author: Mr. Presiding Justice O’Connor Mr. Justice McSurely,

text:
    Joseph Wagner, Trading as Wagner Dairy Products, Appellee, v. M. Okner, Appellant.
    Gen. No. 41,422.
    McSurely, J., dissenting.

      Opinion filed October 10, 1940.
    Rehearing denied October 22, 1940.
    Isidore Fried, of Chicago, for appellant; Herbert B. Fried and Bernard A. Stol, both of Chicago, of counsel.
    Grablowski & Kanak, of Chicago, for appellee; Harvey L. Cavender, of Chicago, of counsel.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

By this appeal defendant seeks to reverse an order entered by the superior court of Cook county refusing to dissolve a preliminary injunction by which he was enjoined “From purchasing milk, cream, buttermilk and other dairy products of any person, firm or corporation other than Joseph Wagner, . . . during the period beginning May 23, 1940 and expiring May 23, 1941, ” and from “selling, offering for sale, bartering, exchanging, or giving away at his store located at 4000 So. Ellis Avenue, Chicago, Illinois, . . . the milk, cream and other dairy products of any other firm, person or corporation, except the products of the plaintiff” during the same period of time, and “From the further breach of any of the provisions of the agreement executed” by plaintiff and defendant until the further order of court.

The record discloses that June 5, 1940, plaintiff filed his verified complaint in chancery, the substance of which is that for more than 30 years he has been engaged in buying, selling and distributing milk in Chicago and its suburbs; that defendant conducted a delicatessen store in Chicago where, among other things, he sells milk, cream and other dairy products at retail; that plaintiff has invested at least $100,000 in Ms plant and sells milk at wholesale to a number of persons who conduct stores; that May 23, 1940, he entered into a written agreement with defendant whereby, in consideration of $100 paid by him to defendant, defendant agreed to purchase exclusively plaintiff’s dairy products for a period of 12 months. The agreement further provided that in case defendant did purchase dairy products from any one other than plaintiff during the year covered by the contract, plaintiff should be entitled to recover the $100 together with damages he might sustain by reason of the breach of contract by defendant, or at plaintiff’s option the agreement authorized him to obtain an order restraining defendant from purchasing any dairy products from any one other than plaintiff.

It is further alleged that upon the execution of the contract plaintiff daily delivered dairy products to defendant; that May 28, five days after the contract was entered into, defendant refused to accept any further dairy products from plaintiff and since that date has been selling and distributing dairy products which he purchases from other persons unknown to plaintiff in violation of the agreement; that plaintiff, in order to supply defendant with the necessary amount of dairy products under the written agreement had entered into an agreement with divers producers of milk to buy milk from them so that he could fulfill his contract with defendant and other customers; that under such agreement plaintiff was obliged to buy the milk and since the breach of the agreement by defendant, he had no market for such milk and was daily suffering damages; that he fears he will suffer irreparable damages unless defendant is restrained, and prays “that an interlocutory decree be entered herein without notice and without bond” restraining defendant, etc.; that if defendant was notified of the application of an order for a preliminary writ of injunction and the matter went to a hearing it would “unduly and prejudicially delay this hearing”; that defendant would continue to breach the contract; that other store owners now purchasing their supplies from plaintiff under similar agreements Would be encouraged to breach their agreements and that defendant is insolvent and incapable of paying any damages plaintiff might recover against him.

The day after the suit was brought the injunctional order was entered and two days later defendant filed a special appearance and notified plaintiff that he would move to dissolve the injunction on the ground of the failure of plaintiff to give notice and bond. June 19, defendant’s motion to dissolve the injunction was denied and this appeal followed.

Section 3, ch. 69, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 109.351] provides: “No court, . . . shall grant an injunction without previous notice of the time and place of the application haying been given to the defendants to be affected thereby, . . . unless it shall appear, from the complaint or affidavit accompanying the same, that the rights of the plaintiff will be unduly prejudiced if the injunction is not issued immediately or without such notice. ’ ’ And § 9 of the same chapter provides that before an injunction shall issue in a case such as the one at bar “plaintiff shall give bond in such penalty, and upon such condition and with such security as may be required by the court. . . Provided, bond need not be required when, for good cause shown, the court ... is of opinion that the injunction ought to be granted without bond.”

No facts alleged in the verified complaint tend to show plaintiff would be unduly prejudiced if he notified defendant of the application for the writ of injunction. What this court said in Daigger & Co. v. Kraft, 281 Ill. App. 548, is pertinent here. In that case it was sought to enjoin defendants from using lists of customers and other information which they surreptitiously abstracted from plaintiff’s files while they were employed by plaintiff. An order for a preliminary injunction was issued without notice. We there said: “Courts of Cook county are in session at all seasons of the year, where an application for an injunction can be had within a few minutes, or at most a few hours.” In that case we held the injunctional order was properly entered for the reason that if notice were given defendants might make away with the lists and other data so that the injunction would be of little or no value but such a situation is not involved in the case at bar. Counsel for defendant in the instant case could have been served with notice and within a few hours thereafter the matter could be disposed of by the court and there is nothing in the record that tends to show plaintiff would be irreparably damaged if notice were given. We think the order should not have been entered without notice. Lange v. Massachusetts Mut. Life Ins. Co., 273 Ill. App. 356; Balaban & Katz Corp. v. Rose, 283 Ill. App. 615; Thulin v. National Ice & Fuel Corp., 293 Ill. App. 155; Grossman v. Grossman, 304 Ill. App. 507; Kessie v. Talcott, 305 Ill. App. 627.

We think we ought to say that the language used in a number of opinions in cases such as the Balaban & Katz, Lange and Kessie cases above referred to (to the effect that where a preliminary injunction is issued without notice in a case where notice should have been given, it is the duty of the court “without reference to the merits of the cause” to reverse the injunctional order), ought to be modified for the reason that in such a situation the merits of the case, as alleged in the complaint or affidavits must be considered to enable the court to pass intelligently on the question whether notice should have been given. Moreover, § 3 above quoted requires this be done. For example, a complaint may allege facts warranting the issuance of a preliminary injunction upon notice but if no notice were given the injunctional order should be reversed.

We are further of opinion that where a motion to dissolve a preliminary injunction specifies as grounds for such motion, the failure to give notice and other grounds which go to the merits, the failure to give notice is not waived. Balaban & Katz Corp. v. Rose, 283 Ill. App. 615; Kessie v. Talcott, 305 Ill. App. 627. Contrary statements found in cases such as Sheehy v. Koerber, 282 Ill. App. 543, must he considered as inaccurate.

We are further of opinion the court should have required plaintiff to give bond as the statute provides. The statute is plain and unambiguous and should be follpwed. The fact that the order appealed from provided that the injunction issue “without notice and without bond for good cause shown” is wholly insufficient since no good cause is shown by the record. Johnson v. Crouch, 224 Ill. App. 105.

; The order of the superior court of Cook county is reversed.

Order reversed.

Hatchett, J., concurs.

Mr. Justice McSurely,

dissenting: I concur in all that is said in the above opinion concerning the practice in these cases but dissent from the conclusion. I think the order should be affirmed.

(1) The complaint alleged that plaintiff had contracted with various producers for the milk it had agreed to furnish defendant and that defendant’s breach left plaintiff with no market for this milk, with resulting damages; that defendant is insolvent and these damages would accrue every day this breach continued. In my opinion this unduly prejudiced the rights of the plaintiff and authorized an injunction without notice.

(2) The contract between the parties authorized the plaintiff, in case of a breach by defendant, to obtain a restraining order. The only condition of obtaining this order was a breach of the contract. This in my opinion was a waiver by defendant of any right to a previous notice or a bond.


source: Caselaw Access Project

author: Justice Dove.

license: Public Domain

text:
    Lois Madison, Appellee, v. Jack Essington, Appellant.
    Gen. No. 9,560.
    opinion filed September 19, 1940;
    rehearing denied October 15, 1940.
    Jones & Heflin, for appellant; Winslow J. Painter, for appellee.
   Opinion by

Justice Dove.

“Not to be published, in full.”


author: Mr. Justice Dove

text:
    People of the State of Illinois, Appellants, v. Walter W. Furey and Indemnity Insurance Company of North America, Appellees.
    Gen. No. 9,564.

      Opinion filed September 19, 1940.
    Rehearing denied November 5, 1940.
    Hunter, Kavanagh & McLaughlin, of Peoria, for appellants.
    Bartley & Youngs, of Peoria, for appellees.
   Mr. Justice Dove

delivered the opinion of the court.

On July 12, 1933, the circuit court of Peoria county in a dissolution proceeding then pending in that court, appointed Walter W. Furey receiver for the Illinois Valley Trust Company and fixed the amount of his bond at $50,000. Subsequently Mr. Furey qualified and his bond, with the Indemnity Insurance Company of North America as surety, was duly approved by the court. On the following day the circuit court entered an order in said liquidation proceeding to the effect that every person having a claim against the Illinois Valley Trust Company should file with the said Walter W. Furey, as receiver, at his office at 1203 Jefferson Building, Peoria, Illinois, on or before January 1,1934, written proof under oath of any such claim. Notice of this order was thereupon mailed by the said Walter W. Furey, receiver, to all the creditors of said Trust Company including’ the Commercial Merchants National Bank and Trust Company of Peoria as conservator and ex-officio administrator of the estate of Emma R. Drouin, deceased, and to Grace B. Wead, as an individual and to the said Commercial Merchants National Bank and Trust Company and the said Grace B. Wead as trustees of the S. D. Wead estate trust all being creditors of said Illinois Valley Trust Company. At the time the receiver took charge of this Trust Company it was indebted to the estate of the said Emma B-. Drouin, deceased in the sum of $3,181.16 and to the S. D. Wead estate trust in the sum of $6,312.13 and to Grace B. Wead individually in the sum of $2,011.64.

At the time of his appointment as receiver and continuing thereafter, Walter W. Furey was employed in the office of Hiram Walker & Sons in the Jefferson Hotel in Peoria and shortly after his appointment as receiver he opened an office at No. 1203 Jefferson Building, Peoria and employed Patrick J. Ryan and two other persons to assist him in transacting his business as receiver. On December 27, 1933, Ray Belsley, as agent for the three creditors above named, went to No. 1203 Jefferson Building and there found the said Patrick J. Ryan, one of Mr. Furey’s employees, in charge. Mr. Belsley inquired where Mr. Furey could be found and was informed that Mr. Furey was at the office of Hiram Walker & Sons in the Jefferson Hotel. Belsley immediately went there and met Mr. Furey in his office where he was sitting behind a desk. Belsley handed him the three separate claims hereinafter referred to and asked Mr. Furey for a receipt for the same and Furey receipted for them on the duplicate copies which Belsley tendered to him. Mr. Furey at that time indorsed on each duplicate copy of said claims in his own handwriting the following: “Received copy December 27/33. W. W. Furey.” Mr. Furey retained the original claims and returned the duplicate copies so indorsed to Mr. Belsley. Mr. Belsley said nothing as to the nature of the instruments he was presenting to Mr. Furey and Mr. Furey made no inquiry of Mr. Belsley as to their character.

On June 26,1934, the circuit court referred the question of the allowance of claims to the master in chaneery and directed the master to give notice to all creditors of the time and place where proof would be taken. Following the entry of that order the receiver submitted to the master a list of claims filed with him and the amounts thereof, but no claim on behalf of any of appellants was submitted. In due course the master reported as to the allowance of claims and his report was approved by the court and a dividend of 25 per cent was ordered paid to the general creditors. In this order the court provided that the only persons, firms or corporations having claims against the Illinois Valley Trust Company were those listed in that order and that all other persons, firms or corporations were forever barred and enjoined from making or prosecuting any claim or claims against the trust company or its receiver or its assets in the hands of the receiver, or from instituting or prosecuting any suit against the corporation or its receiver on account of any claim. Thereafter the receiver paid the dividend of 25 per cent to the general creditors whose claims had been allowed and on June 20, 1935, filed his final report with the court, showing that he had collected all of the assets of the corporation, and had distributed the same in accordance with the orders of the court. On July 3, 1935, this final report of the receiver was approved and an order entered discharging him from any further duty or responsibility as receiver of the Illinois Valley Trust Company and dissolved that corporation.

On October 19, 1936, the instant complaint was filed. It consisted of three counts, the first count being the complaint of the Commercial Merchants National Bank and Trust Company of Peoria as conservator and ex-officio administrator of the estate of Emma E. Drouin, deceased; the second count is the complaint of Grace B. Wead and the Commercial Merchants National Bank and Trust Company of Peoria as trustees of the S. D. Wead estate trust and the third count is the complaint of Grace B. Wead as an individual. The suit is brought in the name of the People for the use of these several plaintiffs and against Walter W. Furey and Indemnity Insurance Company of North America upon the official bond of the receiver. The defendants answered the complaint and after the issues had been made up a jury was waived and the cause submitted to the court for determination, resulting in a judgment in favor of the defendants in bar of the action and against the plaintiffs for costs and it is from this judgment that an appeal has been prosecuted.

The sole question for determination is whether appellants complied with the order of the circuit court entered on July 14, 1933, when they, on December 27, 1933, by their agent and representative, Ray Belsley, delivered to Walter W. Furey, the receiver, at his office in the Jefferson Hotel in Peoria the several claims of appellants and took from him his receipt therefor.

It is conceded by counsel that if the claims of appellants had not been forgotten and overlooked by the receiver they would have been allowed in full and upon the hearing it was stipulated that the receiver did not enter the three claims on his books, nor list them as claims nor present them to the master in chancery for allowance or disallowance; that he never filed any objections thereto or fixed upon any time for hearing thereon, nor did he or the master ever give any notice to appellants of a time for hearing on their claims; that in the closing up of the affairs of the corporation and in the payment of dividends to creditors, no cognizance was taken of these claims; that appellants were not parties to the receivership proceedings and were involved only to the extent that they were creditors of the corporation and as such creditors received notice from the receiver to file their claims, according to the order of the court.

If the claims of appellants had not been forgotten and had been allowed in full, the dividend that would have been paid general creditors would have been twenty-three per cent (23%) instead of twenty-five per cent (25%) of their claims and the Commercial Merchants National Bank and Trust Company as conservator and ex-officio administrator of the estate of Emma B. Drouin would have received on its claim the sum of $731.53. The trustees of the S. D. Wead estate trust would have received on their claim the sum of $1,451.76 and G-race B. Wead individually would have received upon her claim the sum of $462.53, which several amounts would have been paid appellants by the receiver on or before June 20, 1935.

The Illinois Business Corporation Act provides, among other things, that in proceedings to liquidate the assets and business of a corporation the court may require all creditors of the corporation to file with the clerk of the court or with the receiver proofs under oath of their respective claims. Ill. Rev. Stat. 1939, ch. 32, sec. 89 [Jones Ill. Stats. Ann. 32.091]. This statute authorized the court to require all creditors to file their claims either with the clerk of the circuit court or with the receiver. In the instant case the court designated the receiver and in its order required the creditors to file their claims with him at his office at No. 1203 Jefferson Building, Peoria.

Counsel for appellees argue that these claims were not filed as required by the order of the circuit court until they were actually marked filed by the receiver or his employees and lodged in the office designated in that order as the office of the receiver. In support of this contention they cite, among other cases, Hamilton v. Beardslee, 51 Ill. 478 and Brelsford v. Community High School Dist. No. 36, 328 Ill. 27. The Brelsford case was an election contest and the petition was dismissed because the court held that leaving the petition to contest an election with the deputy circuit clerk at her home was not a compliance with the statute which provided that such petition should be filed in the circuit or superior court. In Hamilton v. Beardslee, supra, it was held that placing a declaration on the table of the clerk of the superior court in his office did not comply with the statute that required it to be filed with the clerk of the superior court. In its opinion that court said: “to file a paper in a cause, it must be placed in the hands and under the control of the clerk. It must pass into his exclusive custody and remain within his power. Not only so, but the purpose and object is to render it a part of the records of his office, and that object must be communicated to him in some manner capable of being understood. We do not say that it should or could be alone communicated by language written or verbal, but that he must, in some mode or other, be informed that the party intends and desires it to be filed. ’ ’

We have examined the other cases cited and it should be noted that in all of them the rights of third parties who had a right to rely upon the records of a statutory office were involved. It is insisted here by counsel for appellees that since the order directing the filing of claims referred to No. 1203 Jefferson Building, that the office there located became the official office for the filing of claims. The order, however, does not provide that claims shall be filed at the office of the receiver or with the receiver at his office or with the receiver at his office as receiver. What the order provides is that every person having a claim shall file it with Walter W. Furey, as receiver, at his office at No. 1203 Jefferson Building. The evidence is that appellants took their claims to the office located at No. 1203 Jefferson Building and made inquiry for Walter W. Furey. He was not there but his employees who were there and in charge of the office informed the agent of appellants where he could be found and the agent of appellants forthwith went to the place where he was so directed to go and he there found Walter W. Furey, the receiver. It was during business hours and Mr. Furey was in his office sitting behind a desk. There and then appellants presented and delivered to him their claims. Walter Furey, the receiver accepted them and acknowledged in his own handwriting the receipt thereof. He was the only person with whom these claims could have been filed in compliance with the order of the circuit court. The fact that he was not at No. 1203 Jefferson Building, but was, at that time, in his own office at the Jefferson Hotel should not preclude appellants from insisting that they have complied with the spirit of the order of the circuit court. It seems to us that in accepting these claims at the time and place where he did, the receiver must be held to have waived that portion of the order of the circuit court which designated the receiver’s office as No. 1203 Jefferson Building.

In J. B. Orcutt Co. v. Green, 204 U. S. 96, it appeared that Ingalls Bros. had been adjudicated bankrupts on Dec. 3,1902. Section 57, sub-section n of the Bankruptcy Act provided that claims could not be proved against a bankrupt estate subsequent to one year after an adjudication in bankruptcy, and a portion of the 21st general orders in bankruptcy provided that proofs of debt received by any trustee should be delivered to the referee to whom the case is referred. On April 1,1903, the J. B. Orcutt Co., duly verified its proof of claim and shortly thereafter delivered it to the trustee. The trustee neglected to deliver it to the referee and this claim together with two other claims, was found in a package of papers relating to another bankruptcy proceeding sometime after the year had expired for filing claims in the In-galls case. On April 2,1904, a petition was filed in the district court for leave to file each of said claims nunc pro tunc as of a date prior to December 3,1903. Other creditors of the bankrupt objected on the ground that the claims had to be seasonably presented to the court and were barred under the provisions of the bankruptcy act. In affirming the judgment of the district court which directed that the claims should be filed as of the date when delivered to the trustee and in reversing the judgment of the circuit court of appeals, which held otherwise, the United States Supreme Court construed the 21st general order in bankruptcy to mean that proofs of debt may be received by the trustee and that when so received by him, such claims are, in legal effect, received by the court, whose officer the trustee is, and having been received by the trustee, under authority of law, the proofs of debt are thereby sufficiently filed so far as creditors are concerned and that it is the duty of the trustee then to deliver the claims to the referee. In its opinion the court said: “If the trustee inadvertently neglects to perform that duty it is the neglect of an officer of the court, and the creditors are in no way responsible therefor. The presentation and filing have been made within the time provided for and with one of the proper officers and his failure to deliver to the referee cannot be held to be a failure on the part of the creditor to properly file his proofs.”

The Orcutt case does not decide the exact question presented for decision in the instant case but what the court there said is applicable here. Under the facts and circumstances as shown to have existed at the time these claims were delivered to the receiver, their presentation and delivery to him in person, must be construed as a filing within the meaning of the order entered by the circuit court in the liquidation proceedings of the Illinois Valley Trust Company. When Walter W. Furey qualified as receiver of that company, he became an officer of the circuit court and the assets of the company, while in his hands, as receiver, were in the possession of the court for the benefit of its creditors, stockholders and all parties in interest. (Manning v. Mercantile Securities Co., 242 Ill. 584), and when he received these claims, they were, in legal effect received by the court, whose officer he was, and having been received by him, under the authority of the court, these claims were sufficiently filed so far as creditors were concerned and it was the receiver’s duty to take them into consideration and treat them as other claims in winding up the affairs of the company, of which he was receiver. It is unfortunate that he inadvertently neglected to perform that duty, but his neglect was the neglect of an officer of the court for which appellants are in no way responsible. The receiver’s failure to take the claims into consideration in the final liquidation of the company, cannot be held to be due to a failure on the part of the appellants to properly file their claims.

The judgment appealed from is reversed and this cause is remanded to the circuit court of Peoria county with directions to that court to render judgment for each appellant for the- stipulated amount due each appellant together with interest thereon from June 20, 1935.

Reversed and remanded with directions.


author: Me. Justice Hayes

text:
    City of Springfield et al., Appellees, v. George J. Kable and Mary Edith Kable Caldwell, Appellants.
    Gen. No. 9,235.

      Opinion filed October 15, 1940.
    William L. Patton and T. C. Torrence, both of Springfield, for appellants.
    Hugh J. Graham, Jr. and Barber & Barber, both of Springfield, for appellees.
   Me. Justice Hayes

delivered the opinion of the court.

This is an appeal from a decree of the circuit court of Sangamon county enjoining the defendants from using, as a public parking lot for the storing of automobiles, a tract of land 88 feet by 91 feet, located in the north central part- of a block bounded by Jackson, Second, Cook and Third streets, and the extended line of Third street, in the City of Springfield, and designated as tract number one.

The decree was granted on plaintiffs’ motion for judgment on amended count 1 of the complaint, for want of a sufficient answer. The amended complaint consists of three counts, count 1 being devoted to tract one, upon which there was no dispute as to its former use, and counts 2 and 3 severally covering tract two and three.

The cause was referred to the master to take proofs as to counts 2 and 3, and judgment was allowed in favor of plaintiffs on the pleadings as to count 1. Amended count 1 of the complaint, filed by the City of Springfield, its Superintendent of Buildings, and sixteen property owners, owning 17 dwelling and apartment houses, alleging the adoption by the City, on July 28, 1924, of a Zoning Ordinance designating the block in question, as a Class “B” Residence District, and limiting the use thereof for certain purposes which did not include parking lots, and prohibited all other uses. Count 1 further avers that tract one at the time of the enactment of said Zoning Ordinance was used only as a flower garden and continued to be used for the growing of flowers up until October 1, 1937, when the defendant Kable caused the same to be covered with cinders, and began to use it as a parking lot.

The defendants’ answer to said amended count 1 admitted the adoption of the Zoning Ordinance; the ownership of the real estate; and the use of tract one as a flower garden, from the passage of the Zoning Ordinance and up until October 1, 1937, and also admitted that it was then converted into a parking lot, as alleged in the complaint. In their answer, defendants deny the allegation of the complaint that at the time of the enactment of the Zoning Ordinance the neighborhood was characteristically a residence one. They also deny that plaintiffs are entitled to the relief prayed for, for the reason that the Zoning Ordinance is unreasonable, and that the unlawful use of the police power of the State of Illinois, results in taking defendants’ property without due process of law, without just compensation, and in violation of the fifth and fourteenth amendments of the Federal Constitution, and sections 2 and 13 of article two, of the Illinois Constitution, and further denies that there is any justification for the Zoning Ordinance limiting and restricting the use of the defendants’ property, for the conservation or furtherance of the public health, safety, morals or general welfare, and avers that defendants’ property was wrongfully included in said Zoning Ordinance as “B” Residential District in considering the location of the land, its relation to the streets, and its prior and probable use.

The power of a city or village to adopt comprehensive zoning laws is based upon the police power, and their prohibitive restrictions are valid if they bear a reasonable relation to the public comfort, morals, safety and general welfare, even though some individual may suffer an invasion of his property. The presumption is in favor of the validity of a zoning ordinance, and it is incumbent upon the property owner attacking it to affirmatively and clearly show its unreasonableness. When the reasonableness of the ordinance is challenged, the question for the court is not whether it thinks the ordinance wise, but whether it has a rational relation to the public health, morals, safety or general welfare. (Rothschild v. Hussey, 364 Ill. 557.) While the restraints put upon private property by zoning ordinance must not be arbitrarily imposed, and are subject to review by the courts, it is primarily the function of the municipality to determine the line of demarcation as to the use and purpose to which property may be assigned. Where the unreasonableness of restrictions is not clearly shown, the court will not substitute its judgment for that of the group to whom the determination was entrusted by the legislature. (Speroni v. Board of Appeals of City of Sperling, 368 Ill. 568; Minkus v. Pond, 326 Ill. 467.)

The answer filed herein to count 1 of the amended complaint, neither denies any material facts, nor sets up any new facts which constitute a defense. The general allegations that the Zoning Ordinance in question is unreasonable, unlawful and in violation of the Federal and State Constitution are mere conclusions of law. It is not necessary to introduce evidence of what is admitted by the pleadings, and allegations of conclusions of law not based upon facts pleaded are immaterial and may be disregarded. (Macaulay v. Jones, 295 Ill. 614; Binz v. Tyler, 79 Ill. 248; Barnes v. Northern Trust Co., 169 Ill. 112; Phillips v. Gannon, 246 Ill. 98.) When such legislative action is called in question, if any state of facts reasonably can be conceived that would sustain it, there is a presumption of the existence of that state of facts, and one who assails the classification must carry the burden of showing by a resort to common knowledge or other matters which may be judicially noticed, or to other legitimate proof, that the action is arbitrary. The burden is not sustained by making allegations which are merely the general conclusions of law or fact. Facts relied upon to rebut, the presumption of constitutionality must be specifically set forth. (Pacific States Box & Basket Co. v. White, 296 U. S. 176.)

The defendants failed to set up any proper defense in their answer to count 1 of the amended complaint, and the court very properly entered judgment on the pleadings. Therefore, the decree of the circuit court is affirmed.

Decree affirmed.


author: Mr. Justice Hates

text:
    The City of Litchfield, Appellee, v. Bert Hart, Appellant.
    Gen. No. 9,239.

      Opinion filed October 15, 1940.
    H. B. Tunnell, of Litchfield, for appellant.
    D. R. Kinder, of Litchfield, for appellee.
   Mr. Justice Hates

delivered the opinion of the court.

This is an appeal from a judgment of the circuit court of Montgomery county, in favor of the city of Litchfield, plaintiff appellee, and against Bert Hart, defendant appellant, where a fine of ten ($10.00) dollars was assessed for the violation of a city ordinance, which ordinance required a city license for using a vehicle within the city.

The suit was started before a police magistrate. A jury was waived and the facts were stipulated, which stipulation recited that: “The City of Litchfield was organized under the Act of 1872, that on December 4, 1919, Ordinance Number 1189 was passed by the City Council, which ordinance provided that, among other things, it shall be unlawful for any person residing in Litchfield to use, cause, .or permit to be used, any vehicle hereinafter mentioned, upon the public highways for private use unless such person has procured the license provided for in said Ordinance.”

Stipulation further provided that the appellant was a resident of Litchfield, — and had been a resident for more than one year prior thereto, — that he was the owner of a motor vehicle; that he failed to purchase a wheel-tax license from the city for the year beginning July 1, 1938, and ending June 30, 1939, and that he did operate his automobile during that time on and about the streets of Litchfield.

It is further stipulated that on the nineteenth day of November, 1932, in the regular city election, the following proposition was submitted to the voters: “Shall the City of Litchfield collect a vehicle tax on motor vehicles and wagons?” Four hundred and seventy-five (475) voters voted ‘yes,’ and one thousand six hundred and sixty-nine voters (1669) voted ‘no.’ It is further stipulated that Ordinance No. 1189 has never been repealed or amended, except as amended by Ordinance No. 1410, and that each ordinance is still in full force and effect, unless abrogated or nullified by the election of aforesaid.

Appellant contends that judgment should be reversed on account of the question of public policy having been submitted to the voters in accordance with paragraphs 334 and 335 of chapter 46 of the statute [Jones Ill. Stats. Ann. 43.244, 43.245], and that a majortiy of the votes against the wheel tax resulted in nullifying and abrogating the ordinance.

The title to the act which said election was held under is as follows: “An act providing for an expression of opinion by electors on questions of public policy at any general or special election.” From the language used in the title, it appears that the act provides for the expression of opinion thereon by electors, and allows them an opportunity to express their sentiment on certain questions. This is as far as the act goes. It does not state what the effect of the election shall be, nor is there any provision in this statute where an adverse vote against any question of public policy would nullify all statutes or ordinances in conflict with said vote. The legislature meant just what it stated in the title of the act, that is for the people of a political subdivision to express an opinion upon the question of public policy, the result of which is not binding upon the authorities, but merely advisory. The result of an election under a public policy act, is not mandatory upon the government officials of a political subdivision, but only directory.

The public policy act is not analagous to the initiative and referendum. Initiative means the power of the-people to propose bills and laws, and to enact or reject them at the polls, independent of legislative assembly. Referendum is the right of the people to have submitted for their approval or rejection, an act passed by the legislature.

The legislature, having seen fit to give cities and villages the right to legislate and pass upon certain ordinances, have also impliedly given them the right to repeal and amend these ordinances. The only way an ordinance of a city can be repealed or amended is by an ordinance duly passed by the city council of said city. Hibbard v. City of Chicago, 173 Ill. 91.

The legislature of this State has seen fit to allow municipalities to levy and collect a wheel tax, without such proposition being submitted to the vote of the people. Section 32A, ch. 95½, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 85.032(1)].

Appellant contends that the ordinance in question was illegal and void, for the reason that it is in violation of section 32A of ch. 95½ of the Illinois Statute for 1939, in that the ordinance taxes nonresidents who conduct any business within the city.

The Supreme Court, in the City of Chicago v. Adelman, 326 Ill. 58, held that one cannot object to applicable valid provisions of an ordinance on account of other provisions which do not apply to him, and which might be invalid. Appellant, by his stipulation, admitted that he was a resident of the city of Litchfield. Although a separate and distinct section of the ordinance which applies only to nonresidents doing business within the city of Litchfield may be invalid, appellant is not affected thereby, and is in no position to raise this question.

The remaining question raised by appellant is that he was not charged with an offense in the complaint. The stipulation entered into clearly shows that appellant did not purchase the wheel tax for the year beginning March 1, 1938, and that he was a resident of the city of Litchfield, and operated his motor vehicle upon the streets of said city after July 1, 1938, all of which was clearly in violation of said ordinance. All the elements necessary to constitute the offense appear from the stipulation, and it is too late now, on appeal, to raise for the first time the question of sufficiency of the complaint and warrant.

The entering into the stipulation by appellant waived any defect there might be in the complaint. The rule is, while jurisdiction of the subject matter cannot be waived, the method of acquiring jurisdiction of a particular case, and irregularities thereto may be waived. The defendant, in a case where the court has jurisdiction, may dispense with process altogether, waiver irregular process and appear. In such cases the defendant is not in a position to challenge the method of making up the issues, for the same is induced and acquiesced by him, and he is estopped from afterwards attempting to attack the same. People v. United Medical Service, Inc., 362 Ill. 442.

For the reasons herein assigned, the judgment of the circuit court of Montgomery county is hereby affirmed.

Judgment affirmed.


author: Justice Hayes.

text:
    William W. Poor, Appellee, v. B. C. Hopper, Appellant.
    Gen. No. 9,243.
    opinion filed October 15, 1940.
    Provine & Williams, for appellant; Flesher & Taylor and Thomas Sweeney, for appellee.
   Opinion by

Justice Hayes.

“Not to be published in full.”


author: Mr. Presiding Justice O’Connor

text:
    Irna Phillips, Appellant, v. W. G. N., Inc., and the Tribune Company, Appellees.
    Gen. No. 41,091.

      Opinion filed November 4, 1940.
    Rehearing denied, November 18, 1940.
    Packard, Barnes, MoCaughby, Schumacher & Gilmore, of CMcago, for appellant; George Packard and Arthur J. Jennett, of Chicago, of counsel.
    Kirkland, Fleming, Green, Martin & Ellis, of Chicago, for appellees; Howard Ellis, J. B. Martineau, Keith Masters and Wm. H. Symmes, Jr., all of Chicago, of counsel.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

April 9, 1932, plaintiff filed her bill of complaint to restrain defendants from broadcasting a serial radio program known as “Painted Dreams” and for damages. After the issue was made up the cause was referred to a master in chancery who took the evidence, made up his report and recommended that the suit be dismissed for want of equity. Objections to the report were overruled; they were afterward ordered to stand as exceptions; the exceptions were overruled and a decree entered in accordance with the recommendations of the master. Plaintiff appeals.

The record discloses that The Tribune Company, and later its successor WGN Inc., owned and operated a radio broadcasting station in Chicago; that plaintiff, who lived in Chicago, had attended Northwestern University, the University of Wisconsin and the University of Illinois, where she was graduated in 1923; that after her graduation she taught dramatics at a girls’ public school in Fulton, Missouri for two years; she then taught the same subject in a public school at Dayton, Ohio, and about May, 1930, applied to defendants for employment in the preparation and broadcasting of radio programs. Her first work in broadcasting was on Decoration Day, May 30, 1930. About July following, she did some other short jobs and in September was given further work to do in preparing daily script and taking part as the principal character in the broadcasting of it. This work continued until some time in September, 1931. Plaintiff was paid by defendants for the work. The broadcasting was daily except Sunday, the expense of which was borne by defendants in the hope that a sponsor might be induced to pay defendants for advertising its product in connection with the broadcasting. September 25, 1931, the Mickelberry Company entered into a contract with defendants for a period of six months to sponsor the program and at about the time the contract was entered into plaintiff, without notice or knowledge of defendants, filed the first ten scripts in the Copyright Division of the United States Patent Office claiming to be the author and owner. Plaintiff continued with her work until about April 2,1932, when she was discharged, and afterward defendants continued to broadcast “Painted Dreams” the script being prepared by one of its employees and such broadcasts were given up to the time the decree was entered, July 14, 1939.

Plaintiff’s position as stated by her counsel is that she “originated the set-up, characters and plot of this drama and never relinquished to anyone her author’s rights; ...” that she “is radio author and actress, and 'Painted Dreams’ was her first venture in this kind of a daytime continuity production, which also was a novelty with the WGN station. She was contracted with to furnish the daily scripts for each performance and take part therein as an actress, assuming the rendition of two of the characters. Her position is that she is entitled to a common law author’s right of protection for the products of her brain where those rights are infringed by the defendants who wrongfully excluded her from their studios after over a year’s use of her product under license;” that defendants by con-tinning the broadcast after excluding plaintiff are deceiving the public, leading the public to believe the production was a genuine continuation of plaintiff’s work and that by continuing the imitation “plaintiff can find no radio exchange or sponsor who will take this creation of hers under that name so long as WGrN" carries on in this manner ’ ’ by reason of which she has suffered damages.

On the other side, counsel for defendants say the theory of the defense is “twofold, first, there was no unfair competition, — plaintiff’s own evidence proves by the statements of 242 members of the radio audience that there was none. Secondly, all literary property is in defendant because it hired plaintiff at a salary of $25 a week to write, according to the plot outlined, setting and character formula it then gave her. She agreed to do so without making any claim of ownership;” that plaintiff wrote the script as ordered by defendants under their supervision and that she was paid for the work she did.

The record is voluminous — 5,900 pages. The contract between the parties was oral and nothing was said about the ownership of literary production. The evidence bearing on the vital question is in sharp conflict, plaintiff’s evidence tending to support her theory while defendants’ evidence, if true, sustains their theory; so that a determination of the case turns on a question of fact. The master found the facts in favor of defendants, this was sustained by the chancellor, and in this situation, under the latest holding of the Supreme Court which we have found, we are not justified in disturbing the findings unless they are against the manifest weight of the evidence. Pasedach v. Auw, 364 Ill. 491; Smuk v. Hryniewiecki, 369 Ill. 546; Metropolitan Life Ins. Co. v. Shattas, 298 Ill. App. 336; Zamis v. Hanson, 302 Ill. App. 404; Grant Hospital of Chicago v. Bierfield, 306 Ill. App. 579 (Abst.); Wagner v. Maguire, 297 Ill. App. 48.

In the Smuk case, the court said: “Where the master’s findings have been approved by the chancellor we are not justified in disturbing the findings unless they are manifestly against the weight of the evidence. (Pasedach v. Auw, 364 Ill. 491.)” There are other cases holding this is not a correct statement of the law; Oliver v. Ross, 289 Ill. 624; Chechik v. Koletsky, 311 Ill. 433; Union Bank of Chicago v. Gallup, 317 Ill. 184; Mallinger v. Shapiro, 329 Ill. 629, but whichever rule is applied in the instant case the result must be the same.

The evidence without dispute shows that prior to May, 1930, plaintiff was inexperienced in preparing script or doing anything in connection with broadcasting programs. Her talents in this respect were wholly undeveloped. In May, 1930, she wrote from Dayton, Ohio, to Mr. Gilman who was then connected with defendants applying for an opportunity to broadcast and afterward came to Chicago, saw Mr. Gilman, and as stated by her counsel in their brief: ‘1 He was impressed with her potential capability and gave her a chance to appear without pay from time to time on the amateur program called ‘Everybody’s Hour’ and also perform other small odd jobs of broadcasting as the summer went on, for which she sometimes was paid a small recompense. On Decoration Day, 1930, he let her appear for a half hour with a variety composition she had gotten together, consisting of poems, etc., which was successful. She was not paid for this.

“Selinger was the station manager at that period. He had mentioned to Gilman sometime in July or August a plan he had for an experiment with a homely daytime serial involving an Irish mother, her daughter, and the daughter’s friend. Gilman suggested to Selinger that the plaintiff might try her hand at it, and Selinger authorized him to take it up with her — which Gilman failed to do until early in October of that year. ’ ’

The evidence further shows that during the summer* of 1930, plaintiff was given a small part in some evening broadcasts for which she was paid $10 for each performance. The first of these payments was July 5, 1930, and from that date until September 10, her name appeared on the supplementary payroll on three or four occasions as “Additional Talent.” That during this period anything she wrote which was to be broadcast was submitted to defendants’ representatives in charge of the station. About September Selinger employed plaintiff to prepare some scripts for broadcasting for which she was to be paid $25 per week. Plaintiff then wrote the first ten episodes of “Painted Dreams” which title was suggested by Selinger and she was paid for her work for four weeks. Afterward, “Painted Dreams” was broadcast as a daily program, as stated, plaintiff taking the principal and another part in the drama and was paid $50 a week. Later this' was increased to $75 and September 25, 1931, defendants secured the Mickelberry Company to sponsor the program for which it paid defendants. It was about this time when plaintiff learned of the Mickelberry contract that she told defendants she was the producer and reserved ownership in the script. The defendants at that time denied she was such owner but on the contrary stated that they told her the ownership was in defendants. Plaintiff’s pay was raised to $100 per week and she continued with her work. “Painted Dreams” was continued as before until April 2 following when the Mickelberry contract expired and plaintiff was discharged.

Defendants’ evidence is to the effect that Selinger talked to plaintiff who was seeking employment, gave his idea of the nature of a program and plaintiff was hired to write the program as he ordered her to do under his supervision, and that when she wrote the several episodes they were submitted for approval before being put on the air. The evidence further shows that after April 2, 1932, plaintiff prepared script and broadcast it from another radio station — substantially the same serial or drama she had theretofore been broadcasting from defendants’ station — which she designated “Today’s Children” and the principal character taken by plaintiff was “Mother Moran” instead of “Mother Moynahan,” who was a similar character in “Painted Dreams;” that for about four months plaintiff carried on this work over the other station at her own expense, at which time a sponsor was obtained and thereafter plaintiff received $500 per week, later $850 per week, $1,000 per week, $1,250 per week and finally $1,500 per week.

There is a great deal of other evidence in the record which we think unnecessary to mention here. But counsel for plaintiff say defendants prepared two written documents. The first is in the nature of a letter addressed to Mr. Isaac of WGN, signed by plaintiff, and the second was not signed by either party and that these contain admissions by defendants which tend to show they recognized plaintiff’s ownership of the script, etc. The first document was written in longhand by George Isaac and addressed to him in which plaintiff offers her “complete services to WGN Inc. for a radio production now known as ‘Painted Dreams’ . . . This gives you guarantee of complete performance including all writing, artists, musicians ... to be completely under WGN control and supervision;” that her services are available starting as of April 2, 1932, at $450 per week for six months and for an additional six months at $550 per week” etc., and continuing the letter states: ‘ ‘ This gives you full right to use this feature on as many stations as you see fit” except that if there is a double broadcast plaintiff will receive 25 per cent more than the amounts mentioned, for compensation and “I will agree that during the period of these options WGN Inc. shall have the exclusive rights to any material, writings, effect or any other thing used to produce this complete program. Sincerely, Irna Phillips.”

The other document, also prepared in the form of a letter, dated February —, 1932, was addressed to Miss Phillips but was not signed by a representative of the Tribune Company nor accepted by plaintiff. It states the Tribune engages plaintiff’s services for a period of six months commencing April 2, 1932, and ending October 1, 1932: continuing, “You assure us you are free from any obligations to others preventing you from entering* into and fully carrying* out the terms of this agreement.” That the service plaintiff is to render is writing original dialogues, scripts and continuities for a radio feature known as “Painted Dreams,” giving* such radio performances as “we deem advisable. ’ ’ That plaintiff was to give performances of “Painted Dreams” as designated by defendants ; that the writings were to be original and that defendants ’ “full use of them will not conflict with any rights of others, and you agree to defend claims of infringement as to such writings and save us harmless from any damage we may suffer therefrom.” That plaintiff was to give defendants the right to use her name, testimonials, statements and photographs in connection with advertising “Painted Dreams;” that she would not during a period of two months after leaving* defendants’ employ prepare, use or deliver to any other'party any “literary or artistic material” containing any characters appearing in the material furnished to defendants; that plaintiff further agreed she would not ‘ ‘ during* the term of this agreement and for a period of two (2) months after leaving our employment,” appear in any broadcast, etc., in “Painted Dreams” for which services and the rights defendants agree to pay $125 a week but if the broadcast was over a chain or network, $175 a week, and that after the termination of the employment plaintiff would not broadcast her work for any other station if the compensation offered by defendants was equal to or greater • than any other offer she might receive, etc.

Counsel for plaintiff contend these two documents, having been prepared by a representative of defendants, after September, 1931, at which time defendants knew plaintiff was claiming- property rights in the scripts and her performances over the radio, clearly show defendants recognized plaintiff’s claim that she was the originator and owner of “Painted Dreams” and had the right to license its use. And counsel say the second document is “of supreme importance.” We think the documents are to be considered in connection with all the other evidence but are of opinion many of the statements in them were merely precautionary. For instance, in the latter document, plaintiff agrees to defend claims of infringement and save defendants harmless from any damage, etc. There is no specific statement that acknowledged ownership in plaintiff nor any evidence that plaintiff made any suggestion that such a provision be inserted. Moreover, neither of the documents was executed by the parties.

The question of ownership of literary property, as between employer and employee, is to be determined by what was contemplated by the contract of employment. Fisher v. Star Co., 231 N. Y. 414.

In the Star case suit was brought by Fisher, the creator of cartoons familiarly known as “Mutt and Jeff,” to enjoin defendant from publishing cartoons for the reason that such publication would deceive the public into thinking they were the Fisher cartoons. Plaintiff had a contract that his cartoons might be published by another concern, plaintiff asserting that to permit defendant to publish the cartoons would be unfair competition. An injunction was awarded, the court holding that the action of defendant in publishing the cartoons was unfair competition. The court there said: “A person who uses an unregistered name or mark can prevent others using the same so as to deceive the public into thinking that the business carried on by such persons and the goods sold by them are his. . . . Such conduct as is calculated to deceive the public into believing that the business of the wrongdoer is the business of him whose name, sign or mark is simulated or appropriated can be restrained in equity. . . .

“The controlling question in all cases where the equitable power of the courts is invoked is, whether the acts complained of are fair or unfair. The determination of this appeal depends first and primarily upon the facts. . . . The inquiry is, whether the use of the names ‘Mutt’ and ‘Jeff’ and the grotesque figures to which the names are applied by the appellant would be unfair to the respondent.” In that case there was substantially no controversy that Fisher owned the cartoons which he created. On this question the court said: “It also appears from the findings of fact that the respondent is the owner of the property right existing in the characters represented in such figures and names. They are of his creation. They were published and became well known as distinct characters before the contract was made with the appellant. Property rights in literary and other property, the product of the brain as between employer and employee, are determined by what was contemplated by the contract of employment.”

In the instant case, the substantial controversy is whether plaintiff was the originator or whether the plan was originated by Selinger and plaintiff wrote the script as ordered under his direction and supervision, and whether plaintiff was employed to write this script, take part in the broadcast and was paid for what she did. When plaintiff was employed by defendants she was practically wholly without experience in the work she was to do. We think the great weight of the evidence is that plaintiff was employed by defendants to do particular work; that she did the work, was paid for it and in such a situation under the law the ownership in the result of what was done belonged to defendants. Solomons v. United States, 137 U. S. 342; United States v. Dubilier Condenser Corp., 289 U. S. 178.

In the Solomons case the court said: “If one is employed to devise or perfect an instrument, or a means for accomplishing a prescribed result, he cannot, after successfully accomplishing the work for which he was employed, plead title thereto as against his employer. That which he has been employed and paid to accomplish becomes, when accomplished, the property of his employer. Whatever rights as an individual he may have had in and to his inventive powers, and that which they are able to accomplish, he has sold in advance to his employer.” To the same effect is the Dubilier case where the court said: ‘ One employed to make an invention, who succeeds, during his term of service, in accomplishing that task, is bound to assign to his employer any patent obtained. The reason is that he has only produced that which he was employed to invent. His invention is the precise subject of the contract of employment. A term of the agreement necessarily is that what he is paid to produce belongs to his paymaster. Standard Parts Co. v. Peck, 264 U. S. 52. On the other hand, if the employment be general, albeit it cover a field of labor and effort in the performance of which the employee conceived the invention for which he obtained a patent, the contract is not so broadly construed as to require an assignment of the patent.”

The same rule is applicable to a literary or dramatic production. Fisher v. Star Co., 231 N. Y. 414; 13 C. J. § 152; 18 C. J. S. § 57; Bleistein v. Donaldson Lithographing Co., 188 U. S. 239; Brown v. Molle Co., 20 F. Supp. 135; Yardley v. Houghton Mifflin Co., Inc., 25 F. Supp. 361.

The decree of the superior court of Cook county is affirmed.

Decree affirmed.

Hatchett, J., and HcSurely, J., concur.


author: Mr. Presiding Justice

text:
    Charles J. Kubin et al., Appellants, v. Chicago Title and Trust Company et al., Appellees.
    Gen. No. 41,194.

      Opinion filed November 4, 1940.
    Sims, Handy, McKnight & Carey, of Chicago, for appellants; James P. Carey, Jr. and Frank S. Sims, of counsel.
    Thomas L. Marshall, Samuel M. Mitchell and Thomas J. Hoban, all of Chicago, for appellees; Harold L. Peeve and Bell, Boyd & Marshall, all of Chicago, of counsel.
   Mr. Presiding Justice

O’Connor delivered the opinion of the court.

March 8, 1938, Charles J. Kubin, Vlasta J. Kubin, Bobert Kubin, Carolyn L. Lame and Adelaide Kubin filed their complaint in chancery against the Chicago Title & Trust Company, trustee, under the will of Otto Kubin, deceased, who was the father of Charles, Bobert and Carolyn and the husband of Vlasta (the plaintiffs), to recover losses claimed to have been sustained by them as a result of the failure of the trustee to sell stock and that the trustee be removed. Other parties including Otto Kubin, Jr., a son of the deceased, were made parties defendant. There was a trial before the chancellor, a decree entered dismissing the complaint for-want of equity and three of the four children, who were plaintiffs, appeal.

The record discloses that in 1891, Charles J. Vopicka, Otto Kubin and John Kralovec, who were brothers-in-law, together with a few other persons, organized the Bohemian Brewing Company of Chicago, which name was soon after changed to the Atlas Brewing Company, with a capital of $150,000 consisting of 1,500 shares at $100 per share. The principal stockholders and the number of shares held by each were: Vopicka, 415; Kubi-n, 415; Kralovec, 345; Mrs. Jonas, 100; John Geringer, 50; James Storkan, 25. The remaining 150 shares were held by a few relatives and employees. January 3, 1922, Otto Kubin executed his will and December 17, 1926, a first codicil and a second codicil April 29, 1929. He died May 3, 1929, leaving him surviving his widow, Vlasta J. Kubin and five children, the youngest of which was 27 years old at the time of his death. Four of the children, Charles, Bobert, Carolyn and Adelaide, together with their mother, filed the complaint in the instant case, making the other son, Otto, Jr., a defendant.

The complaint was in two counts, the principal interest of the mother, Vlasta J. Kubin, was set up in the second count. It was disposed of during the trial and she is not a party to this appeal. The daughter, Adelaide, also refused to join in the appeal. At the time Otto Kubin executed his will he owned the 415 shares of stock in the brewery. By the 8th paragraph of the will he gave 165 shares of the stock to the Chicago Title &> Trust Company in trust “to collect the issues and profits thereof and pay over the same unto my wife, Vlasta J. Kubin,” during her life and upon her death to divide the 165 shares equally among the five children. By the 9th paragraph he gave 250 shares of the stock to the Trust company in trust with directions to the trustee to collect the issues and profits and pay them over to the five children in convenient installments until the youngest child was thirty years of age. By the first codicil this was changed, providing that the profits be paid to the children until ten years after his death. The stock was then to be divided equally among the children. By the 10th paragraph of the will the residue of his estate was devised and bequeathed to the Chicago Title & Trust Company in trust ‘ ‘ To hold all of my shares of stock, to collect the issues and profits thereof, with full power to sell and convert into money any part or all of such shares of stock, as to the best interests of my estate may seem to my said trustees,” etc.

The Chicago Title & Trust Company was also appointed executor. The will was admitted to probate, the estate administered by the executor and the stock in question turned over by the executor to the trustee. August 6, 1930, Mrs. Kubin, the widow renounced the provisions made for her in the will. After the execution of the will and the first codicil, Otto Kubin acquired 25 shares more of the stock after the renunciation; the trustee delivered to Mrs. Kubin 146% shares of the stock, which included the 25 shares, which, it seemed to be agreed, was disposed of by the 10th paragraph of the will, leaving 293% shares which are the subject matter of the suit. This distribution seems to have been satisfactory and is not questioned.

The question for decision is, was the trustee negligent in failing to sell the 293% shares of stock in July, 1933, or in the balance of that year, during which period plaintiffs contend the stock could have been sold at from $15 to $26 per share? That in 1938, the stock depreciated to approximately $1 per share and plaintiffs’ contention is that through the trustee’s negligence the loss was sustained and it is liable therefor. On the other side, the trustee’s position is that it was guilty of no negligence; that the stock could not have been sold and the decree of the chancellor was the only one the evidence warrants.

The evidence shows the question of the sale of the stock by the trustee was discussed beginning in June, 1933, and eminent lawyers, retained by the trustee, as well as counsel who were in the employ of the Chicago Title & Trust Company, were of opinion that the will of Otto Kubin gave no power to the trustee to sell the stock. Thereafter, in July a bill was prepared by counsel with a view of having a court of chancery decree that the trustee might sell the stock. The bill was sworn to by H. J. Tansley, secretary of the Chicago Title & Trust Company, trustee, but was not filed in the circuit court of Cook county until November 1, 1933. The prayer of the bill was that the court construe the provisions of paragraphs 8 and 9 of the will and advise the trustee as to its rights and duties and as to how many shares, if any, of the stock the trustee should continue to hold; that the court construe the will as to whether the trustee had power under the terms of the will to sell the stock and if the will was so construed, that the court instruct the trustee either to sell or not to sell the stock. The bill set up the effective date of the 18th Amendment to the United States Constitution, the passage of the Volstead Act and the amendment thereof, and as a result of this amendment it was alleged the earnings and profits had been, greatly increased; also a large number of other breweries had opened up for business which had theretofore been dismantled during the prohibition era and that the repeal of the 18th Amendment, in the opinion of some, might cause the profits of the brewery “to very greatly decrease;” that the brewery had been in operation 42 years and would have to be rehabilitated and the stock was “an unwise investment” and it should be sold and converted into cash and invested in other “less speculative securities.”

It was further alleged that in December, 1932, the capital construction of the brewery was changed, the number of shares increased from 1,500 to 300,000 and the par value reduced from $100 to $5 per share. The new shares were given to the existing stockholders for the old — 200 shares for 1. The trustee still holds the new shares; that complainant believed the stock could be “sold for a price in excess of $15 per share” and that if not sold it probably would greatly decline in value and the trustee “as a result thereof, may be charged with negligence in failing to make such a sale and may possibly be liable to the beneficiaries . . . for its failure to make such a sale,” and that no specific power was given the trustee under the 8th or 9th paragraphs of the will to sell the stock.

The five children of the deceased, all of whom were adults, and some other collateral heirs, were made parties to the bill and it appears all were served except one. But the record discloses nothing further was done except the trustee consulted with its counsel and apparently decided not to go ahead with the case and July 1, 1937, the suit was dismissed by the court for want of prosecution.

Henry J. Tansley, secretary of the Chicago Title & Trust Company, the trustee, became one of five directors of the brewery. He had principal charge of the estate for the trustee although he from time to time conferred with the president, Mr. Pettibone, Mr. Davis, the trust officer, and the attorneys for the Chicago Title & Trust Company.

The trial began December 15, 1938, and on the next day Mr. Tansley was called by plaintiff under § 60 of the Civil Practice Act and interrogated by counsel for plaintiffs on the afternoons of December 16,19, 21 and 22, the case having been adjourned from day to day. December 22, it was continued to the morning- of December 27, but before convening on that day Mr. Tansley died suddenly, his examination by plaintiffs’ counsel not having been completed. The hearing was adjourned to January 3, 1939. The record is voluminous. There was a protracted hearing over a period of six months and the decree was entered dismissing the suit for want of equity August 18, 1939.

The evidence shows that from the time the brewery was founded in 1891 it was a financial success, earning and paying larg-e dividends and from 1929 to 1932, inclusive, the average yearly earnings for each $100 share were more than $482 and for the first seven months of 1933, when the manufacture and sale of beer was legalized, the earnings were more than $596 per original share. From 1921 to 1928, the average yearly earnings on a $100 share were $187.94; from 1929 to 1932, $482.45 and 1933 were $561.13.- In 1933, from the first of the year to August 1, the net profits were $725,-760.38 and from August 1 to the end of 1933, there was a loss of $37,414.95. Between April and October of that year the directors authorized and there was paid out $600,000 in cash dividends, about 82 per cent of the company’s net profits. At that time there were no bank loans and no funded debt; there was no mortgage on the property, but February 13, 1934, the brewery borrowed $100,000 and in April $75,000 more. These loans were in that year reduced to $110,000. The net profits in 1934 were more than $22,000, a decrease of more than $700,000 as compared with 1933. In 1935, there was a loss of about $235,000 and in 1936, there was a net profit of more than $55,000. In 1937, the brewery went into bankruptcy under § 77B of the Bankruptcy Act and in 1938, a plan of reorganization was approved, the indebtedness funded in bonds and the stock was placed in a voting trust. In 1938, the brewery earned $188,957.04, which was in excess of its earnings of 1928, which were $174,311.85. It was practically a family owned brewery, the principal stockholders were as hereinbefore stated. It was operated by the principal stockholders, Mr. Yopicka, Mr. Kubin and in later years Anton Laadt was manager of the brewery — his wife was a daughter of one of the original. stockholders. The stock was held substantially throughout its life by the same stockholders; it was not listed on any exchange and there were few sales. The principal stockholders held their stock and Mr. Yopicka was very optimistic even after the decline of the stock following the repeal of prohibition in 1933, and refused to consider the sale of any of his stock for any of the suggested prices. His attitude shows he considered such prices grossly inadequate-- — so much so as not to be considered. .

As above stated, Mr. Tansley died suddenly before his cross-examination by plaintiffs under § 60 was completed and shortly thereafter defendant trustee moved to strike his testimony on the ground that they had no opportunity to cross-examine him. The matter was argued and briefs submitted, the motion sustained and the testimony stricken, except certain exhibits which had been identified by him. Had Mr. Tansley not died, counsel for the trustee would have the right immediately at the conclusion of his examination by counsel for plaintiffs to examine him as to all matters relative to which he had been interrogated. Colekin v. Bamborough, 159 Ill. App. 130; Combs v. Younge, 281 Ill. App. 339; Blumb v. Getz, 294 Ill. App. 432; Branch v. Woulfe, 300 Ill. App. 472; Guse v. Power & Mining Machinery Co., 151 Wis. 400 (139 N. W. 195); Jonescu v. Olrich, 208 Mich. 89 (175 N. W. 174).

Plaintiffs contend the court erred in striking the testimony of Mr. Tansley and authorities are cited, analyzed and applied in support of this, some of which are: Randall v. Atkinson, 30 Ont. Rep. 242; § 1469, Vol. 2 (12th Ed.) Taylor on Evidence; Scott v. McCann, 76 Md. 47. We do not stop to analyze these cases except to say that in the Scott case the Supreme Court of Maryland held that the strong preponderance of authority in equity cases renders the testimony of a witness who died suddenly before cross-examination admissible, and continuing the court there said: “In the case we are considering there is very strong reasons [reason] for receiving the testimony objected to, because of our statute on the subject, which puts parties to a contract on a plane of mutuality in cases of death. ... In this case the plaintiff had testified as to his recollection of the matter involved, that is to say, as to the payments made by the defendant to him; and the defendant having testified on his own behalf, suddenly died before the cross-examination could be had, so that the rule of mutuality would require the consideration of the testimony of the witness thus dying, or the striking out of the testimony given by the plaintiff.” On the other side, counsel for the trustee cites authorities holding that where a witness testifies and dies suddenly before cross-examination, his testimony must be stricken, some of which cases are: People v. Cole, 43 N. Y. 508; Sperry v. Estate of Moore, 42 Mich. 353, 4 N. W. 13; Kemble v. Lyons, 184 Iowa 804, 169 N. W. 117; § 1390, Vol. V. (3rd Ed.) Wigmore on Evidence. We think the correct rule is stated by Dean Wigmore in the section cited. The author there says, “where the death or illness prevents cross-examination under such circumstances that no responsibility of any sort can be attributed to either the witness or his party, it seems harsh measure to strike out all that has been obtained on the direct examination. Principle requires in strictness nothing less. But the true solution would be to avoid any inflexible rule, and to leave it to the trial judge to admit the direct examination so far as the loss of cross-examination can be shown to him to be not in that instance a material loss.”

In the instant case counsel for plaintiffs, in their argument on this point, in no way analyze the testimony of the witness. There is no suggestion that the testimony was vital and of a character that would tend to sustain plaintiffs’ case. We agree with counsel for the trustee when in replying to plaintiffs’ contention they say, “Upon the entire record, it is difficult to comprehend just what the appellants are complaining about or wherein they contend they were injured by the striking of Tansley’s partial testimony, even if the ruling were wrong.” In these circumstances we are of opinion that the court ought not be required to search through the testimony to see whether the ruling of the court prejudicially affected plaintiffs.

Plaintiffs next contend that “The diligence imposed by law on the Trustee required it to sell the stock without unreasonable delay.” The evidence is then discussed showing the history of the brewery, the effect of the prohibition law and of its repeal, the action of the board of directors in increasing the number of shares of the stock and decreasing the value of the shares. The evidence of a number of witnesses is discussed, including the testimony of Mr. Pettibone, president of the Chicago Title & Trust Company, attorney Cartwright, who represented the Trustee in the preparation of the bill filed in 1933, as above stated, and the testimony of Mr. Tansley is referred to and discussed as though it had not been stricken.

We do not discuss the evidence in detail because we are of opinion that there was no bona fide offer made for the stock and probably none could have been received because the claimed offers to buy some of the stock were coupled with conditions such as to what should be done in the way of other stockholders not selling, etc. We agree with the chancellor when, in deciding the case, he referréd to the testimony of two witnesses called by plaintiffs which tended to show they had obtained a purchaser for some of the stock, when he said, “I didn’t think so much of their efforts to buy.”

Mr. Vopicka, one of the founders of the brewery (and a large stockholder throughout the time of its existence) and in fact other stockholders, were opposed to selling any stock at a price anywhere near the price suggested in 1933. They had been receiving large dividends for years, the stock had been very valuable and the prices offered were, in their opinions, wholly inadequate and not to be considered. There is no evidence that any of plaintiffs, although some of them worked at the brewery for years, ever requested the trustee to sell the stock in which they were beneficially interested. And in fact, none of the plaintiffs, except Carolyn, were called as witnesses by their counsel and Carolyn merely identified a letter. The evidence shows that even after the stock decreased in price, some of the old stockholders bought other shares — Carolyn boug'ht 4,100 shares in 1935.

We are unable to agree with plaintiffs’ contention that the allegations of the bill of complaint filed by the trustee in 1933, which was introduced in evidence in the instant case, are conclusive upon the trustee. We think it clear the verified bill was admissible in evidence but the weight to be given was to be determined by the chancellor in view of all the evidence in the case.

We are also of opinion the trustee was not authorized to sell the stock under the power conferred by the will and could only do so after a decree of court authorizing such sale was entered. Certainly no trustee would sell the stock without authority from a court. Paragraphs 8 and 9 gave no such authority and paragraph 10, in which power to sell was given, did not apply to the stock mentioned in paragraphs 8 and 9.

From what we have said, we think it follows that the contention of plaintiffs (that the trustee was not entitled to retain moneys received by it as compensation for Mr. Tansley’s services as director of the Atlas Company), cannot be sustained. The evidence showed Mr. Tansley was employed by the Chicago Title & Trust Company; that he put in a great deal of time acting as director of the company and no complaint is made that the amount paid was excessive.

Upon a consideration of all the evidence in the record, including the testimony of Mr. Tansley, we are of opinion the decree of the court, dismissing the bill for want of equity, is the only decree that could be sustained by a court of review. Certain it is that we cannot say the finding of the chancellor in defendants ’ favor is against the manifest weight of the evidence. In these circumstances, the decree of the circuit court of Cook county must be, and it is affirmed.

Decree affirmed.

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


text:
    Mary Kahler, Appellee, v. Louis Marchi and Gina Marchi, Appellants.
    Gen. No. 41,217.

      Opinion filed November 4, 1940.
    George L. McCabe, of Chicago, for appellants; Thomas F. Allman, of Chicago, of counsel.
    Cavanaugh, Higgins, Dunleavy & Savage, of Chicago, for appellee; Philip H. Dunleavy, of counsel.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

Plaintiff brought an action against defendants to recover damages for personal injuries claimed to have been sustained by her when she fell on the stairs of a building owned and operated by defendants, on the ground that defendants were negligent in failing to light the stairs and in failing to have a handrail, as an ordinance of the city required. The case was heard before the court without a jury, there was a finding and judgment in plaintiff’s favor for $350 and defendants appeal.

The record discloses that defendants owned a three-story, three-apartment building. One entering the building opens the door into a vestibule, then there is a stair of two steps which are about seven feet wide. Above the middle of the second step a stairway three feet six inches wide leads to the second apartment and a similar stairway from the second floor to the third apartment.

About 3 o’clock on the afternoon of January 31,1937, plaintiff, a woman about forty-five years of age, visited her friend, Mrs. Hines, who occupied the apartment on the third floor. Plaintiff testified she left Mrs. Hines’ apartment about 6:30 or 7 o’clock, started down the stairs which were dark; that she then went down the second flight of stairs which was in the same condition. “I was feeling my way. I had no railing, nothing to lean on and as I got down to the bottom, there is a small portion like a platform, about two feet and then there is a door. As I opened the door I fell right down those stairs [the two steps] into the vestibule. The door is a heavy one1. I pushed it toward me to open it; . . . The door pushed me.” She further testified that the heel of one of her shoes, which was about two and one-half inches high, came off at or about the time she fell. James Hill and Felix Mack testified that they came into the vestibule about 5:30 or 6 o ’clock and found plaintiff who complained that she was injured.

There is other evidence in the record to the effect there was a handrail on the side of the stairs leading to the second and third floors but none, as shown by a photograph, as to the two steps leading from the foot of the stairs down to the vestibule. The evidence as to whether the electric light in the vestibule was lit at the time is unsatisfactory. Mack thought the light was lit, while Hill’s testimony would indicate there was no light. Mrs. Hines and Louis Marehi gave testimony tending to show the light was lit.

Louis Marehi testified that he and his wife owned the building and he was the janitor; that shortly after the accident he was called by telephone, went to the entrance and the light in the vestibule was lit; that at that time plaintiff had been taken upstairs to Mrs. Hines’ third floor apartment and a doctor was called; that the electric lights on the stairway and hall were automatically turned on by means of an electric clock at b o ’clock in the evening and that the clock and lights had been working properly for a couple of weeks prior to the accident.

The evidence further shows that shortly after the accident plaintiff was taken to the hospital where she was treated and afterward the doctor called on her for a number of weeks. There is evidence also which conclusively shows plaintiff had been injured as the result of two automobile accidents near Hammond, Indiana in 1930 and 1931, which resulted in litigation but plaintiff denied she was involved in such accidents or litigation. There is some argument by counsel for defendants that the injuries plaintiff claimed to have sustained as a result of her fall, resulted from the ■ automobile accidents.

We are of opinion that if plaintiff’s injuries, for which she sues in the instant case, resulted from defendants’ negligence and if plaintiff was in the exercise of due care for her own safety the amount awarded was very small and there is no contention that it is excessive.

The testimony of plaintiff is very unsatisfactory as is the testimony of some of the witnesses who testified on behalf of defendants. Whether the lights on the stairways leading to the second and third floors were lit and whether there was a handrail is of no importance because the evidence is clear plaintiff was not injured because of the absence, if there was such absence, of lights or handrail on the two stairways— she was injured in the vestibule.

Counsel for plaintiff in their brief say: “There are then two steps leading from this first floor landing into the vestibule of the building. These steps are considerably wider, being approximately seven feet in width. There is no hand railing on either side of these two steps. It was on these stairs that the plaintiff fell. It was the contention of the plaintiff that she was caused to fall and injure herself because of the defendants’ negligence in failing to have the vestibule and stairway lighted, and because of the defendants’ failure to have the offset or short stairway, consisting of two steps, properly equipped with a handrail, as is provided for in the ordinance of the City of Chicago, regulating the maintenance and construction of such stairways.” This is the sole reference to the ordinance. We have been unable to find that any reference was made to the ordinance on the trial and none is made in this court. What the ordinance provides is in no way referred to by counsel for plaintiff nor in any other way do the provisions of the ordinance appear. While this court takes judicial notice of an ordinance such as the one mentioned, its provisions ought to be called to our attention in some way and this not having been done, the matter cannot be considered. Moreover, if the ordinance required a handrail “on either side of these two steps” which were seven feet wide, it would be of no assistance to plaintiff because the stairway leading to the apartments was in the middle of these two steps and about three and one-half feet wide.

The controlling question in the case is whether the light in the vestibule was lit at the time and whether defendants were negligent even if the light was not lit at the time plaintiff was injured. If we assume the light was not lit at the time, defendants would not be liable unless they had actual or constructive notice of such fact. McDermott v. McKeown Transportation Co., 263 Ill. App. 325; Antibus v. W. T. Grant Co., 297 Ill. App. 363; Toledo, Wabash & Western Ry. Co. v. Beggs, 85 Ill. 80; People v. Kastings, 307 Ill. 92; Berkovitz v. American River Gravel Co., 191 Cal. 195; Yates v. Brazelton, 108 Cal. App. 533, 291 Pac. 695.

In the instant case defendants were required to use reasonable care to see that the vestibule was properly lighted but the law is not so unreasonable as to hold defendants liable in case the light in the vestibule suddenly went out. (See McDermott v. McKeown Transportation Co., 263 Ill. App. 325, and cases above cited.) The evidence is to the effect that the lights were automatically turned on at 5 o’clock; the clock was properly functioning* during* the two weeks prior to the accident and that the accident occurred at from a half to two hours after 5 o’clock. In these circumstances we think the evidence is insufficient to warrant the finding that defendants were liable for the want of a light, if such were the fact, and for this reason, the finding in plaintiff’s favor cannot stand.

We think we ought to further say that the contention of defendants that the court should have sustained the motion to find for defendants at the close of plaintiff’s case (which was said to be the proper procedure in the Antibus case, above referred to), is not the law. Defendants’ motion made at the close of plaintiff’s case was overruled; defendants then put in their evidence. That motion was then out of the case for all time. Popadowski v. Bergaman, 304 Ill. App. 422.

We are of opinion that the overwhelming* weight of the evidence is that the light was lit. We are also clear that in any view of the evidence, defendants ought not to be held liable if the light suddenly went out because there was no actual notice and the evidence is wholly insufficient to show constructive notice.

For the reasons stated, the judgment of the superior court of Cook county is reversed without remanding. Ebbert v. Metropolitan Life Ins. Co., 369 Ill. 306.

Judgment reversed.

Hatchett, J., and McSurely, J., concur.


author: Mr. Justice McSukely

text:
    Northern Trust Company, Appellee, v. J. D. McDowall, Appellee. Carl A. Waldron, Appellant.
    Gen. No. 41,166.
    Opinion filed November 4, 1940.
    Cattell & Waldron, of Chicago, for appellant; W. Scott McDowell, of Chicago, of counsel.

      Teller, Levtt, Silvertrust & Levi, of Chicago, for appellee J. D. McDowall; Leon Silvertrust and H. J. Goldberger, both of Chicago, of counsel.
   Mr. Justice McSukely

delivered the opinion of the court.

The Northern Trust Company as escrowee filed its complaint in interpleader asking for directions from the court as to the disposition of certain properties severally deposited with it by McDowall and the Orr Felt & Blanket Company; defendants filed answers, a reference was had to a master who took evidence and reported, recommending that the several properties be returned to the respective parties; exceptions were filed by Waldron (the assignee of the Blanket company’s interests) and overruled and a decree was accordingly entered, from which he appeals.

The Orr Felt & Blanket Company had for many years employed McDowall as one of its salesmen under written contracts, paying him a commission for his services; the last contract expired in December, 1936, and the employment terminated; a dispute arose between the parties, McDowall claiming that he had not been paid all his commissions; that under the contracts of employment he was to receive commissions on all merchandise shipped into the territory that had been assigned to him exclusively and that the Blanket company had shipped merchandise into that territory for which he had received no commissions. Apparently, after much futile discussion the parties entered into an escrow agreement, which is as follows:

‘ ‘ Chicago, Illinois, February 11, 1937.

“Letter op Escrow.

“Whereas, a dispute has arisen between Orr Felt & Blanket Company of Piqua, Ohio, and J. D. McDowall of Chicago, Illinois, with relation to commissions claimed to be due to McDowall under a series of written contracts dated November 10th, 1931; December 8th, 1932; November 19th, 1934, and December 2nd, 1935, and

“Whereas, both parties are desirous of compromising said dispute, if possible, the parties hereto agree as follows:

“McDowall agrees to deposit with the escrowee named herein, a certified check for the amount due to Orr Felt & Blanket Company for samples furnished to and disposed of by McDowall, less the sum of Five Hundred Ninety-Five and 62/100 ($595.62) Dollars being the amount of acknowledged commissions due to McDowall for the month of December, 1936.

“The Orr Felt & Blanket Company agrees to deposit in this escrow, a statement of sales made, if any, to the following in McDowall’s territory:

“Davidson Bros. — Detroit, Michigan
Kline Stores — Goshen, Indiana
Stampfer’s (Brown Bros.) — Dubuque, Iowa
Levi Strauss — San Francisco, Calif.
Sears, Roebuck & Co. on orders taken in 1935 and shipped in 1936 on which McDowall has not been paid in 1% commission, namely, 3,864 blankets, and any other accounts for which McDowall is entitled to credit and has not been paid under his written contract.

“The deposits made herein and’ the information furnished to this escrow are without prejudice to the rights of either party and this escrow is established for the purpose of attempting to work out a compromise.

“If, at the end of fifteen (15) days from this date, the parties are in accord, so that additional commissions due to McDowall, if any, can be determined from the information in the escrow, and the accounts between the parties can be settled, the parties mutually agree that whichever one is required to deposit additional money in this escrow for the purpose of compromising all claims and difference, will make the deposit promptly within five (5) days from that date and the escrow agent is instructed to distribute the. money accordingly; that is to say, money due to the Orr Felt & Blanket Company, if any, is to be paid to it as the result of settlement of the accounts and money due to McDowall, if any, is to be paid to him.

“If, at the end of fifteen (15) days from the date of this escrow letter, the parties are not in accord as to the settlement of accounts as herein outlined, the escrow agent is directed to return the contents of this escrow to the respective depositors, on the written demand of either party.

“The escrow agent is The Northern Trust Company of Chicago, Illinois..

‘1 Orr Felt & Blanket Company,

“By Carl A. Waldron, Agent,

“J. D. McDowall.”

McDowall deposited the check referred to in the escrow agreement, amounting to $2,295.78, and Orr Felt & Blanket Company deposited a statement of sales made to certain parties in McDowall’s territory.

The limit of 15 days within which the parties were to attempt to arrive at an agreement expired without any agreement being reached. There is some suggestion that the Blanket company through its attorney, Mr. Waldron, requested that additional time be given to reach an accord, but the parties failed to arrive at any compromise of their differences and in July, 1937, McDowall made a written demand upon the escrowee for the return to him, of his deposit. Aug*ust 2, the Blanket company made a demand on the escrowee for the money deposited by McDowall, claiming it was entitled to this as the statement filed by it with the escrowee had not been objected to by McDowall.

In July, 1938, McDowall filed a suit in the municipal court against The Northern Trust Company to recover the amount deposited by him with it; August 26,1938, Orr Felt & Blanket Company executed an assignment to defendant Waldron of all its interest in the cash and property held by the bank under the escrow agreement and Waldron demanded that this be given to him. In September of 1938, the complaint in interpleader was filed by The Northern Trust Company setting up the escrow agreement and the receipt by it of the money and property described and offering to turn over the same as directed by the court.

' Defendant Waldron argues that he is entitled to everything deposited with the escrowee for the reason that McDowall made no formal objections to the statements of account filed by him with the escrowee, although he had a reasonable opportunity within which to express his objections, and therefore in law will be held to have waived any objections he may have had.

To this McDowall’s reply is that the only question to be determined is the enforcement of the provisions of the escrow agreement; that this is very simple; that the agreement evidences that it was made for the purpose of giving time to both parties to compromise the matters in dispute between them, if possible, and that the deposits made were without prejudice to the rights of either party, and if at the end of 15 days from the date of the escrow agreement the parties were not in accord as to the settlement of accounts, “the escrow agent is directed to return the contents of this escrow to the respective depositors, on the written demand of either party. ’ ’

We are in accord with this statement. Nothing is said or can be inferred from the terms of the contract of escrow that any issue at law or equity between the parties should be tried in this case. The contract was simply a move toward the direction of a settlement between the parties of their differences and it specifically provided, without any ambiguity, that if within the time stated the parties could not settle their differences the property deposited should be returned to the respective depositors, leaving the parties in the precise situation as they were before the escrow contract was made.

In many cases it has been held that in a proceeding of this character it is not the province of the court to permit a general accounting between the parties. Dyas v. Dyas, 231 Ill. 367; Chicago & G. W. R. Land Co. v. Peck, 112 Ill. 408; Griffin v. Gay, 232 Ill. App. 39.

We do not find any claim by defendant Waldron in his brief that the parties did arrive at any voluntary agreement. In fact, a letter written by Waldron to McDowall assumes that the parties had not come together.

The escrow agreement provides that upon failure of the parties to settle their accounts the contents of the escrow shall be returned to the respective depositors “on the written demand of either party.” The contract contains no time limit within which the demand must be made. However, the demand made by McDowall in July, 1937, for the return of his check, as the parties had not agreed, was within a reasonable time.

We shall not comment upon the respective arguments on the issue of an account stated. We can see no authority to go outside the terms of the escrow agreement, which did not submit to the court for determination the matters in dispute between the parties.

Orr Pelt & Blanket Company were not made parties in the instant case and all their interest in the property deposited with the escrowee bank has been assigned to Waldron. This assignment conveys nothing more than the interest in the deposits, and Waldron has no interest in any other claim of the Blanket company against McDowall. The Blanket company assigns ‘1 all of its right, title and interest in and to the cash and property held by The Northern Trust Company . . . as escrowee under its Escrow.” How, then, could there be any trial in this case of any differences between the Orr Felt & Blanket Company and MeDowall or any question be determined of any account stated between them?

The decree of the court ordering the return of the check of $2,295.78 to MeDowall and the return to defendant Waldron of the documents deposited by him on behalf of Orr Felt & Blanket Company, is affirmed. There was virtually no dispute upon the salient and decisive facts as found by the report and the decree. It has been held in many cases that the findings of the master when approved by the chancellor will not be disturbed unless manifestly against the weight of the evidence. Pasedach v. Auw, 364 Ill. 491.

The decree further recited “that there may be an issue of law to be determined between the said defendants, ’ ’ and the court referred this issue to the law side of the court for determination and continued the present cause for the disposition of the issues on the law side of the court. This was entirely outside the intention of the parties when they entered into the escrow agreement, which was predicated solely upon a possible compromise of the differences.

The portion of the decree which orders the return to the respective depositors of the property deposited is affirmed, and the provision of the decree retaining jurisdiction for the disposition of the issues at law is reversed, with costs of this appeal to be taxed against the appellant.

Affirmed in part, reversed in part.

O’Connor, P. J., and Matchett, J., concur.