author: Mr. Presiding Justice Wolee

text:
    McKenna Process Company of Illinois, Appellee, v. Blatchford Corporation, Appellant.
    Gen. No. 9,464.

      Heard in this court at the October term, 1939.
    Opinion filed February 17, 1940.
    Rehearing denied March 19, 1940.
    Reid, O’Connor, Webb & O’Malley, and John G. Plain, all of Aurora, and Alexander C. Mabee, of Chicago, for appellant.
    John K. Newhall, of Aurora, and Snapp, Heise & Snapp, of Joliet, for appellee.
   Mr. Presiding Justice Wolee

delivered the opinion of the court.

The McKenna Process Company of Illinois (plaintiff appellee) is an Illinois corporation and is and has been for many years engaged in the business of reforming worn rail joint bars at its manufacturing plant in the city of Joliet. The Blatehford Corporation (defendant appellant), is an Illinois corporation and is and has been for many years engaged in the business of reforming worn rail joint bars, at its manufacturing plant in the city of Aurora, Illinois. On September 12, 1931, the McKenna Process Company of Illinois, as the owner of a large number of patents issued in name of George Langford for the process of reforming worn rail joint bars, granted an exclusive license under said patents to the Rail Joint Company of New York with power to grant sub-licenses. On the same date, by a separate contract, the Rail Joint Company of New York granted a sublicense of all the Langford patents to the McKenna Process Company of Illinois, and on the same date, and by another separate contract, the Rail Joint Company óf New York granted a sublicense to the McKenna Process Company of certain patents owned by the Bail Joint Company.

During the years 1930 and 1931, the Blatchford Corporation secured contracts with various railroad companies to reform rail joint bars, and was engaged in that work at Aurora at the time it was sued in the federal court at Chicago by the Bail Joint Company of New York and the McKenna Process Company of Illinois for infringement of the patents owned by those complainants. As a result of negotiations to compromise the infringement suit, and as a complete and final settlement of that controversy, a contract of October 31, 1932, was entered into between the Mc-Kenna Process Company of Illinois and the Blatchford Corporation, with the consent of the Bail Joint Company of New York, and this last contract is the subject matter of the case at bar.

After the above contract was entered into the Blatchford Corporation continued, as before, to reform rail joint bars for the railroad companies with whom it had contracts. Some months later, early in 1933, it was agreed between the parties, that the Blatchford Corporation should make reports and pay the royalties as of December 2, 1932. From this date until December, 1935, the Blatchford Corporation continued to make the reports, prescribed by the license agreement, of all rail joint bars reformed by it under that agreement, and continued to remit for royalties thereon; at no time, however, remitting more than $1 per ton as to bars reformed for railroads with whom it had contracts existing on October 31, 1932, for $13 or less per ton. The $1 per ton royalty was not questioned in any way by the McKenna Process Company until about August 1, 1933, when the said existing contracts with railroad companies were abrogated by different contracts with the railroad companies, providing for a rate of $14.30 per ton.

All of the four “existing” contracts between the Blatchford Corporation and the railroads had called for a tonnage rate of $13, and each of them was, on or about August 1, 1933, by mutual agreement, renewed for a year at a price of $14.30. The Blatchford Corporation insists that this was merely an exercise by the railroad company of its option to renew for one year and did not take it out of the class of contracts designated as “existing” contracts and that it was not liable to the McKenna Process Company for an increase in royalties from $1 to $2. The McKenna Process Company insists that the increase in price to the railroads to an amount above $13 per ton had the effect of new and different contracts which abrogated the old “existing” contracts, and that henceforth the Blatch-ford Corporation was liable for a royalty of $2 per ton. This controversy is evidenced by correspondence between the parties, until the suit was started.

On October 17,1935, the McKenna Process Company sent to the Blatchford Corporation an itemized statement of account, and asked for an early settlement, and attached a Dill for $7,836.93. Payment was not made and this suit was started. The original complaint, which was later amended, was filed on December 2, 1935. The amended complaint consisted of two counts. The first count alleged facts upon which plaintiff based a prayer for injunction, which the court, by its final order of March 2, 1939, dismissed without prejudice, The second count was in assumpsit. It charged that plaintiff had performed its covenants under the contract, but that defendant has failed to pay the royalty of $2 per ton on all such bars reformed by it; that defendant has reformed as licensee under the patents, 8,583.07 tons of bars for the railroads at a price not less than $13 per ton and not under ‘ existing contracts”; that a royalty of $2 per ton was due on that tonnage of which $1 was paid, leaving a balance of $8,583.07 due and unpaid to plaintiff; that certain other bars had been reformed on which none of the royalty had been paid and there was $721.62 due on this tonnage making a total of $9,304.69.

A motion to dismiss the amended complaint was denied. The defendant answered that the plaintiff had failed to submit the agreement to arbitration; that the license agreement was null and void as being in restraint of trade and in violation of the laws against monopolies; that the plaintiff could not recover as it had been paid in full; and denied all other allegations of the complaint. Defendant also filed a counterclaim in which it set up that certain work had been done under the Thompson patent, which had expired December 12, 1933, and that, by mistake, defendant paid to plaintiff the sum of $3,400.97 for work done under that patent after the patent had expired; also that it had done other work not under any of the patents listed in the license agreement for which it had paid the plaintiff by mistake the sum of $9,511.95, and asked judgment against the plaintiff for these payments. Plaintiff filed a reply denying all the allegations of this counterclaim.

It was stipulated between the parties that the summary, as it appears on pp. 56-62 of the abstract, constitutes a complete and accurate description of plaintiff’s Exhibits Nos. 17 to 76, inclusive; that the summary shows the invoices as numbered which were sent by the defendant to the railroads as each lot of bars reformed by defendant was shipped to the railroads, and copies of which were sent to plaintiff; also the dates of the invoices, the railroads to whom bars were shipped by the defendant, the type of the bars, the section number of the bar, the number of bars, the net weight, the price per ton charged by defendant to the railroads, and the royalty per net ton actually paid by defendant to plaintiff from December 1, 1932, up to and including* October 1, 1935. It was further stipulated that the difference between the $1 per ton royalty paid by defendant to plaintiff, and the $2 royalty claimed by plaintiff, as per plaintiff’s letter of October 17, 1935, is the sum of $7,838.93 and that the amount of royalties claimed by plaintiff to be due for the months of September and October, 1935, as shown by the summary of plaintiff’s exhibits 17 to 76 inclusive, is $761.89.

The case was heard before the court without a jury, who found the issues in favor of the plaintiff. At the time the court announced his findings, he was uncertain in regard to the item of interest. Later, he allowed interest on the amount found to be due the plaintiff, and entered judgment in favor of the plaintiff for the sum of $10,046.11 and assessed the costs of the suit against the defendant. It is from this judgment that the Blatchford Corporation brings the case to this court on appeal.

The appellant has assigned five reasons why the trial court erred in rendering judgment for the plaintiff, the first of which is that the court erred in rendering judgment for the plaintiff, when the evidence clearly shows that the license agreement and the conduct of the parties, was in violation of the laws of the State of Illinois, and the United States of America prohibiting restraints of trade and monopolies. The appellee strenuously contends that the license agreement does not violate these laws, either of the United States, or of the State of Illinois, and that the contract is not in restraint of trade. Both sides to the controversy have cited numerous cases, both in the United States Supreme Court and United States Federal Courts, and also in our own Supreme Court. We have examined all of the cases cited and have come to the conclusion that the law, as stated in the case of Standard Oil Co. v. United States of America, 283 U. S. 163, 75 L. Ed. 926, 51 Sup. Ct. 421, is applicable to the case at bar. This case, so far as we are able to ascertain, is the last expression of the Supreme Court of the United States, relative to snch matters. The Standard Oil Company of Indiana, the Standard Oil Company of New Jersey, and the Texas Company, each had patents upon an oil cracking process. As early as 1913, the Indiana Co., had developed this process, and by 1921, had licensed 15 independent concerns to use the process. In the meanwhile, other oil companies had been working independently to develop a commercial process of their own. Most prominent among these were the three defendants in the case. Bach of these secured a great number of patents covering its cracking process. Beginning’' in 1920, a conflict developed among the four companies concerning the validity, scope and ownership of issued patents. One infringement suit was begun. Cross notices of infringement antecedent to other infringements were given; and interferences were declared on pending applications in the patent office. The three defendants in the suit asserted that it was these difficulties zwhich led to the procurement of the three principal agreements (which the United States attacked), and that their sole objection was to avoid litigation and laws of infringement of conflicting patents. Later, these three companies licensed many other oil companies to use their cracking process in making gasoline. Bach of the licensees had to pay royalties to the three main companies. It was this agreement that the government attacked as being in violation of the Sherman Anti-Trust Laws, as creating a monopoly in the manufacture of gasoline.

In the present case, the McKenna Process Company of Illinois, the original owner of the patented process for reforming rail joint bars, and the Bail Joint Company of New York, started a suit against the Blatch-ford Company for infringement of their patents, and as a result of negotiations during the pendency of this suit, the contract in question for the defendant company to use the patented process of the plaintiff was entered into, and the suit against the defendant for infringement, was dismissed. The law, as stated in the Standard Oil Co. v. United States of America, supra, and in a great many of the other cases, is, that if this license agreement amounts to a monopoly so that a substantial part of the trade is controlled by the license agreement, then it is void, as being* in restraint of trade. The Supreme Court held in the Standard Oil Company case that such an agreement was not in restraint of trade, as the evidence failed to show that there was a monopoly created by this license agreement, but the evidence did show that there were many other manufacturers of gasoline who did not use this cracking process. In the present case, we think the evidence wholly fails to show that this contract created a monopoly in the reforming of railroad bars. The evidence does show that many other people were engaged in the same work in competition with the plaintiff and the defendant, and were not using* this process at all. By the contract, the plaintiff was not selling to the defendant, any rail joint bars for railroads, but was selling them the privilege of using* their process in reforming and reshaping worn bars. It had nothing to do with the manufacture or sale of such bars. The work done on the bar is a service rendered to the railroads for which the former charges a stipulated amount per ton. As in the case of Standard Oil Co. v. United States of America, supra, for a stipulated amount, the defendants were allowed to use the process Avhich had been developed by the plaintiff companies. It is our opinion that the contract in question does not violate the terms of the Anti-Trust LaAvs of the United States, or of the State of Illinois, but that the contract is valid.

The appellant contends that the trial court erred in refusing their offer of proof of the intention of the parties, in interpreting the contract. The contract is in writing, and unless the language used therein is ambiguous, oral testimony cannot be introduced to show what the intent of the parties was, bnt the same must be gathered from -the language of the contract itself. It seems to us that the language used in the contract is plain and not ambiguous, and that the court did not err in refusing to admit the oral evidence, to show the intent of the parties.

It is next insisted that the court erred in rendering-judgment for the plaintiff and denying defendant’s counterclaim, since the evidence shows clearly that the defendant did not use plaintiff’s patents. It is also insisted by the appellant that the Thompson patent had expired prior to the time that the particular royalties on the bars sued for had been reformed by the defendant, and therefore there was nothing due from the defendant to the plaintiff on these bars, and hence they claim they have overpaid the plaintiff a substantial amount, and ask to have this returned to them. It is difficult for the court to ascertain, from the evidence in this case, what patents were in force and effect at the time these specific bars were reformed. There are more than 45 patents, as shown by the abstract, in which the defendant was licensed to reform bars. The learned judge of the trial court, in rendering his opinion, stated, “There is not sufficient proof in this record, in my judgment, to show that his product was not controlled by some of the other patents, or some of the re-issues, or some of the claims in these patents that were introduced in evidence in this case.” We think the evidence fully sustains this finding of the trial court.

The appellee insists that by the appellant’s action and interpretation of the licensing contract, that they are now estopped to deny, that they were processing these bars under the licensing agreement. It is un-contradicted that the appellant rendered monthly statements to the appellee, and paid $1 per ton as royalty on the bars processed by them. These statements, and the payment of $1 per ton were made voluntarily by the appellant, and within strict accord with the licensing contract. No question was raised as to the validity of the licensing contract, until after, or shortly before the present suit was instituted, but both parties treated the contract as a valid and existing* one, the only contention being as to whether the royalty was to be $1 or $2 per ton on certain bars that had been reformed. In the case of Strong v. Carver Cotton Gin Co., 197 Mass. 53, 83 N. E. 328,14 L. R. A. (N. S.) 274, the facts are very similar to the present one. A dispute arose between the parties as to whether or not the defendants were liable to pay to the plaintiff the royalties as contracted. On p. 330 of the N. E. Rep., we find the following : “So far we have dealt with the contract when it was entirely executory. When the time came for action under it and the manufacture of a particular machine was proposed, new questions would arise. It might well be a matter of doubt, especially with the imperfect knowledge of the facts that the parties had, whether such a machine was covered by the patent. If, then, the parties agreed expressly or impliedly, or assumed by their contract, that a certain machine was covered by the patent, that would be competent evidence of the fact if the matter was doubtful and was litigated. Still further, it is competent for one to agree to pay a patentee a royalty for a license to manufacture a particular machine when he is uncertain whether it is covered by a patent or not. His payment in such a case, is for exemption from disturbance and the possibility of disturbance by the patentee. If he makes an agreement of that kind, it is no defense to a suit for royalties that the patent is' invalid, or that his machine is not covered by it. He has and enjoys that which he pays for, namely, immunity from any claim under the patent. The patentee gives up that which might be valuable, namely, the right to prosecute for an infringement. So, under a contract like that between these parties, if the manufacturer says, I will manufacture this machine and treat it as covered by the patent, and the other party assents, he is bound by his agreement so long as he acts under it. It has been said in some cases that he is estopped from denying that what he manufactures under such an arrangement is covered by the license. Andrews v. Landers (C. C.), 72 Fed. 666; Sproull v. Pratt & Whitney Co. (C. C.), 97 Fed. 807. The same principle has also been applied to hold the defendants liable as licensees in the following cases: Covell v. Bostwick (C. C.), 39 Fed. 421; Pope Mfg. Co. v. Owsley (C. C.), 27 Fed. 100-108; Milligan v. Lalance Co. (C. C.), 21 Fed. 570; Kirkpatrick v. Pope Mfg. Co. (C. C.), 64 Fed. 369. See, also, Eureka Co. v. Bailey Co., 11 Wall. (U. S.) 488, 20 L. Ed. 209; Jones v. Van Kirk, 2 Fish. Pat. Gas. 586, Fed. Cas. No. 7,500.

“The defendant treated the machines that it manufactured as made under the patent, and, at intervals of six months for four years, made regular returns of the sales of them and paid royalties. It also advertised them extensively as made under this patent, and marked them as patented. This was equivalent to an agreement that machines manufactured while this practice and understanding existed between the parties should be treated as covered by the contract for a license. So long as this understanding existed, the defendant would be warranted in relying upon freedom from any claim by the patentees for an infringement of the patent, and the patentees would be warranted in refraining from attempting to enforce their patent by other proceedings; and in expecting payment of the royalties.”

We think the law, as stated in the Strong case, supra, is applicable to the present case. The appellant has proceeded upon the theory that they were acting under this licensing contract, and are now estopped from saying that they were not.

It is insisted that the evidence shows that there is an accord and satisfaction, and therefore the court erred in rendering judgment against the plaintiff. As before stated, the contract required that the appellant render monthly statements to the appellee of the rail joint bars reformed by them. This, the appellant did, and with each statement sent $1 per ton on the rail bars so reformed, and they now contend that the appellee, by accepting these monthly payments, accepted them in full satisfaction of all moneys that were due from the appellant to the appellee. An examination of these different statements discloses that at no time did any of them say that the check as tendered with the statement, was payment in full, and there is no evidence in the record that the appellee ever accepted them as such. When a check is inclosed with a statement of account, and there is nothing to show that it is tendered and accepted as payment in full of all demands, the acceptor is entitled to retain it and to recover for the balance due on the account. Sargent Lumber Co. v. J. W. Wells Lumber Co., 168 Ill. App. 581. There must be something to inform the creditor by the act of accepting a less amount than he thinks he is entitled to, that he is making an agreement to accept payment in full. The evidence does not show that the appellee ever intended to accept $1 per ton on this account as being in full payment of the same.

The contract recites, “Now for valuáble consideration it is agreed, 1. Licensor grants to licensee right under all of said patents to make bars in accordance with the inventions of said patents for the full terms thereof with right to sell bars reformed. 2. Licensee agrees to pay following royalties: (a) Upon all bars other than Headfree type reformed during the life of this license, a royalty of $2.00 per ton ‘subject only to the exception that a royalty of $1.00 per net ton shall apply where, under existing contracts with railroad companies, the licensee has contracted to reform rail joint bars at a price of $13.00 or less per ton. ’ ” At the time the contract was entered into the appellant had several contracts with railroad companies to reform bars at $13 or less per ton, and it is agreed that $1 per ton had been paid on all of these contracts. Later, the price was raised to $14.30 per ton to these same companies, and it is insisted by the appellee that this was a change in the contract between the appellant and the railroad companies, and therefore, they were entitled to a royalty of $2 per ton on all such bars reformed under the new contracts. The appellant strenuously contends that these are not new contracts, but were old contracts, and that on account of the N. R A. they were forced to pay higher wages to their employees, and therefore had to charge the railroad company more for the reformed bars, which increase the railroad companies agreed to, and did pay. It is immaterial why the appellant raised the price of these bars to the railroad companies. The contract explicitly says that where the price was more than $13 per ton, the royalty shall be $2 per ton on all bars. Regardless of why it was done, the contract price was changed from $13 to $14.30 and this is a change in the term of the contract, so that the licensor should be entitled to $2 per ton, on such bars so reformed by the licensee.

Section 10, of the licensing contract, provides that in the event a controversy arises as to the payment of royalties, the matter shall be referred to an arbitrator to be mutually agreed upon. If not possible to agree, an arbitrator’s committee shall be selected and the decision of the majority of the members shall be binding upon the parties hereto. It is now insisted by the appellant that the appellee is barred from maintaining this suit, because there was a controversy between the parties, as to the amount of the royalties and the appellee, having failed to have the same arbitrated, violated the contract, and cannot maintain the suit in question. The only Illinois authority cited by the appellant to sustain its contention, is the case of White Eagle Laundry Co. v. Slawek, 296 Ill. 240. An examination of the facts in this case discloses that an entirely different situation existed from that of the present case. In the Laundry Company’s case, there had been a collision between' the cars of the plaintiff and the defendant; suit had been started, and they then agreed to arbitrate their differences. An arbitrator was selected and heard the evidence and filed his report, finding that the defendant was guilty of negligence and that the plaintiff was guilty of contributory negligence, the negligence of both parties being the primary cause of the accident, and finding that there was no right of recovery in favor of the plaintiff. Objections were filed to this award, but the court entered judgment that the plaintiff take nothing, and that the defendant recover his costs. The court held that the parties had agreed to arbitrate their differences and actually did submit them to the arbitrator, that then both sides to the litigation were 'bound by the arbitrator’s award, as the statute made it irrevocable. In the case of Cocalis v. Nazlides, 308 Ill. 152, 156, we find the following:

“Inasmuch as the arbitration of controversies avoids the formalities, delay and expense of litigation in court, the courts, speaking from an economic standpoint, have approved and recommended that method of settlement. (Gerrish v. Ayers, 3 Scam. 245 , Merritt v. Merritt, 11 Ill. 565; Haywood v. Harmon, 17 id. 477; Podolsky v. Raskin, 294 id. 443; Rallance v. Underhill, supra.) The question, however, to be decided is not whether the courts would advise the appellant to submit his controversies with the appellee to arbitration, but whether he shall be compelled to do it because he signed an agreement that he would. The constitution has created courts for the adjustment of rights, the settlement of controversies and the redress of grievances, with all the necessary powers to enforce their judgments and decrees, and has preserved the right of citizens to invoke their jurisdiction. Parties, generally, in dealing with each other adjust their differences without the intervention of any authority, but if they do not, they may refer any such matter to arbitration or may call upon a court to enforce alleged rights or redress alleged grievances. If there is a submission to arbitration the law has always been that there must be an existing controversy between the parties. It is essential to the very idea of an arbitration that there should have been an antecedent dispute or an existing matter of difference to be adjudicated and determined, so as to conclude the parties as to the matter in issue between them. If there is no matter in dispute there is no question for arbitration, and accordingly it was held in Norton v. Gale, 95 Ill. 533, where annual rent was to be ascertained by appraisers, their decision was not an arbitration because there was no matter in controversy when the leases were executed.” This case also discusses and explains the facts and law of the White Eagle Laundry Co. v. Slawek, supra.

There is another reason why the appellant’s contention is not tenable.' The agreement to arbitrate their differences in regard to royalties was mutual, and there had been a controversy as to amount of royalties between the parties for months. The appellant insisted that he was to pay only $1 per ton for the bars they processed, and the appellee insisted that they were entitled to $2 for each ton so processed. If the appellant had desired to arbitrate this matter before the suit was started, it was just as much its duty to ask to have arbitrators appointed, as it was for the appel-lee to ask to have the matter arbitrated, before starting the suit. A mere agreement to submit future differences to arbitration does not oust the court of jurisdiction to decide the matter. It is revocable, and bringing* suit is a revocation of the contract. Crilly v. Phillip Rinn Co., 135 Ill. App. 198.

We find no reversible error in this case, and the judgment of the trial court is hereby affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice John J. Sullivan

license: Public Domain

text:
    Charles L. Baxter, Individually, Appellant, and Charles L. Baxter, Administrator De Bonis Non Cum Testamento Annexo of the Estate of Harry H. Montgomery, Deceased, Appellee, v. Continental Illinois National Bank and Trust Company of Chicago, Appellee.
    Gen. No. 40,132.

      Heard in the second division of this court for the first district at the June term, 1938.
    Opinion filed February 23, 1940.
    James K. McVey, of Chicago, for appellant.
    Mayer, Meyer, Austrian & Platt, of Chicago, for appellee Continental Ill. Nat. Bank & Trust Co.; Frederic Burnham, David F. Rosenthal and Jacob X. Schwartz, all of Chicago, of counsel.
   Mr. Presiding Justice John J. Sullivan

delivered the opinion of the court.

In a trial without a jury judgment was entered by the court wherein, after finding the issues for plaintiff on his amended statement of claim and finding the issues for defendant, Continental Illinois National Bank & Trust Company, on its counterclaim, it was further found that “the claim of each of said parties against the other is the same in amount” and adjudged that plaintiff recover nothing from defendant. Plaintiff, Charles L. Baxter, appeals from that portion of the judgment entered in favor of defendant on its counterclaim. Defendant filed notice of cross appeal from that portion of the judgment order which reads: “The court . . . finds the issues for the plaintiff . . . on his amended statement of claim,” specifying that its cross appeal is to be considered only in the event that “a reversal of the judgment for defendant . . . is necessary.” Although plaintiff brought this action both as the administrator de bonis non with the will annexed of the estate of Harry H. Montgomery, deceased, and individually, as a creditor of said estate, this appeal has been taken as expressly stated by Baxter in his notice of appeal in his individual capacity only and not as such administrator.

In his amended statement of claim for money had and received plaintiff alleged substantially that in his individual capacity he filed a sixth-class claim against the aforesaid estate of Harry H. Montgomery in the amount of $5,124.27, which was allowed but no part of same has been paid; that defendant (sometimes hereinafter for convenience referred to as the bank), which had also filed a sixth-class claim against the estate in the amount of $41,807.50, and the remaining sixth-class claimants who had filed claims aggregating $1,100.33 were paid in full; and that as a result of these payments and a subsequent deficiency in the assets of the estate the bank received $4,460.86 in excess of its proportionate share of the money disbursed by the estate in the payment of sixth-class claims and that plaintiff is entitled to recover this amount from defendant.

The bank filed an affidavit of defense and a counterclaim averring that at the time of the death of Montgomery, he was indebted to it upon his promissory note for $41,807.50; that the note by its terms matured October 15, 1931; that Baxter had guaranteed the payment of the note, which was in the face amount of $42,000; that the note was secured by certain collateral, some of which belonged to Montgomery and some to Baxter; that at the time the note was paid by the executrix of Montgomery’s estate on September 12, 1931, all of the collateral, which had an aggregate value of $38,687.50, was delivered to her; that the collateral owned by plaintiff was at that time worth $15,650; that upon the delivery of the collateral to the executrix, she delivered to Baxter his portion of same; that defendant had changed its position by delivering up said collateral; that same had depreciated in the hands of the executrix and it would be inequitable to permit the disaffirmance of the transaction and recovery from defendant; that the bank had not been overpaid ; that if any part of the payment by the executrix was not valid, then the note had not been paid in full and Baxter, on account of his guaranty of the note, was indebted to defendant to the extent of any recovery to which he might be entitled as plaintiff; and that defendant is not indebted in any amount to plaintiff.

In its judgment order the trial court held in effect that the bank had been paid a larger pro rata payment of its claim than it should have received, but that such overpayment being invalid its note to that extent had never been paid and that, therefore, Baxter, for whose sole benefit this action was brought was liable on his guaranty to the extent that the bank had been overpaid.

For a proper understanding of the issues it is necessary to set forth the facts somewhat fully. June 15, 1931, Harry H. Montgomery executed and delivered to defendant, then known as “Continental Illinois Bank & Trust Company” his collateral note as of said date in the principal sum of $42,000, payable to the order of the bank on October 15, 1931. The payment of the note was guarantied by plaintiff by his indorsement to that effect appearing on the reverse side thereof. As collateral for the note there were delivered to the bank the following securities: 550 shares E. L. Bruce Company common stock; 300 shares Middle West Utilities Company common stock; 100 shares The North American Company, issued in the name of and indorsed by Charles L. Baxter; 200 shares Union Carbide & Carbon Corporation, issued in the name of and indorsed by Charles L. Baxter. The shares of stock indorsed by Baxter belonged to him and had been deposited with his consent by Montgomery as collateral to the note.

Montgomery died July 3, 1931, and August 20, 1931, letters were issued to his wife, Edith Virginia Montgomery, as executrix. Montgomery carried policies of life insurance in the face amount of $45,000, payable to his estate, which, together with the interest thereon, amounted when collected to $45,498.83. Shortly after Montgomery’s death Baxter, who had been associated with him in various businesses, had a meeting with Mrs. Montgomery and Dr. .G-eorge N. Beecher, a physician and close friend of the Montgomery family. At that meeting, according to the testimony of Dr. Beecher, those present including plaintiff, agreed that the proper thing to do was to pay off the note with the insurance money in order to stop the running of interest and release the collateral which the bank was holding. Baxter admitted that he was anxious to get his collateral back. As a result of said meeting the executrix called at the bank on September 12,1931, and paid defendant out of the insurance money heretofore referred to $41,807.50, the discounted amount due on the note, which by its terms did not mature until October 15, 1931. The bank thereupon surrendered to her the note and all the collateral, which was then of the value of $38,687.50, and on the same date the executrix delivered to plaintiff the securities which belonged to him and which the bank had been holding as part of the collateral to the note. The collateral so returned by the executrix to Baxter was then of the agreed value of $15,650.

Thereafter, September 24, 1931, the bank filed its sixth-class claim against the estate of Harry H. Montgomery and same was allowed December 8, 1932, for $41,807.50, the amount which had been paid to it September 12, 1931. An inventory filed by the executrix and approved November 12, 1931, showed as assets of the estate the collateral returned to her by the bank upon the payment of decedent’s note consisting' of 300 shares of Middle West stock and 550 shares of Bruce common stock remaining in the hands of said executrix after she had given Baxter the collateral belonging to him. In addition the inventory showed the $45,000 principal amount of life insurance collected after Montgomery’s death. Subsequently an amendment and supplement to the inventory was filed and approved, showing’ that there were in the estate 75 shares of miscellaneous stock in addition to the foregoing assets.

June 30, 1932, plaintiff, filed a sixth-class claim against the estate for $5,124.27, which was allowed January 24, 1933, but was not paid because there were no assets with which to pay it. June 10, 1933, the executrix filed her final report and account, showing that she had paid sixth-class claims against the estate in the total amount of $42,907.83, which was in full of all the sixth-class claims filed and allowed with the exception of the claim of Baxter. Plaintiff is the only claimant against the Montgomery estate whose claim was not paid and is the only person having any interest in any recovery that might be allowed in this case.

Plaintiff filed verified objections in the probate court October 17, 1933, to the final account of the executrix, in which he urged that the account filed by her be not approved for the reason, among others, that she had been grossly negligent in and about her duties. He alleged in his objections that December 1, 1931, the court had entered an order permitting the sale and transfer by the executrix of 200 shares of Middle West Utilities Company stock and 450 shares of E. L. Bruce Company stock, but that she had negligently failed to dispose of same and that if said stock had been disposed of the estate would have been solvent. Thereafter, January 31, 1936, Baxter was appointed administrator de bonis non with the will annexed of Montgomery’s estate, under which appointment he qualified on February 17, 1936. The present action, in which plaintiff is claiming the right to recover against defendant in his individual capacity as a creditor of the Montgomery estate, was filed July 30, 1936, about five years after letters of administration had issued to Mrs. Montgomery.

In support of his contention that he, as a creditor of the Montgomery estate, whose sixth-class claim was allowed but not paid because of the insolvency of said estate, is entitled to recover from defendant the alleged overpayment made to it by the executrix on its sixth-class claim and to sustain that portion of the judgment in his favor against defendant, plaintiff cites Wolf v. Beaird, 123 Ill. 585. There Edward J. French died testate and John Wolf was appointed executor of his estate. John B. Gharst filed two claims against the estate, which were allowed and paid in full by the executor. Both Wolf and Gharst believed at the time of such payment that the estate was solvent. Two large claims of the same class as the Gharst claims were subsequently filed against the estate and the allowance of same permitted payment only to the extent of 61.72 per cent of the claims of the class involved. It was asserted that Gharst, having been paid in full out of the assets of the estate, received 38.28 per cent more than he should have had. Gharst having died, Wolf filed a claim against his estate “for the excess of the amount so paid to Gharst over the pro rata share to which he was properly entitled.” In that case the court said at pp. 590, 591 and 592:

“Both Wolf and Gharst knew or were bound to know, that, under the law, Gharst could not lawfully receive his claim in full out of the assets of the French estate, unless those assets were sufficient to pay all claims of the same class with his own. There was a mutual mistake of facts in respect to which both parties were equally bound to inquire. They both believed that the assets were sufficient to pay the claims in full and acted upon such belief, but both were mistaken in regard to the fact. ‘Money paid by one party to another through a mutual mistake of facts, in respect to which both were equally bound to inquire, may be recovered back. ’ Canal Bank v. Bank of Albany, 1 Hill, 287; Wheadon v. Olds, 20 Wend. 174.
U
“The filing of the claim by Wolf against Gharst’s estate was in the nature of an equitable action for money had and received, or money paid under a mistake of fact. . . .
“As Gharst had received more money than he ought to have had, his estate was liable to refund the amount. ’ ’

The theory of plaintiff’s defense against defendant’s counterclaim as stated in his brief is that his motion to strike the counterclaim should have been allowed since the fact alleged therein “that the defendant on September 12, 1931, accepted $41,807.50 in full of said promissory note and surrendered up said note and all the collateral,” constituted “ a release of the said Charles L. Baxter as accommodation guarantor.”

We are in accord with the rule enunciated in the Wolf case, supra, as applicable to the factual situation presented there. As the court said in that case the money was paid under a mistake of facts and ‘ ‘ Gfkarst had received more money than he ought to have had. ’ ’ Here, however, because of'the additional factors and principles involved and a factual situation entirely dissimilar, the Wolf case cannot be held to be controlling. When the note in the instant case was paid by the executrix to the bank there was no mistake of fact as to the solvency of the Montgomery estate. The estate was in fact solvent and its assets were sufficient to pay all the claims filed and allowed, including plaintiff’s. It became insolvent solely by reason of the negligence of the executrix in failing to liquidate the securities belonging to it. In the Wolf case the Grharst claims were not secured as was the bank’s note in this case. Neither was there any question of guaranty in that case.

If it be assumed that the bank received from the estate a larger portion of its claim than the assets of the estate warranted and further assumed that to that extent the payment to it was for any reason invalid, just what is plaintiff’s position as guarantor of the Montgomery note ? In our opinion his liability as such guarantor was to the same extent never satisfied. It is only to quibble for plaintiff to say that he does not claim that the payment of the note by the executrix was void or invalid but only that the bank should be compelled to return to him the amount that it was overpaid. Surely if the bank were forced to return any part of the amount received by it in payment of the note because of the insolvency of the estate, or for any other reason, the payment certainly to that extent was neither valid nor binding. We think that it would be highly inequitable to compel the bank to refund any part of the amount paid on the note without reviving plaintiff’s guaranty.

While ordinarily payment made by a debtor of a guaranteed obligation will discharge a guarantor or surety, payment to have this effect must be valid and binding and if the creditor is for any reason forced to refund the payment the liability of the guarantor or surety is restored. In Stearns Law of Suretyship (4th ed.), the author, after stating the general rule that payment discharges the surety or guarantor, says at pp. 140, 141:

“While this proposition is self-evident, yet it must be observed, that in contemplation of the law, nothing amounts to payment or satisfaction which has no value, and if that which is taken in payment is not what it purports to be, or the use or retention of it by the party- receiving is prohibited by law, or for any reason becomes a nullity, then the so-called payment or substitution is not a satisfaction of the original contract, and in the absence of actual or constructive waiver of these infirmities in the medium of payment, the original contract, although surrendered, will be revived, and the liability of the surety or guarantor restored.
i (
“If the principal pays the debt contrary to the provisions of the insolvency laws, so that the creditor is required to surrender the amount paid as an unlawful preference, the surety may be held, although the evidences of the indebtedness have been given up, at the time of payment.
Í (
“Also where an obligation taken in renewal is void, ... by reason of coverture or infancy or any other disability of the party executing it, the creditor will be restored to all his rights under the original contract, and the same rule applies where a new contract is void because executed without authority.” Other authorities to the effect that in order to discharge a guarantor by payment, the payment must be valid and that the guarantor will not be released if the payment is not legal and binding are: (28 C. J. 1004; 21 R. C. L. 1047; 1 Brandt on Suretyship and Guaranty, 3rd ed. p. 705; IV Williston on Contracts (1933 ed.) section 1219; Irving Trust Co. v. Bank of Manhattan Trust Co., 8 F. Supp. 686; Watson v. Poagu,e, 42 Iowa 582; Pigg v. Madison Nat. Bank, 13 Ky. Law Rep. 203 (Abst.); Smith v. Powers, 255 Fed. 582; Swarts v. Fourth Nat. Bank, 117 Fed. 1).

It thus clearly appears that if any liability did attach to defendant by reason of the alleged overpayment of its claim plaintiff is precluded from recovery by reason of the revival of his guaranty on the note to the extent that defendant might be liable to him because of such overpayment, and that the bank was bound to accept the payment of the note in full when proffered in order to hold plaintiff as guarantor in the event of such a contingency as has arisen here.

In Smith v. Powers, supra, concerning one De Lee, who gave the guaranty in that case and who it was claimed was released therefrom by the payment of the notes involved, the court said at pp. 595 and 596: “However, I do not think this fact necessarily changes the legal aspect of the case, as the payments to Mr. Powers were not valid payments, and no act necessary to bind De Lee on his guaranty was omitted, and he remains bound thereby. His knowledge and participation, however, has much to do with the equities of the case. I think his participation in the transaction and knowledge of the facts prevent his claiming that the guaranty became inoperative. When Mr. Powers refunds to the estate in bankruptcy the sums received by him, he can recover of Patrick E. De Lee, the guarantor, whose rights have in no way been impaired. Mr. Powers will have no difficulty in establishing the guaranty, as Mr. De Lee testified he gave it, and that it was only surrendered because of the payments made by the construction company to Mr. Powers.”

There is evidence in the record here that plaintiff not only acquiesced in and consented to the payment of the note but that he advised the executrix to pay it as and when she did. He was a party to the original transaction as a guarantor of Montgomery’s note and as owner of part of the collateral put up at the bank to secure the note’s payment. He was a direct beneficiary of the transaction involving payment of the note since by it he had returned to him his collateral of the value of $15,650, and, according to his contention, was released on his guaranty. Baxter, having advised and having assisted in inducing the executrix to pay the note and having reaped the benefit of his conduct, is estopped from now asserting that the bank should not have been paid in full.

If the executrix had sought to recover all or part of the money she paid the bank on the note, there can be no question but that she would have had to restore the status quo by returning to the bank the securities it had parted with, and it is just as clear that plaintiff is in no position to recover a portion of the amount paid on the note or to ask, in legal effect, to have the transaction involving payment of the note set aside in part without restoring the status quo to the bank of at least the benefits which he personally received. In Scott v. Morris, 131 Ill. App. 605, where a lawyer had received full payment of his claim from a decedent’s estate upon giving up securities upon which he had a lien for his claim and thereafter the administratrix of the estate discovering that the estate was insolvent sought recovery of a portion of the payment so made, the court in holding that there was no liability on the part of the lawyer said at p. 608: “Morris would have had a right to proceed and sell the security to pay his claim if appellant had failed to make redemption by paying it. Levy v. Chicago National Bank, 158 Ill. 88.

‘1 Morris waived no right and lost no remedy by having his claim allowed by the Probate Court as a claim of the seventh class. Furness v. Union National Bank, 147 Ill. 570.

“The uncontroverted proof is that appellant paid Morris’ claim voluntarily, of her own free will, without protest or demur, took his receipt therefor and a surrender of his security. She is now estopped from assuming any position contrary to that indicated by ner actions. In no event could she disclaim her actions on any theory, however equitable, without first restoring the statu quo by redelivering to Morris the securities with which he parted on payment of his claim, or offering to do so. No offer of this character has been made. ’ ’

Upon the death of Montgomery the bank, as a secured creditor, had the right to prove and have allowed against his estate the full amount of its claim for $41,807.50, and to collect dividends thereon from such assets as were in the estate until it realized from such dividends and the liquidation of its collateral the full amount of its claim. In Furness v. Union Nat. Bank of Chicago, 147 Ill. 570, where a secured creditor filed a claim against an estate for the full amount of the note without deducting anything for the value of the securities which had been pledged with him by the debtor as collateral thereto, the court said at pp. 573 and 574: “A creditor, secured by collaterals, is permitted to prove his claim for the full amount, because . he has the double right of suing the debtor personally on the debt itself, and also of realizing from the property pledged as security. He may sue on the principal debt before resorting to the security. . . . These rights remain the same if ‘the debtor dies and dies insolvent.’ (Mason v. Bogg, 2 Mylne & Craig’s Ch. Rep. 443; Ex parte Alliance Bank, L. R. 3 Ch. App. 769 and 771). . . . But the amount of the dividend upon the full amount proven, when added to the amount realized from the collateral, must not exceed the amount of the debt proven.”

As heretofore stated, the bank also not only had the right to accept payment of the note when it did but it was bound to do so to hold the guarantor under circumstances such as have arisen here. As was said in the case of Swarts v. Fourth Nat. Bank, supra, “a refusal to accept them [payments on notes] might well have been held to be an act so likely to entail unnecessary loss upon the accommodation makers that • it would discharge them.” In any event as a secured creditor the bank was not overpaid and neither the estate nor plaintiff was subjected to any loss by reason of the payment of the note by the executrix. As already stated and as charged by plaintiff in his objections filed to the final account and report of the executrix in the probate court, the estate became insolvent and his claim was not paid because of the negligence of the executrix in failing to liquidate the estate’s securities when she was authorized to do so.

Plaintiff’s endeavor to justify a recovery in this ease presents a most unusual situation. On the one hand, as a creditor of the Montgomery estate he insists in effect in having the payment of the note to the bank set aside in part, and on the other hand he insists, as a guarantor, that the note was fully paid. These two wholly inconsistent positions, which plaintiff is forced to assume, are alone sufficient to preclude recovery by him.

In this action for money had and received we are' impelled to hold that plaintiff failed to establish the essential fact that defendant has in its possession money which it should not in equity and good conscience retain as against plaintiff.

While the judgment in the form entered by the trial court properly denied recovery to plaintiff, in our opinion that portion of the judgment which found the issues for plaintiff on his amended statement of claim was erroneously entered. Defendant sought relief on its counterclaim only in the event that plaintiff prevailed on his statement of claim.

For the reasons stated herein the judgment of the municipal court will be reversed in its entirety and judgment entered here in favor of defendant and against plaintiff on the latter’s statement of claim and in favor of plaintiff and against defendant on the latter’s counterclaim.

Judgment reversed and judgment here in favor of defendant and against plaintiff on statement of claim.

Judgment here in favor of plaintiff and against defendant on counterclaim.

Friend and S candan, JJ., concur.


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    Frank M. McKey, Jr., Successor Trustee, Appellee, v. Victory Ice and Ice Cream Company, Appellee. Chicago Realty Company, Appellant.
    Gen. No. 40,601.

      Heard in the second division of this court for the first district at the February term, 1939.
    Opinion filed February 23, 1940.
    Samuel B. Barnett and Louis E. Levinson, both of Chicago, for appellant.
    Sonnenschein, Berkson, Lautmann, Levinson & Morse and Kirkland, Fleming, Green, Martin & Ellis, all of Chicago, for appellee; Isaac E. Ferguson, of Chicago, of counsel.
   Mr. Presiding Justice John J. Sullivan

delivered the opinion of the court.

This appeal seeks to reverse an order which approved, over the written objections of the intervener, the master’s report of the sale of the premises involved in this foreclosure proceeding.

The complaint to foreclose the trust deed in question alleged inter alia that the indebtedness secured by such trust deed was in default to the extent of $272,983.84. The trust deed upon which this action is predicated provided in part as follows:

“Article 11, Section 8. At any such sale . . . the Trustee or any successor in trust may bid for and purchase said mortgaged premises or any part thereof. The purchaser, as an express right hereby irrevocably given and granted, at any such sale shall be entitled in making settlement or payment for the property purchased at any sale thereof to use and apply any bonds, and any matured and unpaid coupons hereby secured, in payment of the bid, or purchase price, by presenting such bonds and/or coupons in order that there may be credited thereon the sum apportionable and applicable to the payment thereof out of the net proceeds of such sale; and thereupon such purchaser shall be credited on account of such purchase price payable by him with the sum apportionable and applicable out of such net proceeds to the payment of the bonds and coupons so presented. Provided, However, that in all cases the purchaser or purchasers shall pay in money a sufficient sum to cover the items referred to in subparagraphs (a) and (b) of Section 7 of this Article.” [Fees of master, trustee and trustee’s solicitors.]
“Article XII, Section 2. All powers and rights of action hereunder may be exercised and enforced at all times by the Trustee, at its election, and in its discretion, without the possession or production of any of said bonds or coupons, or proof of ownership thereof at any time whatsoever when default exists as herein provided. ’ ’

The decree of foreclosure contained the following, among other, provisions:

“That the plaintiff properly instituted this suit as the representative of and for and in behalf of the owners and holders of all outstanding and unpaid bonds and interest coupons described in and secured by the trust deed foreclosed in this cause; that Frank M. McKey, Jr., is now the duly appointed, qualified and acting successor trustee under the trust deed herein foreclosed, and is the duly qualified and acting plaintiff herein.
‘ ‘ The court hereby reserves and retains jurisdiction of the subject matter of this cause and of all parties hereto for the following purposes:
“To advise and instruct Frank M. McKey, Jr., in respect to his powers and duties as successor trustee under the trust deed in the further administration of said trust.
“That the plaintiff . . . may become the purchaser at such sale.
“That any purchaser shall pay the master’s fees [also fees of trustee and trustee’s solicitors] in cash. He may receive credit on the balance of his bid for the pro rata amount distributable out of the proceeds of sale on any bonds and interest coupons which he shall present to the master, who shall endorse thereon the amounts of such credits, and the purchaser shall pay the balance of his bid in cash. ’ ’

That portion of section 2 of Article XII of the trust deed, hereinbefore set forth, which authorized the trustee to bid at the foreclosure sale “without the possession or production of any of said bonds or coupons” was not incorporated in terms in the decree of foreclosure.

The trustee bid at the sale without producing any of the bonds or coupons and without paying any part of his bid in cash and his bid was accepted by the master. The master, trustee and the trustee’s solicitors were entitled to receive immediate cash payment of their fees out of the proceeds of the sale but they voluntarily waived same.

The master reported that at the sale held pursuant to the decree of foreclosure there were no bids for the mortgaged property other than that of Frank M. Mc-Key, Jr., as trustee; that said trustee bid $285,000 therefor and the premises were sold to him; and that the “aforesaid bid by Frank M. McKey, Jr., was made in his capacity as trustee named in the trust deed herein foreclosed and that said trustee bid in said property for the use and benefit of the owners and holders of all the outstanding and unpaid bonds and interest coupons secured by the trust deed herein foreclosed.” The report also showed that the total amount of principal and interest due from the mortgagor on the date of sale was $391,722.77, and that after applying the trustee’s bid of $285,000 against said indebtedness there was a balance of $116,373.20 due to the trustee for the use and benefit of the owners and the holders of the outstanding and unpaid bonds and interest coupons. For this balance the trustee obtained a deficiency decree against the mortgagor.

The intervener, the Chicago Realty Co., which owned two $500 bonds out of a total of $268,800 unpaid and uncanceled bonds, admits that under the terms of the trust deed and the decree of foreclosure the trustee had the right to bid in the mortgaged premises for the benefit of all of the bondholders but claims that the master’s sale was invalid and should be set aside because it did not conform to the terms of the decree of foreclosure in that said decree did not expressly provide that the trustee might bid at the sale without possessing or producing any of the bonds and coupons, but did in express terms obligate any purchaser, including the trustee, to present to the master such bonds and interest coupons as he owned or represented for indorsement of credit thereon and to pay the balance of his bid in cash. It is further claimed that, notwithstanding the trust deed provided that the trustee might bid without producing any of the bonds or coupons, since such power was not expressly confirmed by the decree of foreclosure, it could not be legally exercised by the trustee. In other words, it is claimed that, regardless of the power granted the trustee under the trust deed to purchase the mortgaged premises at the foreclosure sale without producing any bonds or coupons, he was bound under the terms of the decree, the same as any other purchaser, to produce such bonds and coupons as he owned or represented for indorsement of pro rata credit thereon and to pay the balance of his bid in cash.

While the provision of the trust deed authorizing the trustee to purchase the mortgaged premises at the foreclosure sale for the benefit of all the bondholders without owning or producing- any of the bonds or coupons was not incorporated in the decree of foreclosure, the decree after finding “that all of the material allegations of the amended complaint are true and proven,” and that “the plaintiff properly instituted this suit as the representative of and for and in behalf of the owners and holders of all outstanding and unpaid bonds and interest coupons described in and secured by the trust deed foreclosed in this cause,” did provide that: “The court hereby reserves and retains jurisdiction of the subject matter of this cause and of all parties hereto for the following purposes: To advise and instruct Frank M. MeKey, Jr., in respect to his powers and duties as successor trustee under the trust deed foreclosed in this cause, and to supervise and direct said plaintiff in the further administration of said trust. ’ ’ The trust deed was attached to and made a part of the amended complaint and the rights, powers and duties of the trustee, as set forth in said trust deed, were material allegations of the complaint which the decree of foreclosure found had been “proven.”

The provision of the decree of foreclosure whereby jurisdiction of the parties and of the subject matter was reserved to advise and instruct the trustee in respect to his powers and duties, not only clearly recognized all of the trustee’s powers and duties under the trust deed but evinced the intention of the court to see that he properly exercised all of his powers and performed all of his duties. Not only was the trustee authorized to bid at the foreclosure sale without producing the bonds and coupons but it was his duty to do so, as the representative of all the bondholders, to -protect their interests.

The provision of the decree of foreclosure that any purchaser at the sale might, after he paid certain fees and expenses in cash, receive pro rata credit for the balance of his bid for such bonds and interest coupons “as he shall present to the master” and that he “shall pay the balance of his bid in cash” was never intended to be applicable to the purchase of the mortgaged property by the trustee for the benefit of all the bondholders. In our opinion the trustee so purchasing need not pay cash, even though payment in cash is required of others. It was so held in Silberman v. Becklenberg, 279 Ill. App. 250, where the court said at p. 255:

“Defendants also urge that a trustee at a foreclosure sale need not pay cash on his bid, even though the sale is so advertised and required as to others, but that he may offer the indebtedness evidenced by the decree of foreclosure and sale, and that such application satisfies the indebtedness pro tanto. The authorities so hold. Belleville Savings Bank v. Reis, 136 Ill. 242; Burnham v. Roth, 244 Ill. 344 (affirming 126 Ill. App. 222); Chicago Joint Stock Land Bank v. McCambridge, 343 Ill. 456; Liberty Loan Ass’n v. Bosen, 246 Ill. App. 362; Yondorf v. Newman, 272 Ill. App. 627 (Abst.); Reeve, Ill. Law of Mortgages & Foreclosures, vol. 2, pp. 779-781.”

The order of the circuit court approving the master’s report of sale and distribution is affirmed.

Order affirmed.

Friend and Scanlan, JJ., concur.


text:
    George S. May, Trading as George S. May Company, Appellee, v. Chas. O. Larson Company, Appellant.
    Gen. No. 40,652.

      Heard in the second division of this court for the first district at the April term, 1939.
    Opinion filed February 23, 1940.

      Dana B. Simpson, of Chicago, and Edward- F. Mee, of Sterling, for appellant.
    McFarland, Morgan & Stearns, of Chicago, for ap-pellee.
   Mr. Presiding Justice John J. Sullivan

delivered the opinion of the court.

On July 5, 1938, plaintiff, George S. May, doing business as George S. May Company, caused a judgment by confession for $2,629.04 to be entered against defendant, Chas. 0. Larson Co., on 10 promissory notes theretofore executed by said defendant. On August 4, 1938, defendant filed a motion to vacate the judgment by confession, supported by its sworn, petition, in which, after asserting its due diligence in presenting said motion and that it had a meritorious defense it prayed for leave to file a counterclaim. Plaintiff filed a counter-affidavit, which challenged the sufficiency of defendant’s petition and defendant then filed an additional affidavit. After a hearing on said petition and affidavits an order was entered November 29, 1938, denying defendant’s motion to vacate the judgment by confession. Thereafter, on December 8, 1938, defendant again moved to vacate the judgment by confession on the ground that the court was without jurisdiction to enter same in that the judgment had been confessed in the wrong venue or county, and on the same day an order was entered denying this motion of defendant to vacate. Defendant appeals from the orders of November 29, 1938, and December 8, 1938, denying its motions to vacate.

The verified petition filed in support of defendant’s first motion to vacate the judgment by confession, after averring facts sufficient to show that it was diligent in presenting its motion, alleged that the notes signed by defendant, upon which the judgment by confession was entered, were given to plaintiff “for certain alleged efficiency expert services”; that “the consideration upon which said notes were made and entered into has wholly failed”; that “plaintiff advertises itself as an ‘ Efficiency Expert Organization, ’ using certain phrases such as ‘Industrial Engineers,’ ‘Merchandising Experts,’ ‘Statistical Experts,’ etc.”; that “Prior to the execution of said notes the plaintiff company by its duly authorized agents represented to this defendant that if it were permitted to conduct a thorough study of this defendant’s business including methods of .factory production, methods of handling the payment of employes and methods of selling this defendant’s product, that the plaintiff would show this defendant how to develop better co-ordination in manufacturing procedure, how to stimulate production and lower manufacturing costs by balancing and reviving labor rates, how to increase the sale of defendant’s merchandise and produce more of that merchandise at less manufacturing cost, how to make more money by discarding certain items of manufacture and making more of certain other items, how to save money and make money on handling, storage and transfer of materials”; that plaintiff “positively promised and represented to this defendant that they would show” an annual saving of $4,500 by economies of operation; that “plaintiff further represented and promised to this defendant that they would show defendant how to make $3,000 additional profit out of its business through a properly set up sales plan, thereby increasing the annual net earnings of defendant’s business by $7,500”; that defendant relied upon the representations and promises of plaintiff and allowed plaintiff’s employees to inspect the books and factory of defendant; that considerable time was spent by plaintiff in going over said books and observing the operation of the factory; that defendant paid plaintiff the sum of $1,156.67 in five cash payments covering the period from August 14 to September 17, 1937; that “each time that plaintiff requested money from this defendant or requested this defendant to execute one of the notes at issue in the case the said plaintiff made extravagant representations to this defendant that they were formulating new methods of manufacture, new methods of keeping the records, new methods of paying the employees and new methods of making sales, which would improve defendant’s business and raise its annual profit” by more than $7,500; that “each time that a note was executed the plaintiff, by its representative, would tell this defendant that the work must continue and that they could not make final recommendations until they had finished all of their work”; that “by means of these constant promises and repeated assertions that when the job was completed fabulous profits would be shown, the plaintiff was able to obtain these notes from this defendant”; that “this defendant has carefully analyzed the recommendations and reports made by plaintiff”; that “there is not one single new idea or constructive, worth while recommendation in any of said reports ’ ’; and that no consideration whatever was given to defendant for said notes or for the $1,156.67 cash paid to plaintiff.

Plaintiff challenged the sufficiency of defendant’s petition to vacate by written objections and a counter-affidavit. His written objections asserted that the “petition of defendant is insufficient in law to authorize the court to set aside or vacate said judgment”; that ‘1 said petition contains no allegation that the notes upon which judgment was confessed were given before the services were performed by plaintiff, and as pleadings are construed against the pleader it must be assumed that each respective series of notes given by defendant were given after the services were performed and an account stated”; that “there can be no failure of consideration for past services rendered”; that “it is not alleged in said petition what the contract was between the parties, or whether in writing and partly oral, or whether defendant had the right to terminate the services of plaintiff at any time it chose to do so”; and that ‘‘such petition does not allege facts but only conclusions, such as ‘ certain alleged efficiency expert service,’ ‘various extravagant representations, ’ -‘fabulous profits would be shown,’ and various other conclusions.”

Plaintiff’s counter-affidavit alleged substantially that defendant authorized plaintiff in writing to make a preliminary survey and analysis of its business and factory operation to ascertain whether the conditions existing therein would warrant an intensive study and recommendations for improvements; that for this pre-hminary analysis plaintiff was to receive $300, which amount was to be thereafter deducted at the rate of $100 a week from plaintiff’s weekly service charge if defendant employed plaintiff to make a further study ; that the preliminary analysis was made and a report rendered; that such report included a proposal from plaintiff to defendant upon which further employment would be based; that said proposal was in part as follows:

“Each Saturday morning, our engineer will present to you an invoice covering the charge for our services during the week of which that Saturday is the last day. Thereupon, you will give our engineer a check for the amount of this invoice.
“It is understood that you are to have the privilege of cancelling the service at any time by calling a traveling engineer to the plant and giving him a check for all monies due at that time. It is further understood that we work on a $10 per hour basis regardless of the results secured.”

The counter-affidavit then alleged that as to the recommendations for improvements and the methods of putting them into operation the aforesaid proposal provided:

“We shall put our recommendations and suggestions in writing so that there will be a complete record of the installation at all times. We shall not put any recommended changes into effect without previously having received your approval.”

Said affidavit further alleged that on August 7,1937, defendant paid plaintiff $300 for the prehminary report and employed him to proceed with the work, agreeing to pay him at the rate of $10 an hour for the time he devoted to the work, the payments to be made at the end of each week, one-third in cash and two-thirds by notes; that, thereafter, at the end of each week, a statement was rendered by plaintiff to defendant showing the number of hours devoted to the employment at $10 an hour and the total amount due for that week; that each of said statements was accepted and approved and a check given for one-third of the amount shown thereon and the notes upon which judgment was confessed were given for the other two-thirds of the amount shown on said statements; that as the work progressed plaintiff made written reports to defendant; and that, when defendant paid plaintiff’s weekly account in cash and notes, the approval and acceptance by the defendant were indorsed on said reports by its president, Chas. O. Larson. These reports were attached to the counter-affidavit as exhibits and made a part thereof.

Defendant’s additional affidavit filed in support of its petition to vacate the judgment did not deny the material allegations of plaintiff’s counter-affidavit but merely repeated in elaborate detail the allegations of its petition to vacate and gave a rather detailed account of the manner in which plaintiff’s representatives went about the performance of their work in defendant’s factory.

It is contended that “a defense on the merits was shown by defendant’s affidavit ’ ’ since ‘1 the notes were obtained upon representations and promises that plaintiff’s work would show defendant an annual increase in the net income of $7,500” and that “when -plaintiff’s work was completed nothing was shown to improve or increase the monthly income and there was, therefore, a total failure of consideration.” Since the allegations of material facts contained in plaintiff’s counter-affidavit, heretofore set forth, were not denied in defendant’s additional affidavit, their truth was necessarily admitted. Thus the situation as revealed to the trial court by the pleadings was that defendant employed plaintiff for the purpose of having the latter’s engineers investigate the operation and management of defendant’s factory and make recommendations for the improvement thereof; that for the service thus performed defendant was to pay plaintiff at the rate of $10 an hour at the end of each week, with the right to terminate the employment at any time; that there was no guaranty of results to be obtained; that defendant received periodic reports from plaintiff which it accepted and approved; that if the recommendations for changes in the operation of its plant were approved by defendant they would be put into effect, otherwise not; that at the end of each week defendant was presented with a written statement showing the number of hours devoted by plaintiff to its employment during that week, which statement was accepted and approved by defendant and one-third of the amount thereof paid by check and two-thirds by notes; and that defendant did not at any time terminate the employment but requested plaintiff to continue same until the last two' notes were given.

Reduced to its final analysis the purported defense set forth in defendant’s verified petition to vacate and its additional affidavit filed in support thereof was that it did not receive the benefits that its president believed it would receive from the employment of plaintiff. The trial court properly denied defendant’s first motion to vacate the judgment by confession since no meritorious defense was shown and, therefore, no triable issue was raised by the pleadings.

Ordinarily a court of law will grant leave to a debtor to appear and defend against a judgment by confession entered against Mm if he has a valid defense. However, such relief will not be granted, even though the power of attorney was insufficient to give the court jurisdiction of the defendant, if it appears that the debtor owes the amount of the judgment and that he has neither a legal nor an equitable defense to the debt for which the judgment was entered. (Alton Banking & Trust Co. v. Cray, 259 Ill. App. 20; Farwell v. Huston, 151 Ill. 239.)

In so far as defendant relies upon false and fraudulent representations made to it by plaintiff as a defense to the latter’s claim on the notes the rule is that for such representations to constitute a defense they must be as to an existing or past fact and not the mere promise to do some act in the future. Defendant’s chief claim in this regard is that plaintiff represented that as a résult of his “efficiency” analysis and recommendations, defendant’s net income from its business would be increased $7,500 a year. Discussing a similar question in Brodsky v. Frank, 253 Ill. App. 491, which was affirmed in 342 Ill. 110, the court said at p. 495:

1 ‘ The declaration is predicated upon the theory that the plaintiff was induced to enter into a business arrangement with the defendants by reason of the false and fraudulent representations made by the defendants and known by them to be false at the time.
“An examination of the testimony fails to disclose any false representation as to any existing fact. The most that can be said in support of plaintiff’s contention is that there may have been a misrepresentation as to a matter of intention which may have influenced the transaction, but such a misrepresentation as to something to be done in the future is not such fraud in law as warrants a recovery on the ground of misrepresentation and fraud. The fraud must be com-píete at the time of the transaction and not be an intention tb commit a fraud in the future.”

Neither the petition to vacate nor the additional affidavit filed in support thereof showed a failure of consideration for the notes upon which the judgment was confessed. Even though we ehminate from consideration the allegations of plaintiff’s counter-affidavit as to the written contract pursuant to which the notes were given, there is nothing in defendant’s petition to vacate or in its additional affidavit to indicate that there was a failure of consideration for the notes. Instead of showing a failure of consideration in whole or in part for the notes, said petition to vacate and additional affidavit show that the notes were given for the alleged representations and promises of plaintiff. Under such circumstances the representations and promises would constitute the consideration. Passing upon a somewhat similar situation in Gage v. Lewis, 68 Ill. 604, the court said at pp. 616, 617: “These representations and promises, then, were the consideration, and the misfortune with the defendant is, not that he did not have them, or that anything has since transpired whereby he is not permitted to resort to them, but merely that he has not received the benefit from them which he was authorized to expect. . . .

“This case is plainly distinguishable from the class of cases where, in the sale and delivery of personal property, or the purchase of real estate, the title fails, it is held, that such failure may be interposed as a defense to a suit brought for the recovery of the purchase money. In those cases the consideration is the title to the property, while here it is the representation and promise of the party to do an action in the future. ’ ’

Failure of consideration, either total or partial, cannot be pleaded as a defense in a suit upon notes given in payment for professional services after such services have been actually performed. The notes upon which the judgment was confessed were executed on various dates within a period of just a little more than a month and were delivered on the dates indicated thereon for services rendered prior to the dates on which the respective notes were executed and delivered. If the notes were understandingly given by defendant for services it had received, then, whether such services were worth much or little, there was no failure of consideration. (Magers v. Dunlap, 39 Ill. App. 618.) As heretofore stated, plaintiff’s counter-affidavit alleged material facts which were not denied and which showed that the notes were given pursuant to a written contract which specified the terms of payment, that they were given' after the services were performed by plaintiff and that an account was stated between the parties when each set of notes was executed and delivered by defendant to plaintiff. In our opinion the trial court did not err in denying defendant’s original motion to vacate the judgment by confession since no meritorious defense was presented.

Defendant next contends (1) that “this judgment is null and void under the statute because the notes were not executed in Cook county and the defendant is not a resident of Cook county,” and (2) that “the parties cannot make a valid judgment out of one that is void when entered.” Defendant’s second motion to vacate the judgment by confession was supported by an affidavit, which asserted “that the promissory notes contained the confession clauses upon which the judgment was entered in this case were not executed in Cook county and the defendant does not reside in Cook county. The notes were executed in the County of Whiteside and the principal and only office of the defendant corporation is in the City of Sterling in the said County. Said Defendant resides in the County of Whiteside.”

Defendant insists that since the notes were executed in Whiteside county and its residence was in said county, the superior court of Cook county lacked jurisdiction of both the subject matter and the person when it entered the judgment by confession, in view of subsec. 5, sec. 174, ch. 110, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 104.050], which provides as follows: “Any person for a debt bona fide due may confess judgment by himself or attorney duly authorized either in term time or vacation, without process. Judgments entered in vacation shall have like force and effect, and from the date thereof, become liens in like manner and extent as judgments entered in term; provided, however, that such application to confess judgment, whether made in term time or vacation, shall be made in the county in which the note or obligation was executed or in the county where one or more of the defendants reside. A judgment entered by any court in any county other than those herein specified shall have no force or validity, anything in the power to confess to the contrary notwithstanding. ’ ’

The difficulty with defendant’s position in this regard is that this statute does not limit the jurisdiction of courts of .general jurisdiction over the subject matter of judgments by confession, but merely provides the method by which .the court may properly obtain jurisdiction over the person and specifies the venue in which a defendant may be sued. That portion of the statute which provides that “any person for a debt bona fide due may confess judgment by himself or attorney duly authorized, either in term time or vacation, without process” is merely declaratory of the right to enter judgments by confession recognized at common law. Since the constitution confers on the "superior court of Cook county original jurisdiction of all actions at law and in equity, the legislature is precluded from limiting or restricting the jurisdiction of said court over the subject matter of a cause of action recognized at common law. A judgment by confession being a common law proceeding rather than a special statutory proceeding, the failure in the instant case to comply with the provisions of the foregoing statute in the entry of the judgment did not deprive the court of jurisdiction of the subject matter. What this statute did contemplate regulating was the mode of procedure to be followed in entering a judgment by confession. The provision in the foregoing statute “that such application to confess judgment, whether made in term time or vacation, shall be made in the county in which the note or obligation was executed or in the county where one or more of the defendants reside” is unquestionably a limitation upon courts of general jurisdiction as to the county in which judgment may be confessed. TJnless the question of such limitation is raised at the earliest opportunity, it will be considered as waived. There is no question that if defendant had urged specially in its first motion to vacate that the court lacked jurisdiction of the person of defendant on the ground that the latter’s only place of business and residence was in Whiteside county and that the notes were executed there, the court was bound to vacate the judgment by confession and dismiss the suit. However, in our opinion the statutory limitation as to venue is waived unless the question of such limitation is raised at the earliest moment.

The provision of the statute before us is similar to sec. 6 of the former Practice Act, which reads:

“It shall not be lawful for any plaintiff to sue any defendant out of the county where the latter resides or may be found, except in local actions, ’ ’ etc. (Smith-Hurd Ill. Rev. Stat. 1933, ch. 110, sec. 6 [Cahill’s Ill. St. 1933, ch. 110, ¶6].)

It is also similar to former section 28, par. 4 of the Municipal Court Act, which provided as follows as to cases of the first class:

“No such suit shall be commenced in the Municipal Court unless the defendant, if there be but one defendant, resides or is found within the City of Chicago, or if the defendant be a corporation, unless its principal office is within said city”; etc. (Smith-Hurd Ill. Rev. Stat. 1931, ch. 37, sec. 383, par. 4 [Cahill’s Ill. St. 1931, ch. 37, ¶ 416].)

In interpreting those statutory provisions in Iles v. Heidenreich, 271 Ill. 480, the court said at pp. 485, 486: “Said section 28 of the Municipal Court act is similar to section 6 of the Practice act, (Hurd’s Stat. 1913, p. 1859), which provides that it shall not be lawful for any plaintiff to sue any defendant out of the county where the latter resides or may be found, except in local actions, etc. Under this section it has been frequently and uniformly held that the statute confers a privilege upon one who is made defendant in a suit, of which he can avail himself if he chooses, but if he does not plead his privilege in apt time he will be regarded as having waived it and submitted to the jurisdiction of the court. (Kenny v. Greer, 13 Ill. 432; Waterman v. Tuttle, 18 id. 292; Hardy v. Adams, 48 id. 532; Humphreys v. Phillips, 57 id. 132; Wallace v. Cox, 71 id. 548; Drake v. Drake, 83 id. 526; Mason and Tazewell Drainage District v. Griffin, 134 id. 330.) According to these authorities it was the duty of plaintiff in error to plead to the jurisdiction of the court at the earliest moment. If he had raised the question by proper plea or motion and been overruled, the question could have been preserved and raised on appeal or writ of error. He could not enter a general appearance, plead to the merits of the action, go to trial, and then raise such question for the first time after verdict and judgment against him. ’ ’

So here instead of raising the question of jurisdiction of its person by proper motion in apt time defendant by its petition to vacate in the first instance entered a general appearance under which it not only submitted to the jurisdiction of the court to contest plaintiff’s claim on the merits, but it prayed for leave •to file a counterclaim.

For the reasons stated herein the orders of the superior court of November 29, 1938, and December 8, 1938, are affirmed.

Orders affirmed.

Friend and Scanlan, JJ., concur.


text:
    Charles Ritthaler, Administrator of the Estate of Frances Ritthaler, Appellee, v. City of Chicago, Appellant.
    Gen. No. 40,924.
    Heard in the second division of this court for the first district at the October term, 1939.
    Opinion filed February 23, 1940.
    Barnet Hodes, Corporation Counsel, for appellant.
    Alexander J. Resa and L. Louis Karton, Assistant Corporation Counsel, of counsel.
    Finn & Miller, of Chicago, for appellee.
   Mr. Presiding Justice John J. Sullivan

delivered the opinion of the court.

This appeal by defendant, City of Chicago, seeks to reverse a judgment for $7,500 entered against it upon the verdict of a jury in an action brought by plaintiff, Charles Ritthaler, administrator of the estate of Frances Ritthaler, deceased, for damages for her wrongful death, which it was alleged resulted from injuries sustained by her when an automobile in which she was a passenger struck a hole or holes in Vincennes avenue at or near Winston avenue in the City of Chicago.

At about 9 :30 p. m., on November 22, 1936, Frances Ritthaler was a passenger in the automobile of one Reginald Weaire. At the intersection of Vincennes avenue and Winston avenue the automobile struck two holes in the street, throwing Mrs. Ritthaler from her seat and causing her to come down with great force. She was pregnant about five months at the time. Nothing unusual about her condition was noticed upon her arrival at home a few minutes later. The next day she started to bleed, and on November 27, 1936, “she began to hemorrhage. ’ ’ On December 4,1936, she was taken to the hospital. December 8, 1936, she had a miscarriage and died the next day. The evidence also disclosed that she had been in good health, that she had been married for almost three years, that she was 29 years of age, that she was living with her husband at the home of her parents for two years preceding the date of the accident and that she left her surviving her husband, Charles Ritthaler, her father, Francis Worthley, her mother, Frances Worthley, and her brother, Virgil Worthley.

The only question presented is whether the judgment is excessive. Defendant’s theory as stated in its brief is “that no pecuniary loss has been shown to have been suffered by the surviving husband and next of kin and that therefore, the verdict and judgment rendered in favor of plaintiff is grossly excessive and should be reversed and set aside.” Plaintiff insists that under the law and the evidence the judgment is not excessive and should be affirmed.

In its brief defendant states that 1 although it is well settled that as to lineal relations the law presumes pecuniary loss from the fact of death alone, yet the cases uniformly require that proof be introduced in evidence upon which the jury may base an estimate of damages,” and then cites several cases (Cleveland, C., C. & St. L. Ry. Co. v. Baddeley, 52 Ill. App. 94; Pittsburgh, C., C. & St. L. Ry. Co. v. O’Donnell, 118 Ill. App. 335; Rautman v. Chicago Consol. Traction Co., 156 Ill. App. 457), in which the evidence showed that the deceased wife was engaged in some remunerative occupation at the time of her death and the court held that the damages awarded to the surviving husband or next of kin were not excessive. There was no intimation in any of these cases that an award of substantial damages under circumstances such as exist here would be improper.

Section 2 of “An Act requiring compensation for causing death by wrongful act, neglect or default” (ch. 70, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 38.02]) provides, among other things, that “the jury may give such damages as they deem a fair and. just compensation with reference to the pecuniary injuries resulting from such death.” Defendant argues that plaintiff is obligated under the statute “to introduce at the trial evidence concerning the personal characteristics of the deceased, her prospects in life, her mental and physical capacity, and the amount of her earnings as proof of what she might in all probability earn and contribute to her husband and next of kin.” In support of this argument defendant cites City of Chicago v. Major, 18 Ill. 349, where the court said at pp. 359, 360:

“The rule is correctly stated that the plaintiff’s damages could only be estimated for the pecuniary loss suffered by the death of the deceased, without taking into account the mental anguish or bereaved affections, and that the jury must make their estimate of such pecuniary damages from the facts proved, and that it was not necessary that any witness should have expressed an opinion of the amount of such pecuniary loss. In this, as in all other cases, it was proper for the jury to exercise their own judgment upon the facts in proof, by connecting them with their own knowledge and experience, which they are supposed to possess, in common with the generality of mankind.”

The language quoted can hardly be considered authority for any such rule as is urged in the foregoing argument of defendant, since in the Major case a judgment for the plaintiff was affirmed on a wrongful death claim when the only evidence introduced that might possibly have a bearing upon the question of damages was that the deceased was a boy three or four years old and that his parents were poor people. On the basis of this evidence alone the court did say in that case that “it was proper for the jury to exercise their own judgment upon the facts in proof, by connecting them with their own knowledge and experience, which they are supposed to possess in common with the generality of mankind. ’ ’

In McFarlane v. Chicago City Ry. Co., 288 Ill. 476, where the evidence showed that the deceased was a widow, 57 years of age, who was in good health, did her own housework, and kept a seven-room house in which there lived, in addition to herself an adult son and daughter and two roomers, in discussing the question of the damages that may be allowed in an action for wrongful death, the court said at pp. 482, 483: “In every action of this character ‘the jury may give such damages as they shall deem a fair and just compensation with reference to the pecuniary injuries resulting from such death.’ (Hurd’s Stat. chap. 70, sec. 2.) There is no rule by which the pecuniary loss can be exactly determined, and the jury must therefore calculate the damages with reference to a reasonable expectation of benefit from the continuance of the life. These children might reasonably expect in many ways to derive pecuniary benefit from the continued life of the intestate. It is not required that the evidence shall afford data from which the extent of the pecuniary loss can be ascertained with certainty. Clearly, one of the elements of pecuniary loss is the personal service of deceased. (Goddard v. Enzler, 222 Ill. 462; Baltimore and Ohio Southwestern Railway Co. v. Then, 159 id. 535; Illinois Central Railroad Co. v. Reardon, 157 id. 372; City of Chicago v. Keefe, 114 id. 222.) ”

In the instant case, as in most cases of this kind, the chief element of pecuniary loss is the personal service of the deceased. Since Mrs. Ritthaler did not happen to be keeping house on her own account at the time she was injured and since she was not engaged at that time in any remunerative occupation or business, all of the competent evidence available was presented at the trial. She was 29 years old and in good health. She was married, living with her husband at the home of her parents, and was in a pregnant condition. Surely the expectancy of service from her by her husband and by her parents was none the less because she did not happen to be employed or keeping house at the time of her death. “Some wives perform manual labor — others do not; yet the husbands of the latter no less than the former would certainly be entitled to compensation from wrong-doers for causing inability to perform service . . . there need be no direct or express evidence of the value of the wife’s service, either by the day, week, month or any other period of time.” Metropolitan St. R. Co. v. Johnson, 91 Ga. 466, 18 S. E. 816. The frugality, industry, usefulness and attention of a wife surely make her services greater than those of an ordinary servant, and therefore worth more. (Filer v. Filer, 301 Pa. 461.) In Gainesville H. & W. Ry. Co. v. Lacy, 86 Tex. 244, 24 S. W. 269, it was held that the term “service” by a wife did not fairly represent the dignity of the relation she occupied in the marital copartnership. In this connection the court said: “The wife’s labor, while equally valuable to the community, does not command a price in the market, and therefore cannot be proved by experts, as can that of the husband.”

In the comparatively recent case of Cohen v. Shayhin, 277 Ill. App. 613 (Abst.), in which certiorari was denied by the Supreme Court, a judgment for $10,000 for the wrongful death of a married woman was held to be not excessive. Since, as was said in McFarlane v. Chicago City Ry. Co., supra, “There is no rule by which the pecuniary loss can be exactly determined, and the jury must therefore calculate the damages with reference to a reasonable expectancy of benefit from the. continuance of the life,” and since there is no claim that the trial was unfair or that the jury was influenced by any improper motive, the verdict of the jury after its approval by the trial court should not be disturbed merely because of its amount.

The judgment of the circuit court is affirmed.

Judgment affirmed.

Friend, and Scanlan, JJ., concur.