the time of payment and fix the amount of their claims as of the date of the agreement so that there would later be no conflict as to the amounts due.

It cannot be said that the notes were for a definite fixed sum, nor did they provide for payment absolutely and unconditionally. Under the agreement it was impossible to ascertain what the exact amount of payment would be, and there was a possibility that no payment might be made* whatever.

The Supreme Court of this State in the case of Chicago Trust & Sav. Bank v. Chicago Title & Trust Co., 190 Ill. 404, in its opinion says:

“No contract or agreement is a promissory note, either negotiable or non-negotiable, which does not provide for payment absolutely and unconditionally. If payment depends upon a contingency which may never happen, it is not a promissory note.” (Citing cases.)

The signing of his name, by the defendant, on the back of the instruments in question, they being nonnegotiable instruments, did not create a liability of indorser or guarantor against Mm within the meaning of the law. Smith v. Myers, 207 Ill. 126.

The allegation in the amended statement of claim to the effect that the defendant guaranteed payment by his indorsement, leaves open for consideration the question only as to whether or not the indorsement in and of itself constituted a guaranty, as there are no other allegations in the amended statement of claim charging the defendant with liability as guarantor, other than the indorsements themselves. Moreover a reading of the agreement governing the payment of the alleged promissory notes, shows on its face that there could be no guarantee because the alleged notes were for an indefinite amount with a possibility that there might not be a sufficient fund to pay any part of such notes. To the same effect see Fidelity & Deposit Co. of Maryland v. Young, 159 Ill. App. 531. There are no allegations in the amended statement of claim disclosing the facts as to how the plaintiff received the instruments in question by assignment, other than the allegation that the plaintiff is the assignee and bona fide owner of the notes for value, by indorsement and delivery.

The statement of claim should have contained a state, ment, not only showing the delivery and indorsement, but facts setting forth how and when the plaintiff obtained the title. Before the passage of section 18 of the Practice Act, Cahill’s St. ch. 110, ft 18, no cause of action existed in favor of the assignee in a chose in action not negotiable. Allis-Chalmers Mfg. Co. v. City of Chicago, 297 Ill. 444.

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

Judgment affirmed.

Ryner and Holdom, JJ., concur.


author: Mr. Justice Holdom.

text:
    J. Frank Lindsey, Trading as Lindsey Company, Appellee, v. Louis Rosen, Appellant.
    Gen. No. 32,767.

      Opinion filed November 6, 1929.
    Rehearing denied November 22, 1929.
    Jaffe & Green, for appellant.
    Charles P. Molthrop, for appellee.
   Mr. Justice Holdom.

delivered the opinion of the court.

The chronological history of this case is to be found in the opinion of this court in Lindsey v. Rosen, Gen. No. 32,767, not reported [250 Ill. App. 638, Abst.] and same case 335 Ill. 402. The Supreme Court reversed the judgment of this court and remanded the cause to this court “with directions to consider and determine all errors assigned by plaintiff in error upon the record.” We do not think the Supreme Court meant literally what it said, for that court has for many years consistently held (which this court has. as consistently followed), that errors assigned and not argued are waived. The latest ipse dixit on this subject is contained in an opinion by Mr. Justice Stone in Sluka v. Bielicki, 335 Ill. 202, in these words “other errors are assigned on this record, but as those considered are conclusive against appellee’s right to specific performance of this contract, it is unnecessary to consider furtlier errors.” We will, therefore, proceed to consider all the errors assigned and argued pertinent to the conclusions to which we have arrived.

The Supreme Court reversed the judgment of this court for erroneously striking the bill of exceptions from the record and affirming the judgment without considering the errors assigned upon the record. To that omitted task we will direct our energy. The facts sufficiently appear in our former opinion, supra, so that we will not here again recite them.

We have examined and considered all the errors assigned upon the record, and argued by defendant, but as we have concluded to reverse the judgment and send the cause back to the trial court for a new trial for errors of procedure, as hereinafter stated, we refrain from passing any opinion upon the probative force of the evidence, leaving that to be hereafter determined on the proofs adduced upon a new trial.

Defendant assigns and argues for error the refusal of the trial court to give instructions 10 and 11. These instructions in effect directed a verdict for defendant without stating any of the elements deducible from the evidence which would justify the jury, in rendering such a verdict. The refusal to give these instructions was proper.

Plaintiff’s counsel complain of the insufficiency of the abstract in many particulars and that it does not comply with the rules of this court regarding the preparation of such abstracts. The criticism is well taken in many respects, such as failing to abstract an affidavit of merits. But plaintiff’s counsel is equally remiss in not correcting the abstract in the manner provided by the same rules, viz., the filing of an additional abstract supplying the omissions of the original. Quoting from the record omitted matter in the brief and so informing the court is not a compliance with the rule. The abstract is the pleading of the parties and the purpose of the rule regarding the filing of an additional abstract is to relieve this court of the task of ascertaining from the record the correctness or not of abbreviations of the record which should be a part of either the original or additional abstract.

There are many irrelevant matters injected into the evidence by plaintiff. Why Judge Hatchett’s name should have been dragged into the case and for what purpose, if any, is somewhat mystifying. The judge in no way was involved in the litigation. . This fact is not controverted. Then the letting in of evidence upon promising to “connect it up,” when in fact most of such evidence which counsel promised to make admissible by appropriate evidence was not forthcoming. However this may be, defense counsel on failure “to connect up” should have moved to eliminate such evidence from the record. This not having been done, the point was waived. We mention this matter in passing so that counsel may on a new trial have advantage of this ruling. The record discloses in several instances remarks by the court in its rulings, which might have carried to the jury the impression that the court was in some measure impressed with the merits of plaintiff’s claim. On a new trial this attitude should be avoided.

The reference to a purchase from Eyan of Oak Park property brought out by counsel for plaintiff against .the objection of defendant was improper and error of the court in not excluding the same on defendant’s objection. This was utterly immaterial and irrelevant to any issue or claim made by plaintiff in the instant case. On a new trial such evidence, if sought to be adduced, should be excluded. Such evidence simply tends te confuse a jury as to the issues being tried.

The letter of March 21, 1925, of plaintiff to defend^ ant stating the several items of his claim, was a self-serving document, and should not have been admitted in evidence against defendant’s objection. The principle here involved is forcefully stated in Leach & Co. v. Peirson, 275 U. S. 120 in these words:

“A man cannot make evidence for himself by writing a letter containing the statements that he wishes to prove. He does not make the letter evidence by sending it to the party against whom he wishes to prove the facts. He no more can impose a duty to answer a charge than he can impose a duty to pay by sending goods.”

, The offending letter above referred to contained an itemized statement of plaintiff’s claim against defendant and for the amount of which, with interest, the jury returned a verdict in plaintiff’s favor, the judgment upon which is before this court for review.

The plaintiff’s claim seems to be of a dual nature. First, under a writing, hereinafter set forth, of date November 20, 1924, in which there is a claim that it is the contract which governs the rights of the parties. Second, that the money sought to be recovered from the defendant was money received by defendant to plaintiff’s use, set forth in the self serving letter of plaintiff to defendant of March 21,1925. The writing above referred to is as follows:

“11/20/24

Louis Rosen:

On all d,eals wherein I represent you and your associates where title is taken and the deal closed I am to receive 25% of the commission agreed upon in the several contracts covering the sale and purchase.

On all deals wherein you or your associates refuse or fail to go thru with any respective deal, I will rebate you 90% of the commissions which I receive on any and all deals that come under this category to-wit: on defaulted contracts.

On all deals wherein you take title or purchase for yourself, that is for your private investment I am to receive as my compensation 50% of the agreed commission. The balance of 50% to be paid to you.

J. Frank Lindsey.”

The question of the legal construction of this contract, if such it is, is of law for the court, such interpretation to be covered by pertinent instructions to the jury, if there should be a trial by jury. It must be borne in mind in construing a contract in writing that the same cannot be modified, enlarged or changed in any material matter by parol. It is said, inter alia, in Sallo v. Boas, 327 Ill. 145:

“Evidence was introduced by both parties of the negotiations and conversations resulting in the execution of the written agreement . . . All this evidence was incompetent and its admission had no tendency to prove the bill, which was based upon a written contract. It is elementary that when parties deliberately reduce their agreements to writing, parol evidence is not admissible to contradict, add to, explain or modify the writing. It would not seem necessary to cite authorities in support of the proposition that a written contract is one which is all in writing, so that all its terms and provisions can be ascertained from the instrument itself, but this court has found occasion to make that statement several times.”

Neither can a written contract be changed or abrogated unless the contract so doing is supported by a valid consideration. Board of Education of Villa Grove Township High School v. Barracks, 235 Ill. App. 35, where citation of supporting authority may be found.

Should plaintiff proceed upon the theory of money had and received by defendant for the use of plaintiff, such theory may be supported by either documentary or parol evidence or both.

We may suggest to counsel that the issues might be clarified by a recasting of the pleadings, if such suggestion should .appear to counsel to be timely.

The judgment of the circuit court is reversed and the cause remanded for a new trial in accord with the views in this opinion expressed.

Reversed and remanded.

Wilson, P. J., and Ryner, J., concur.


author: Mr. Justice Holdom

text:
    Joseph A. Hanusin, Appellee, v. Nick Materoh, Appellant.
    Gen. No. 33,397.
    Opinion filed November 6, 1929.
    Thomas A. Green, for appellant.
    Peden, Kahn & Murphy, for appellee; Homer Andreas, of counsel.
   Mr. Justice Holdom

delivered the opinion of the court.

The trial of this action was before the court without a jury and resulted in a finding of the issues for the plaintiff and a judgment in his favor for the sum of $300, from which judgment defendant brings the record to this court for review by appeal.

The action is grounded upon the following document:

“August 16, 1926.

Received of Joseph A. Hanusin Three Hundred Dollars, retainer on purchase price of Grocery and Meat Market at 536 New York Avenue, Whiting, Ind., for $3500.00 — Balance of $3200.00 will be paid according to agreement between the parties.

Nick Materoh

$300.00

Subject to A. Sugar approval of assigning lease.”

Plaintiff, to maintain his cause, introduced the foregoing document in evidence, and contended that “Nick Materoh never had a lease assigned to me.” On cross-examination he testified, “I never talked to Mr. Sugar, the landlord. I had charge of the store for two days. I never told Mr. Materoh I did not want to go through with the deal. ’ ’ On this testimony plaintiff rested his case.

Defendant, to maintain the issues on his part, testified that on the 16th day of August, 1926, he signed the paper in evidence and received the $300; that on the same day he turned the store over to plaintiff, gave plaintiff the key and plaintiff took in all the receipts and kept the receipts for two days and never turned them over to him; that he had defendant’s regular butcher named Barney Marewski working for him; that defendant also gave plaintiff the lease and told him to come with defendant to Mr. Sugar and Mr, Sugar would sign the assignment of the lease; that plaintiff replied that he would come later and defendant told him that he would have the lease assigned any time he wanted to go; that plaintiff still has the lease and that Mr. Sugar was always willing to assign the lease as plaintiff knew Sugar longer than he did; that plaintiff lived in Whiting, Indiana, and defendant did not; that defendant was always ready and willing to do his part of the agreement, and when he turned the store over to plaintiff he thought the deal had gone through and made other arrangements; that plaintiff told defendant that he did not want to keep the store because he was going to buy another store.

A. Sugar, the landlord, testified for defendant, corroborating his testimony regarding his willingness and readiness to assign the lease to plaintiff. He further testified that plaintiff never came to him; that he never talked with him at any time about the lease.

Barney Marewski, the butcher, testified that on August 16, 1926, defendant turned the store at 536 New York Avenue, Whiting, Indiana, over to plaintiff and that the witness worked for plaintiff two days; that defendant told him that plaintiff had bought the store and that he was to work for him, which.he did for two days, during which time plaintiff ran the business.

The foregoing is all the evidence heard on the trial. It would seem quite plain from the mere statement of the evidence that the finding for the plaintiff was clearly unwarranted and contrary to the probative force of the evidence. It is not contradicted that plaintiff took over and operated the store for two days, and then abandoned it without any right so to do under the receipt in evidence. It is without contradiction that defendant did all the things required of him to be done under the agreement of sale; that the lease was duly transferred to plaintiff by defendant, and that plaintiff could have procured the consent of the landlord Sugar if he had made any attempt so to do, and that defendant offered to go with plaintiff to Sugar to procure his consent to the assignment of the lease to the plaintiff. The failure to carry out the contract of sale according to its terms was owing to the conduct of plaintiff in abandoning the premises and business there conducted, and it is the fault of plaintiff that the contract was not carried out according to its terms. Plaintiff was the defaulting party. Consequently as a matter of law, he has no standing to recover back the earnest money paid ' by him on his contract of purchase. It was held in Colvin v. Weedman, 50 Ill. 311, that the plaintiff there, as here, being the defaulting party, had no claim to recover back the advance payment.

For the foregoing reasons the judgment of the municipal court is reversed, and a judgment is entered in this court for defendant.

Reversed and judgment here for defendant,

Wilson, P, J., and Ryner, J., concur,


text:
    Walter Gaines, Appellant, v. Chicago Railways Company et al., Appellees.
    Gen. No. 33,434.
    Opinion filed November 6, 1929.
    H. A. Barnhardt, for appellant.
    George W. Miller, Arthur J. Donovan and W. I. Deffenbaugh, for appellees; Frank L. Kriete and Warner H. Robinson, of counsel.
   Mr. Justice Holdom

delivered the opinion of the court.

This is an action on the case for personal injuries. It seems that at the time there were three cases before the trial judge against the same defendant companies as in the case at bar; that counsel for plaintiff represented the plaintiffs in the first two of the three cases. The first case proceeded to trial and plaintiff took a nonsuit. The second case, being the case at bar, being reached, the following colloquy occurred between court and counsel and the action thereon by the court as follows:

“Mr. Earnhardt: I am not ready for trial, and I shall take no part in the trial.

The Court: What is the reason?

Mr. Robinson: You stated this morning you were ready.

Mr. Earnhardt: Many things can happen between morning and afternoon.

The Court: What is the reason?

Mr. Earnhardt :■ In the first place, I am not physically able to go to trial. I have been going all day under the stress of a severe headache. I think I am tailing the flu or the grippe. Furthermore, I am not—

Mr. Robinson: I will ask to have the suit dismissed for want of prosecution.

Mr. Earnhardt: I am not prepared to go to trial.

The Court: You announced this morning you were ready in this case.

Mr. Earnhardt: I announced I thought I would be ready in those two following cases.

The Court: There wasn’t any qualifications to it. You announced ready in the Gaines case, as I recall it.

Mr. Robinson: I ask to have it tried.

The Court: You may proceed in the interrogation of the jury, gentlemen, for the trial.

Mr. Earnhardt: I understand Mr. Robinson asked to have it dismissed for want of prosecution, is that right ?

Mr. Robinson: Yes, but I withdraw the motion.

The Court: You may proceed with the interrogation of the jury, if you have any to make.

Mr. Earnhardt: I am not representing the plaintiff here, your Honor. I ask leave to withdraw from the case.

• The Court: Leave will be denied. You may proceed.

Mr. Earnhardt: Is the Court going to hold me here against my volition?

The Court: Well I — certainly you are of record here as attorney for the plaintiff in this case. In court you announced you were ready for it. We are going to proceed.

Mr. Earnhardt: The only thing the Court has a right to do in such a situation is to dismiss the case for want of prosecution.

The Court: You say it is?

Mr. Earnhardt: That is the only thing I think.

The Court: I am glad to have your flat statement without equivocation as to the only thing I have the right to do. You know, there are some things attorneys are required to do as officers of the Court. One is that they can’t represent a client and walk out without being subject to some possible after-requirement. Now, you may proceed, Mr. Robinson.

Mr. Earnhardt: I will ask leave of the Court to leave the courtroom and go back home; as a matter of fact, go to bed.

Mr. Robinson: I will accept the jury, your Honor.

The Court: Rise, gentlemen, and be sworn.”

And thereupon the panel of twelve jurors were duly sworn to try the issues herein.

“The Court: You may proceed, Mr. Earnhardt, in your evidence. Anything to offer for the plaintiff?

Mr. Earnhardt: Not at this time, your Honor.

The Court: What is your — prepare a form of verdict, Mr. Clerk.

Mr. Robinson: I ask that the jury be directed to find the defendant not guilty, your Honor.

The Court: Gentlemen, we give you the form of verdict as follows: ‘We the jury find the defendant—

Mr. Robinson: Defendants.

The Court: ‘Defendants not guilty.’ One of you gentlemen please sign as foreman. Read the verdict,

The Clerk: ‘We the jury find this defendant not guilty. ’ Signed by A. C. Kelly.

The Court: Judgment on the verdict, • Mr. Clerk. That’s all in this case.

Mr. Earnhardt: To which action of the Court the plaintiff objects and excepts and prays an appeal to the Appellate Court of the First District.

The Court: Now, I understand from that statement you have changed your mind and are going to take some part. Let the order so specify. Appeal prayed, bond $200, thirty days. Call the case after.

Which was all the proceedings of any kind had on the trial of this cause.”

The difficulty with plaintiff’s case is that he did not avail of the privileges which the law afforded to him and which, if he had done so, would have aided him out of the difficulty in which he found himself. He could have asked for a continuance or he could have taken a nonsuit. He made no motion for a continuance, as required by the rules of the court, and he made no motion for an order of nonsuit. It is true that counsel for the defense at first moved that the cause be dismissed for want of prosecution, but in bandying some words with counsel for the plaintiff, he withdrew that motion and asked that a jury- be called, and the proceedings indicated above occurred.

Counsel for defendants were within their rights in their attitude and in the action which culminated in the verdict in favor of defendants and judgment of nil capiat entered thereon. While we may sympathize with counsel for plaintiff in the unfortunate dilemma in which he found himself on the occasion in question, we are unable to change the law as specifically announced by the Supreme Court of this State and this court in Delano v. Bennett, 61 Ill. 83; Boyce v. Snow, 187 Ill. 181; Kennedy v. Flich, 164 Ill. App. 483; White v. Herhold, 182 Ill. App. 477.

In White v. Herhold, supra, the court delivered a lengthy opinion in which it reviewed all the facts with an abundance of supporting authority, and in all the cases supra conditions were the same as in the case at bar. We commend counsel for his frank admission that he had been unable to find a single case holding that the court did not have a legal right to direct a verdict in such a situation, and therefore he cites none.

Counsel pleads that his client should not be punished for the derelictions of his counsel, but unhappily for him, the law is to the contrary of such contention.

In Staunton Coal Company v. Menk, 197 Ill. 369, the court said:

“It is the .duty of a party to be present when his case is reached. His negligence in ascertaining when the case will, be reached does not excuse his absence. If appellant relied upon the opinion of its attorney as to the time when the case would be reached for trial, it did so at its peril. The negligence of the attorney in such matters is the negligence of the client. (Mendell v. Kimball, 85 Ill. 582; Walsh v. Walsh, 114 id. 655; Lawler v. Gordon, 91 id. 602; Schultz v. Meiselbar, 144 id. 26.” And in Eggleston v. Royal Trust Co., 205 Ill. 170, it was said: “Whatever want of .diligence.there is on the part of the attorneys binds the clients.”

In Imbrie v. Bear, 230 Ill. App. 155, this court said:

“Disregarding petitioner’s conclusions of law and immaterial averments, it is enough to say that the petition shows no ground on which court of equity would vacate a judgment. In fact, it is perfectly apparent upon its face that the judgment was entered because of the failure of defendant, or his attorney to appear and make a defense when in the regular course óf procedure the case was called for trial, and that such failure was due to the negligence of his attorney. ■It is well settled that relief will be barred where the applicant has been guilty of negligence, and that an agent’s or attorney’s neglect or want of diligence is binding on the principal. (Simon v. Hengels, 107 Ill. App. 174; Foster v. Weber, 110 Ill. App. 5; Eggleston v. Royal Trust Co., 205 Ill. 170; Staunton Coal Co. v. Menk, 197 Ill. 369.)”

The judgment appealed from, though seeming drastic from the viewpoint of plaintiff and his counsel, we have no power to reverse, for we find that the judgment is fully warranted by the law of this state, as announced in the cases here cited.

The judgment of the superior court being without error, is affirmed.

Affirmed.

Wilson, P. J., and Ryner, J., concur.


text:
    John C. Bowers and Arnold Schlachter, Appellants, v. Charles E. Hoffman, Appellee.
    Gen. No. 33,455.

      Opinion filed November 6, 1929.
    Church, Haft, Robertson & Crowe, for appellants.
    Schuyler, Weinfeld & Parker, for appellee; H. E. Jacobs and Carl J. Appell, of counsel.
   Mr. Justice Holdom

delivered the opinion of the court.

In the trial court upon a trial before a judge thereof without a jury, there was a finding for the defendant and a judgment of nil capiat, and plaintiffs bring the record to this court for review by appeal.

The claim of plaintiffs is for a commission as real estate brokers for negotiating as they claimed the sale of certain real estate in Chicago. However, the nub of the controversy relates to a certain real estate fourth mortgage owned by one Mary A. Shay. Both the plaintiffs were real estate brokers, but not partners, in the real estate brokerage business.

The contract in dispute between plaintiffs and defendant is in the following words, and is of date May 22, 1924:

“For and in consideration of One ($1.00) Dollar, Arnold Schlachter and John C. Bowers agrees to buy the Fourth Mortgage on the Six apartment building located at 808-10 Edgecomb Place, .being in the amount of Eighty-three Hundred Seventy-five Dollars ($8375.00) for Fifty-eight Hundred Dollars ($5800), and Charles E. Hoffman agrees to sell above mortgage for above mentioned sum of fifty-eight hundred Dollars ($5800.00).

(Accepted) Arnold Schlachter

David C. Bowers

(Accepted) Charles E. Hoffman”

It is without dispute that the so.-called fourth mortgage recited in the foregoing writing, was in the possession of John C. Bowers, one of the plaintiffs for some time at and prior to the 20th day of May, 1924, and that the foregoing contract was in his possession at and before May 22, 1924, when he procured the defendant Hoffman to execute it.

It may be conceded as matter of law, as contended by plaintiffs, that where a seller accepts a purchaser and enters into a valid contract of sale with him, the broker’s commission is earned whether the purchaser subsequently fails to perform his contract and make the payments agreed upon or not. Fox v. Ryan, 240 Ill. 391 sustains such contention. However, the facts in evidence do not tend to sustain that claim. We are of the opinion from a scrutiny of the evidence that no valid and binding contract was ever entered into be- - tween defendant and plaintiffs for the reasons hereinafter recited. While there were other writings between the parties the one recited controls the situation and the rights of the parties.

It is in evidence that a contract was entered into between Mary A. Shay and the defendant Hoffman for the purchase of a six-apartment building at the north-: east corner of Ashland and Sunnyside Avenues, Chicago. It was under this contract that the fourth mortgage of Mary A. Shay was to be turned in as a part of the purchase price in conformity with the contract above recited between plaintiffs and defendant.

About the 14th day of May, 1924, when Mrs. Shay signed the contract, she gave the note secured by the fourth mortgage above mentioned to the plaintiff Bowers; that on the 20th day of May 1924, there was a meeting between the plaintiff Bowers and Mrs. Shay, at which Mrs. Shay told Bowers she wanted the deal closed, she was going east; that he appeared to be impatient and took the fourth mortgage paper from his inside pocket and threw it on the desk and said to Mrs. Shay, “there is your paper, the deal is off. We have a fellow with cash to buy”; that thereafter Mrs. Shay left Chicago. On May 22, 1924, two days after the incident above referred to, the plaintiff Bowers procured the defendant Hoffman to sign the contract, which both plaintiffs had signed, dated May 22,1924, in which the plaintiffs agreed to buy the fourth mortgage, hereinabove referred to. At that time Mrs. Shay had left Chicago with the fourth mortgage papers. Bowers made no mention to defendant of the fact that he had returned the mortgage to Mrs. Shay, and that the deal was declared off, or that Mrs. Shay had left Chicago. Bowers at the time he procured the signature of Hoff7 " man to the contract knew it could not be carried out and that by his own act he had cancelled the obligation of Mrs. Shay. There is some dispute by Bowers, it is true, regarding what occurred on the 20th day of May, 1924, between him and Mrs. Shay, but we think there are environing circumstances which corroborate the occurrence testified to by Mrs. Shay. Bowers did not have the papers when Hoffman signed the contract and the carrying out of the contract was made impossible by the act of plaintiff Bowers in returning the mortgage papers to Mrs. Shay and declaring that the deal was off. This being a joint venture of the plaintiffs as brokers, the action of one bound both, It is patent that if Bowers had acquainted Hoffman with the true condition of affairs, he would never have signed the contract which he did on the 22nd day of May, 1924, two days after Bowers had surrendered the fourth mortgage papers to Mrs. Shay and called the deal off.

The trial was before the court, and if the court believed the testimony of Mrs. Shay and disbelieved the testimony of Bowers, then the court was justified in making the finding in defendant’s favor.

Bowers admitted on cross-examination that he had possession of the mortgage papers and that he returned them to Mrs. Shay. It is evident from the proofs that Hoffman’s signature to the contract was obtained by withholding from him the information that by Bowers’ own conduct the contract could not be carried out, as he had returned the papers to Mrs. Shay. This was such a fraud on Bowers’ part as to warrant Hoffman in repudiating the contract. It is a familiar axiom that fraud voids all contracts. There can be no doubt from the evidence of Mrs. Shay and the environing conditions that at the time the defendant Hoffman executed the contract Bowers had made it impossible of performance. He had agreed with Mrs. Shay to call the deal off and surrendered the papers then in his possession to her.

The plaintiffs were the brokers of the defendant. The law requires that, as such, plaintiffs should act in the utmost good faith in their dealings with Hoffman. This they did not do.

In Perry v. Engel, 296 Ill. 549, it is held that the relation of principal and agent is one of trust and confidence, and where such relation exists it must be faithfully acted upon and preserved from any intermixture of imposition, no matter how large or how small the commission paid may be or whether the agent is a mere volunteer at a nominal consideration. The duty imposed by law on plaintiffs as the agent of Hoffman in the transaction, they failed to observe, and thereby procured Hoffman’s execution of the contract by suppressing the truth as to the existing situation that the deal had been called off and that Mrs. Shay had her mortgage securities, that Bowers, one of the plaintiffs, had surrendered the same to her as hereinbefore recited.

In their reply brief plaintiffs tell us that the learned trial judge, in rendering his decision, used the following language:

“I will say in the first place the buyer and seller are not parties to this suit. It is a broker who is suing. It requires the highest faith on his part but if the question were a matter of rights between the parties it might be a different obligation. Mrs. Shay may have had to go through with the deal if she signed her name to a paper under seal, that would be one thing, but there is not any evidence in the record, in fact, there is evidence to the contrary that the broker made no move at all either to carry out the ordinary provisions of the contract, to give an abstract, or anything else. The deal went dead by the failure of the brokers to do their part.”

If those remarks were a part of his decision,-we accord to them our approval

In our opinion the judgment of nil capiat appealed from does justice between the parties. Consequently the judgment of the municipal court is affirmed.

Affirmed.

Wilson, P. J., and Ryner, J., concur.


text:
    Paul Katauski, by John Katauski, his Father and Next Friend, Appellant, v. Eldridge Coal and Coke Company, Appellee.
    Gen. No. 33,464.
    Opinion filed November 6, 1929.
    Herman P. Haase and Timothy J. Fell, for appellant.
    McKenna & Harris, for appellee; James J. McKenna and Abraham W. Brussell, of counsel.
   Mr. Justice Holdom

delivered the opinion of the court.

This is an appeal from an order vacating a judgment against defendant, entered by default for the sum of $6,500, on October 30,1928.

There is not found in the record any bill of exceptions.

The judgment was entered at the October term 1928 of the court. On November 15,1928, being the November term of the court, notice was served on plaintiff’s attorneys that defendant would move the court on November 16, 1928 to vacate the judgment.

' The motion is in the following words:

“Now comes Eldridge Coal and Coke Company, a corporation by its attorneys, McKenna & Harris, and moves the Court to vacate the judgment entered in the above entitled cause on October 30, 1928, and in support of said motion presents herewith the affidavit of Ian P. McDonald. ’ ’

The maker of the affidavit appears to be one Ian P. McDonald, an agent of the Liberty Mutual Life Insurance Company, a corporation existing under the laws of the State of Massachusetts. This company is not a party to this action. Neither does the affidavit disclose that the affiant is in any manner connected with defendant or acting for it.

The common law record shows that the judgment entered at the October term was vacated at the following December term, at which time the court had lost jurisdiction to enter an order vacating the judgment requested in this motion.

Another motion made subsequent to the motion above referred to, is found in the record which is in the following words:

“Now comes Eldridge Coal and Coke Company, by its attorneys, McKenna & Harris, and represents that on the 30th day of October, A. D. 1928, judgment in,the amount of Sixty-five Hundred ($6500) Dollars was entered against this defendant; that this judgment was entered as the result of an accident or mistake, and without negligence on the part of this defendant, or its representatives, as by affidavit filed in said cause more fully set forth.

“The defendant further represents that it has a good and meritorious defense to the whole of said case, and that the judgment of Sixty-five Hundred ($6500) Dollars was unconscionable.

“And defendant, therefore, moves this honorable court to set aside and vacate the judgment heretofore rendered in said cause.”

A demurrer was interposed to this motion by plaintiff.

• On this motion the following order was entered of record December 31,1928:

“This cause coming on to be heard upon the demurrer to the defendant’s motion in the nature of writ of error coram- nobis filed in said cause, after arguments of counsel and due deliberation by the Court, said demurrer is overruled; to which the plaintiff then and there excepted. Whereupon the plaintiff elects to stand by his demurrer.

“It is therefore considered by the Court that the default and judgment heretofore entered herein be and the same-are hereby vacated and set aside; to which the plaintiff then and there excepted.”

The second motion to vacate the judgment was made under section 89 of the Practice Act, Cahill’s St. "ch. 110, Tf 89, and is confined to errors of fact intervening in the entry of the judgment.

The trial court being without jurisdiction to enter an order after the passing of the term at which the judgment was entered, could only proceed in the decision of the motion in accord with section 89 of the Practice Act, Cahill’s St. ch. 110, IT 89', and under these conditions the question before the court was one of law as to whether the motion disclosed that the judgment had been entered by the court in ignorance of existing facts, which, if brought to its knowledge, would have prevented the entry of the order.

The demurrer interposed to the motion was overruled. That order was erroneous. The motion failed to disclose any facts which, if known to the court at the time of the entry of the - judgment, would have precluded its rendition. It contained mere conclusions of the pleader.

In the case of McNulty v. White, 248 Ill. App. 572, it was held that an error of fact in a proceeding to vacate a judgment under section 89 of the Practice Act, Cahill’s St. ch. 110, If 89, must be some fact unknown to the court at the time, of the entry of the judgment, which, if known, would have precluded the rendition of the judgment. Lack of knowledge by the court of the facts in the case, which constitute the defense, is not an error of fact, which can be corrected under section 89, supra, by a motion to vacate a judgment by default.

For the errors above indicated, the judgment in this appeal is reversed and the cause remanded with directions to the trial court to sustain the demurrer to the motion made to vacate the judgment and to vacate the order of December 31, 1928, vacating the default judgment entered October 30, 1928.

Reversed and remanded with directions.

Wilson, P, J., and Ryner, J.,. concur.