author: Mr. Presiding Justice Hebel

text:
    Salomon-Waterton Company, Appellee, v. Union Asbestos & Rubber Company, Appellant.
    Gen. No. 34,879.

      Opinion filed December 2, 1931.
    Rehearing denied December 22, 1931.
    Matthews & Koegel, for appellant; O. E. Koegel, J. R. Harmon and O. F. Springer, of counsel.
    SONNENSCHEIN, BeRKSON, LaUTMANN, LEVINSON & Morse, for appellee; David Levinson and Charles D. Satinover, of counsel.
   Mr. Presiding Justice Hebel

delivered the opinion of the court.

The appeal in this case is from a decree of the circuit court of Cook county approving and affirming the master’s report sustaining the allegations of complainant’s bill of complaint, and foreclosing a claim for mechanic’s lien upon the factory buildings of the defendant.

The construction of the buildings under the contract dated December 7, 1925, was started in the same month. During the construction period complainant requested of the defendant payments on the contract price of $77,000. Sometimes this was done verbally and sometimes in writing, and the complainant received from the defendant, from time to time, during the construction of the buildings, a sum aggregating $73,021.53. At no time did the complainant apply for or receive any certificates from Chester L. Hill, named as inspector, nor did the defendant ever request such certificates. The buildings were completed on June 17, 1926, and the complainant furnished extra labor and material during the course of this construction in the sum of $10,873.44, according to the master’s report.

There is a letter in the record signed by Gf. Thomsen, the bookkeeper of the defendant company, addressed to the complainant, dated August 26, 1926, from which it appears that there is a balance, as shown by the records sent the defendant, in favor of the complainant on the contract price, in the amount of $3,174.47. Certain other letters were introduced in evidence, all of which were addressed to the complainant and written on the letterhead of the Union Asbestos & Rubber Company, the defendant company, and signed, “Chester L. Hill, General Manager.” Hill commenced to act as general manager about four days after the date of the contract/

Certain sets of specifications also appear in the record. One of these has the following words written in ink by Mr. Hill, “The word ‘Inspector’ should be substituted for the word ‘Architect’ in all cases where the last named is mentioned in the specifications.”

The defendant upon the trial of this case, offered no evidence, and stands upon the record as made, and frankly admits that the defense is largely technical. The jurisdiction of the trial court to hear and determine this cause is questioned by the defendant, for the reason that the complainant failed to comply with paragraph 26 of the contract, which provides:

“Neither the contractor nor any sub-contractor, materialman, nor any other person, shall file or maintain a lien, commonly called a mechanic’s lien, for ma- ' terials delivered for use in, or work done in performance of this contract, and the right to maintain such lien by any or all of the above-named parties is hereby expressly waived, except in the event of the failure or refusal of the owner to pay the amount called for by any certificate of the Inspector within three (3) days of its tender for payment. Then, and in such case only, shall any of the above-named parties have the right to file and maintain a mechanic’s lien.”

The defendant’s contention may be summarized as follows:

(1) Where the contract expressly makes the inspector’s certificate a condition precedent to any rig*ht of action, in order to maintain a mechanic’s lien, the contractor must do one of two alternatives:

(a) Present the inspector’s final certificate; or

(b) Present an adequate excuse for his failure to do so.

(2) Where, in addition to making the inspector’s certificate a condition precedent to any right of action, the contractor waives all right to a mechanic’s lien, except upon one condition only, that condition being the presentation of the final certificate and failure to pay within the time limit.

In construing paragraph 26 of this contract, it is evident that the parties intended that the complainant would waive his claim for lien provided the defendant, within three days after the presentation of the inspector’s final certificate, paid the amount so certified.

Generally, a contractor or mechanic failing to procure a certificate from an architect or person so designated in a contract, cannot enforce Ms claim for a lien unless the owner under such building contract prevents the contractor from obtaining such a certificate, or waives such a provision, or where the brnlder fails to employ an architect or engineer to supervise or approve the work, or where the parties proceed with the work, the owner participating in it with full knowledge that the provisions of the contract relating to certificates and orders of the architect were being disregarded, and being a party to it, waives such a provision in the contract for the production of an architect’s certificate. Foster v. McKeown, 192 Ill. 339; Connelly v. Wallin, 181 Ill. App. 212.

The defendant contends, however, that unless the complainant presented the inspector’s certificate and showed that the defendant refused to pay within three days thereafter, then the complainant would have no right to maintain a claim for a mechanic’s lien. The provision in this contract is not an absolute waiver, but is conditional, and it would be a harsh rule to hold that the complainant cannot maintain his claim for a lien, notwithstanding that the facts-justify the conclusion that the owner by its conduct waived the production of such a certificate. However, the facts are that the defendant issued a certificate in the form of a letter addressed to the complainant, after the completion of the buildings, from which it appears that according to its records there is due on the contract price the sum of $3,174.47. The defendant itself adjusted and determined the balance due on the contract price. This was a substantial act which determined the. right of the complainant to the money, and determined the obligation of the defendant to pay. TMs fact in connection with the payment of $73,021.53 during the progress of the- work without requiring the production of the certificates provided for by'the contract, "indicates clearly that the provision that certificates be. issued by the inspector was disregarded and waived. This act of admitting the amount due on the contract price bound the defendant, and it would be rather technical to say that notwithstanding its admission, the complainant cannot maintain its right to foreclose a claim for a mechanic’s lien because of failure to produce the certificates provided for by the contract.

That such provision was waived is further fortified by the fact that Hill in his dealings with the complainant signed all letters or written documents as the general manager of the defendant company, and not as inspector.

The master found in his report that 19'items, aggregating the sum of $3,320.83, were for extras required; that these items were admitted as extras by the defendant in its answer, and that they are items for which the complainant is entitled to recover.

As to 22 items aggregating the sum of $7,552.61, the master found that they were for extra material furnished by the complainant, and that they entered into and became a part of said buildings; that the price of each item was the usual and customary market price. It also appears from this report that in many instances there was no objection by the defendant to the value of and price charged by the said complainant for said extras, and that no proof was offered by the defendant in support of its objection made to certain items.

As a further ground for a reversal of this decree, the defendant contends that the complainant has not proved completion of the buildings within the time limit; that it has not alleged or established compliance with the provision of the contract covering the allowance of extras.

As to the contention that the buildings were not completed within the time limit, it is apparent from the record that the defendant made no complaint about the labor and material furnished by the complainant, or offered any evidence that the work was not done in accordance with the terms of the contract and specifications. It is also apparent from the record that the defendant suffered no damage because of the alleged delay, although damage was claimed in the defendant’s answer. The record amply sustains the decree that the work was substantially performed in compliance with the terms of the contract.

Now, as to the point made by the defendant that the complainant did not comply with the provisions of the contract covering the allowance of extras, it might be well to have in mind the rule of law in this State that applies to this question. In Theis v. Svoboda, 166 Ill. App. 20, “It is the law in this State that these building contracts are to be construed liberally, and that a literal compliance with their terms is not necessary to entitle a recovery, but a substantial performance in good faith is sufficient.

“We think the law of this State fully authorizes a recovery for extras furnished under a verbal contract, wherein the owner agrees to pay therefor. Notwithstanding the original written contract provides that all extras must be ordered in writing, the owner may waive this condition, and by himself ordering the extras, become liable, by his own acts, to pay therefor.”

This rule is further sustained in Chicago & Eastern Illinois R. Co. v. Moran, 187 Ill. 316, in these words:

“The objection is made that there was no consent in writing by Baldwin, appellant’s engineer, for use of the Joliet stone. It is conceded he did consent, and he not only consented for the railroad company, but desired and directed it to be substituted for the Indiana stone. It was so substituted, and was accepted and used by the appellant. The objection is purely technical. The written consent must be deemed to have been waived by appellant’s conduct. City of Elgin v. Joslyn, 36 Ill. App. 301.”

To the same effect is the case of City of Elgin v. Joslyn, 36 Ill. App. 301, which case was affirmed by the Supreme Court in 136 Ill. 525.

From the facts in this case it is apparent that Hill, named as inspector in the contract, became general manager soon after the contract was signed; that the provision requiring extras to be ordered in writing by the inspector was not complied with, but that various verbal orders for such work were given by Hill. These facts do not indicate an insistence by the defendant upon compliance with the provisions of the contract, but rather an abandonment of these provisions. The defendant received the benefit of the extra work and materials accepted and used the improvement and is now estopped from insisting upon the failure of the complainant to comply with the terms of the written contract. The following language used by the court in the case of City of Elgin v. Joslyn, 36 Ill. App. 301, p. 307, is apt in the instant case:

“And it was the duty of the engineer or the commissioners, when they ordered extra work, to put it in writing themselves. By the strict letter of this clause no extra work is allowed to be done except it is ordered by the engineer, in writing. He is to make the order, and must put it in writing, and his omission to do his duty and comply with the contract cannot be invoked to aid the defendant; nor can the defendant omit to comply with its part of the requirements of that clause, and at the same time insist on a strict compliance with it on the part of appellee. The neglect of the defendant to keep its part of that clause must be held to be a waiver of the right to insist on the plaintiff keeping his part of it. . . . The clause is highly penal, substituting the arbitrary judgment and decision of an engineer in the employment of one of the parties in place of the judgment of a court, and requiring all claims, big and little, for extra work or material to be put in writing within a certain time, or all claim for them forfeited. It is strictly a ‘cut-throat’ claim in building contracts, liable to entrap the unwary contractor, and if beneficiaries under such contracts intend to enforce them, they should insist on it when they order the change, or extra work or material; and upon failure to insist at the time upon such compliance, then they will be estopped from insisting upon such provisions after they have secured the labor and material of the contractor.”

The defendant also urges, as a reason why none of the items of extras claimed by the complainant should have been allowed, that, by the provisions of the contract applying to extras, arbitration of the question whether the items claimed were in fact extras, and if ■so in what amount, was made a condition precedent to any right of recovery for such items. Having reached the conclusion that the parties did not act under the provision of the contract concerning extras, but waived and abandoned such provision, and waived the issuance of a final certificate, it necessarily follows that the provision concerning arbitration does not apply.

There is but one other point that we deem necessary to consider, and that is that an issue was not raised in the pleadings that Hill ever acted as inspector. There is, however, this charge in the bill: that no certificates were ever executed by Hill as inspector, and that payments were made by the defendant without requiring the issuance of an inspector’s certificate, and therefore the provision for making payments upon inspector’s certificates was waived. The finding of the master that Hill never acted as inspector, comes well within the charge above stated, and is amply supported by the evidence in the record.

Accordingly, for the reasons stated, the decree is affirmed.

Decree affirmed.

Friend and Wilson, JJ., concur.


source: Caselaw Access Project

author: Mr. Justice Friend

license: Public Domain

text:
    Fair Play Development Organization, Appellee, v. Stanislaw Sarmach et al., Appellants.
    Gen. No. 34,888.

      Opinion filed December 2, 1931.
    John J. Wallace and Daniel A. Egberts, for certain appellant.
    Maurice L. Zaretsky, for appellee.
   Mr. Justice Friend

delivered the opinion of the court.

This is a proceeding to foreclose a claim' for mechanic’s lien instituted by Fair Play Development Organization, an Illinois corporation, on account of labor performed and material furnished to Stanislaw and Rozalya Sarmaeh, owners of improved property located in Calumet City, Cook county, Illinois.

The contract for the work in question was made with one Max Korman, doing business as the K. & C. Electric Company and by assignment became the property of the Fair Play Development Organization who instituted proceedings as complainant. The Fair Play Development Organization is in the business of buying contractors ’ mechanic’s lien paper and financing building operations.

Sarmaeh and his wife, the Calumet City State Bank, as trustee, and unknown owners of certain trust deed notes, were made parties to the proceeding. The Sarmachs did not appear and were defaulted. The Calumet City State Bank entered its appearance after service and answered that it was the holder and owner of a first mortgage and prior lien of $4,000 upon the property described in the bill of complaint, and that its lien was created on May 5,1927. The contract of complainant for the improvement for which a lien is claimed was in writing and entered into on the 13th day of June, 1929. The work appears to have been completed on the 14th day of June and the contract assigned to complainant on June 15,1929. The amount of the lien claimed is $330, with a credit of $110 to the Sarmachs, leaving a balance of $220.

The decree entered herein finds that complainant is entitled to a lien for $220 and to have the same foreclosed; that the labor and material furnished by the contractor in and about said premises became a permanent improvement upon the same and enhanced the value of the said premises in the sum of $500; that under and by virtue of the terms of a written contract between the legal title holders and the contractor, complainant was entitled to recover a fair and reasonable fee for the services of a solicitor in the foreclosure of its mechanic’s lien, and the decree provided that the sum of $100 should be so paid.

The decree further found that the Fair Play Development Organization, as assignee, had a valid and subsisting lien upon the premises, which was a first and prior lien on the enhanced value of the premises, and that the rights and interest of all Other parties in the cause were subordinate, subject and inferior to the complainant’s lien; that prior to the execution of the contract the Calumet City State Bank owned and were the legal holders of the trust deed and principal notes dated May 5, 1927, executed by the Sarmachs and delivered to the Calumet City State Bank and given to secure the sum of $4,000; that the mortgage notes were due and unpaid, and that the Calumet City State ■ Bank had a first and prior lien on said premises by virtue of its first mortgage for the sum of $4,000, except for said mechanic’s lien of the complainant, which the court held to be a prior and superior lien to that of the bank, as to the enhanced value of the premises.

The decree provided for a sale of the entire premises and for payment to complainant, after costs, master’s fees and commissions, of the entire sum due complainant, without reference to the claim of the prior incumbrancer, Calumet City State Bank. It also provided for a deficiency decree on behalf of complainant in the event that the proceeds of the sale were.insufficient to satisfy its claim, but no provision was made for the prior incumbrancer. The decree also required the defendants, or some of them, including the Calumet City State Bank, to pay to the complainant the amount of its lien, within three days, and made no distinction between the various defendants. As against the Calumet City State Bank, the decree provided that it pay the entire sum due complainant, including an attorney’s fee, although the bank was never a party to any agreement for attorney’s fees.

As grounds for reversal, it is urged (1) that the decree is erroneous in that it subjects the Calumet City State Bank to the payment of the mechanic’s lien claim without proper provisions being made for its protection in the event of such payment; (2) that the decree does not find the interest of the defendant bank nor protect the payment of such interest out of the property as it stood prior to the improvement thereon by the complainant; (3) that the decree fails to find the value of the property before improvement and only finds the enhanced value resulting from such improvement; (4) that the decree provides for the sale of the entire premises and in effect makes the prior mortgage claim of the defendant bank subject to the mechanic’s lien claim; (5) that the decree includes a nonlienable item of an attorney fee as against the defendant Calumet City State Bank.

The mechanic’s lien in the case at bar could only attach to the enhanced value of said premises, and is of course inferior to the lien of the mortgagee to the extent of the value of the premises at the time when the mechanic’s lien attached. The court should therefore have required evidence to determine the value of the land at the time the improvement was made, and the enhanced value of the premises after the improvements were completed, as well as the value and extent of the improvement. This would have helped the chancellor in determining the relative merits of the claims, and to decree the relative priorities of the claimants so that a proper sale of the property might be decreed in accordance therewith, and distribution ordered accordingly. The early case of Grundeis v. Hartwell, 90 Ill. 324, based upon an earlier provision of the statute which was similar in this respect to the present section 19 of the Mechanics’ Liens Act, Cahill’s St. ch. 82, If 19, is similar to the case at bar, and in discussing section 17 of the act prior to amendment which is a predecessor of section 19 of the present statute, the court said:

“The court found the value of the building, but did not find the value of the lot, and failed to determine the proportion of the proceeds of the sale to which the parties were entitled, as required by the statute, supra, but, instead of pursuing this course, the court decreed a sale of the premises, and that petitioner should be first paid from the proceeds of the sale.

“This was error. The petitioner had a first lien on the building, but a third lien on the lot. As the two mortgages were liens upon the lot before the materials were furnished by petitioners, Ross A. Forrester had a first lien on the lot and a second lien on the building, while Christiana G-rundeis, the other mortgagee, had a second lien on the lot and a third lien on the building. The proceeds of the sale ought to have been distributed between the parties according to the priority of the lien of the respective parties upon the building and lot, after the value of each had been ascertained and the proportion determined.

“The statute involved in this case has been before the court before, and the construction given it is uniform. Croskey v. Northwestern Manufacturing Co., 48 Ill. 481.”

By the language of section 19 of the statute, the court is required to ascertain the amount due each lien creditor, and to direct the application of the proceeds of sale in proportion to their several amounts according to the provisions of the act. The decree in the instant case failed to follow this procedure, and is therefore erroneous in this respect.

It also appears that the decree fixing the amount due complainant and creating a lien on said premises for such amount “from the defendants named in said bill of complaint herein” required “the said defendants, or some or other of them,” to pay or cause to be paid to the complainant, or its solicitor of record, on behalf of the lien claimant within three days from the entry of the decree, the sum found to be due complainant. This we believe was likewise erroneous for the following reasons: Defendants to the bill of complaint were the Sarmachs, owners of the fee simple title and the prior incumbrancer, Calumet City State Bank, holder of the first mortgage on said premises. The decree does not find any sum of money due from the Calumet City State Bank to the complainant, but provides that, complainant have a lien on said premises for the amount found due from “defendants,” without distinguishing which defendant it refers to, and requires “the said defendants,” which must be held to include the Calumet City State Bank, “or some or either of them” to pay to complainant within three days, the amount of its lien as fixed by the decree. The effect of the decree in this respect is to reduce the rights and obligations of the mortgagee to an equality with the owners of the fee as against the lien claimant, and places the bank in a position where it must either pay the lien claimant in full, or lose its rights entirely, or look to whatever surplus may be left after the costs of sale, commissions, and other items found to be due, are paid in full.

With reference to the item found by the decree to be due as solicitor’s fees for complainant, the record discloses that this fee, amounting to $100, was not claimed to be due under the statute, but rather under the contract entered into between the owner and the lien claimant’s predecessor. Obviously, the Calumet City State Bank, who was not a party to the contract, and not obligated under the statute to pay solicitor’s fees to complainant’s solicitor, should not have been required to pay complainant this item in addition to the amount found due for work and material placed in the premises as provided by the decree. It was proper for the Sarmachs and Korman, the contractor, to provide for reasonable attorney’s fees in the event of default in payment, and such could be recovered by the contractor against the obligor. Such obligation, however, would not create a lien on the premises having priority over the mortgagee, nor subject the latter to an additional burden and require the bank to pay the same. If complainant was entitled to a judgment lien for the item of attorney’s fees, such lien would, under the law, be subject to the lien of the mortgage held by the bank. Therefore, to require the mortgagee to pay this item, and by decree to utilize the procedure of the mechanic’s lien statute to facilitate the collection of the judgment so procured by subjecting the property to an immediate sale, was erroneous.

It appears from the record that while the exceptions to the master’s report were being argued, solicitors for the bank asked leave to file its cross-bill of complaint, praying for' foreclosure of its mortgage and other affirmative relief. This motion was continued to a later date, and on November 1, 1930, denied. If this were the only ground urged for reversal of the decree, we should hesitate to accede to the bank’s contention, because the motion came rather late in the proceeding, and we are not prepared to say that the court improperly exercised its discretion in denying the motion. However, inasmuch as the decree herein is erroneous in the respects heretofore discussed, we believe it will serve the ends of justice to allow the bank to file its cross-bill and establish its affirmative rights to foreclose the mortgage in question, as to which there appears to be no serious dispute, and thus have the rights of all parties adjudicated in one proceeding.

We accordingly hold that the decree herein should be reversed and remanded with directions to the chancellor to require evidence as to the value of the property before and after the improvement, and the value and extent of the improvement; to provide that the Calumet City State Bank, as holder of the mortgage, shall have a first and prior .lien upon the proceeds of such sale, to the extent of the value of said premises, prior to the time of the commencement of the making thereon of said improvements for which the lien of the complainant is sought to be enforced herein, and that as to the remainder of said proceeds, the complainant shall share to the extent of its lien; that the master be ordered, out of the proceeds of the said sale, to pay first the costs of the proceeding, including his commissions and the expenses of sale, which are adjudged against the defendants, the Sarmachs, and to distribute the remainder between the parties as heretofore suggested; and that if there is any overplus to pay the same to the Sarmachs, owners of the property.

For the reasons stated, the decree of the circuit court will be reversed and remanded with instructions to proceed further in accordance with the views herein expressed.

Reversed and remanded with instructions.

Hebel, P. J., and Wilson, J., concur.


text:
    Arthur B. Anderson, Appellee, v. Chesapeake and Ohio Railway Company, Appellant.
    Gen. No. 34,962.

      Opinion filed December 2, 1931.
    Rehearing denied December 22, 1931.
    William G. Wise, for appellant.
    Samuel Cohen and Charles C. Spencer, for appellee.
   Mr. Justice Friend

delivered the opinion of the court.

This is an action on the case brought by Arthur B. Anderson, as plaintiff, against Chesapeake and Ohio Railway Company, defendant, to recover damages for injuries sustained by him on the 12th day of March, 1928. The action is based on the Federal Employers’ Liability Act, Cahill’s St. ch. 114, if 321 et seq., plaintiff having been employed by the defendant at the time of the accident, and for a number of years prior thereto. The case was tried before the court and jury, resulting in a verdict finding the defendant guilty and assessing plaintiff’s damages at the sum of $25,000. The trial court required plaintiff to remit the sum of $6,250 from the amount of the verdict thus rendered. The remittitur was accepted by plaintiff, and judgment entered in his favor for $18,750, from which this appeal is prosecuted.

Plaintiff’s declaration consists of three counts, each alleging that defendant was a common carrier, operating between the State of Indiana and other States, and that both plaintiff and defendant were, at the time of the accident, engaged in interstate commerce. The first-count charges negligence, due to the fact that the freight car, upon which plaintiff received injuries, was not equipped with an efficient hand brake as required by the Federal Safety Appliance Act. The second count charges negligence in the operation of the •freight car at the time of the injury. The third count charges negligence because of improper loading of the car with rails. Defendant filed a plea of not guilty to each count of the declaration, and also pleaded that plaintiff was not employed by or at work for the defendant in interstate commerce at the time of the accident, and was not entitled to have an action against the defendant under the Federal Employers’ Liability Act.

It appears from the evidence that plaintiff was about 35 years of age at the time of the accident, and had been employed by defendant on its railroad as brakeman, and occasionally as extra conductor, for a period of 14 years, during which he resided at Peru, Indiana, a division point on defendant’s line. The injury occurred on March 12,1928, shortly after 3 o ’clock in the afternoon. On that day, plaintiff was employed as brakeman, or flagman, on a work train which was engaged in picking up old rails between Hoover and Twelve Mile, stations on the defendant’s railroad line in Indiana. It was plaintiff’s duty to flag and stop trains running on the main line so that the work train could be sidetracked, when necessary, to allow such trains to pass. The rails had previously been removed from the main track and were being loaded onto cars in the work train by section men. “The record contains evidence showing that the car on which plaintiff received injuries was to be switched out and unloaded between Merrillville and Malden, to replace the rails in the main track, both of the aforementioned places being in the State of Indiana. The accident occurred at Twelve Mile, where there were four tracks, the main track, the sidetrack, the elevator or grain track and the house track.

At the time the accident happened, the train crew were engaged in a switching operation, the purpose of which was to line up the cars in the train so that one car of rails could be set out at North Judson, Indiana, and another car unloaded the next day between Malden and Merrillville. The crew went to the west end of the house track and switched several cars out onto the main line, the car on which plaintiff was injured being next to the engine. This car was then taken by the engine to a point west of the switch leading into the house track and was cut off by brakeman Jones and given a “kick” into the house track. Plaintiff got on the car after it passed over the switch and climbed up to the brake board to set the brake. He testified that the brake seemed to stick suddenly, that he unwound the brake and tried it again, but that it failed to hold. Plaintiff was about a car length, or 40 feet, east of the switch when the car entered the house track, and the standing cars on the house track were eight or ten car lengths east of the switch. The car increased in speed, it being somewhat downgrade.into the house track, and .was going about eight miles an hour at the time of the collision. The car was what is known as a gondola car, the hand brake and brake step being on the end, and the wheel of the brake extending 14 inches above the top of the rim of the car. According to plaintiff’s testimony, the brake did not seem to hold. He states he wound the brake wheel three times, each time the brake failing to hold and having no effect in stopping the car. No particular defect in the brake is disclosed by the evidence, except that the brake head was loose and the brake shoes did not stick.

It further appears from the evidence that plaintiff dropped or was thrown back into the car at the time of the collision, his legs being caught and pinned between the rails and the end of the car; that in order to release him, a tie was placed against the end of the car and the engine gave the car a bump, thereby shifting the rails back and releasing his legs.

The train in question had been working around Twelve Mile station on the day prior and on the day of the accident. It had been in and out of Twelve Mile several times on that day, switching cars in and out of the house track and getting out of the way of the other trains passing on the main line. There appears to be no conflict in the evidence as to the manner in which the accident occurred.

Defendant urges three principal grounds for reversal: (1), that there is no evidence showing that plaintiff was employed in interstate commerce at the time of the injury; (2), that there is no evidence showing that plaintiff’s injury was caused by any negligence on the part of defendant, by reason whereof defendant’s motion to instruct the jury to find defendant not guilty should have been given; and (3), that the verdict of the jury is excessive.

With reference to the first contention, defendant urges that the work of removing rails from the right of way along the main line had been completed; that the car had been brought into Twelve Mile and placed on the house track, and the movement of the car at the time of the injury was for the purpose of lining it up in the work train; that this was a mere local switching movement, lacking the elements of interstate transportation either of the cars or the contents thereof. The authorities upon the question of what constitutes employment in interstate commerce are uniform in holding that the employment must be shown to be such at the time the injury occurred. However, a liberal construction of the act has generally been employed as applicable to the facts of a given case, and where other duties are so closely connected with the operation constituting employment in interstate commerce as to be a part thereof; recovery has generally been allowed. Cases relied upon by plaintiff disclose this attitude on the part of our courts. Two of the decisions are precisely in point. In Kusturin v. Chicago & Alton R. Co., 287 Ill. 306, plaintiff was loading rails which had been removed from the track about two weeks previously. The court held that the removal of the rails was an incident to the repairing of the track, and stated in its opinion that: ‘ ‘ Such repair work is, as we have seen, so connected with interstate commerce as to be a part thereof. The work of loading these old rails, while not the actual work of bolting* in new rails, was yet a part of the cleaning up process made necessary by putting-in new rails. This work could not be said to in any way be an incident to intrastate commerce. ... In this case the one operation connected with interstate commerce was that of repairing the track, and if the removal of these old rails was a part of such repair work then the defendant in error was engaged in interstate commerce at the time of his injury.”

The facts in the case of Canadian Pacific Ry. Co. v. Thompson, 232 Fed. 353, are almost identical with those in the case at bar. Thompson, the deceased, was in charge of a train loading rails taken from the main right of way, to be used in the repair of the track between the State of Maine and Canada along defendant’s right of way. It was his duty to give the signals for the movement of the train back and forth opposite the particular rails to be loaded. At the instant of the accident one car had been loaded with rails and the train crew was carrying this car of rails to Green-ville, to be there set on a sidetrack on its way to the distributing points of the rails. Intestate, Thompson, was standing, as his duties required him to do, on the flat ear which was proceeding at a speed of about 10 miles an hour, when without warning the train collided with a hand car, causing the injury which resulted in his death. The main defense in that case was either that the railway company was not engaged in interstate commerce so far as that transaction was concerned, or that the intestate was not so engaged at the time when the accident occurred. The court, however, sustained the recovery against the railway company, and after an exhaustive review of the facts, said in its opinion as follows: “In all this class of cases, the effort by the defendant corporations has been to split into fragments what was in fact a unit, and what was in fact a unitary occupation or enterprise. ... . In the presént case the intestate was employed as a conductor or brakeman running trains between Brownville, in the State of Maine, and Megantic and McAdam Junction, in Canada, being east and west terminals in a foreign country, and where the train in which he was engaged was especially set up for and engaged in gathering up rails from interstate tracks, to be taken to other parts of the interstate tracks; and this was being done without any suggestion that they were to be left at intrastate points. It is, therefore, evident that the deceased was directly employed in an interstate enterprise, which the Canadian Pacific Railway Company, as a unit, had undertaken. ’ ’

It will thus be observed that at the time of their injuries, Anderson, plaintiff herein, and Thompson, intestate, in the case hereinabove cited, were each employed on a work train which had been picking up rails, and that in each instance the train had left the immediate scene of the work. In the case at bar, the car was on a switch track in the course of its transportation, and in the Thompson case the car was on its way to a switch track, and in each instance the rails had been picked up from alongside an interstate road, and were being transported to be used in repairing another part of the interstate road. In both cases, where the rails were picked up, and the place to which they were being transported for distribution and use, were in the same State. Clearly, the removal of the rails was an incident to the repairing of the track and was not completed by merely placing the rails in the car. We are of the opinion that the weight of authority supports the conclusion that plaintiff was at the time of the accident engaged in interstate commerce.

It is next urged that the evidence fails to show that plaintiff’s injury was caused by defendant’s negligence. In this connection, it is argued that the record fails to disclose any evidence of defects in the brake other than plaintiff’s own statement that the brake failed to work. To rebut plaintiff’s testimony on this question, defendant introduced evidence tending to show1 that the brake had worked properly on the morning of the day and pritir to the time of the accident, as well as after the accident, and that no defects were found therein either before or after plaintiff’s injury. A similar contention was made in the recent case of Detroit, T. & I. R. Co. v. Hahn, 47 Fed. (2d) 59, in which certiorari was denied by the Supreme Court. The plaintiff in that case was a brakeman on a freight train. By means of a switching operation two cars were placed on the main track. Plaintiff was stationed on top of these cars in order to stop them by use of a hand brake before they reached other cars standing on the main track. He set the brake on the leading car as tightly as it could be set and when the speed of the car still increased he proceeded to set the brake on the other car. Before he could apply it, however, the cars collided with those standing on the track and he was thrown off and injured. The court, in discussing the examination of the brakes immediately before and after the injury, stated in its opinion: “Appellant introduced . . . evidence that the brake was examined before and immediately after the accident and found to be in good working order. We are asked to accept that evidence as conclusive. This we cannot do, for the evidence of appellee that the brake was used in the normal and usual manner and failed to work was such evidence of inefficiency as to make an issue for the jury. ” .

The other contention relative to the question of negligence is whether plaintiff exercised proper care for his own safety immediately prior to the injury. Defendant contends that plaintiff assumed a position of danger in proceeding to the rim of the car after he.had wound the brake twice, and also that he failed to make any attempt to get off the car when he saw the collision was about to take place. It is evident from the record, however, that immediately preceding the accident, plaintiff found himself in a position of great danger, and, in line with his duty, was doing his utmost to bring the car to a stop before the collision ensued. The degree of care required of him, under the circumstances, and the question of what he did or did not do and what he should have done when he found himself in this dangerous position, are debatable questions that were properly submitted to the jury, and we are not disposed to disturb the verdict o.n that ground.

The remaining question relates to the amount of the verdict. The record discloses that plaintiff’s injuries rendered him a permanent cripple, with one leg considerably shorter than the other, .and with a large area of diseased bone in the right leg which, at the time of the trial, substantially two and a half years after the injury, still caused an open and running sore. After the injury, plaintiff was pinned for several minutes between the ends of the rails and the front of the car. He was then taken 12 miles to Peru in the caboose. During this trip, he bled profusely. For 60 days he lay flat on his back in the hospital, with a cast on both legs, and his right leg was suspended in a frame over him. Four major operations and numerous slight ones for the removal of fragments of bone were performed. At the time of the trial, if he bore his weight on the right leg, it would cause him severe pain. By reason of his injuries he was unable to work and did not work for almost two years. He was then elected to the office of city treasurer of Peru for a term of four years at a salary of $2,000 a year. His earnings, prior to the accident for several years, had been $2,600 and $2,800 per year. In the light of these circumstances, we do not regard the judgment as excessive. Griswold v. Chicago Rys. Co., 253 Ill. App. 498.

For the reasons stated, the judgment of the superior court will be affirmed.

Affirmed.

Hebel, P. J., and Wilson, J., concur.


text:
    Cuquet Jewelry Company, Appellee, v. National Builders Bank of Chicago, Appellant.
    Gen. No. 35,001.
    Opinion filed December 2, 1931.

      H. P. Vickborn, for appellant.
    No appearance for appellee.
   Mr. Justice Friend

delivered the opinion of the court.

By this appeal the defendant presents for review a judgment rendered in the municipal court of Chicago in a fourth class “small claims” action for $52.50 in favor of plaintiff.

The pleadings consist of a statement of claim filed by the plaintiff setting forth its cause of action. Under the rules of the municipal court, defendant was not required to file an affidavit of merits. No questions are raised as to the pleadings.

The facts, as to which there is no dispute, were submitted to the court on the statements of counsel, and disclose that one H. Zalkin, who was a depositor in the defendant bank, issued and delivered his check dated August 9, 1930, to plaintiff, Cuquet Jewelry Company, payee therein, for the sum of $52.50, representing the amount of Zalkin’s indebtedness to plaintiff. The check was drawn on National Builders Bank of Chicago, the defendant. Thereafter on August 11, 1930, plaintiff presented the check for payment at defendant’s bank, with proper indorsement thereon, but defendant refused payment thereof. It is conceded that defendant had sufficient funds on hand belonging to Zalkin with which to pay the check at the time it was presented for payment.

The sole question presented by this appeal is whether the check operated as an assignment of funds to the credit of the drawer thereof, and whether the defendant, not having accepted or certified the same, is liable to plaintiff as holder of the check.

It seems to have been the view of the trial court that an assignment of the funds pro tanto took place when the depositor issued Ms check, and that the holder, by reason thereof, could maintain his action against the bank, provided there were sufficient funds on hand at the time the check was presented for payment. This was the rule laid down by our courts prior to the adoption of the Negotiable Instruments Act of July 1, 1907, as stated in the early case of Munn v. Burch, 25 Ill. 35. However, the foregoing statute (paragraph 210, chapter 98, Cahill’s Illinois Revised Statutes), changed the law of this State pertaining to the liability of a bank to the holder of a check. This section reads as follows:

“A check of itself does not operate as an assignment of any part of the funds to the credit of the drawer with the bank, and the bank is not liable to the holder, unless and until it accepts or certifies the check.”

Since the enactment of the Negotiable Instruments Act, this court has had occasion to pass on a similar question in the case of Chicago, B. & Q. R. Co. v. Merchant’s National Bank, 203 Ill. App. 561. In that case the appeal was taken from a decision sustaining a demurrer to a declaration, alleging in substance the issuance of a check to the plaintiff, the presentation thereof to the defendant, and its refusal to pay, accept or certify, although sufficient funds were on hand belonging to the drawer at the time of presentation. The court, after discussing the former decisions of our courts, adopted the statement contained in an opinion in Rauch v. The Bankers National Bank of Chicago, 143 Ill. App. 625, as a correct statement of the law now in force in this State, and said:

“By the law of Illinois as it exists today (since the passage of the Negotiable Instruments Act of June 5, 1907), a bank is not liable in any case to the holder of a check drawn on it ‘unless and until it accepts or certifies ’ the same. This conforms to the law as it before existed in most jurisdictions, but in Illinois before the passage of the act in question ... a different doctrine prevailed.” The court concluded that no liability was shown, and that the demurrer was properly sustained.

Plaintiff has filed no brief to assist us in the consideration of this matter, but we find no authority to the contrary, and therefore hold that the judgment in favor of plaintiff was entered in error, and the same is accordingly reversed.

There being no dispute as to the facts, the matter being presented to us solely as a question of law applicable to the facts as stated by counsel before the trial court, judgment will be entered here in favor of defendant, including costs.

Reversed and judgment here.

Hebel, P. J., and Wilson, J., concur.


author: Mr. Justice Wilson

text:
    The People of the State of Illinois, Appellee, v. Carl E. Wascher et al., Defendants. Robert Woodward and Mary L. Woodward, Appellants.
    Gen. No. 34,984.

      Opinion filed December 2, 1931.
    Frank F. Trunk, for appellants.
    John A. Swanson, State’s Attorney, for appellee; Henry T. Chace, Jr., Edward E. Wilson, Otho S. Fasig and Albert C. DeWitt, Assistant State’s Attorneys, of counsel.
   Mr. Justice Wilson

delivered the opinion of the court.

This was an action brought by the People of the State of Illinois in the criminal court of Cook county by a scire facias proceeding under paragraph 649, chapter 38, Cahill’s Illinois Revised Statutes of 1925. Scire facias was issued out of the criminal court of Cook county against Carl E. Waseher, Robert Woodward and Mary L. Woodward, defendants, to show cause why judgment should not be entered and execution issued against them because of the failure of Carl E. Waseher to appear and stand trial at the October Term of said court. The defendants, Robert Woodward and Mary L. Woodward, were the sureties upon a certain recognizance in said court, under which they obligated themselves to produce the said Carl E. Waseher for trial at said term of court.

The facts are before this court on a stipulation agreed to by all parties and from this stipulation it appears as follows: That the grand jury in and for Cook county at the September Term A. D. 1926, returned an indictment in due form against Carl Waseher on the charge of larceny; September 28, 1926, the said Waseher entered into a recognizance under said proceeding with Robert Woodward and Mary L. Woodward as sureties in the sum of $1,500. At the same time Robert Woodward and Mary L. Woodward presented a, written schedule of real estate as security, and entered into an agreement with the State’s attorney of Cook county whereby they agreed not to sell, transfer, convey or incumber the real estate they scheduled; that said agreement was demanded by the court as a condition precedent to the acceptance and approval of the bond given by the said Woodwards.

On the 25th day of October, 1926, the defendant Waseher was called in open court in answer to the indictment, but failed to appear and thereupon the said Woodwards, as sureties, were summoned and upon their failure to appear, the bond was declared forfeited.

October 25, A. D. 1926, a scire facias was directed to be issued out of said court against the defendants, returnable the first day of the next term of the criminal court, which was the November Term, and the first day of which fell on November 8, 1926. The writ of scire facias issued out of the office of the clerk of the criminal court on the first day of December, 1926, returnable on the first day of the December Term, next. That part of the scire facias with which this court is particularly concerned was, in words and figures, as follows:

“Now, Therefore, we command you that you summon the said Carl E. Waseher, Robert and Mary L. Woodward if they shall be found in your county, personally to be and appear before our Criminal Court of Cook County, in the County of Cook and State of Illinois aforesaid, on the first day of the next term thereof, to be holden at the Criminal Court House in the City of Chicago, in said County, on the first Monday of December next, then and there show cause; if any they have or can show, why the forfeiture should not be made absolute, and the People of the State of Illinois have execution to make the amount of the same, according to the force, form the effect of said Recognizance. ’ ’

Thereafter on the 14th day of February, A. D. 1927, a judgment for $1,500 and costs was entered in said scire facias proceeding against the defendants.

September 23, 1929, Robert Woodward and Mary L. Woodward, on notice to the State’s attorney, presented to the criminal court of Cook county a petition in which it was represented that the writ of scire facias, issued out of the office of the clerk of the criminal court on December 1, 1926, was. served only on Mary L. Woodward and that said service appears to have been made on the 4th day of December A. D. 1926, which was less than five days before the first day of the Decomber Term for the year 1926, and prayed for an order vacating said judgment.

On. October 4, 1929, the criminal court entered an order vacating the forfeiture and the judgment entered on the 14th day of February A. D. 1927; October 9, 1929, an alias writ of scire facias issued out of the office of the cleric of the criminal court, returnable to 4he November Term of that year; May 9, 1930, the People, by its.State’s attorney, on notice to the defendants, Eobert Woodward and Mary L. Woodward, petitioned the court to vacate that portion of said order of October 4, 1929, purporting to set aside a judgment of forfeiture and this was done on the 29th day of August, 1930. October 9,1929, the alias scire facias was served upon the defendants, Eobert Woodward and Mary L. Woodwrard, and they thereupon came in and filed certain pleas in said proceeding.

The first plea was of nul tiel record; the second plea was the statute of limitations, in that the cause of action had not accrued to the plaintiff within one year and six months before the commencement of the suit; the third plea was a plea of the statute of limitations, in that the cause of action had not accrued to the plaintiff within two years next before the commencement of the suit; the fourth plea was an actio non because of the agreement required by the State’s attorney of Cook county of the defendants which provided that they would not convey, alienate or incumber the property set out in their schedule. To these pleas the People, by its State’s attorney, filed certain demurrers and replications.

December 15, 1930, final judgment was entered against the defendants, from which judgment this appeal has been taken.

Defendants contend: first, that under paragraph 649, chapter 38, Cahill’s Illinois Eevised Statutes of 1925, which was in force at the time of the forfeiture of the recognizance in question, the scire facias should have issued in the same term as the forfeiture and should have been made returnable to the next term of court; second, that the action is brought to recover a statutory penalty and is barred by the statute of limitations ; third, that the defendants were required to enter into an agreement with the State’s attorney not to sell, alienate or incumber the property scheduled and that this requirement vitiated the recognizance. Paragraph 649, chapter 38, Cahill’s Illinois Revised Statutes of 1925, reads as follows:

“When any person who is accused of any criminal offense shall give bail for his appearance, and such person does not appear in accordance with the terms of the recognizance, the court shall declare such recognizance forfeited, and the clerk of the court shall thereupon issue a scire facias against such person and his sureties, returnable on the first day of the next term of the court,' to show cause why such judgment should not be rendered against such person and his sureties for the amount of the recognizance, which scire facias shall be served by the sheriff of the county where the court is held, upon such person and his sureties, by reading the same to the defendants named in such scire facias, at least five days before the first day of the term to which the same is returnable; and in case the person aforesaid cannot be found by the sheriff, he shall make return of that fact to the court. The court shall, thereupon, enter judgment by default against the defendants for the amount of the recognizance, unless defendants shall appear and defend such cause; and if the defendant should appear and interpose a defense, then the cause shall be tried in the same manner as other causes of a like nature, after any such recognizance shall be declared forfeited as aforesaid.”

The particular part'of the paragraph relied upon by the defendants is that part which provides that after the court shall have1 declared the recognizánce forfeited, “the clerk'of the court shall thereupon issue a scire facias against such person and Ms sureties, returnable on the first day of the next term of court.” It is the position of the defendants that the word “thereupon” means immediately after the forfeiture of the recognizance and that the scire facias must be returnable to the term of court immediately following that term at which the recognizance was declared forfeited. With this contention we are unable to agree. As we interpret the word “thereupon” it means after the declaration of forfeiture, but not necessarily immediately. A proper interpretation, as we see it, would be that the word “thereupon” indicates that the next step in the proceeding should be the issuance of a scire facias, but not necessarily within the same term. A recognizance might be forfeited within a day or two prior to the expiration of the term and it would be impossible to have a scire facias issue in compliance with the statute if the statute were interpreted according to the theory of the defendants. The word “thereupon” appears later in this particular section of the act where the provision is made that “the court shall thereupon enter judgment by default against the defendants for the amount of the recognizance.” A somewhat similar contention was made in the case of People v. Osby, 254 Ill. App. 545. In that case complaint was made that judgment for, the amount of the recognizance was not entered at the time, but at a succeeding term. The court in its opinion in that case, says:

“Counsel complain that said judgment for the amount of the recognizance was not entered at said July, 1928, term of the court, but on October 1, 1928, at a succeeding term. The argument is that, because of the use in the statute of the word ‘thereupon’ (which according to the definitions given by lexicographers means ‘immediately; without delay,’ etc.) judgment must be entered at the term to which the scire facias is returnable, and if entered at a succeeding term cannot stand. We see no merit in the complaint or argument.”

Scire facias against bail is the commencement of a new action because it issues out against a person who was not a party to the record in the original proceeding. Its purpose is to notify the principal and sureties of the forfeiture and to give them an opportunity to show cause why judgments should not be entered and execution issue. 3 Ruling Case Law, sec. 80.

It was evidently not the intention of the legislature to provide that the proceeding must be started within a period of a few days. That provision of the enactment, that thereupon a scire facias shall be taken out, clearly means that this step should be taken before execution should issue against the defendants, but it does not necessarily follow that it should be done at the term of court at which the recognizance was forfeited. A natural construction of the enactment would indicate that it was the intention of the legislature that the scire facias should be made returnable to the next term of court after its issuance, and that it should issue a sufficient length of time prior thereto in order that the defendants should have at least five days’ notice of the proceeding before the first day of the term to which they were summoned. The act itself provides this, in that it provides that service of the scire facias shall be at least five days before the first day of the term to which it was made returnable. The very fact that a provision is made to the effect that it shall be served five days before the first day to which it is returnable, would indicate that it might be returnable to any term after the judgment of forfeiture.

While the original scire facias may have been defective, in that it was not served within five days prior to the term of court to which it was made returnable, nevertheless, from the record it appears that an alias scire facias issued thereafter on the 9th day of October, 1929, and after the judgment entered in the proceeding against the defendants had been vacated. The judgment of December 15, 1930, was based on this alias scire facias and, in onr opinion, was good.

In the case of People v. United States Fidelity & Guaranty Co., 238 Ill. App. 112, it appears that service on the defendants of a writ of scire facias was held invalid, but the judgment was sustained on a subsequent alias scire facias even though the original was unavailing. The court in its opinion says:

“The institution.of a suit by scire facias on default of appearance on a recognizance is for the recovery of a debt. It is a distinct proceeding from the criminal case out of which it arises and in no sense interferes with the progress or process of the criminal charge. It is a civil proceeding. People v. Phelps, 17 Ill. 200; Peacock v. People, 83 Ill. 331. For this reason the court had jurisdiction at the November term to order an alias writ to issue.

“It is the position of appellant that the statute makes no provision for an alias scire facias, but provides that if service is not had at least five days before the first day of the term to which it is made returnable, the sheriff shall make a return showing that the defendant cannot be found; that before an alias writ can issue, a return of not found shall be made; that the scire facias should be returnable to the first day of court after the entry of the order of forfeiture.

“In People v. Moore, 143 Ill. App. 382, it was held that if the sheriff returns the writ before the expiration of five days before the first day of the term, the court has no jurisdiction, and any judgment rendered will be void. In the case at bar the original writ was issued, served and returned, but it was returned more than five days before the first-day of the term, and for this, reason the court held that a new writ should issue. Wei-do not think it was necessary that there should be a return showing that the defendants- could not be found before an alias writ could issue. If there was service upon the defendants and it appears that the service was not good the court had jurisdiction to continue the case for service and issue alias process. It was so held in Lane v. People, 76 Ill. 300; People v. Lewis, 209 Ill. App. 3.”

In the case at bar we are of the opinion that the court had not lost jurisdiction of the proceedings, but could proceed by subsequent writs of scire facias in order to bring the defendants into court.

The proposition urged by defendants, viz.: that the action is for a statutory penalty and therefore is barred by the statute of limitations, is unsound. The proceeding to recover on the obligation is a civil proceeding and entirely separate and distinct from the criminal action. People v. Phelps, 17 Ill. 200; Peacock v. People, 83 Ill. 331; State v. Robb, 16 Ind. 413. The court in its opinion in the latter case, says:

“The Court, it is true, in cases like this, declares the forfeiture of the recognizance; but the action is not grounded on the forfeiture so declared. Such action is based upon the recognizance, as an ordinary bond with a condition; and in case the condition is broken, it must be enforced like any other bond, by civil suit.” The court held in the case just cited that the action was not one to recover a statutory penalty and was, therefore, not barred by the statute of limitations provided for in such actions. From the reasoning in that case it would appear that the court considered the action as one similar to an action upon a bond after condition broken. In such event, the action being a civil proceeding, the same statutory period of limitations would apply as would be applicable to actions upon bonds after condition broken.

The bond given in the case at bar was given in conformity with the statute. There was no provision requiring the defendants to, refrain from transferring, conveying or alienating the property scheduled. The argument advanced that the requirements of the State’s attorney’s office, to the effect that the defendants would not alienate or incumber the property scheduled, amounted to duress, is unsound. The defendants were not compelled to agree to the terms imposed by the State’s attorney’s office. The signing of the agreement was voluntary; they were not required to go upon the bond and enter into the recognizance if they did not desire to do so. The undertaking entered into with the State’s attorney’s office was no part of the bond and in our opinion was unenforceable. The bond itself contained no provision to the effect that the property should not be alienated or incumbered. The undertaking which the defendants entered into was that they would produce the defendant Waseher upon the trial or become liable according to the terms of the recognizance entered into. This recognizance was entered into strictly in compliance with the statute and without reference to any outside agreement with the State’s attorney’s office. The cases cited by counsel in support of their contention are cases where the recognizance itself attempted to impose such a condition. Regardless of the allegation in the pleas and the stipulation that the court knew of the condition entered into with the State’s attorney’s office, we are bound by the fact that such condition was not contained in the recognizance itself and therefore we assume that the court intended that the conditions contained in the recognizance and those only were to be binding on the sureties. Moreover, the court in its judgment order expressly found that the agreement with the State’s attorney’s office was void and no part of the recognizance.

We see no reason for disturbing the judgment in this case and, for the reasons stated in this opinion, the judgment of the criminal court of Cook county is affirmed.

Judgment affirmed.

Hebel, P. J., and Friend, J., concur.


text:
    Lincoln State Bank of Chicago, Defendant in Error, v. City of Chicago, Plaintiff in Error.
    Gen. No. 35,029.
    Opinion filed December 2, 1931.
    Samuel A. Ettelsou, Corporation Counsel, for plaintiff in error; Carl J. Appell and Samuel L. Golau, Assistant Corporation Counsel, of counsel.
    No appearance for defendant in error.
   Mr. Justice Wilson

delivered the opinion of the court.

Lincoln State Bank of Chicago, a corporation, filed its action against the City of Chicago, a municipal corporation, in trespass on the case on premises. By this action the plaintiff sought to recover the sum of $6,325, paid to the defendant for and in consideration of the vacation of a certain alley under and by virtue of a certain ordinance passed by the city council of the City of Chicago, June 18, 1924. Defendant demurred to the declaration, the demurrer was overruled, and the defendant electing to stand by its demurrer, judg-' ment was entered in favor of the plaintiff. This writ of error was sued out to review this judgment and it is now before this court for consideration. Plaintiff has failed to follow its judgment to this court and we are, therefore, not aided by briefs on its behalf.

The declaration alleges that on June 18, 1924, plaintiff was the owner in fee simple of certain lots located in the City of Chicago; that these lots were part and parcel of a certain subdivision platted about the year 1871; that certain streets and alleys were provided for, dedicated and accepted; that the plat of the subdivision in question was duly recorded and accepted by the City of Chicago; that among other things dedicated to the City of Chicago by reason of said subdivision, was a certain strip of land 11.5 feet wide, commencing at a point on the south line of East 31st street, approximately 66 feet east of South State street, and extending south 115 feet, and thence easterly at right angles a width of 15 feet, approximately 70 feet, to an alley 20 feet wide and extending in a northerly and southerly direction the full length of said block 3 from 31st street on the north to 32nd street on the south; alleges that said alley was dedicated and accepted as such by the City of Chicago; that the City of Chicago determined that the nature and extent of the public use, and the public interest to be subserved, were such as to warrant the vacation of said alley and, thereupon, passed an ordinance providing for its vacation, provided the plaintiff, Lincoln State Bank of Chicago, should pay to the City of Chicago, as compensation for benefits accruing to the plaintiff, the sum of $6,325, and should in addition deposit a sum sufficient to defray all costs of constructing sidewalk and curb across the entrance to the alley declared vacated.

The declaration further alleges that upon the passage of the ordinance in question, plaintiff paid to the City of Chicago the sum of $6,325, as provided by said ordinance, but charges that the payment was made as a deposit to indemnify the defendant, City of Chicago, against any damages which might be recovered against it by private persons for damages resulting to property by reason of the vacation of said alley; alleges further that nothing has been paid by the defendant as damages by reason of said vacation of said alley within 5 years from the date of said ordinance becoming* effective and that, therefore, the said sum of money so deposited should be returned to the plaintiff.

The only question involved is the question as to whether or not the sum of $6,325, paid by the plaintiff to the City of Chicago, should be considered as compensation to the defendant, or as a deposit to protect the city against claims for damages arising* by reason of the vacation of the alley. If the money paid was a deposit, then plaintiff claims it should be repaid to plaintiff.

It appears that section 1 of the amendment to the act for the vacation of streets, alleys and highways, passed by the General Assembly, and approved June 30, 1923, Cahill’s St. ch. 145, If 1, was in full force and effect at the time the ordinance in question was passed by the city council, of the City of Chicago. A similar ordinance was passed upon by the Supreme Court of this State holding that the city council, by ordinance, could require the payment of compensation to the city for the vacation of a street or alley under this amendment.

In the case of People v. City of Chicago, 321 Ill. 466, the court in its opinion said:

“While under a former statute, which only gave to a municipality a limited power as to the vacation of streets, it was held in Lockwood v. City of Chicago, 279 Ill. 445, and other similar cases, that the municipality only held the title to its streets and alleys in trust, and that it was contrary to public policy to allow the municipality to demand and receive from private parties compensation as a condition precedent to the exercise of its power to vacate a street or alley no longer needed for public use, those authorities can have no application to the present case. The public policy of a State is to be found embodied in its constitution, its statutes, and, when these are silent on the subject, in the decisions of its courts. The public policy of the State, when not fixed by the constitution, is not unalterable but varies upon any given question with changing legislation thereon, and any action which, in the absence of legislation thereon, by the decisions of the courts has been held contrary to the public policy of the State, is no longer contrary to such public policy when such action is expressly authorized by legislative enactment. (Zeigler v. Illinois Trust and Savings Bank, 245 Ill. 180; Steen v. Modern Woodmen, 296 id. 104.) The action of the city council in the present case being expressly authorized by statute, it was not contrary to the public policy of the State. ’ ’ To the same effect see Nielsen v. City of Chicago, 330 Ill. 301; American Asphalt Paving Co. v. City of Chicago, 330 Ill. 330. Under the ruling in these cases, the Supreme Court has expressly held that the payment of money under such an ordinance is compensation to the city and not a deposit as claimed in the declaration. The ordinance in question expressly states that the payment made is compensation and the ordinance is made part of the declaration. The allegation in the declaration that the payment was a deposit is a mere conclusion and not borne out by the ordinance pleaded. It, therefore, follows that the demurrer to the declaration should have been sustained.

For the reasons stated in this opinion the judgment of the circuit court is reversed.

Judgment reversed.

Hebel, P. J., and Friend, J., concur.


text:
    Harris Trust & Savings Bank, Executor, etc., Appellee, v. Robert Lennox et al. Russell S. Clark, Appellant.
    Gen. No. 35,114.
    Opinion filed December 2, 1931.
    Clark & Clark, for appellant.

      William H. Tuttle, for defendant Cora J. Crawford. Cooke, Sullivan & Ricks, for defendant Joseph E. Daily.
   Mr. Justice Wilson

delivered the opinion of the court.

This is an appeal by Russell S. Clark from a decree of the superior court of Cook county denying him a lien on certain premises which were being foreclosed in that court. The action was brought by the Harris Trust & Savings Bank, executor of the estate of John R. Taylor, to foreclose its first mortgage on the property described as: “Lot twenty-four (24) in Broad’s Subdivision of the West two-thirds (%) of the Southwest Quarter (SW%) of the Southeast Quarter (SE%) of the Northwest Quarter (NW%) of Section three (3) in Township thirty-eight (38) North, Range fourteen (14) East of the Third Principal Meridian,” situated in the City of Chicago, county of Cook and State of Illinois. The mortgage in question was given to secure 17 notes aggregating $33,000. The notes numbered 1 to 10 inclusive, were for $1,000 each; the notes from 11 to 16 inclusive, were for $1,500 each; note number 17 was for $14,000. Notes numbered 1 to 14 inclusive., had been paid. Note number 17 for $14,000, was unpaid.

The only question involved upon this appeal is whether notes 15 and 16 were paid, or whether they were purchased by Clark. In the event that said notes were purchased by Clark, it is his contention that he became subrogated to the rights of a holder for value and entitled to payment under the foreclosure proceeding before payment to the defendants who were junior lienholders. The position taken by the other lienholders is that Clark’s payment on these notes gave him no rights .against the property, but that he was an outsider-' and a mere volunteer and, therefore, not entitled to subrogation. From the facts in evidence it appears that the property in question was improved with a flat building and, at the time of the execution of the mortgage herein being foreclosed by the Harris Trust Company, was owned by Robert Lennox and Henry Hall; that on or about March 9, 1922, Hall conveyed his interest in the property to Robert Lennox and that Lennox in turn conveyed to one Edward Bernahl, who was made a party defendant to this proceeding. August 10, 1926, Joseph E. Daily, a party defendant to this proceeding, filed a creditor’s bill in the circuit court of- Cook county against Fred J. Williams, Edward Bernahl and Gerald A. Rolfes, claiming that the property in question was, in fact, the property of F. J. Williams and that, while the title was in Bernahl, Bernahl was holding it for the benefit of Williams. The judgment of Daily, as well as that of Crawford, also a party defendant to this proceeding, was declared a lien on the property in question based upon the finding of the circuit court that Williams was the real owner of the property and that Bernahl held title for his benefit. These judgments and the decree entered in the circuit court finding the property in Williams are cited for the purpose of showing what, if any, interest Williams had in the property, and casting a light upon his connection with the subsequent proceedings under which Clark claims to have purchased the notes in question.

Clark and Williams were made parties to the foreclosure proceeding on the theory that they had or claimed to have some interest in the property. Williams made no claim, but Clark took the position, as already stated, that notes 15 and 16 were purchased by him and that he was entitled to a lien on the property as the holder of a note secured by the first mortgage, and which was therefore prior to the liens of the other parties defendant.

Williams testified that on or about October 15, 1924, he gave his check for $1,534.75 to Whitman; that on October 24, 1924, he gave Whitman his check for $479.85; that he paid these amounts from money received from Clark; that Clark wanted him to get the note uncanceled; that these payments were made to one Eussell Whitman, a practicing attorney, who represented John B. Taylor, the then holder of the mortgage ; that Whitman refused to turn over the notes to Williams but made a memorandum of the transaction, as follows:

“ (To be attached to Hall v. Lennox note for $1500— strong box)

“Attached note was paid in full with interest — last pay’t made Oct. 24, 1924, F. J. Williams made the payment but at his request note not marked ‘ Cancelled & paid’. F. J. W. is informed that we are entirely willing to mark it pd. by hand of F. J. W. but that we can not turn it over to him unmarked. Should he however buy the other notes held by J. E. Taylor secured on same property which secured the attchd. F. J. W. is informed that probably J. E. T. would turn attached over to F. J. W., uncancelled.” Williams also testified that, at the time of the payments, he asked Whitman not to indorse the payments on the note and that Whitman said he would make this separate memorandum. There were other payments also made which were to be applied on note 16. It appears from the record that these payments were made under the same circumstances. It also appears that there was a balance of $433.36 due and unpaid on note 16. Williams testified that he did not tell Whitman whose money it was that he used to pay for the notes, and that Whitman had no reason to suppose that it was anybody’s money other than Williams. He also testified that at the time he made the payments he was not the owner of the property, but that he had traded it to John A. Crawford; that the checks which he gave in payments on the notes were his own checks and drawn by him; that he would borrow the money from Clark a day or two before in order to deposit the exact amount of his payment. He testified that he had had numerous dealings with Mr. Clark.

Clark’s position appears to be that he advanced the money in order to purchase the notes and that Williams was acting for him in the transaction. If this were true, then Williams was a mere agent and Clark was the principal. We are at a loss to understand why Clark did not insist upon Whitman turning over the notes upon payment if he was a purchaser in good faith. The master found, and the court by its decree also found, that the money paid by Williams was not to purchase the notes, but was a payment on the notes, and the interest then due, and was so considered by Whitman at the time. If this is the fact, then Clark was a mere volunteer and not entitled to be subrogated to the rights of a holder of the notes.

The right of subrogation does not belong to a mere volunteer. Legal substitution belongs to one who, being himself a creditor, satisfies the lien of a prior creditor, or a co-obligor or surety who discharges a debt, or under such peculiar circumstances as the law has recognized. In the case of Bennett v. Chandler, 199 Ill. 97, the court in its opinion said:

“In the case at bar, there was no obligation on the part of Chandler or Chandler & Co. to pay these coupons. They were not holders of any junior lien, which it was necessary for them to protect. They were not creditors of Bennett and Smith, nor was there any necessity for them to satisfy the lien of any prior creditor in order to protect any interest of their own. It follows that they were purely and simply volunteers.” Cases cited.

Mr. Clark in his reply brief says:

“The contention that Williams, therefore Clark, was a mere volunteer in making these payments, and that the case of Bennett v. Chandler applies, is preposterous; while Crawford’s agent held title the bill for rescission was filed; Williams expected to get the building back, as he was not resisting that portion of the prayer of the bill. (Abst. 32; Eec. 231); he was just as much interested in this property as though the legal title stood in his name, and had a perfect right to request appellant to make these payments and hold the paper uncanceled as security for his advancements; . . .” This position is clearly contradictory to the position taken by Clark in his original brief. Williams testified that he was buying the notes for Clark and at no time contended that they were to be held for his, Williams’, benefit. If it was a fact that at the time Williams paid the money in question on the notes and intérest due, then there is a presumption that, they were intended as payment if he was at the time the real owner of the equity.

We see no reason for disturbing the finding of the chancellor as set out in the decree.

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

Decree affirmed.

Hebel, P. J., and Friend, J., concur.


author: Mr. Presiding Justice O’Connor

text:
    First District.
    Martin Gorski, appellee, v. Max Uzelac et al., appellants, on appeal of Max Uzelac.
    Gen. No. 34,905.
    Opinion filed October 19, 1931.
    Balford Quintín Shields, for certain appellants. Sinden & Hassell, for appellee; Clyde ,0. Fisher, of counsel.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.


author: Mr. Presiding Justice 0 ’Connor

text:
    Martin Gorski, appellee, v. Max Uzelac et al., appellants.
    Gen. No. 35,106.
    Opinion filed October 19, 1931.
    Balford Quintín Shields, for certain appellants. Sinden & Hassell, for appellee; Clyde C. Fisher, of counsel.
   Mr. Presiding Justice 0 ’Connor

delivered the opinion of .the court.


text:
    Paul Schulte, plaintiff in error, v. A. C. Allen, defendant in error.
    Gen. No. 35,215.
    Opinion filed October 19, 1931.
    Rehearing denied November 2, 1931.
    Robert D. Melick, for plaintiff in error. Alden, Latham & Young, for defendant in error; Wm. L. Quinlan, of counsel.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.


author: Mr. Justice McSurely

text:
    Wallace A. Brown, appellee, v. Chicago Junction Railway Company and Chicago River & Indiana Railroad Company, appellants.
    Gen. No. 34,902.

      Opinion filed October 19, 1931.
    Glennon, Cary, Walker & Murray, for appellants; Sidney O. Murray, Marvin A. Jersild and Harold E. Christensen, of counsel. Aaron R. Eppstein, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Grace Jones, appellee, v. Boston Store of Chicago, appellant.
    Gen. No. 34,915.
    Opinion filed October 19, 1931.
    Moses, Kennedy, Stein & Bachrach and Lord, Wire & Cobb, for appellant; Hirseh E. Soble and Herbert H. Kennedy, of counsel. Stuart B. Krohn, Frederick A. Gariepy and V. Russell Donaghy, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    R. W. Graham et al., appellants, v. George C. Reid, appellee.
    Gen. No. 35,100.
    Opinion filed October 19, 1931.
    Rehearing denied November 2, 1931.
    Herbert J. Ferguson and George P. Hatch, for appellants; Herbert J. Ferguson, of counsel. Jones & Key, for appellee; Wm. Y. Key, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    John Tomaszkiewicz, a minor, by Anna Bartko, his mother and next friend, appellee, v. City of Chicago, appellant.
    Gen. No. 35,108.
    Opinion filed October 19, 1931.
    Francis X. Busch, Corporation Counsel, and Alexander M. Smietanka, City Attorney, for appellant; Roy S. Gaskill, Assistant Corporation Counsel, of counsel. Murphy O. Tate, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    American Automatic Fire Protection Company, appellee, v. Mont Clare Building Corporation, appellant.
    Gen. No. 35,211.
    Opinion filed October 19, 1931.
    S. L. & Fred Lowenthal and Harry P. Munns, for appellant; Robert G. Phelps, of counsel. Harry S. Greenstein, for appellee; Harry F. Brewer, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Michael Fahey, appellee, v. Chicago National life Insurance Company, appellant.
    Gen. No. 35,260.
    Opinion filed October 19, 1931.
    Rehearing denied November 2, 1931.
    Clyde L. Todd and Lee D. Mathias, for appellant. Danaher & Garriott, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.


author: Mr. Justice Matchett

text:
    Carl Kiefer, appellee, v. Elgin, Joliet & Eastern Railway Company, appellant.
    Gen. No. 34,930.
    Opinion filed October 19, 1931.
    Rehearing denied November 2, 1931.
    Knapp, Beye, Allen, Cochran & Cushing, for appellant; Joseph L. Earlywine and Paul R. Conaghan, of counsel. Finn & Miller, for appellee; Frank Johnston, Jr., of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.


text:
    The People of the State of Illinois, defendant in error, v. Terrence Druggan, plaintiff in error.
    Gen. No. 35,019.
    Opinion filed October 19, 1931.
    Soelke, Iioehn & Loewy, for plaintiff in error. John A. Swanson, State’s Attorney, for defendant in error; Edward E. Wilson and Grenville Beardsley, Assistant State’s Attorneys, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.


text:
    Grace B. Fickensher, appellee, v. Paul Stunkel et al., on appeal of Thomas J. Grady, appellant.
    Gen. No. 35,093.
    Opinion filed October 19, 1931.
    Henry N. Miller and Edwin Hamilton, for appellant. Joseph Rolniek and David B. Shapiro, for appellee.
   Mr. Justice Matchett

delivered the opinion of the court.


text:
    Julius Meyerhoff, administrator of the estate of Solomon M. Meyerhoff, deceased, appellee, v. Illinois Central Railroad Company, appellant.
    Gen. No. 35,107.

      Opinion filed October 19, 1931.
    Fred H. Montgomery and Herbert J. Deany, for appellant; Edward O. Craig and Vernon W. Foster, of counsel. Murphy O. Tate and Eugene Cohen, for appellee.
   Mr. Justice Matchett

delivered the opinion of the court. '


text:
    Peter C. Becker, appellee, v. Standard Club, Inc., appellant.
    Gen. No. 35,233.
    Opinion filed October 19, 1931.
    Church, Haft, Robertson & Crowe, for appellant; Burt A. Crowe, of counsel. James A. Tracy and John A. Bloomingston, for appellee.
   Mr. Justice Matchett

delivered the opinion of the court.


text:
    National Bank of the Republic of Chicago, appellee, v. John R. Geary, appellant.
    Gen. No. 35,286.
    Opinion filed October 19, 1931.
    Rehearing denied November 23, 1931.
    Hart, Frank & Shomberg, for appellant; Milton Hart, of counsel. E. R. Elliott, for appellee; Julius N. Heldman, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.


author: Mr. Presiding Justice Hebei

text:
    Max D. Wilson, appellant, v. Thomas H. Kelley and Byrd B. Kelley, appellees.
    Gen. No. 34,364.
    Opinion filed October 21, 1931.
    ICannally & Megan, for appellant; Charles P. Megan, of counsel. Mayer, Meyer, Austrian & Platt, for appellees; Frederic Burnham and Frank W. Sullivan, of counsel.
   Mr. Presiding Justice Hebei

delivered the opinion of the court.


text:
    Bermingham & Prosser Company, defendant in error, v. G. W. Smith, plaintiff in error.
    Gen. No. 34,695.
    Opinion filed October 21, 1931.
    H. C. Rumery, for plaintiff in error. George D. Sullivan, for defendant in error; Martin M. Ward, of counsel.
   Mr. Presiding Justice Hebei

delivered the opinion of the court.


text:
    Henry Frerk Sons, appellee, v. F. W. Bierhanzel and J. Bierhanzel, appellants.
    Gen. No. 34,737.
    Opinion filed October 21, 1931.
    Rehearing denied November 2, 1931.
    Templeman & Herren, for appellants. Caplow, Hallen & Caplow, for appellee; Maurice L. Davis, of counsel.
   Mr. Presiding Justice Hebei

delivered the opinion of the court.


text:
    The People of the State of Illinois ex rel. Pauline Suchsland, appellee, v. John Freund, Jr., appellant.
    Gen. No. 34,782.
    Opinion filed October 21, 1931.
    Frank J. Link, for appellant. No appearance for appellee.
   Mr. Presiding Justice Hebei

delivered the opinion of the court.


text:
    The People of the State of Illinois, defendant in error, v. Sam Timoni, plaintiff in error.
    Gen. No. 34,792.
    Opinion filed October 21, 1931.
    Max Rosenzweig and Frank DeBartolo, for plaintiff in error. John A. Swanson, State’s Attorney, for defendant in error; E. E. Wilson and Grenville Beardsley, Assistant State’s Attorneys, of counsel.
   Mr. Presiding Justice Hebei

delivered the opinion of the court.


text:
    Jessie Frabotta, appellee, v. Emily H. Meyer et al., appellants.
    Gen. No. 34,806.
    Opinion filed October 21, 1931.
    Samuel A. Ettelson, Corporation Counsel, William D. Saltiel, City Attorney, and Samuel L. Golan, Assistant City Attorney, for appellant City of Chicago; Cora B. Hirtzel, Assistant Corporation Counsel, of counsel. G. L. Dosland and Milton H. Weiss, for appellee.
   Mr. Presiding Justice Hebei

delivered the opinion of the court.


text:
    Eva Danziger, defendant in error, v. Leona Newton, plaintiff in error.
    Gen. No. 34,509.

      Opinion filed October 21, 1931.
    Rehearing denied November 2, 1931.
    Maxfield Weisbrod, for plaintiff in error. B. B. Chodash, for defendant in error.
   Mr. Justice Friend

delivered the opinion of the court.


text:
    The People of the State of Illinois, defendant in error, v. Dominic Silvana, plaintiff in error.
    Gen. No. 34,793.
    Opinion filed October 21, 1931.
    Max Rosenzweig and Frank DeBartolo, for plaintiff in error. John A. Swanson, State’s Attorney, for defendant in error; E. E. Wilson and Grenville Beardsley, Assistant State’s Attorneys, of counsel.
   Mr. Justice Friend

delivered the opinion of the court.


text:
    Dorothy M. Kruger, appellee, v. Milton C. Kruger, appellant.
    Gen. Nos. 34,797 and 34,972, consolidated under No. 34,797.
    Opinion filed October 21, 1931.
    David IC. Tone, for appellant. Albert Sabath and Charles Hudson, for appellee.
   Mr. Justice Friend

delivered the opinion of the court.


text:
    Udell Rickles, a minor, by David Rickles, her father and next friend, appellee, v. City of Chicago, appellant.
    Gen. No. 34,812.
    Opinion filed October 21, 1931.
    Samuel A. Ettelson, Corporation Counsel, and Joseph Rubens, City Attorney, for appellant; Samuel L. Golan, Assistant City Attorney, and Roy S. Gaskill, Assistant Corporation Counsel, of counsel. Philip Rosenthal and Samuel M. Meyers, for appellee; Stuart B. Krohn and Philip Rosenthal, of counsel.
   Mr. Justice Friend

delivered the opinion of the court.


text:
    Dorothy M. Kruger, appellee, v. Milton C. Kruger, appellant.
    Gen. No. 34,972.
    Opinion filed October 21, 1931.
    David K. Tone, for appellant. Albert Sabath and Charles Hudson, for appellee.
   Mr. Justice Friend

delivered the opinion of the court.


text:
    Mary B. Connor, defendant in error, v. Dr. Alex B. Magnus, plaintiff in error.
    Gen. No. 34,866.
    Opinion filed October 21, 1931.
    Rehearing denied November 2, 1931.
    Frank & Shomberg, for plaintiff in error; Milton Hart, of counsel. Merle E. Finch, for defendant in error.
   Mr. Justice Wilson

delivered the opinion of the court.


text:
    Amy Keck, a minor, by Edward Keck, her next friend, defendant in error, v. Gideon Bartels, plaintiff in error.
    Gen. No. 34,891.
    Opinion filed October 21, 1931.
    John A. Bloomingston, for plaintiff in error. Shannon & Morrill and Thomas J. Symines, for defendant in error.
   Mr. Justice Wilson

delivered the opinion of the court.


text:
    H. G. Anderson, appellee, v. Frederick W. Lucke et al., trading as F. W. Lucke Brick Company, appellants.
    Gen. No. 34,945.
    Opinion filed October 21, 1931.
    Sehall & Sehall, for certain appellant; S. M. Sehall and Wallace S. Sehall, of counsel. John C. Melaniphy, for appellee.
   Mr. Justice Wilson

delivered the opinion of the court.


text:
    Grace Landon, appellee, v. William Hale Thompson et al., appellants.
    Gen. No. 34,956.
    Opinion filed October 21, 1931.
    Samuel A. Ettelson, Corporation Counsel, for appellants; William V. Daly, Samuel Sehein and Roy S. Gaskill, Assistant Corporation Counsel, of counsel. Myer H. Gladstone and Louis N. Blumenthal, for appellee.
   Mr. Justice Wilson

delivered the opinion of the court.


text:
    Independent Acceptance Company, Assignee of E. H. Robinson Motor Sales, Inc., appellee, v. Joseph N. Roberts et al., appellants.
    Gen. No. 34,994.

      Opinion filed October 21, 1931.
    Rehearing denied November 2, 1931.
    Lawrence A. Jacobson, for appellants. Cohen & Berke, for appellee.
   Mr. Justice Wilson

delivered the opinion of the court.


author: Mr. Justice MeSurely

text:
    Chicago Title & Trust Company, appellee, v. Ethel Levy et al., appellants.
    Gen. No. 35,618.
    Opinion filed November 3, 1931.
    Nathan Shefner, for appellants. A. J. Hennings and Loueks, Eckert & Peterson, for appellee.
   Mr. Justice MeSurely

delivered the opinion of the court.


text:
    James H. Hooper, plaintiff in error, v. W. W. Klipper, defendant in error.
    Gen. No. 35,063.
    Opinion filed November 9, 1931.
    James H. Hooper, pro se. Max Lurie, for defendant in error.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.


text:
    James H. Hooper, plaintiff in error, v. Max Cohen, defendant in error.
    Gen. No. 35,198.
    Opinion filed November 9, 1931.
    James H. Hooper, pro se. Slottow & Levitón, for defendant in error; Marvin J. Welfeld, of counsel.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.


text:
    South Bend Lathe Works, appellee, v. Archimede Syndicate et al., appellants.
    Gen. No. 35,266.
    Opinion filed November 9, 1931.
    Albert H. Pry, for appellants. Howard T. White, for appellee.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.


text:
    Peter Armato, defendant in error, v. H. W. Elmore & Company, plaintiff in error.
    Gen. No. 35,273.
    Opinion filed November 9, 1931.

      Beckman, Olson, Hough & Woods, for plaintiff in error; Charles F. Hough, of counsel. Palmer & Marino, for defendant in error; Charles L. Mahony, of counsel.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.


text:
    Michele Armato and Providenza Armato, defendants in error, v. H. W. Elmore & Company, plaintiff in error.
    Gen. No. 35,274.
    Opinion filed November 9, 1931.
    Beckman, Olson, Hough & Woods, for plaintiff in error; Charles F. Hough, of counsel. Palmer & Marino, for defendants in error.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.


text:
    Rose Beilin, individually and as executrix of the estate of Louis Beilin, deceased, defendant in error, v. Krenn & Dato, Inc., plaintiff in error.
    Gen. No. 35,188.
    Opinion filed November 9, 1931.
    Robert J. Hilliard, for plaintiff in error. Harold A. Fein, for defendant in error; Baehrach & Abt and Leo L. Stone, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Mary Lerk, appellee, v. George W. McCabe et al., defendants, on appeal of Chicago Trust Company, receiver for the Lake View State Bank, appellant.
    Gen. No. 35,238.
    Opinion filed November 9, 1931.
    Kirkland, Fleming, Green & Martin, for appellant;’ William Wilson, William H. Symmes and Keith Masters, of counsel. Joseph G. Sheldon, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Jerome Krivit, a minor, by Sam Krivit, his father and next friend, appellee, v. Borden’s Farm Products Company of Illinois, appellant.
    Gen. No. 35,247.
    Opinion filed November 9, 1931.
    Rehearing denied November 23, 1931.
    Paul J. Donovan and George F. Barry, for appellant. Irving G. Zazove, for appellee; S. E. Quindry, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Fred L. Zimmerman, appellee, v. Julia E. Zimmerman, appellant.
    Gen. No. 35,272.
    Opinion filed November 9, 1931.
    Charles A. Churan, for appellant. Thompson, Tyrrell <& Chambers, for appellee; Walter H. Chambers, of counsel.
   Mr. Justice MeSurely

delivered the opinion of the court.


text:
    Alfred Rich, appellee, v. J. L. Chase Company, appellant.
    Gen. No. 35,280.
    Opinion filed November 9, 1931.
    Shulman, Shulman & Abrams, for appellant; Meyer Abrams, of counsel. Abraham Redman and Sidney E. Levy, for appellee.
   Mr. Justice MeSurely

delivered the opinion of the court.


text:
    Paul Boijke, appellee, v. Mary S. Finley and George McPhillips, appellants.
    Gen. No. 35,289.
    Opinion filed November 9, 1931.
    Miller, Gorham & Wales, for appellants; Edward R. Adams and Herbert C. De Young, of counsel. McKenna & Harris, for appellee; James J. McKenna and Abraham W. Brussell, of counsel.
   Mr. Justice MeSurely

delivered the opinion of the court.


text:
    Normal Wet Wash Laundry Company, appellee, v. Zurich General Accident and Liability Insurance Company, Ltd., of Zurich, Switzerland, appellant.
    Gen. No. 35,167.
    Opinion filed November 9, 1931.
    Rehearing denied November 23, 1931.
    George A. Schneider, for appellant; Stanley L. Shetler, of counsel. Max M. and Samuel Grossman, for appellee.
   Mr. Justice Matchett

delivered the opinion of the court.


author: Mr. Justice Matehett

text:
    H. T. Roseland et al., appellants, v. Bert H. Laudermilk et al., appellees.
    Gen. No. 35,224.

      Opinion filed November 9, 1931.
    Rehearing denied November 23, 1931.
    Seymour N. Cohen, for appellants. Smith & Haddad, for certain appellee; Charles E. Smith, Jr., of counsel.
   Mr. Justice Matehett

delivered the opinion of the court.


text:
    Sobieski Building and Loan Association, appellant, v. Joseph Korczewski et al., appellees. Joseph Korczewski and Wanda Korczewski, appellees, v. Sobieski Building and Loan Association, appellant.
    Gen. No. 35,269.
    Opinion filed November 9, 1931.
    Sass & Hood, for appellant. Charles P. Molthrop, for appellees.
   Mr. Justice Matehett

delivered the opinion of the court.


text:
    Joseph Wolchinovesky, appellee, v. Madison & Kedzie State Bank, appellant.
    Gen. No. 35,382.
    Opinion filed November 9, 1931.
    Winston, Strawn & Shaw, for appellant; Harold Beacon and Harold A. Smith, of counsel. No appearance for appellee.
   Mr. Justice Matehett

delivered the opinion of the court.


text:
    North Shore Park District of Cook County, Illinois et al., appellees, v. Patrick C. Winn (now deceased) et al., appellants.
    Gen. No. 35,329.
    Opinion filed November 12, 1931.
    Louis D. David and George D. Sullivan, for appellants. Ployd E. Thompson, Henry J. Darby and Maurice T. Weinshenk, for appellees.
   Mr. Justice Wilson

delivered the opinion of the court.


text:
    Citizens State Bank of Chicago, appellee, v. Martin Wierzbowski et al., defendants, on interlocutory appeal of Martin Wierzbowski, appellant.
    Gen. No. 35,380.
    Opinion filed November 12, 1931.
    Karlin, Cohen & Karlin, for appellant. Trude & Kahane, for appellee; David W. Kahane and Martin Piepenburg, of counsel.
   Mr. Justice Wilson

delivered the opinion of the court.


text:
    Citizens State Bank of Chicago, appellee, v. Martin Wierzbowski et al., defendants, on interlocutory appeal of Martin Wierzbowski, appellant.
    Gen. No. 35,381.
    Opinion filed November 12, 1931.
    Karlin, Cohen & Karlin, for appellant. Trude & Kahane, for appellee; David W. Kahane and Martin Piepenburg, of counsel.
   Mr. Justice Wilson

delivered the opinion of the court.