author: Mr. Justice Scanlan

text:
    Agnes Tuttle, Appellee, v. Seward M. Gunderson et al., Appellants.
    Gen. No. 33,443.

      Opinion filed October 11, 1929.
    Rehearing denied October 22, 1929.
    Miller, Gorham & Wales, for appellants; C. R. Larrabee, of counsel.
    Brown, Brown & Brown, for appellee.
   Mr. Justice Scanlan

delivered the opinion of the court.

This is an appeal by Seward M. Gunderson and Joseph Simons, trustees under the will of William P. Tuttle, deceased, from an order of the. circuit court of Cook county.

Agnes Tuttle, appellee, filed her bill in that court for a divorce from her husband, William J. Tuttle (hereinafter referred to as the defendant), on the ground of habitual drunkenness. The bill alleged that one child, William Pierce Tuttle, aged two and one-half years, was born of the marriage; that the defendant deserted the appellee and said child in Paris, France; that the defendant was possessed of stocks, bonds and securities amounting to approximately $350,000, and that he “receives in installments the income and increments of a trust fund of $250,000.00 administered by Seward M. Gunderson and Joseph Simons, trustees, appointed in and by the Last Will and Testament of William P. Tuttle, deceased, which said income and increments amount, as your oratrix is informed and believes, to the sum of from $15,000.00 to $20,000.00 per year, and that the said defendant is amply able to provide for the support and maintenance of your oratrix and their said minor child. ’ ’ Personal service was had upon the trustees, but the defendant was not within the jurisdiction of the court and service by publication was had as to him; In the answer filed by Simons, trustee, he avers “that the defendant, William J. Tuttle, receives in installments the income and increments of a trust fund of $250,000 administered by this defendant and Seward M. Gunderson, as Trustees, appointed under the will of William P. Tuttle, which said net income amounts to slightly over $15,000 a year; . . . that the provisions of the will of William P. Tuttle constitute a spendthrift trust, and the income therefrom must be paid to William J. Tuttle *in person and not upon any written or verbal order, nor upon any assignment or transfer by William J. Tuttle until he shall arrive at the age of fifty (50) years, at which time the said trust fund shall be paid over to the said William J. Tuttle, if* living, likewise in person and not upon any written or verbal order, nor upon any assignment or transfer by said William J. Tuttle, and this defendant shows that the said William J. Tuttle will not be fifty (50) years old until February 21, 1932.” Gunderson, trustee, filed a like answer. Thereafter the -appellee filed a petition in which the material provisions of the mil of William P. Tuttle are set up verbatim. The petition also contains (inter alia) the following: “That she and her said child are in dire and necessitous circumstances and it is the legal duty of said defendant to provide for the support and maintenance of your petitioner and said child during the pendency thereof and upon his failure so to do that the income and increment of said trust estate pr so much thereof as may be necessary be subjected by order of this court to be paid to her for the support and maintenance of herself and child during the pendency of this suit and until the further order of this court, and that the said . . . trustees, should be restrained . . . from making any further payments to said defendant, William J. Tuttle, of the income and increments of said trust estate until suitable provision is made by said defendant for the support and maintenance of your petitioner and the child of said marriage. Petitioner prays that an order may be entered . . . awarding to your petitioner the care and custody of . . . the child of said marriage, until the final hearing of this cause; that an order may be entered . . . against the defendant . . . for such sum or sums of money as may be necessary for the support and maintenance of your petitioner and said minor child during the pendency of this cause and that a reasonable amount be allowed her on account of solicitor’s fees . . . and that the sum so awarded to your petitioner for the support and maintenance of herself and said minor child and for and on account of her solicitor’s fees be made a charge upon the income and increment of said trust estate, or so much thereof as may be necessary to satisfy said order of court, and that the said . . . Trustees ... be restrained . . . from delivering to, setting over, transferring and paying to said William J. Tuttle all or any part of the income and increments of said trust estate until the further order of this court.” Thereafter the trustees filed a written motion that the bill be dismissed ■ as to them, for the following reasons: “1. .That the court is without jurisdiction to enter a decree m personam against the defendant, William J. Tuttle. 2. That the rights of the complainant against these defendants, if any there could be, are susceptible of assertion solely through and on account of the rights of the complainant, if any there be, against the defendant, William J. Tuttle. 3. That there is no property of the defendant, William J. Tuttle, within the jurisdiction of the Court; that it appears of record herein that these defendants are Trustees of a spendthrift trust; that the defendant William J. Tuttle has no right in or title to any moneys in the hands of the defendants; that the Court is without jurisdiction to enter any decree against these defendants or against the moneys in their hands as Trustees for the payment of any moneys to the defendant, William J. Tuttle, or .for his account, whether to the complainant or to any other person or persons, or for the payment of any moneys to the complainant or to any other person or persons; and that the court is without jurisdiction to enter any decree against these defendants or against the moneys in their hands as Trustees creating a lien or charge against or upon such moneys or restraining these defendants from paying out such moneys upon the several trusts upon which they hold the same.” This motion was denied and thereafter an order was entered that contains (inter alia) the following: “That the court has no jurisdiction over the person of said . . . defendant; . . . that the said defendant is beneficiary of a certain trust estate in the sum of Two Hundred Fifty Thousand Dollars created by a codicil to the Last Will and Testament of William P. Tuttle, Deceased. (The codicil is set out in Jiaee verba.) . . . That said trust is a spendthrift trust and that said defendant . . . has a vested interest in said trust estate, but that his enjoyment thereof is postponed until the said defendant shall arrive at the age of fifty years; . . . that said defendant is now of the age of forty-seven years; that the income and increments of said trust estate amount to slightly in excess of Fifteen Thousand Dollars per year, and under the terms of said Will the income and increment of said trust estate is to be paid in installments convenient to said trustees to said defendant, . . . and that it was the intention of the testator in and by said Last Will and Testament as evidenced by the terms thereof to provide for the support and maintenance of the said defendant and for the support and maintenance of defendant’s wife and child, if any were born to them, out of the income of said trust estate, and that the said complainant . . . and said child . . . have an equitable interest in said trust estate and are entitled to support and maintenance out of the income therefrom and that sufficient of said income from said trust estate should be sequestrated by said trustees for the support and maintenance of said complainant and said minor child until the further order of this court, and that the sum of Fifty Dollars per week each is a reasonable allowance for the support and maintenance of said complainant and said child; . . . that the said defendant . ■ . . is beyond the jurisdiction of this court and that said trust estate and the income and increment therefrom are within the jurisdiction of this court and that this proceeding is a proceeding in rem and that the court has jurisdiction of the said trustees and said income from said trust estate. . . . It Is Further Ordered that the said . . . Trustees . . . sequester from said income of said trust estate as the same comes into the hands of said trustees- the sum of One Hundred Dollars per week, and pay the same over to said complainant, Agnes Tuttle, in installments convenient to said trustees of said trust estate beginning as of January 11th, A. D. 1929, the sum of Fifty Dollars per week for the support and maintenance of said complainant and the further sum of Fifty Dollars per week for the support and maintenance of said . . . minor child of said parties, until the further order of this court. ” The appellants have appealed from this order.

Appellants contend that the appellee’s right to alimony in the present chancery proceedings should be held to be a right not superior in character to “the' rights of bona fide merchandise, contract or judgment creditors,” and that the rule stated in Steib v. Whitehead, 111 Ill. 247, and Congress Hotel Co. v. Martin, 312 Ill. 318, ‘ ‘ should control ’ ’ the claim of the appellee, and adversely to her. In the cases cited — proceedings at law — it was held that “the creator of a trust may secure the enjoyment of it to the objects of his bounty by providing it shall not be alienable by them or become subject to be taken by the creditors, and that such intention expressed in his will will be carried out.” The basis of appellee’s claim is that she, as the wife of the defendant, and the minor child of the appellee and the defendant, have an equitable interest in the increment and income of the trust fund to the extent of a right of support and maintenance, and that the obligation of a husband to support and maintain his wife and children “rests on a different basis from the ordinary contract obligation; that the right to support is not founded on contract, express or implied, but on the natural and legal duty of the husband to support the wife,” and that the rule stated in the cases cited has no application to the present proceedings.

In England v. England, 223 Ill. App. 549, 555, it is said: “In this State alimony is not a debt. It is a social obligation as well as a pecuniary liability; it is founded on public policy and is for the good of society. Deen v. Bloomer, 191 Ill. 416. In Barclay v. Barclay, 187 Ill. 375, it was said: ‘The liability to pay alimony is not founded upon a contract, but is a penalty imposed for a failure to perform a duty. It is not to be enforced by an action at law in the State where the decree is entered, but is to be enforced by such proceedings as the chancellor may determine and adopt for its enforcement. ’ In Welty v. Welty, 195 Ill. 335, the Supreme Court quoted with approval the following language from Audubon v. Shufeldt, 181 U. S. 575: ‘Alimony does not arise from any business transaction, but from the relation of marriage. It is not founded on contract, express or implied, but on the natural and legal duty of the husband to support the wife. The general obligation to support is made specific by the decree of the court of appropriate jurisdiction. ’ ” In Moorehead’s Estate, 289 Pa. 542, 552-3, it is said: “There is still another great factor to be considered in this case, the legal unity of husband and wife, and it is a unity which must continue to be recognized, however much modern laws enlarge the separate rights and privileges of each. And with this merger of existence and interests, established from the most ancient times in all civilized lands, how can it be claimed that the status of creditor and debtor is established between them, when it is a question of the mutual performance and fulfillment of fundamental duties as husband and wife, which the obligations of humanity impose and the safety of society requires from both? ‘The marriage contract has not the elements of ordinary contractual relations. That contract is a life contract, imposing upon the husband the support and maintenance of the wife in sickness and in health during life, contingent only on the termination by decree of court for statutory reasons’: Keezer on Marriage, section 55; ‘The duty of the husband to support the wife is not dependent upon contract’: 30 C. J. 517. These are accordingly primal obligations under the marriage relation imposed immemorially upon the husband, and which do not fall within the range of the nature or the meaning of a debt. Every debt of course is an obligation; but every obligation is not a debt: Sonnesyn v. Akin, 97 N. W. 557. A debt is a sum of money due by contract, express or implied. But a tax is not a debt. It is not founded upon contract. It does not establish the relation of debtor and creditor between the taxpayer and the State: Perry v. Washburn, 20 Cal. 318. When an alien secures citizenship it becomes his duty to support and protect the Commonwealth as far as possible. But he has made no contract to that effect. Similarly the duty of a husband to provide for and protect his family becomes a duty upon his marriage, a fundamental duty, not a debt.” (Italics ours.) We are satisfied that the rule announced in Steib v. Whitehead and Congress Hotel Co. v. Martin, supra, has no application to the facts and pleadings of the instant case, and that the contention of the appellants cannot be sustained.

The appellants contend that “it was not the intention of the testator, William P. Tuttle, in and by his will, as evidenced by its terms, to provide for the support or maintenance of the wife and child of his son out of the income of the trust estate,” and that therefore the finding of the chancellor “that the said complainant, Agnes Tuttle, and said child, William Pierce Tuttle have an equitable interest in said trust estate and are entitled to support and maintenance out of the income therefrom,” violates the rule that the intention of the creator of a trust, when expressed in a. will, will be carried out. The material parts of the codicil in question are as follows: “Further, I now also give, devise and bequeath to my son, William J. Tuttle to be taken by him as of the valuation of One Hundred and fifty thousand dollars, all of my lands, farms and ranches situated in North Dakota and in South Dakota, of which I may die seized and possessed, to have and to hold the same to him, his heirs and assigns forever. Further, I now also hereby direct that my Trustees hereinafter named shall set aside out of my estate, and I do for that purpose give to them, the sum of Two hundred and fifty thousand dollars, which1 shall by them be invested, and the income and increment shall be paid in installments convenient to.my trustees, to my son, William J. Tuttle, in person and not upon any written or verbal order, nor upon any assignments or transfer by said William J. Tuttle, until he shall arrive at the age of fifty years, at which time the said trust fund shall be paid over to my said son, William J. Tuttle, if living, likewise in person and not upon any written or verbal order nor upon any assignment or transfer by said William J. Tuttle. In the event of the death at any time during the. continuance of this trust, the amount of the trust fund then so remaining together with the unpaid increase and increment thereof shall be paid to, transferred amd assigned to whomsoever he may by his written last Will and Testament designate, and in default of such designation, then to the administrator of his estate. ■ ■ ■ This entire codicil shall be void and of no effect if my son, William J. Tuttle, shall attempt or aid in any attempt to oppose the admission of this will to probate, or to have the same set aside or declared invalid. Nevertheless if he shall refrain from any such opposition or antagonism to my wishes and shall execute a written release and agreement sufficient under the law to the end that the probating of my last Will and Testament shall be final and unquestioned then, I direct my Executors and Trustees to expedite the payment to him of his legacy and his income and to aid and help him in: all lawful matters whatsoever (Italics ours.)

The appellee and the defendant in the divorce proceedings were married December 30,1913, and one child was born of the marriage. The spendthrift trust estate was created by a codicil dated September 18,1924, and at this time the appellee and the defendant were living together as husband and wife. The testator died in October, 1924. Between 1913 and the time of his death William P. Tuttle executed four codicils to his will, in none of which is there any reference to the wife of the defendant, and the appellants argue that “had the testator intended to provide for the complainant he could and would certainly have done so in express terms.”

The testator, at the time of the making of the codicil in question, knew that the appellee and the defendant were married and living together. “In volume II, Bishop on Marriage and Divorce, paragraph 447, it is said: ‘What families ordinarily and properly subsist on is the income of the husband. ’ In Wetmore v. Wetmore, 149 N. Y. 520, 44 N. E. 169, it is said: ‘Equity will not feed the husband and starve the wife. ’ Recognizing the Biblical doctrine that husband and wife are one, it is inconceivable that a testator who expects his beneficiary, to whom he gives a stated income for his support and maintenance, to marry, should expect such beneficiary to enjoy the income alone and that the wife should be supported from some other fund, or not at all. When all the provisions of this will are taken into consideration, it is evident that such was not the intention of the testator, but that appellee, when she married Albert C., acquired an equitable interest in the trust fund to the extent of a right of support and maintenance together with her husband.” (England v. England, supra, p. 554.) In Wetmore v. Wetmore, 149 N. Y. 520, the will creating the trust for the husband made no mention of the wife, but the court held that the testator in constituting a trust for the benefit of his son, must have contemplated that it should also be for the benefit of his wife, should he marry, and his children, should any result from the marriage. That the above is a fair interpretation of this decision, see Wetmore v. Wetmore, 162 N. Y. 503, 510. In Eaton v. Eaton, 81 N. Y. 275, the court held that a spendthrift trust “for the benefit of my said son as his needs may require,” the son having then, to the testator’s knowledge, a wife and daughter dependent upon him for support, requires the trustee to apply the fund for the benefit of both the son and those dependent upon him; that the needs of a married man include not only his needs but also the needs of his family. In Moorehead’s Estate, supra, p. 548, the court said: “The very fact that the name of the wife of her grandson is not mentioned is in itself evidence that such a contingency was not in the mind of the testatrix. Determined as she was to protect her grandson from the effects of his own folly and extravagance in his relations with people in general, would she not, had she intended to include the wife within the range of the trust inhibitions as to contracts and debts, have added a provision to that effect?” This language is particularly applicable to the facts of the instant case. Nowhere in the will does the testator show any feeling of animosity toward the appellee, although he did not hesitate to plainly express his feelings toward the defendant, as appears from the following language in the first codicil: “To my son, William J. Tuttle, in return for the care, sorrow and disappointment he has caused me all the days of his life, for his dissolute career and graceless disobediences, Ms perjury, Ms disrespect and animosity, I do give and bequeath the sum of Ten Dollars to buy a mourmng ring and the memory of a misspent youth.” It is plain that if the testator had any feeling of animosity toward the appellee, he would not have hesitated to express it. It is clear from the entire provisions of the trust that the testator, in executing the same, did not intend to deprive the appellee of any benefits she might acquire in the trust fund as the wife of the defendant. The defendant had the right to will the entire trust estate to the appellee, and, in any event, if she survived him, she would participate, under the law, in his estate. The words “and to aid and help him in all lawful matters whatsoever” are not without some significance. The testator knew that the appellee was the wife of the defendant, and is presumed to have known the law that requires a husband to support his wife and children. The father saw fit, in his will, to declare in a public and solemn way that the defendant was a spendthrift and a dissolute character and one’ indifferent to family ties and obligations, and the words in question should be interpreted in the light of the father’s knowledge of the son’s character and habits. It is highly improbable that the father intended to create a trust solely for the benefit of such a,son, and that he was willing to have the wife and any children that might be born of the marriage, want. To permit such an interpretation, in the light of the entire will and the circumstances surrounding the testator and the interested parties at the time the codicil in question was executed, would be a serious and unwarranted reflection upon the dead. It was because of the son’s character and habits that the father condemned him and created the trust estate, and the testator knew that the son was not likely to fulfill the obligations of a husband and father. If he was willing to help such a son, as he did in the execution of the trust estate, it is unreasonable to believe that such a man intended that the wife of the son, against whom he had no feeling of animosity, and children that might be born of the marriage, should be denied any benefit in the income and increment of the estate. What was said in the opinion in Moorehead’s Estate (heretofore cited) is specially applicable to the facts of the instant case.

In England v. England, supra, the trust read: “And it is my will that the payments to be made by said trustees to the said Albert C. England and Bina F. England (grandchildren of the testator) under the provisions of this my will shall he made to them personally, and the respective interests of said Albert C. England and Bina F. England as provided herein including the accumulations, income and money that they may be entitled to under the provisions of this my will, shall not be in any manner negotiable or transferable, nor subject to execution, attachment or garnishment, and neither the said Albert C. England nor the said Bina F. England shall have any power or authority to create any lien upon nor to sell, assign or transfer their respective interests or the income, accumulations or money to which they or either of them may be entitled or any part of the same;” (italics ours) and in the opinion, written by Mr. Justice Heard, it is said: “Trusts of this kind are sometimes complete spendthrift trusts and sometimes they are trusts having some of the characteristics of spendthrift trusts but lacking some of the qualities, so that in each case, in passing upon the legal effect of a trust of this character, it is necessary to take into consideration the situation of the parties, to ascertain from the complete will the scheme and purpose which the testator had in mind and, if possible, carry out such scheme and purpose by giving effect to all the various provisions of the will so far as the same is possible.” The court, after an analysis of the said trust provisions and the sitúation of the interested parties, held that “it is inconceivable that a testator who expects his beneficiary, to whom he gives a stated income for his support and maintenance, to marry, should expect such beneficiary to enjoy the income alone and that the wife should be supported from some other fund, or not at all,” and that the wife, “when she married Albert C., acquired an equitable interest in the trust fund to the extent of a right of support and maintenance together with her husband,” and that the trust did not provide that the income from the trust fund could not be used “in accordance with a decree of a court of equity to keep Albert C. out of jail for contempt of court for failure to comply with the court’s decree to pay alimony for the support of his wife.” That this case is against their contention appellants do not seriously dispute, but they seek to destroy the effect of it .by unfair criticism of the opinion. We find no force in this argument of the counsel. While England v. Engfand,, supra, appears to be the only case in point in this state, it is not without support in the decisions of tíie'courts of several of the sister states, and the appellants have failed to cite a single case that rqns counter to it. An illustration of a complete or strict spendthrift trust was before the court-in Board of Charities v. Lockard, 198 Pa. 572, where the trust, read: {‘All moneys or legacies herein bequeathed aré to be paid to the legatees in person, and to no one else, and shall not be assignable or transferable, nor subject nor liable in any way whatever for any debts or obligations' of any of said legatees, heretofore or hereafter incurred or contracted or created.” (Italics ours.) The court held that the words “and to no one else” created a strict spendthrift trust and that the income in the hand's of the trustee could not be attached “by virtue of the warrant of' seizure issued by a magistrate . , . .' under the desertion act, for the maintenance of the wife and child of the cestui que trust.” The trust in the instant case does not contain any such words. In a much later case (Moorehead’s Estate, supra) the Pennsylvania court held that the words- “creditors,” “contracts” and “debts,” as used in a spendthrift trust provision in a will, will not be construed as protecting the income of the trust from the claim of the cestui que trust’s wife for support, where it appears that the husband had deserted his wife and that a consideration of the whole will of the testatrix and of the circumstances attending its making showed that the testatrix had no intention of depriving the wife of support, and the court further held, as we have heretofore noted, that “the very fact that the name of the wife of her grandson is not mentioned is in itself evidence that such a contingency was not in the mind of the testatrix.” The court also stated that to give to the trust the construction contended for by the trustee “would be to place it in direct antagonism to every recognized claim of morality and to every purpose of public policy.” Board of Charities v. Lockard, supra, and Thackara v. Mintzer, 100 Pa. 151, were cited to the court in Moorehead’s Estate, but the court did not refer to either of them in its opinion. The principles stated in Moorehead’s Estate, in so far as they apply to the instant case, are in accord with England v. England. In the notes to Be Moorhead, 52 A. L. R. 1259, the author says: “Except where the trust was a spendthrift trust of the strictest sort, requiring the income to be paid to the beneficiary in person, and no one else (as in Board of Charities & Correction v. Lockard (1901) 198 Pa. 572, 82 Am. St. Rep. 817, 48 Atl. 496), the courts have uniformly construed provisions for the protection of the beneficiary from the claims of creditors or the consequences of his own improvidence, as not preventing the income of the trust from being subjected to the support of the beneficiary’s wife and minor children. See England v. England (Ill.) supra; Gardner v. O’Loughlin, (1912) 76 N. H. 481, 84 Atl. 935; Eaton v. Eaton (1924) 81 N. H. 275, 35 A. L. R. 1034, 125 Atl. 433, s. c. on subsequent appeal in (1926) —N. H.—, 132 Atl. 10; Pruyn v. Sears (1916) 96 Misc. 200, 161 N. Y. Supp. 58; Re Moorhead (reported herewith) ante, 1251; Decker v. Directors of Poor (1888) 120 Pa. 272, 13 Atl. 925; Board of Charities & Correction v. Moore (1888) 6 Pa. Co. Ct. 66, 19 Phila. 540, 45 Phila. Leg. Int. 216; Board of Charities & Correction v. Kertnedy (1894) 3 Pa. List. R. 231, 34 W. N. C. 83.” After a careful consideration of the instant contention of the appellants, we have reached the conclusion that-it is without merit.

The appellants also contend that the following question should be determined by this court: “Does the interest of William J. Tuttle in the corpus, increment and income of the trust created by the last will and testament of his father, William P. Tuttle, the trust being admittedly a spendthrift trust, constitute property in the jurisdiction of the Circuit Court of Cook County of a nature and character sufficient to warrant the Court in dealing with the trust estate for the temporary support and maintenance of the wife and child of William J. Tuttle, he being personally beyond and without the jurisdiction of the .Court?” The chancellor found that under the terms of the trust “the income and increment of said trust estate is to be paid in installments convenient to said trustees to said defendant, William J. Tuttle,” and the trustees were ordered to “sequester from said income of said trust estate as the same comes into the hands of said trustees the sum of One Hundred Dollars per week, and pay the same over to said complainant, Agnes Tuttle, in installments convenient to said trustees,” etc! (Italics ours.) The defendant was entitled to the income and increment of the trust estate and the trustees were bound to pay it to him. The chancellor, in the order, was dealing solely with the property of the defendant, and it is the law that courts of equity have jurisdiction in divorce proceedings, in the absence of personal service upon or appearance by a defendant, to deal with property of the defendant in the jurisdiction of the court through a decree in rem.

The order of the circuit court of Cook county, of February 2, 1929, is affirmed.

Affirmed.

Barhes, P. J., and Gtridley, J. concur.


source: Caselaw Access Project

author: Mb. Justice Matchett

license: Public Domain

text:
    Henry Janisch and Charles Janisch, Trading as H. Janisch & Company, Appellees, v. Kathryne A. Reynolds and George W. Reynolds, Appellants.
    Gen. No. 33,456.

      Opinion filed October 14, 1929.
    John F. Rosen, for appellants.
    A. S. and E. W. Froehlich, for appellees.
   Mb. Justice Matchett

delivered the opinion of the court.

This appeal is by the defendants, George W. Reynolds and Kathryne A. Reynolds, husband and wife, from a decree finding a mechanic’s lien against certain real estate owned by the wife and granting foreclosure of the same as prayed by the bill. The cause was heard on exceptions to the report of the master, which were overruled, and the report confirmed.

On August 12, 1926, Kathryne A. Reynolds was the owner of premises in Chicago known as 7012 South Shore Boulevard. These premises were improved by a three-story stone and brick apartment building which was in part occupied by the owner and her husband as a home. The owners of the adjoining premises to the north were about to erect a sixteen-story building, and on August 6, 1926, they mailed written notice to the owners and occupants of the Reynolds property that the improvement was about to be made and that the basement wall of the new building would extend 18 feet below the surface. The notice stated that the owners and occupants of defendants’ premises should take necessary steps to protect their building.

Kathryne A. Reynolds was absent at this time from the city and her husband received one of these notices. On August 13, thereafter, the contract to do the work necessary to protect defendants’ wall was executed. It states that it is made between Kathryne A. Reynolds, Gr. W. Reynolds, and complainants, and purports to be signed by all the parties. It is under seal, and the name of Kathryne A. Reynolds was attached to it by her husband.

The work was sublet to one Nelson; it was begun on August 13,1926, and completed on September 17 thereafter. There is no doubt as to the necessity for doing this work, no proof tending to show that the work was not well done or that it was not worth the amount agreed to be paid for doing it.

The master found that the husband was without authority from Mrs. Reynolds to execute the contract, and the defense urged is based upon this finding. The master also found, however, that Mrs. Reynolds returned to her home August 30, 1926, while the work being done upon her premises was in progress and remained in the building until the work was finished; that on one occasion she complained to a workman as to the'manner in which the work was done, but in view of her testimony to the effect that she did not inquire of her husband or anyone else as to the person doing the work or why it was being done, the master was of the opinion that the evidence was not sufficient to justify a finding that the contract was executed with her knowledge, permission and authority. The master further found that Mrs, Reynolds knew the work was in progress, and as she did not protest in writing was therefore liable under section 3 of the Mechanics ’ Liens Act, Cahill’s St. ch. 82, If 3, and was estopped from objecting to complainants’ claim on account of lack of authority on her husband’s part to make the contract. He therefore found that the complainants were entitled to a lien under section 1 of the act, Cahill’s St. ch. 82, m.'

The master also specifically found that at a hearing concerning the adjoining property before the board of zoning appeals on August 31, 1926, Mr. Reynolds testified in the presence of Mrs. Reynolds to the effect that he owned the property and that he had been notified to protect its walls; that the work was then in progress and was costing him $3,500.

The defendants argue that the averments of the bill, the proof and the decree do not correspond, in that the bill averred that the contract was made by defendants for the improvement, while the proof showed, as the master found, that there was no contract made with Mrs. Reynolds. The finding of the master on this point was objected to by complainants and overruled by the master and the chancellor. Cross errors have been assigned thereon but are not argued.

The averments of the bill are that “George W. Reynolds, husband of said Kathryne A. Reynolds, did, by and with her authority, knowledge and permission, then and there in the name of both of them, make and enter into a written contract with complainants bearing date the day aforesaid, wherein and whereby complainants did contract, undertake and agree,” etc.

Defendants cite and rely on cases holding that a contract is indispensable to the creation of a lien. Such is the rule as stated in Campbell v. Jacobson, 145 Ill. 389. However, all the cases cited to this point, with the exception of McRae v. Murdock Campbell Co., 94 Ill. App. 105 (whioh is easily distinguishable), involve transactions taking place prior to the enactment of the present lien law and are therefore not applicable.

Prior to amendments, the effect of which we must consider, there was much conflict in the authorities of this and other jurisdictions as to circumstances under which a husband might subject the real estate, to which his wife holds title, to a lien by contracting in her behalf. Sometimes she was held liable where the improvement was made with her knowledge and permission, under circumstances held to amount to an estoppel, sometimes upon the theory that she had ratified the contract made by her husband through acquiescence and acceptance of benefits. The cases are collected in the note to Rust-Owen Lumber Co. v. Holt, 60 Neb. 80, 83 Am. St. Rep. 512. Sections 1 and 3 of the present Mechanics’ Liens law, Cahill’s St. ch. 82, Híí 1 and 3; which must be construed together, seem to lay down a simple and just rule applicable to such a situation. Section 1 provides for a lien where u “contract or contracts, express or implied, or partly expressed or implied” are made by the owner, or with one whom the owner “knowingly permitted to contract for the improvement.” It also provides that the lien given shall be superior to any right of dower of husband or wife in the premises, “provided, the owner of such dower interest had knowledge of such improvement and did not give written notice of his or her objection to such improvement before the making thereof. ’ ’

Section 3 of the same act, Cahill’s St. ch. 82, fí 3, expressly provides, “If any such services or labor are performed upon or materials are furnished for lands belonging to any married woman, with her knowledge and not against her protest in writing as provided in section l.of this act, in pursuance of a contract with the husband of such married woman, the person furnishing such labor or materials shall have a lien upon such property, the same as if such contract had been made with [the] married woman.” These two sections must be construed together.

The defendants say that the enlargement of the statute does not change the basic principle that the right to a lien must rest on an express contract and that such a contract is a condition precedent to knowledge on the part of the wife from which a lien may be derived. They cite Rittenhouse & Embree Co. v. Warren Const. Co., 264 Ill. 619, and say in their reply brief:

“In our original brief, at page 36, we ventured the assertion that ‘No case can be found in this state holding that real estate is subject to a mechanic’s lien merely because the owner stood by and saw work being done on her premises, unless it was first shown that the work was being done in pursuance of a contract with the owner or with one whom the owner authorized or knowingly permitted to contract for such improvements.’ Counsel for appellees have not met this assertion, and we now reiterate that no such case can be found. ’ ’

It would not, we think, be difficult to distinguish the cases relied on from the record before us. It will be sufficient to say that defendant is not held liable without a contract; on the contrary, the proof is undisputed that the husband entered into a contract, and that the wife having knowledgé of its essential provisions, made no protest. Not only did she fail to protest, but she accepted the benefits of this contract made in her behalf with full knowledge, as the master found, of the essential provisions of the contract. The law therefore presumes her assent to the contract made in her behalf. She is presumably held to know the statute which provides a way in which she could have avoided liability if she desired to do so. She did not avail herself of this provision and is therefore bound by the contract made in her behalf by her husband.

If we have correctly interpreted the statute, there was no variance between any allegation of the bill, the proof and the decree.

We may add, however, that the question of variance is hardly preserved for our consideration upon this record, since it is not specially pointed out in the exceptions to the master’s report. We do not understand that the question is preserved by objections made to the introduction of evidence, as defendants contend. Hines Lumber Co. v. Great Lakes Chemical Works, 237 Ill. App. 246, and cases there cited.

The defendants, however, further urge that the suit was prematurely brought, since by the terms of the contract final payment was not due until two days after the filing of the suit. This defense was, however, not averred in the answer. The Mechanic’s Lien law, Cahill’s St. ch. 82, HI et seq., apparently contemplates only one suit. Granquist v. Western Tube Co., 240 Ill. 132. The defense seems inconsistent with the repudiation of the contract upon which the defendants rely. Lohr Bottling Co. v. Ferguson, 223 Ill. 88, and sections 9 and 11 of the Mechanics’ Liens-Act, Cahill’s St. ch. 82, ¶ 9 and 11, would seem to authorize a suit under such circumstances. Such also seems to be the construction put upon somewhat similar laws in other jurisdictions. Northern Lumber Mills v. Rice, 41 Ont. Law 301, 40 Dom. 128; Burritt v. Renihan, 25 Grant’s Chancery Reports (Ontario), p. 183.

There is no reversible error in the decree, and it will be affirmed.

Affirmed.

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


author: Mr. Justice Matchett

text:
    A. L. Van Ameringen, Appellant, v. Otto J. Cohen and B. Thayer, Appellees.
    Gen. No. 33,465.
    Opinion filed October 14, 1929.
    Rehearing denied October 28, 1929.
    Harris, Reinhardt & Russell, for appellant; Herbert Bebb, of counsel.

      Gustav E. Beerly, for appellees; Geo. F. Ort, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.

Van Ameringen sued Cohen and Thayer, alleging that they were personally liable on account of the execution by them as president and treasurer of Vanard, Inc., a corporation, of a trade acceptance for the sum of $5,586.02 at Chicago, Illinois, on May 7,1927, due to the order of plaintiff on August 7, 1927.

The statement of claim averred that Vanard, Inc., is a New York corporation and that plaintiff did not know that Vanard, Inc., was not authorized to do business in Illinois, and further stated, “plaintiff’s claim arises out of the purchase of goods, for release by plaintiff of certain -accounts assigned to plaintiff and for sundry moneys paid out to and for the defendants in the name of said corporation within the State of Illinois as evidenced in part by a trade acceptance.” The trade acceptance is set up verbatim and it is further averred that the defendants knew the corporation paid on account thereof on June 2, 1927, $500, but that the balance with interest and protest fees was due.

The affidavit of merits admitted that Vanard, Inc., was a New York corporation; denied that defendants were officers, agents or directors or were carrying on the business as alleged; admitted that the claim arose out of the purchase of goods from Vanard, Inc.; averred that all goods purchased by Vanard, Inc., from plaintiff were purchased and delivered in New York and that such purchases were upon orders given in New York; that no portion of the indebtedness was incurred in Illinois nor in the name of Vanard, Inc., nor was Vanard, Inc., doing business in Illinois within the statutes which would make the defendants personally liable; further averred that the trade acceptance was not given for any debt contracted in Illinois under the name of Vanard, Inc., but was given in substitution of a previous acceptance due May 19, 1927, for $6,756.30, upon which certain payments had been made, leaving a balance of $5,586.02; that the trade acceptance of May 19, 1927, was given in payment of goods purchased and delivered in New York and that the transactions out of which it arose were solely within New York and not within Illinois; that the debt was a corporate debt of Vanard, Inc., a New York corporation; that the defendant Thayer did not participate in the creation of the obligation or in the transaction out of which it arose and hence is not liable as a director or officer of a foreign corporation; that Vanard, Inc., was not doing business in Illinois within the meaning of the Illinois Foreign’ Corporation Act, Cahill’s St. ch. 32, if 80 et seq., and at no time transacted within Illinois any substantial part of its ordinary business; that the ° making of the trade acceptance dated May 7,1927, was an isolated transaction and constituted the substitution of the trade acceptance of May 7, 1927, for one of a larger amount maturing May 10, 1927.

There was a trial by the court without a jury and a finding for the defendants, upon which the court entered judgment, which plaintiff seeks to reverse by this appeal.

The errors assigned and argued are that the judgment is contrary to the evidence and that the court erred in excluding certain evidence and offers to introduce evidence on the part of the plaintiff.

The evidence and offers excluded, however, consisted either of matters which were uncontradicted on the record or which, in the view we have' taken of the case, were immaterial and therefore, even if the rulings of the court were erroneous the same did not constitute reversible error. The controlling question in the case therefore is whether the finding and judgment are contrary to the evidence. An examination of the evidence discloses that there is little contradiction as to facts which are material.

Vanard, Inc., was a corporation organized under the laws of the State of New York. It was never authorized to do business in the State of Illinois. It carried on its business in the City of New York from the time of its incorporation in 1925 until the latter part of January, 1927. Defendant Cohen was the president and in control of the business of the corporation as conducted in New York. Defendant Thayer was the president of the Thayer Pharmacal Company, which manufactured toilet articles and perfumes, with an office in Chicago. Plaintiff Van Ameringen was a resident of New'York and in the business there of selling essential oils, out of which the product, in which Vanard, Inc., dealt, was manufactured.

Vanard, Inc., became indebted to the Thayer Pharmacal Company and also became indebted to the plaintiff on account of transactions conducted wholly within the State of New York. The indebtedness of Vanard, Inc., was in the first instance evidenced by a trade acceptance executed in the State of New York secured by the assignment of certain accounts which were due to Vanard, Inc., from its customers. Upon the solicitation of defendant Cohen, Thayer advanced money to him, and Thayer later learned that plaintiff had also advanced money to Cohen, with whom plaintiff apparently maintained friendly relations. In January, 1927, Cohen came to Chicago and told defendant Thayer that he was “up against it,” and offered to-ship all the assets of the business to Chicago. Cohen told Thayer that the assets would equal the liabilities, and Thayer advanced money from time to time until he came to believe that the amount of assets had been misrepresented to him, when he ceased to make further advancements. Thayer began to act as treasurer of Vanard, Inc., while it was still doing business in New York, and continued to act as treasurer and Cohen as president after the assets were removed to Chicago.

The New York office was closed and a bank account was opened in Chicago in the name of Vanard, Inc. Some 175 checks were drawn in the name of the corporation on this Chicago account for the purpose of paying demonstrators and necessary expenses incurred in conducting the business in Chicago. Both defendants signed the checks. The Chicago address was typewritten on, Vanard, Inc., letterheads and envelopes. Some merchandise was sold in Illinois in the name of Vanard, Inc., and the agreement between Thayer and Cohen seemed to contemplate that each should receive one-half of any profits made out of the business.

The acceptance sued upon is dated May 7, 1927. It was made at Chicago by Cohen as president and Thayer as treasurer of Vanard, Inc. The original indebtedness was incurred in New York, and plaintiff testifies:

“As far as I can recollect, there was one trade acceptance given to me in January, 1927. I did not furnish Vanard, Inc., any moneys after they moved to Illinois. I sold some merchandise and shipped it to Chicago and had been paid for it, excepting $9. I could not tell you offhand whether the $9 is included in this trade acceptance.
“It is not a fact that the acceptance sued upon'dated May 7th was in renewal of one dated February 10th, hut it is true that when the second one was cancelled, the other became effective. The one of February 10th was carried over into the new one.
“The trade acceptance of February 10, 1927, was approximately $6,756.30. When it became due, $1,500 was paid and the balance was evidenced in a new trade acceptance dated May 7, 1927, so that the acceptance of May 7th was given in part renewal of one dated February 10th. There was a trade acceptance preceding this for $7,500 dated November 8, 1926.”

Thus the evidence tends to show — contrary to plaintiff’s contention — that the actual indebtedness which the trade acceptance sued on represented originally arose out of transactions carried on in New York exclusively and not in Illinois. When the last acceptance was given plaintiff, at the request of Cohen and at the suggestion of defendant Thayer, released the collateral which had theretofore been held as security for the debt, and plaintiff consented to make this release under the belief that defendant Thayer had taken an interest in the business of the corporation.

Thayer’s evidence tends to show that the assets of Vanard, Inc., were sold to the Thayer Pharmacal Company before removal to Chicago and that the entire transaction of removing the business to Chicago was for the purpose of liquidating the affairs of the corporation. Cohen’s evidence is to the contrary and tends to show a purpose to continue the business of Vanard, Inc., in Illinois.

In the view we have taken of the case, this conflict in the evidence is not controlling. The briefs of the parties leave us in considerable doubt as to the theory upon which plaintiff asserts defendants’ liability. Plaintiff states that he seeks to hold defendants personally liable under section 149 of the Corporation Act (Cahill’s St. ch. 32, ft 149; Smith-Hurd’s Ill. Rev. St. 1927, ch. 32, p. 722), but the statement of claim does not refer to that section, and the only cases cited and relied on are Ryerson & Son v. Shaw, 277 Ill. 524, and Critchfield & Co. v. Armour, 228 Ill. App. 28, neither of which assumes to consider that section of the statute.

The present Corporation Act, Cahill’s St. ch. 32, of which section 149 is a part, was approved June 28, 1919. The transaction upon which liability was found in Ryerson & Son v. Shaw, supra, took place several years prior to that time. Section 149 of the present Corporation Act appears to be a revision of section 18 of the former act. (See Rev. St. 1874, ch. 32, secs. 4r-18.) This section was construed in Loverin v. McLaughlin, 161 Ill. 417, as applicable to the organization of domestic corporations. The opinion in Ryerson & Son v. Shaw, 277 Ill. 524, states:

“There being no statute declaring a liability of officers or agents representing a corporation not permitted to transact business in this State, the question of the liability of the defendants must depend on the application of rules of law under like conditions.”

The transactions, too, upon which the court found a liability in Critchfield & Co. v. Armour, supra, arose out of transactions which took place prior to the enactment of the present statute, while section 18 of the act of 1874 was in force. That case seems to follow the reasoning in Ryerson & Son v. Shaw, supra, and like it bases the finding of liability upon common-law principles, namely, that where a person assumes to act as agent for a legally incompetent principal he renders himself personally liable to the person with whom he deals; and that one dealing with an officer or agent of a foreign corporation cannot be presumed to know that the corporation has not complied with the laws of the State. The same reasoning was applied by the Supreme court of Pennsylvania in Raff v. Isman, 235 Pa. 347.

We are not unaware that the language of section 149 of the act of 1919', Cahill’s St. ch. 32, ft 149, differs quite materially from that of section 18 of the act of 1874, J. & A. 2435; but in view of the express language of the court in Ryerson & Son v. Shaw, supra, it would appear that if it had been the intention of the legislature to make this section applicable to an unlicensed foreign corporation, language would have been used leaving no doubt as to the intention. Insofar as we are informed by the briefs, section 149 of the present act, Cahill’s St. ch. 32, If 149, has never been construed by the courts. However, even if it should be held applicable to the case of an unauthorized foreign corporation transacting business in this state, we do not think it could be so construed as to impose a liability upon defendants in this case. The courts held that section 18, J. & A. ff 2435, which, as we have seen, was' at least analogous, was highly penal in its provisions and should therefore be strictly construed. Vestal Co. v. Robertson, 277 Ill. 425; Inter-Ocean Newspaper Co. v. Robertson, 296 Ill. 92. Under such construction we think defendants are not liable for the reason that the obligation upon which suit is brought was not “made by them,” and under a strict construction of the statute the creation of the obligation or indebtedness was a condition precedent to liability. On the other hand, if we consider the question on common-law principles, such as were followed in Ryerson & Son v. Shaw, supra, we must arrive at the same conclusion, since the obligation was created originally in New York by a New York corporation which had a perfect right to contract and was duly bound by its contract, exercising its powers within the State under whose statutes it came into existence. The principle, therefore, that one who contracts as agent in the name of a principal who does not exist, or who, existing, has conferred no authority upon the agent to act for him, is himself personally obligated, cannot be applied upon this record. There is therefore no liability, eithér under the statute or on common-law principles.

The finding of the trial judge was proper and the judgment entered on the finding is affirmed.

Affirmed.

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


text:
    Charles H. Miller, Appellant, v. H. W. Nydick, Trading as H. W. Nydick & Company, and Union Bank of Chicago, Appellees.
    Gen. No. 33,519.
    Opinion filed October 14, 1929.
    Rehearing denied October 28, 1929.
    Maximilian J. St. George, for appellant.
    Krinsky, Levitan & Glassner, for appellees.
   Mr. Justice Matchett

delivered the opinion of the court.

This is an appeal by the complainant from an order which sustained a demurrer to his bill and dismissed the'same for want of equity.

The bill prayed that a certain agreement for the purchase of lots should be cancelled; that defendants should be enjoined from suing thereon, and for the return of complainant’s property, which was turned over to defendants under the terms of said agreement. The theory of the bill was, and the facts alleged therein tended to show, that this written contract was obtained by fraudulent representations. The demurrer was general.

The court stated his reasons for sustaining the demurrer as follows:

“I am of the opinion that inasmuch as the complainant signed “Complainant’s Exhibit A,” which contained the statement that he read and understood the contract, that no representations or promises were made not expressed in the contract to induce him to sign it, that he is out of court and cannot now ask to have his contract rescinded and set aside for the representations alleged in the Bill of Complaint; that he cannot in one instance say that no representations were made to him and in the next say that they were. He is either not telling the truth in one or the other. I will, therefore, sustain the demurrer and dismiss the bill and allow the complainant an appeal to the Appellate Court.”

. The real question ‘for decision on this appeal is whether the bill stated such case as would properly call for the interposition of a court of equity. The reasons given by the chancellor would be immaterial, provided he reached the correct conclusion. The briefs for defendants, however, seem to be based upon the theory stated by the trial judge, and defendants rely upon Day v. Fort Scott Inv. Co., 153 Ill. 293; Zalapi v. Holcomb & Hoke Mfg. Co., 241 Ill. App. 102, and the quite recent case of Parker v. Croissant, 250 Ill. App. 626, by the Third Division of this court, in an opinion not yet reported. In the latter case the complainant sued in equity to obtain a rescission and cancellation of a real estate contract for the purchase of certain lots for the alleged reason that complainant was induced to enter into the contract by fraud; but the alleged fraudulent representations all referred to facts which were future and therefore amounted only to a statement of opinion. Moreover, in that case the defendants answered the bill denying the alleged representations, and the court in its opinion expressly states that there is no evidence that any false or fraudulent representations were made to the complainant to induce her to sign the contract without informing her of its contents and provisions, or that any attempt was made to induce her to sign the contract without reading. What is said, therefore, about the express provisions of the contract is obiter dictum and unnecessary to a decision, of the case. Here, the matter was heard upon the demurrer which admits all the allegations of the bill that are well pleaded to be true.

The bill avers that the agent of defendants represented to complainant that the properties purchased were on a full section line; that sewer, water, light and gas were in and paid for; that a building contractor had contracted to build 100 bungalows on the property then being sold, of which this prpperty was part; that necessary arrangements had been made to incorporate the Village of Dalton, in which these lots were situated, into the City of Chicago. It is also averred that certain other lots which complainant had contracted to buy and which were to be given in exchange are not on a full section line and that the same are worthless; that while lots 13, 14 and 15 were represented to be' well worth $11,250 and more, they were in fact not worth more than $2,100.

While it is true- that ordinarily a statement as to valuation of property about to be sold is regarded only as an expression of opinion, the difference between the represented value and the actual value may be so gross as to make out a case of fraud. Schwarz v. Rez-nick, 257 Ill. 479; Heinrich v. Norton, 219 Ill. App. 86.

The bill alleges that- all these representations as made were false and known by defendants to be so; that complainant relied upon the same; that by reason of such representations complainant entered into the contract; that complainant was ignorant of real estate values in the places where the property was located; that upon being informed of the true facts complainant demanded that the agreement be cancelled and the money paid by him returned, but that defendants refused to accede to these requests.

To hold that one who by fraudulent representations procures the signature of another to a contract will be immune from a suit to rescind the same because the contract which itself was obtained by fraud states that no fraudulent representations were made, would paralyze the arm of a court of equity.- Such is not the law. Fraud vitiates everything it touches, and a complainant is not precluded by reason of the fact that a defendant who defrauded him succeeded, as a part of the fraud, in getting a written statement that there was no fraud. This might show the skill of the operator and the gullibility of his victim, but a court of justice is not thereby estopped.

' The court erred in sustaining the demurrer and in . dismissing the bill, and for that reason the decree will be reversed and the cause remanded for further proceedings consistent with this opinion.

Reversed and remanded.

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


author: Mr. Justice O’Connor

text:
    Ed. Poncher, Trading as Ed. Poncher & Company, Appellee, v. Sterling Bolt Company, Appellant.
    Gen. No. 33,537.

      Opinion filed October 14, 1929.
    Goldman & Seeder, for appellant; Albert Goldman, of counsel.
    Harold L. Feigenholtz, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.

Plaintiff brought an action against defendant to recover a balance of $930.33 claimed to be due for goods sold and delivered. Plaintiff’s statement of claim was based upon a written contract entered into between the parties. The defendant filed an affidavit of merits and a set-off. Part of the affidavit of merits and the set-off was, on motion of plaintiff, stricken; and apparently since the portion of the affidavit of merits which remained admitted a liability of $687.50, the court entered judgment for this sum. The questions for decision therefore are:

(1) Did that part of defendant’s affidavit of merits which was stricken set up a legal defense? (2) Did defendant’s set-off set up a legal claim against plaintiff?

(1) The statement of claim set up the written contract whereby plaintiff sold and the defendant bought “two carloads bolts, nuts, screws, washers, etc., as packed and loaded by Sterling Bolt Co. representative, Mr. H. Dorph, at Elizabeth, N. J. . . . at $51.30 per net ton, f. o. b. cars, Polk Str. team tracks.” It was averred that the defendant paid $4,000 on account and that there was a balance due of $930.33.

In the amended affidavit of merits it was averred that about a month prior to the execution of the written contract mentioned in the statement of claim, the parties at Elizabeth, New Jersey, entered into an oral contract whereby plaintiff sold and defendant bought the identical goods mentioned in the written contract, the price being $22.50 per ton f. o. b. cars, Elizabeth, New Jersey; that the goods were loaded on the cars in New Jersey and thereupon the defendant offered to pay plaintiff the price agreed upon but plaintiff refused to turn over the bill of lading or to receive payment; that the goods were shipped to Chicago by plaintiff and that upon arrival of the cars in Chicago plaintiff refused to turn them over to defendant unless defendant would pay $40 per ton instead of $22.50 per ton; that defendant, having theretofore resold the goods, was compelled to enter into "the written contract mentioned in the statement of claim, whereby it agreed to pay the $40 per ton, plus freight.

Defendant contends that this written agreement to pay plaintiff the additional compensation was without consideration and therefore unenforceable. Plaintiff concedes that it is the law, as contended for by defendant, that where parties have entered into a binding contract for the purchase and sale of goods, the purchaser’s subsequent promise to pay additional compensation for the same goods is without consideration and unenforceable, but contends that the proposition has no application to the facts as disclosed by the record because, under the law of this State, it is well settled that when parties have reduced their contract to writing, it will be conclusively presumed that the written contract “contains the whole of the prior negotiations, promises and agreements of the parties,” and that in the instant case the parole evidence rule would exclude any evidence tending to show the oral contract as alleged in the defendant’s affidavit of merits.

We think this contention of plaintiff is not applicable. The defendant was not seeking to vary the terms of the written contract in any manner but sought to show that prior to the making of it the parties had entered into a valid, binding oral contract for the purchase and sale of the identical goods mentioned in the written contract, the only substantial difference being that in the written contract defendant agreed to pay plaintiff additional compensation and that under the law this promise for additional compensation was a nudum pactum. Whether the second contract was written or oral would in no way affect the rights of the parties.

The court erred in striking the affidavit of merits. (2) The substance of defendant’s set-off was that the $4,000 which defendant paid to plaintiff on account of the goods was more than sufficient to pay for them, when the quantity was afterwards ascertained by weighing, at the price agreed upon in the oral contract. Obviously, if defendant had paid more than the contract price, it would be entitled to recover such excess. It was error to strike the set-off.

The judgment of the municipal court of Chicago is reversed and the cause remanded for further proceedings in accordance with the views herein expressed.

Reversed and remanded.

McSurely, P. J., and Hatchett, J., concur.


text:
    E. Rohde, Appellant, v. City of Chicago, Appellee.
    Gen. No. 33,622.

      Opinion filed October 14, 1929.
    Woods, Bishop & Cohen, for appellant; John E. Foster, of counsel.
    Samuel A. Ettelson, Corporation Counsel, for appellee ; Leon Hornstein and E. Marshall Amberg, Assistant Corporation Counsel, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.

Plaintiff brought suit against the defendant to recover $150, being license fees of $30 a year he had paid the defendant city for the years 1924, 1925, 1926, 1927 and 1928, under the provision of a city ordinance, his contention being that the ordinance was void. At the close of plaintiff’s case there was a finding and judgment in favor of the defendant and this appeal follows.

The record discloses that an ordinance was passed by the city council of Chicago requiring a license and the payment of a fee therefor from persons or concerns engaged in beauty culture; that plaintiff during the years in question was operating an establishment in Chicago which required a license under the ordinance and the payment by him of the fees mentioned in the ordinance; that each year he took out a license and paid the yearly fee therefor to the city, the last payment being made June 7,1928. A few days thereafter, on June 23, 1928, the Supreme Court of this State handed down an opinion in which it was held that since an act of the legislature went into effect July 1, 1925", which covered the same subject matter as the ordinance, the ordinance was void from and after that date. City of Chicago v. Jensen, 331 Ill. 129. About four months after this opinion was handed down the instant case was brought in the municipal court of Chicago. The defense interposed was that the license fees were voluntarily paid by the plaintiff and therefore no recovery could be had.

Plaintiff contends that the ordinance in question was void from the beginning and that since he paid the fees under duress he is entitled to recover back the money he has paid. It is the law that where license fees are paid a municipality under a void or invalid ordinance, the payments, being made under duress, may be recovered back. But whether there was such duress as the law recognizes is a question of fact in this case. Under the facts as disclosed by the evidence we are of the opinion that the payments were not made by plaintiff under such circumstances as would amount to duress under the law. It is therefore unnecessary for us to decide the question whether the ordinance was void ab initio or only became inoperative after the enactment of the statute on July 1, 1925.

We are clearly of the opinion that the evidence warranted the court in finding that the license fees were paid by plaintiff to the defendant and received by it under no mistake of fact but under the belief that, the ordinance was effective, and in such circumstances the fees, being paid under a mistake of law, cannot be recovered.

The evidence shows that the annual licenses obtained under the ordinance in question expired on Decernber" 31 of each year, and that during the months of November or December of each year the city collector of the City of Chicago, under the provisions of another ordinance, sent notices to all persons or concerns that were conducting beauty parlors and which under the ordinance required a license, that if they desired to renew their license by mail they might remit the fee to the city collector. The notice also contained the following:

“A continuance of your business without remitting the fee for the renewal of your license after its expiration will subject you to the penalty provided by the Chicago Municipal Code.”

Plaintiff testified that he received such notices by mail annually sometime during the month of December for the years in question; that these notices were lost or thrown away by him; and the evidence shows that he paid the license fees on the following dates:

March 26,1924, April 27,1925, January 19,1926, January 25, 1927, and June 7, 1928. Plaintiff testified that in April, 1925, an inspector for the city came to his place of business and asked to see his license and plaintiff was then' advised by his cashier that they did not have the license for that year because they had not paid the fee; that thereupon the inspector handed plaintiff a summons, a copy of which is in the record, by which plaintiff is notified to appear in the municipal court at a certain time and place in the city hall to answer the charge made against him of operating without a license in violation of the ordinance in question, and advising plaintiff that unless he appears, application will be made for a warrant or capias; that he did not appear at the city hall but sent his check to avoid' any trouble; that about a month thereafter, May, .1925, plaintiff went to the license department in the city hall and told a representative of the city that the members of their organization — plaintiff being the president of the beauty culturists — complained- that they were required to pay license fees for which they received no service, and that he told the city’s representative at that time “that we were going to try and have a court trial about it;” that the city’s representative replied that five other organizations had done the same thing and had failed. This is substantially all the evidence in the record, and we think it falls far short of showing that the payments were made under duress. Arms v. City of Chicago, 251 Ill. App. 532, and cases there cited. In Yates v. Royal Ins. Co., 200 Ill. 202, it is said:

“The fact that a tax is paid unwillingly or with complaint is not of any legal importance, but there must be some degree of compulsion, to which the taxpayer submits with notification of some sort equivalent to a reservation of rights. ’ ’

In Dillon on Municipal Corporations, 5th ed., sec. 1621, page 2832, it is said:

“Where a person, of his own motion, goes to the city clerk and pays money as a price of a license, under an ordinance afterwards judicially declared void, the payment is voluntary, and not upon compulsion, although the ordinance imposed a fine and .imprisonment as a penalty for not obtaining a license; hence, in such cases, the money cannot be recovered back.”

The judgment of the municipal court of Chicago is affirmed.

Affirmed.

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


author: Mr. Justice O’Connor Mr. Justice Matchett

text:
    Mary Moran, Appellee, v. John J. Redder, Appellant.
    Gen. No. 33,641.
    Matchett, J,, dissenting.
    Opinion filed October 14, 1929.
    Coburn, Kearney & Coburn and Joseph I. Sheridan, for appellant; Marshall V. Kearney, of counsel.
    James J. Gaughan, for appellee; Frederick A. Gariepy and Edwin L. Hendricks, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.

Plaintiff brought an action of forcible detainer against the defendant to recover possession of certain premises in Chicago. The complaint being in the usual form, charged that the defendant “unlawfully withholds the possession thereof” from plaintiff. The case was tried before the court without a jury and there was a finding and judgment in plaintiff’s favor, and defendant appeals.

The record discloses that plaintiff owned the premises in question and leased them to the. defendant by a written lease covering the period from May 1, 1924, to April 30, 1926. Another lease was executed by the parties covering the period from May 1, 1926, to April 30, 1927, and by a third lease the premises were demised from May 1, 1927, to April 30, 1928, and the fourth lease, being the one in question, covered the period from May 1, 1928, to April 30, 1929, the premises being occupied by the defendant as a private dwelling.

Plaintiff, after offering the leases in evidence and after it appeared that defendant was still in possession and had nót paid the rent for the months of October, November and December, 1928, and January and February, 1929, rested.

The defense interposed was that while the defendant was occupying the premises under the lease last executed, a written agreement was entered into between plaintiff and defendant whereby plaintiff agreed to sell and the defendant agreed to purchase the premises in question for $5300, and that thereupon the relation of landlord and tenant ceased and that the defendant was thereafter occupying the premises as the vendee in possession. The agreement was in the form of a receipt and is as follows:

“August, 23rd/28
“Received of Mr. John Redden, one hundred dollars cash deposit on cottage known as 4923 Polk St. one thousand dollars or more cash and $50 a month including interest; fifty three hundred'dollars and no taxes back.
(Signed) Mrs. Mary Moran.”

This document is in the record and appears to be in ■the handwriting of the plaintiff, Mrs. Moran. The defendant also offered to prove that after the execution of the document quoted, plaintiff made no attempt to collect rent until January 15, 1929; that prior to that time, December 12, 1928, plaintiff advised the defendant that she was ready to consummate the sale of the premises;'that defendant accepted this proposition and a meeting was arranged for a few days thereafter, and that' in the meantime plaintiff refused to consummate the transaction.

Other evidence was offered by the defendant which we think it unnecessary to refer to. All of the evidence offered by the defendant was excluded by the court, the court stating that until the defendant “had a deed to those premises, he would have no right to possession, . . . Until he (defendant) has a deed entitling him to right to possession, he cannot stand on the question of the contract. The only remedy he has got is to pay his rent or get out, and file a bill for specific performance. . . .

“By virtue of what right under a contract could he possibly hold possession as against this plaintiff? A contract at the most is a mere inchoate right to possession under the terms of the contract, which if not fulfilled, gives him a right to go into a court of equity and file a bill for specific performance.”

We think the court erred in excluding the evidence. We see no reason why a landlord and his tenant may not enter into a valid contract for the purchase and sale of the premises, and when this is done, the relation of landlord and tenant ceases even though the contract does not specifically authorize the tenant to enter into or withhold possession as purchaser of the premises, as this authority may be implied from the circumstances. Leary v. Pattison, 66 Ill. 203; Stanwood v. Kuhn, 132 Ill. App. 466; Mahannah v. Mahannah, 292 Ill. 133.

The Leary case was an action of forcible detainer, the defense interposed was that subsequent to the lease, the tenant entered into a contract with the lessor for the purchase of the premises. The court held that the burden of proof to establish the defense was upon defendant; that it was a question of fact and not that the evidence of such sale and purchase was inadmissible.

The Stamoood case was also an action of forcible detainer, where it was held that the action would not lie against one who had entered into possession.of the premises under a lease where such lease contained an option to purchase, which option had been exercised by the defendant. The court there said (p. 470, 47Í):

“Appellee insists that he is entitled to the possession of the premises by reason of the agreement in the lease to ‘surrender the premises’ at the expiration of the term, under the proviso of the fourth clause of the second section of the forcible entry and detainer act, which provides ‘when any lessee of the lands or tenements or any person'holding under him holds possession without right after the termination of the lease or tenancy by its own limitation, terms or conditions, or by notice to quit or otherwise. ’ It is said that, this being a statutory proceeding, the words ‘surrender’ the premises’ must be complied with. The case of Hunter v. Silvers, 15 Ill. 174, is relied upon as authority for the position that appellant (the tenant) herein cannot defend in a forcible detainer suit, and that although he may have done all that is required of him, by the contract and is rightfully entitled to receive a deed from appellee, yet he must surrender possession, bring his suit in equity and obtain his rights in that forum. Since the decision in the Hunter case the Forcible Detainer Act was changed in 1872 by the insertion of the words ‘without right.’ The statute having been materially • changed since that decision was rendered, that case cannot now be authority upon the construction of the presént statute. The landlord now must not only show that the term has expired, but that the tenant is holding without right. Eichorn v. Peterson, 16 Ill. App. 601; Bard v. Jones, 96 Ill. App. 370; Holt v. Nixon 141 Fed. R. 952. In Leary v. Pattison, 66 Ill. 203, a -forcible detainer case where a tenant sought to defend on the ground that he had bought the premises by a subsequent oral contract and terminated the relation under the lease, it was held, that ‘it was a matter of defense, and the burden of the proof rested on the appellant. The evidence given as to the contract does not overcome the express denial of appellee. ’ The inference is that had a binding contract been proved it would have been a good defense. The mere contract for the purchase of land does not authorize the purchaser to enter into possession of the property without license from the vendor, but such license may be either express or implied from circumstances. Chappell v. McKnight, 108 Ill. 570.”

The court then further discusses the authorities and continuing said that where a party had made a contract to purchase land and had gone into possession, the premises are in fact his property, subject only to the lien of the vendor for the unpaid balance, and (p. 472):

“The appellant rightfully obtained possession under his lease, with an option to purchase during the term, and having elected to purchase the premises and performed all the terms of the option without any default on his part, his. possession was rightful. It was not necessary for appellant to go into equity to restrain the forcible detainer suit and to get a decree for specific performance.”

In the instant case the evidence tended to show that plaintiff was rightfully in possession of the premises under his lease but afterwards the parties entered into the contract for the purchase and sale, and that for several months thereafter complainant made no attempt to collect the rent, all of which tended to show that defendant was occupying the premises, not as tenant but as vendee, and under the law this relationship may be shown by circumstances as stated in the Stmvwood case.

In the Mahannah case (292 Ill. 133) the court said (p. 138):

‘ ‘ Charles Mahannah had been a tenant of his father, and while he sustained that relation he could not question the title of his landlord, but upon the making of the contract (to purchase) and his entry upon the performance of it the character of his possession was changed. (Coari v. Olsen, 91 Ill. 273.) It was not necessary that Charles should surrender the possession and re-enter under the contract. Blade v. Hoopeston Gas and Electric Co., 250 Ill. 68.”

The court erred in excluding the offered evidence, and the judgment of the municipal court of Chicago is reversed and the cause remanded.

Reversed and remanded.

McSurely, P. J., concurs.

Mr. Justice Matchett

dissenting: I dissent from the judgment of the court. In the first place, the receipt in evidence fails to disclose either a vendor or a vendee. No one agrees to sell. No one agrees to buy. I find nothing in the record tending to prove any contract. The receipt set up in the opinion (the uncontradicted evidence shows) was delivered on August 23, 1928. ■ The supposed terms of the supposed contract are set up in a letter by defendant to plaintiff, dated January 12, 1929, which is clearly a self-serving document written after the controversy arose and therefore was properly excluded by the court.

In the second place, while I agree with the statement of the court to the effect, “We see no reason why a landlord and his tenant may not enter into a valid contract for the purchase and sale of the premises,” I quite disagree with the further statement, “And when this is done the relation of landlord and tenant ceases even though the contract does not specifically authorize the tenant to enter into or withhold possession as purchaser of the premises as this authority may be implied from the circumstances,” and the cases cited do not in my opinion sustain the proposition. Leary v. Pattison, 66 Ill. 203, does not sustain it, for the judgment there was apparently based on a finding that no contract for the sale of the premises had been made. Stamwood v. Kuhn, 132 Ill. App. 466, was a case where the defendant entered into a lease which by its terms gave to the lessee an option to purchase the premises, which the court found to be an irrevocable offer. Mahannah v. Mahannah, 292. Ill. 133, was a suit in equity, and the decisions were controlled by equitable principles which have no application to a suit at law. The statement of the trial court, “Of course, I am going on the theory on this case that until there is a deed passed, he has absolutely no right of possession,” seems to me to express the holding of the courts in the analogous cases of O’Brien v. O’Brien, 195 Ill. App. 346, and Merki v. Merki, 212 Ill. 121. In O’Brien v. O’Brien, the opinion states: “An action in forcible detainer is an action at law, and an equitable defense cannot be set up in such action,” while in Merki v. Merki, supra, it was held that the question of whether a deed from a party, under whom defendant claimed, had been executed and afterwards lost or destroyed might not be inquired into in a forcible detainer suit.

The general rules are that an option to purchase land which doés not confer the right to possession does not tend to establish the right of possession (Kissack v. Bourke, 132 Ill. App. 360); that a vendee of real estate has no right to possession unless the contract so provides or the vendor voluntarily lets him into possession (Coleman v. Connelly, 139 Ill. App. 383); that the mere purchase of land from the owner of the fee does not authorize the purchaser to enter into possession without license from the seller either express or implied. (Chappell v. McKnight, 108 Ill. 570.)

I do not question the proposition that a vendor of the fee may by contract or license grant to his vendee the legal right to possession and that when so granted the same may be interposed as a defense to an action in forcible detainer or ejectment. I understand it is so held in Black v. Hoopeston Gas & Elec. Co., 250 Ill. 68, and Kopprasch v. Satter, 331 Ill. 126, but in my opinion not a scintilla of evidence was offered in this •case from which a jury or a court could reasonably find any such license, grant or contract. The burden was of course upon the defendant to establish the controlling fact that by some grant from his alleged vendor the character' of his right of possession had been changed from that of a tenant to that of a vendee in possession by permission.

The defendant having failed to produce or offer any testimony tending to sustain this defense, I think the judgment should be affirmed.


author: Mr. Presiding Justice Barnes

text:
    First District.
    Joseph Kamfner, appellant, v. Auburn Park Trust & Savings Bank et al., appellees.
    Gen. No. 33,362.
    Opinion filed July 3, 1929.
    Rehearing denied July 13, 1929.
    Simon Herr, for appellant. Deneen, Healy & Lee, for appellee Auburn Park Trust & Savings Bank; Harry W. Lippincott and Donald N. Schaffer, of counsel.
   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    The People of the State of Illinois, defendant in error, v. Robert Kurfirst, plaintiff in error.
    Gen. No. 33,371.
    Opinion filed July 3, 1929.
    Rehearing denied July 11, 1929.
    Kirkland, Fleming, Green & Martin, for plaintiff in error; Weymouth Kirkland, Walter E. Tinsley and William H. Symmes, of counsel. Samuel A. Ettelson, Corporation Counsel and John A. Swanson, State’s Attorney, for defendant in error; Martin H. Foss, Assistant Corporation Counsel and Lee R. La Rochelle, Assistant State’s Attorney, of counsel.
   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    The People of the State of Illinois, defendant in error, v. Paul A. Fischer, plaintiff in error.
    Gen. No. 33,372.
    Opinion filed July 3, 1929.
    Rehearing denied July 11, 1929.
    Kirkland, Fleming, Green & Martin, for plaintiff in error; Weymouth Kirkland, Walter E. Tinsley and William H. Symmes, of counsel. Samuel A. Ettelson, Corporation Counsel and John A. Swanson, State’s Attorney, for defendant in error; Martin H. Foss, Assistant Corporation Counsel and Lee R. La Rochelle, Assistant State’s Attorney, of counsel.
   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    The People of the State of Illinois, defendant in error, v. Frank Spinuzza, plaintiff in error.
    Gen. No. 33,373.
    Opinion filed July 3, 1929.
    Behearing denied July 11, 1929.
    Kirkland, Fleming, Green & Martin, for plaintiff in error; Weymouth Kirkland, Walter E. Tinsley and William H. Symmes, of counsel. Samuel A. Ettelson, Corporation Counsel and John A. Swanson, State’s Attorney, for defendant in error; Martin H. Foss, Assistant Corporation Counsel and Lee R. La Rochelle, Assistant State’s Attorney, of counsel.
   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    The People of the State of Illinois, defendant in error, v. Loyd (alias Lloyd) Fravel, plaintiff in error.
    Gen. No. 33,374.
    Opinion filed July 3, 1929.
    Behearing denied July 11, 1929.
    Kirkland, Fleming, Green & Martin, for plaintiff in error; Weymouth Kirkland, Walter E. Tinsley and William H. Symmes, of counsel. Samuel A. Ettelson, Corporation Counsel and John A. Swanson, State’s Attorney, for defendant in error; Martin H. Foss, Assistant Corporation Counsel and Lee R. La Rochelle, Assistant State’s Attorney, of counsel.
   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    Catherine Mather, appellee, v. Nellie Wilson, appellant.
    Gen. No. 33,414.
    Opinion filed July 3, 1929.
    Clark & Clark, for appellant; Russell S. Clark, of counsel. Replogle & Smith, for appellee; George J. Haddad, of counsel.
   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    Eagle Tank Company, appellee, v. Gustave W. Stege et al., defendants. Stege Park Ridge Laundry, Inc., appellant.
    Gen. No. 33,427.

      Opinion filed July 3, 1929.
    Rehearing denied July 15, 1929.
    Theodore A. Kolb, for appellant. Bulkley, More, Poynton & Overmyer, for appellee.
   Mr. Presiding Justice Barnes

delivered the opinion of the court.


author: Mr. Justice Gridley

text:
    Gus Pihos, appellee, v. Charles H. Stern, appellant.
    Gen. No. 33,322.
    Opinion filed July 3, 1929.
    Daniel M. Healy and Clyde L. Todd, for appellant. Richard Hill, Jr. and Marshall E. Gallion, for appellee.
   Mr. Justice Gridley

delivered the opinion of the court.


text:
    Nora Williams, appellee, v. Chicago City Railway Company et al., appellants.
    Gen. No. 33,356.
    Opinion filed July 3, 1929.
    George W. Miller and Arthur J. Donovan, for appellants; Frank L. Kriete and John E. Kehoe, of counsel. Augustine J. Bowe and William J. Bowe, for appellee.
   Mr. Justice Gridley

delivered the opinion of the court.


text:
    George K. Fiske and Birger Holmes, trading as Glenview Plumbing & Heating Company, appellants, v. Glenview State Bank, appellee.
    Gen. No. 33,391.
    Opinion filed July 3, 1929.
    James Hibben and Charles S. Cole, for appellants. Cassels, Potter & Bentley and Arthur R. Wolfe, for appellee; Kenneth B. Hawkins, of counsel.
   Mr. Justice Gridley

delivered the opinion of the court.


text:
    Frank J. Gagen, appellee, v. Joseph Thinnes, appellant.
    Gen. No. 33,404.
    Opinion filed July 3, 1929.
    Lawlor & Fiedler, for appellant. No appearance for appellee.
   Mr. Justice Gridley

delivered the opinion of the court.


text:
    joe Rane, appellee, v. Louis Asher, appellant.
    Gen. No. 33,478.
    Opinion filed July 3, 1929.
    Benjamin H. Vanderveld, for appellant; Eugene E. Bruckner, of counsel. Sidney F. Brown, for appellee.
   Mr. Justice Gridley

delivered the opinion of the court.


text:
    National Bond & Investment Company, appellee, v. Mandel A. Cohen, appellant.
    Gen. No. 33,325.
    Opinion filed July 3, 1929.
    Rehearing denied July 15, 1929.'
    Cohen, Tomas & Cohen, for appellant; George B. Cohen and Irwin H. Goldman, of counsel. John W. Creekmur and D. E. Hoopingarner, for appellee.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    James H. Hooper and B. W. Snow, plaintiffs, v. Celle Becker and American Surety Company of New York, defendants. James H. Hooper, appellant.
    Gen. No. 33,347.
    Opinion filed July 3, 1929.
    Rehearing denied July 15, 1929.
    James H. Hooper, pro se, and Harold O. Mulks, for appellant. F. F. , and J. V. Norcross and D. W. Elliott, for appellees.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    A. F. Lewis, appellee, v. Heywood-Wakefield Company, appellant.
    Gen. No. 33,359.
    Opinion filed July 3, 1929.
    John A. Bloomingston, for appellant. William L. Hart, for appellee; William L. Hart and Joseph P. Brodie, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    Florence F. Gilliam, appellant, v. Richard W. Gilliam, appellee.
    Gen. No. 33,395.

      Opinion filed July 3, 1929.
    Schuyler, Weinfeld & Parker, for appellant; Carl J. Appell and Howard D. Moses, of counsel. Samuel J. Andalman and Robert F. Bradburn, for appellee.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    Katherine Watt, appellee, v. Marshall Field & Company, appellant.
    Gen. No. 33,433.
    Opinion filed July 3, 1929.
    Benson Landon and Frank P. Leffingwell, for appellant; Benson Landon, of counsel. Golden, Kagan & Whiteside, for appellee; John J. Whiteside and William Y. Baird, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    Joseph M. Fleming, appellee, v. Dominick Marubio, appellant.
    Gen. No. 33,472.
    Opinion filed July 3, 1929.
    Rehearing denied July 12, 1929.
    N. Rothblum, for appellant. Philip Rosenthal and Stuart B. Krohn, for appellee.
   Mr. Justice Scanlan

delivered the opinion of the court.


author: Mr. Presiding Justice Wilson

text:
    The Foreman Trust & Savings Bank (complainant), appellee, v. American Sash & Door Company et al., defendants, on appeal of American Sash & Door Company (defendant), appellant.
    Gen. No. 33,658.
    Opinion filed July 3, 1929.
    Benjamin Rosenberg, for appellant. No appearance for appellee.
   Mr. Presiding Justice Wilson

delivered the opinion of the court.


author: Mr. Presiding Justice McSurely

text:
    Frank Blaurock et al., appellees, v. Gabel Packing Company et al., appellants.
    Gen. No. 33,660.
    Opinion filed July 8, 1929.
    Lewis F. Jacobson, Roy C. Merrick and Sidney C. Nierman, for appellants. Krinsky, Levitan & Glassner, for appellees.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Purchasers Securities Corporation, appellee, v. Weekly Racing Guide et al., appellants.
    Gen. No. 33,516.
    Opinion filed July 8, 1929.
    Rehearing denied July 17, 1929.
    Kirkland, Fleming, Green & Martin, for appellants; Weymouth Kirkland, Robert N. Golding and Dillon R. Brown, of counsel. John Lewis Smith and John T. Evans, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.


author: Mr. Justice Holdom

text:
    Citizens Trust & Savings Bank, complainant, appellee, v. Anne Blair et al., defendants, on appeal of Catherine C. Smith, defendant, appellant.
    Gen. No. 33,667.
    Opinion filed July 11, 1929.
    Ossian Cameron and Edward H. S. Martin, for appellant Catherine C. Smith. Sonnenschein, Berkson, Lautmann & Levinson, for appellee.
   Mr. Justice Holdom

delivered the opinion of the court.


text:
    N. Isaacson for use of Motor Club Service Corporation and Inter Insurance Exchange, plaintiffs in error, v. Emanuel M. Steiner, defendant in error.
    Gen. No. 33,383.
    Opinion filed October 11, 1929.
    . William L. Hart, for plaintiffs in error; William L. Hart and Joseph P. Brodie, of counsel. Geo. D. Anthony, for defendant in error; John E. Wilson, of counsel.
   Mr. Presiding Justice Barnes

delivered the opinion of the court


text:
    H. J. Margolis, appellee, v. Fidelity Bond & Mortgage Company, appellant.
    Gen. No. 33,401.
    Opinion filed October 11, 1929.
    Rehearing denied October 22, 1929.
    A. S. and E. W. Froehlich, for appellant. Edelson & Paullin, for appellee; Hyland J. Paullin, of connsel.
   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    Guy Falco and Harry LeRoy, appellants, v. Clara Radice and Dan Radice, appellees.
    Gen. No. 33,436.

      Opinion filed October 11, 1929.
    Murray & Lee and Stephen A. Cross, for appellants. Maximilian J. St. George, for appellees.
   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    Frank Bezkostny and Rozalie Bezkostny, appellees, v. Joseph Nesvadba and Josephine Nesvadba, appellants.
    Gen. No. 33,457.
    Opinion filed October 11, 1929.
    Rehearing denied October 22, 1929.
    Ring & Uhlir, for appellants; Otto F. Bing and Thomas M. Zasadil, of counsel. Charles A. Churan, for appellees.
   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    Anton Petricevic, appellee, v. Marisa Smajo et al., on appeal of Peter Smajo, appellant.
    Gen. No. 33,484.
    Opinion filed October 11, 1929.
    Barratt O’Hara and Paul Kerz, for appellant. No appearance for appellee.
   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    George M. Bard et al., appellees, v. George R. Lawrence et al., defendants. George R. Lawrence and Walter E. Carr, appellants.
    Gen. No. 33,527.
    Opinion filed October 11, 1929.
    Samuels, Lawton & Wittelle, for appellants. Paul Carpenter and Whitman Taylor, for appellees.
   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    Harry L. Street, plaintiff in error, v. O. L. Van Laningham, defendant in error.
    Gen. No. 33,386.
    Opinion filed October 11, 1929.
    Oliver C. Heywood, for plaintiff in error. John A. Bloomingston, for defendant in error.
   Mr. Justice Gridley

delivered the opinion of the court.


text:
    Rose Ronsley, appellant, v. Fred Ronsley, appellee.
    Gen. No. 33,450.
    Opinion filed October 11, 1929.
    Austin L. Wyman, for appellant. George H. Kriete, for appellee.
   Mr. Justice Gridley

delivered the opinion of the court.


text:
    In re Estate of Harry Theologes, deceased. Joseph Cowen, appellant, v. Stella Theologes and Frank Moland, administrators of said estate, appellees.
    Gen. No. 33,469.
    Opinion filed October 11, 1929.
    Isador Becker, for appellant. Frank Moland, for appellees.
   Mr. Justice Gridley

delivered the opinion of the court.


text:
    G. W. Brainard, trustee in bankruptcy of Globe Auto Supply Corporation, appellant, v. Morris Froehlich and Louis Mansbach, appellees.
    Gen. No. 33,471.
    Opinion filed October 11, 1929.
    Rehearing denied October 22, 1929.
    Haffenberg, Kopald & Burns, for appellant. Ernest C. Reniff, for appellees.
   Mr. Justice Gridley

delivered the opinion of the court.


text:
    The People of the State of Illinois, defendant in error, v. Peter Vlahos, plaintiff in error.
    Gen. No. 33,497.
    Opinion filed October 11, 1929.
    Robert M. Woodward, for plaintiff in error; Clyde C. Fisher, of counsel. John A. Swanson, for defendant in error; Edw. E. Wilson and John Holman, Assistants State’s Attorneys, of counsel.
   Mr. Justice Gridley

delivered the opinion of the court.


author: Mr, Justice Gridley

text:
    Lulu Jackson, appellee, v. National Life & Accident Insurance Company of Tennessee, appellant.
    Gen. No. 33,545.
    Opinion filed October 11, 1929.
    Murphy O. Tate, for appellant. Fred S. Herzon, for appellee; Louis T. Herzon, of counsel.
   Mr, Justice Gridley

delivered the opinion of the court,


text:
    William Miller and Peter Bormann for use of Margaret Polachek, plaintiffs in error, v. Bowmanville National Bank, defendant in error.
    Gen. No. 33,554.
    Opinion filed October 11, 1929.
    Maurice L. Davis, for plaintiffs in error. O ’Shaughnessy & O’Shaughnessy, for defendant in error; Walter F. Cunningham, of counsel.
   Mr. Justice Gridley

delivered the opinion of the court.


text:
    The Texas Company, appellee, v. Frank A. Hart, appellant.
    Gen. No. 33,566.
    Opinion filed October 11, 1929.
    Rehearing denied October 22, 1929.
    Charles F. Burke, for appellant; A. J. W. Appell, of counsel. Winston, Strawn & Shaw, for appellee; Walter A. Wade and Fred J. McManus, of counsel.
   Mr. Justice Gridley

delivered the opinion of the court.


text:
    Ruth Johnson, plaintiff in error, v. James Barrett Johnson, defendant in error.
    Gen. No. 33,642.
    Opinion filed October 11, 1929.
    Kroon & Kroon, for plaintiff in error; E. C. Kroon, of counsel. Otto Baer, for defendant in error.
   Mr. Justice Gridley

delivered the opinion of the court.


text:
    Sky Projection Corporation, appellee, v. Aerograph Company of America et al., defendants. Gregor Melikov et al., appellants.
    Gen. No. 33,666.
    Opinion filed October 11, 1929.
    Rehearing denied October 22, 1929.
    John F. Higgins, Myer H. Gladstone and Arnold N. Frieder for appellants; Myer H. Gladstone, of counsel. Gallagher, Kohlsaat, Rinaker & Wilkinson, for appellee.
   Mr. Justice Gridley

delivered the opinion of the court.


text:
    John Rock, appellee, v. Minneapolis, St. Paul & Sault Ste. Marie Railway Company, appellant.
    Gen. No. 31,914.

      Opinion filed October 11, 1929.
    John L. McInerney and Edward H. Murnane, for appellant. H. H. Patterson, for appellee.
   Mr. Justice Scanlan

delivered the opinion of the court.