text:
    Northern Trust Company et al., Appellees, v. Anna M. McEldowney et al., Defendants. John W. Fling, Jr., Appellant. Harry C. Cox et al., Appellants.
    Gen. No. 39,225.

      Heard in the third division of this court for the first district at the December term, 1936.
    Opinion filed June 30, 1937.
    Montgomery, Hart, Pritchard & Herriott, of Chicago, for appellants; L. Edward Hart, Jr., of counsel.
    Topliff & Horween, of Chicago, for appellees; Samuel Topliff and Hubert C. Merrick, of Chicago, of counsel.
   Mr. Presiding Justice Denis E. Sullivan

delivered the opinion of the court.

The plaintiff as testamentary trustee and as trustee under a certain trust deed commenced an action to foreclose a trust deed which had been given to secure a principal note for $33,000 executed by Anna M. MeEldowney and Walter T. MeEldowney. The trust deed given to secure this principal note was executed by Anna M. MeEldowney, Walter T. MeEldowney and Emma J. Cox, a spinster, and was dated February 20, 1915.

After a hearing in the circuit court a decree was entered against the defendants for the sum of $45,977.16 with interest at five per cent per annum, decreeing the sale of the premises conveyed by the said trust deed in satisfaction of the indebtedness found to be due upon the trial of the cause.

Plaintiffs filed their complaint on February 1, 1935, naming as one of the defendants John W. Fling, Jr., as trustee under the will of Emma J. Cox, deceased.

On May 15, 3935, the said John W. Fling, Jr., together with other defendants named in the complaint, was defaulted for want of an answer and the cause was referred to a master.

On June 7, 1935, Harry C. Cox, Emma Lucinda Rutledge, India Elizabeth Babb, Harriet Webster Nelson, Jerry Cortez Cox and Maxine Brown, all heirs at law of Emma J. Cox, deceased, theretofore sued as unknown owners, came into court, disclosed their identity and asked leave to intervene to protect their interests in the premises sought to be foreclosed. On said day leave was granted to them to intervene and answer the complaint without prejudice to the proceedings that had already been taken.

Subsequently, on June 26,1936, by stipulation between the plaintiffs and the said John W. Fling, Jr., as trustee aforesaid, the order of default entered on May 15, 1935, defaulting the said John W. Fling, Jr., was vacated and set aside without prejudice to the proceedings theretofore had and the said Fling was given time within which to answer the complaint. Answers were filed thereafter by the interveners and the said John W. Fling, Jr., as trustee under the will of Emma J. Cox, deceased.

The answer of the interveners put in issue the sufficiency of the premises to satisfy the indebtedness, the question as to whether or not the lien of the trust deed has been discharged by operation of law, and the question as to whether or not the plaintiff’s right of action is barred by the statute of limitations.

The answer of John W. Fling, Jr. puts in issue the first two questions raised by the answer of the interveners, but does not raise the issue in reference to the statute of limitations.

Each answer makes a prayer for affirmative relief and asks the court to discharge that portion of the lien of the trust deed as to the undivided one-third interest in the premises sought to be foreclosed, owned by the interveners as heirs at law of Emma J. Cox, deceased, or by the said John W. Fling, Jr. as trustee under her last will and testament, and for an accounting of one-third of the rents, issues and profits collected by the plaintiffs in accordance with an alleged assignment.

Plaintiffs contend that the trust deed executed by Emma J. Cox contained an absolute promise to pay the indebtedness evidenced by the principal promissory note, together with all interest thereon and charges in accordance with the covenants of the trust deed; that this absolute promise was a primary obligation of the said Emma J. Cox and bound her as principal obligor of the indebtedness evidenced by the principal note, and so binds all those who claim privity in the mortgaged premises through her. Further, that legal title to the undivided one-third interest in the mortgaged premises formerly owned by Mrs. Cox was, at the time of the filing of the complaint, vested in John W. Fling, Jr. as her testamentary trustee; that in consequence thereof the claims of the interveners and the defendant, John W. Fling, Jr., are subject to and subordinate to the lien of the trust deed dated February 20, 1915, and that plaintiffs are therefore entitled to a decree of foreclosure and sale of the said premises in satisfaction of the indebtedness due upon the principal note, together with interest and the charges in accordance with the covenants of the said trust deed.

Defendants contend that the fact that the said Emma J. Cox executed a trust deed but did not execute the principal note or any of the interest coupon notes constituted her a surety for the obligors upon the principal promissory note and interest coupon notes, of, to wit, Anna M. McEldowney and Walter T. McEldowney; that the covenants in the trust deed promising to pay the indebtedness had no other effect than pledging the entire assets of the said Emma J. Cox as surety for this indebtedness rather than the single asset, to wit, the property conveyed by the trust deed. Further, that in view of the fact that the maturity of the principal note was extended three times, that the obligation of the said Emma J. Cox was thereby discharged, in that her testamentary trustee or her heirs at law did not assent to the last of the said extensions, and it is further contended on behalf of the interveners that the assent of the testamentary trustee to the first two extensions was irregular and not binding and that the lien of the said trust deed upon the undivided one-third interest in the premises sought to be foreclosed, originally owned by the said Emma J. Cox, is discharged and void.

Defendant further contends that the interveners, being all the heirs at law of the said Emma J. Cox, deceased, were the owners of legal and equitable title to an undivided one-third interest in the premises sought to be foreclosed and therefore necessary parties to this action; that John W. Fling, Jr., as testamentary trustee of Emma J. Cox, was authorized, by the will, on the performance of certain conditions, to assent to an extension of the indebtedness evidenced„by the principal promissory note for a period of five years from the date it was due by its terms, to wit, February 20, 1920; that the conditions under which the assent to the extension was to be given were that the makers of the notes, to-wit, Anna M. MeEldowney and Walter T. McEldowney, must first give security to said Fling, Jr. before assenting to the extension; that the conditions were not performed and, even though the trustee assented, it was not binding upon them; that they did not become parties to the foreclosure action until more than 10 years after February 20,1925, having become parties thereto on June 7, 1935, hence the statute of limitations bars plaintiffs from any right of action against the interveners and consequently plaintiffs are not entitled to the remedy sought in their complaint and that the bill as to them should have been dismissed.

There is no controversy over the pleadings nor is there any dispute as to the facts, and but two points of law are raised by the defendants, appellants here. The first is that where a mortgage or trust deed is given to secure the debt of another, as well as containing an agreement and covenant to see that the debt is paid, the mortgagor assumes the liability of a surety, and any change in the form of the debt or the terms of the payment not assented to by the mortgagor, or those claiming under said mortgage, will discharge the mortgage.

The second point raised is that the statute of limitations (Ill. State Bar Stats. 1935, ch. 83, ¶ 11; Jones Ill. Stats. Ann. 107.269; Smith-Hurd’s Revised Statutes, ch. 83, sec. 11) had run upon the cause of action sued upon prior to the time that the heirs at law of Emma J. Cox became parties thereto, and that plaintiffs ’ remedy is barred thereby.

The evidence discloses that on February 20, 1915, Anna M. McEldowney and Walter T. McEldowney executed one principal promissory note bearing said date in the sum of $33,000, payable five years after date thereof and bearing interest at the rate of 5% per cent per annum until maturity; that the instalments of interest were evidenced by 10 interest coupon notes; that both principal note and interest coupon notes were to bear interest after maturity at the rate of 7 per cent per annum; that to secure said note the said Anna M. McEldowney, Walter McEldowney and Emma J. Cox, a widow, delivered a certain trust indenture dated February 25, 1915, conveying:

“Lot seventeen (17) in Block sixty-nine (69) of the Original Town of Chicago.”

The evidence further shows that by the terms of said trust deed the makers thereof, covenanted among other things, as follows:

“And the said party of the first part, covenant and agree that they will pay the note and coupons hereby secured and all expenses of this trust and will . . . pay all taxes and assessments on said premises . . . until the indebtedness aforesaid shall be fully paid. . . . ”

At the time of the execution of the principal note and trust deed Anna M. MeEIdowney and Walter T. McEldowney owned an undivided two-thirds interest in said property and Emma J. Cox, a widow owned the remaining undivided one-third interest.

The evidence further shows that Emma J. Cox died during the year 1919, and John W. Fling, Jr., was named as executor and trustee under her will which was duly admitted to probate in the county court of Stark county, Illinois; that John W. Fling, Jr., duly qualified as executor and trustee and became vested as trustee with an undivided one-third interest in the said premises.

The evidence further shows that Emma J. Cox in and by her will directed and authorized her trustee to extend the loan secured by the aforesaid trust deed for a period of five years from the date of maturity thereof, making the maturity date as of February 20,1925; that on February 11, 1920, an extension agreement was made by and between Anna M. MeEIdowney, Walter T. MeEIdowney and John W. Fling, Jr. and the Northern Trust Company, extending the time of payment of the principal note until February 20, 1925, with interest thereon at the rate of 6 per cent per annum, evidenced by 10 extension coupon notes of even date therewith and that said extension agreement was filed for record ; that the 10 extension interest coupons were all duly paid and canceled prior to February 20, 1925.

The evidence further shows that the second extension agreement dated December 31,1924, extending the principal note for five years in the sum of $33,000, due February 20,1925, as previously extended, to February, 1930, with interest at 6 per cent per annum, executed by Anna M. MeEldowney, Walter T. MeEldowney and John W. Fling, Jr. and the Northern Trust Company. Interest on said note was evidenced by 10 interest coupon notes and said extension was duly filed for record in the office of the recorder of Cook county. Said extension agreements bore the notation:

“John W. Fling, Jr. executes this instrument as Trustee only and does so for the purpose of showing his assent as Trustee under the Will of Emma J. Cox to the extension herein provided. ’ ’

The evidence further shows that the 10 interest coupon notes were each duly paid and canceled on or prior to February 20,1930; that on the 24th day of February, 1930, a third extension agreement was entered into by and between the Northern Trust Company and Anna M. MeEldowney, extending the principal promissory note for another five years or until February 20, 1935, with interest thereon at 6 per cent per annum, with the additional provision that one of the makers of said note, the said Anna M. MeEldowney, should have the option to pay the entire loan on any interest note on thirty days’ notice with an advance interest at 1 per cent per annum to maturity; that the extension interest coupons 1 to 7 were duly paid and canceled and that interest coupons 8 and 9 having matured were presented for payment, but were not paid, which default continued thereafter.

The evidence further shows that on the first day of February, 1935, suit was commenced.

It is contended by defendants that Mrs. Cox, in signing the trust deed, acted in law as surety on the note of her sister and brother — the McEldowneys. We do not think the evidence bears out this position. A controversy existed among the owners of this property, leading to a partition suit, where it became necessary in the opinion of all persons involved, to purchase a one-third interest which would be beneficial to all. In order to do this it was necessary to borrow $33,000. The MeEldowneys took the title to the one-third interest which they purchased and Mrs. Cox, the other sister, signed the trust deed, by which she agreed:

“And the said party of the first part covenant and agree that they will pay the note and coupons hereby secured and all expenses of this trust . . . and will . . . pay all taxes and assessments on said premises . . . until the indebtedness is fully paid. ’ ’ What does that clause mean if it is not that she is bound as principal to carry out the agreement which she made? It was a primary agreement and not a collateral one, and when she conveyed her property to the trustee there is no doubt she intended that the property should be held by the trustee until the debt was paid, and upon their failure to keep the agreement, plaintiffs had the right to enforce the terms of this trust deed as against this property.

It is next contended by defendants that this action is barred by the statute of limitations and they rely upon ch. 83, sec. 11, Smith-Hurd’s Statutes, 1935, which provides as follows:

“11. Mortgage — When Foreclosed.) §11. No person shall commence an action or make a sale to foreclose any mortgage or deed of trust in the nature of a mortgage, unless within ten years after the right of action or right to make such sale accrues.” Ill. State Bar Stats. 1935, ch. 83, ¶ 11; Jones Ill. Stats. Ann. 107.269.

The facts as to the dates do not justify defendants’ position. The original principal note was made on February 20, 1915, for a period of five years and it is admitted by defendants that the agreement with the trustee for a five-year extension, according to the terms of Mrs. Cox’s will, would extend payment of the note until February 20, 1925. This suit was commenced on February 1,1935, 20 days prior to the expiration of the 10-year term fixed by the statute within which time suit may be brought, therefore the suit was brought within the 10-year period as provided by statute. While we think the payment and the acceptance of interest thereafter stopped the running of the statute, yet, according to defendant, the commencing of the suit made all the parties defendants, both known and unknown owners in compliance with the statute and the contention of the defendants that the interveners did not come in until after the 10-year period is of no consequence as the suit was commenced in apt time. But; in addition to this, the rule is that a mortgage is not barred until the debt is barred. As the Supreme Court said in the case of Kraft v. Holzmann, 206 Ill. 548, at page 549:

“We have repeatedly held in such cases, that the debt is the principal thing and the mortgage or trust deed but an incident thereto; that section 11 of the Limitation Act must be construed in connection with section 16, applicable to promissory notes, and that the mortgage will not be barred until the debt is barred. (Emory v. Keighan, 88 Ill. 482; Schifferstein v. Allison, 123 id. 662; Hibernian Banking Ass’n v. Commercial Nat. Bank, 157 id. 524; Actna Life Ins. Co. v. McNeely, 166 id. 540; Richey v. Sinclair, 167 id. 184; Wellman v. Miner, 179 id. 326; Murray v. Emery, 187 id. 408.) ”

In the intervening petition filed by the heirs of Emma J. Cox, they apparently take the position that in some way they have a greater right than their ancestor from whom they received title to this property. Manifestly, if their ancestor could not have slandered or libeled the right, title and interest which she conveyed to the plaintiff, the successors to her interest may not do so. Their ancestor having by deed caused the plaintiffs or their cestui que to part with their money, such ancestor or her successor heirs or privies would be estopped from thereafter taking a different position and claiming that they did not intend the deed to be what it plainly is, a conveyance of real estate with a covenant to defend the title thereto, to be held in trust as security for a debt which they have, as primary parties, agreed to pay.

As was said in Biwer v. Martin, 294 Ill. 488, at page 497:

“Since the grantor and his heirs and assigns are not permitted to deny the title which the grantor by his deed conveys but must defend the same, it would seem by all equitable principles that he or they should.not be allowed to breach by his or their act the covenants of warranty contained in such deed. ’ ’

We do not think it of any consequence whether the will of Emma J. Cox by its terms attempted to limit the time of extension of the note and mortgage. She owed the money and her liability could not be changed by any ex parte language in her will without notice to and agreement by plaintiffs. The note in this case having been sold to the Visiting Nurses’ Association as an investment, before maturity for value, it would be inequitable to favorably consider the application of defendants or the equitable prayer in their answer, when they themselves have made no effort to do equity. Even assuming for the sake of argument that they should be released from their obligation to pay the debt represented by the note and interest, yet the fact remains that many hundreds of dollars in taxes and special assessments were advanced by the owners of these notes to protect the title to the property, which defendants have failed to do. In the answer and cross petition of the defendants for affirmative relief no offer or tender is made to pay back these sums of money which were advanced by plaintiffs to protect the title to what defendants claim as their property.

We are of the opinion that the position of defendants is inequitable and cannot be sustained as to their defense of nonliability, but, in addition to this, their prayer for affirmative relief as to the note is not supported by the facts and law. The prayer of the defendants to have this trust deed removed as a cloud upon the title to the property herein involved cannot be granted.

For the reasons herein given the decree of the circuit court is affirmed.

Decree affirmed.

Hebel and Hall, JJ., concur.


source: Caselaw Access Project

author: Mr. Justice Hall

license: Public Domain

text:
    Frank S. Frost et al., Appellees, v. Noah Van Cleef et al., Appellants.
    Gen. No. 39,057.
    Heard in the third division of this court for the first district at the October term, 1936.
    Opinion filed June 30, 1937.
    Rehearing denied July 12, 1937.
    Silber, Clausen, Hirsh & Woley and Clarence J. Silber, all of Chicago, for appellants.

      Robert F. Kolb, of Chicago, for appellees; Francis M. Cooper, of Chicago, of counsel.
   Mr. Justice Hall

delivered the opinion of the court.

Judgment was entered in favor of • plaintiffs and Against defendants in the superior court of Cook county for the sum of $1,200, after a trial by the court without a jury. The action is predicated upon an alleged breach of an oral contract, wherein it is claimed that defendants undertook and agreed to rubberize certain fabric furnished by defendants to plaintiffs, to be used by plaintiffs in the manufacture of upholstering for church kneelers.

Elmer Frost, an employee of plaintiffs, testified to the effect that about July 14, 1931, he had a conversation with one of the defendants — whom he identified in court as Noah Van Cleef — at defendants’ place of business, with reference to purchasing rubberized fabric or cloth from defendants, and that a man named Netzel was with the witness at the time; that Frost inquired of Van Cleef whether or not the rubberized material which defendants manufactured could be used in upholstering, and that Van Cleef’s reply was that it could be so used; that the witness told Van Cleef that plaintiffs desired-to upholster pew kneelers in churches, and that it had been found that artificial leather was not satisfactory, because it would crack up and deteriorate; that Van Cleef told the witness that defendants were, at the time, using rubberized fabric for automobile tops and seats, and that the witness afterwards gave defendants a “sample order” for a considerable amount of the material for plaintiffs to try out. The record indicates that this order is dated September 30, 1931, and recites, in substance, that plaintiffs purchased from defendants 150 yards of rubberized cloth. The order contains the following recitation: “Per sample attached.” The record does not show <?learly, but we conclude from tlie briefs of both parties that the words “per sample attached,’’-'means that the “sample” is the material so purchased from defendants by plaintiffs which was to be used by plaintiffs for experimental purposes. Thereafter, and until September 15, 1932, defendants furnished a considerable amount of vulcanized cloth, to be used for upholstering pew kneelers. Prior to November 15, 1933, plaintiffs found that the fabric furnished by defendants and used as the base for the rubberized material, was not satisfactory, because it was too light and had a tendency to stretch and wrinkle after it was used in upholstering, and that Frost then inquired of defendants as to whether or not a stronger fabric would not be better, and whether such a fabric could be rubberized, the same as that which plaintiffs had been using; that defendants assured him that this could be done, and that thereupon the witness ordered a number of yards of material to be vulcanized upon fabrics or cloth to be furnished by plaintiffs. Thereafter, the plaintiffs received from defendants various shipments of this rubberized material, which had been processed upon cloth so furnished by plaintiffs. The witness, Frost, testified that he delivered the cloth to be rubberized to a man named Dermott of defendants.’ firm, and that the witness then stated to Dermott that plaintiffs desired the cloth rubberized “the same as we had received before.” Thereafter several shipments were made by defendants to plaintiffs of this processed material, which proved to be satisfactory. The witness, Frost, testified that about November 5, 1933, he spoke to defendant Paul Van Cleef, and stated to Van Cleef, “I think we are entitled to a better price, and Paul (meaning Paul Van Cleef) said to me that he would give me a better price.” The record indicates that after this conversation, a shipment was made by defendants which had been processed as above suggested, which shipment was received by plaintiffs on or about November 22nd, following. This shipment was tendered back to defendants, as was a shipment made on December 15, 1933, because, as plaintiffs allege, the material did not conform to samples furnished, and would not answer their purpose. It is the contention of plaintiffs that the product furnished by defendants on the last mentioned dates did not conform to the samples furnished plaintiffs, and that plaintiffs were thereby damaged. They seek to recover certain amounts paid to defendants for material and the cost and expense of certain work done, in upholstering kneelers.

It is the contention of defendants that there were no warranties, either express or implied, that the sales were not made by sample when plaintiffs supplied the fabric for processing, and that plaintiffs did not rely on the skill and judgment of defendants in this work, because plaintiffs themselves were experimenting with a new product, and so advised defendants; that the evidence shows that there were no warranties on the part of defendants, and that all defendants were required to do was to render the processing service in a good and workmanlike manner, which the evidence shows was done. It is further claimed by defendants that after a dispute concerning the matters in question, an accord and satisfaction was had between the parties on November 15, 1933; also, that the evidence fails to disclose any defect in the material furnished by them to plaintiffs.

Frank M. Netzel, one of the plaintiffs and a partner in the Frost Rubber Works, and who accompanied Elmer Frost on his visit to defendants’ institution on July 14, 1931, testified to the effect that he had been in the rubber business for 38 years, and was familiar with the business; that he knew the process of compounding and vulcanizing rubber; that on the occasion of his visit to defendants’ plant, already referred to, the witness stated to Van Cleef that plaintiffs were getting ready to go into the business of upholstering kneelers for churches; that he had tried rubber coating in a small way, and that he asked Van Cleef about using defendants’ material, and that Van Cleef answered that defendants were selling the material for automobile tops; that the witness then asked Van Cleef for samples of material to be used for church kneelers; that Van Cleef furnished the witness with samples of soft suede cloth, and that the witness told Van Cleef that plaintiffs expected to do considerable business with churches; that he, Netzel, covered some kneelers in two churches with this material, and that the covering at first seemed to be satisfactory, but that he was afterwards told by the people representing the church that the upholstering of the kneelers ivas not satisfactory; that he reported this to Dermott of defendants’ firm, and that he was directed by Dermott to send the material back; that he subsequently went to defendants’ place of business and talked to a Dr. Frick, and told him that the material was not vulcanized properly, and that he was afterwards told by Paul Van Cleef that if the material was not right, defendants would take it back in 30 days and give plaintiffs credit for any moneys paid on it; that on April 11, 1934, plaintiffs returned some of the material to defendants, but defendants would not accept it. This witness stated that in his opinion, the material was not properly vulcanized.

John H. Kelly, Jr., a research rubber chemist, a Avitness for plaintiff, testified to the effect that at the request of plaintiffs, he examined several rubber samples to determine whether they were properly vulcanized or not, that the common test to determine whether rubber is vulcanized properly, is to try to dissolve it into a solvent called xylol, and that one of the samples Avhich he put into the xylol went into solution within 9 feiy moments,

Noah Van Cleef, one of the defendants, testified that his institution were manufacturers of various types of rubber products, including rubber cements, friction tapes and rubberized fabrics, and that defendants had been in the business for 26 years. He denied that he had a conversation with Elmer Frost-on July 14,1931, or at any other time, as narrated. He further stated that Van Cleef Brothers do not manufacture rubberized fabrics for use in connection with automobile tops or seats, and that he did not tell Frost that they did.

Felix Van Cleef testified in substance, that in July, 1931, he had a conversation with Elmer Frost at defendants’ office, and that they, meaning plaintiffs, indicated to the witness their desire to purchase leatherette for kneeling pads; that the witness showed them samples of original leatherette, which is normally used for the manufacture of raincoats, and that they purchased a few yards, apparently for samples. On cross-examination this witness testified that at that time Frost and Netzel stated that it was their intention to use the material mentioned for kneeling pads in churches, and that the witness then stated that he had no idea as to whether or not it would be suitable for that purpose, that he was not acquainted with the requirements in that connection, and that at that time, Frost bought 11 yards of the material.

Paul Van Cleef, one of the defendants, testified that he‘was a graduate of the University of Chicago, specializing in organic chemistry, particularly, rubber chemistry; that he had a conversation with Elmer Frost shortly after Frost purchased samples of defendants’ product in 1931; that Frost indicated to the witness that plaintiffs were desirous, of developing a product which would be suitable for kneelers in churches, and that Frost told the witness it was pioneer work, and that defendants continued to furnish material to plaintiffs until about 1934; that towards the end of the dealings between the parties, plaintiffs expressed a desire to use a cloth of greater strength for their base, and furnished defendants with a sample of this cloth, and that there was no change made by-defendants in the processing of the cloth furnished by-plaintiffs from that employed in the processing of materials which were originally furnished to plaintiffs; that the material manufactured by defendants is generally used for the manufacture of raincoats, that defendants had never sold any of it for use for automobile; tops, and that he never made any such representation to Frost; also that he had no conversation with Frost on the subject of any change in the material used in rubberizing cloth. He further testified in substance, that in November, 1933, after a controversy with plaintiffs, the witness made a settlement with plaintiffs as an accommodation for the pains which plaintiffs. had been put to in connection with their effort to use defendants’ product for covering kneelers, and that Frost’s only complaint to the witness was that the kneelers became soiled; that the witness told Frost that this could be expected because of the light colored material used, which would soil more easily than material of a darker color; that at this time he denied responsibility in the matter, because the whole thing was a proposition which had been initiated by Frost, and was based entirely on Frost’s idea that plaintiffs could use raincoat cloth as a substitute for leather, with greater profit to plaintiffs. This witness further stated that at the time of his last epnversation with Frost,, plaintiffs owed defendants in the neighborhood of .$200. or $300; that he then told Frost that if plaintiffs would make an immediate settlement, defendants would make an allowance, and that. Frost told the witness that he would cause a check to be sent to defendants, and that would end the matter as far as defendants were concerned. Van Cleef denied that he.ever had any.conversation with any member of plaintiffs’ firm with respect to returning materials for further vulcanizing or curing, but that he did state to Frost that if any difficulty arose as to cleaning the kneelers, and that if plaintiffs would send a couple of the kneelers to defendants, defendants would demonstrate to plaintiffs how they could be cleaned by washing them with naphtha. On cross-examination this witness stated that he saw some of the kneelers which were returned to Van Cleef Brothers for cleaning, and that they were dry cleaned with naphtha, and that the soil and dirt which had accumulated on them was removed and that that process of cleaning had no effect on the rubberized material.

Whether the original sales of this rubberized fabric to plaintiffs were made upon samples furnished by defendants to plaintiffs, is beside the point, because it definitely appears from the record that the controversy between the parties is over the processing done by defendants to fabric furnished by plaintiffs, and that no samples thereof were given by defendants to plaintiffs of this processed material after it had been treated and before it was delivered. It is also clear from the record that plaintiffs were experimenting in the use of this rubberized material in a manner and for a purpose with which defendants were entirely unfamiliar. We are, therefore, of the opinion that the Uniform Sales Act, ch. 121a, Ill. State Bar Stats. 1935; Jones Ill. Stats. Ann. 121.05-121.90, cited by plaintiffs, has no application, because it clearly appears from the record that the plaintiffs were not relying upon the defendants’ skill and judgment as to whether or not the material would serve plaintiffs’ purpose.

In Fuchs & Lang Mfg. Co. v. Kittredge Co., 242 Ill. 88, the Supreme Court said:

“Where a known, described and definite article is ordered of a manufacturer, although it is stated to be required by the purchaser for a particular purpose, still, if the known, described and definite article be actually supplied, there is no warranty that it shall answer the particular purpose intended by the buyer. In a contract for the sale of an article under its patent or other trade name there is an undertaking that the article delivered shall be of the kind ordered but not that it shall be fit for any particular purpose. If the buyer gets what he bargained for, there is no implied warranty though it does not answer his purpose. (Peoria Grape Sugar Co. v. Turney, 175 Ill. 631; Diebold Safe and Look Co. v. Huston, 55 Kan. 104; Mason v. Chappel, 15 Gratt. 572; Gossler v. Eagle Sugar Refinery, 103 Mass. 331; Seitz v. Brewers’ Refrigerating Machine Co., 141 U. S. 510; Chanter v. Hopkins, 4 M. & W. 399; District of Columbia v. Clephane, 110 U. S. 212; Ollivant v. Bayley, 5 Q. B. 288.)”

While there was some proof offered by plaintiff tending to show that the cloth furnished by them to defendants was not properly rubberized or vulcanized, so as to serve plaintiffs’ purpose, we find nothing in plaintiffs ’ brief to indicate that they rely upon such alleged fact. Plaintiffs’ position seems to be that there was both an express and implied warranty that the material would serve plaintiffs’ purposes.

In Kersten v. West Coast Roofing & Manufacturing Co., 204 Ill. App. 447 (abstract opinion) an action was brought to recover for labor and materials furnished in the installation of a boiler in defendant’s building. Defendant contended that the boiler did not meet his requirements. The evidence showed that the inability to meet defendant’s requirements was not due to any defect in the boiler or the workmanship, but to its size, and that the boiler was constructed according to specifications furnished by the defendant, and the court said: “Where a contract calls for the delivery of a certain specified kind of article, there is no implied warranty of its fitness for any purpose other than that it be the kind specified. ’ ’

Here the plaintiff had accepted and paid for all of the shipments of this processed fabric prior to the two shipments in controversy dated November 15 and November 22,1933, evidently believing that after they had received, and presumably examined the material it would suit their requirements. As stated, there is nothing in the record to indicate that samples were furnished of the materials included in these two shipments upon which plaintiffs relied. Whether the rubberized fabric in these last shipments was different from the material included in prior shipments, does not appear from the record.

We are of the opinion that no action can be predicated upon any of the shipments made prior to the last two mentioned. If, however, the facts should disclose that the material included in these two shipments proved to be inferior to the former shipments, plaintiffs might possibly predicate an action upon this fact. Therefore, the judgment is reversed and the cause remanded.

Judgment reversed and remanded.

Denis E. Sullivan, P. J., and Hebel, J., concur.


author: Mr. Presiding Justice Huffman

text:
    The First National Bank of Morris, Appellant, v. Laura M. Stephen, Appellee.
    Gen. No. 9,175.
    Heard in this court at the May term, 1937.
    Opinion filed June 30, 1937.
    Mayer, Meyer, Austrian & Platt, of Chicago, and Arley Munts, of Morris, for appellant.
    S. J. Holderman, of Morris, and Babcock,. Gilruth, Beck & McConnell, of Chicago, for appellee.
   Mr. Presiding Justice Huffman

delivered the opinion of the court.

Appellant was engaged in a general banking business in the city of Morris, Illinois. Pursuant to the national bank moratorium of March, 1933, it was closed. Subsequently, it developed from an examination by the bank examiners, that approximately $60,000 of paper and securities carried among the assets of the bank would have to be removed and replaced with new assets acceptable to the comptroller of the currency, through the chief examiner’s office for that area, before the bank would be permitted to reopen for business. In an effort to comply with the demand of the comptroller, the bank proceeded to take steps to raise the required amount of new assets. It was successful in this attempt. The bank examiner approved the new assets and the bank was thus enabled to resume and continue business.

Among the new assets secured by the bank with which to replace the objectionable paper, was a note from appellee for $5,000. Appellee’s note was carried by the bank as an asset from March, 1933, to February 25,1935, when a judgment by confession was taken thereon by the bank against appellee. The note upon which the judgment was taken was a renewal note, executed under date of October 18,1934. The affidavit attached to the complaint upon which judgment was taken, states that the consideration for the note “was money loaned by the plaintiff to the defendant.” Appellee filed her motion to open up the judgment and for leave to plead, which motion was granted. She set up that the note was without consideration and signed by her as an accommodation paper for the benefit of the payee bank and at its request.

The cause was tried by jury, which found in favor of the defendant, and the court entered judgment on the verdict. The bank has prosecuted this appeal.

Appellant urges three reasons why appellee should be held liable, in addition to the first claim advanced that the note was for money loaned her. They are, first, that the husband of appellee was connected with a corporation engaged in the lumber business, and that her note was given for the purpose of inducing the bank to advance $5,000 to the credit of the lumber corporation; second, that appellee purchased an interest in these assets of the bank to which the examiner had objected; and third, that appellee, in giving her note without any consideration therefor, thereby deceived the bank examiner into believing it was for a valid consideration, and thus participated in a fraud upon the examiner in inducing him to permit the bank to reopen.

With respect to appellant’s first contention that the note was given for the purpose of securing a loan to the lumber corporation, it appears the bank was closed and not in a position to make loans. As to the second claim that appellant was purchasing an interest in the objectionable assets, we discover nothing which we consider tends to prove she intended making any such investment of her funds in this paper. The evidence discloses that the bank made out the original note all ready for appellee to sign, and sent it to her by her husband; that when he brought her the note, she signed it as requested and the husband returned it to the bank the following morning. It appears that no interest was to be charged appellee thereon. Subsequent to the giving of the original note, several renewals were taken, and no interest was ever charged. There is no merit in appellant’s contention that appellee gave her note for the purpose and intent to deceive the bank examiner, and is thereby estopped to assert that it is not a valid obligation. Those cases holding makers of accommodation paper liable in instances similar to this, present situations where the bank became insolvent and the rights of creditors and innocent third parties were involved, or where a consideration for the note was expressly found. Appellant bank in this case is a going concern and the rights of creditors are not involved. Neither do we find that any consideration was given for the note. Therefore, the bank having actively participated in the alleged deceit and fraud, and having procured the note upon its own solicitation from the person sought to be estopped, would likewise be estopped from asserting any rights thereunder. First Nat. Bank v. Reed, 198 Cal. 252, 244 Pac. 368. It would be the policy of the law to leave the parties where it found them.

A recent and very similar case to this, wherein it is held that the maker of an accommodation note given to a National Bank to enable it to reopen, is not es-topped to set up lack of consideration therefor, is found in Litchfield Nat. Bank v. McBride, 289 Ill. App. 420. Such rule prevails in instances where the plaintiff bank is the accommodated party and is a going-concern.

The rule has been recognized that where directors or stockholders of a bank execute their several notes, payable to its order, to make good an impairment of its assets due to certain doubtful and objectionable paper which the bank examiner has demanded withdrawn, and which notes are so given in order to enable the bank to continue to do business, such stockholders and directors cannot set up failure of consideration on the ground that such notes were accommodation paper, because of the fact that the directors and stockholders are interested in the continuation of the bank as a going concern, and these things constitute a consideration for their notes. Appellee was not a stockholder or director in appellant bank. The rule with reference to such notes given to bolster up a failing-bank, which later goes into receivership, does not apply here, as this bank is a going concern and the rights of creditors do not appear to be involved in this record.

The capital structure of this bank was impaired. The bank examiner would not permit it to reopen until it had taken out the assets to which he objected and replaced them with assets acceptable to him. Under such circumstances, it is not probable that the bank inaugurated a selling campaign of this paper to its friends. We are disposed toward the position of appellee that the- transaction was the borrowing of credit by the bank in order to enable it to raise enough new assets to offset the bad paper that must be taken out before it could reopen. It appears that some time subsequent to the delivery of appellee’s note to the bank, a printed instrument was sent her through the mail which was designated as a participating paper, having reference to the assets that had been taken from the bank in lieu of the new assets substituted therefor. But this instrument was not presented to appellee at the time of her signing the note and was no part of that transaction. The doubtful paper was taken charge of by the cashier of the bank, for the purpose of liquidating same as and when possible.

The rule is well established that an accommodation note, given by the payor to the payee, cannot be enforced by the payee against the maker. Straus v. Citizens’ State Bank of Elmhurst, 254 Ill. 185; Peoples Bank of Glasgow v. Yager (Mo.), 6 S. W. (2d) 633; Anamoose Nat. Bank v. Dockter, 56 N. D. 33, 216 N. W. 206; United States Nat. Bank of Superior, Wisconsin v. McCabe, 57 N. D. 456, 222 N. W. 474; Central Nat. Bank of Waco v. Lawson (Tex.), 27 S. W. (2d) 125; Pomeroy v. Farmers Sav. Bank of Shelby, 203 Iowa 524, 211 N. W. 219; Farmers Bank of Billings v. Schmidt, 223 Mo. App. 1098, 25 S. W. (2d) 525; Hayward v. Ham (Mo.), 59 S. W. (2d) 723.

It has been held that where a note is given to a bank as an accommodation, and the-bank pledges the note to another bank, and the maker is obliged to pay the same, he is entitled to recover from the bank to which he gave the note. Ruvenacht v. German-American Bank, 212 Ill. App. 68; 287 Ill. 266.

The object sought to be accomplished by the bank was to raise enough new credit to take the place of the objectionable assets, which the bank examiner demanded removed before he would permit the bank to reopen. The object was realized. It came about at the instance of the bank examiner and through the agency of the officers of the bank who solicited and secured sufficient new assets to take the place of the bad. Appellee was caused to lend her credit to the bank for the above purpose and in the above manner, to the extent of $5,000, evidenced by her note. It is not the purpose for which the accommodation is given that binds or releases the party furnishing the accommodation, but it is the fact of the accommodation. ' The relation between the payee bank and appellee is not changed by the purpose that the bank had in mind in taking her note. The fact that the bank may claim that it used the note to deceive the bank examiner in inducing him to permit it to reopen for business is in no way an estoppel against appellee in this action. No question of the rights of creditors against an insolvent bank is involved in this case. Neither does it avail the bank anything to say that the note in this suit, since it is a renewal of the accommodation note, is therefore binding upon the maker. It is the same obligation and the note is still in the hands of the original accommodation payee. There are no circumstances in this situation that serve to work an estoppel on the part of the defendant. It is the original debt, and the relationship of the parties have in no way changed. Nothing has arisen because of the renewals that effect the rights of the parties as they existed under the original note. Under such circumstances, lack of consideration in an original accommodation note, is carried into and attaches to a renewal note.

The cases above referred to present situations similar to this case and are to the effect that notes made payable to a bank for the accommodation of the bank, even though for the purpose of deceiving the bank examiner, are accommodation paper and the bank as a going concern cannot recover thereon against the maker. However, the bank examiner knew the condition of this bank. It was at his instance the new assets had to be raised. The examiner was thus in a position to know that the bank had nothing with which to raise new assets, except the good will of such persons as it could prevail upon to advance same.

Appellant complains about certain instructions given on behalf of appellee, a modification of one of its instructions, and the refusal of three of its offered instructions. Ten instructions were given on behalf of appellant, and seven on behalf of appellee. The issues involved between the parties were clearly before the jury, and on the whole of the record, we think the jury was fairly instructed and not misled by any of the instructions of which appellant complains.

The question whether the defendant was an accommodation maker for the plaintiff was a proper question for the jury. It resolved that point in her favor, and we are not disposed to disturb that finding. There is evidence tending to prove such fact. From the facts and circumstances appearing in the case, we are not in accord with appellant’s argument that appellee was investing her funds in this bad or doubtful paper, or that she was borrowing money from the bank for the lumber corporation.

We are of the opinion that the verdict of the jury is supported by the evidence and that the judgment of the court thereon should be affirmed.

Judgment affirmed.


author: Mr. Presiding Justice Stone

text:
    Randall Dairy Company, Appellee, v. Pevely Dairy Company and A. E. Kraemme, Defendants. Pevely Dairy Company, Appellant.

      Heard in this court at the February term, 1937.
    Opinion filed June 3, 1937.
    Rehearing denied July 30, 1937.
    Hensley, Krause & Hensley, of St. Louis, Mo., and Smith & Murray, for appellant.
    Louis Beasley and Edward C. Zulley, both of East St. Louis, for appellee.
   Mr. Presiding Justice Stone

delivered the opinion of the court.

This appeal by defendant appellant, hereinafter called the defendant, is prosecuted to review a judgment of the city court of East St. Louis wherein plaintiff appellee, hereinafter called the plaintiff, recovered a judgment against said defendant in the sum of $10,000. The subject matter of this case has twice been before this court. Randall Dairy Co. v. Pevely Dairy Co., 274 Ill. App. 474, and Randall Dairy Co. v. Pevely Dairy Co., 278 Ill. App. 350.

In the first of these cases the cause was reversed on the pleadings. After the case was reinstated in the trial court, leave was obtained and a new complaint filed under the new Civil Practice Act. The case was then tried and a judgment rendered in favor of plaintiff for the sum of $26,000. That judgment was appealed to this court and was reversed again chiefly upon the pleadings. We there held that the complaint which was in one count, stated two different causes of action in said count, and that, therefore, the complaint was obnoxious to a motion to dismiss in virtue of the aforesaid Civil Practice Act. The case was again reinstated in the trial court and all the former pleadings were abandoned by plaintiff, and leave was had and obtained to file a new complaint which was done. This complaint consisted of two counts. The first count was known as the amended first count and the second count as the first additional count.

The amended first count charged in substance that the defendants Pevely Dairy Company and A. E. Kraemme, contriving and maliciously intending to injure and destroy the plaintiff’s good name and reputation, together with its said business in said city of East St. Louis, Illinois, in a certain discourse which the said defendant A. E. Kraemme, in the performance of his duties as assistant manager of appellant, then and there had concerning the plaintiff and the plaintiff’s business, in the presence and hearing of divers persons, falsely and maliciously spoken and published the following false, scandalous, malicious and defamatory words;

“Randall is selling watered milk” (meaning thereby that the plaintiff: Randall Dairy Company is selling milk to its customers that contains a large percentage of water and is not up to the standard of milk specified by the statute of the State of Illinois);
“Randall’s plant is so filthy that the milk that comes out of there is not fit for the hogs to drink”;
“Randall’s plant is so filthy that it will soon be locked up by the State Food Inspector” (meaning thereby that the plaintiff’s place of business was dirty, filthy and unclean, and that plaintiff’s plant is being-operated in violation of the statute of the State of Illinois).

The fourth paragraph of said amended first count charges that defendant pursuant to its unlawful intent and design to destroy the plaintiff’s business with the city of East St. Louis, Illinois, and to establish its dairy business within the territory served by the plaintiff, on April 24, 1932, wrongfully, wilfully and maliciously proceeded to slander, to defame and to scandalize the plaintiff’s business, and then and there through its assistant manager, A. E. ICraemme, the defendant, and through its other officers and agents, appeared on the premises of various customers of the plaintiff and then and there within the hearing- of such customers uttered and repeated the above scandalous and defamatory words:

The first additional count charged that said defendant both prior and subsequent to April 24, 1932, was engaged in the general dairy business in the city of St. Louis, in the State of Missouri, and also operated a branch dairy plant in the city of East St. Louis, Illinois, with one James Hines as manager and the defendant A. E. Kraemme as assistant manager of the business of said defendant; that it was their duty, among other things, to conduct said dairy business and to solicit new customers for said defendant within said territory; that the said defendant for the purpose of destroying plaintiff’s business and causing plaintiff’s employees, to wit, Bob Chambers, Lonnie Duncan, John Taylor, Marvin Boyer, Emmett Holmes and other trusted employees of the plaintiff, to quit the plaintiff, did throug’h its said agent, the defendant A. E. Kraemme, and other agents, wilfully and maliciously attempt to and did induce the above named employees or some of them to quit their employment with the plaintiff and to become employees of the defendant, Pevely Dairy Company, each of said defendants well knowing that the employees named in this paragraph were employees of the plaintiff, and that the loss of the services of such employees by the plaintiff would greatly hinder and impair the workings of the plaintiff’s plant, and would hinder and prevent the plaintiff from delivering its goods to its customers, and would destroy the plaintiff’s business.

The fourth paragraph of said first additional count alleges that the defendant Kraemme wilfully and maliciously made various false statements to the employees mentioned in paragraph three of this count for the purpose of inducing said employees to terminate their employment with the plaintiff; that such statements and acts on the part of the said defendant, Kraemme, were made and done in the presence of James Hines, who at the time said statements were made was the general manager of the business of the defendant Pevely Dairy Company in East St. Louis, and that said defendant Pevely Dairy Company, through its agent and manager Hines, ratified the acts of the defendant Kraemme in attempting to induce and inducing the various employees of the plaintiff mentioned in paragraph three hereof to terminate their employment with the plaintiff.

Defendant moved to dismiss both the amended first count and first additional count alleging that the first count does not state a cause of action; that said first count attempts to state a certain cause of action against the defendants in paragraph three for slander, and attempts to state a "separate cause of action in paragraph four; that the second count did not allege in said count or any paragraph thereof that any employees of plaintiff were induced to quit or did quit the employment of plaintiff, or that anything charged against the defendants, or either of them, resulted in any damages or any actionable wrong to the plaintiff.

This motion was denied, and defendants filed their answer. Afterwards said answer was withdrawn by leave of court, and leave given to file a motion to dismiss said complaint on the ground that plaintiff had no legal status and was incapable of bringing suit by reason of the fact that it had been dissolved by decree of the circuit court of Sangamon county. Before this motion was heard plaintiff asked leave to file an answer to said motion, and in its said answer set up a copy of a later decree of the circuit court of Sangamon county reinstating the plaintiff to its legal rights as a corporation. This motion to dismiss was denied by the trial court and defendants refiled their answer.

Before the trial, counsel for defendant A. E. Kraemme withdrew as such counsel, by leave of court, and Kraemme afterwards filed no answer, but suffered default.

A trial was had. At the close of plaintiff’s evidence and again at the close of "all the evidence defendant Pevely Dairy Company moved for a directed verdict. Both of these motions were denied. The jury returned a verdict in favor of plaintiff against both defendants and assessing plaintiff’s damages at the sum of $10,000.

Motion for new trial was overruled and judgment was rendered upon the verdict. Defendant Pevely Dairy Company alone brings this appeal, and alleges, among other things, error of the court in overruling its motion to dismiss the complaint, the admission of evidence, the refusal of the court to direct a verdict, the giving of instructions one to eight inclusive, tendered by plaintiff, in overruling the motion for new trial, and allowing more than nominal damages to plaintiff.

It is first urged that the trial court erred in not dismissing this cause for want of a complaint which complies with the Civil Practice Act. For the trial court to have allowed this motion Vould have been to disregard our holding in the second appeal. There, substantially the same complaint which is under consideration now, was before us. Our holding was not that the complaint did not state a cause of action, but that it stated two causes of action in the same count. The amended first count and the first additional count in the present complaint separated into two distinct counts the two causes of action which were in the same count in the former appeal. We do not see how the trial court could have ruled otherwise than it did, nor have we seen reason for changing the views expressed in the complaint in the former appeal. Randall Dairy Co. v. Pevely Dairy Co., 278 Ill. App. 350. We are likewise of the opinion that the trial court did not err in refusing to dismiss the cause for want of a legal status on the part of plaintiff. That motion was based upon a decree of the circuit court of Sangamon county dissolving plaintiff as a corporation. The answer thereto set up a later decree of the same court reinstating plaintiff as a corporation. Had the defendant so desired it could have raised the question of the jurisdiction of the circuit court of Sangamon county to enter said decree reinstating plaintiff just as it now complains that it was shut out from doing at a later stage of the trial. That not having been done, we are unable to see how the trial court could have done otherwise than hold that plaintiff had a legal status which entitled it to sue. We think this ruling disposes of the question raised by defendant that this same matter was not raised by reply to defendant’s answer setting up the decree of dissolution of plaintiff. In the appeal of this cause, 278 111. App. 350, we said:

“After the denial of the motion, defendants answered the complaint. Whether by so doing they waived the objections set forth in the motion to dismiss is not before us. Both parties have argued the question as being properly saved for review; hence we have considered it.” The court then, upon motion of plaintiff, struck out paragraphs 8, 9, 10, 11, 12 and 13 of the answer, and this action is claimed as error. We do not think it is. The matters averred in these paragraphs were all set forth in the motion to dismiss, and ruled upon by the court. Defendants contend that notwithstanding such fact, they were not precluded from again raising the questions by their answer, and are authorized so to do by sec. 48 of the Civil Practice Act, Ill. State Bar Stats. 1935., ch. 110, f 176; Jones Ill. Stats. Ann. 104.048.

Paragraph 4 of said section 48 provides: ‘‘ The raising of any of the foregoing defenses to the action by motion shall not preclude the raising of them subsequently by answer unless the court shall have made a decision therein; and a failure to raise any of them by motion shall not prejudice raising them by answer. ’ ’

It will be observed that the statute expressly limits the right to raise such questions by answer to instances where they have not been raised by motion, or where, if so raised, the court has not ruled thereon. If, however, the court has passed on the motion, all the grounds set forth therein are disposed of and adjudicated, and cannot be again presented by answer.

It is contended that it was error to allow the deposition of the defendant Kraemme to be read in evidence against appellant. The record shows that this deposition was taken in virtue of section 60 of the Civil Practice Act, Ill. State Bar Stats. 1935, ch. 110, ¶ 188; Jones Ill. Stats. Ann. 104.060. That section is as follows :

“Upon the trial of any case any party thereto or any person for whose immediate benefit such action is prosecuted or defended, or the officers, directors, or managing agents of any corporation which is a party to the action, may be examined as if under cross-examination at the instance of the adverse party or parties or any of them, and for that purpose may be compelled, in the same manner and subject to the same rules for examination as any other witness, to testify, but the party calling for such examination shall not be concluded thereby but may rebut the testimony thus given by counter testimony. ’ ’

Kraemme could have been called under this section at any time and whether called as a witness during the trial, or called by deposition, is not material. At any rate a stipulation was. entered into between the parties that “said deposition may be taken and read in evidence as though all statutory requirements had been followed.” We cannot agree with defendant’s contention in regard to this assignment.

It is next urged that it was error to admit in evidence proof of any acts done or words spoken by Hines. In support of this assignment, defendant has set out in its brief the particular items which it says constitute this error. We assume that that which is set out is all that is complained of. It is as follows from the deposition of Kraemme:

Q. “How many times did Hines as manager and you as assistant manager call at Bob Chambers’ with reference to him quitting Bandall and going to work for Pevely before he did quit?”
A. “I would say approximately eight or ten or maybe a dozen times that we called on him, ’ ’
Q. “During all these times you and Bob Chambers were soliciting these two or three weeks that was under Hines’ direction and under Kerckhoff’s direction!
A. “Yes, sir.”

Hines had been tried at the first trial of this cause and found not guilty. He was tried as the agent of appellant. This verdict and judgment completely exonerated appellant on the theory of respondeat superior for any conduct of Hines. We so held in the first appeal of this case. Randall Dairy Co. v. Pevely Dairy Co., 274 Ill. App. 474. Appellant could not thereafter be convicted'in the premises for any conduct of Hines, even had it been alleged in the complaint, which was not the case in the complaint. It is not shown that Hines did or said anything. He was just present. It seems to us that this evidence was competent as carrying home knowledge to appellant, of the effort being made by Kraemme. The court did not err, therefore, in admitting it.

Defendant complains that there was a fatal variance between the allegations of the complaint and the evidence in support thereof. In Ransom v. McCurley, 140 Ill. 626, 630, it was said:

“It is well settled that to authorize a recovery in an action for slander the words laid in the declaration, or enough of them to charge the particular offense alleged to have been imputed, must be proved substantially as charged. Evidence of the speaking of equivalent words, although having the same import and meaning, is not admissible.” This doubtless states the law of the State, though it is general. Just what latitude may be allowed in the proof, however, does not appear. Measured by the strict rule which counsel claim this case lays down, a part of the statements of the complaint are not supported by exact evidence. There is enough, however, to charge the offense of slander in this complaint which is supported by competent evidence, as the following comparison shows. In paragraph 2 of the amended first count it is alleged as follows :
“Randall’s place is so filthy that the milk that comes out of there is not fit for the hogs to drink. ’ ’

The witness Larsh testified Kraemme told him ‘ That if I knew how dirty it was, I would not think of feeding it to my children. It wasn’t even fit for hogs to drink.”

Marshall testified: ‘ He said the milk’ was dirty and wasn’t fit for hogs to drink.”

To the same effect was the testimony of Lively and Byrne. To undertake to make a distinction between the allegation above quoted and the support thereof is to try to constrain the opinion in the Ransom case, supra, to mean what it cannot in reason mean. The charge here and the evidence in support of it makes clear the imputation that Randall was selling dirty milk and that is the effect of the ruling in the Ransom case, supra. The distinction sought here is, in our judgment, hypercritical. Those answers which did not prove the exact words otherwise alleged, if error, were harmless.

Counsel for defendant next raise and argues at length a question which has been very definitely settled by this court. In the first appeal of this case we said :

“We are of the opinion that the uttering of slanderous words by an agent of a corporation while acting within the scope of his employment constitutes an exception to the general rule and that both the principal and the agent may be sued as joint tort-feasors. Aetna Ins. Co. v. Brewer, 12 Fed. (2d) 818, 46 A. L. R. 1499; Nunnamaker v. Smith, 96 S. C. 294, 80 S. E. 465.”

In Kypes v. Southern Ry. Co., 64 S. E. 395, the Supreme Court of South Carolina said:

“It is established that corporations as well as natural persons are liable for the wilful torts of an agent acting within the general scope of his employment without previous express authority or subsequent ratification. ’ ’

This does not render the agent any the less liable. This question has been quite thoroughly adjudicated adversely to defendant’s contention.

It is next urged that in this class of cases there can be no punitive damages unless there is proof of actual damages. We can dismiss this as to the first additional count of the complaint. R-andall testified that he lost many customers during and after the time Kraemme and others went among them. This cannot be regarded as a coincidence. It was a circumstance which the jury had a rig*ht to take into consideration in deciding whether plaintiff had been damaged by the alleged campaign to get his customers. This campaign lasted three weeks during which time the agents of defendant had in their possession a list of plaintiff’s customers. Boyd, an employee of plaintiff, was offered more money if he would leave plaintiff and come and work for defendant. The evidence shows that Hines and Kraemme, acting for appellant, induced Chambers to quit his job and go to work for defendant. These facts in our judgment warranted the trial court in submitting the cause to the jury as to the first additional count.

We shall examine this claim as it applies to the first amended count. In support of this contention defendant cites Betting v. Hobbett, 42 Ill. App. 174; Martin v. Leslie, 93 Ill. App. 44; Meidel v. Anthis, 71 Ill. 241, and Kellerman v. Arnold, 71 Ill. 632. Conceding that these cases hold to that principle, we are nevertheless of the opinion that those.holdings have been superseded by later decisions which make certain that the greater weight of authority supports the proposition that slanderous or libelous words, uttered against a corporation and its manner of doing business, — words which are actionable per se, give rise to the assessment of punitive damages without the necessity of allegation or proof of special damages.

In Willfred Coal Co. v. Sapp, 193 Ill. App. 400, in which a libelous publication was uttered against the company by one Sapp, reflecting upon the financial condition of said coal company, the Second District Appellate Court held:

“In some of the earlier cases, notably in Trenton Mutual Life & Fire Insurance Company v. Perrine, 23 N. J. Law, 402, decided in 1852, it was held that no words spoken or written of a corporation could be actionable in themselves and that the corporation must always allege and prove special damage in order to recover. This distinction was thought to be justified by the fact that corporation has not, like an individual, any character or reputation to be effected by the libel independent of its trade or business. However, the law is now well settled that a corporation may sue for a libel reflecting on the management of its trade or business, its credit and its property without alleging or proving special damage where the language used is actionable per se.” This opinion cites a large number of cases from various jurisdictions. In American Book Co. v. Gates, 85 Fed. 729, the plaintiff by leave of court struck out of his complaint all averments with reference to special damage, leaving the same as follows:
‘ ‘ That by reason of said premises and the acts of the defendant as aforesaid, this plaintiff has been damaged and has suffered damage to its business, business reputation and credit in the sum of One Hundred Thousand Dollars.”

It was held that one statement in the article complained of was libelous per se and that as to such statement the complaint of the plaintiff corporation was sufficient without averment as to special damage.

The Willfred Coal Co. case, supra, in commenting on Trenton Mutual Life S Fire Ins. Co. v. Perrine, supra, has the following to say:

“That decision was rendered in 1852 when there were practically no adjudicated cases upon the subject and the case was necessarily one of first impression. In the Perrine case, the libel case, the declaration of plaintiff corporation contained elaborate averments of-special damage which were held sufficient upon demurrer. In the opinion the court says, ‘It may be admitted without prejudice to the present inquiry that no words spoken or written of a corporation are in themselves actionable, but the corporation must always show special damage in order to recover, and the reason for the distinction may be found in the fact that a corporation has not, like an individual, any character to be effected by the libel independent of its trade or business. ’ This statement is not in harmony with the holdings of later cases, nor does it commend itself to us as sound on principle where the libelous statements pertain to the trade or business of the corporation and are of such a character as to naturally and proximatelv result in pecuniary injury.”

In Finnish Temperance Society Sovittaja v. Finnish Socialistic Publishing Co., 238 Mass. 345, the court said:

“The conditions of modern society afford ample illustration that a very large and important part of the private business of a community is now done under the form of corporations and the public mischief, or danger to good order and to the peace of the community arises as well from malicious defamation of private corporations as from libelous attacks on natural persons.” Many authorities are there cited.

In South Heaton Coal Co., Ltd. v. Northeastern News Ass’n, Ltd., 1 Q. B. 138, it was held that although a corporation cannot maintain an action for libel in respect to anything reflecting upon them personally, yet it can maintain an action for libel reflecting on the management of their trade or business, and this without alleging or proving special damages, citing many authorities.

In Interstate Optical Co. v. Illinois Society of Optometrists, 244 Ill. App. 158, commenting upon words which are actionable per se against a corporation, the First District Appellate Court of Illinois concludes as follows:

“After a careful analysis of the contents of the publication, we feel bound to hold that the words directly tend to the prejudice and injury of the plaintiff in its trade and business and are actionable without proof of special damage.”

The case of Stephens v. Hoffman, 275 Ill. 497, is an ejectment case and not in point here. That was a case in which evidence was offered to overcome the presumption of the delivery of a deed. The same is true of Sielbeck v. Grothman, 248 Ill. 435, cited by defendant. The dramshop cases likewise are not in point. We have heretofore held that the words counted on in the amended first count are actionable per se. It follows that such words, if proven, will support a verdict of punitive damages without proof of special damages.

Complaint is made that the trial court erred in giving plaintiff’s instructions 1 to 8. Defendant is not in a position thus to complain. These instructions refer the jury to the pleadings to determine certain questions. This has consistently been held error both by this court and our Supreme Court. Indeed, we have twice held so in this case. It is necessarily so. When a jury is told they may do certain things if they find the defendant guilty in manner and form as charged in the declaration or some count thereof, how are they going to tell whether their finding is “in manner and form” as charged in the complaint when they do not have the complaint before them? As well tell the jury that it must find the defendant guilty “according to law” without telling them what the law is.

In this case maybe defendant’s instructions told the jury all about the pleadings. We do not know. The defendant’s instructions are not contained in the abstract. If said instructions do that thing, then the error above described is cured. In Reavely v. Harris, 239 Ill. 526, our Supreme Court said:

“This court has repeatedly held that errors cannot be predicated upon the giving’, refusal or modification of instructions unless all the instructions are set out in the Abstract, for the reason that there may have been other instructions given which cured the errors complained of. Thompson v. People, 192 Ill. 79; Siegel, Cooper & Co. v. Norton, 209 Ill. 201.”

In Madison v. Wedran Silica Co., our Supreme Court said:

“The errors assigned by the defendant with reference to the giving or refusing of instructions, either upon the part of the plaintiff or the defendant cannot be inquired into by this court inasmuch as all of the instructions for the plaintiff and the defendant were not fully set out in the abstract. City of Roodhouse v. Christian, 158 Ill. 137; People v. Ambolo, 343 Ill. 480.”

In Votrian v. Quick, 271 Ill. App. 259, speaking through Mr. Presiding Justice Barry, we said:-

“Defendant insists that the court erred in refusing-instructions defining- proximate cause. The abstract shows that some of the instructions given to the jury are not contained therein. Error cannot be predicated upon the rulings of the court in giving or refusal of instructions unless all of the instructions are set out in the abstract. Thompson v. People, 192 Ill. 79; Beavely v. Harris, 239 Ill. 526.”

We regard these holdings as a substantial rule of procedure and feel that we are bound thereby. Therefore, appellant not having abstracted its given instructions, it cannot now be heard to assign error on the rulings on instructions in this case.

This is the third appeal of this case. We do not find error in this record which warrants us in again reversing it.

The judgment of the city court is affirmed.

Judgment affirmed.


author: Mr. Justice Murphy

text:
    John Lewis, Appellee, v. Robert Kennon Renfro et al., Appellants.
    Heard in this court at the October term, 1936.
    Opinion filed June 3, 1937.
    Behearing denied July 30, 1937.
    Leon A. Culp, of Marion, and Loyd M. Bradley, of Carbondale, for appellants.
    Orwin H. Pugh, of Murphysboro, and Clarence E. Wright, of Carbondale, for appellee.
   Mr. Justice Murphy

delivered the opinion of the court.

Appellee filed this suit to foreclose a mortgage and to remove certain deeds as having been made in fraud of his rights as a judgment creditor. Defendants named included appellants and 11 other individuals and corporations. It was alleged that the defendants, other than appellants, had or claimed to have some interest in the mortgaged premises as purchasers, mortgagees, judgment creditors or otherwise and that, such interest, if any, accrued subsequent to plaintiff’s rights under the mortgage and judgment. All defendants, other than appellants, did not appear in the trial court and were defaulted. A decree was entered in favor of appellee and appellants filed a notice of appeal to the Supreme Court and that court transferred the cause to this court.

Appellee and Sparta Building and Loan Association, who had been named a party defendant and defaulted, filed a motion to dismiss the appeal on the ground that appellants had not complied with Rule 34 of the Supreme Court rules. That part of the rule which appellee claims to have been ignored is that a copy of the notice by which the appeal is perfected shall be served upon each appellee and upon any coparty who does not appear as appellant. Appellants did not serve the defendants who defaulted, with a copy of the notice of appeal; the only party served was appellee.

By section 74 of the Civil Practice Act, Ill. State Bar Stats. 1935, ch. 110, ft 202; Jones Ill. Stats. Ann. 104.074 (chapter 110, section 198, Smith Hurd), every reviewable judgment or decree is subject to review by notice of appeal and such review is a continuation of the proceeding in the court below.

Section 79 of the act, Ill. State Bar Stats. 1935, ch. 110, ¶ 207; Jones Ill. Stats. Ann. 104.079, authorizes the Supreme Court to prescribe the manner of giving notice and it has been held that rules of court when established have the force of law, People v. Callopy, 358 Ill. 11, and are obligatory upon the court itself as well as the parties to the cause coming before it. Lancaster v. Waukegan & S. W. Ry. Co., 132 Ill. 492; Bender v. Alton R. Co., 284 Ill. App. 419.

At the time of filing the complaint the defendants that defaulted were coparties of appellants and there is nothing in the Civil Practice Act or in Rule 34 that makes any distinction between coparties who have defaulted and those that have not in so far as the question of notice of appeal is concerned. Paragraph 2 of Rule 34 makes provision for service upon a party who is not represented by an attorney, and Rule 35 refers to coparties who do not join in the notice of appeal and gives them the right if they so desire to join as appellants or if their interests are in conflict with those of the appellant, they may prosecute a separate appeal in the same suit. By default in the trial court a defendant would be precluded from raising many questions on appeal but the statute directs that the appeal is the continuation of the cause and we are of the opinion that the rule requires notice of appeal to all coparties whether in default or not to the end that all parties will be before the court until a final determination of the cause.

The Civil Practice Act has broadened the scope of causes of actions and controversies between parties that may be litigated in a single suit and provides that all methods of review theretofore existing shall be by notice of appeal. In view of this .provision it would seem that all parties even thoug’h defaulted, should be considered as parties to the record requiring notice of appeal, until all matters involved are finally adju-r dicated by a court of review.

The right to have a case reviewed on appeal was unknown at the common law and exists only by virtue of statutory enactments, Anderson v. Steger, 173 Ill. 112; Ziegler v. Gilliatt, 263 Ill. 587, and any party who wishes to avail himself of the statutory right must conform to the statute and rules of court adopted pursuant to such statute. Coal Belt Electric Ry. Co. v. Kays, 207 Ill. 632; Conklin v. Tobey, 224 Ill. App. 142; Berkel v. Schmitt, 244 Ill. App. 437. Courts of review will not vary the application or interpretation of the rules to suit the contingencies of a particular case, Bender v. Alton R. Co., 284 Ill. App. 419.

For the reasons assigned the appeal is dismissed.

Appeal dismissed.