author: Mr. Justice Matchett

text:
    Edwin Ullrich, Appellant, v. Gertrude Ullrich, Appellee.
    Gen. No. 40,342.

      Opinion filed April 10, 1939.

      Adams, Nelson & Williamson, of Chicago, for appellant; E. Douglas Schwantes, of Chicago, of counsel.
    James L. Kostka and Oscar A. Knittel, both of Chicago, for appellee.
   Mr. Justice Matchett

delivered the opinion of the court.

December 16, 1936, Gertrude Ullrich was granted a decree of divorce from her husband Edwin for his fault. December 14, 1937, Edwin filed in the same court, without leave, a bill to have the decree annulled for error of law, as claimed, apparent on the face of the decree. Mrs. Ullrich first answered and afterward by leave withdrew her answer and moved to strike the complaint. The motion was allowed, the suit dismissed, and plaintiff appeals.

The material facts disclosed by the record are that Mrs. Ullrich on March 6, 1935, filed her bill for separate maintenance which her husband answered, and March 9, 1936, he filed a cross-bill for divorce which she answered. October 9, 1936, she filed an amended complaint in which she charged extreme and repeated cruelty and prayed for a divorce. He answered denying the charges on October 20. December 2 an order was entered giving Mrs. Ullrich leave to amend her complaint so as to charge desertion, the answer of defendant on file to stand to the complaint as amended. This order was entered by consent of the parties and the cause was then heard in. open court, both parties being represented by their attorneys. December 16 the decree was rendered. It recites that the cause came on for hearing upon plaintiff’s amended complaint for divorce, the answer of defendant thereto and his cross complaint with plaintiff’s answer to it; that defendant had due notice by personal service and was represented in court by his attorneys; that testimony of witnesses was taken and filed; that the court had jurisdiction of the persons of the parties and the subject matter of the cause; that the plaintiff was and had been for more than a year an actual resident of Cook county, Illinois; that the parties were married June 19, 1930; that one child (then a minor) was .born of the marriage; that defendant without any reasonable cause wilfully deserted plaintiff on March 5, 1935. The decree directs that defendant’s counterclaim for divorce shall be dismissed for want of equity; that the marriage between the parties be dissolved; the custody of the child given to Gertrude Ullrich; that defendant pay $10 a week for the maintenance of the child, and that the question of alimony for Mrs. Ullrich be reserved; that defendant pay $100 solicitors’ fees.

The error urged by plaintiff is that the decree was granted for wilful desertion and that it is apparent the court erroneously included in the period of one year of wilful desertion, as required by statute, the time in which a bill of complaint by Mrs. Ullrich against her husband for separate maintenance was pending. Such computation was held erroneous by the Supreme Court in Floberg v. Floberg, 358 Ill. 626, followed by this court in In re Estate of Schriver, 289 Ill. App. 581. In each of these cases, however, the decree was challenged by direct appeal where the court in its consideration of the decree was untrammelled by rules applicable to petitions for review for error apparent on the face of the decree by which we are bound. Courts are reluctant to subject decrees in equity to review by bills of this nature, and the cases are comparatively few in which such relief has been allowed. In particular, this reluctance exists in regard to decrees for divorce and for obvious reasons. In Ohio it has been held decrees for divorce may not be reviewed by this method. Bascom v. Bascom, 7 Ohio 125, pt. 2. Plaintiff suggests this bill, “under the former practice act was termed a bill of review. ’ ’ So far as the briefs disclose such a bill is not otherwise designated by the Civil Practice Act. As a matter of history such a bill is a remedy in equity which has existed since 1536. Holdsworth’s History of Eng. Law, vol. 9, pp. 368, 369. The bill would lie only after the decree was enrolled. It was in the nature of a writ of error and equitable defenses, such as laches, could be presented. It ivas therefore early laid down that the bill must be brought within such time as might have been by laAV prescribed for an appeal or writ of error. Indirectly the Civil Practice Act seems to have modified the practice somewhat in this respect. Knaus v. Chicago Title & Trust Co., 365 Ill. 588, 7 N. E. (2d) 298; Kosmerl v. Sevin, 295 Ill. App. 345; Smith-Hurd Anno. Stats., ch. 110, sec. 76, par. 200, p. 181 [Jones Ill. Stats. Ann. 104.076].

The law of this State Avith reference to bills of review is well stated in the early case of Griggs v. Gear, 3 Gilman, (Ill.) 3, in which A. Lincoln appeared as counsel. It was there pointed out that such bills were in the nature of writs of error filed in the court where the original decree was entered and were of three kinds. First, for error of law ‘ ‘which is apparent upon the face of the decree itself ’ ’; second, for newly discovered evidence; and third, bills in the nature of bills of revieAv brought to impeach a decree for fraud. The distinctive feature of these classes was and is that a bill for error of law apparently may be filed without permission of the court, while others require permission. The opinion points out that in cases of the first class by the word “decree” was to be understood not only the final judgment of the court but the pleadings also upon which it was entered, the substance of which, according to English practice, was recited in the decree itself. For that reason in this State in a bill of this kind the court looks through the bill, the answer and the facts as found and determined by the decree. It is apparent, however, that all errors of law in such decrees may not be corrected in a proceeding of this character. In the recent case of Gray v. First Nat. Bank of Chicago, 294 Ill. App. 62, 13 N. E. (2d) 497, we gave consideration to this question. We said:

“Technically the bill is one to correct errors of law apparent on the face of the decree. This is indicated by the fact that it was filed without leave first obtained. 3 Ency. of Pleading and Practice, 575; Storey’s Equity Pleading, secs. 404-411; 10 R. C. L. secs. 360-366. It is elementary that errors in a decree resulting from mistaken judgment going only to the correctness of the court’s decision, Perry v. Phelips, 17 Ves. Jun. 173 English Reports, Full Reprint, vol. 34, page 67; Vyverberg v. Vyverberg, 310 Ill. 599; Regner v. Hoover, 318 Ill. 169; Hoffman v. Knox, 50 Fed. 484, or errors resulting from a failure to present a defense existing at the time a judgment or decree is entered (Harrigan v. County of Peoria, 262 Ill., 36; Stasel v. American Home Security Corp., 279 Ill. App. 172) may not be made the basis upon which equitable relief by way of a bill of review may be granted. The bill of review cannot be made to perform the function of an appeal or writ of error. (Regner v. Hoover, 318 Ill. 169; Hoffman v. Knox, 50 Fed. 484.) The courts are reluctant to subject decrees to review by this method, and the cases are comparatively few in which relief may thus be obtained. ’ ’

The cases all hold that an error in a decree brought about by consent of the parties, or error existing because of the failure to present a defense where the opportunity was offered, or error which would require the examination of the evidence, or error which would amount to use of the bill of review as a substitute for an appeal or writ of error, or where the party has been guilty of laches, may not be corrected by this kind of bill of review.

Mrs. Ullrich contends that the decree here entered was in the nature of a consent decree, but the record does not sustain this contention. A decree for divorce may not be entered by the consent of the parties. She cites Hazard v. Hazard, 205 Ill. App. 562, and Gugenheim v. Gugenheim, 189 Ill. App. 146. While the decree itself was not entered by consent, however, it appears clearly from the record that if there is error in the decree in the respect now pointed out the plaintiff here acquiesced and participated in creating the error by his consent to the order by which the complaint for divorce was amended so as to add thereto as one of the causes wilful desertion. The record shows that Mr. Ullrich ?s attorney was present and consented to that order. He therefore is charged with full knowledge of the entry of the decree at the time it was entered and of the manner in which it was obtained. He could have within 30 days called this supposed error to the attention of the court and secured its correction (Laws of 1933, p. 678; Smith-Hurd Anno. Stats. ch. 77, secs. 82-85 [Jones Ill. Stats. Ann. 104.098, 104.101]). At any time within 90 days after the decree was entered he might have given notice of appeal by which he could have secured a review of the decree upon the merits and had the same set aside, vacated, modified or reversed; or at any time after 90 days and within one year from the rendition of the decree, by permission of the reviewing court, upon petition showing merit and absence of culpable negligence, he might have obtained the same relief. (Smith-Hurd Anno. Stats. ch. 110, sec. 76, par. 200, p. 181 [Jones Ill. Stats. Ann. 104.076].) He did not do so. Clearly, he is attempting to make the bill of review perform the functions of an appeal or writ of error. The cases all agree that this cannot be done.

Bushnell v. Cooper, 289 Ill. 260, was a suit for separate maintenance by one of the parties and for divorce by the other. Mrs. Bushnell, then residing in Ohio, died about two o’clock on the afternoon of the day upon which a decree in her favor was entered. At the time of its entry solicitors for the parties did not know of her death, but upon the evening of that day her husband obtained that knowledge; he took no steps to inform the court of that fact until the expiration of the term at which the decree was entered. Thereafter he presented his petition for leave to file a bill of review. The petition set up the facts and the time of the death of Mrs. Bushnell and asserted that the court was without jurisdiction to enter the decree in her favor. The petition was afterward withdrawn by leave and a bill of review setting up the same facts was filed. It was held that plaintiff could not prevail. The court said: “No satisfactory reason is shown why the fact of Mary Bushnell’s death was not brought to the attention of the court at an earlier date. Had the proper motion been made at the June term, the court, undoubtedly, would have granted appellant ample time to present the facts to support it. No such motion was made and appellant slept on his rights until that term expired. The failure to make such motion was due entirely to his own negligence, and under such circumstances such new matter cannot be made the basis for a bill of review. (Schaefer v. Wunderle, supra.) Where it affirmatively appears that the matters relied upon as newly discovered came to the party’s knowledge in ample time to have been availed of in the original cause, by motion or otherwise, they cannot be made the basis of a bill of review to set aside the decree. (Griggs v. Gear, supra; Boyden v. Reed, 55 Ill. 458; Harrigan v. County of Peoria, supra.) Such is the situation presented by this ease, and the court was right in denying leave to file the bill.”

If, under such circumstances, the court was justified in denying leave to file the bill, then much more would it be justified in denying relief under a bill filed where the facts appear such as we find in this record. In the first place, the alleged error here is not apparent on the face of the decree. We think it is a matter of doubt whether the original bill for separate maintenance can be considered at all in view of the fact that it was not offered in evidence. Ledford v. Chicago, M., St. P. & Pac. R. Co., 298 Ill. App. 298, 307. Moreover, defendent assisted in making the error (if error it is) through failing to present a defense well known to him, and is estopped by failure to move to set aside the decree within 30 days, to file notice of appeal therefrom within 90 days, or to petition for leave to appeal within a year. We hold plaintiff is estopped, is guilty of laches, and the alleged error is not apparent. To grant petitioner’s prayer would be to allow a bill of review to perform the functions of an appeal or writ of error.

The order dismissing the suit is affirmed.

Order affirmed.

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


source: Caselaw Access Project

license: Public Domain

text:
    Boyda Dairy Company, Appellant, v. Continental Casualty Company, Appellee.
    Gen. No. 40,375.

      Opinion filed April 10, 1939.
    Rehearing denied April 24, 1939.
    Toudor & Weinrob, of Chicago, for appellant ; Thaddeus C. Toudor and Aleo E. Weinrob, of counsel.
    George C. Bliss, of Chicago, for appellee.
   Mr. Justice Matchett

delivered the opinion of the court.

In an action on an insurance policy by which defendant agreed to indemnify plaintiff for losses sustained by robbery, according to the terms of the policy, upon trial by jury, defendant at the close of all the evidence made a motion for an instruction in its favor, which was denied. The cause was submitted to the jury which returned a verdict for plaintiff in the sum of $3,500, whereupon defendant moved for a new trial and for judgment in its favor non obstante veredicto. The court set aside the verdict, then granted defendant’s motion for judgment notwithstanding. Plaintiff appeals.

Plaintiff argues that the judgment is contrary to the evidence and the law. Plaintiff is a dairy company; its place of business is 4218-26 West Chicago avenue in Chicago. October 10, 1932, defendent insurance company issued its policy to plaintiff in consideration of the premium, agreeing to indemnify plaintiff to tíre amount of $3,500 against a robbery in the interior department of the premises where the business of plaintiff was transacted. A clause in the policy provided that defendant should not be liable unless plaintiff had “taken all reasonable precaution to safeguard the property against loss by robbery.” By another clause it was provided that a policeman should be on duty during the daytime “when exposure exceeds Five Hundred Dollars”; that guards with no other duties would be on duty on the premises when regularly open for business; that a push-button holdup alarm system connected with a central station or with a gong outside or inside the premises would be maintained in proper working order at all times when the premises were regularly open for business.

The suit was begun June 22, 1933, before the Civil Practice Act went into effect. The Act of 1907 was applicable. (Ill. Rev. Stat. 1937, ch. 110, p. 2381.) Defendant filed the general issue with special pleas, to which plaintiff filed replications. The pleas negatived the performance by plaintiff of promises which it was said plaintiff was obligated to perform.

Plaintiff contends there was evidence from which the jury could find in its favor on each issue; that the judgment should be reversed and judgment in plaintiff’s favor entered by this court. Defendant contends there was no evidence which justified a verdict for plaintiff and argues cross error in that the court denied defendant’s motion to enter judgment in its favor for failure of plaintiff to file a copy of the policy on which the action was based with its declaration, as required by section 32 of the Practice Act of 1907. Defendant cites Staley v. Illinois Threshermen’s Mut. Ins. Co., 246 Ill. App. 279. The original declaration was filed June 22, 1933. The Practice Act of 1907 was then applicable. This court has not approved the Staley case for reasons stated in Party Cab Co. for use of Hill v. Central Mut. Ins. Co., 270 Ill. App. 489, where section 32 was construed.

The law applicable to a motion for judgment non obstante veredicto as it now exists is stated in section 68 (3) of the Civil Practice Act, Ill. Rev. Stat. 1937, ch. 110, par. 192, p. 2404 [Jones Ill. Stats. Ann. 104.068], and the section has been construed in a number of cases. (McNeill v. Harrison & Sons, Inc., 286 Ill. App. 120; Wolever v. Curtis Candy Co., 293 Ill. App. 586; Farmer v. Alton Bldg. & Loan Ass’n. 294 Ill. App. 206.) Under section 68 (3) of the Civil Practice Act in passing on a motion for judgment notwithstanding the verdict, the same rule is applied as formerly and now in passing on a motion for a directed verdict. If there is any evidence from which the jury can reasonably find in favor of plaintiff on the issues of fact, it is error to direct the jury to return a verdict for defendant or for the court on motion of defendant to enter judgment in favor of defendant notwithstanding’ the verdict of the jury.

The material facts which the evidence tends to establish are that on November 23, 1932, while the policy was in force, at about 10:10 in the morning, Mr. Wintermute, a messenger for Brinks Express Company, drove up to the place of business of plaintiff with an armed guard and delivered to plaintiff a sealed bag containing $5,160.99; this bag with the money in it was left with Joseph Sallas, who was then in the office acting as plaintiff’s cashier. Sallas took the bag to Theodore Jasinski, who was plaintiff’s office manager; he took the bag and locked it in a drawer of his desk, located in the main office. Jasinski then left for another room for the purpose of preparing the pay roll. At this time five armed robbers entered plaintiff’s main office. Two of them held up Sallas and forced him to surrender the bag with the money in it. In the meantime confederates of these robbers entered the driver’s room and compelled other employees'- óf plaintiff to lie down on the floor; they struck Stanley Boyda, president of plaintiff, on the head with a gun severely injuring him; then made their escape.

The plant of the Boyda Dairy Company was opposite a railroad yard in a sparsely populated district. The company occupied space which fronted 210 feet on Chicago avenue, which runs east and west, and 170 feet on Tripp avenue, which runs north and south. Plaintiff employed about 120 persons. The offices were located on the second floor and about eight or nine of the employees worked in these offices. The front office was L-shaped, about 40 feet long and 25 feet wide. It contained a vault about 10 by 8 feet in dimensions. The drivers’ room was on the same floor and two doors led from it, one of which was always locked. The other door adjoined the cashier’s cage which was operated by an electric lock and push button located in the cashier’s cage. No one could gain admittance to the main office unless the cashier pressed the button. Joseph Sallas was in the cage on the day the robbery occurred. There was evidence tending to show that the push button was working. Sallas was about 40 years of age and had worked for plaintiff several years. The cashier’s cage was a room about 10 feet long and about 7 feet wide with a bronze grill with bars in front. In the cage was a Brinks Express Company deposit safe with a series of cash drawers, a telephone, and a desk. A .38 caliber revolver was kept in the cage and was there when the robbery occurred. The drivers’ room was about 40 feet square. It contained 6 large desks which were used by the drivers in making up their reports. Adjoining the drivers’ room was a route foreman’s room which was fixed up with a window and grill and bars and occupied by the route foreman, John Chmiel, who kept a revolver in his desk. There was a watch clock system throughout the premises which had about 10 stations. There was a day watchman and a night watchman who made their rounds and pushed the clock day and night. The punch caused the clock to register on a dial.

Bruno Boyda was secretary and general supervisor in November, 1932. He supervised the office, the sales, and directed matters throughout the plant. Horses and wagons and trucks were used and there was a garage and a stable on the premises. Directly beneath the main office was a pasteurizing room; back of that the bottle and wash room and various processing rooms. The pasteurizing room had an air shaft leading to the roof on top of which was a skylight. There was a gong connected with the skylight. An extension had been put in leading to a driveway; there was a gong there under the canopy outside the premises in the driveway on the east side of the plant, where the drivers congregated and where they loaded their milk. Plaintiff employed about 60 drivers. Every three or four weeks at regular intervals the signal or push button was tried out. Bruno Boyda testifies that it was working on November 23rd, before the robbery; that he had never received any notice that it didn’t work until after the robbery; that the watchman and the guards were armed with revolvers and had no other duties to perform. John Hot was the day watchman on the outside in the yard; in the office Leslie Janeo was watchman; both were armed; Bruno Boyda also carried a revolver. Theodore Jasinski, office manager, supervised the pay roll.

The building was built in 1930. Defendant had arrangements by which at certain times the city of Chicago furnished policemen to guard the plant; these policemen came from the Austin station at 5300 West Chicago avenue. The night watchman was Theodore Kaczor, who was armed. A policeman came every morning from the Austin station and this had been the custom for many years; policemen from this station were accustomed to come over between four and six o’clock p. m., for the purpose of protecting collections and pay rolls. The reason for this was that the drivers were coming in with the money at that time and then also plaintiff paid ont money. There was a standing order at the Austin police station that there should be furnished to plaintiff from four to six o’clock p. m. every day (except Sundays, holidays and election days) a police guard. The police officer usually remained in the inner corridor in which the cashier’s cage was located.

These facts appear from the testimony of officers and employees of plaintiff. As against their testimony defendant offered in evidence statements in writing of Jasinski, Stanley Boyda, John Chmiel and Edgar Wintermute, which were to the effect that there was no policemen on the premises at the time of the robbery, and other facts tending to impeach their testimony. The statements were written by Thornton, an adjuster for the insurance company. The officers of the company say the adjuster told them these were to be signed in order that they might get their money. The weight of such testimony is always for the jury.

The policy provided that defendant should not be liable for loss or damage, “unless Assured has taken all reasonable precautions to safeguard the property against loss by robbery.” We think on the facts as stated it was a question for the jury to decide whether such precautions were taken and whether this condition had been met. An indorsement was placed on the policy in which it was agreed that in consideration of the reduced premium for which the policy was written, Item B was amended, as to the hours of coverage, to read: “Any hour of the day or night throughout the policy period.” Further: “It is also understood and agreed that a policeman will be on duty during the daytime when exposure exceeds Five Hundred and No/100 Dollars ($500.00).”

Defendant says there was no evidence tending to show that a policeman was on duty at the time the robbery occurred. The provision of the policy is, we think, ambiguous, not only as to what kind of policeman was to be in attendance but also as to the time or times when or place or places where he was to be. Ambiguous language is to be construed most strongly against the insurance company. (Porter v. Continental Casualty Co., 277 Ill. App. 492; Ziolkowski v. Continental Casualty Co., 365 Ill. 594; Midwest Dairy Products Corp. v. Ohio Casualty Co. of Hamilton, O., 356 Ill. 389.)

Defendant argues error in the giving of two instructions at plaintiff’s request and cites Molloy v. Chicago Rapid Transit Co., 335 Ill. 164, which an examination discloses does not apply.

The burden of proving facts set up in its pleas was in the first instance on the defendant. On no issue raised by the pleadings in this case would the court have been justified either in granting a motion of defendant for an instructed verdict at the close of all the evidence or granting its motion for judgment notwithstanding the verdict after the verdict had been returned.

For the reasons indicated the judgment, of the trial court is reversed and judgment entered here on the verdict.

Reversed and judgment here.

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


text:
    Otto J. Feucht et al, Appellants, v. Harley L. Clarke, Appellee.
    Gen. No. 40,421.
    Opinion filed April 10, 1939.
    Rehearing denied April 24, 1939.
    John Gr. Bauch, of Indianapolis, Ind., and Sidley McPherson, Austin & Burgess, of Chicago, for ap-

      •pellants; James B. Chase, of Indianapolis, Ind., Donald F. McPherson, James F. Oates, Jr. and Philip H. Schofield, all of Chicago, of counsel.
    William A. Bogan and William C. Burns, both of Chicago, for appellee.
   Mr. Justice Matchett

delivered the opinion of the court.

November 4, 1935, plaintiffs, liquidators of the Fletcher National Bank of Indianapolis, Indiana, sued defendant on a written guaranty executed by him August 19, 1930, copy of which is attached to the complaint. Defendant filed an answer unverified, which was stricken. He then filed a verified answer which interposed the defense that the guaranty was obtained through fraudulent representations as to the financial condition of the Bub-Tex Products Company, Inc., whose indebtedness to the bank is covered by the guaranty. October 25, 1937, a motion of plaintiffs for summary judgment was made, and upon a stipulation of facts entered into in open court there was a finding for plaintiff for $15,430 with judgment. Complying with the terms of the stipulation defendant a few days later paid $500 on the judgment. November 12, 1937, other attorneys for defendant were substituted in the place of those who theretofore appeared. November 19th they made a motion to set aside the judgment. Leave was given to file an amended answer. The answer was filed and set up the defense that the guaranty was executed upon certain conditions precedent which had not been performed. Plaintiffs replied, denying the guaranty was made upon such conditions. May 24, 1938, the court heard the evidence and found for defendant and entered judgment from which plaintiff appeals.

Plaintiffs argue the motion for a new trial did not comply with section 50 (7) and other sections of the Civil Practice Act (Ill. Rev. Stat. 1937, p. 2398 [ Jones Ill. Stats. Ann. 104.050]) and that it was error to grant the motion for a new trial for that reason. Under the Civil Practice Act (Smith-Hurd’s Anno. Stats., ch. 110, secs. 201 and 259.30 [Jones Ill. Stats. Ann. 104.077, 105.30]) the order allowing a new trial was final and reviewable by leave upon petition. Plaintiffs did not petition for review and cannot now argue error on the order, the effect of which was to reopen the case for trial de novo on the issues. Brenner v. Coerber, 42 Ill. 497; Indiana Harbor Belt R. Co. v. Green, 289 Ill. 81; and Shaw v. Dorris, 290 Ill. 196.

On the trial defendant testified to alleged conversations with Mr. Stout, president of the bank, long prior to the execution of the guaranty. Defendant said these conversations took place at the bank in Indianapolis, and that Stout orally agreed that any guaranty which should be given would be upon the condition that the bank would advance to the Bub-Tex Products, Inc., $50,000 in cash immediately, without regard to other debts of the Bub-Tex Company to the bank, and that this loan would be treated as a separate account and repaid before other debts to the bank. The evidence shows that there was no compliance with any such conditions. Defendant’s testimony was vague, indefinite and uncertain. He could not remember except in a general way the times when these conversations took place; he could not remember the words used. His testimony was largely in the form of conclusions and most improbable. Plaintiffs insist that this testimony was not permissible for the reason that it contradicted a solemn judicial admission of liability made by attorneys for defendant on the former hearing in open court. Plaintiffs cite Deffler v. Loudenback, 233 Ill. App. 240, and 241 Ill. App. 314, where such evidence was held not permissible on the authority of Wigmore on Evidence, 2nd Ed., vol. 5, sec. 2590, p. 605, where Professor Wigmore points out the conclusive nature of judicial admissions and illustrates use thereof in many cases.

Plaintiffs put in evidence a transcript of the former proceeding's which shows an admission by attorneys for defendant in open court of liability on the guaranty to the principal amount of $12,500 of which $500 was paid a few days later according to agreement. Plaintiffs also put in evidence a letter from defendant to Stout, dated March 17, 1930, which justifies an inference that the supposed conversations about conditions precedent never took place. They also put in evidence a radiogram sent by Stout to defendant June 21, 1930, when defendant was en route to Europe and which read, “Rubtex will need fifty thousand to tide over pressed period for next few months. Are you willing to guarantee twelve thousand five hundred of this amount. If not receiver is imminent. ’ ’ Also reply of defendant on the same day, which said, “Will guarantee twelve five.” Plaintiffs also put in evidence a letter from Stout to defendant dated August 11, 1930, which told defendant the examiners wished a regular suretyship agreement, inclosed a form of guaranty, and also told him that Mr. Perry had executed a like instrument for $20,000. August 19th defendant replied, “Replying to your letter of August 11th, please find signed form of suretyship covering $12,500 guaranty for Rub-Tex Products, Inc.” Inclosed was the guaranty executed by defendant and addressed to the Fletcher American National Bank at Indianapolis, Indiana.

The written guaranty is absolute in its nature, states that it is made in consideration of the extension of credit to the Rub-Tex Products, Inc., waives notice, etc., and is complete in every detail. It is clear that any former conversations which may have taken place with regard to the subject matter of it were merged in the complete written instrument.

Plaintiffs also offered in evidence the original records of the note account of Rub-Tex Products, Inc., from May 24, 1930, to and including February 27, 1933. These show that on June 21, 1930, a balance of direct indebtedness to the bank of $171,588.50. When the bank went into receivership March 23, 1931, Rub-Tex Products, Inc., was indebted to it in the sum of $216,925, and at the time of the trial was indebted to the extent of $40,000. Plaintiffs offered also the testimony of defendant under oath in response to interrogatories as given by defendant April 30, 1937, in which defendant said, “I recall a radiogram which I received from Mr. Stout while I was on the S. S. Europa on my way to Europe in 1930. In response to that radiogram I sent back a reply that I would guarantee $12,500. At that time I did not know much about the financial condition of Rub-Tex Products Company. ... I returned to the United States in the summer of 1930. Four weeks later I executed a formal guaranty that Mr. Stout sent me in August, 1930. At the time I sent the radiogram of June 21, 1930,1 didn’t impose any condition upon the guaranty of $12,500. The reply was the only condition as far as I know. On the other hand, of course, I anticipated the others were going to contribute. At the time I sent the formal guaranty to Mr. Stout, I didn’t impose any conditions other than those contained in the guaranty.”

In defendant’s sworn answer of January 22, 1937, not the nonperformance of supposed conditions precedent but alleged false representations that Rub-Tex Products was sound and prosperous and the further agreement that Perry was to execute a similar guaranty for $25,000, which he had not done, were stated to be his defense.

The trial was by the court and the finding of the court on review is entitled to the same weight as the verdict of a jury. Of this rule of law we are not un- ■ mindful. It is, however, the duty of this court to weigh the evidence (Ill. Rev. Stat. 1937, ch. 110, sec. 89, par. 213, p. 2414 [Jones Ill. Stats. Ann. 104.089]). Section 89 was formerly section 120 of the Practice Act of 1907. No witness was called to deny the evidence of defendant which was equivocal, uncertain testimony of an interested defendant to oral conversations and these only by way of conclusions. At any rate the uncontradicted evidence shows that these, if true, were merged in the later and complete written guaranty which contradicts the conclusions. The testimony repudiates a solemn judicial admission made by defendant’s attorneys in open court, contradicts his sworn pleadings and solemn statements made under oath in response to interrogatories submitted. Such evidence cannot prevail. We hold plaintiffs are entitled to recover on the guaranty the unpaid principal to the amount of $12,000; that they are entitled to recover interest on $12,500 at 6 per cent from the date of demand (April 12, 1933) until May 11, 1937, when $500 was paid on the principal pursuant to stipulation in open court, amounting to $3,060.32; that they are also entitled to recover interest on $12,000 at 6 per cent from May 11, 1937, to the date of this judgment, $1,378, making a total sum of $16,438.32, for which judgment will be entered in this court.

The judgment of the trial court mil be reversed and judgment entered here in favor of plaintiffs and against defendant, Harley L. Clarke, for said total amount of $16,438.32.

Reversed with judgment for plaintiffs here.

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


text:
    Chicago Title and Trust Company and Doris A. Case, Executors of the Estate of Elmer G. Case, Deceased, Appellants, v. Central Republic Trust Company et al. Sidney Pellar et al., Appellees.
    Gen. No. 40,471.

      Opinion filed April 10, 1939.
    Supplemental opinion filed and rehearing denied April 24, 1939.
    Judah, Reichmann, Trumbull, Cox & Stern, of Chicago, for appellants; A. F. Reichmann, of counsel.
    Jacobson, Merrick, Nierman & Silbert, of Chicago, for certain appellees; David Silbert, of counsel.
    McInerney, Epstein & Arvey and Grossman & Grossman, all of Chicago, for certain other appellees; George L. Siegel and Louis Grossman, of Chicago, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.

Plaintiffs appeal from a decree entered July 1, 1938, which dismissed their complaint with amendments for want of equity, and granted defendants relief prayed in their cross-bills. The suit was filed December 8, 1932, by Elmer Gr. Case. Pending the suit he died July 12,1934, and his executors were substituted. The facts appearing from the pleadings and from evidence taken in open court are not conflicting. In the most part these consist of documents unquestioned.

Prior to June 28, 1929, Elmer Gf. Case was president and principal stockholder of the Case & Martin Pie Company. On that date the corporation entered into an agreement with the Pellar Pie Company, Inc., Patterson Pure Food and Pie Company and Moody &' Waters Pie Company whereby it was agreed that these corporations would consolidate under the name of Case-Moody Pie Corporation, which was organized under the laws of Illinois in order to carry on the consolidation as agreed. The agreement provided that the stock of the new corporation (with the exception of nine shares issued to qualifying directors) was to be held by five trustees for the constituent companies and in proportion to their several interests as agreed. The agreement created a voting* trust in favor of the five trustees, Case, Moody, Ealeigh, Joseph Pellar, Sr., and Malatesta. These trustees on November 30, 1930, as of August 1, 1930, entered into an agreement whereby the number of shares issued to the constituent companies were recited, and it was agreed shares issued to the Pellar Pie Company would be held by the trustees primarily as security for the obligations of the Peller Pie Company on its note for $70,051.37, given by it to the Case-Moody Corporation pursuant to the consolidation agreement. The trust by its terms was to terminate in five years.

December 15, 1930, Case and the Pellars (Joseph, Charles, Matthew, Ealph, Benjamin and Sidney) entered into another trust agreement in which the Chicago Title and Trust Company was named trustee. This agreement recited that Elmer Gr. Case had deposited with the trustee a note dated June 30, 1929, to the order of Elmer Gr. Case, executed by the Case-Moody Pie Corporation, for the amount of $287,260.90; that there was also deposited with the trustee individual notes of Mr. Case aggregating $91,000, each payable severally to the individual Pellars; that there were also deposited with the trustee two contracts, one between Joseph Pellar and Case and the other between Charles Pellar and Case, and with these two contracts six stock certificates each representing 583j/j shares of the stock of the Pellar Pie Company, in the aggregate 3,500 shares, which it was agreed would be held by the trustees as collateral security for the payment of the notes of Elmer Gr. Case to the amount of $91,000, and the performance of the terms and conditions of the contracts entered into between Case and Joseph Pellar and Case and Charles Pellar. The trust agreement granted the usual powers for the sale of the security in case of default, etc.

On this date (December 15, 1930) Case purchased from the six Pellars 3,500 shares of the capital stock of the Pellar Pie Company. The agreement for the purchase was in writing, and Case agreed to pay for the 3,500 shares of stock, $60,000, and executed bis notes for that amount, payable in instalments through a period of years. At the same time he entered into another written agreement with Joseph Pellar by which Case promised to use his best endeavors to have Joseph’s employment with the Case-Moody Pie Company continued at an annual salary of $13,000, and a like agreement with Charles Pellar to make like endeavors to have his employment continued at a salary of $10,000 per annum.

December 8, 1932, Elmer Gr. Case filed his original complaint against the trustee, the administrators of Joseph Pellar’s estate and the other Pellars, in which he set up that the purchase by him of the stock of the Pellar Pie Company on December 15, 1930, and the execution of the trust agreement, the notes, etc., had been obtained by false representations. The bill prayed that the notes and the written agreements might be canceled and the transactions set aside. Case died, and his attorney, Charles B. Brown, who had represented him in the transactions, also passed away pending the litigation. The executors of Case decided to abandon the theory on which the bill was filed for the reason (as complaint states) that the evidence of Brown and Case was not available.

December 10, 1937, an amendment to the bill was filed which for the first time charged that the consideration for the execution of the notes, the trust agreement, contracts, etc., was the 3,500 shares of the capital stock of the Pellar Pie Company which had been transferred to Case and deposited with the trustee. The amendment averred the stock in question was void; that the consideration therefore had failed wholly; that plaintiffs were entitled to the cancellation of the alleged trust agreement, the return of the notes of Case apd the note of the Case-Moody Pie Corporation. The bill averred that 2,000 of the shares of stock sold to Case were void because the issuance thereof had not been reported to the secretary of State within 30 days, as required by section 28 of the General Corporation Act (Callaghan’s Ill. Statutes Anno., vol. 2, p. 1904). By amendment it was averred that knowledge of the fact of noncompliance with this section of the law first came to the knowledge of plaintiffs in or about April, 1934, when Mr. Thornton, one of the attorneys for plaintiffs, was engaged in the trial of another case.

The amended bill averred the incorporation of the Pellar Pie Company under the name of Pellar Brothers Company and under the laws of Illinois on April 2, 1924, the change of its capital structure November 9, 1926, the increase of its capital stock December 10, 1926, the change of its name to Pellar Pie Company, Inc., May 9, 1928, and on the same” date the increase of its capital stock by resolution passed at a joint meeting of stockholders and directors directing the issuance of 2,000 additional shares to be distributed to stockholders of record and to be issued to the six Pellars pro rata, giving to them a total of 5,300 shares or 583^ shares each. The bill averred these shares were the stock sold to Case and that the 3,500 shares transferred to his name included the 2,000 shares thus issued.

At the time of the sales of the shares December 15, 1930, the General Corporation Act of 1919, as amended (see Laws of 1919, p. 312; Ill. Business Corporation Act Anno., p. 503; Callaghan’s Ill. Stats. Anno., vol. 2, p. 1859) was in force.

Section 28 (see Ill. Business Corporation Act Annotated, p. 513) was as follows:

“Whenever stock, not previously reported to the Secretary of State as issued, has been issued within the authorized limit fixed by an approved statement of incorporation or certificate of increase in capital stock of a domestic or foreign corporation, including railroads, a statement subscribed and sworn to by the president or vice president, and attested by the secretary or by an assistant secretary, or other officer in case of a foreign corporation, shall be filed in the office of the Secretary of State within thirty days after the issuance of such additional stock pursuant to authorization thereof by the board of directors, which .statement shall set forth:

“(1) The total amount of the capital stock authorized by the articles of incorporation.

“ (2) A statement of the additional stock issued since the issuance of certificate of incorporation, the last certificate of increase in capital stock, or the filing* of the last statement, and the manner in which it is paid up, with a description yd valuation of property, if any, received in payment of such stock and that of the capital stock then issued at least one-half has been paid in, in money or property. Upon receipt of such statement the Secretary of State shall examine the same and if it is in conformity with the provisions of this Act and is accompanied by the fees hereinafter required, he shall endorse thereon the word ‘filed.’ No issuance of stock subsequent to the granting of license or certificate of incorporation or increase in capital stock shall be lawful, until the statement required by this section shall have been filed in the office of the Secretary of State and the fees hereinafter required have been paid to him, and the person to whom such stock was issued may recover from the corporation the amount paid thereon together with interest and his reasonable attorney fees.

“Promissory notes shall not be accepted in payment or part payment of stock issued in pursuance of any of the provisions of this Act.

“As amended by L. 1923, p. 283, June 28, July 1; L. 1927, p. 354, approved and in force May 12.”

The amendments to the bill averred that neither the Pellar Pie Company nor its officers complied with section 28 of the General Corporation Act, in that they failed within 30 days after this stock was issued to file with the secretary of State a statement under oath reporting the issuance of the stock, the amount paid therefor, etc., with payment of fees, as required by section 28 of the statute. By later amendments the complainant set up facts tending to excuse apparent laches, and also by amendment of February 1, 1938, averred that the transfer of this stock to Case was in violation of the provisions of the Uniform Stock Transfer Act (Callaghan’s Illinois Stats. Anno., vol. 2, p. 2009); further, that the stock was purchased by Case relying upon an affidavit executed and delivered to him by one of the vendors to the effect that the total stock of the Pellar Pie Corporation consisted of 4,188 shares of which the 3,500 shares to be sold were more than % and in which the validity of the stock so sold was warranted.

The administrators of the estate of Joseph Pellar answered the bill and amendments denying' material allegations, while the other five Pellars (defendants) made a motion to strike the bill with amendments, which was granted. In the meantime the Pellars and the administrators of the estate of Joseph Pellar filed counterclaims asserting1 the validity of their transactions with Case, his default in payment of his notes and the nonperformance of certain provisions of the trust agreement and prayed that the trustee might be directed to carry out the same. Complainants answered, denying these allegations and setting up the material facts averred in the amendments to the original bill.

The cause was put at issue and heard in open court. As already stated, the evidence was not conflicting. The decree was entered July 1, 1938, as above stated. The case turns upon the question as to whether the stock of the Pellar Pie Company, Inc., sold to Case was void by reason of the failure of the Pellar Company to report the issuance of the stock to the secretary of State,

It is plaintiffs’ theory that of the 3,500 shares of stock sold to Case, 2,000 were void because of the failure to report the issuance thereof as required by section 28; that Case therefore had a rigid to rescind the purchase in its entirety and obtain relief as prayed in his bill; that for the same reason the counterclaimants may not enforce the contract of sale or the collateral trust agreement and that the counterclaim should have been dismissed for want of equity; and also for the reason that defendants breached the statutory warranty of the Uniform Stock Transfer Act and representations stated in the affidavit delivered by the Dollars to Mr. Case at the time of the sale as an inducement to his purchase of the stock. Plaintiffs also contend they are not estopped or in any manner guilty of laches.

Section 28 was construed in Packard DeLuxe Lines, Inc. v. Hudson, 248 Ill. App. 579, where it was held that when in the statement of incorporation, amendment to charter, or certificate of increase of stock filed with the secretary of State as provided for in other sections of the statute, it is said that certain shares are to be issued at once, section 28 becomes inapplicable and a second report unnecessary. The pleadings do not expressly negative such former report, but the amendments to the bill set up in detail facts as to the organization of the corporation and its capital structure, which compels the inference that 2,000 of the 3,500 shares were never reported in either way. The motion to strike admitted these averments and the evidence submitted on the issues raised by the amended bill and answer and counterclaims includes the certificate of the secretary of State to the effect that this issue of stock had not been reported as required. We think on this record it must be held that 2,000 shares were not reported in either way.

The question for decision is thus narrowed to an inquiry as to what was the legal effect of the failure to report the issuance of this stock. Plaintiff says the stock thereby becomes absolutely illegal and void; that in the absence of creditors an estoppel cannot arise as against the purchaser and that there has been an entire failure of consideration. On the other hand, defendants contend that at most the failure to report was a mere irregularity rendering- the issuance of the stock voidable in the limited way described in the statute at the election of the person to whom the shares were originally issued in a proceeding brought against the corporation. Defendants further say that at any rate the plaintiffs and their testator waived all irregularity and by voting the stock with knowledge and in other ways exercising dominion over it, are now es-topped. At any rate they say annual reports and other documents filed and payment to the secretary of State of fees required showed substantial compliance with the statute. We are not disposed to hold that information stated in annual reports could be substituted for the specific report required by section 28. If the stock was void it could not be made valid by an annual report. We have, however, after consideration of the cases cited, concluded that the stock, although not reported, was not absolutely void.

It may be well to recall fundamentals. A corporation is a leg’al entity. It owes its existence to the fiat of law. Its being and its powers are from the sovereign state as its will is made known through legislative enactment. In the absence of legislative authority neither the corporation itself nor capital stock can exist and any attempt to create these is void. But if authority is granted failure to comply with mere directions as to the manner in which the power may be exercised will not render an act pursuant to the authority void in the absence of an expression of legislative intention to that effect. Here the statute gave the right to create the corporation and gave to the corporation created the power to issue capital stock. The direction that after it was issued a report thereof should be filed with the secretary of State seems to have been a provision the violation of which would amount to no more than mere irregularity. Cook on Corporations, 8th ed., vol. 1, par. 291, p. 977; Marshall v. Keach, 227 Ill. 35; Fletcher Cyclopedia of Corporations, Perm. Ed., vol. 11, ch. 58, sec. 5167 et seq., p. 357. There is no allegation the stock was issued wrongfully in the first place, that it was not paid for, or that its issuance in any way operated to defraud any stockholder or any other person. Complainants cite Cincinnati Mut. Health Assur. Co. v. Rosenthal, 55 Ill. 85; Union Ry. Co. v. Sneed, 99 Tenn. 1, 41 S. W. 364; Spena v. Goffe, 112 Kan. 693, 212 Pac. 1093, and other cases, all of which we have examined.

The Rosenthal case involved the question of the right of the State to refuse to authorize a foreign insurance company to do business in this State. The powers of the sovereign State were challenged there and the court held that the State could authorize or refuse to authorize, and that the failure to authorize left a contract made by the foreign corporation entirely void in so far as its enforcement by the corporation was concerned. Significantly, however, the court refused to hold the contract absolutely void. The court said that the question of whether the party to whom the insurance policy was issued could maintain an action upon it against the foreign corporation was not before it and would not be decided.

Union Ry. Co. v. Sneed, 99 Tenn. 1, 41 S. W. 364, was a case where the statute authorized a corporation to increase the amount of its capital stock upon the performance of certain conditions precedent. The conditions were not complied with. The increase was held to be illegal and void. It was also held the corporation therefore could not compel a subscriber for the stock to pay his subscription.

In Spena v. Goffe, 112 Kan. 693, 212 Pac. 1093, the issue of stock by a public utilities corporation was involved. As a condition precedent to an increase of the capital stock the Kansas statute required the proposed increase to be approved by the public utilities commission. The evidence showed that the proposition was not submitted to the utilities commission and it was held that the unauthorized stock issued was void. As a matter of fact, the statute expressly declared this should be the case if stock was so issued without authority.

Plaintiffs also call our attention to Diversey v. Smith, 103 Ill. 378; Loverin v. McLaughlin, 161 Ill. 417; People v. Mackey, 255 Ill. 144; M. H. Vestal Co. v. Robertson, 277 Ill. 425, and urges these and other authorities for the proposition that where a statute requires certain things to be done this is universally held to be the equivalent of an express prohibition against their being done in any other manner than that provided by the statute.

In the Diversey-Smith case the plaintiff sued under the provisions of an act in force July 1, 1869, which prescribed certain conditions precedent to the incorporation of fire and marine insurance companies, such as submission of the charter to the attorney general of the State and certification of the same by the attorney general to the auditor of public accounts, as complying with the statute, the appointment of appraisers by the auditor who would certify under oath that the capital stock had been paid for, this certificate to be filed with the auditor who would thereupon deliver to the incorporators a certified copy of the charter of the corporation, which should by the corporation be filed in the office of the county clerk where the company was located. This, the statute stated, would be the authority of the company to commence business. The suit was against a stockholder of the company on a policy issued by it, and the question for decision was whether the provision of the statute under which this liability was claimed made the suit one for a statutory penalty. This was decided in the affirmative. The opinion of the court hardly sustains the proposition as stated in plaintiff’s brief. It says:

“ ‘It is,’ says Dwarris, ‘a maxim, generally true, that if an affirmative statute, which is introductive of a new law, directs a thing tobe done in a certain man ner, that thing shall not, even although there are no negative words, be done in any other manner.’ Potter’s Dwarris on Statutes, 72.”

In Loverin v. McLaughlin, 161 Ill. 417, also relied on, the plaintiff sued defendants, who were directors of a corporation, under section 18 of the then Corporation Act (1 Starr & Curtis, chap. 32, p. 617) which provided that if any persons assumed to exercise corporate powers without complying with its provisions they should be jointly and severally liable for all debts and liabilities made by them in the name of the corporation. The question for decision was whether upon failure to record the certificate with the recorder of deeds, as directed by the statute, the directors and officers were liable for debts and liabilities contracted in the name of the corporation. The Supreme Court said it was a question of the intention of the legislature and analyzing the language of the statute, its object, etc., held the intention of the legislature was to create a personal liability, that the statute was penal in character and suit could be brought on it only at law. The opinion also intimated that on the theory of partnership the defendants would be held liable under the rules of the common law independent of the statute.

In People v. Mackey, 255 Ill. 144, leave was asked to bring a suit in quo warranto against a corporation to test the question of whether failure to record the certificate within two years, as required by section 4 of the Act of 1872, then applicable, was fatal to the existence of the corporation. It was held that it was and that refusal to permit the quo warranto to be filed upon a proper showing was reversible error.

In M. H. Vestal Co. v. Robertson, 277 Ill. 425, which plaintiff relies on, a suit was brought based on the statute to recover for debt incurred in the name of the corporation prior to the filing of the certificate with the recorder. The Supreme Court held that the statute was highly penal in its nature and that the supposed action was barred by the statute of limitations which, for that class of actions, was two years.

Defendants cite many authorities which they deem to be analogous and which, it is urged, sustain their theory. To review all the cases cited would unduly extend this opinion and require labor the equivalent of writing a treatise. After all we come back to the simple question of ascertaining the legislative intention. The cases cited by both parties are to this effect. The intention of the legislature is controlling. This intention must be gathered from the language used, the context and the obvious objects and purposes for which the statute is enacted. In doubtful cases where the enforcement of the statute has been placed in some department of the government the interpretation adopted by that department is given much weight and will usually be adopted by the court. People v. Fidelity & Casualty Co., 153 Ill. 25; Barrett v. Reuter, 289 Ill. App. 221. The interpretation placed upon this section by the State department appears from a printed form furnished by the secretary of State for the use of corporations reporting. It reads:

“All stock issued to citizens of Illinois and not reported to this office and fees paid within 30 days as required by Statute is voidable at the option of the purchaser until such stock is reported and the fees paid. The purchaser of such stock is entitled to a refund of his money paid therefor, together with his reasonable attorney fees. The corporation cannot lawfully transact business or maintain suit in any Court of this State until all fees are paid.”

This interpretation seems to be based on the language of the section and to be justified by the precise words used. The issuance of the stock, it will be noticed, is to precede the filing of the report. The report is to be filed not before but after the stock has been issued. Filing is not made a condition precedent. The statute directs the filing to be done after the stock has been issued. It states what penalty will be imposed for failure to comply with the direction to file. The penalty is that the purchaser of the stock from the corporation may, at his option, rescind and by suit at law recover the consideration therefor which he has paid to the corporation. The statute, as we said in Oakley v. United Finance Corp., 293 Ill. App. 305, is highly penal and therefore to be strictly construed. It gives a right of action to the purchaser of the stock. It gives that right against the corporation that sells the stock. It does not extend the right of action to the purchaser’s vendee or assignee. If the report is not filed within 30 days after the issuance of the stock the issuance of the stock is, by the words of the statute, made “unlawful.” This forms the basis for the statutory action by the purchaser against the corporation. But the statute does not say that the stock shall be void in the hands of any to whom it may come. The distinction is vital and controlling. The omission of the word “void” is significant. Beading the entire statute we find nothing inconsistent with this interpretation. It consists of 158 sections. Sections 148-153 prescribe penalties for failure to comply with various provisions of the act or for falsely reporting under oath. But in none of them is there anything inconsistent with this interpretation. We find no penalty prescribed for failure to file the report required by section 28 other than that stated in section 28 itself.

The objects of requiring the report to be filed are apparent. First, obviously to expedite the collection of the revenue due to the State from the corporation, and second, to make available to the public information as to the consideration received by the corporation from the sale of its stock (to a creditor most important). The penalty provided seems well designed to accomplish these purposes. A declaration that the stock was void irrespective of the consideration received or the good faith of the corporation would not seem well designed to accomplish these purposes, but on the contrary to hinder. Defendants cite many cases construing statutes of other States in support of this view. Larkin v. Maclellan, 140 Md. 570, 118 Atl. 181, 188; Zobrist v. Estes, 65 Ore. 573, 133 Pac. 644; Mitchell v. Mitchell, Woodbury Co., 263 Mass. 160, 160 N. E. 539. "While not inapt, these cases are distinguishable as plaintiffs point out.

Therefore, in the absence of direct authority applicable and because this construction conforms to the contemporaneous interpretation adopted by the department of State to which the enforcement of the law was committed, because this interpretation is compelled by any fair construction of the words and language of the statute, and because it is consistent with the entire General Incorporation Act and tends to carry out the particular objects which section 28 was designed to accomplish, we hold that the stock in question was not void and that the court did not err in dismissing complainants’ bill nor in granting relief to defendants on their cross-bills. The decree is therefore affirmed.

Affirmed..

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

Supplemental Opinion.

In their petition for rehearing the executors complain that the court failed to pass upon the effect of the statutory warranty in paragraph 11 of the Unk form Stock Transfer Act and the express warranty embodied in the affidavit of the Pellars upon which the testator relied when he contracted to purchase the stock. It is true these questions were not discussed in the opinion. However, the briefs of plaintiffs challenged the validity of the stock because of alleged failure to comply with section 28 of the General Corporation Act and this was the only infirmity of the stock suggested. If the stock was valid these objections were without merit. We held it valid.

The petition is denied.

Petition for rehearing denied.


author: Mr. Justice O’Connor

text:
    George Pappas, Administrator of Estate of Aphrodite Pappas, Deceased, Appellee, v. Anne Reabus and George Reabus. Anne Reabus, Appellant.
    Gen. No. 40,256.

      Opinion filed April 10, 1939.
    Rehearing denied April 24, 1939.
    Anne Reabus, pro se, and W. G. Anderson, of Chicago, for appellant; John D. Yosnos and H. M. Wetzel, both of Chicago, of counsel.
    Peter Fitzpatrick and Clarence M. Dunagan, both of Chicago, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.

June 20, 1935, plaintiff brought an action against Anne Reabus and George Reabus, her husband, to recover for the wrongful death of Aphrodite Pappas. The complaint alleged that defendant Anne Reabus while driving a motor vehicle .as agent of her husband George Reabus, in Chicago, struck and killed Aphrodite Pappas, charged general negligence and violation of certain statutes, and further charged defendant Anne Reabus with wilful and wanton misconduct in the driving of the automobile.

Defendants filed their answer denying liability; later an order was entered giving defendants’ counsel leave to withdraw his appearance. Afterward the case was tried ex parte. A special interrogatory was submitted to the jury as follows: “Did the defendant Anne Reabus at the time and place in question wilfully and wantonly, and with malice, operate the automobile in question?” The jury answered this in the affirmative and at the same time rendered a verdict finding both defendants guilty and assessing plaintiff’s damages at $7,500: Judgment was entered on the verdict and afterward an execution was issued commanding the sheriff to arrest defendant Anne Reabus. The sheriff’s return shows he was unable to find her. A number of pluries writs were issued but she was not found; on January 14, 1938, another capias issued commanding the sheriff to take Anne Reabus unless the judgment was paid to him. The sheriff’s return shows her arrest on January 28,1938. March 24,1938, counsel for Anne Reabus filed a written motion to quash the capias; on the same day an order was entered denying* the motion, and she prosecutes this appeal. Ño brief has been filed by plaintiff in this case.

Defendant Anne Reabus contends that the capias is void because it did not run against both defendants, viz., herself and her husband George against "whom the judgment was entered, and in support of this cites Raemisch v. Askounis, 266 Ill. App. 611 (Abst.); 8 Ency. Pl. & Pr. 632, and other authorities.

In the Baemisch case, plaintiff had a judgment against defendants Askounis and Ganios for $2,500 in an action for fraud and deceit. A capias was issued commanding the sheriff to arrest Ganios and commit him to jail. He made a motion to quash the writ, the motion was denied and he appealed. The order denying* the motion was reversed and the matter remanded. The opinion states that after the entry of the judgment an execution was issued against both defendants and returned by the sheriff no part satisfied; that later a capias issued directing the sheriff to arrest both defendants, etc.; that Askounis was taken into custody and committed to the county jail, afterward was released and the judgment was satisfied in part. Ganios was not taken into custody under that writ but on another one issued some years later. It was there said: “The execution must follow the judgment and must on its face appear to be against all the defendants against whom the judgment is entered, notwithstanding from the death, bankruptcy or some other cause, no levy can be made on the property of some. Executions ought also to state the name of each defendant as it is set forth in the judgment. (Clarke v. Kemp, 211 Ill. App. 206.) ” .The Raemisch case is not in point. There the ¡judgment was for fraud and deceit ag’ainst both defendants, while in the instant case the jury by the interrogatory submitted to it found that Anne Beabus was guilty of malice in the operation of the automobile. There was no such finding against defendant George Beabus, so that under section 5 of chapter 77, Ill. State Bar Stats. 1935 [Jones Ill. Stats. Ann. 107.155], she was the only one against whom an execution against the body might issue. That section, as amended in 1935, provides that, “No execution shall issue against the body of the defendant except when the judgment shall have been obtained for a tort committed by such defendant, and it shall appear from a special finding of the jury . . . that malice is the gist of the action, and except when the defendant shall refuse to deliver up his estate for the benefit of his creditors.” Moreover, the capias in the instant case, we think, meets all the requirements of the law as announced in the Raemisch case. The writ commands the sheriff to take Anne Beabus and keep her safely to satisfy the judgment for $7,500 rendered April 12, 1937, in favor of George Pappas as administrator of the estate of Aphrodite Pappas, deceased, against Anne Beabus and George Beabus.

Defendant further contends that, “The writ is void in that it was issued without an affidavit having been previously filed alleging that, upon demand, the defendant ‘refused to deliver up her estate’ in satisfaction of the judgment. ’ ’ In support of this it is urged that since the amendment of 1935 to section 5, as above quoted, an execution against the body of the defendant is authorized only when the judgment obtained is for a tort committed by the defendant and there is a special finding by the jury or court that malice is the gist of the action; and except also when the defendant shall refuse to deliver up his property for the benefit of his creditors; and it is argued in the instant case that there is no showing that defendant Anne Reabus refused to deliver up her property in satisfaction of the judgment; that this latter fact must be shown “by way of affidavit or otherwise.” This contention cannot be sustained. We think that under section 5 an execution against the body may issue where the judgment- is based on a tort committed by the defendant, provided there is a special finding by the jury or the court that malice was the gist of the action; and secondly, an execution against the body may issue where the defendant refuses to deliver up his property whether the action is based on contract or tort. Field & Co. v. Freed, 269 Ill. 558. The effect of the 1935 amendment to section 5 was to abolish executions against the body in tort actions in which malice is not the gist of the action, and also to forbid the issuance of a body execution even in actions in which malice is the gist of the action unless there is a special finding by the jury, or by the court where the case is tried without a jury, that malice is the gist of the action. Whether the legislature should have gone farther and abolished body executions in all tort actions, and whether the present statute is “out of tune with the American spirit and has no place in American jurisprudence,” as said in City of Chicago v. The Tribune, 307 Ill. 595 (which was an action for an alleged libel claimed to have affected the financial credit of the City) obviously is in the province of the legislature and not of the courts. (See Reinwald v. McGregor, 239 Ill. App. 240.)

The order of the superior court of Cook county overruling defendant’s motion to quash the capias is affirmed.

Order affirmed.

McSurely, P. J., and Matghett, J., concur.


text:
    People of the State of Illinois ex rel. John R. O’Connor, Appellant, v. City of Chicago et al., Appellees.
    Gen. No. 40,415.
    Opinion filed April 10, 1939.
    Joseph S. Grant and Samuel Grossman, both of Chicago, for appellant; Henry W. Kenoe, of Chicago, of counsel.

      Barnett Holes, Corporation Counsel, for appellees; Arthur A. Sullivan and J. Herzel Segal, Assistant Corporation Counsel, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.

By this appeal the relator seeks to reverse a judgment of the circuit court of Cook county dismissing his petition wherein he prayed that a writ of mandamus issue against the city of Chicago and its officials commanding them to pay $15',000 which was awarded to him in a foreclosure decree against the City. The case was decided by the trial judge on the pleadings and a stipulation that the court might consider all facts properly pleaded as though they were supported by evidence.

The record discloses that on December 8, 1920, an ordinance was passed by the city council for the widening of Ashland avenue, and pursuant thereto a petition to condemn the necessary property was filed February 1, 1921, in the circuit court of Cook county in the usual form. Commissioners were appointed who made up and filed their report and assessment roll on May 24, 1922, describing the property to be taken or damaged, the names and residences of the respective owners of record of such parcels of land, also the names and residences of the occupants, the value of each piece or parcel to be taken, and the amount of damage or benefit, if any, etc. This proceeding involved a great many pieces of property and the record was necessarily voluminous. Defendants were all apparently served as required by the statute, and afterward, August 25, 1926, Hannah E. and Mary McNichols, who owned the property in question, known as 4835-4837 North Ashland avenue, Chicago, executed their trust deed to Russel Firebaugh, trustee, to secure an indebtedness of $80,000. Afterward, August 1, 1928, a judgment of condemnation and of confirmation was entered by the circuit court of Cook county, in which the McNichols were awarded $640 for the 10 feet which was condemned and were assessed $720 as benefits to the balance of their property.

July 17, 1929, the McNichols executed their quitclaim deed to the 10 feet in question, conveying the property to the city of Chicago for the consideration of $640. The deed also covenanted and warranted to the City that they, the grantors, were “lawfully entitled to receive the entire amount of the award of $640 allowed in case No. B-71140, Circuit court of Cook county ... as compensation for said lands and improvements thereon taken for public use in said proceeding”; that there were no mechanics’ liens or incumbrances against the real estate and that they, the grantors, “will forever warrant and defend” their “right to receive the entire amount of the above award against the lawful claims and demands of all persons.”

October 4, 1929, Firebaugh, the trustee, filed his bill to foreclose the trust deed, which apparently was in the usual form, but the City was not made a defendant; a short time thereafter he filed his amended bill in which he set up the conveyance of the 10 feet by the mortgagors, the McNichols, to the city of Chicag’O. The City was made a defendant and the prayer of the bill was that the court decree that the City pay to the plaintiff trustee a fair and reasonable sum for the. 10 feet to be applied on the indebtedness secured by the trust deed. The City filed an appearance but failed to answer and was defaulted. The foreclosure suit was heard before a master who made his report, which is not in the record, and October 10, 1930, a decree of foreclosure was entered. By the decree it was found that Firebaugh was a necessary .party to the condemnation proceeding; that he.was not made a party and therefore was not bound by that judgment. It was further found that the City had taken possession of the 10 feet without legal or equitable right thereto, and that the taking ‘ ‘ depreciated and reduced the value of the property being foreclosed to the extent of $15,000,” and it was decreed that Firebaugh, as trustee recover this amount from the City and that execution issue therefor. Afterward the property was sold under the foreclosure decree for $73,000, the 10 feet ivas bid in by the trustee for $10 and a deficiency decree of $10,541.46 was entered.

By the petition for a writ of mandamus the relator sought to recover the $15,000 mentioned in the foreclosure decree, together with 5 per cent interest from the date the decree was entered — October 10, 1930 — and it is said that this $15,000 with interest thereon when and if collected would be distributed to the bondholders, and that if this were done there would still be something due the bondholders.

In May, 1936, an order was entered by the superior court of Cook county whereby Firebaugh as trustee was removed and the relator, O ’Connor, appointed as successor trustee.

In their briefs counsel for the relator in stating the substance of the pleadings, say that defendants in an amendment to their answer, “alleged that the condemnation proceeding was instituted and the commissioners ’ report and assessment roll filed prior to the execution and recordation of the trust deed, and that the trustee took title subject to lis pendens notice.”

The relator contends that his decree for $15,000 against the City is “absolutely conclusive in a subsequent proceeding to compel payment”; that in the foreclosure suit the court had jurisdiction over the parties and of the subject matter, and that a court of equity having obtained jurisdiction will do complete justice between the parties even to the extent of enforcing legal rights; that in the instant case complainant has a clear legal right to a writ of mandamus and the court erred in dismissing the proceeding.

From the facts we have above stated it is clear that what was done in the foreclosure suit was, to say the least, anomalous and wholly unwarranted. The City had properly instituted the condemnation proceeding, the commissioners had filed their report, the parties including the McNichols had been served with process, so the matter was lis pendens before the trust deed was executed. The Us pendens begins from the service of summons, and this doctrine or rule of law is founded on public convenience and necessity. Norris v. Ile, 152 Ill. 190. In Moore v. Zelic, 338 Ill. 583, the court said (p. 589): “Lis pendens means a pending suit. Under the common law, while a suit was pending nothing in relation to the subject matter thereof could be changed, and one acquiring from a party to the proceeding an interest in the property involved in the litigation, where the court has jurisdiction of the subject matter and of the person of the one from whom the interest is acquired, takes such interest subject to the rights of the parties to the litigation as finally determined, and is as conclusively bound by the result of the litigation as if he had been a party thereto from the outset. (Norris v. Ile, 152 Ill. 190; 1 Story’s Eq. Jur., sec. 406.)”

Before the execution of the trust deed the condemnation proceeding was a pending suit within the meaning of the rule, and the trustee was as conclusively bound by the result of that proceeding as if he had been a party thereto from the outset. The attempt to relitigate the matter in the foreclosure suit was void. The relator being the trustee in the trust deed, if he could in any event have prevented the payment of the $640 to the McNichols, should have intervened in the condemnation suit. But the City was not required to pay the $640 to anyone, because that was the value fixed in the condemnation suit of the 10 feet taken, while the balance of the property was benefited to the extent of $720, so that $80 was due and owing* the City from the owners of the property being condemned. Sec. 16, par. 715, ch. 24, p. 525, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 76.021].

The decree against the City for 15,000 entered in the foreclosure suit was wholly unwarranted and void. The judgment of the circuit court refusing* to issue a writ of mandamus and dismissing the petition was the only judgment the record warranted, and it is affirmed.

Judgment affirmed.

MoSurelt, P. J., and Hatchett, J., concur.


text:
    Anthony Warszawa, Appellant, v. White Eagle Brewing Company, Appellee.
    Gen. No. 40,455.

      Opinion filed April 10, 1939.
    Rehearing denied April 24, 1939.

      William J. Remus, of Chicago, for appellant.
    Peden, Melaniphy, Ryan & Andreas and Lawrence F. Zygmunt, all of Chicago, for appellee; John C. Melaniphy, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.

Plaintiff brought an action against defendant to recover $6,006 claimed to be a balance due him for wages for work done as carpenter and laborer for defendant. Defendant denied liability, claiming plaintiff had been paid in full. There was a jury trial and at the close of the evidence defendant moved for a directed verdict. The court reserved its ruling on the motion and submitted the case to the jury; the jury returned its verdict for $6,000 in plaintiff’s favor; defendant made a motion for a new trial and for judgment notwithstanding the verdict; the court sustained the latter motion and plaintiff appeals.

The record discloses that defendant owned a brewery in Chicago which was closed during prohibition, and apparently in the beginning of 1933 when it appeared that the prohibition law would soon be repealed it began to prepare to operate its brewery again. About the first of February, 1933, defendant’s president, John Krypel, employed plaintiff to work at the brewery.

Plaintiff’s claim is that it was agreed between the parties that he was to be paid $13 a day which was the union scale for carpenters at that time; that defendant was short of money and it was agreed that plaintiff was to be paid $15 a week and later when the brewery was in operation and began to sell beer at a profit, he would be paid the balance due him, “either by cash or in the form of stock of said corporation of the face value of said accumulated wages”; that he went to work about that time doing carpenter work most of the time but also working as a laborer around the brewery off and on.

Plaintiff’s evidence is further to the effect that shortly after going to work in February, 1933, he was paid $15 a week, later $20, then $25, and still later $35. He began work about February 1, 1933, and continued to April 30, 1937. After deducting what he received his claim for the balance is as follows:

‘‘February 1, 1933, to June 30, 1933..........$776.00

July 1,1933, to November 30, 1933............ 526.00

December 1, 1933, to May 31, 1934............ 800.00

June 1,1934, to October 31, 1934.............. 822.00

November 1, 1934, to March 31, 1935.......... 600.00

April 1, 1935, to August 31, 1935............. 720.00

September 1, 1935, to January 31, 1936....... 400.00

February 1,1936, to June 30, 1936............ 580.00

July 1, 1936, to November 30, 1936............ 500.00

December 1, 1936, to April 30, 1937........... 262.00

Total...........................$6,006.00”

($5,986.00)

The evidence further shows that Ivrypel, president of the Brewery Company, was succeeded by Anton Grorecki about June, 1933, and plaintiff testified that when Mr. Grorecki became president he entered into the same contract as that theretofore made with the former .president, Krypel, namely, that plaintiff was to be paid $13 a day, draw $15 a week, and when beer was being sold at a profit by defendant the balance would be paid to him in cash or in stock of the Brewery Company. Plaintiff further testified, and was corroborated by a number of witnesses, that from time to time he asked Grorecki when he was to be paid the balance of the wages coming to him, but was put off with the statement that the brewery was in need of funds and that he would later be paid in full as agreed.

John Krypel, president of the brewery at the time plaintiff was employed, called by defendant, testified that he was first connected with the defendant brewery in June, 1932, at which time he was elected president; that he resigned about 11 months thereafter and was then made general manager, which position he occupied until August, 1934, when he left, and at the time of the trial was president of a brewing company in Joliet; that he had known plaintiff 15 or 20 years; that plaintiff had done carpenter work for him in constructing a building for him personally; that he saw plaintiff the latter part of 1932 or 1933; that plaintiff was looking for a job and he told plaintiff if he would come to the brewery he would give him work at $15 a week to start; that he afterward gave him raises, first to $20 then $25 a week; that he never agreed to pay him $13 a day and denied having made any contract as testified to by plaintiff.

The books of defendant company are in evidence and show plaintiff was paid by check weekly, and there is no showing that there was any amount still due him. The evidence also showed that plaintiff owned stock in defendant brewery for awhile and attended a number of stockholders’ meetings; that at such meetings the financial statements of the company were read and plaintiff made no complaint that they did not show that the brewery owed him money. There is no dispute about this, but plaintiff says the reason he did not complain was that Mr. Górecki, the president, who died in February, 1937, had, more than a year before the trial, told him not to say anything about it. Defendant offered further evidence to the effect that it never heard of the claim until after plaintiff quit or was discharged about April 30, and that the directors first heard of his claim about July 6, 1937, when' plaintiff ’s lawyer wrote defendant demanding $6,000. The evidence shows that the brewery made a net profit for the six months ending December 31, 1934, of $69,563.44.

The verdict of the jury was rendered May 26, 1938, and June 3 the motion for a new trial and for a judgment notwithstanding the verdict came on for hearing. Counsel for defendant said: “If the Court please, on this motion for a new trial and for a judgment, notwithstanding the verdict, I wish to argue these various points”; that the contract was void because it was not in writing, contrary to the statute of frauds; that the president of defendant company had no power to make the contract claimed by plaintiff, on the ground that the agreement was secret; and further, that defendant’s president had no power to make a contract to pay plaintiff either in money or in stock of the brewery — that it was such an unusual contract that the president could not make it; that the testimony of plaintiff and his witnesses as to a conversation between plaintiff and G-orecki, who has since died, was incompetent under sec. 4 of the Evidence Act; that plaintiff’s testimony as to the contract of hiring was of no value when all the evidence was considered; that there was no proof that justified the verdict.

Counsel for plaintiff in his brief refutes each of these contentions. In deciding the matter the court, after argument of counsel, said: “I find it most difficult to believe the theory that plaintiff’s suit was based upon; ... in 1933, at the time of the depression, that the president of a company would hire a carpenter, with thousands of them in the city out of work, and agree to pay him $13 a day, not then, perhaps, but . . . when the brewery began to put out beer,” and especially so when the plaintiff’s testimony was denied by the then president of the brewery company. The court further said, it “appears to me to be unbelievable, that a president or any officer of that corporation used that carpenter to do general labor, and the record is quite convincing that he was used to do general labor work, such as carrying grits and carrying other things that were necessary and unloading cars from time to time, once a week, once a month, or whenever it was necessary” and pay him $13 a day with thousands of men out of work. The court then said he thought the contract came under the classification of “unusual” and that the president could not enter into such a contract; “that a president of a corporation can not enter into an unusual contract or a secret agreement and bind his corporation”; that his view of the evidence was that plaintiff was hired for $15 a week with an agreement that as things got better they would raise his wages and that this was done, plaintiff being raised from $15 to $35 a week. The court then said defendant had raised several points — the statute of frauds, the admission of incompetent evidence, power of the president to make the contract — and the matter was continued so that counsel might further look up the law on these points. Later, June 9, after further argument the court said he was still of the same opinion, and entered judgment notwithstanding the verdict.

Defendant contends that the ‘ ‘ agreement is void, not being in writing and being contrary to the Statute of Frauds.” This contention is apparently based on the proposition that the contract was not to be performed within a year. We think there is no merit in the point. The hiring was from week to week and the contract might be performed within a year. Furthermore, the contract was fully performed by plaintiff and in these circumstances defendant is estopped from relying upon the statute of frauds. Executed contracts are never within the statute of frauds. Swanzey v. Moore, 22 Ill. 63; Mead v. Chicago & Northwestern Ry. Co., 189 Ill. App. 323.

Defendant further contends the court erred in permitting plaintiff and four of his corroborating witnesses to testify, over objection, as to alleged conversations between plaintiff and Górecki, the deceased president, and in support of this counsel cite section 4, ch. 51, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 107.070]. The pertinent part of that section is: “in every action, suit or proceeding a party to the same who has contracted with an agent of the adverse party • — • the agent since having died — shall not be a competent witness as to any admission or conversation between himself and such agent, unless such admission or conversation with the said deceased agent was had or made in the presence of a surviving- agent or agents of such adverse party.”

Plaintiff testified as to what was said by himself and Górecki regarding the terms of his employment. Afterward he gave further testimony as to what was said by the parties when he, on a number of occasions, asked for the payment of the balance then due him. Under the provisions of the statute quoted, plaintiff was the only one who was disqualified. • The four corroborating witnesses were in no way disqualified and their testimony was clearly competent. Plaintiff’s evidence as to these conversations would be admissible if his four corroborating witnesses were “agents” of defendant brewery. We think the four witnesses were not such agents as would authorize plaintiff to testify. They were mere employees and we think their duties were not such as to'qualify them as “agents” within the meaning of the statute. Adams Express Co. v. Oglesby, 215 Ill. App. 94. The objection to plaintiff’s testimony as to these conversations should have been sustained and the evidence excluded. The fact that defendant’s counsel cross-examined plaintiff as to the conversations did not waive the objection. Chicago City Ry. Co. v. Uhter, 212 Ill. 174.

Defendant further contends that the contract, of employment upon which plaintiff predicates his suit was a secret and unusual contract and not within the implied powers of the president of defendant corporation. The president of a corporation is by virtue of his office presumed to have authority to execute such ordinary contracts as are required in the everyday business of the company. Quigley v. Macqueen & Co., 321 Ill. 124; Bloom v. Vehon Co., 341 Ill. 200; Domestic Bldg. Assoc. v. Pasquale Guadiano, 195 Ill. 223; Nagle v. J. L. Hanson Co., 262 Ill. App. 160. Under this rule of law, obviously the president of the defendant corporation would be authorized to enter into the usual contract of employing plaintiff to do work as a carpenter and as a laborer. Counsel for both parties agree that this is the law, but defendant contends the contract was secret and unusual and therefore unenforceable.

We think the agreement in the instant case was unusual and to a great extent secret. It was certainly unusual for defendant’s two presidents to employ plaintiff at th.e wage of $13 a day and agree to pay him $15 weekly on account and agree to pay plaintiff the balance either in cash or in stock of defendant brewery when and if its business would be operated at a profit. Obviously, the president of defendant was not authorized to agree to give stock in the defendant company to plaintiff in payment of his wages. Such an agreement could not be entered into without action by the board of directors. We are also of opinion that the agreement as claimed by plaintiff was a secret agreement within the meaning of the law. There was nothing in the records of defendant, corporation to indicate anything was due and owing to plaintiff, but on the contrary the financial statements read at the stockholders’ meetings and the books of the company would indicate that he was paid in full. If the president of a corporation were authorized to make contracts of this character without action of the directors and without notice to or knowledge of anyone, the directors would not at any time know whether the company was solvent or insolvent or whether it was headed for bankruptcy. The law will not permit the making or enforcement of such contracts. Mayhew v. Edward G. Budd Mfg. Co., 258 Mich. 381; Massman v. Louisiana Mfg. Co., 177 La. 999, 149 So. 886.

The court did not err in entering judgment for defendant notwithstanding the verdict. Ziraldo v. Lynch Co., 365 Ill. 197; McNeill v. Harrison & Sons, Inc., 286 Ill. App. 120; Farmer v. Alton Bldg. & Loan Assoc., 294 Ill. App. 206; Synwolt v. Klank, 296 Ill. App. 79.

The judgment of the'municipal court of Chicago is affirmed.

Judgment affirmed.

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