author: Moran, P. J.

text:
    Eugene S. Pike v. Levi Z. Leiter et al.

      Landlord and Tenant—Ground Lease—Provision for Renewal—Compliance with—Use of Part of Premises for Street—Duty of Grantee of Lessor—Appraisement—Award of Umpire-—New Lease—Tender and Acceptance—Parol Evidence.

    1. Upon a bill and cross-bill involving a ground lease of certain premises and a renewal thereof under the provisions of the original lease, it is held: That the grantee of the original lessor obtained no title to the part of the premises in question, of which the city had acquired title for use as part of a street; that the award made by the umpire appointed by the appraisers is valid, the appraisal fc® He the rental for the new term not including the portion of the premises used as a part of the street; and that the new lease tendered, by the owner was duly accepted and is a valid and subsisting lease.
    2. The acceptance of an instrument is a matter of intention to be gathered from the acts and words of the person to whom it is offered.
    3. In the absence of fraud, parol words, whether prior, contemporaneous, or subsequent, are inadmissible to alter or annul a sealed instrument.
    [Opinion filed May 16, 1888.]
    Appeal from the Superior Court of Cook County; the Hon. Gwy-cth Gabnett, Judge, presiding.
    In 1866, A. Nisbefc Turnbull, being the owner in fee of certain parcels of land in the City of Chicago, by an indenture of lease demised to Jamos H., George S. and Chauneey T. Bowen, five lots by the following description:
    “Lots numbered one (1), two (2), three (3), four (4) and five (5), in B. S. Mofris’ subdivision of original lots two (2), three (3) and the north one quarter (1) of six (6), in block two (2), in fractional section fifteen (15), addition to Chicago, said premises being situated on the southeast corner of State and Madison Streets, and constituting a square piece of ground, with a frontage of 100 feet on State Street, and of 100 feet on Madison Street;” for a term, commencing on July 1,1866, and ending July 1,1885. at an annual rental of $3,200, payable in quarterly installments of $800 each.
    The lessees agreed to erect, within a reasonable time, first class storehouses, to cover the entire front of said premises, and to keep said buildings insured in an amount not less than $20,000; the lessor, for himself, his heirs and assigns, covenanted with the lessees, their administrators, executors and assigns, to pay the value of the buildings, as follows: one-third cash at the expiration of the term, and the remainder in two annual installments, in one and two years, with interest at six per cent, such value to be ascertained as follows: That the lessor and the lessees should severally appoint one disinterested real estate owner in Chicaeo to value the builclines. and if said two persons should differ in regard to the value, they should appoint a proper person to be umpire between them, and the decision of such two persons first named, or, in case of their disagreement, of such umpire, should be final and conclusive.
    It was further provided in said lease that if said lessees, their administrators, executors or assigns, should, as early as two years before the expiration of the aforesaid term, signify to the lessor, his heirs or assigns, their desire to take a new lease of the land aforesaid, for a term of twenty years next after the expiration of the term first granted, at an annual rental equal to six per cent, upon the value of said land at the end of said term” the said lessor, his heirs or assigns, instead of paying for said buildings at the end of said first term, should and would make and execute to said lessees, their heirs or assigns, a new lease of said premises for a term of twenty years next after the expiration of the said first term, at an annual rental equal to six per cent, of the value of the land (exclusive of the buildings) at the end of said first term. Such new lease to contain all the covenants contained in said first lease except the covenants for the renewal of the lease and for the purchase of the buildings, and also to contain a covenant that at the expiration of the term named in said new lease, said lessor, his heirs or assigns, would pay to said lessees, their executors, administrators or assigns, such a sum of money, cash in hand, as the buildings then on said premises should be fairly worth for building materials; that for the purpose of such new lease the value of said land, at the expiration of said first term, should be fixed and determined conclusively, by appraisal of persons of the character aforesaid, to be appointed in the manner aforesaid, at least one month before the expiration of said first term; that the annual rental under said new lease should be a sum equal to six per cent, of the value so determined. The lessees further agreed to pay all water rates, taxes and assessments.
    The lease also provided that if any installment of rent should remain unpaid for thirty days, the lessor might sell at auction, to the highest bidder, all the buildings and improvements on said premises, and all the right, title and interest of the lessees in the demised premises, which sale should be a perpetual bar to the rights of the lessees.
    The lease contained no provision prohibiting an assignment thereof, nor requiring the assent of the lessor to any assignment. After the making of this lease and on October 2,1866, A. 1ST. Turnbull conveyed the leased lots, with others, to Henry 0. Turnbull, trustee.
    About 1868 a project was started to widen State Street from Madison to Jackson Street, to a width of 100 feet, by taking twenty-seven feet off the west end of the lots on the east side of State Street; and by an agreement between the trustee and the lessees, the erection of permanent improvements on the demised lots was postponed until the proceeding to widen State Street should be completed or the project abandoned.
    The city prosecuted its proceedings for widening, so that in 1870 net damages to the reversion of the five lots for the twenty-seven feet taken off from the west end thereof, were awarded, aggregating §26,802.80, and to the leasehold the sum of §700.
    These damages were not paid by the city, and to prevent the city from taking possession of the twenty-seven feet before paying, a fence was kept up by the tenants at the request of the landlord’s agent, till in the year Í873, when the city was allowed to remove the fence, and improve the land taken from the street under an agreement with the owner that such action should not change the legal status or prejudice the rights of ownership. The tenants had, prior to the removal of the fence, built on the lots on the new line of State Street.
    Of the assessment made by the city for benefits on property not injured or diminished by the improvement, something more than one half the aggregate was collected, but the amount awarded to the tenants or to the owners of the reversion of the lots in question was not tendered to be paid, and no notice that sufficient money for that purpose was in the hands of the city treasurer was ever given in the corporation newspaper, as required by Sec. 16, Chap. 7 of the city charter, under which the proceeding was had, but the city improved the twenty-seven feet as part of the street, and continued to use it as such.
    In July, 1876, Turnbull brought suit against the city in the United States Circuit Court for “the Northern District of Illinois to recover damages awarded to the reversion, and in May, 1877, he recovered a judgment for the amount of such damages, and for. the interest thereon from the time the city had taken possession of the land. This judgment was entered after trial and pending a motion for new trial by stipulations between Turnbull and the city, by which it was agreed that Turnbull should execute a conveyance of the twenty-seven feet to the city which should be delivered to the corporation counsel to be held in escrow until the city paid the judgment. The conveyance was executed and contained a clause reciting that the premises conveyed were “’to be used as a part of State Street, this conveyance being made for the sole purpose of ratifying and confirming certain condemnation proceedings heretofore instituted by said City of Chicago under which possession of said premises has been taken by said City of Chicago. This deed is in no way to affect the rights of any lessees of the premises, but is intended to leave the rights of all parties the same as though said city held said premises solely under said condemnation proceedings.”
    After the damages for taking the land had been fixed in the condemnation proceeding, the tenants claimed that they should be allowed a rebate from the rent, but after some dis-z cussion the matter was passed, and the tenants continued to pay the full rent reserved in the lease as it became due, but under protest and claim that a rebate should be allowed.
    On April 10, 1878, Turnbull, the trustee, sold and conveyed to Levi Z. Leiter the lots described in the lease to the Bowens (with other lots), “subject, however, to such rights as the said City of Chicago might have acquired to the west twenty-seven feet of said lots as a part of State Street, by deed, condemnation proceedings, judgment or otherwise.”
    Turnbull, by an agreement of the same date, for a consideration of §35,000, assigned to Leiter the judgment against tlie city in the United States Court. About June 25, 1879, the city paid to Leiter the amount of the judgment in the United States Court, and the conveyance from Turnbull to the city for the twenty-seven feet was then placed on record.
    By means of various mesne conveyances the Bowen lease became the property of appellant, Eugene S. Pike, on July 1, 1881.
    After the conveyance to Leiter the tenants under the Bowen lease, including Pike, continued to pay the full rent reserved in the lease, but always under protest and claim of rebate, but no specific amount that should be rebated was mentioned, and no negotiations were had with Leiter on the subject.
    On April 19, 1883, Pike desiring to secure a renewal of the lease under the terms thereof, served on Leiter a notice addressed to him and to the owners and claimants of lots one to five in B. S. Morris’ subdivision aforesaid, at the southeast corner of State and Madison Streets, constituting a square piece of ground, .with a frontage of 100 feet upon State Street and 100 feet on Madison Street; recites the making of the lease by A. Uisbet Turnbull to the Bowen Brothers, July 2, 1866, of said premises, describing them as in the original lease, and the provision in said lease in reference to a renewal, and the requirement therein as to notice; that Pike is the owner by purchase and agreement of said lease, and as such owner signifies his desire to take a new lease of the land aforesaid for the term of twenty years next after the expiration of the original term in the manner provided in said original lease.
    On June 5, 1883, Leiter replied to said notice as follows:
    “Chicago, June 5, 1883.
    “Eugene S. Pike, Esq.

      “Dear Sir:—In your notice to me, dated April 2, 1883, given by you, as assignee of the lease formerly held by James H. Bowen, George S.'Bowen and Cbauncey T. Bowen, of lots one, two, three, forir and five, in B. S. Morris’ subdivision of original lots numbered two (2) and three (3), and the north quarter (J) of lot numbered six, in block number two, fractional section fifteen addition to Chicago, dated July 2, 1866, you state that you desire to take a new lease of the land aforesaid for a term of twenty years next after the expiration of the term granted by said lease to the Bowens.
    “As you are aware, the west portion of said lots (being the west twenty-seven feet, more or less) was long since condemned by the City of Chicago for the purpose of widening State Street, and has for many years been used as a part of State Street, and can not, therefore, be included in any new lease given by me.
    “ If you desire to renew the lease upon that part of said lots not condemned by the city for State Street, for an additional term of twenty years from the expiration of the old lease, you will please notify me to that effect in writing before July 1st, proximo.
    “Yours very truly,
    “ 1. Z. Leitee.”
    To this letter Pike replied as follows:
    “Chicago, June 8, 1883.
    “ L. Z. Leitee, Esq.

      “Dear Sir:—Yours of the 5th just at hand, and in answer will say that in my notice to you for a new lease I followed the language of the original, that vagueness or ambiguity of expression might be avoided and every doubt of proper and sufficient notice silenced. If it is true, as you assert, that the City of Chicago has legally condemned any portion of this property, in that case I desire a new lease of the uncondemned part. The laws of the State make ample provision to cover such an emergency. If, however, no part of said property has been legally condemned, the notice for a new lease is intended to cover the exact property, in its entirety, embraced in the old lease.
    “ Very resptly. yours,
    “ Eugene S. Pike.”
    Ho further communication passed between the parties on the subject of the renewal lease until April 29, 1885, when Leiter wrote Pike as follows:
    “ Eugene S. Pike, Esq.

      “Dear Sw:—You are hereby notified that I have selected Van H. Higgins to act as appraiser on my part, under the provision of the lease from A. Misbet Turnbull to James H. Bowen, George S. Bowen and Chauncey T. Bowen, of lots one to five, inclusive, in B. S. Morris’ subdivision of original lots two, three, and north one quarter (J) of six, in block two, in fractional section fifteen addition to Chicago, dated July 2, 1866.

      “ Levi Z. Leiter.”
    Pike replied by the following notice:
    “Chicago, 111., May 2, 1885.

      “ Levi Z. Leiteb, Esq.

      “Dear Sir:—You are hereby informed that I have chosen Potter Palmer, Esq., to act for me as appraiser under the provisions of the lease made by A. ETesbit Turnbull to James H. Bowen, George S. Bowen and Chauncey T. Bowen, of lots one to five, inclusive, in B. S. Morris’ subdivision of original lots two, three, and north one quarter Q) of six, in block two, in fractional section fifteen addition to Chicago, dated July 2, 1886.
    “ Very truly yours,
    “ Eugene S. Pike.”
    Said appraisers were unable to agree upon the value of the premises, and by the following instrument they appointed Mark Skinner to Le umpire:
    “ Whereas, on the second day of July, A. D. 1866, A. Nisbet Turnbull, of Baltimore, Maryland, as party of the first part, and James H. Bowen, George S. Bowen and Chauncey T. Bowen, as parties of the second part, of the City of Chicago, State of Illinois, executed a lease of that date for certain premises in said City of Chicago, known as lots numbered one (1), two (2), three (3), four (4) and five (5), in B. S. Morris’ subdivision of original lots two (2), three (3), and the north one quarter of six (6), in block two (2), in fractional section fifteen (15) addition to Chicago, said premises being situate on the southeast corner of State and Madison Streets, and constituting a square piece of ground, with a frontage of 100 feet on State Street and 100 feet on Madison Street.
    “ And whereas, in and by said lease, said lessees, Janies H=, George S. and Chauncey T. Bowen, and their assigns, have a right of renewal for the term of twenty years, on giving notice as required by said lease, and procuring an appraisement of the value of said lands, to fix the amount to be paid as rent on a basis of six per cent, annually upon the value of said land.
    “ And whereas Levi Z. Leiter has become the owner of said lands and Eugene S. Pike has become the assignee and owner of the interests of said Bowens under said lease.

      “ And whereas said Leiter has chosen as an appraiser to fix the value of said lands, under said lease, as such owner thereof, Van II. Higgins, to act for and represent the owner in appraising said lots and lands.

      “ And whereas said Pike has chosen as appraiser to fix the value of said lands under said lease as the owner of leasehold estate and of the interests of said Bowens under said lease, Potter Palmer, to act for and represent the owner of said leasehold estate in appraising said land and lots under said lease, and in pursuance of its terms.
    “And whereas both of said appraisers have consented to act in the premises; and whereas, after canvassing the matters submitted to them, and trying to agree upon the valuation thereof, they have been unable to agree upon the value thereof.
    “ And whereas in and by the terms of said lease it is stipulated and agreed that in such case said appraisers or parties chosen to fix the value of said premises shall choose a proper person to be umpire between them.
    “How, therefore, in pursuance of the terms of said lease, and the authority thereby conferred upon the undersigned by the terms thereof, and by the owners of said land and said leasehold estate,
    “We, the undersigned, do hereby appoint the Hon. Mark Skinner to be umpire between us, to decide as to the value of said lots and lands under and in pursuance of the terms of said lease.
    “ Witness our hands and seals this 8th day of May, A. D. 1885.
    “ Yah H. Higgins, (Seal)
    “Appraiser chosen by Leiter.
    “ Potter Palmer, (Seal)
    “Appraiser for Mr. Pike.”

      Afterward Skinner made an award in writing in the following terms:
    “Whereas, on the 2d day of July, A. D. 1866, A. hfisbet Turnbull, of Baltimore, Maryland, as party of the first part, and James H. Bowen, George S. Bowen and Oliauncey T. Bowen, as parties of the second part, of the City of Chicago, State of Illinois, executed a lease of that date for certain premises in said City of Chicago known as lots numbered one (1), two (2), three (3), four (4) and five (5), in B. S. Morris’ subdivision of original lots two (2), three (3), and the north one quarter of six (6), in block numbered two (2), in fractional section fifteen (15) addition to Chicago, said premises being situate on the southeast corner of State and Madison Streets, and constituting a square piece of ground, with a frontage of one hundred (100) feet on State Street and of one hundred (100) feet on Madison Street.
    “And whereas, in and by said lease, said lessees, James H. Bowen, George S. Bowen and Cliauncev T. Bowen, and their assigns, have a right of renewal for the term of twenty (20) years, on giving notice as required by said lease, at a rental of six (6) per centum annually upon the value of said premises, to be determined by an appraisement in the manner prescribed in said lease; and whereas Levi Z. Leiter has become the owner of said lands, and Eugene S. Pike has become the assignee and owner of the interests of said Bowens under said lease.
    “And whereas said Leiter has chosen as an appraiser to fix the value of the said lands under said lease, as such owner thereof, Van H. Higgins, to act for and represent the owner in appraising said lots and lands.
    “And whereas said Pike has chosen as appraiser to fix the value of said lands under said lease, as the owner of the leasehold estate and of the interests of said Bowens under said lease, Potter Palmer, to act for and to represent the owner of said leasehold estate in appraising said lands and lots under said lease and in pursuance of its terms.
    “And whereas both of the said appraisers have consented to act in the premises; and whereas, after canvassing the matters submitted to them, and trying to agree upon the valuation thereof, they have been unable to agree upon the value thereof.
    “And whereas in and by the terms of said lease it is stipulated and agreed that in such case said appraisers, or parties chosen to fix the value of said premises, shall choose a person to be umpire between them.
    “And whereas the said Van H. Higgins and Potter Palmer, in pursuance of the terms of said lease, and the authority thereby conferred upon them by the terms thereof and by the owners of said land and said leasehold estate, have appointed Mark Skinner to be umpire between them to decide as to the value of said lots and lands, under and in pursuance of the terms of said lease.
    “How, therefore, I, the undersigned, Mark Skinner, having made examination into the matters submitted to me as aforesaid, and ascertaining that a portion of said premises, to wit, a strip of land twenty-seven (27) feet in width from east to west, by one hundred (100) feet in length from north to south, oif the west end of said lots one (1), two (2), three (3), four (4) and five (5), is now apparently used and occupied as a part of State Street, leaving the premises now one hundred (100) feet front on State Street, by seventy-three (73) feet deep, do hereby decide the value of the same, at the day of the date hereof, to be three hundred thousand dollars.
    “Dated at Chicago this 29th day of May, A. D. 1885.
    “Mask Skinnek.”
    Thereupon negotiations were had between Pike and Leiter as to the form of the new lease. Various drafts of leases were prepared and submitted by each party to the other, and interviews were had between the parties and their respective counsel, but the parties failed to agree upon the renewal lease.
    Pike claimed that the award of Skinner was a valuation of the whole hundred feet square, and insisted that Leiter should make him a lease of 100 feet square. Leiter claimed that the award was a valuation of the east seventy-three feet only, and that he had no title to more than the east seventy-three feet, and ho insisted that lie could not and would not make any lease covering the west twenty-seven feet of the lots.
    On June 30, 1885, Pike assigned the Bowen lease to one Raspin R, Cherry, who immediately notified Leiter of the assignment. This assignment was made by Pike so as to avoid personal liability on the covenants of the renewal lease, but no objection to the assignment was made by Leiter and negotiations for the renewal lease went on in Cherry’s name, but under the direction of Pike’s counsel.
    Leiter in the first week in July caused to be prepared and submitted to Cherry a draft of lease describing the land as described in the Bowen lease, but as subject to the rights of the city in the twenty-seven feet strip, and having some variation in language from the Bowen lease, and fixed the rental at $18,000 per annum.
    This was rejected as follows:
    “ Chicago, July 8,1885.
    “ L. Z. Leiter, Esq.
    “ Dear Sir:—I have read the last lease sent to me and can not accept it. What I desire is just such a lease as you are required to make me by the terms of the old lease; no more, no less.
    “ In negotiations thus far I have acted in the spirit of compromise, but I now decline to make any changes, and require that no deviation whatsoever shall be made in the language or significance of the new lease not provided for in the old one.
    “ Respectfully,
    “ Raspin R. Cherry,
    “By Robert C. Givins, Att’y in fact.
    “ I concur in the above.
    “Eugene S. Pike.”
    LTothing further was done between the parties till, on September 11, 1885, Leiter sent to Cherry a renewal lease signed and sealed by him (Leiter), containing a covenant to pay a rental of $18,000 per year, with provisions which are conceded to have been in all respects as required by the terms of the Bowen lease, and describing the land demised as it is described in the following letter, which accompanied the lease:

      “Chicago, July 1, 1885.
    “ Rasptn R. Cherry, Esq.
    “Sir:—I being advised that on the 30th day of June, 1885, you became the owner by assignment of a certain indenture of lease bearing date the 2d day of July, A. D. 1866, and recorded in the office of the Recorder of Deeds for the County of Cook and State of Illinois, on the 9th day of Rovember, 1866, in book 364 of deeds, at page 441, made by A. Risbet Turnbull, then of Baltimore County, in the State of Maryland, to James H. Bowen, George S. Bowen and Cliauncey T. Bowen, then of the County of Cook and State of Illinois, of all those premises situate in the City of Chicago, in the County of Cook and State of Illinois, known and described as follows, to wit:
    “Lots one (1), two (2), three (3), four (4) and five (5), in B. S. Morris’ subdivision of original lots two (2), three (3), and the north one-quarter of lot six (6). in block two (2), in fractional section (15) addition to Chicago, and I having become on the 10th day of April A. D. 1878, the owner by assignment and conveyance from the lessor in said above mentioned lease, of said lease and of the reversion of a part of the real estate de-, scribed in said lease, namely, of said lots one (1), two (2), three (3), four (4) and five (5), of B. S Morris’ subdivision of original lots two (2), three (3), and the north one-quarter (£) of original lot six (6), all in block two (2), in fractional section fifteen (15) addition to Chicago (said Morris’ subdivision being at the southeast corner of Madison and State Streets, in said City of Chicago), subject, however, to such rights as the said City of Chicago may have acquired to the west twenty-seven (27) feet of said lots one (1) to five (5), inclusive (as originally laid out), as a part of State Street, by deed, condemnation proceedings, judgment or otherwise; and the said lease containing an agreement on the part of the lessor, his heirs or assigns, to make a new lease of the premises in said original lease described, for the term of twenty years next after the expiration of the term granted by said original lease, upon compliance with certain preliminary conditions by the lessees in said original lease, their executors, administrators or assigns, which conditions have been complied with; and also upon terms, the ascertainment of which is provided for in said original lease, and which have accordingly been ascertained as to that part of said land in said original lease described, conveyed to me as above mentioned, and of which 1 am now the owner by the above mentioned assignment and conveyance, and I having no other right, title or interest in the lands described in said original lease than that derived and acquired, as above set forth; therefore, in performance of the said agreement for a new lease, so far as I am or the land owned by me is chargeable with the burden of fulfilling said agreement for a new lease, I hereby tender to you for acceptance, a lease, duly executed by myself) of all those premises situate in the City of Chicago, in the County of Cook and State of Illin:iis, known and described as follows, to wit:
    “Lots one (1), two (2), three (3), four (4) and five (5), in B. S. Morris’ subdivision of original lots two (2), three (3), and the north one-quarter (J) of original lot six (6), all in block two (2), in fractional section fifteen (15) addition to Chicago, exclusive of all the buildings standing thereon (said jiremises being situate on the southeast corner of State and Madison Streets, and constituting a square piece of ground, with a frontage of 100 feet on State Street and of 100 feet on Madison Street), and subject, however, to such rights as the said City of Chicago may have acquired to the west twenty-seven (27) feet of said lots one (1) to five (5), inclusive (as originally laid out), as a part of State Street, by deed, condemnation proceedings, judgment or otherwise, for the term of years, and containing the covenants, agreements and other provisions contemplated by the agreement in said original lease contained for a new lease. Very respectfully yours,
    “Levi Z. Letter.”
    On the receipt of the letter and lease Cherry wrote to Leiter as follows:

      “ Chicago, Sept. 11, 1885.
    “ Me. L. Z. Letter.
    “ Sir:—I have submitted the lease, and your communication with reference thereto, left with me this morning, to my attorney for his advice, but owing to his engagements I am unable to get answer to-day. I write this note to say that as soon as he gives me an opinion I will decide whether or not to accept the lease and its provisions as you have prepared them, and meanwhile you -will please consider the question as in abeyance.

      “ Tours respectfully,
    “ .Raspin' R. Cheery.”
    To which Leiter replied:
    “Chicago, September 12, 1885.

      “ Raspin B. Cherry, Esq.
    “Sir:—-In reply to your communication dated yesterday, but received by me to-day, I have to advise you that having tendered to yon the lease referred to by you I can not consider any question as in abeyance as you request, but I have held myself since making the tender, and I continue to hold myself, entitled to assert such rights in respect to yourself and the property described in said lease as may be given me by law in consequence of my making you the tender and of your action thereupon.
    “ I decline to enter into any stipulation or to have any understanding with you which will in any way modify or change the effect or result of my communication to you tendering you the lease.
    “ Very respectfully yours,
    “ L. Z. Leiter.”
    On September 15th, Cherrysent to Leiter a duplicate copy of the lease, duly signed and sealed by him (Cherry) and accompanied by the following letter:
    61 Chicago, September 15, 1885.
    “ JV£r. L. Z. Leiter.
    “Sir:—In answer to your communication dated July 1, 1885, and left with me September 11, 1885, with a copy of a lease dated July 1, 1885, to which your signature is appended, I answer as follows:
    “ As stated in your communication, I was on the 30th day of June, 1885, the owner, by assignment, of a certain lease bearing date July 2, 1866, made by A. LTisbet Turnbull to James H. Bowen, George S. Bowen and Ohauncey T. Bowen, of lots one (1), two (2), three (3), four (4), and five (5) in B. S. Morris5 subdivision of original lots two (2), three (3) and the north one-quarter (N. Jr) of lot six (6), in block two (2) in fractional section fifteen (15) addition to Chicago, the same having been assigned to me by Eugene S. Pike, who w.is the assignee of the said James H. Bowen, George S. Bowen and Ohauncey T. Bowen, and which lease was for a period of time expiring July 1, 3 885, and with a provision for the extension thereof, for a term of twenty years next after the expiration of the term granted thereby, upon the lessee giving two years and six months notice in writing of the desire so to do, at an annual rental equal to six (6) per cent, upon the value of said land at the end of the term thereby granted.
    “ Also, as stated in your communication, said premises were conveyed to yon by a deed of April 10, 1878, which was executed by Henry C. Turnbull personally, and as executor and trustee, as therein mentioned, Alexander ¡Nisbet Turnbull and others, as heirs of the lessor, subject to such rights as the City of Chicago may have acquired to the west twenty-seven feet of said lots one (1) to nine (9), inclusive, as originally laid out, asa part of said street, by deed, condemnation.proceedings, judgment or otherwise, and also subject to said lease and its provisions, with covenants of warranty, except as to said lease and agreement, and any taxes or assessments levied or charged on said premises, or against the rights and interests of said City of Chicago or the public, which they, or either of them, now have or may hereafter acquire in said west twenty-seven feet of said lots one (1) to nine (9), both inclusive, in said Morris’ subdivision.
    “ And I also call your attention to the fact that your grantors, by quit-claim deed dated in January, 1877, to the City of Chicago, conveyed and quit-claimed all interest in the west twenty-seven feet of sub-lots one (1) to six (ri), inclusive, in B. S. Morris’ subdivision of original lots two (2) and three (3), and the north one-quarter (H. J) of lot six (6), in block two (2), in fractional section fifteen (15) addition to the Town oí Chicago, in Cook County, Illinois, said above described premises to be used as a part of State Street, the conveyance being made for the purpose of ratifying and confirming certain condemnation proceedings theretofore instituted by the City of Chicago, under which possession of the premises had been taken by said City of Chicago, with the provision that the deed was in.no way to affect the rights of any lessees of said premises, but was intended to leave the rights of all parties the same as though said city held said premises solely under said condemnation proceedings.
    “And I further call your attention to the fact that the condemnation proceedings mentioned in said deed were void, and • conferred no rights upon the city to the use of the west twenty-seven feet of said lots; and therefore, by the express provision of said deed, the rights of the lessees and their assignees were not affected by the proceedings to condemn or the deed to the City of Chicago.
    “ I further call your attention to the fact that after yon received the deed from the said Turnbulls you waived any objection to the condemnation proceedings, and ratified and confirmed the same, so as to prevent yon from asserting any claim or title to the said west twenty-seven feet; and for this reason it is that you are now unable, as you state in your communication, to perform the covenant in said original lease, to give a new lease covering the whole of said .lots described in the original lease for the extended term therein mentioned.
    “I further call your attention to the fact that the notice required by the lease of the election to take the extended term having been given on the twenty-ninth day of May, 1885, Mark Skinner, chosen as umpire by two appraisers, selected by you as owner, and Eugene S. Pike as assignee of the said Bowens, according to the provisions of said original lease, decided the value of the premises described in the original lease to be three hundred thousand dollars ($300,000), and that thereby the said Eugene S. Pike was entitled to a lease for the premises described in said original lease for the renewed or extended term, at the said appraised value of $300,000, and I succeeded to the rights of said Eugene S. Pike as his assignee.

      Mow, therefore, I give you notice that I accept the lease signed by you, bearing date July 1, 1885, and left with me on the morning of September 11, 1885, as a lease of a part of said lots described in the original lease, and being all of the said lots that you are able to lease to me, and furnish to me the use and possession thereof by reason of your own wrongful act in the premises; and I further give yon notice that in accepting said lease I do not agree to pay the sum of eighteen thousand dollars (§18,000) per annum, being six (6) per cent, interest on the sum of §300,000, but shall claim that I am entitled to an abatement therefrom of the fair rental value of tiie west twenty-seven (27) feet of said lots, as described in the original lease; and I further give you notice that I do not accept the said lease as a full performance of the covenant in said original lease to grant an extended term, but only as a part performance thereof, and that you will be held liable for such damages as the law may allow for the non-performance of said covenant in full, to whoever may have a legal cause of action therefor.
    “ I further give you notice that I have signed the lease left with me on the morning of September 11, 1885, and had prepared a duplicate thereof, which I have signed and herewith send to you, so that you may affix your signature thereto and retain the same as a duplicate copy of said lease.
    “¡Raspih R. Cherry.”
    On September 24, 1885, Leiter sent a letter to Cherry in which he notifies Cherry that he holds Cherry’s communication to him, dated September 15, 1885, a rejection of the lease dated July 1, 1885, which Loiter tendered to Cherry on the 11th of September, 1885, by a communication bearing date July 1, 1885, and thát Cherry’s right, title and interest as a tenant in the lands and premises described in said lease, tendered to and rejected by Cherry, having expired and determined, “ I hereby demand the immediate possession of the following described premises ” (describing them); notifies Cherry that he is ready to pay him, as assignee of the original lease, the value of the building, and that he has appointed Jonathan Clark to value said building, and requests Cherry to appoint a person to act with Clark for the purpose of proceeding to the ascertainment of the value of said building, as provided in the lease.
    On September 25,1885, Cherry, by an instrument under Iiis hand and seal, transferred to Pike the renewal lease and also the original lease with all rights and covenants in said leases contained, and with all claims, actions and causes of action arising out of said loases; and September 30, 1885, and on every quarter day since that time, Pike tendered to Leiter the amount of rent falling due as the same is reserved in the renewal lease, but at all times under protest and claim that he is entitled to the rebate of the fair rental value of the west twenty-seven feet; but Leiter has at all times refused to receive the rent so tendered, and has insisted that the lease made by him and tendered to Cherry was not binding and never became operative as a lease.
    The premises were, in September, 1885, in the actual possession of certain parties as the tenants of Pike and of Pike’s lessees, and on September 28, 1885, after having sued for possession, Leiter commenced an action of forcible entry and detainer against said occupants, and upon petition Pike became a party defendant to said suit, and about the same time a suit in ejectment was commenced by Leiter in the Superior Court of Cook County against the same parties.
    In June, 1886, Pike filed a bill, and by leave of court on December 20th thereafter an amended bill, in which he claimed that he was entitled as against Leiter for the overpaid rent, and also for the amount received by Leiter from the city for the portions taken by the city for widening State Street; that the renewal lease by Leiter was not a full compliance with the covenants contained in the original lease; that he was entitled to an abatement of the rent for the fair rental value of the twenty-seven feet; that the renewal lease executed by Leiter was accepted by Cherry and has ever since been binding on Leiter and is a valid lease, and that the only question left open in said lease is as to the amount of rent complainant is tt> pay for the premises therein described. But if the court should bo of opinion that said renewal lease was a performance and fulfillment of Letter’s obligations in respect of making a new lease and Skinner’s award was a valid award, and the assignee of the original lease became liable to pay §18,000 per year as rent of the premises described in said renewal lease, then complainant offers to pay all rent accrued under sa'd renewal lease. Also asks for a construction of the Skinner award and if such award was a valuation of only the east seventy-three feet, then that it be declared void and that a valuation of the premises he- made under direction of the court. Also prays for an injunction against the prosecution of the suit at law to turn Pike or his tenants out of said promises.
    Leiter answered this bill and filed a cross-bill in which he included as defendants Schlesinger & Mayer and Parmly & Sweet, who "were lessees of Pike, setting up the facts; insisting that Skinner’s award was a valuation of the east seventy-three feet only of the lots described in the original lease; that he, Leiter, had obtained title to only that portion of said lots; that he was always ready to fulfill his obligations in respect to said renewal lease; that the lease tendered to Cherry was a complete performance of Ms obligations in that regard; that Cherry rejected said lease; that the only obligation remaining on Leiter was to pay the just valuation of the buildings on said land ; that he was ready to do so; prayed that the renewal lease might be declared inoperative as a lease and might be ordered surrendered up to be canceled, and that it might be adjudged that Pike and the defendants who claimed under him acquired no valid interest by said instrument, and that all the rights of Pike and those claiming under him through the original Bowen lease might be declared terminated and Leiter put in possession of the premises in controversy', and that the value of the buildings be ascertained, etc. The cross-bill was answered by all the defendants thereto, Pike’s lessees setting up some facts supposed to offset their respective rights, which it is unnecessary to state. On the hearing upon the pleadings and the facts above set out, the court entered a decree finding various facts, and allowing to Pike, by Leiter’s consent, §2,880 as an abatement of the rent paid Pike to Leiter from the time Pike became the owner of the Bowen lease until its expiration, for the fair rental value of the twenty-seven feet taken by the city, and adjudging that Pike is not entitled to have any other relief; that the renewal lease executed by Leiter was a full offer of > performance on his part of the obligations resting on him .under the Bowen lease, and was rejected by Oherry and never became operative as a lease, and that neither Cherry nor any of the defendants to the cross-bill acquired any rights thereunder, and enjoining them perpetually from setting up any rights thereunder; and that Leiter is entitled to the possession of the premises, and proceeds to settle the rights of the parties with reference to rent of the premises since the expiration of the Bowen lease and with reference to the value of buildings on the land.
    From this decree an appeal is prosecuted to this court by all the defendants to the cross-bill.
    Messrs. Goody & Green, for Eugene S. Pike, appellant.
    Mr. EL F. Vallette, for Henry 0. Parrnly and Samuel H. Sweet, appellants.
    Messrs. Isham, Lincoln & Beale and Wilson & Moore, for Levi Z. Leiter, appellee.
   Moran, P. J.

Hpon the facts set out in the foregoing statement, which contains all that we deem material appearing in the record of this ease, three principal questions arise :

1st. Did Leiter obtain title by the deed of conveyance made to him by Henry 0. Turnbull, trustee, to anything more than the east seventy-three feet of the lots mentioned in the Bowen lease?

2d. Was the award made by Mark Skinner a valid award, and was his valuation of the east seventy-three feet of the lots, or of the whole hundred feet square described in the original lease?

3d. Was the lease tendered by Leiter to Cherry on September 11, 1885, accepted by Cherry, and is it a binding and subsisting lease?

1st. Letter’s title rested solely on the deed made to him April 10. 1378, and that described the land in question as described in the Bowen lease, but conveyed it expressly subject to such rights as the City of Chicago might have acquired to the west twenty-seven feet of said lots as a part of State Street, by deed, condemnation proceedings, judgment or otherwise. Without entering upon a discussion of the various points made by counsel for appellants as to the regularity or validity of the condemnation proceedings prosecuted by the city, or undertaking to determine what would be the condition of the title of the west twenty-seven feet of the lots in question, as affected by the condemnation proceeding alone, we are clearly of opinion that by operation of said condemnation proceeding, the possession obtained by the city, the judgment obtained by Turnbull in the United States Circuit Court for the value of the said twenty-seven feet, as assessed in the condemnation proceeding, and the delivery by Turnbull of the quitclaim deed in escrow, the city had acquired, as against Turn-bull, prior to the time of the conveyance by him to Leiter, a title to the said west twenty-seven feet, anda right paramount to use and maintain the same as a part of State Street. When Leiter obtained his deed from Turnbull he was powerless to change the conditions then existing with reference to said west twenty-seven feet, and by taking the deed he assumed no obligation to do so. Nor can we see that his purchase of the judgment in the United States Court in any manner affected his relation to the title of the property. The city had, under the stipulation, the right to pay the judgment and place the quit-claim deed on record. Letter, by becoming the assignee of the judgment, had the right to receive the money when the city was ready to pay it, but if he had refused to take the money when the city offered it, he could not thereby prevent the city from putting the deed on record.

The city, then, having acquired a title to the west twenty-seven feet of the lots prior to the conveyance by Turnbull to Leiter, it follows that Leiter obtained by his deed title to the east seventy-three feet of the lots only.

No doubt the tenants under the Bowen lease were entitled to an abatement or rebate of the rent, to the fair rental value of the seventy-three feet taken by the city, as against Turn-hull, and as against Leiter from the time he commenced taking the rent under said lease till the termination thereof.

2d. ' At the time Pike gave notice to Leiter of his desire to take a new lease in accordance with the provisions of the Bowen lease, both of them well knew all the facts relating to the situation of the property and the condition of the titfe. We think it clear that the appraisers selected by the parties were not expected by either of them to value,for the purpose of fixing a rental, the west twenty-seven feet of the lots described in the lease, which portion of said lots was, to the knowledge of all the parties, held and used as a public street, under a title obtained by the city for that purpose.

The notices given by the parties to each other of the selection of appraisers, stated that such appraisers were selected under the provisions of the Bowen lease, but it must he intended that the appraisal of the property for rental was to be of that portion only of the land described in the lease which the proposed lessor had title to, and would not include a portion in use as a street, and, to which the lessor bad no title. The notices and the provisions of the Bowen lease constituted the submission. The purpose of the appraisal was to fix a basis for adjusting the rent that should be paid for such portions of the land as were vested in Leiter by the Turnbull deed. It is true that the instrument signed by the appraisers appointing Skinner umpire, described the land to be appraised as the lots mentioned in the Bowen lease, but it dearly appears from the award that the umpire was not misled by such description, and that he valued only the portion of the land which it was the intention of all the parties lie should value, that is, the east seventy-three feet of the lots mentioned in the Bowen lease.

We do not consider the award rendered susceptible of any other construction. The west twenty-seven feet used and occupied as a part of State Street is treated in the award as diminishing the land described, and, as it is said, “leaving the premises now one hundred feet front on said street, by seventy-three feet deep,” and the value of the same is fixed at $300,000.

The submission was a valid submission, and the award is a clear and precise answer as to the value of the land, upon which, under the provisions of the Bowen lease and the rights and obligations of the parties to the submission as they existed at the time, it was competent to fix a value. The conclusion must be, therefore, that the award was valid.

3d. The yearly rental of the land to be demised by the renewal lease having been ascertained in accordance with the terms and provisions of the Bowen lease, and Pike, as assignee of said lease, having, by compliance on his part with tliu terms of said lease in that regard, entitled himself or his assignee to a renewal lease at the expiration of said Bowen lease, the duty of Leiter on July 1,1885, was one of performance. The covenant to renew the lease ra.n with the land, and he was bound to discharge that covenant as to such portion of the reversion as he held as grantee. By agreement it was competent for Pike to have accepted as performance something less than was called for by the covenant, and so Leiter might have granted something more.

We find that there was negotiation, or perhaps it might more properly he called contention, between Leiter and Pike as to the terms of the renewal lease, and that the contention was continued after the assignment from Pike to Cherry. All efforts of the parties to agree on the draft of a lease which, in any particular, was a departure from the provisions of the Bowen lease, were terminated by- the letter of Cherry, concurred in by Pike, and dated July 8, 1885.

That letter notified Leiter that strict performance was demanded of him, and thenceforth the parties dealt at arm’s length. lío more drafts of leases were submitted by the one to the other for approval, but Leiter, recognizing the requirements of the situation, prepared to tender full performance of his covenant. A lease was prepared by him in strict compliance with the provisions of the Bowen lease, and describing the land demised as it was described in the conveyance from Turnbull to him. This lease, signed and sealed by Leiter, he sent to Cherry, accompanied by the letter set out in the statement of facts, in which he said: “ In performance of the said agreement for a new lease, so far as I am, or the land owned by me is chargeable with the burden of fulfilling said agreement for a new lease, I hereby tender to you for acceptance a lease, duly executed by myself, of all those premises, situate in the City of Chicago,” etc. It will be observed that this is a tender of the lease for acceptance ás a lease. There was no condition that the lease was to be accepted as full performance of the covenant, though Loiter’s position, of course, was that it was in fact and in law a full performance. As is said by the learned counsel for Leiter in their brief filed in this court, “In legal effect the simple question put by the tender of the lease was: Will you become my tenant in respect to the land described in the tendered lease at the rental named therein, and be subject in respect to that land and that rental to, the provisions of the tendered lease relating thereto ? ” The acceptance of the lease, then, as a lease of the land described in it, would necessarily constitute it a valid and subsisting lease between the parties to it, notwithstanding the fact that Pike, or Cherry for Pike, insisted that the lease was not a full performance of the covenants of the original lease, and that Leiter would be held for damages for non-performance of said covenants in full. The question of whether the covenant was performed was and is, under the facts of this case, an entirely different. one from the question—was the lease accepted ?

The tender of the lease by Leiter constituted a delivery of it. The transfer of the instrument from Leiter to Cherry was for the purpose and with the intention on Leitef’s part of vesting in Cherry the estate granted by the lease. This is manifest from his acts and from his words. He intended by what he did, to accomplish a full and final performance on his part. He did not contemplate any further acts of performance whatever. We find nothing in his conduct or his words that gives support to the contention of his counsel that the tender did not constitute a delivery, on his part, of the lease. There is no indication that he expected a communication assenting to the terms of the lease, but returning it to him to be delivered by him to Cherry, bTotliing less than a delivery or offer to deliver on his part, would he a performance of his covenant; hence his tender was a delivery or a tender of delivery, which, if accepted, would at once become a completed delivery of the instrument.

But tlie question still remains, was the lease accepted? The acceptance of an instrument, like the delivery of it, is a matter of intention to be gathered from the acts and words of the person to whom the instrument is offered. How, what were Cherry’s acts? After applying to Leiter to leave the question in abeyance for a day or two, and having been refused and told that Leiter stood on his tender of the lease, he signed and sealed the instrument which Leiter had delivered to him,, and made a duplicate thereof, which he also signed and sealed, and delivered to Leiter to sign and seal, and retain as a duplicate copy of said lease, blow, treating the words contained in the communication accompanying the duplicate lease, that “in accepting the lease I do not agree to pay the sum of 818,000 per annum,” as indicating a rejection of the lease, as counsel contend they did, and what, under the rules of law, must he our conclusion? If there were no inconsistent words, it will he admitted by all that the acts done by Cherry in signing and retaining the lease delivered to him, and sending a duplicate of it executed by himself to be signed and retained by Leiter, would be regarded as most satisfactory, if not most conclusive evidence of his intention to accept the lease. His most solemn and deliberate acts evince an acceptance; his words are said to he inconsistent therewith.

But, saith my Lord Coke, “When the words are contrary to the act which is the delivery, the words are of none effect— non quod dictum est} sed quod factum est, inspicitur„” Co. Lit. 36 a.

And in Leake on Contracts, at page 13, it is said: “In judging of intention from a person’s words and conduct, where his acts are inconsistent with his words, the former are, in general, accepted as a more reliable guide to the intention than the latter, and the conduct may, in some cases, determine the intention, even in opposition to the words.”

Under this rule, which is based on sound reason, it is very dear that Cherry’s conduct proves an acceptance of the lease by him, even allowing that the words of his letter to Leiter indicate a contrary intent. But we are of opinion that the words of the letter, when all read and considered, can not be understood asa rejection of the lease. He wrote: “I give you notice that I accept the lease signed by you, bearing date July 1, 1885, and left with me on the morning of September 11, 1885, as a lease of a part of said lots described in the original lease, and being all of said lots that you are able to lease to me, and furnish me the possession of, by reason of your own wrongful act in the premises.”

That is a plain acceptance of the lease in words, as being a lease of part of the lots and all that Leiter was able to lease, just as Leiter himself contended. It may be that the words of the letter show a reluctant, grumbling, carping acceptance, but there is none the less a clear and unconditional acceptance.

But it is contended that the words, “I further give you notice that in accepting said lease I do not agree to pay the sum of §18,000 per annum,” was a rejection of, or refusal to be bound by the chief agreement on the tenant’s part, i. e., to pay the rental named in the lease; that this notice which accompanied the duplicate lease is to be construed with it, as two instruments executed at the same time as parts of the same agreement. The facts here do not permit the application of the principle invoked. The letter or notice was not an agreement between the parties contemporaneous with the lease. It was not an agreement between the parties at all, and does not purport to be. Allowing it the utmost dignity that can be ascribed to it, it was but an attempt to annul the binding effect of a sealed covenant, by parol expressions made by the covenantor contemporaneous with the delivery of the instrument containing the covenant. As such it was utterly without legal consequence or effect, and could never be introduced in evidence to defeat or modify the covenant. Cherry became bound to pay the rent reserved in the lease when he accepted, signed and sealed the lease tendered to him by Leiter, and when he had done that and had also signed and scaled a duplicate thereof and delivered it to Leiter he created the most solemn evidence of his agreement which is known to the law; and it is a proposition of law settled beyond controversy, that parol words, whether prior, contemporaneous or subsequent, are, in the absence of fraud, impotent to alter or annul such an obligation. Chapman v. McGrew, 20 Ill. 104; Herrick v. Swartwout, 72 Ill. 340; Chitty, Con., 5 and 7.

We conclude, then, that the lease tendered by Leiter to Cherry was duly accepted by him, and that it became and is a valid and subsisting lease.

The notice of Leiter, that he held Cherry’s communication a rejection of the lease tendered, was of no effect, and the rent reserved in the lease having been regularly tendered to him by Pike on each quarter day as it became due, the proceedings by Leiter to get possession of the premises were in violation of his obligations under the lease. It follows that the Superior Court erred in adjudging in the decree appealed from, that the said lease had been rejected by Cherry and was not a valid and subsisting lease binding on Leiter, and in ordering the surrender and cancellation thereof, and in granting any of the .relief granted uponLeiter’s cross-bill.

Pike prayed in his bill for a rebate of the rent paid by him to Leiter, and the decree allows to him a rebate to the amount of $2,880. We have examined the evidence introduced by Pike to establish the amount of rebate he should be allowed and are of opinion that the amount allowed by the court is the amount that should be allowed, and that finding of the decree will therefore be affirmed. Leiter is entitled to receive from Pike all the accrued rent from the commencement of the term under the renewal lease, and said renewal lease will be found to be a valid and subsisting lease of the premises therein described for the term therein named.

As the. conclusion reached will render relief under the cross-bill of Parmly and Sweet unnecessary, the same as well as the cross-bill of Leiter, will be dismissed at Leiter’s cost.

The decree of the Superior Court is reversed, save as to the allowance of said rebate of $2,880, and the case remanded to that court with directions to enter a decree in conformity with this opinion. • Reversed and remanded.


source: Caselaw Access Project

author: Bailey, J.

license: Public Domain

text:
    George H. Rozet v. Matthew Harvey.

      Negotiable Instruments—Notes—Plea of Bankruptcy—New Promise— Variance—Practice—Conflict of Evidence.

    1. In an action on a promissory note a plea setting up a discharge in bankruptcy admits the averments of the declaration, and the question of variance between the declaration and the note, read in evidence, is not presented.
    2. The question whether there is such a variance can not be first raised in this court.
    3. In an action on a note by the payee, indorsements may he disregarded in describing the note.
    [Opinion filed May 6, 1888.]
    Appeal from the Circuit Court of Cook County; the Hon. Loren C. Collins, Judge, presiding.
    Mr. Earl B. Smith, for appellant.
    Mr. Henry Hudson, for appellee.
   Bailey, J.

This was a suit in assumpsit, brought by Matthew Harvey against George II. Bozet, to recover the amount due upon two promissory notes executed by the defendant to the plaintiff. The defendant pleaded a discharge in bankruptcy, and the plaintiff replied, alleging a new promise subsequent to said discharge. The cause being tried by the court, without a jury, the issues were found for the plaintiff, and the plaintiff’s damages assessed at §228.02, and for that sum and costs the plaintiff had judgment.

It is urged that the judgment should be reversed on account of a variance between the declaration and the promissory notes read in evidence. This point is not well taken. No plea of non-assumpsit was filed, the only plea being the one sett'ng up defendant’s discharge in bankruptcy. It thus appears that the averments of the declaration were admitted. Again, the variance, if such there was, should have been pointed out at the trial, but no objection of that character was raised in the court below. The only variance now pointed out is this: The notes read in evidence appear to be indorsed in blank by the plaintiff, the payee, and also by a third party, while the declaration, in describing the notes, makes no allusion to such indorsements. This constitutes no variance. The notes themselves are properly described in the declaration, and being in the hands of the payee, a blank indorsement by him or a third party can have no effect upon the payee’s title to the notes, and in no way affects his rights. In this suit such indorsements are to be entirely disregarded.

Ho question of law was raised at the trial. The only question presented to or decided by the court below was one of fact, viz., whether the defendant, subsequent to his discharge in bankruptcy, promised the plaintiff to pay him the indebtedness evidenced by said notes. Upon this issue the evidence, though somewhat conflicting, was, in our opinion, sufficient to justify the court in finding for the plaintiff. There being, therefore, no error in the record, the judgment will be-affirmed.

Judgment affirmed.


text:
    The Liverpool, London & Globe Insurance Company v. William Sanders.

      BUI of Exceptions—Instructions—Fire Insurance—Conflict of Evidence.

    1. Instructions to the jury, not incorporated in the bill of exceptions, but copied by the clerk into the transcript of the record, can not be considered by this court on appeal.
    2. Where the evidence is conflicting and the record affords no reason for supposing that the jury have not reached a just conclusion, this court will not interfere with their verdict.

      [Opinion filed May 16, 1888.]
    Appeal from the Circuit Court of Cook County; the Hon. R. W. Clieeobd, Judge, presiding.
    Mr. Robekt Hebvey, for appellant.
    Mr. L. M. Shbeve, for appellee.
   Bailey, J.

This was a suit in assumpsit, brought by William Sanders against the Liverpool, London & Globe Insurance Company, to recover for a loss under a policy of insurance against fire, issued by the defendant to the plaintiff. The policy was for §700, and covered the furniture and other goods and chattels of the plaintiff contained in a frame cottage then occupied by him- and his family as their dwelling. The defenses alleged and which the defendant sought to sustain at the trial, were, first, that the fire by which the property insured was destroyed or damaged was intentionally or fraudulently caused by the plaintiff or others acting in his employ; second, that the plaintiff, in his proofs of loss, grossly and fraudulently over-valued the property claimed to have been lost or damaged ; and third, that the policy made the ascertainment of the amount of the loss by arbitration a condition precedent to a recovery upon the policy and that no such arbitration had been had. A trial was had by a jury, who found the issues for the plaintiff and assessed his damages at §638.25, and judgment was rendered accordingly.

The evidence is clear that the condition of the policy in relation to arbitration was expressly waived by the defendant. As to the other defenses interposed, the evidence was quite conflicting. Considering the entire record, however, we are unable to say that the verdict was unwarranted. The jury saw and heard the witnesses and were best qualified to judge as to their credibility, and the record affords us no reason for supposing that they have not reached a just conclusion.

Counsel for the defendant asks for a reversal of the judgment on account of errors in the instructions to the jury. The questions thus raised are not open for consideration in this court, for the reason that the instructions are not embodied in the bill of exceptions. In preparing the transcript of the record for this court, counsel have brought up the original bill of exceptions, pursuant to the provisions of the “ Act concerning fees and costs,” approved June 15,1887. Said bill of exceptions purports to contain all the evidence given at the trial, and at the close of the evidence it recites as follows: “ And thereupon the court instructed the jury on the part of the plaintiff as follows: (Here insert instructions given for plaintiff.)” After stating the defendant's exception to said instructions, the recital continues as follows: “ And the court thereupon gave the following instructions asked on the part of the defendant: (Here insert instructions given for defendant.)” Then follow the plaintiff’s exceptions to the defendant’s instructions, and again the recital continues as follows: “(Here insert the defendant’s instructions refused.) But the court refused to give said instructions refused, to which refusal of the court to give the same, the defendant, by its counsel, then and there excepted.” The instructions themselves are not given, nor are there any references to any other part of the record where they may be found.

The clerk, in making out the transcript of the record proper, has inserted, immediately after the record of the trial and verdict and prior to the record of the judgment, the following recital: “Thereupon, on the same day, to wit, on the 20th day of July, 1887, the following instructions were tiled in said cause, to wit:” Then follow a number of instructions headed “'Plaintiff’s instructions given,” after which follow several other instructions headed, “Defendant’s instructions given,” and then two other instructions headed “Defendant’s instructions refused.” Ho other allusion to the instructions is contained in the transcript or in the bill of exceptions.

The rule is perfectly well settled that the only mode by which instructions to the jury can be preserved in the record is by embodying them in the bill of exceptions, and that instructions not so preserved, but copied by the clerk into the transcript of the record proper, do not hereby become a part of the record and can not be noticed by this court on appeal. The instructions copied into the transcript in this case, then, not being a part of the record, furnish us with no evidence as to what instructions were given or refused at the trial.

The record, in the condition in which it is presented to this court, fails to sustain any of the defendant’s assignments of error, and the judgment will therefore be affirmed.

Judgment affirmed.


text:
    Engel M. Koeritz v. Martin Neimes et al.

      Mechanic's Lien—Payment—•Conflict of Evidence.

    Upon a petition by a sub-contractor for a mechanic’s lien, this court affirms the decree for the petitioner, the evidence being conflicting but sufficient to sustain the decree.
    [Opinion filed May 16, 1888.]
    Appeal from the Superior Courj; of Cook County; the Hon. Gwynn Garnett, Judge, presiding.
    Messrs. Runyan & Runyan, for appellant.
    Mr. Clarence F. Dore, for appellees.
   Bailey, J.

This was a petition by a sub-contractor for a mechanic’s lien. Martin Neimes, the petitioner, alleges in his petition that, on the 15th day of September, 1884, Theodore Kaiser, a carpenter and builder, entered into a written contract with Engel M. Koeritz, acting through her husband, Henry Koeritz, by which said Kaiser agreed to build and erect a three-story and basement double brick building, according to certain plans and specifications, on certain lots in the City of Chicago belonging to said Engel M. Koeritz, said building to be completed on or before December 15, 1884, for the contract price of $10,400, a part of said money to be paid to said Kaiser in certain installments during the progress of the work and the residue at its completion; that on the 20th day of October^ 1884, said Kaiser entered into a written contract with Martin Keirnes, the petitioner, by which it was agreed that the petitioner should do all the carpenter and joiner work, rooting, cast iron and galvanized iron work in said building for the sum of §5,400, said money to be paid as the work progressed; that, by consent of the parties, various changes were made in the plan and construction of said building, and the time for the completion thereof extended to January 15,1884; that the petitioner performed and completed his agreement, and that there is due him thereon the sum of $2,900; that said Engel M. Koeritz has paid said Kaiser on their said contract the sum of $7,000, and that there is still due said Kaiser thereon the sum of §3,400; that on the 24th day of January, 1885, the petitioner served on said Engel M. Koeritz the notice required by statute, together with a copy of his contract with said Kaiser, and has frequently requested her to pay him said sum of §2,900, but that she had neglected and refused so to do.

An answer and replication were filed, and the cause coming on to be heard on pleadings and proofs, the court found the material facts averred in the petition to be true, and found the amount due from Mrs. Koeritz to Kaiser, including interest, to be $3,311.13, and the amount due from Kaiser to the complainant, including interest, to be $2,804.21, and decreed the petitioner a lien on said premises for that amount.

The principal controversy at the hearing was as to the amount remaining unpaid by Mrs. Koeritz to the principal contractor, and upon this question the evidence is quite conflicting. It is claimed by Mrs. Koeritz, that at the time the contract was made, Kaiser agreed to accept as part payment, credits upon an existing indebtedness of $3,600 from him to the firm of Koeritz & Tatge, composed of Henry Koeritz and one Tatge, and that at least $2,500 of the amount now claimed to be due was paid by credits on that indebtedness. Ho provision for that mode of payment was inserted in the contract, and the evidence is sharply conflicting as to whether there was any such agreement or understanding, or whether any payments were in fact attempted to be made by such credits. We have carefully examined the evidence and need only say that it sustains the decree. The learned chancellor who presided at the hearing in the court below saw and heard the witnesses, and was in a better position than we can be to judge of their credibility, and to determine the questions of fact thus brought in controversy. As we are unable to see that he has misconstrued the evidence, we must accept the conclusions at which he has arrived.

Some other propositions are raised by the appellant, but we find none of them sustained by the record. The decree will he affirmed.

Decree affirmed.


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    Prussing Vinegar Company v. John S. Meyer.

      Master and Servant—Sickness of Servant—Settlement—Note—Set-off.

    Where the master has credited his servant with full time and settled on that, basis, he can not claim a set-off in an action on a promissory note, given to the servant, on the ground of loss of time on the part of the latter by reason of sickness.
    [Opinion filed May 16, 1888.]
    Appeal from the County Court of Cook County; the Hon. Richard Prendergast, Judge, presiding.
    Messrs. Ceatty Brothers & Ashcbaet, for appellant.
    Messrs. J. McGrath and D. P. Hendricks, for appellee.
   Bailey, J.

This was a suit in assumpsit, brought by John S. Meyer against the Trussing Vinegar Company, to recover the amount of a promissory note for §578.01, executed by the defendant to John W. Prussing, dated December 29, 1884, and due four months after date. After the maturity of said note and on or about June 1, 1885, John W. Prussing assigned it to E„ L. Prussing, who, on or about June 7,1885, assigned it to the plaintiff. The defendant pleaded non-assumpsit, failure of consideration and set-off, and on trial before the court, a jury being waived, tlie issues were found for the plaintiff and his damages assessed at §658.87, and for that sum and costs the plaintiff had judgment.

On the first day of August, 1884, the defendant and John W. Prussing entered into an agreement in writing, by which the defendant hired said Prussing to act as its traveling salesman for a term of three years, for which it agreed to pay him at the rate of §3,000 per year, payable monthly, together with his traveling expenses, said Prussing agreeing, on his part, to devote his entire time and attention during said term to the defendant’s business, and to follow such instructions as it should from time to time give him. Prussing entered upon the performance of his agreement and continued to act as the defendant’s traveling salesman until December 12, 1884, when he was taken sick, and so continued for the period of about five months, during which time he was able to do very little, if anything, in the service of the defendant. At the date of said note there was due Prussing on account, including his salary for the month of December, 1884, the sum of §328.01, and by arrangement between him and the defendant, said note was given to cover that indebtedness and also Prussing’s salary for the month of January, 1885. After the note was given, the defendant continued to credit Prussing each month with the entire amount of his salary, both during his sickness and after he had recovered and resumed his duties as the defendant’s traveling salesman. In September, 1885, tlie defendant rendered Prussing a statement of his account, in which he was credited the full amount of his salary and expenses up to September 1, 1885, and in which he was charged with the portion of his salary included in said note, said account showing a balance in Prussing’s favor of §842.19. For this balance the defendant paid Prussing $200 in cash, and gave him its promissory note for $642.19, which it subsequently paid. Prussing continued in the defendant’s employ under the agreement down to some time in December, 1885, at which time he was discharged from said employment on the ground, as the defendant alleges, that while pretending to serve the defendant he was in reality assisting a rival business.

It appears that the defendant’s president and general manager was on very friendly terms with Prussing and had great sympathy for him in his sickness, and the evidence shows beyond controversy that during said sickness it was the defendant’^ intention to pay him his salary without deduction, and that it was in pursuance of such intention that said credits were given and the account rendered up to September on that basis and the balance thus paid in full. It was not until the time of Prussing’s discharge that the defendant conceived the idea of charging back to Prussing the amount of his salary during his sickness and of seeking to set the same up as a defense to the note now in suit.

We are of the opinion that this defense can not and ought not to be maintained. The giving of credit to Prussing for his salary during his illness, and the subsequent settlement and payment of the full balance due him as shown by the account, took place with full knowledge on the part of the defendant of all the facts. The legal inference to be drawn from these credits and the subsequent settlement is, either a waiver on the part of the defendant of performance by Prussing of his part of the agreement during his illness, or a practical construction of the agreement by the parties to the effect that no deduction was to be made from Prussing’s salary during such time as he should be thus disabled from service. Furthermore, we are unable to perceive why the settlement between the parties in September should not be given the same conclusive effect which is ordinarily given to settlements between parties voluntarily and understanding^ made, and where there is an entire absence of fraud or mistake.

We are of the opinion that the judgment is clearly warranted by the evidence and it will therefore be affirmed.

Judgment affirmed.


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    The United States Life Insurance Company v. Elizabeth Kielgast, Administratrix.

      Life Insurance—Action onPolicyby Administratrix—Coroner's Inquest — Verdict and Evidence—Admissibility of Admissions—Witness—Impeachment.

    1. In an action by an administratrix against an insurance company to recover the amount of an insurance policy on the life of the plaintiff's intestate, a certified copy of the verdict and evidence at the Coroner’s inquest is inadmissible.
    . 2. Admissions made by the plaintiff while acting in her own right are Incompetent against her as administratrix.
    3. The delivery to an insurance company of a copy of the verdict and evidence at the Coroner’s inquest as part of the preliminary proofs of death, to comply with a condition of the policy, is merely an admission that an inquest was held and that the paper delivered is a copy of the verdict and evidence appearing of record. It is not an admission that such verdict is true, that the evidence was given, or that the witnesses stated the facts correctly.
    4. Where a party has called and examined the adverse party as his own witness, he is precluded from introducing evidence for the mere purpose of impeachment.
    [Opinion filed April 11, 1888.]
    Appeal from the Superior Court of Cook County; the Hon. Kirk Hawes, Judge, presiding.
    Messrs. Isham, Lincoln & Beale, for appellant.
    The certified copy of the record of the Coroner’s inquest, consisting of the inquisition itself, or return of the Coroner and jury, and the depositions of the witnesses, was a part of the proofs of death. This set of papers does not appear to have been either demanded or requested by appellant, but it was furnished by the counsel of appellee voluntarily, because his attention was called in a casual way to the fact that it had not been furnished, and because the suggestion was made to him that it ought to be furnished. Counsel for appellee then caused these papers to be handed to appellant’s agent. They were thus presented to appellant as a basis for its action. There was no qualification of any kind connected with their presentation. Appellant had a right to rely upon them. It was expected to act upon them. They thus became admissible in evidence as admissions on the part of Mrs. Kielgast. Her own deposition, thus voluntarily furnished to apjmllant, was particularly an unqualified admission of the facts therein stated. When this set of papers was first offered, and when it was offered for the second time, Mrs. Kielgast had not been examined as a witness in the case.
    In every case the proofs presented by or on behalf of the plaintiff operate at the trial as admissions against him. Bliss on Life Insurance, 2d Ed., Sec. 265; New .York Central Insurance Company v. Watson, 23 Mich. 486.
    The certified copy of the verdict of the Coroner’s jury was admissible in evidence as a part of these proofs; whether its effect as evidence might subsequently have been limited, or could properly have been limited, by the court, is anothel’ matter. The paper itself was admissible in evidence. Insurance Company v. Newton, 22 Wall. 32; Newton v. Mutual Benefit Insurance Company, 2 Dillon, 154; Insurance Company v. Higinbotham, 95 U. S. 380; Lawrence v. Mutual Life Insurance Company, 5 Ill. App. 280; Mutual Life Insurance Company v. Lawrence, 8 Ill. App. 488.
    The copy of the deposition of Mrs. Kielgast ought to have been admitted, and its statements might properly have been held to be conclusive proof as against her of the facts therein stated. Illinois Central Railroad Company v. Cobb, Christy & Co., 64 Ill. 143; Stone v. Cook, 79 Ill. 424; Walther v. Mutual Life Insurance Company of New York, 65 Cal. 417.
    Inquisitions generally are admissible in evidence as a species of judicial records somewhat analogous to judgments in rem. They differ from judgments in rem in not being conclusive, since such judgments are, until set aside in a proper legal proceeding, binding against all the world. Inquisitions of a Coroner stand upon an equal footing with others, in respect of their admissibility in evidence. Starkie’s Ev., 10th Am. Ed., *pp. 404 and 405; 2 Phillips’ Ev., 5th Ed., "x"pp. 262 and 268; 2 Taylor’s Ev., 6th Ed., See. 1487; 1 Greenleaf’s Ev., Sec. 556.
    Mr. George F. Westover, for appellee.
   Bailey, J.

This was an action of assumpsit, brought by Elizabeth Kielgast, administratrix of the estate of Otto Wilhelm Kielgast, deceased, against the United States Life Insuiance Company in the City of Mew York, to recover the amount of a policy of insurance'on the life of the plaintiff’s intestate. The policy was dated July 22, 1884, and contained, among other things, a condition that if within three years of said date the insured should die by self-destruction, whether voluntary or involuntary, whether sane or insane, the contract of insurance should become null and void. The insured died on the 17th day of January, 1885. The defendant pleaded the general issue, and also a special plea alleging that the insured died by self-destruction, and replications being filed, a trial was had, resulting in a verdict finding the issues for the plaintiff and assessing her damages at 85,597.50, that being the amount of the j>olicy and interest, and for that sum and costs the plaintiff had judgment.

The only ground urged by the defendant’s counsel for a reversal of the judgment, is the refusal of the court to admit in evidence a certified copy of the verdict and evidence at the Coroner’s inquest, furnished to the defendant by the plaintiff as a part of the proofs of the death of the insured. By the terms of the policy, the insurance money was payable within sixty days after satisfactory proofs, under oath and upon the company’s blanks, of the death of the insured should be furnished to the company at its office in the City of Mew York. It appeal's that the plaintiff, after her appointment as administratrix, prepared proofs of the death of her intestate in the form prescribed by the company and upon the company’s blanks, said proofs consisting of a certified copy of her letters of administration, a certificate of the family physician, a statement by the clergyman who officiated at the funeral, a statement of the undertaker who had charge of the burial, and a sworn statement by the plaintiff, such statement consisting of answers to various interrogatories contained in the printed blank furnished by the company. In the statement thus sworn to by the plaintiff all the interrogatories were answered except the following, which was left blank, viz.: ‘‘If inquest was held, furnish certified copy of verdict and evidence.” The proofs thus prepared were delivered by the plaintiff to the company’s agent at Chicago, May 28, 1885, and nothing was said by said agent at the time as to their sufficiency, except to suggest that the blank implied that other papers were to be furnished. A few days later said agent called on the plaintiff’s attorney in relation to another matter, and while there spoke about said proofs and said that they were incomplete without a copy of the proceedings at the Coroner’s inquest; that such copy would be required; and thereupon, on the 18th day of June, 1885, the plaintiff caused to be delivered to said agent a certified copy of said verdict and evidence.

The verdict of the Coroner’s jury, as shown by said copy, was, in substance, that the deceased came to his death by a pistol shot fired by his own hand while laboring under a fit of temporary insanity. Among the witnesses who testified at the Coroner’s inquest, as shown by the same document was the plaintiff. Her evidence was, in substance, that the deceased was her husband; that on the evening of his death she hoard a shot fired in his room; that she sent a servant for a policeman, and when he came, they went up stairs and found the insured dead; that every day for a week previous to his death he had said that he would kill himself, and that on the evening of his death, when he came home he kissed his little boy and said: “ Charlie, this is the last kiss you will ever give your father;” that for that week he had been drinking more than usual.

The plaintiff, at the trial, in making out her case, proved the delivery of said proofs to the defendant’s agent, but did not offer said proofs in evidence. The defendant thereupon, after the plaintiff had rested, produced said proofs and z offered the same in evidence, without any statement as to the specific purpose for which they were offered. The court admitted the proofs originally furnished, but excluded the certified copy of the proceedings before the Coroner. Said copy was then again offered as a part of the proofs of death furnished by the plaintiff to the defendant, but was again excluded. The defendant then called the plaintiff as a witness to prove directly the facts stated in what purported tobe her testimony before the Coroner, especially the threats of her husband to kill himself, and his kissing his little boy for the last time, but the plaintiff denied that such were the facts, and also denied that she had so testified at the Coroner’s inquest. Other witnesses were then called by the defendant to prove the actual statements made by the plaintiff at the inquest, and their evidence being excluded, the counsel for the defendant again offered in evidence said certified copy of the verdict and evidence before the Coroner. This was excluded, and the defendant’s counsel thereupon offered in evidence the original record of the Coroner’s inquest, and also offered separately the plaintiff’s deposition therein contained, which papers were also excluded by the court.

That the record of the Coroner’s inquest and the depositions taken in that proceeding are not competent evidence in this suit, would seem to be settled by the decision of the Supreme Court in P., C. & St. L. Ry. Co. v. McGrath, 115 Ill. 172. Nor is the deposition of the plaintiff taken before the Coroner competent as constituting admissions made by her, for the reason that in this suit she is suing in a representative capacity. It is a familiar rule that admissions made by a party acting in his own right are not competent evidence against him when suingj en autre droit. If any other person than the plaintiff had been appointed administrator, no one, we presume, would have claimed that mere admissions by the widow of the deceased would have been competent evidence against the administrator. We see no reason why such admissions should be given any greater force by reason of the' fact that the person making them, instead of another, occupies the representative position of administratrix. Nor was it competent for the defendant to give evidence of statements made by the plaintiff out of court for the purpose oí impeaching her testimony given at the trial. The defendant had called and examined her as its own witness, and having done so, it was precluded from introducing evidence for the mere purpose of impeachment.

But it is insisted ■ that a copy of the verdict and evidence before the Coroner having been delivered by the plaintiff to the defendant as a part of the proofs of death, it was thereby given the force of an admission of which the defendant may avail itself in this suit. The rule seems to be well settled that where, in a suit upon a policy of insurance, the proofs of death are offered in evidence by the plaintiff, they are admissible only for the purpose of showing performance by the assured of the conditions of the policy in relation to preliminary proofs. Mutual Life Ins. Co. v. Stibbe, 46 Md. 302; Citizens’ Fire Ins. Co. v. Doll, 35 Md. 89; Breckenridge v. American Central Ins. Co., 87 Mo. 62; Newmark v. Liverpool and London Ins. Co., 30 Mo. 160; Knickerbocker Ins. Co. v. Gould, 80 Ill. 388; Imperial Fire Ins. Co. v. Shimer, 96 Ill. 580. But where the proofs are offered in evidence by the defendant, a somewhat different effect should be given to them. Thus, in Mutual Life Ins. Co. v. Stibbe, 48 Md. 302, it is held that where the proofs of death are offered in evidence by the plaintiff they are admissible solely for the purpose of showing compliance with the conditions of the policy; but where they are offered by the defendant, they are admissible as declarations by the plaintiff. So, in Insurance Co. v. Newton, 22 Wall. 32, it is held that the preliminary proofs presented to an insurance company in compliance with the condition of its policy of insurance, are admissible as $yrima facie evidence of the facts stated therein against the insured and on behalf of the company.

Adopting the rule established by the last two cases cited, how are the rights of the parties affected in this case? The interrogatory in the blank furnished to the plaintiff by the defendant on which to make out the proofs of death, required the plaintiff, in case an inquest had been held, to furnish a certified copy of the verdict and evidence. In compliance with this requirement the plaintiff ju-ocured and delivered to the defendant the verdict and evidence in question. That this document was furnished as a part of the plaintiff’s proofs of death is, we think, the fair conclusion to be derived from all the evidence. The delivery of said paper was doubtless an admission by the plaintiff, but ah admission of what? Merely that a Coroner’s inquest had been held, and that the paper delivered was a copy of the verdict and evidence as the same appeared in the record of such inquest. This was manifestly the entire scope of the admission. The delivery of the paper imported no admission that the verdict was true, or that said evidence was actually given, or that the witnesses had stated the facts correctly. It would be carrying the doctrine of admissions to an unwarrantable length to hold that an insurance company, by requiring the insured to embody in his preliminary proofs any document which it sees fit to call for, can hold the insured to an admission, not only of the existence of the document and its terms, but also of the truth of all the statements therein contained.

The admission, then, being merely in relation to the existence and terms of a document which, as we have seen, was immaterial and incompetent as evidence, we are unable to see how the defendant was prejudiced by its exclusion. Had there been a controversy between the parties as to whether there had been a proper performance of the condition in relation to preliminary proofs, the document in question would undoubtedly have been admissible at the instance of either party, as bearing on that issue. But there seems to have been no such controversy, and even if there had been, the exclusion of the copy of the Coroner’s inquest would not have been an error of which the defendant could complain, as it would have been evidence directly tending to support the plaintiff’s rather than the defendant’s side of that issue.

We perceive no error in the rulings of the court complained of, and the judgment will therefore be affirmed.

Judgment affirmed.


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    Henry W. Kingsbury v. Heman G. Powers.

      Guardian and Ward—Final Report and Account—This Court Can Not Allow Counsel Fees. ■

    1. This court affirms the judgment of the Circuit Court in the matter of a guardian’s final report and account, without going into a detailed discussion of the evidence, which is voluminous.
    2. The allowance of counsel fees, even in matters pending before it, is not within the powers conferred upon this court.
    [Opinion filed May 16, 1888.]
    Appeal from the Circuit Court of Cook Co.unty; the Hon. Thomas A. Moran, Judge, presiding.
    Messrs. Wilson & Moore, for appellant.
    Mr. B. W. Pike, for appellee.
   Bailey, J.

Heman Gr. Powers, guardian of the estate of Henry W." Kingsbury, an infant, having been superseded by the appointment of another guardian, filed his final report and account in the Probate Court, and asked to have the same approved. The matter of,said report and account being heard by the Probate Court, it was found that a certain balance was due from the estate of said ward to said Powers, and judgment was entered accordingly. From this judgment both Powers and the guardian of Kingsbury appealed to the Circuit Court. During the • pendency of the appeal Kingsbury attained his majority and was substituted for his guardian in said proceedings. The appeal was heard by the Circuit Court, and on such hearing it was found that Kingsbury was indebted to Powers in the sum of $1,547.16, and judgment was entered against Kingsbury and in favor of Powers for that sum, and Kings-bury was adjudged to pay the costs of the proceedings. From this judgment Kingsbury has appealed to this court.

The accounts thus brought up for review are complicated and involve large amounts, and the record is necessarily very voluminous. To properly analyze and discuss in detail the evidence applicable to the various items of the account which are in dispute, would involve the expenditure of time, which, in view of other matters pressing upon our attention, we have not at our command. We must content ourselves therefore with saying that we have carefully considered the very voluminous arguments with which we have been favored by counsel, and are of the opinion that the conclusions reached by the Circuit Judge in relation to the matters in dispute between the parties are correct. We see no reason, then, for disturbing the judgment.

We are asked by the appellee to enter an order making an allowance to him for his expenditures for counsel fees, in this court. Without expressing any opinion as to whether he is entitled to such allowance, we need only say, that as this is not a court of original jurisdiction, the allowance of counsel fees, even in matters pending before us, is not within the powers conferred upon this court by law. To determine the proper amount of such allowance would involve the presentation to this court of issues of fact to be maintained by original evidence, and would be in substance an exercise of original as distinguished from appellate jurisdiction.

The judgment of the Circuit Court will be affirmed.

Judgment affirmed.

Mobau, J., took no part in the decision of this case.