text:
      L. L. Ness, Appellee, v. Gordon Bell, Appellant.
    Gen. No. 7,804.
    1. Judgments and decrees — nature of motion to correct error of fact. A motion to correct errors of fact aliunde the record in a court of record is in the nature of a declaration in a new suit.
    2. Discontinuance and dismissal — necessity of pleading to motion to reinstate cause. A party cannot question the sufficiency of a motion to reinstate a cause if he proceeds to a hearing thereon without demurring, moving to dismiss, or pleading to the same.
    3. Discontinuance and dismissal — on whom is burden of proving allegations of motion to reinstate cause. A party has the burden of proving the allegations of his motion to reinstate a cause unless he obtains a rule on his opponent to plead before entering on a hearing thereon.
    4. Discontinuance and dismissal — what affidavit will support motion to reinstate cause. A motion to reinstate a cause should be granted on an affidavit stating that a written appearance alleged to be required by rules of court was handed to a deputy clerk who failed to enter it on the docket; that the parties had agreed the case should be set down for a future" date which the adverse party had not observed; that movent had a meritorious defense and the judgment against him was not entered through his or his attorney’s fault, and on the lack of any evidence in opposition except the clerk’s statement that he did not recollect the matter.
    5. Appeal and error — necessity of including rules of nisi prius court in record. The rules of a nisi prints court cannot be reviewed by an Appellate Court unless they are a part of the record.
    6. Saving questions for review — how rules of trial court made part of record. Rules of a nisi prius court must be offered in evidence and be made part of the bill of exceptions in order to become part of the record.
    7. Appeal and error — necessity of serving copy of praecipe for record. A failure to give notice of the filing of a praecipe for the record does not prejudice the adverse party in his desire to bring the rules of the court into a record purporting to contain a complete copy of the bill of exceptions, in view of the requirement that they must first be introduced in evidence and made a part of the bill of exceptions.
    Appeal by defendant from the Circuit Court of Grundy county; the Hon. S. C. Stough, Judge, presiding.
    Heard in this court at the April term, 1927.
    Reversed and remanded with directions.
    Opinion filed September 27, 1927.
    J. W. Rausch and Warren E. Bull, for appellant.
    Cornelius Reardon, for appellee.
   Mr. Justice Boggs

delivered the opinion of the court.

Appellee obtained a judgment before a justice of the peace in Grundy county against appellant. for $300. Said cause was appealed to the circuit court, the transcript being filed on May 10, 1926.

On June 2,1926, the April term of said court was adjourned to court in course, and on September 10,1926, the June term was so adjourned. On December 22, the court made the following entry in this proceeding:

“Now, on this day comes the plaintiff by his attorney, Cornelius Riordan, and' it appearing to the court that the defendant, Gordon Bell, has failed to enter his appearance in writing in this behalf, therefore on motion of plaintiff’s attorney, it is ordered that said appeal be and the same is hereby dismissed at defendant’s costs for want of appearance in writing being filed by appellant, and that a procedendo do issue herein to the court below.”

Judgment was rendered against appellant for costs, and execution was ordered to issue therefor. On the same day an order was entered adjourning the September term until court in course.

On January 10, 1927, appellant filed a motion to set aside the order of December 22, 1926, and to reinstate said cause, etc. In support of said motion Warren E. Bull, attorney for appellant, filed his affidavit setting forth that on June 9, 1926, he handed to the deputy clerk of said court his appearance in writing as counsel for appellant, a copy of which said appearance he attached to said affidavit; that the clerk of said court “through a mistake and misprision, failed to place said appearance among the files in this cause, and failed to make any entry on the court records showing the filing of said appearance,” etc.; that neither he nor appellant knew of the entry of said judgment until the 5th day of January, 1927; “that within two or three days after the said trial before the justice of the peace below, the said Frank H. Hayes, then acting as attorney for the said L. L. Ness, and this affiant,' acting as attorney for the said Gordon Bell, agreed that this cause should be tried in the Circuit Court of Grundy County, Illinois, to which it had been appealed, before the first "jury to be called in said court after the said Gordon Bell returned to the State of Illinois, which return the said Gordon Bell expected to make early in the fall of 1926.' This affiant further says that the said L. L. Ness, the plaintiff in this cause, knew of the agreement of his. counsel, Frank H. Hayes, with this affiant.

“This affiant further says that no jury was called during either the June or September terms of the Circuit Court of Grundy County, Illinois, in the year 1926; that the said L. L. Ness procured another counsel than the said Frank H. Hayes to appear for him and secure the default entered against the said Gordon Bell in the above entitled cause, which entry of default was in violation of the agreement between his said counsel, Frank H. Hayes, and this affiant. ’ ’

Said motion set forth substantially the same facts as were stated in the affidavit. Notice was given appellee by service of a copy of said motion and affidavit.

It is insisted by counsel for appellee that, inasmuch as the term, at which. said suit was dismissed, was adjourned before the motion to vacate was made, the trial court at the following term had no jurisdiction to entertain said motion. In support of this contention, counsel cites Glaefke v. Western Electric Co., 145 Ill. App. 383. An examination of that case discloses that the suit there involved was dismissed on a general call of the docket. The court at page 385 says:

“The record also contains an order of the circuit court authorizing a general call of cases on the law docket. In this order appears the following provision: ‘It is further ordered that the cases so called for trial * * * may for good cause shown to the court, on notice to the opposite party or his attorney, be reinstated within ninety days from date of said order. ’ "

The instant case, at the time said order of dismissal was entered, was not on the general or trial call of the docket.

A motion to correct errors of fact in proceedings of courts of record is.the commencement of a new suit, in which the motion stands in place of a declaration. People v. Noonan, 276 Ill. 430; Rolenec v. Rolenec, 210 Ill. App. 329. Such motion is in the nature of a new suit, having for its object the determination of an error of fact aliunde the record. Madden v. City of Chicago, 283 Ill. 165, rev’g 205 Ill. App. 612; Smith v. Fargo, 307 Ill. 300.

Motions of this character are based on section 89 of the Practice Act (Cahill's St. ch. 110, ¶ 89) which provides :

“The writ of error coram, nobis is hereby abolished, and all errors of fact, committed in the proceedings of any court of record, and which, by the common law, could have been corrected by said writ, may be corrected by the court in which the error was committed, upon motion in writing, made at any time within five years after the rendition of final judgment in the case, upon reasonable notice.”

Under this section a misprision of the clerk in failing to enter and continue a motion to quash an attachment, which resulted in the entry of a judgment against the defendant, without negligence on his part, was an error in fact which did not appear of record, and warranted the setting aside of the judgment. Warner v. Wende, 214 Ill. App. 431.

Where a circuit clerk has failed to obey a rule of court requiring him to place on wrapper of case the name of the judge to whom the case has been reassigned, and, in consequence, a default judgment has been entered by a judge whose name is on file and to whom case had been assigned at prior time would also warrant the setting aside of the judgment. Holbrook v. Lawton, 207 Ill. App. 497.

In Domitski v. American Linseed Co., 117 Ill. App. 292, the court in discussing a question of this character at page 295 says:

“The Superior Court was from the facts above stated * * *, warranted in finding that the failure of the defendant to file a plea in time to prevent a default and judgment, was not caused by nor was it the result of any default or negligence on the part of the defendant or its attorneys, but was caused by and was the result of the fault and misprision of the clerk of the court in failing either to keep the declaration among the files of the case where it belonged or to make an entry or minute in the register kept by him showing the filing of a declaration in the case. ‘Rules of practice when established have the force of law.’ Lancaster v. W. & S. W. R. R. Co., 132 Ill. 492. The register must be regarded as a book which the clerk was by law required to keep.
“Chapter 67 of our Practice Act abolishes the writ of error coram nobis and provides that ‘all errors in fact committed in the proceedings of record and which by the common law could have been corrected by said writ may be corrected by the court in which the error was committed upon motion in writing. ’ ” This case was affirmed by the Supreme Court in Domitski v. American Linseed Co., 221 Ill. 161.

Appellee proceeded to a hearing on said motion without having demurred, moved to dismiss or plead to the same, and he is therefore not in a position to question the sufficiency of said motion. However, we are of the opinion and hold that, inasmuch as appellant did not obtain a rule on appellee to plead before entering on said hearing, the burden was upon him to prove the allegations of his motion.

So far as the record discloses, said motion was heard upon the affidavit filed, and the testimony of Frank D. Condon, clerk of said court. This witness was called by the court of its own motion, and testified, “I have no recollection of this matter. There was no name entered on the docket.” On the hearing, the court entered an order denying said motion. To reverse said order, this appeal is prosecuted.

The testimony of the circuit clerk does not amount to a denial that the entry of appearance in question was not delivered to his office for filing. The preponderance of the evidence is therefore clearly to the effect that such entry was in fact handed to said deputy clerk, but, through her neglect, it was not entered on the docket or placed with the files in said cause.

Said affidavit further recites an agreement between counsel representing appellant and appellee, to the effect that said case should be set down for trial on the calling of the first jury after the return of appellant to this State, and alleges that appellee had knowledge of such agreement. The affidavit states that appellant has a meritorious defense to said suit, and clearly discloses that it was not by his or his attorney’s neglect that said order and judgment was entered. Under the authorities above set forth, the evidence in this record was clearly sufficient to warrant the setting aside of said judgment.

It is also contended by counsel for appellant that the purported rule of said circuit court, requiring the entry of appearance of the parties or counsel representing them, was not offered in evidence and is not a part of the record in this case. Counsel for appellee concedes that it is not a part of the record, but has set out said purported rule in his brief and argument, and has caused to be filed in this court a bar docket purporting to be issued by the clerk of said court, containing the rules of said court, one of which is the one here in question.

The rules of a nisi prius court cannot be reviewed by an appeal court unless a part of the record. Davis v. Northwestern El. R. Co., 170 Ill. 595-599; Sixby v. Chicago City Ry. Co., 260 Ill. 478. In the latter case the court at page 483, in discussing a question of this character, says:

“Neither the Appellate Court nor this court takes judicial notice of the rules of practice from time to time in force in any other court than the municipal court, (Anderson v. McCormick, 129 Ill. 308,) and that is the rule of other courts. (3 Cyc. 179; 17 Am. & Eng. Ency. of Law, — 2d ed. — 923; Rout v. Ninde, 118 Ind. 123; Cherry v. Raker, 17 Md. 75.) ”

Counsel for appellee seeks to obviate the effect of his failure to offer said rules in evidence on the hearing on said, motion, by stating that no notice was given as required by statute, of the filing of the praecipe for the record, and states that if he had received such notice, he might have had the rules of court included in the record.

In order to have had said rules made a part of the record, they must have been offered in evidence and have been made a part of the bill of exceptions. The record purports to contain a full and complete copy of the bill of exceptions. Appellee therefore is not prejudiced by the fact that a copy of the prœcipe for the record was not served upon him. People v. Chicago Title & Trust Co., 266 Ill. 224-226; People v. Union Gas Co., 258 Ill. 193-195; Weil v. Mulvaney, 262 Ill. 195.

For the reasons above set forth, the judgment of the trial court will be reversed and the cause will be remanded, with directions to allow said motion to reinstate and redocket said cause, and to vacate the order awarding procedendo.

Reversed and remanded with directions.


source: Caselaw Access Project

author: Mr. Presiding Justice Taylor

license: Public Domain

text:
    H. G. Wolff Company, Complainant, and Frank P. Bauer Marble Company, Intervening Petitioner, Appellees, v. Josephine B. Gwynne et al., on Appeal of Broadway Halsted Building Corporation, Appellant.
    Gen. No. 31,335.
    1. Mechanics ’ liens — waiver as affecting subsequent clowns. A waiver under seal of the right to a mechanic’s lien for labor and materials furnished to date in no way affects the right to a lien for work or material-thereafter furnished.
    2. Mechanics’ liens — as additional remedy. A mechanic’s lien provides the building contractor for the enforcement of his claim a remedy additional to and not affecting the enforcement of his contract rights with the property owner by common law or equitable means.

      3. Mechanics’ liens — effect of waiver. A waiver of a mechanic's lien is not the giving up of a property right but merely of an added remedy.
    4. Mechanics’ liens — necessity of consideration for waiver. A waiver under hand and seal of the right to a mechanic’s lien cannot be repudiated on the ground of a want of consideration therefor.
    Appeal by defendant from the Circuit Court of Cook county; the Hon. Hugo M. Friend, Judge, presiding.
    Heard in the third division of this court for the first district at the October term, 1926.
    Reversed and remanded with directions.
    Opinion filed October 19, 1927.
    Rehearing denied and opinion modified November 4, 1927,
    Myer H. Gladstone, for appellant.
    Edward J. Kelley, for appellees.
   Mr. Presiding Justice Taylor

delivered the opinion of the court.

This is a suit by bill in equity and an intervening petition to enforce two mechanics’ lien claims. The matters involved were referred to Master in Chancery Doyle, and he made a report recommending that the claim of the complainant, the H. G. Wolff Company be allowed in the sum of $5,857, with interest, and that the claim of the intervening petitioner be allowed in the sum of $600, with interest. On July 14, 1926, the chancellor entered a mechanic’s lien decree in accordance with the master’s findings and recommendations. This appeal is therefrom.

It is the theory of the owners of the property, the defendants, that the decree is erroneous because the two lien claimants had executed and delivered waivers of lien which had extinguished their rights to a remedy under the lien statute. On the other hand, it is the theory of the two lien claimants — the complainant and the intervening petitioner — that there was no consideration for the alleged waivers, and that notwithstanding they were under seal, they were without consideration and, therefore, did not extinguish their rights to liens under the Lien Act, Cahill’s St. ch. 82.

As to the claim, of the complainant, hereinafter called the Wolff Company. On June 15, 1923, it made a written agreement with the defendant, the Broadway-Halsted Building Corporation, hereinafter called the owner, to do the plumbing, sewerage and gas fitting work pursuant to certain drawings and specifications and to the satisfaction of the architect. The price agreed upon was $19,000. It was to be paid in current funds, but only on certificates of the architect, and “as follows: During the satisfactory progress of the work, on or before the 10th day of each month, ......per cent of the value of the labor and materials wrought up to the first day of that month, as estimated by the architect, less the aggregate of previous payments.” It, also, provided as follows, “Payment to be made as follows: Seventeen ($17,000.00) thousand dollars in cash; two thousand and five hundred dollars ($2,500.00) in * * * bonds of the Broadway-Halsted Building Corporation, * * * same to apply on the final payment at completion of contract.”

The evidence shows, and it is admitted, that both claimants did all the work and furnished all the materials required of them under their respective contracts. In the course of the work by the Wolff Company certain payments were made by the owners upon certificates of the architects. The total contract price, by reason of changes agreed upon, as found by the master, was $24,099; and the total amount paid was $18,242, leaving a balance due of $5,857. On June 10, 1924, the Wolff Company was given an architect’s certificate for $2,500. It was presented for payment, and refused because the Wolff Company would not take certain bonds and cash. The master found that on June 23,1924, the Wolff Company was given an architect’s certificate for $3,357 for the balance due; that it was presented and refused; that the owner said if the Wolff Company would take $4,500' in bonds, the balance would be paid in cash; that no part of the amount of both certificates has been paid; and that the Wolff Company was entitled to a lien in the sum of $5,857.

As to the claim of Frank P. Bauer Marble Company, the intervening petitioner, hereinafter called the Marble Company. Under a written contract, dated July 5, 1923, with the owner, the Marble Company agreed to do certain work and furnish marble for $10,600. The work and material were done and furnished and paid for, except a balance of $600, for which, on October 2,1924, the architects gave the Marble Company an architect’s certificate. The master found that the Marble Company was entitled to a lien for $600.

As to the alleged waivers of liens. On March 11, 1924, the Wolff Company gave to the owner a document signed “H. G. Wolff Co.,” by the president, and with the corporate seal attached. It contained the following:

“We the undersigned, for and in consideration of the sum of One & no/100 Dollars, and other good and valuable considerations, the receipt whereof is hereby acknowledged, do hereby waive and release any and all lien, or claim or right to lien on said above described building and premises under the Statutes of the State of Illinois relating to Mechanics’ Liens, on account of labor or materials, or both, furnished up to this date by the undersigned to or on account of the said Broadway-Halsted Bldg. Corporation for said building or premises.
“Given under our hand and seal this 11th day of March, A. D. 1924.”

The evidence shows that the Marble Company gave the owner a similar document, under seal — it was dated June 7, 1923 — save that it recited a waiver or release of lien “on account of labor or materials, or both, furnished or which may be furnished” by the Marble Company. It is stated in the brief for the owner that “As the only question presented on this appeal concerns the error of the trial court in refusing to give effect to these waivers, a review of the evidence in the case not pertaining to this question is unnecessary and will not be attempted.”

The question arises, first, as to the Wolff Company, what right to a lien was waived by the document dated March 11, 1924, which contained the words, “do hereby waive and release any and all lien or claim or right to lien on * * * said premises under the Statutes * * * on account of labor or materials, or both, furnished up to this date.” We think it cannot be claimed, with reason, that there was any waiver of a right to a lien for labor and material furnished after March 11, 1924. But, was it a waiver of a right to a lien for anything furnished before that time?

The master based his recommendation on Chapman v. Richey, 188 Ill. App. 551, and the decree states that as “it is clear from the evidence that there was no bona fide dispute between the defendant and the respective mechanic’s lien claimants with reference to the balance due to them under their respective contracts,” the two claimants have liens of equal validity and priority upon the premises. The court held in Dymond v. Bruhns, 101 Ill. App. 425, that a waiver of a mechanic’s lien, which was under seal, cannot be questioned for want of a consideration. Counsel for the owners cite Crandall v. Willig, 166 Ill. 233, Corbett v. Cronkhite, 239 Ill. 9, in opposition, but both those suits were strictly equitable proceedings for specific performance, and did not involve waiver of liens under the lien statute. Substantially the same may be said of Mosby v. Chapin, 217 Ill. App. 442. In Kingsley v. Kingsley, 20 Ill. 203, the court said, “It is well settled, though the payment of a smaller sum cannot be pleaded in satisfaction of a larger sum, yet a release under seal may be so pleaded.” If in proceeding in equity generally a release under seal can be so pleaded, a fortiori, in a statutory proceeding such as this, where the waiver pertains only to one of several forms of remedy, and in no way modifies or extinguishes the actual obligation, a release or waiver of lien under seal is a bar to proceedings under the lien statute. The Mechanic’s Lien Law does not affect, and is not in derogation of, the common law or equity rights of the parties. It merely undertakes to provide an additional remedy; the contractual obligations of all parties still subsist to the full; their substantive rights remain and may be enforced as before. A waiver of a mechanic’s lien has merely procedural quality; it is not in its essence the giving up of a property right. Where, therefore, one solemnly declares by a document under his hand and seal that he waives his right to a particular form of remedy, offered by the lien statute, he is not entitled to repudiate it on the ground that he was given no consideration therefor.

In our judgment, therefore, the Wolff Company waived its right to a lien for all work and materials furnished up to March 11, 1924. As to just what work and material were furnished after March 11, 1924, the record does not show. The evidence of the witnesses on that subject is too vague to justify a definite finding. Further, there may have been other waivers of lien, similar to that of March 11, 1925, given by Wolff Company, which, following what we have said above, would prevent a lien for the work and material furnished after March 11, 1924.

As to the right of the Marble Company to a lien, it was waived on June 7, 1923, when it gave a written waiver under seal, “on account of labor or materials, or both, furnished or which may be furnished.”

The decree will be reversed as to the complainant, H. G. Wolff Company, and the cause remanded for further hearing in accordance with the reasoning of this opinion. As to the intervening petitioner, Frank P. Bauer Company, the decree, will he reversed, with directions to dismiss the petition for want of equity.

Reversed and remanded with directions.

Holdom and Wilson, JJ., concur.


text:
    National Surety Company, Appellant, v. Halsted Street State Bank, Appellee.
    Gen. No. 31,344.
    1. Banking — effect of negotiability of forged paper on bank’s liability in collecting. The negotiability or non-negotiability of drafts made out to policyholders of an insurance company is immaterial on the question of the liability of a bank which obtains payment from the company on the drafts through indorsements forged by a company agent.
    2. Negotiable instruments — effect of forgery of payee’s name. Forgery of the indorsement of the payee’s name on a draft, the payee being a real person, does not constitute the draft payable to a fictitious person and subject to the provision of Cahill’s St. ch. 98, ¶ 29, that instruments payable to fictitious persons are payable to bearer.
    3. Banking — authority of bank under forged indorsement. A forged indorsement by an insurance company agent of the name of the payee of a draft made to a policyholder gives the indorsee bank no authority as agent to pass title or for any other purpose.
    '4. Banking — liability for payment of draft on forged indorsement. A bank which collects drafts made out to insurance company policyholders and pays the proceeds to a company agent who forged the indorsements, without any proof of his authority, is liable for the full amount to the assignor of the company from whom it collected.
    5. Negotiable instruments — necessity of proving authority to indorse. An insurance company may hold a bank liable for money paid through it to a company agent on his forged indorsements of drafts made to company policyholders, upon failure of the bank to show the company ever held out the agent as having authority to make such indorsements.
    6. Assignments — when officer may assign corporate right of action. The assignment by a company of all its rights in ‘ ‘ cheeks ’ ’ with right to sue thereon, along with an assignment of a check and drafts, on which the assignor had paid out money because of forged indorsements thereon, covers a right to sue to recover on said drafts and cheek even though the assignment was only signed by the assistant secretary of the company.
    Appeal by plaintiff from the Municipal Court of Chicago; the Hon. Robert E. Gentzel, Judge, presiding.
    Heard in the third division of this court for the first district at the October term, 1926.
    Reversed and judgment here.
    Opinion filed October 19, 1927.
    George M. Weichelt and Dent, Dobyns & Freeman, for appellant.
    Gustav E. Beerly, for appellee; Dwight A. Pomeroy, of counsel.
   Mr. Presiding Justice Taylor

delivered the opinion of the court.

On November 20, 1925, the plaintiff, National Surety Company, brought suit against the defendant, Halsted Street State Bank, in the municipal court of Chicago for $1,065.35. There was a trial before the court, without a jury, and on July 23, 1926, judgment entered that the plaintiff take nothing by its suit. This appeal is from that judgment.

It is the theory of the plaintiff, the National Surety Company, that the defendant, the Halsted Street State Bank, having paid a number of drafts and one check —all of which were drawn by the Employers Indemnity Corporation — upon the forged indorsements of the payees’ names, and the plaintiff being the assignee and attorney in fact of the Employers Indemnity Corporation, the Halsted Street State Bank, defendant, is liable for the full amount of the drafts and check.

In the fall of 1924 and the spring of 1925, one Hawkins was employed by the Employers Indemnity Corporation, a casualty insurance company, which had offices in Chicago. He had charge of the business of the company in three States. No one in that territory had authority over him. He had the title of Field Manager, and received instructions only from the Home Office in Kansas City, Missouri. Solicitation of business, keeping track of the policies when issued, collecting accounts, and the settlement of claims , were in his charge.

Some time in the summer of 1924, Hawkins employed one Begbie to solicit health and accident insurance in his, Hawkins’, territory. Begbie did not office with Hawkins, but did his clerical work at home. The blank forms that were used were all furnished by the Home Office.

When a loss occurred, it was the custom to allow men like Begbie to see that proof of loss was completed and brought to Hawkins, together with the physician’s statement verifying the proof itself, and showing who the particular claimant was. Hawkins would check up that information and see that it tallied with the terms of the disability claimed, and whether the matter came within the terms of the policy. If it did, Hawkins would then issue a draft to the agent, such as Begbie, and allow the agent to deliver the draft to, and make a settlement with the claimant. That method was followed in order to create good feeling between the solicitor, such as Begbie, and his customers. The company relied upon Begbie, and men like him, to take the checks or drafts out to the policyholders. The forms were furnished to the agents, like Begbie, and when he, or the company, got notice from a policyholder of an injury, he, Hawkins, or the company, would give him, the solicitor, blanks and have him go out and see the customer, get proof of loss and a physician’s statement, and have the papers completed and mailed back to Hawkins. After Hawkins had issued a draft, notice was given, and proof of loss and claim were sent to the Home Office of the Employers Indemnity Corporation; then that company would issue a check to cover the draft that was outstanding.

Between October. 22, 1924, and January 10, 1925, eight different claims for losses were presented by Begbie to Hawkins, and in each instance Hawkins— being satisfied that the claim was valid and made on the part of a policyholder of the company — made out and signed a claim draft of the Employers Indemnity Corporation, payable to each of the insured by name. The particular claim drafts issued by Hawkins as special representative of the Employers Indemnity Corporation were as follows:

October 22, 1924 to Arthur H. Sparrey.. $ 40.00
October 28, 1924 to Anthony Mrskos.... 50.00
November 14, 1924 to George Diette..... 60.00
November 19,1924 to John Prooily...... 49.28
November 28,1924 to John Baturvich.... 140.00
December 31, 1924 to Lodowick E. S. Thomas ............................ 54.00
January 3, 1925 to Fredrick H. Gauger.. 185.65
January 9, 1925 to Leonard S. Haynes.. 213.56
January 10, 1925 Check to the order of Otto J. Norgard in the sum of........ 192.86

In form, the claim drafts were practically all alike, save as to amount. The one dated October 22, 1924, to Sparrey for $40, which is here given as a sample, was as follows:

“Claim Draft
Employers Indemnity Corporation Chicago, Illinois, Oct. 22, 1924 No. 5104 When receipt on reverse side is properly signed by insured
Pay to the
Order of ARTHUR M. SPARREY $40.00
FORTY DOLLARS
Payable through
Fidelity Nat’l Bk. and Tr. Co. Val H. Hawkins
Kansas City, Mo. Special Representative.”

On the foregoing there was a receipt as follows:

“Received of the Employers Indemnity Corporation * * * the sum of * * * in full compromise, satisfaction, release and discharge of all claims, I myself * * * now have or may hereafter have against said Employers Indemnity Corporation under its policy * * * (issued to me) for or on account of disabilities sustained by me, beginning on or about October 7, 1924, and for any * * * loss or disabilities * * * sustained or received by me up to this date.”

All the drafts above mentioned — and the check dated January 10, 1925, which latter was signed by one Woodhead, an authorized officer of the Employers Indemnity Corporation, payable to the order of Otto J. Norgard for $192.86 — were delivered by Hawkins to Begbie, to be delivered to the claimants in payment of their claims, which had been submitted to him, Hawkins.

Begbie presented each of the above-mentioned drafts and the check to the defendant, Halsted Street State Bank. In each case Begbie received a receipt for the draft from the bank, and the bank sent the draft on for collection, and after the bank collected the full amount of each draft, and upon presentation of the appropriate receipt, Begbie was paid in cash, and the receipt taken up.

• After the defendant had paid the drafts and the check to Begbie, it ivas discovered that all the signatures of the various payees, all of whom were policyholders, had been forged by Begbie.

On October 29, 1925, the Employers Indemnity Corporation, by one McGinnis, assistant secretary, made a written assignment, which recites that in consideration of the payment of $812.86, by the National Surety Company, under a certain forgery bond, to the Employers Indemnity Corporation, it does sell and assign to the National Surety Company, “the following checks” (reciting them), “The name of the payee having been forged thereon and said checks having been delivered to the National Surety Company for the purpose herein mentioned.” The assignment also contained the following: “We do hereby appoint said National Surety Company our Attorney-in-fact irrevocable in the premises to proceed in its own name, in its own way, at its own expense and without recourse to us, to recover by suit or otherwise upon said check any and all right, claim, title or interest therein,” etc.

The substantial question in the case is, whether the defendant, the Halsted Street State Bank, having received the amount of the drafts and the check from the Employers Indemnity Corporation, on Begbie’s forged indorsement of the names of the payees, all of whom were policyholders, assumed the risk of the authority of Begbie, the indorser, not only to indorse the drafts and check, but to appropriate unto himself the proceeds.

It is contended for the defendant that the drafts were not negotiable. According to the law, in our judgment, it does not make any difference here whether the instruments were negotiable or non-negotiable. The plaintiff has sued on a statement of claim which recites that the defendant procured the money from the Employers Indemnity Corporation by means of forged indorsements, as was the case, as stated by Mr. Justice Cartwright in Gustin-Bacon Mfg. Co. v. First Nat. Bank of Englewood, 306 Ill. 179. See also National Union Fire Ins. Co. v. Mellon Nat. Bank, 276 Pa. 312.

It is contended that the instruments were payable to fictitious persons, and, therefore, should be considered, under the Negotiable Instruments Act, as payable to bearer. Section 9, Cahill’s St. ch. 98, ¶ 29, of the act provides that,

“The instrument is payable to bearer * * * person known by the drawer or maker to be fictitious or non-existent or of a living person not intended to have any interest in it.” In the instant case, the instruments were not drawn to the order of fictitious or non-existing persons; on the other hand, they were drawn to the order of real persons from whom the drawer of the drafts, or the company, had negotiated insurance, and were drawn to pay the losses suffered by the insured payees. Further, as said in National Union Fire Ins. Co. v. Mellon Nat. Bank, supra:
“In addition to this, the fictitious or- nonexisting persons must have been known to the drawer of the drafts to be such, before the result contended for could operate on the" instruments, but the drawer knew no such thing, but just the opposite, that each of the payees was a real, existing person named as the insured in a policy of insurance issued by the drawer of the draft.”

It is contended for the defendant that Begbie, as and incident to his business of soliciting insurance, had authority to" make indorsements. It must be borne in mind, however, that Begbie did not forge the name of the drawer, his employer, but those of the payees, and that as the indorsements were forgeries of the names of the payees, they were made without any authority whatever from the payees, who were insured and beneficiaries under the policies. There is no evidence whatever that Begbie had any authority to indorse the payees’ signatures. Such being the case, the forged signatures were without any legal effect, and in no way operated to constitute the bank an agent, either to pass title, or for any other purpose. In our judgment, the bank’s liability is based upon the fact that under the law it dealt with Begbie at its peril, and was in duty bound to find out, not only the extent of his agency, but the extent of his authority. And having accepted and collected the drafts and given the proceeds to Begbie without any evidence whatever of his authority, and the signatures being forged, it is liable for the full amount of the money paid out by the assignor of the plaintiff. Gustin-Bacon Mfg. Co. v. First Nat. Bank of Englewood, supra.

In our judgment section 23 of the Negotiable Instruments Law, Cahill’s St. ch. 98, ¶ 43, applies, and the evidence on behalf of the defendant does not show that the Insurance Company was precluded from setting up the forgery for want of authority. There was no evidence in the record even tending to show that the Employers Indemnity Corporation even held out Begbie in any way to the defendant, the Halsted Street State Bank, as having any authority to make the indorsements in question. There is no evidence that the Employers Indemnity Corporation had any account with the defendant bank, or ever had any business dealings or communication with it, or that the Employers Indemnity Corporation ever knew of the existence of the defendant until it made a demand upon the defendant for the return of the money collected under fraudulent indorsements. Bartlett v. First Nat. Bank of Chicago, 247 Ill. 490; Crahe v. Mercantile Trust & Savings Bank, 295 Ill. 375; Independent Oil Men’s Ass’n v. Fort Dearborn Nat. Bank, 311 Ill. 278; Kepligalla v. National Bank of India (1909), 2 K. B. 1010.

Some contention is made on the part of the defendant that the instrument purporting to be an assignment by the Employers Indemnity Corporation, to the plaintiff, the National Surety Company, was not valid. An examination of the instrument in question shows that the Employers Indemnity Corporation sold and assigned to the National Surety Company the instruments in question and for the purposes therein mentioned; and, further, that under the assignment, the National Surety Company was appointed attorney in fact “to proceed in its own name, in its own way, at its own expense, and without recourse to us, to recover by suit, or otherwise, upon said checks, any and all right, claim, title or interest therein.” In our judgment, the assignment was ample, and, even though signed by.the assistant secretary, was sufficient and binding.

The judgment, therefore, will be reversed and judgment entered here, in favor of the plaintiff, in the sum of $903.80, being the principal sum of $851.79, together with interest at the rate of five per cent per annum, from July 23, 1926, to date.

Reversed and judgment here.

Holdom and Wilson, JJ., concur.


text:
    Atwell Printing & Binding Company, Appellant, v. Prairie Farmer Publishing Company, Appellee.
    Gen. No. 31,435.
    1. Evidence — competency of post office receipts to show mailing date. Receipts, made in the regular course of post office business, which show among other things the mailing date of magazines, are competent against a printer to show that he mailed the magazines later than his contract with the publisher provided.
    2. Contracts — poor printing as ground for cancelling. Even though it is not sufficient ground for cancellation of a contract for printing that photostatic copies of some of the work discloses that it was not done in a reasonably good and workmanlike manner, this fact with the evidence on other subjects involved will be considered and given weight in determining whether the printer made out a cause of action against the publisher with whom he had the printing contract.
    3. Contracts — meaning of words “ordinary editions” in printing. In a contract between a magazine publisher and his printer, the words "ordinary editions” refer not only to a magazine of the same number of pages as the magazine had at the time the contract was made but also the magazine as later expanded to more pages.

      4. Contracts — binding force of requirement as to printing date of magazine. A clause in a contract between a magazine publisher and his printer that the printing should not be finally completed until a certain date in order that important late matter might be added, is so far binding that failure of the printer to do so warrants cancellation of the contract by the publisher.
    5. Contracts — competency of papers used after notice of cancellation as bearing thereon. Original manuscript, dummy pages and page proofs, used by a printer in preparing a magazine for the publisher after the latter had given notice of cancellation of the contract between them, were competent in view of the proofs being typical average proofs and the papers being used by plaintiff within the 60 days allowed after notice of cancellation, under the contract, for continuing work thereunder.
    6. Contracts — default as forbidding recovery for breach. A printer who fails to provide a magazine publisher with the service contracted for cannot recover for the latter’s breach of the contract between them.
    7. Contracts — what default does not destroy right to cancel. Failure of a magazine publisher to co-operate with his printer as required by their contract, in such matters as reading proof, furnishing proper paper, and his act ,in changing the magazine to a weekly, constitute so insubstantial a default under the contract as not to destroy the publisher’s right to cancel the contract for the printer’s failure to furnish the contracted service.
    8. Contracts — effect of partial performance on right to cancel. The fact that a printer has partly performed his contract for service to a magazine publisher does not prevent the latter from cancelling the contract for failing fully to furnish the contracted service.
    9. Damages — bearing of losing contract on amount of. A printer cannot obtain damages for a magazine publisher refusing to permit him under their contract to complete magazine issues during the 60 days allowed him after the publisher had cancelled the contract for the printer’s failure of service thereunder, in view of the evidence and the printer’s own admissions showing the venture was a losing one to the printer.
    10. Contracts — what proof necessary to recover for extra work. After a magazine publisher has paid for what his contract with his printer expressly calls for, he cannot be made liable for extra service furnished, unless the printer proves either a mutual agreement as to the prices to be paid or the fair and reasonable value of such extra service.
    11. Evidence — materiality of shop books to show balance due. A printer’s shop books, purporting to show charges against a publisher for work done, but not the payments made nor the balance due for work done in addition to what their contract called for, are not proof that there was anything due on such extra work.
    12. Appeal and error — when receiving improper evidence by judge harmless. Reception of improper evidence will be presumed not to have influenced a judge sitting without a jury, if there is sufficient proper evidence to justify the judgment.
    13. Contracts — breach of binding requirements as ground, for cancellation. A breach by a printer of his contract with a publisher in regard to binding requirements such as observing mailing dates, is in the absence of waiver sufficient ground for the latter’s cancelling the contract.
    Appeal by plaintiff from the Superior Court of Cook county; the Hon. Franklin H. Boggs, Judge, presiding.
    Heard in the third division of this court for the first district at the October term, 1926.
    Affirmed.
    Opinion filed October 19, 1927.
    Rehearing denied November 4, 1927.
    Wisner & Walsh, for appellant.
    Schumacher & Murphy, for appellee; Thomas E. Murphy, of counsel.
   Mr. Presiding Justice Taylor

delivered the opinion of the court.

On February 3, 1920, the Atwell Printing & Binding Company, a corporation, the plaintiff, claiming that the Prairie Farmer Publishing Company, a corporation, the defendant, had broken a 5-year printing contract, brought suit in the superior court for $250,000 damages. There was a trial before the court, without a jury, and, on July 13, 1926, the court found the issues for the defendant, and entered judgment against the plaintiff for costs. This appeal is from that judgment.

The plaintiff, The Atwell Printing & Binding Company, was in the printing business, and located at 732 Sherman Street, Chicago. From 1916 on, it had printed from 75 to 80 different publications. In 1916 it published county directories for the defendant. The defendant, which published a magazine called the Prairie Farmer, was located in Chicago, and it was bought by one Butler in 1909. Between the fall of 1916 and November, 1917, negotiations took place between one Atwell, president and manager of the plaintiff, and Butler, president of the defendant, in regard to having the Prairie Farmer, a farm publication, composed, printed and mailed by the plaintiff. At that time the Prairie Farmer was and had been published fortnightly, and it was desired by its owner, the defendant, that it should become a weekly.

On November 15, 1917, after nearly a year of negotiations, the two parties, plaintiff and defendant, entered into a written contract, under seal. It provided for the composition, printing, binding and mailing fortnightly of the Prairie Farmer by the plaintiff for a period of five years, and for the payment by the defendant of certain scheduled prices for the plaintiff’s work. Nothing, however, was done under that contract. Gregory, vice president of the defendant, testified that that contract was only a temporary one, made for the purpose of assuring the plaintiff that it could go ahead with the purchase of a rotary press; that Atwell said he wanted the contract for the purpose of showing it to the Hoe people and getting credit on the press.

On December 31, 1918, the contract, which is the basis of this action, and which the plaintiff claims was breached by the defendant, was made. It contains the following material provisions: The defendant contracts with the plaintiff “for the composition, printing, binding and mailing of the Prairie Farmer every other week or weekly by the party of the second part * * * for a period of five (5) years, beginning with the issue of January, 1919.” The plaintiff “agrees to install a special magazine Web press * * * with a capacity of sixty-four (64) pages and * *• * that the defendant shall have the first, call on said press * * * for printing its editions * * that the contract shall begin when the “press is installed and running, and said service on said Web press is to be to the satisfaction of the” defendant. “The closing time of forms of ordinary editions shall be at noon on Monday except two pages which can be held open until Tuesday noon.” The plaintiff “agrees to start mailing Wednesday and have the edition all in the mail by noon on Friday. All papers printed before noon of each day will be delivered to the postoffice before six P. M. the same day. On Thursday mailers will work all night if necessary to get papers mailed. An extra delivery to the post-office will be made by” the plaintiff “on Thursday night, leaving its shop not later than ten P. M.”

“It is understood that in making the decreasing rates on volume of circulation, as hereinafter set forth, the Prairie Farmer or the party of the first part, will not demand more than 18 hours per 24 hours press run, and as size of run increases, additional time will be allowed on the above basis by going to press earlier in the week, so that the party of the second part shall not be forced to pay price and a half for overtime to take care of increased circulation. However, it is the spirit of this contract that both parties will work together for the good of the service and said party of the first part agrees to co-operate with the party of the second part in the matter of furnishing copy and O. K.’ing forms to the best advantage of the publication and with as little delay as possible and the party of the second part agrees that it will always handle the circulation with as few hours set back as possible.”

In paragraphs 6 and 7, prices for composition, printing, binding, trimming and mailing are set forth.

The plaintiff agrees to mail the magazine for $1.25 a thousand. “The tag system is to be employed and the tags are to be furnished” by the defendant. The plaintiff agrees to furnish necessary storage for defendant’s white paper, averaging not more than a carload. The defendant agrees to pay the plaintiff “on the first of each month, for services performed during the previous month.”

“It is the essence of this contract that the work shall be done by” the plaintiff “in a thorough and workmanlike manner and to the satisfaction of” the defendant, “and if said work is not done to the satisfaction of” the defendant “it can cancel this contract by giving sixty (60) days notice in writing, of its intention so to do.”

The contract was signed, “(Seal) The Prairie Farmer Publishing Company by B. D. Butler, President. (Seal.) Atwell Printing & Binding Co., by G. M. Atwell, President.”

The Web press, provided for in the contract, and which had been ordered by the plaintiff in October, 1917, was received by it, on November 11, 1918, and was installed and ready for use on January 3, 1919. Its cost installed was about $55,000. Between January 11 and June 28, 1919, the plaintiff did the press work, binding and mailing, but not the composition. Beginning with June 28, 1919, the plaintiff did, also, the composition.

In February, 1919, the plaintiff, owing to an increase in union wages, its shop being on a union basis, asked the defendant for an increase in certain prices for service of 10 per cent. The defendant acquiesced and paid on the increased scale. In August, 1919, an increase of 10 per cent for composition was asked by the plaintiff, and on August 27, 1919, the defendant wrote to the plaintiff that it would agree to an increase of 15 per cent over the February figures, barring certain extras. In that letter the defendant said it would pay for alterations of original copy which it, the defendant made, but not for corrections the result of its instructions not being followed. In that letter, the defendant further stated that it would like to take up with the plaintiff “the matter of the paper being late, because this entails a severe loss to us which we believe should call for a penalty on your part.” Notwithstanding that letter, it was agreed, upon the trial, by counsel for the defendant that after August 22, 1919, bills were rendered by the plaintiff according to a schedule, dated August 22, 1919, which showed various increases in prices.

In October, 1919, the magazine was published weekly, for the first time. Theretofore it had been published fortnightly.

The circulation of the Prairie Farmer on January 11, 1919, was 108,998, of 84 pages each, and gradually increased, until, on October 4, 1919, it was 131,895, of 64 pages each. The first weekly issue was on October 11, 1919, and numbered 134,443 copies of 72 pages each. Between that and December 27, 1919, both inclusive, the weekly issues varied from the figures of October 11 to 142,777 with 48 pages each.

On November 19, 1919, the defendant, through Butler, served a written notice of cancellation of the contract on the plaintiff by delivering to Atwell, personally, a document dated November 13, 1919, which contained the following:

“Paragraph Eleven (11) of the contract entered into between the Prairie Farmer Publishing Company and your Company under date of December 31, 1918, reads as follows:
‘It is the essence of this contract that the work shall be done by the party of the second part in a thorough and workmanlike manner and to the satisfaction of said party of the first part, and if said work is not done to the satisfaction of said party of the first part that it can cancel this contract by giving sixty (60) days notice, in writing, of its intention so to do.’
“You are hereby notified that the work of the At-well Printing and Binding Company has not been done in a thorough and workmanlike manner and to the satisfaction of the Prairie Farmer Publishing Company, and by reason thereof, the Prairie Farmer Publishing Company elects to cancel this contract within sixty (60) days from this date, and hereby notifies you of its intention so to do.”

The last issue of the Prairie Farmer printed by the plaintiff was that of December 27, 1919. After that, no copy was furnished by the defendant.

The question at the trial was whether on November 19, 1919, when the notice of cancellation was served, the evidence sufficiently showed that the plaintiff had fulfilled its obligations — under the written contract of December 31, 1918 — to such an extent that it was not chargeable with a legal breach of the written contract, nor the defendant entitled to cancellation. Among the findings of fact presented by the plaintiff, and which were refused by the trial judge, are the following: That the defendant did not co-operate with the plaintiff so as to aid it in performing those things required of plaintiff for performance of the contract of December 31, 1918; that the size in number of pages of “ordinary editions” of the Prairie Farmer at or about the time of making the contract was approximately 36 pages; that performance by plaintiff of its obligations under the contract of December 31, 1918, was such that defendant had no just cause of dissatisfaction; that the contract of December 31, 1918, was not a sealed instrument; that plaintiff substantially performed the contract of December 31, 1918.

The trial judge, also, refused to hold that the defendant by refusing to permit the plaintiff to perform under the contract of December 31, 1918, after publication of issue of December 27, 1919, breached the contract; that the notice dated November 13, 1919, did not constitute a valid termination of the contract of December 31, 1918, so as to relieve the defendant of further obligations thereunder; that work required of the plaintiff under contract of December 31, 1918, was done in a thorough and workmanlike manner.

In the trial of the case, it became necessary for the trial judge to consider whether the plaintiff, or the defendant, or both, were in default, and in doing so, to determine what the terms of the contract were and, also, what construction the parties themselves by their conduct put upon it. All those matters he resolved, and ultimately found that the “defendant had the legal right'to, and did cancel contract of December 31, 1918. ’ ’ The record in the case is voluminous, covering nearly 2,500 typewritten pages, so that it is not practicable to set forth here anything like a complete analysis of all the testimony and exhibits bearing on the question of fact which' were passed upon by the trial judge.

For reversal, it is urged by the plaintiff that if it failed, as a matter of fact, to comply with the terms of the contract, it. was owing to derelictions upon the part of the defendant. The chief subjects of dispute are the following: That if the plaintiff did not mail the magazines according to contract time, it was owing to the fact that the defendant was changing its mailing system from an old to a modern system and was late in furnishing tags; that the proof was read in page form instead of galley form; and that the poor quality of the paper furnished by the defendant was responsible for the “muddy” appearance of the magazine. It is, also, urged as a matter of procedure that the trial judge erred in ruling upon certain matters of evidence.

As to the subject of mailing. The contract provides as follows:

“The closing time of forms of ordinary editions shall be at noon on Monday except two pages which can be held open until Tuesday noon.” The plaintiff “agrees to start mailing Wednesday and have the edition all in the mail by noon on Friday. All papers printed before noon of each day will be delivered to the postoffice before six P. M. the same day. On Thursday mailers will work all night if necessary to get papers mailed. An extra delivery to the post-office will be made by” the plaintiff “on Thursday night, leaving its shop not later than 10 P. M.”

The contract provided, also, as to mailing, that the “Tag System” was to be employed, and the tags furnished by the defendant.

The evidence of one Edwards, assistant advertising man for the defendant, is that he knew personally that not all of the issues were in the mail by noon Friday; that he spoke to Atwell about the magazines being mailed late; that he spoke to him about “probably” half the issues; that he told Atwell they would not get to the subscribers on time; that on several occasions Atwell said they were late because the folder broke down; that he, the witness, had to do with the mailing, and from his personal knowledge, there was late mailing as to one-half of the issues; that he distinctly remembered they were late by seeing them mailed late; that he remembered being at the plaintiff’s plant and seeing the magazine mailed on Friday, Friday afternoon, and on Saturday.

The evidence of one Naden, who had charge of mailing for the defendant, is that the regular mailing lists were sent to the plaintiff in rolls; that the first 40 per cent were sent over to the plaintiff on Tuesday, about 40 per cent on Wednesday, and the balance before Thursday noon; that that percentage might vary a few per cent; that the lists of new subscribers that were received on Wednesday and Thursday, and which were about 430, were sent over on Friday morning ; that the names of new subscribers received before were sent in the regular mailing lists; that in 1919, he was at plaintiff’s plant, two or three times an issue, to check up on the running of the edition and the process of mailing; that he saw the plaintiff during mailing of the regular edition on Saturday afternoon and talked to Fletcher, plaintiff’s superintendent, about it, and asked him why they were late, and Fletcher said, he thought they had been mailed; that he saw magazines being bound, stretched and trimmed on Saturday afternoon; that the defendant used the Belknap system of mailing up to July 1, and then began to introduce the Pollard-Allen system; that the circulation in January, 1919, was about 100,000, and on December 27 was about 150,000; that the plaintiff was at work stretching and binding on regular editions on Friday afternoon on about 40 per cent of all the issues.

On August 27, 1919, in a letter by the defendant to the plaintiff, which was an answer to one of the plaintiff, the defendant, after stating that it would agree to an increase of 15 per cent over certain February prices, the following occurs: “We would like also to take up with you at as early a date as possible the matter of the paper being late because this entails a severe loss to us which we believe should call for a penalty on your part.” A number of witnesses for the plaintiff testified on the subject of mailing. Some of their evidence is in conflict with that of Edwards and Nader; and some of it to the effect that mailing was delayed for want of tags, which, of course, is an obvious admission that there, at least, was delay.

In addition to the testimony referred to, there was offered in evidence by the defendant certain post-office documents signed by the postmaster, entitled Exhibits H-1 to H-197. They were in the nature of receipts for postage, and contained the name of “Prairie Farmer, ’ ’ date of issue, weekly or otherwise, per cent of advertising, date of mailing, zone, poundage, rate of postage, and amount of postage. They showed that in the case of many copies of many issues the delivery for mailing was late. It is contended, however, for the plaintiff that the receipts were not competent to show the date and hour of mailing. We are of the opinion that they were competent. They were documents made out under the postmaster’s supervision, that is, in the course of the regular work of the office. The process at the post office, from the receipt and weighing of the magazines to the final issue of the receipt, was quite elaborate, but the date of delivery by the plaintiff to the post office was an essential fact, and, apparently, regularly recorded on each receipt. A receipt without a date would be, from a business standpoint, an incomplete record. Of course, after they were introduced, the plaintiff would have the privilege of undertaking to show that they were untrue.

None of the cases cited for the defendant involved facts similar to those here considered, and so are not in point. On this subject, generally, however, we are of the opinion that the evidence, even without the receipts, was such that we are not justified in overriding the finding of the learned trial judge who, of course, saw the witnesses and heard- the testimony. There was ample evidence tending to show that mailing of many copies of many issues was unreasonably late, and was not caused by the defendant.

It is contended for the plaintiff that the inferior appearance of some of the magazines, which, according to evidence for the defendant, had a muddy appearance and showed certain longitudinal lines, was owing to the poor quality of the paper furnished by the defendant. It is the evidence of Edwards that about 50 per cent of one issue called the Farm Power issue, which was put out in February, had muddy and smeared covers; that twice he talked with Pletcher about it; that it was corrected temporarily but later “run” the same as at first. The evidence of Gregory is that on quite a number of the issues in 1919 the inking was not good, that some was light and some heavy; that quite a number of issues showed longitudinal hair lines on a number of pages; that he suggested a remedy to Atwell but the latter said it would slow up the press and would not help the condition; that he asked Atwell to use a “smut roll,” but he objected that it would slow up the press. On the other hand, there is testimony by one O’Hagen that the paper furnished by the defendant was brittle, and that the longitudinal lines were a defect in the paper. Photostatic copies of pages of certain issues were introduced in evidence by the defendant, and it is quite obvious to one not an expert that some of the printing was not done in a reasonably good and workmanlike way. In our judgment, we would not be justified in holding that such work was in full compliance with the contract. It is true that if this were the only ground for cancellation, we should be inclined to hold that it was insufficient; however, it is, nevertheless, something to be considered and given weight in conjunction with the evidence on other subjects involved in determination of the question whether the plaintiff made out a cause of action.

It is contended for the plaintiff that the words, “ordinary editions,” in paragraph numbered four in the contract, which is, in part, as follows, “The closing time of forms of ordinary editions shall be at noon on Monday except two pages which can be held open until Tuesday noon,” had reference to editions approximately similar in size and number of copies to certain figures mentioned by Atwell in a letter of December 13, 1916, to Butler. The trial judge refused to so hold, and we think properly. There is nothing whatever in the contract, and no evidence outside of it, that tends in any substantial way to establish the plaintiff’s contention; in fact, if early negotiations are to be considered, the phrase “ordinary editions,” meant regular editions even of increased size. That was what the new press in part was put in for.

As to the words, “The closing time of forms of ordinary editions shall be at noon on Monday except two pages which can be held open until Tuesday noon. ’ ’ The purpose of holding open two pages until Tuesday noon was to give the defendant an opportunity to put in late news and market reports. The evidence of Gregory is that he told Atwell the defendant’s weekly competitors were able to get in late news and market reports, and that the defendant wanted to put in similar late news and market reports; that it was essential to get the magazines in the mail before noon on Friday so as to reach the rural carriers by Saturday morning; that if the magazines arrived on Saturday, they would be delivered Monday or Tuesday, and advertisements would be decreased accordingly. One Howard, a foreman for the plaintiff, testified that pages were not held open to Tuesday noon to receive late news. Apparently, this is not denied.

In September, 1919, Atwell wrote a long letter to Butler, which is in reality a statement of the difficulties the plaintiff was laboring under in trying to fulfil the terms of the contract, and an appeal to the defendant, in reality, to forego some of the contract’s requirements. That letter, practically demonstrates that the plaintiff was not able to go on and comply with the contract and must have indulgence; that the plaintiff had contracted to do more than, in fact, it could accomplish. It contains some criticism of the conduct and requirements of the defendant, but in its essence, it is a plea for concessions from what the contract actually prescribes. The letter contains this, “We cannot be expected to do the impossible, mechanical things and all kinds of overtime for service. One of the features we took up at one time, was holding a page till Tuesday. This cannot be done, with hand-binding and be in the mail as early as you wish Friday. ' * * * There are limits to mechanical impossibilities, and to cost possibilities at a given price.” There is considerable evidence on this subject. And in our judgment, bearing in mind the words of the- contract, which undoubtedly were binding, the evidence shows a failure to comply therewith.

It is contended that the court erred in admitting in evidence certain “K” exhibits offered by the defendant. Those exhibits consisted of original manuscript, dummy pages, and certain page proofs of the issues of December 20 and 27, 1919. It is argued that as the notice of cancellation was served on November 19, 1919, what was done by the plaintiff thereafter was incompetent. Inasmuch, however, as they came from the possession of the plaintiff, and Gregory testified that they were typical average proofs as far as corrections were concerned, and were used or produced within the 60 days’ time given the plaintiff under the notice, we think they were competent. Moreover, even if incompetent, we think the evidence in the case was such that we would not be justified in overriding the ultimate finding of the trial judge.

It is contended for the plaintiff that as the contract contained the words, “However, it is the spirit of this contract that both parties will work together for the good of the service, and said party of the first part .(the defendant) agrees to co-operate with the party of the second part in the matter of furnishing copy and O. K.’ing forms to the best advantage of the publication and with as little delay as possible, and the second party agrees that it will always handle the circulation with as few hours setback, as possible,” and as the evidence shows that according to the claim, of the plaintiff it was the failure of the defendant reasonably to co-operate in the work of getting out the magazine, there was no breach by the plaintiff; that the evidence shows a-fatal failure of co-operation by the defendant on a number of matters, such as incompleteness of dummy pages; missing display ‘ ‘ ads ’ ’; failure to read galley proof; mailing; change to weekly; closing date; no pages indicated; furnishing copy; alterations and corrections; quality of paper furnished, and payments for work. There may be some evidence of difficulties from time to time between the parties, and some evidence of a mutual failure of reasonable co-operation, still, as the plaintiff was in default as to material parts of the contract, as we have stated above, the law does not permit it in such a situation to recover for the defendant’s derelictions. One cannot recover for a breach of contract while in default himself. Purcell Co. v. Sage, 200 Ill. 342. But it is argued that the defendant had no right to cancel the contract if it was at the time in default. We do not find, however, that the conduct of the defendant was such as to destroy its right to cancellation; what it failed to do, bearing in mind the express terms of the written contract, was too insubstantial. There is argument for the plaintiff that the purchase and installation of the new press constituted and implied in. some way a consideration given to the defendant. The contract, however, provided that “The terms of this contract shall commence when said Web press is installed and running. ’ ’ Atwell testified that the press arrived November 11, 1918, and was ready on January 3, 1919. The contract was made December 31, 1918. It is true that when the press was in and running that the plaintiff had executed the contract to that extent. But the defendant is now making no claim to the press. At all times it has been the sole property of the plaintiff. The contract was in many ways executed, in part, from the time it was made until cancellation, but it does not follow that execution in part by the plaintiff prevented cancellation. It was chiefly a contract for service, and as service was rendered by the plaintiff and paid for by the defendant, the contract to that extent was fulfilled. That the contract provided as a prerequisite to service the putting in and use of the new press did not give the plaintiff any other rights than those expressly provided for in the contract, which were for service alone. Some contention is made for the plaintiff that the terms of the contract as to prices to be paid by the defendant were changed by subsequent agreement of the parties. We have examined the evidence on that subject, and agree with the trial judge in his refusal to hold that the contract sued upon was not legally modified on August 22, 1919, so as to bind the defendant thereafter.

It is contended for the plaintiff that the defendant was liable, in any event for profits during the 60-day period; that is to do the work until January 3, 10 and 17,1920, and, as a consequence of the defendant’s failure to permit the plaintiff to do the work on those editions, it was entitled to damages.

The evidence, however, in our judgment, does not sufficiently prove that the plaintiff suffered any pecuniary loss as the result of being prevented from working on those three issues. The evidence on the subject of alleged profit and loss is somewhat voluminous, but after carefully examining it, and particularly in conjunction with the written statements of Atwell sent to the defendant, in the course of the year 1919, which intimate very strongly that the contract, if carried on pursuant to its terms, was a losing one to the plaintiff, the conclusion is inevitable that it fails to show enough to justify an affirmative finding of damages for the plaintiff for the loss of service on the three issues mentioned.

Under the fourth count of the declaration, the plaintiff claims $4,454.84 for extra work and labor performed in the year 1919 on various issues of the Prairie Farmer, and for which, it is alleged, the defendant has refused to pay. The extra charges, according to plaintiff’s claim, are for composition costs due to defendant’s delay in furnishing copy; additional alterations due to defendant’s negligence in correcting proof; utilization of half-rolls, when full rolls should have been furnished; handling and storage of excess amounts of unused paper and handling of poor quality paper; and extra press work and overtime due to defendant’s delay in O. K.’ing form and making corrections. It will be seen, by considering the written contract between the parties, that all these items are for matters which it is claimed by the plaintiff grew up as the result of some mutual modification of the contract; or as the result of a failure of co-operation by the defendant. As the evidence stands in the record, we are of the opinion that the plaintiff failed to prove it was entitled to this claim. The defendant paid for what the contract expressly charged it with; and so if the plaintiff furnished anything outside of what the contract expressly covered, it was necessary for the plaintiff to prove either some mutual agreement as to the prices to be paid, or to show by evidence the fair and reasonable value of the services rendered. No such proof was made. Kirk v. Wolf Mfg. Co., 118 Ill. 567; People’s Casualty Claim Adjustment Co. v. Darrow, 172 Ill. 62. It is true that there was a stipulation that the items mentioned in the fourth count, with certain exceptions, were work done by the plaintiff, but not at the defendant’s request; and that there were certain charges made for the work, and certain payments made thereon which the defendant considered as payment in full; and that it was a question of evidence, whether or not there was anything further due. But as far as we can find, it is impossible to conclude that the record shows sufficient to justify the allowance of the claim as made. The plaintiff offered in evidence certain entries from its shop books which purport to show charges made by the plaintiff in the course of 1919 for the entire work done under the contract, but they do not show the payments that were made nor any balance due for work referred to in count 4.

Various other contentions are made in regard to the rulings of the trial judge on matters of evidence, but as the court said in Kreiling v. Nortrup, 215 Ill. 195:

“The case was heard by the court without a jury, and as to the evidence admitted to which objection is made, the rule is, that no improper or immaterial evidence will be presumed to have influenced the court in reaching a decision where there is sufficient proper evidence to justify the judgment." Pratt v. Davis, 224 Ill. 300; People for use of American Automobile Ins. Co. v. Egan, 241 Ill. App. 189.

It seems from the evidence that the plaintiff sincerely endeavored to carry out its obligations, but, for various reasons, not caused by the defendant, was unable to perform according to the requirements of the contract, and although the parties were to co-operate, and in many ways did, still, there were more or less hard and fast requirements, such as the important one in regard to mailing, that were quite rigorously binding, and which were not waived, and were, therefore, if not lived up to, a sufficient ground for cancellation. It may seem hard to hold that the plaintiff failed, and that the defendant was within its legal rights, when it cancelled the contract, but in business matters when the parties have seen fit to prescribe their relations in writing, the court is bound by the law to apply to their conduct the rules which they themselves have formulated.

For the reasons set forth above, the judgment will be affirmed.

Affirmed.

Holdom and Wilson, JJ., concur.