author: Mr. Justice O’Connor

text:
    P. M. Smith, defendant in error, v. Louis Heyden et al., defendants. Mary Arndt and Albert Heyden, plaintiffs in error.
    Gen. No. 36,330.
    Opinion filed April 10, 1933.
    Aaron Soble, for plaintiffs in error. Mclnerney & Powers, for defendant in error.
   Mr. Justice O’Connor

delivered the opinion of the court.


source: Caselaw Access Project

author: Mr. Justice O ’Connor

license: Public Domain

text:
    James M. Shackelford, appellee, v. The Belt Railway Company of Chicago, appellant.
    Gen. No. 36,346.
    Opinion filed April 10, 1933.
    Rehearing denied April 24, 1933.
    J. Raymond Barse, Samuel Kassel and John A. Bloomingston, for appellant. William Wallace MeCallum and Murphy O. Tate, for appellee.
   Mr. Justice O ’Connor

delivered the opinion of the court.


text:
    Auburn Stoker Sales Corporation, appellee, v. Fred Becklenberg, appellant.
    Gen. No. 36,385.
    Opinion filed April 10, 1933.
    Shulman, Shulman & Abrams, for appellant; Meyer Abrams, of counsel. Chavin & Quadow, for appellee; Arthur Quadow, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    C. Percy Read, defendant in error, v. Anna Silverman. Iroquois Auto Insurance Underwriters, plaintiff in error.
    Gen. No. 36,417.

      Opinion filed April 10, 1933.
    Beverly & Klaskin and D. W. Elliott, for plaintiff in error. Tins-man, Blocki & Heeren, for defendant in error; Gale Blocki, of counsel.
   Mr. Justice O ’Connor

delivered the opinion of the court.


text:
    The People of the State of Illinois, defendant in error, v. Joseph Moch, plaintiff in error.
    Gen. No. 36,475.
    Opinion filed April 10, 1933.
    Brodkin & Bieber, for plaintiff in error; Abraham Teitelbaum, of counsel. Thomas J. Courtney, State’s Attorney, for defendant in error; Edward E. Wilson, Grenville Beardsley and Albert Woll, Assistant State’s Attorneys, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.


author: Mr. Presiding Justice Scanlan

text:
    Fannie Roberson, appellee, v. Hugo F. Toepfer, appellant.
    Gen. No. 36,241.
    Opinion filed April 11, 1933.
    Rehearing denied April 24, 1933.
    Vernon W. Foster, for appellant. John H. Kay, for appellee.
   Mr. Presiding Justice Scanlan

delivered the opinion of the court.


text:
    Alice C. Wilson, appellee, v. Arthur B. Hoffheimer, appellant.
    Gen. No. 36,257.
    Opinion filed April 11, 1933.
    Church, Haft, Robertson, Crowe & Spence, for appellant; Burt A. Crowe, of counsel. Joseph D. Ryan and Louis P. Miller, for appellee.
   Mr. Presiding Justice Scanlan

delivered the opinion of the court.


text:
    Edward H. Morris, receiver for Binga State Bank, appellant, v. Fountain Thurman, appellee.
    Gen. No. 36,267.
    Opinion filed April 11, 1933.
    James B. Cashin, for appellant; Thomas P. Harris, of counsel. Ho appearance for appellee.
   Mr. Presiding Justice Scanlan

delivered the opinion of the court.


text:
    Anna Curtis, appellee, v. Phillip State Bank & Trust Company, as trustee, appellant.
    Gen. No. 36,304.
    Opinion filed April 11, 1933.
    Crowe, Gorman & Savage, for appellant; W. W. Patterson, of counsel. Owen, O’Brien, McKeown & Allan, for appellee; John Owen and James O. O’Brien, Jr., of counsel.
   Mr. Presiding Justice Scanlan

delivered the opinion of the court.


author: Mr. Justice Gridley

text:
    Herbert C. Heller & Company, Inc., appellant, v. Dowdle Brothers Company, appellee.
    Gen. No. 36,155.
    Opinion filed April 11, 1933.
    Chapman & Cutler, for appellant; Dayton Ogden and Charles M. Thomson, of counsel. Morton S. Cressy and John J. Dowdle, for appellee.
   Mr. Justice Gridley

delivered the opinion of the court.


text:
    George J. Williams, appellant, v. Louis Schwartz, appellee.
    Gen. No. 36,297.
    Opinion filed April 11, 1933.
    Warren Pease and Holland F. FlaHavhan, for appellant. Short, Rothbart, Willner & Lewis, for appellee.
   Mr. Justice Gridley

delivered the. opinion of the court.


text:
    National Paper Box Company, appellee, v. Philip S. Bloom Company, appellant.
    Gen. No. 36,331.
    Opinion filed April 11, 1933.
    Short, Rothbart, Willner & Lewis, for appellant; Dwight McKay, Seymour M. Lewis and Benedict J. Short, of counsel. Meyer L. Cherkas, for appellee.
   Mr. Justice Gridley

delivered the opinion of the court.


author: Mr. Justice Sullivan

text:
    Harry N. Kransz, defendant in error, v. L. J. Kwaitkowski et al., plaintiffs in error.
    Gen. No. 35,834.

      Opinion filed April 11, 1933.
    George D. Kimball, for plaintiffs in error. Cummings & Wyman, for defendant in error;-Austin L. Wyman, of counsel.
   Mr. Justice Sullivan

delivered the opinion of the court.


text:
    Chicago Realty Shares, Inc., plaintiff in error, v. Frank T. Jordan, defendant in error.
    Gen. No. 36,043.
    Opinion filed April 11, 1933.
    Rehearing denied April 24, 1933.
    Irwin Grossman, for plaintiff in error. Adolph M. Newman, for defendant in error.
   Mr. Justice Sullivan

delivered the opinion of the court.


text:
    Abe Ellis and Harold Ellis, trading as Hamlin Parkway Garage, for the use of Henry Perlman, appellants, v. Liberty Trust & Savings Bank, appellee.
    Gen. No. 36,174.
    Opinion filed April 11, 1933.
    Henry Perlman, pro se. Ringer, Wilhartz & Hirsch, for appellee; Julian H. Levi, of counsel.
   Mr. Justice Sullivan

delivered the opinion of the court.


text:
    Frank Schofield, appellee, v. Cosmopolitan Life Insurance Company, appellant.
    Gen. No. 36,216.
    Opinion filed April 11, 1933.
    A. F. W. Siebel, for Appellant. Schofield & Wood, for appellee; Frank Schofield and David H. Kraft, of counsel.
   Mr. Justice Sullivan

delivered the opinion of the court.


author: Mr. Presiding Justice MeSurely

text:
    Myrtle M. Beland, appellee, v. Modern Woodmen of America, appellant.
    Gen. No. 36,543.
    Opinion filed May 8, 1933.
    George G. Perrin, George H. McDonald and Sonnensehein, Berkson, Lautmann, Levinson & Morse, for appellant; Jesse H. Brown, of counsel. James J. Danaher, for appellee.
   Mr. Presiding Justice MeSurely

delivered the opinion of the court.


author: Mr. Presiding Justice McSurely

text:
    Louis Welsh, appellant, v. John Griffiths and Son Company, appellee.
    Gen. No. 36,553.
    Opinion filed May 8, 1933.
    Lloyd T. Bailey, for appellant. Church, Haft, Robertson, Crowe & Spence, for appellee; Burt A. Crowe, of counsel.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Maurice Klein, as trustee in bankruptcy in the estate of James H. Monroe, appellant, v. James Monroe, Sadie Monroe individually and as executrix of the estate of Willie Woodson, deceased, appellees.
    Gen. No. 36,574.
    Opinion filed May 8, 1933.
    Harry Gralnek, for appellant; Philip Appel, of counsel. Wendell E. Green, for appellees.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    J. J. Stanley and Charles J. Stanley, trading as J. J. Stanley, appellants, v. Elmer G. Olson et al., appellees.
    Gen. No. 36,581.
    Opinion filed May 8, 1933.
    Short, Rothbart, Willner & Lewis, for appellants; Seymour M. Lewis and Earle G. Hallen, of counsel. Otto T. Langbein, Jr., and N. A. Nelson, Jr., for appellees.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    King C. Matthews, appellee, v. Jacob Hayden, trading as North Shore Discount Company, and M. L. Perkell, appellants.
    Gen. No. 36,590.
    Opinion filed May 8, 1933.
    Martin S. Gordon, for appellants; Julius L. Habaker, of counsel. Charles S. Hirseh, for appellee.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


author: Mr. Justice Matehett

text:
    The People of the State of Illinois ex rel. Oscar Nelson, as Auditor of Public Accounts of the State of Illinois, v. Stony Island State Savings Bank. In re Intervening Petition of Patrick and Anna Nolan, appellees, v. Irwin T. Gilruth, as receiver of Stony Island State Savings Bank, appellant.
    Gen. No. 36,361.
    Opinion filed May 8, 1933.
    Rehearing denied May 20, 1933.
    Kirkland, Fleming, Green & Martin, for appellant; Adrian L. Hoover and Dudley F. Jessopp, of counsel. Gettleman & Adelman, for appellees; Milton M. Adelman, of counsel.
   Mr. Justice Matehett

delivered the opinion of the court.


text:
    James M. Kennedy and Otto Von Rautenkranz, trading as Lake View Real Estate Exchange, appellants, v. John R. Thompson, Jr., appellee.
    Gen. No. 36,550.
    Opinion filed May 8, 1933.
    Kenneth F. Simpson, for appellants. D ’Ancona, Pflaum & Kohlsaat, for appellee.
   Mr. Justice Matehett

delivered the opinion of the court.


text:
    J. Morris, appellee, v. Ida Finkel and Morris Finkel, defendants, on appeal of Bernard Jadwin and Milton Johnson, trading as State Securities Company, appellants.
    Gen. No. 36,562.
    Opinion filed May 8, 1933.
    Rosenberg, Corlett & Toomin, for appellants; Benjamin Rosenberg and Milton A. Gordon, of counsel. Morris, Morris & Yale, for appellee; Harry L. Yale, of counsel.
   Mr. Justice Matehett

delivered the opinion of the court.


text:
    Harry Goetz, appellee, v. Leo E. Rapp, appellant.
    Gen. No. 36,537.
    Opinion filed May 8, 1933.
    Jones, Addington, Ames & Seibold, for appellant; Thorley Von Holst, Arthur B. Seibold, Jr., and Joseph F. Devereux, Jr., of counsel. John A. Irrmann, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Nancy Wassman, appellee, v. Chicago Title & Trust Company et al. Edward A. Miller, appellant.
    Gen. No. 36,575.
    Opinion filed May 8, 1933.
    Edward N. Sherburne, for appellant. Cohen, Tomas & Cohen, for appellee; George B. Cohen, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    The People of the State of Illinois ex rel. Oscar Nelson, as Auditor of Public Accounts of the State of Illinois, complainants, v. West Highland State Bank, defendant. In re Intervening Petition of Elizabeth Doyle, appellee, v. Irwin T. Gilruth, receiver of West Highland State Bank, appellant.
    Gen. No. 36,593.
    Opinion filed May 8, 1933.
    Rehearing denied May 22, 1933.
    Kirkland, Fleming, Green & Martin, for appellant; Adrian L. Hoover, Dudley F. Jessopp and Eugene Swigart, of counsel. No appearance for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Mrs. Jennie Taylor, appellee, v. Carl A. Carlson et al. Carl A. Carlson and Anna F. Carlson, appellants.
    Gen. No. 36,739.
    Opinion filed May 16, 1933.
    De Witt B. Bayer, for appellants. Ernest W. Clark, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.


author: Mr. Presiding Justice Seanlan

text:
    Downey Coal Company, appellant, v. Tzivia Swartz, appellee.
    Gen. No. 36,340.
    Opinion filed May 23, 1933.
    William A. Rogan, for appellant; William C. Burns and James A. Carlson, of counsel. No appearance for appellee.
   Mr. Presiding Justice Seanlan

delivered the opinion of the court.


text:
    Downey Coal Company, appellant, v. Edythe Swartz and Betty Mosko, appellees.
    Gen. No. 36,341.

      Opinion filed May 23, 1933.
    William A. Rogan, for appellant; William O. Burns and James A. Carlson, of counsel. No appearance for appellees.
   Mr. Presiding Justice Scanlan

delivered the opinion of the court.


text:
    The T. A. Snider Preserve Company for the use of Hartford Accident & Indemnity Company, appellant, v. The Peoples Trust & Savings Bank of Chicago, appellee.
    Gen. No. 36,343.
    Opinion filed May 23, 1933.
    Rehearing denied June 6, 1933.
    Schuyler, Weinfeld & Hennessy, for appellant; Henry E. Jacobs and Howard D. Moses, of counsel. Dent, Weiehelt & Hampton, for appellee; Roger D. Doten and Seward H. Bowers, of counsel.
   Mr. Presiding Justice Scanlan

delivered the opinion of the court.


text:
    Gordon C. Thorne, appellant, v. The Foreman-State Trust & Savings Bank, by consolidation with the Foreman Trust & Savings Bank and the State Bank of Chicago, appellee.
    Gen. No. 36,350.
    Opinion filed May 23, 1933.
    Rehearing denied June 6, 1933.
    Bernard W. Vinissky, for appellant. Miller, Gorham, Wales & Adams, for appellee; Edward R. Adams and J. C. Lamy, of counsel.
   Mr. Presiding Justice Scanlan

delivered the opinion of the court.


text:
    Fred A. Spandau, appellee, v. Ralph Carazza, appellant.
    Gen. No. 36,359.
    Opinion filed May 23, 1933.
    Rehearing denied June 6, 1933.
    Cairoli Gigliotti, for appellant. Gerald G. Barry, for appellee.
   Mr. Presiding Justice Scanlan

delivered the opinion of the court.


text:
    Ann Matthews, appellee, v. F. Frazier Jelke et al., trading as Frazier Jelke & Company, appellants.
    Gen. No. 36,389.
    Opinion filed May 23, 1933.
    Sanders, Childs, Bobb & Wescott, for appellants; W. L. Bourland and F. M. Hartman, of counsel. Harold R. Sehradzki, for appellee.
   Mr. Presiding Justice Scanlan

delivered the opinion of the court.


text:
    Albert F. Keeney and Harriett Sayre Keeney, plaintiffs in error, v. Milo G. Reichard and Alvina Reichard, defendants in error.
    Gen. No. 36,183.
    Opinion filed May 23, 1933.
    Bernard Rosencranz, for plaintiffs in error. Harry D. Irwin, for defendants in error; Elmer P. Deneke, of counsel.
   Mr. Justice Gridley

delivered the opinion of the court.


text:
    Laurence M. Fine for the use of Security Bank of Chicago, plaintiff and appellant, v. Thomas J. Grady and Thomas Maloney, garnishees. Michael Ferriter et al., intervening petitioners and appellees.
    Gen. No. 36,288.
    Opinion filed May 23, 1933.
    Townley, Wild, Campbell & Clark, for appellant; Charles V. Clark, Glenn G. Paxton and Richard C. Bleloeh, of counsel. M. D. Dolan, for certain appellees.
   Mr. Justice Gridley

delivered the opinion of the court.


text:
    Midway State Bank, plaintiff and appellant, v. John N. Bantsolas and N. Nomikos, defendants. N. Nomikos, appellee.
    Gen. No. 36,307.
    Opinion filed May 23, 1933.
    Louis J. Victor, for appellant. Paul Demos, for appellee; Ernest C. Reniff, of counsel.
   Mr. Justice Gridley

delivered the opinion of the court.


text:
    Eleanor Getzendaner, appellee, v. Chicago, Burlington & Quincy Railroad Company, appellant.
    Gen. No. 36,316.
    Opinion filed May 23, 1933.
    Rehearing denied June 6, 1933.
    J. C. James and Sidney F. Blanc, for appellant; Bruce Scott, of counsel. Smith & Haddad, for appellee; George J. Haddad and Charles E. Smith, Jr., of counsel.
   Mr. Justice Gridley

delivered the opinion of the court.


text:
    Theresa M. Gorton et al., appellants, v. Village of Beverly et al., appellees.
    Gen. No. 36,353.

      Opinion filed May 23, 1933.
    Dosland, Conner & Mayfield, for appellants. William H. Sexton, Corporation Counsel, Irvin Rooks (Attorney for Board of Local Improvements), Joseph J. Sullivan and Arthur A. Sullivan, Assistant Corporation Counsel, John A. Swanson, State’s Attorney, John E. Pedderson and Louis H. Geiman, Assistant State’s Attorneys, Thomas B. Nash (Attorney for County Treasurer), Maloney & Wooster and Langworthy, Stevens, McKeag & McCornack, for appellees; B. E. Langworthy, David B. Maloney and Joseph J. Sullivan, of counsel.
   Mr. Justice Gridley

delivered the opinion of the court.


text:
    George T. Jennings, complainant and appellee, v. 436 Wellington Building Corporation et al., defendants. Max H. Braun and I. Edward Bishkow, appellants.
    Gen. No. 36,636.
    Opinion filed May 23, 1933.
    Barancik & Dolin, for appellants Max H. Braun and I. Edward Bishkow; Lester Plotkin, for appellant Pauline S. Drielsma; Maurice S. Dolin and L. H. Kramer, of counsel. Juul & Both, for appellee.
   Mr. Justice Gridley

delivered the opinion of the court.


text:
    Edward Purcell, appellant, v. Patrick J. Keeley, appellee.
    Gen. No. 36,238.
    Opinion filed May 23, 1933.
    Thomas M. Poynton, for appellant. John S. Boyle, for appellee.
   Mr. Justice Sullivan

delivered the opinion of the court.


author: Mr;- Justice Sullivan

text:
    Gustaf Alexander, trading as Alexander Parlor Frame Company, appellee, v. International Furniture Company, Inc., appellant.
    Gen. No. 36,273.
    Opinion filed May 23, 1933.
    Roy J. Egan, for appellant. Poster, Green & Peterson, for appellee.
   Mr;- Justice Sullivan

delivered the opinion of the court.


text:
    Orville C. Hatch, Jr., appellee, v. E. and A. Opler, Inc., appellant.
    Gen. No. 36,282.
    Opinion filed May 23, 1933.

      Schwartz & Cooper, for appellant; Edward A. Cooper and Nathan M. Oppenheim, of counsel. Musgrave, Oppenheim, Price & Ewins, for appellee.
   Mr. Justice Sullivan

delivered the opinion of the court.


text:
    Noyes F. Waterman v. George E. Hall. Roosevelt Road and St. Louis Building Corporation, appellant, v. Ben M. Smith and Frederick L. Fake, appellees.
    Gen. No. 36,301.
    Opinion filed May 23, 1933.
    Cutting, Moore & Sidley, for appellant; Nathan G. Moore, James F. Oates, Jr., and Edward B. Hayes, of counsel. Ben M. Smith and Frederick L. Fake, pro se.

   Mr. Justice Sullivan

delivered the opinion of the court.


text:
    Albert Gartner and Lizzie Gartner, appellees, v. Albert W. Seidel and Guy L. Wagoner, appellants.
    Gen. No. 36,347.
    Opinion filed May 23, 1933.
    Bryant, Roberts, Hwass & Lewe, for appellants. Maximilian J. St. George, for appellees.
   Mr. Justice Sullivan

delivered the opinion of the court.


text:
    West Side Trust & Savings Bank, as trustee, appellant, v. David Bronston, appellee.
    Gen. No. 36,365.
    Opinion filed May 23, 1933.
    John M. Lee and Earl V. Brown, for appellant. No appearance for appellee.
   Mr. Justice Sullivan

delivered the opinion of the court.


text:
    Bertha E. Johnston, appellee, v. City of Chicago, appellant.
    Gen. No. 36,374.
    Opinion filed May 23, 1933.
    William H. Sexton, Corporation Counsel, and Alexander M. Smietanka, City Attorney, for appellant; Samuel Allen, First Assistant City Attorney, and Carl J. Appell, Assistant Corporation Counsel, of counsel. Charles M. McDonnell, for appellee; Roy S. Gaskill, of counsel.
   Mr. Justice Sullivan

delivered the opinion of the court.


text:
    Harry J. Fireman, appellee, v. Oliver F. Smith, appellant.
    Gen. No. 36,403.
    Opinion filed May 23, 1933.
    Rehearing denied June 6, 1933.
    Ossian Cameron and Edward H. S. Martin, for appellant. Isadore Wolfsohn, Harry J. Fireman and Arthur Chittiek, for appellee.
   Mr. Justice Sullivan

delivered the "opinion of the court.


text:
    Nathan Brown et al., appellees, v. Foreman-State Trust & Savings Bank et al., defendants, on appeal of Foreman-State Trust & Savings Bank, appellant.
    Gen. No. 36,730.
    Opinion filed May 23, 1933.
    D’Ancona, Pflaum & Kohlsaat, for appellant. Lowenhaupt & Wolff, Altheimer, Mayer, Woods & Smith and Max Krauss, for appellees; Osear M. Wolff, George W. Struekmann and William F. Struekmann, of counsel.
   Mr. Justice Sullivan

delivered the opinion of the court.


author: Mr. Presiding Justice Wilson

text:
    Edward V. Corff, appellee, v. Adams & Ragan Manufacturing Company et al., appellants.
    Gen. No. 36,227.
    Opinion filed May 24, 1933.
    Rehearing denied June 7, 1933.
    Luster' & Luster, for appellants; Julian J. Luster, of counsel. Stanley S. Jasinski and Ednyfed Williams, for appellee; Stanley S. Jasinsld, of counsel.
   Mr. Presiding Justice Wilson

delivered the opinion of the court.


text:
    Crane Company, appellant, v. Frank S. Hagglund, appellee.
    Gen. No. 36,236.
    Opinion filed May 24, 1933.
    Alden, Latham & Young, for appellant; William L. Quinlan, of counsel. Harry O. Lindahl, for appellee.
   Mr. Presiding Justice Wilson

delivered the opinion of the court.


text:
    Clifford J. Bates, appellee, v. County of Cook, appellant.
    Gen. No. 36,245.
    Opinion filed May 24, 1933.

      John A. Swanson, State’s Attorney, and John E. Pedderson, Assistant State’s Attorney, for appellant; Hayden N. Bell, of counsel. Clifford J. Bates, pro se.

   Mr. Presiding Justice Wilson

delivered the opinion of the court.


text:
    Mae McPhillips, appellee, v. Armour & Company, appellant.
    Gen. No. 36,255.
    Opinion filed May 24, 1933.
    Church, Haft, Robertson, Crowe & Spence, for appellant; Burt A. Crowe, of counsel. H. H. Patterson, for appellee; Edmund C. Maurer, of counsel.
   Mr. Presiding Justice Wilson

delivered the opinion of the court.


text:
    Hannah Shelbred, appellee, v. National Tea Company, appellant.
    Gen. No. 36,268.
    Opinion filed May 24, 1933.
    Soelke, Koehn & Loewy, for appellant. Heth, Lister & Collins, for appellee.
   Mr. Presiding Justice Wilson

delivered the opinion of the court.


text:
    Frank Clavelli, as administrator of the estate of Lorado Clavelli, deceased, appellee, v. Boyda Dairy Company, appellant.
    Gen. No. 36,286.
    Opinion filed May 24, 1933.
    Church, Haft, Robertson, Crowe & Spence, for appellant; Burt A. Crowe, of counsel. H. H. Patterson, for appellee; Edmund C. Maurer, of counsel.
   Mr. Presiding Justice Wilson

delivered the opinion of the court.


text:
    Leati Harbus, appellee, v. Chapell Ice Cream Company, appellant.
    Gen. No. 36,298.
    Opinion filed May 24, 1933.
    Nicholson, Crandall & Snyder, for appellant; John T. Chadwell and Russell Greenaere, of counsel. H. H. Patterson, for appellee; Edmund C. Maurer, of counsel.
   Mr. Presiding Justice Wilson

delivered the opinion of the court.


text:
    The Electric Auto-Lite Company, appellee, v. Wieboldt Stores, Inc., appellant.
    Gen. No. 36,308.
    Opinion filed May 24, 1933.
    Rehearing denied June 7, 1933.
    Louis J. Victor, for appellant. Baker, Holder, Schmidt & Kolb, for appellee; Barí J. Kolb, of counsel.
   Mr. Presiding Justice Wilson

delivered the opinion of the court.


text:
    August Campetto, administrator of the estate of Josephine Smaniotto, deceased, appellant, v. Charles R. Blessing, appellee.
    Gen. No. 36,317.
    Opinion filed May 24, 1933.
    S. Stanley Stoller, for appellant; S. Stanley Stoller and Elliott A. Berman, of counsel. No appearance for appellee.
   Mr. Presiding Justice Wilson

delivered the opinion of the court.


author: Mr. Justice Hall

text:
    The 25 East Delaware Building Corporation, appellee, v. John Elliott Jenkins, appellant.
    Gen. No. 35,940.
    Opinion filed May 24, 1933.
    Murphy, Hollywood, Turner & Barron, for appellant/ Cummings & Wyman, for appellee; Daniel P. Nagle, of counsel.
   Mr. Justice Hall

delivered the opinion of the court.


text:
    Harriette L. Martin, defendant in error, v. Dr. Ernest Charles Martin, plaintiff in error.
    Gen. No. 36,022.
    Opinion filed May 24, 1933.
    Rehearing denied June 7, 1933.
    Abbott, Abbott & Bishop, for plaintiff in error; Arthur V. Bishop, of counsel. B. G. Clanton, for defendant in error.
   Mr. Justice Hall

delivered the opinion of the court.


text:
    Thomas E. Tallmadge and Vernon S. Watson, trading as Tallmadge and Watson, plaintiffs in error, v. George F. Nixon, defendant in error.
    Gen. No. 36,041.
    Opinion filed May 24, 1933.
    Osear S. Seaver, for plaintiffs in error. Foreman, Bluford, Krinsley & Schultz, for defendant in error.
   Mr. Justice Hall

delivered the opinion of the court.


text:
    Prudential Life Insurance Company of America, appellee, v. Arnold Fenner et al., defendants, on appeal of Arnold Fenner, appellant.
    Gen. No. 36,050.
    Opinion filed May 24, 1933.
    Rehearing denied June 7, 1933.
    A. F. W. Siebel, for appellant. Joseph F. Elward, for appellee.
   Mr. Justice Hall

delivered the opinion of the court.


text:
    Morris I. Kaplan v. Ida D. Burt, on appeal of Paul Broccolo, conservator of the estate of Ida D. Burt, insane, appellant, v. Morris I. Kaplan and Central Republic Bank & Trust Company, appellees.
    Gen. No. 36,068.
    Opinion filed May 24, 1933.
    Rehearing denied June 7, 1933.
    Maximilian J. St. George, for appellant. John B. FruehtI, for appellee Morris I. Kaplan, and Poppenhusen, Johnston, Thompson & Cole, for other appellee; Edward J. Fleming, of counsel.
   Mr. Justice Hall

delivered the opinion of the court.


text:
    Irving Sudin, a minor, by Hyman Sudin, his next friend, appellee, v. Banks Linen Supply Company, appellant.
    Gen. No. 36,090.
    Opinion filed May 24, 1933.
    Leopold Saltiel, for appellant. Philip Rosenthal and Stuart B. Krohn, for appellee.
   Mr. Justice Hall

delivered the opinion of the court.


text:
    May Wang, appellee, v. Ajax Auto Company and Warner Bros. Theatres, on appeal of Ajax Auto Company, appellant.
    Gen. No. 36,108.
    Opinion filed May 24, 1933.
    Martin G. Loeff, for appellant; Hyman Reeder, of counsel. McGilvray, Barnes, Vaughan & Tilley, for appellee; Franklin E. Vaughan, of counsel.
   Mr. Justice Hall

delivered the opinion of the court.


text:
    William Frendreis, appellee, v. Mutual Benefit and Aid Society, appellant.
    Gen. No. 36,118.

      Wilson, P. J., dissents.
    Opinion filed May 24, 1933.
    Otto C. Rentner, for appellant. Gustave Neuberg, for appellee.
   Mr. Justice Hall

delivered the opinion of the court.


text:
    F. P. Smith Wire & Iron Works, appellee, v. David Laskey et al., appellant.
    Gen. No. 36,170.
    Opinion filed May 24, 1933.
    Rehearing denied June 7, 1933.
    Julius L. ICabalter, for appellant. John Francis Mahan, for appellee.
   Mr. Justice Hall

delivered the opinion of the court.


text:
    Walton School of Commerce, appellant, v. Osborne Lysne, appellee.
    Gen. No. 36,188.
    Opinion filed May 24, 1933.
    Robert C. Hardy, for appellant. No appearance for appellee.
   Mr. Justice Hall

delivered the opinion of the court.


author: Mr. Justice Hebei

text:
    David O’Connell, Jr., a minor, by David J. O’Connell, his father and next friend, plaintiff in error, v. Henry J. Jepsen, defendant in error.
    Gen. No. 36,017.
    Opinion filed May 24, 1933.
    John A. Bloomingston, for plaintiff in error. Joseph H. Hinshaw, for defendant in error; Oswell G. Treadway, of counsel. -
   Mr. Justice Hebei

delivered the opinion of the court.


text:
    Herbert S. Youngquist, appellee, v. Great Lakes Finance Corporation and Albert W. Froehde, appellants.
    Gen. No. 36,065.
    Opinion filed May 24, 1933.
    Rehearing denied June 7, 1933.
    William McKinley and Louis Dennen, for appellants. William S. Kleinman, for appellee.
   Mr. Justice Hebei

delivered the opinion of the court.


text:
    Alice Elizabeth Lange, by Andrew G. Lange, her next friend, appellant, v. Harry Smith, appellee.
    Gen. No. 36,075.
    Opinion filed May 24, 1933.
    Kremer, Branand & Hamer, for appellant. George H. Foster, for appellee.
   Mr. Justice Hebei

delivered the opinion of the court.


text:
    Andy F. Runyon, appellee, v. Johnson Electric Company, appellant.
    Gen. No. 36,099.
    Opinion filed May 24, 1933.
    Louis W. Reineeker, Jr., for appellant. John A. Irrmann, for appellee.
   Mr. Justice Hebei

delivered the opinion of the court.


text:
    Anthony Witkowski, appellee, v. Julius Kewitz, appellant.
    Gen. No. 36,114.
    Opinion filed May 24, 1933.
    Murphy O. Tate, for appellant; Leo M. Tarpey, of counsel. C. Helmer Johnson, for appellee.
   Mr. Justice Hebei

delivered the opinion of the court.


text:
    Burnside Trust & Savings Bank, appellant, v. Sofia Bogi, appellee.
    Gen. No. 36,167.
    Opinion filed May 24, 1933.
    Frisch & Frisch, for appellant; Samuel J. Nordorf, of counsel. Gliekman & King, for appellee.
   Mr. Justice Hebei

delivered the opinion of the court.


text:
    J. W. Holt, plaintiff in error, v. Louis Prangl, Jr., defendant in error.
    Gen. No. 36,184.
    Opinion filed May 24, 1933.

      John B. Meeeia and Edward Feinberg, for plaintiff in error; Edward D. Feinberg, of counsel. George F. Barrett and Charles V. Barrett, for defendant in error; John W. Costello and Burrell J. Cramer, of counsel.
   Mr. Justice Hebei

delivered the opinion of the court.


text:
    Cragin State Bank, defendant in error, v. Anna Aaflei, plaintiff in error.
    Gen. No. 36,195.
    Opinion filed May 24, 1933.
    Charles Waldman, for plaintiff in error; Clyde C. Fisher, of counsel. No appearance for defendant in error.
   Mr. Justice Hebei

delivered the opinion of the court.


text:
    W. R. Bassick, appellant, v. W. B. Burr and Burgold Corporation, appellees.
    Gen. No. 36,206.
    Opinion filed May 24, 1933.
    Gallagher, Rinaker, Wilkinson & Hall, for appellant. Loueks, Eckert & Peterson, for appellees.
   Mr. Justice Hebei

delivered the opinion of the court.


text:
    William S. Hefferan, trustee, appellee, v. Maurice Rosenthal et al., defendants, on appeal of George E. Mittelman, appellant.
    Gen. No. 36,652.
    Opinion filed May 24, 1933.
    Cousens & Goldman, for appellant. Hayes & Remus, for appellee; David J. A. Hayes, of counsel.
   Mr. Justice Hebei

delivered the opinion of the court.


author: Mr. Justice Baldwin

text:
    Second District.
    Emma Nicholson, appellee, v. G. W. Scott et al., defendants. Russell F. Hunter, appellant.
    Gen. No. 8,546.
    Opinion filed May 3, 1933.
    J. E. Malone, Jr., and Robert G. Smith, for appellant. S. P. Hall and Butters & Butters, for appellee.
   Mr. Justice Baldwin

delivered the opinion of the court.


text:
    Peoples National Bank, appellant, v. Ellen Payne et al., appellees.
    Gen. No. 8,570.
    Opinion filed May 3, 1933.
    Charles E. Lauder and Frederick H. Lauder, for appellant. Safford & Soule, for certain appellee.
   Mr. Justice Baldwin

delivered the opinion of the court.


text:
    The People of the State of Illinois ex rel. Oscar Nelson, Auditor of Public Accounts, complainant, v. Lombard State Bank et al., defendants. Appeal of Village of Lombard, appellant, v. Thomas C. Hull, receiver of Lombard State Bank, appellee.
    Gen. No. 8,613.
    Opinion filed May 3, 1933.
    John E. McCoy, for appellant; Richard T. Tobin, of counsel. Charles W. Hadley, for appellee; John S. Woodward, of counsel.
   Mr. Justice Baldwin

delivered the opinion of the court.


text:
    The First National Bank of Braidwood, appellant, v. The Highway Commissioner of Rockville, appellee.
    Gen. No. 8,624.
    Opinion filed May 3, 1933.
    Rehearing denied June 21, 1933.
    A. L. and C. M. Granger, for appellant. Hunter & Minor, for appellee.
   Mr. Justice Baldwin

delivered the opinion of the court.


text:
    Charles A. Fifield, appellee, v. Curtiss Candy Company, appellant.
    Gen. No. 8,638.
    Opinion filed May 3, 1933.
    Rehearing denied May 22, 1933.
    Jerry A. Harn and Irwin N. Walker, for appellant; Stuart B. Krohn, of counsel. L. Fred O’Brien, for appellee.
   Mr. Justice Baldwin

delivered the opinion of the court.


author: Mr. Justice Niehaus

text:
    Third District.
    E. Frank Post, plaintiff in error, v. The People of the State of Illinois, defendant in error.
    Gen. No. 8,661.

      Opinion filed February 1, 1933.
    F. R. Wiley, for plaintiff in error. John W. Evans, State's Attorney, for defendant in error; L. E. Stephenson, of counsel.
   Mr. Justice Niehaus

delivered the opinion of the court.


author: Mr. Presiding Justice Eldredge

text:
    George A. Raffety, administrator of the estate of Robert L. Cunningham, deceased, plaintiff in error, v. John M. Goebelt, defendant in error.
    Gen. No. 8,665.
    Opinion filed April 11, 1933.
    F. A. Whiteside, for plaintiff in error; Hugh J. Dobbs and Jerome R. Finkle, of counsel. L. A. Mehrhoff and A. B. Johnson, for defendant in error.
   Mr. Presiding Justice Eldredge

delivered the opinion of the court.


text:
    Louise Brown, defendant in error, v. Robert Brown, plaintiff in error.
    Gen. No. 8,732.
    Opinion filed April 11, 1933.
    Wade Barriek, for plaintiff in error. August Caylor, for defendant in error.
   Mr. Presiding Justice Eldredge

delivered the opinion of the court.


author: Mr. Justice Shurtleff

text:
    Clinton P. Headley, plaintiff in error, v. Frank S. Scott and C. F. Scott, defendants in error.
    Gen. No. 8,706.
    Opinion filed April 11, 1933.
    Rehearing denied June 20, 1933.
    Curlee, Nortoni & Teasdale and Thomas P. Moore, for plaintiff in error. Bellatti, Samuell & Moriarty, for defendants in error.
   Mr. Justice Shurtleff

delivered the opinion of the court.


text:
    Robert Markwell, appellee, v. Marcella Dolan, appellant.
    Gen. No. 8,727.
    Opinion filed April 11, 1933.
    Reariek & Meeks, for appellant. Alfred A. Johnson and Harold A. Craig, for appellee.
   Mr. Justice Shurtleff

delivered the opinion of the court.


text:
    Clarence O. Rosen, Executor Under the Last Will and Testament of Albert D. Kemmer, Deceased, Appellee, v. Daniel G. Hayes and Catherine Hayes, Appellants.
    Gen. No. 36,126.
    Opinion filed May 24, 1933.
    Hermann P. Haase, for appellants.
    No appearance for appellee.
   Mr. Justice Hall

delivered the opinion of the court. ■ This is an appeal from a judgment of the municipal court of Chicago wherein it is recited “that plaintiff have and recover of and from the defendants, Daniel Gr. Hayes and Catherine Hayes, possession of the premises described in the complaint, known as 1215 East 71st Place, and that writ of restitution issue therefor.” There is no appearance here by plaintiff, executor under the last will and testament of Albert D. Kemmer, deceased, and no brief filed in his behalf.

In the complaint filed, it is set forth that Clarence 0. Rosen, executor, etc., as such executor, is entitled to the possession of certain premises described, and that Daniel Gr. Hayes and Catherine Hayes, defendants, unlawfully withhold possession of, the premises. Trial was had before the court, resulting in a finding that the two defendants were guilty of the charge of unlawfully withholding possession of the premises from plaintiff, as such executor. From a judgment on such finding, this appeal is taken.

The following statement of facts was agreed to and is all the evidence offered or received in the trial of the cause:

“And the plaintiff, to maintain the issues in his behalf, introduced the following evidence, to-wit:

“If the court please, the parties hereto have agreed upon the following statement of facts:

“First: That on the 27th day of March, A. D., 1929, Albert D. Kemmer and Johan Kemmer were the owners of and in possession of the following described premises, to-wit:

“Lot Seven (7) and the West Half (W%) of lot Eight (8) in Block Five (5) in the Subdivision by John Gr. Shortall, Trustee, of the North - half (N%) of the North East Quarter (NE)4) of Section Twenty Six (26) Township Thirty Eight (38) North, Range Fourteen (14), East of the Third (3rd) Principal Meridian, otherwise known as 1215 East 71s't Place, Chicago, Illinois, together with all improvements and appurtenances thereunto belonging.

“Second: That on the said 27th day of March A. D. 1929, the said Albert D. Kemmer and Johan Kemmer, as parties of the first part, and Daniel Gr. Hayes and Catherine Hayes, defendants herein, as parties of the second part, entered into certain articles of agreement for warranty deed, which articles of agreement for warranty deed, it is agreed, may be introduced in evidence as Complainant’s Exhibit No. 1, and is in words and figures, as follows:

“plaintiff’s exhibit 1.

“Articles of Agreement for Warranty Deed, signed by Albert D. Kemmer and Johan Kemmer, as Vendors, and Daniel Gr. Hayes and Catherine Hayes as Vendees, for the premises described in the Complaint by which said Articles of Agreement the vendees agree to pay the sum of $8,070.00, by assuming a first mortgage of $4,200.00 at 6% interest payable semi-annually, and falling due in about five years from date of said agreement, and the balance of $3,870.00 payable $40.00 or more, with interest at the rate of 6%, on the first of each month for 59 months, and the balance, if any, to be paid on the 60th month from date of said agreement; providing that it and a signed Warranty Deed are to be held in escrow by the Triangle State Bank, until covenants mentioned therein are complied with by the parties of the second part, at which time said Warranty Deed is to be delivered to them. Said Articles of Agreement dated the 27th day of March, A. D. 1929.

“Third: That- immediately thereafter, Daniel Gr. Hayes and Catherine Hayes entered into possession of said premises and have continuously and do now occupy and have possession of the said above described premises.

“Fourth: That the said defendants have paid to the said Albert D. Kemmer and Johan Kemmer, on account of said contract, the various items appearing-on the back of said Plaintiff’s Exhibit No. 1. That thereafter, on to-wit, the 25th day of October, A. D. 1930, the said Albert D. Kemmer departed this life, leaving a last will and testament, and said last will and testament was duly filed in the Probate Court of Cook County, Illinois; and that the plaintiff herein, Clarence 0. Rosen, was nominated, in said last will and testament as the executor of the estate of Albert D. Kemmer, and was duly appointed and qualified to act as such executor by the Probate Court of Cook County; and that said Clarence 0. Rosen is now acting as such executor of said estate, and that said estate is still pending in the Probate Court of Cook County, Illinois; that in and by the last will and testament of the said Albert D. Kemmer (deceased), the property described in said articles of agreement for warranty deed was devised to Florence Friske, as trustee for her minor son, John Friske Hunter.

“Fifth: That the said defendants, Daniel Gr. Hayes and Catherine ETayes made default in their payments for the months of January, February, March, April, May, June, July, August, September, October, November, December, 1931, and January, 1932.

“Sixth: That on January 5, 1932, a certain Notice of Intention to Forfeit said articles of agreement for warranty deed was personally served upon the defendants, Daniel Gr. Hayes and Catherine Hayes, by the said Clarence 0. Rosen, executor of the estate .of Albert D. Kemmer (deceased), and that said .Notice of Intention to Forfeit said articles of. agreement for warranty deed was in words and figures, as follows: and may be admitted in evidence as Plaintiff’s Exhibit No. 2. -

“plaintiff’s EXHIBIT 2.

“A notice of intention to forfeit, dated January 5, 1932, addressed to Daniel Gr. Hayes and Catherine Hayes, in which notice it is stated that the defendants are in default of payments for the months of January, February, March, April, May, June, July, August, September, October, November, December, 1931, and January, 1932, on a contract made with Albert D. Kemmer and Johan Kemmer, for the purchase of the property described in the Complaint; and that there is due and owing by the defendants under the terms of said contract the sum of $832.55, and states:

“ ‘Now, therefore, you are hereby notified that unless the sum of Eight Hundred Thirty Two and 55/100 Dollars is paid to us within 30 days from this date; together with any additional indebtedness which may accrue within said 30 days, under the terms of said contract, the said contract will be forfeited and determined and all payments heretofore made by the purchaser under the terms thereof will be retained as liquidated damages, and steps will be taken to recover possession of the said premises.’

“Signed by Clarence 0. Rosen, Executor of the Estate of Albert D. Kemmer, Deceased.

“Seventh: That thereafter a certain Notice of Cancellation of Contract, dated February 5,1932, was duly served upon Daniel G-. Hayes and Catherine Hayes by Clarence O. Rosen, Executor of the Estate of Albert D. Kemmer (deceased), which said Notice of Cancellation of Contract was in words and figures as follows, and may be introduced in evidence as Plaintiff’s Exhibit 3 :

“A Notice of Cancellation of Contract dated February 5, 1932, addressed to Daniel G. Hayes and Catherine Hayes, in which it is stated that the defendants are in default for the several months stated in the Notice of Termination of Contract on the premises described in the Complaint, and that Clarence O. Rosen, Executor of the Estate of Albert D. Kemmer (deceased) has elected to terminate said contract, and states:

“ ‘You are accordingly hereby notified that said contract, dated March 27, 1929, between Albert D. Kemmer and Johan Kemmer, parties of the first part, and Daniel G. Hayes and Catherine Hayes, parties of the second part, all of Chicago, Illinois, has been forfeited and determined and that all payments heretofore made by you on said contract have been forfeited by your failure to continue said payments, (the last payment having been made by you on March 3, 1931, though repeated demands have been made upon you for the payments now long overdue) and also that the right to re-enter and take possession of said premises has already been or will be immediately exercised. ’

“Demand for immediate possession, addressed to Daniel G. Hayes and Catherine Hayes, dated February 9, 1932, signed by Clarence 0. Rosen, Executor of the Estate of Albert D. Kemmer, deceased, in which it is stated:

“ ‘We hereby demand immediate possession of the following described premises’ — describing the premises mentioned in Complaint.

“Eighth: That the said Clarence 0. Rosen, executor of the estate of Albert D. Kemmer (deceased), never was in possession or occupied the premises described in said articles of agreement for warranty deed, and that no contract or agreement of any kind or nature has ever been entered into between the said Clarence 0. Rosen, as the executor of the estate of Albert D. Kemmer (deceased), and the defendants, Daniel G. Hayes and Catherine Hayes; and that said Daniel G. Hayes and Catherine Hayes, defendants, have at no time paid to the said Clarence 0. Rosen, as executor of the estate of Albert D. Kemmer (deceased), any sum or sums of money whatsoever under or by virtue of the terms of the said articles of agreement for warranty deed.

“Ninth: That the said will of said Albert D. Kemmer (deceased) was filed in the Probate Court of Cook County on the 8th day of June, A. D. 1931.

“Tenth: That the said Clarence 0. Eosen was appointed executor of the estate of Albert D. Kemmer (deceased), by -the Probate Court of Cook County, on the 14th day of August, A. D. 1931.

“Eleventh: That all of the heirs of the said Albert D. Kemmer (deceased) are unknown. ’ ’

The contract under which the defendants entered into possession of the premises in question was made between defendants and Albert D. Kemmer (deceased) and Johan Kemmer.

By the terms of the will of decedent, Albert D. Kemmer, it is provided that upon decedent’s death, the title to this real estate should vest in one Florence Friske, as trustee for her minor son, John Friske Hunter. The suit in the municipal court is brought by the executor, etc. of Albert D. Kemmer, deceased. The stipulation recites that this executor was never in possession of the premises in question, and that no agreement of any kind had ever been entered into between defendants and plaintiff, and that at no time has such plaintiff been considered as a party to or interested in the agreement between decedent, Albert D. Kemmer, and the defendants.

In Ryan v. Duncan, 88 Ill. 144, the Supreme Court said, page 146:

“The administrator is the sole representative of the personal estate, but not of the real property. The latter descends to and vests in the heirs, over which the administrator has no control or concern, except a mere power to apply for an order to sell the same, when necessary for the payment of debts. This court has repeatedly decided, that an administrator takes neither an estate, title nor interest in the realty, and that he can not support any possessory or real action, in law or equity, for the recovery or maintenance of possession or title, or to clear up title from clouds from adverse claims; that, if necessary to sell for the payment of debts, he must take the estate as he finds it, and if incumbered, or there be clouds upon the title, sell it subject thereto. Stone v. Wood, 16 Ill. 177; Smith v. McConnell, 17 id. 135; Walbridge v. Day, 31 id. 379; Phelps v. Funkhouser, 39 id. 402; Cutter v. Thompson, 51 id. 390 ; Le Moyne v. Quinby, et al., 70 id. 399; Gridley v. Watson, 53 id. 186.”

In the instant case, upon the death of Albert D. Kemmer, by the terms of his will, the title, and, upon a breach of the contract, the right of possession, to the premises in question became vested in Florence Friske, trustee, as shown by the stipulation, subject only to the debts of the decedent, and the plaintiff herein has no legal right to maintain an action for possession of this property.

The judgment is reversed.

Reversed.

Wilson, P. J., and Hebel, J., concur.


text:
    Henry C. Busch, Appellee, v. Fred Tatar et al., Appellants.
    Gen. No. 36,199.

      Opinion filed May 24, 1933.
    Nathan M. Cha yin, for appellants; Arthur Quadow, of counsel.
    Francis E. Hinckley and James L. Coleman, for appellee; Frank C. Rathje, of counsel.
   Mr. Justice Hall

delivered the opinion of the court.

This is an appeal from a judgment for the plaintiff in a replevin suit brought by plaintiff against defendants to recover possession of the personal property previously levied upon by defendants under a writ of execution issued out of the municipal court of Chicago under a judgment entered in a cause wherein Fred Tatar, Louis Tatar and Jacob Tatar, defendants herein, were plaintiffs and Harper A. Busch, the son of the plaintiff in the instant case, and one Al E. Cotey, were defendants. Plaintiff herein claims the right to the possession of the property by the terms of a chattel mortgage given to plaintiff by the judgment debtors, Harper A. Busch and Al E. Cotey.

The only question raised here is that the chattel mortgage is not valid, because, by its terms, the debt secured by it matures more than three years after the recording of the mortgage. The mortgage was executed on October 2, 1931, and filed for record in the office of the recorder of deeds of Cook county, Illinois, on October 6, 1931. The debt which the mortgage is given to secure is evidenced by an instalment note dated October 2, 1931, for the sum of $2,000, payable as follows: $50 or more on or before the 2nd day of November, 1931, and $50 or more on or before the 2nd day of each and every month thereafter until the sum of $2,000 with interest, shall be paid. It is the contention of appellant that inasmuch as the last note is payable on or before February 2,1935, more than three years after the date of the recording of the mortgage, the mortgage is void ab initio.

Section 4 of the Mortgages Act, Cahill’s St. ch. 95, if 4, entitled “An Act to revise the law in relation to mortgages of real and personal property,” in force July 1, 1874, and amended by an act in force July 2, 1931, provides in part as follows:

“That such maturity (of the debt secured by a chattel mortgage) shall not exceed three years from the filing of such instrument (the mortgage) for record unless within ninety days after the expiration of said three years, . . . the mortgagor . . . shall file for record in the office of the recorder of deeds of the county where the original mortgage is recorded, an affidavit setting forth particularly the interest which the mortgagee has by virtue of such mortgage in the property therein mentioned, and if such mortgage is for the payment of money, the amount remaining unpaid thereon, and the time'when the same will become due by extension or otherwise; which affidavit shall be recorded by such recorder, and thereupon the mortgage lien originally acquired shall be continued and extended until ninety days after the expiration of such period of extension of the time of payment: Provided, such extension of the time of payment shall not exceed one year from the filing of such affidavit. ’ ’ (Italics ours.)

As we read this statute, the provision in it is that if the maturity of a debt secured by a chattel mortgage exceeds three years from the recording of the mortgage, then and in that case the mortgagor and mortgagee may, within 90 days after the expiration of three years from such date, by the procedure set forth in the statute, extend the maturity of the mortgage for a period not to exceed one year from the filing of the affidavit.

The mortgage in the instant case contains a provision that “if any writ or distress warrant shall be levied on such goods and chattels, or any part thereof, then and in any or either of the aforesaid cases, all of said note and sum of money, both principal and interest,’ shall, at the option of the said mortgagee, his executors, administrators or assigns, without notice of said option to any one, become at once due and payable, and the said mortgagee, Ms executors, admimstrators or assigns or any of them, shall thereupon have the right to take immediate possession of said property, and for that purpose may pursue the same wherever it may be found,” etc.

The statute itself negatives the contention that the mortgage was void ab initio because it contains a provision that if the maturity of the debt exceeds three years from the date of the recording of the mortgage, the maturity of the mortgage may be extended for a period not to exceed one year beyond the three-year period by the parties following the procedure provided by the act. It is clear that the general assembly by the act quoted, authorizes the making, of a chattel mortgage to secure an indebtedness due after the expiration of three years from the time the mortgage is filed for record, its validity after the three years depending upon the filing of the affidavit as provided by the act. Here the mortgage was recorded October 31, 1931, execution was levied on behalf of defendants on April 15, 1932, and the plaintiff brought this action to acquire possession of the property on May 9, 1932, as was his right under the terms of the chattel mortgage, all within the three-year period.

Under the authority of Keller v. Robinson & Co., 153 Ill. 458, followed by this court in Central Trust Co. v. Sheridan Beach Hotel Bldg. Corp., 259 Ill. App. 404, the plaintiff was clearly within his rights, and the trial court was not in error in entering the order for the restoration to the plaintiff of the property, the right to the possession of which the court adjudged to be in plaintiff under the terms of the mortgage.

The judgment of the trial court is affirmed.

Affirmed.

Wilson, P. J., and Hebel, J., concur.


author: Mr. Justice Hebel

text:
    Madison and Kedzie State Bank for the Use of Globe Indemnity Company, Appellee, v. Madison Square State Bank, Appellant.
    Gen. No. 35,722.

      Opinion filed May 24, 1933.
    Rehearing denied and opinion modified June 7, 1933.
    Dent, Weiohelt & Hampton, for appellant.
    Depress, Buckingham, Jones & Hoffman, for appellee; Don Kenneth Jones and Robert E. Wright, of counsel.
   Mr. Justice Hebel

delivered the opinion of the court.

This action is for the recovery of money paid by the plaintiff to the defendant upon plaintiff’s nine cashier’s checks amounting to $39,200, during the month of October, 1929, which had been deposited with or cashed by the defendant. Upon a directed verdict by the court in favor of the plaintiff, for use of the Globe Indemnity Company, upon a loss paid by it to the plaintiff, judgment was entered in the sum of $42,956.63, from which judgment the defendant appeals to this court.

The nine cashier’s checks issued by the Madison & Kedzie State Bank in the aggregate sum of $39,200, were each made payable to S. Williams and so indorsed. In June, 1929, the cashier’s checks were'deposited in the defendant bank and the amount was credited to the account and in the name of E. S. Hempy or James F. Hogan. These cashier’s checks passed through the Chicago Clearing House and were paid by the Madison & Kedzie State Bank through this agency to the defendant, and the defendant in turn credited the account with the amount above mentioned. This amount was withdrawn by the checks of the depositors, except a small sum still on deposit in the account with the defendant bank. It also appears that one Frank Culliton was employed by the plaintiff bank as a collection teller in charge of its collection department, whose duty it was to keep a record of items left with the bank for collection, to receive payments on account of said items, to make proper entries in the books of the bank regarding such transactions, and to ■procure a cashier’s check for the amount of each item collected payable to the person on whose behalf the collection had been made, and deliver such check to the person entitled thereto. When in the course of business of the bank it became necessary to make a remittance, the collection teller would prepare a requisition on a form used by the plaintiff bank, which would contain the name of the payee and the amount of the check. The collection teller would deliver this requisition to the draft teller, who would cause a cashier’s check for the signature of an officer authorized to sign a check to be prepared by a girl employed by the plaintiff bank. After the check had been prepared for signature, the draft teller would write his initials in the center of the lower margin on the face of the check, to identify it as a bank transaction. The draft teller would then indorse on the requisition opposite the name of the payee the number of the cashier’s check which he had prepared pursuant to the requisition. For this purpose he usually entered the last three digits of the check number. The draft teller would then deliver the check to the collection teller, who would take it to an officer of the bank who was authorized to sign it, and obtain his signature. The cashier’s check would then be delivered by the collection teller to the person entitled to receive it.

It appears from the evidence that during the month of February, 1929, Culliton began to take money from the plaintiff bank and to use it to make wagers on the results of horse races, with various bookmakers. Culliton embezzled this money by using the cashier’s checks obtained by the method in practice in his department to collect and pay money due customers of the bank. Instead of cashier’s checks being prepared to pay the collection, Culliton would issue a requisition for a cashier’s check, payable to one S. Williams, following the usual method herein set forth, and use the checks or money received therefrom to gamble. Culliton made bets on horse races with one Edward Mc-Evoy, a gambler who operated a cigar store at 17 South Cicero avenue, Chicago, and had in his employ Steve Hempy. Between the 2nd and 21st of October, 1929, inclusive, McEvoy received from Culliton nine cashier’s checks issued by the plaintiff bank, aggregating the sum of $39,200, payable to the order of S. Williams. Before Culliton began using cashier’s checks he was instructed by McEvoy to have the checks made payable to S. Williams. The checks in question were delivered to either McEvoy or Hémpy and the money so obtained was used in making bets on horse races. All of these checks were indorsed and deposited in the defendant bank and credited to the E. S. Hempy or James F. Hogan account. When the cashier’s checks were presented for deposit with the defendant, the checks were made payable to the payee named, and indorsed. The checks were issued by the plaintiff bank, passed through the Chicago Clearing House for collection by the defendant, and paid by the plaintiff, and the defendant credited the deposit account of Hempy in the usual course of business. The defendant followed the usual procedure in the collection of checks deposited in the bank by depositors. It is equally true that the defendant adopted the course usually practiced by banks when collections were made through the Chicago Clearing House in the interchange of check collections. Up to this point the defendant did not do anything that every other financial institution had not done in. the usual course of business, and its conduct is not subject to criticism.

The question arises, is the defendant chargeable with knowledge of facts which would indicate that, fraud was practiced upon the plaintiff bank by one of its employees, and because of the fraudulent practice is the name of the payee in each of the cashier’s checks a fictitious person within the provisions of section 9 of the Negotiable Instruments Act, Cahill’s St. 1931, ch. 98, if 29. The act provides, in part, that such instrument is made payable to bearer— “When it is payable to the order of a fictitious or nonexistent or living person not intended to have any interest in it, and such fact was known to the person making it so payable, or known to his employee or other agent who supplies the name of such payee. ’ ’

The defendant claims that the cashier’s checks involved were the plaintiff’s checks; that by issuing them the plaintiff admitted the existence of the payee S. Williams and his capacity to indorse such checks; that the checks were delivered to the defendant for value and in good faith and without any infirmity in the instrument or defect in the title, or notice of such, and therefore the defendant was the holder in due course; that there is no evidence whatever that the indorsement was not in the handwriting of the payee, or not authorized. The defendant in support of the above contention calls the attention of the court to section 60 of the Negotiable Instruments Act, Cahill’s St. ch. 98, 80, which is as follows:

“The maker of a negotiable instrument by making it engages that he will pay it according to its tenor, and admits the existence of the payee and his then capacity to indorse.”

The defendant also cites section 61 of the same act, Cahill’s St. ch. 98, 1j 81, as having a material bearing upon the question in this case. This section is as follows :

‘ ‘ The drawer by drawing the instrument admits the existence of the payee and his then capacity to indorse, and engages that on due presentment the instrument will be accepted or paid, or both, according to its tenor, and that if it be dishonored, and the necessary proceedings on dishonor be duly taken, he will pay the amount thereof to the holder, or to any indorser who may be compelled to pay it. But the drawer may insert in the instrument an express stipulation negativing or limiting his own liability to the holder.”

The legal effect of a cashier’s check issued by a bank is the same as a bill of exchange drawn by the bank upon itself and accepted in advance by the act of its issuance, and is not subject to countermand like any ordinary check. The relations of the parties to such an instrument are analogous to those of the parties to a negotiable promissory note, payable on demand. Banks and Banking, 7 C. J. 702. Such check is accepted in the commercial world as a promise by the bank to pay the amount, and in the usual course of business such check is accepted in payment of amounts due arising from transactions between parties. The bank as maker of this negotiable instrument engages that the bank will pay according to its terms, and admits the existence of the payee named and his capacity to indorse, so that the responsibility for the issuance of the cashier’s check is the bank’s, and it is not a defense that its employees were negligent in the issuance of the check received by a holder in due course without knowledge or notice of any infirmity. The cashier’s checks in the instant case were issued by the plaintiff bank through its agent and later deposited in the defendant bank by a depositor. The checks were received by this bank in due course of its business. The evidence fails to establish that the defendant had any knowledge of the fraud which was practiced upon the plaintiff by its employees. It is quite true that the plaintiff bank acts through its agents and must rely upon their integrity in carrying out its banking business, but the difficulty in operating this bank does not excuse the issuance of the cashier’s checks in question. These checks were received for deposit by the defendant bank in the regular course of business and paid through the Chicago Clearing House, which justified the defendant in paying the withdrawal by the depositor of the fund, and the defendant should not be made to pay again the sum represented by the cashier’s checks issued by the plaintiff bank.

If the rule were otherwise, the receipt of a cashier’s check would require the holder to ascertain whether the issuing bank had a defense. This would retard business and it would always be a question as to the advisability of the acceptance of cashier’s checks.

In this case the plaintiff bank cashed five cashier’s checks issued by it and signed under similar circumstances, payable to the same payee, S. Williams. These checks passed through the hands of the bank tellers of this bank. It appears that Culliton’s O. K. of the indorsement, in the main, induced the paying tellers to pay the money to the holder.

The plaintiff in reliance on its position in this case, calls the attention of the court to the case of U. S. Cold Storage Co. v. Central Mfg. Dist. Bank, 343 Ill. 503, as decisive upon the questions involved in this litigation. The opinion of the Supreme Court in that case is controlling in many respects and is binding upon this court upon such questions. It is to be noted, however, that the question of negligence of the plaintiff bank which contributed to or induced the acceptance by the defendant of the plaintiff’s cashier’s checks for deposit and subject to withdrawal, is an important element to be considered in determining whether such negligence exists.

In passing upon the question when the acts of the agent for the principal may be binding, the court in the case of U. S. Cold Storage Co. v. Central Mfg. Dist. Bank, supra, said:

“This, of course, is very different from an agent binding his principal by acts done within the scope of his authority although done with knowledge and intent adverse to his principal; and we have no intention of saying that an agent may not bind his principal under such circumstances. It may well be that in this case, if Emory had had authority to draw checks and had drawn these particular ones, making them payable to, fictitious payees, his intent in this respect would in legal effect, as to third persons, be the intent of the company although such intent was adverse to the company and part of a scheme to defraud it.”

And upon the question of the payment of depositor’s checks, the Supreme Court had this to say:

“Out of the relation of debtor and creditor existing between banks and their depositors, the law implies the contract on the part of the bank to pay the depositor’s checks, to the amount of his deposit, to the persons to whom he orders payment tó be made. If the check is made payable to the order of a person named, the duty of the bank is absolute to pay only to the payee or according to his order. No amount of care to avoid error will protect the bank from liability if it pays the check to a wrong person, and it must ascertain and act upon the genuineness of the indorsement at its peril. Jordan-Marsh Co. v. National Shawmut Bank, 201 Mass. 397; Welsh v. German-American Bank, 73 N. Y. 424; Critten v. Chemical Nat. Bank, 171 id. 219; Seaboard Nat. Bank v. Bank of America, 193 id. 26; Armstrong v. Pomeroy Nat. Bank, 46 Ohio St. 512; Jackson v. National Bank of McMinnville, 92 Tenn. 154.”

But the rule is different as to the rights and duties of the maker in the issuance of a cashier’s check. The statute on negotiable instruments provides that the maker of a negotiable instrument engages that he will pay according to its tenor, and admits the existence of the payee and his capacity to indorse. The issuance of the plaintiff’s cashier’s checks and the indorsement that appears upon the checks by the payee, and the payment by a third party who is the innocent victim, is quite different from the rule that applies to the payment by a bank of its depositors’ checks. In the instant case there was no fraud that goes to the execution of the check; but the fraudulent conduct of the plaintiff’s employee goes only to the question of its consideration, and the question of consideration is not a matter of defense against the defendant, who is a holder in due course, without notice of any infirmity. Section 28 of the Negotiable Instruments Act, Cahill’s St. ch. 98, Ü 48. This defense would not be available to the plaintiff in an action by the defendant to recover money paid by it on the faith of plaintiff’s cashier’s check.

One further question called to our attention by the plaintiff is that the payee named S. Williams was a fictitious or non-existent person, and that this fact was not known to the plaintiff when it issued the checks; that the indorsement of the name of the payee was unauthorized and passed no title to the defendant.

The evidence upon this phase of the case is that Culliton and McEvoy agreed that the cashier’s checks were to be issued and made payable to S. Williams, and delivered to McEvoy, which raises the reasonable inference that McEvoy assumed this name for reasons of his own, and deposited the checks with the defendant, properly indorsed. This question is largely one of fact, and the conclusion that we have reached is largely substantiated by the cashing of certain of these checks by the plaintiff bank payable to S. Williams and so indorsed, also upon the face of which appeared the O. K. of Culliton and upon whose 0. K. the paying tellers paid The amount called for by the checks to the holders. In fact, when one of such checks so approved by Culliton was presented to one of the paying tellers of the plaintiff bank, the teller called it to Culliton’s attention and he indicated that the check was properly indorsed, and thereupon the teller paid the money to the holder. This act of Culliton would indicate that he had authority to authorize the payment of checks by the tellers of the bank and that in this matter he acted within the scope of his authority.

This case upon the facts is well within the rule that when one of two innocent parties must suffer loss by reason of the wrongful acts of a third person, the one who by reason of his negligence has made it possible for the third party to commit the wrong must stand the loss.

■ The judgment is reversed and the cause remanded.

Reversed and remanded.

Wilson, P. J., and Hall, J., concur.


text:
    Charles Ross et al., Appellants, v. Wrightwood-Hampden Building Corporation et al., Appellees.
    Gen. No. 36,047.

      Opinion filed May 24, 1933.
    Rehearing denied June 7, 1933.
    Harold J. Finder, for appellants.
    Sabath, Perlman-, Goodman & Rein, for appellees.
   Mr. Justice Hebel

delivered the opinion of the court.

This case comes before this court upon an appeal by the plaintiffs from an order vacating a judgment for $31,553.12 entered by confession against the defendants under a warrant of attorney contained in a promissory note executed by the several defendants.

The judgment was entered on July 26, 1929, and an execution was issued and served on August 1, 1929, on Ben E. Borgeau-s personally and as president of each of the following named corporations: Wright-wood-Hampden Building Corporation, 428 St. James Building Corporation, Park Central Apartments Building Corporation, 444 St. James Building Corporation, and 629 Doming Building Corporation. All of these defendant corporations were organized under the laws of the State of Illinois.

On September 14, 1929, the defendant corporations made a motion to vacate the judgment entered in the above-entitled cause, supported by an affidavit of one Dorothy Kalcheim, sworn to by her, in which she states that affiant is the agent of the defendant corporations and makes the affidavit for the reason that “Ben E. Borgeaus, the president of said corporations, is not in the jurisdiction at the present time.”

The affiant further states, in substance, that the corporations are not indebted to the plaintiffs; that if any money was due the plaintiffs, they have been fully paid; and that the note ivas evidence of a debt due from Borgeaus personally, or the Borgeaus Construction Company, and that the act of the said Ben E. Borgeaus in executing the said note and in seeking to bind the said corporations was and is beyond his power as president of said corporations; that the corporations are not permitted by their corporate powers to pay any indebtedness of others, and that such note is ultra vires.

It appears from the record that no action was taken on the motion to vacate the judgment until March 5, 1932, when the court considered the motion and affidavit in support of said motion.

After an examination and consideration of the affidavit filed in support of the motion, we are satisfied that it is sufficient to support said motion of the defendant corporations.

The question then is, Was the court justified in vacating the judgment and dismissing the plaintiffs’ suit upon the ground that the note on its face was void? It is clear that issues were not joined by the parties and that evidence was not heard, except the consideration by the court of the affidavit in support of the defendants’ motion.

The defendants contend that the single question for this court’s decision is, Can five building corporations, organized under section 3 of the Corporation Act, Cahill’s St. ch. 32, fí 3, lawfully execute and deliver their joint and several note and render each of the defendants liable for the full amount of the principal and interest?

The general rule is that a corporation may properly execute a promissory note by its proper officer, for the purpose of carrying on the business for which the corporation is organized. A corporation may also execute by its proper officer a promissory note containing a warrant to confess judgment for the amount due upon the face of thé note, and the presumption is that the officer executing the judgment note had the necessary authority, and that presumption will prevail until it is overcome by evidence. State Bank v. Moline Steel Co., 283 Ill. 581.

It is also a rule of law that several corporations may enter into a joint contract necessary to carry on the express or implied powers for which the corporation is organized. It necessarily follows that one or more corporations may execute a judgment note, and thereby become liable if the liability so entered into is for the benefit of the corporation, and in order to carry on the purposes for which the corporation is incorporated. Marine Bank of Chicago v. Ogden, 29 Ill. 248; New York and Sharon Canal Co. v. The Fulton Bank, 7 Wend. (N. Y.) 412; Midland Tel. Co. v. National Tel. Co., 236 Ill. 476.

It is presumed that the negotiable instrument is based upon valuable consideration — section 24 of the Negotiable Instruments Act,. Cahill’s St. ch. 98, Ü44, which provides that “every negotiable instrument is deemed prima facie to have been issued for' a valuable consideration, and every person whose signature appears thereon to have become a party thereto for value.”

When the court considered the note this section applied, and it is essential that evidence should have been heard in. order to overcome the prima facie case.

The court erred in assuming from an examination of the note that the corporations were without power to execute the note. Whether the note was executed outside of the power granted to the corporations by the State, is largely one of fact. , It may be that the evidence will develop that the corporations joined in the execution of the note in question to be used to pay a liability incurred by and for the benefit of the several corporations. In the instant case the court should have entered an order opening the judgment and granting leave to the defendants to plead, the judgment to stand as security until the final hearing.

The plaintiffs complain of laches of the defendants in failing to call up their motion to vacate. We .are not impressed with the contention that the failure of the defendants to act promptly deprived the plaintiffs of their security. If the plaintiffs wished to preserve their rights, it would have been well if they had acted at the earliest moment and not have depended upon the defendants to press their motion. The plaintiffs had notice of the motion and if they were content to wait for the action of the defendants, they are not now in a position to complain.

For the reasons given in this opinion the order of dismissal of plaintiffs’ suit will be set aside and the 'cause remanded with directions to proceed in conformity with the views expressed in this opinion.

Order reversed and cause remanded with directions.

Wilson, P. J., and Hall, J., concur.


text:
    Lillian S. Harris, Appellee, v. Jeanette L. Solomon et al. Appeal of Sarah Braverman, Appellant.
    Gen. No. 36,123.

      Opinion filed May 24, 1933.
    Shulman, Shulman & Abrams, for appellant; Meyer Abrams, of counsel.
    Short, Rothbart, Willner & Lewis, Brown, Fox & Blumberg and Clement Harrell, for appellee; Seymour M. Lewis, Theodore Rubovitz and Clement Harrell, of counsel.
   Mr. Justice Hebel

delivered the opinion of the court.

This is an appeal by the defendant Sarah Braver-man, from an order denying the prayer of her petition that the court-determine and fix the amount due the complainant for interest, solicitor’s fees and costs, in addition to the amount due the complainant upon a defaulted $100 bond. Sarah Braverman filed her petition offering to pay the complainant all the principal, interest and attorney’s fees and costs which may be due in the instant case, and moved that the receiver in possession be required to file his final account, and upon its approval be directed to turn over the premises in question to the petitioner, and that he be discharged from further service in the proceeding.

Sarah Braverman acquired title to the real estate in question and had an interest in this litigation, which is a foreclosure proceeding in which Lillian W. Harris is the complainant. The proceeding is a second partial foreclosure to satisfy the amount due upon one bond for $100, which bond is subordinate to certain other bonds aggregating the sum of $45,000, and secured by a trust deed upon the premises in question.

The bill of complaint was filed on January 30, 1931. No service was had, however, upon the owner of the equity of redemption. A receiver was appointed on a prior foreclosure proceeding filed by the First National Bank of Chicago on December 27, 1929. A decree was entered as a result of such proceeding, and a sale was had. After the sale a deficiency decree was entered for the sum of $761.97, which amount was reduced to $640.62. On February 11, 1931, the receivership in that case was extended to the instant proceeding. No notice of this motion to extend the receivership was given to the owner of the equity of redemption for the alleged reason that such owner could not be found.

On October 28,1931, Sarah Braverman filed her petition hereinbefore mentioned, offering to pay the complainant the amount due.

Thereafter, on October 29, 1931, the Chicago Title & Trust Company declared the amount evidenced by bonds aggregating the sum of $45,000 to be due and payable, and applied to the chancellor in this proceeding for leave to file a cross-bill and to extend the receivership to cover the property involved in the foreclosure proceeding and set forth in the cross-bill. The court denied this motion and on October 30, 1931, the Chicago Title & Trust Company filed a bill of foreclosure case No. B-231679, to satisfy the amount of the bonds above set forth, and on motion of the Chicago Title & Trust Company, over the objection of the defendant Sarah Braverman, the receivership was extended.

The receiver, in compliance with the order entered on February 12, 1931, filed his report, from which it appears that his account is for the period from February 1, 1931, to October 31, 1931, inclusive, and that the receiver collected rents from the tenants in possession amounting to $4,621.35. Among the items expended were $150 for attorney’s fees, and $150 for receiver’s fees. Three hundred dollars were paid to the Capital Company in May, 1931; $1,137.50 to the Capital Company in September, 1931, and the receiver asked for an additional allowance of $300 for fees, and also $300 for his attorney’s services. To this report the defendant Sarah Braverman filed objections.

The defendant Sarah Braverman, in order to call the attention of the trial court to the tender made by her to the complainant in the instant case, filed a petition to that effect. This petition was answered by the complainant and certain of the defendants.

The matter came before the chancellor, who heard the evidence and considered the objections filed by the defendant Sarah Braverman to the receiver’s report, and at the conclusion of the hearing, entered an order finding that Sarah Braverman offered in open court to pay to the complainant the amount due under the foreclosure proceeding, plus interest and costs and a reasonable solicitor’s fee; that the complainant refused to accept the tender so offered, and that the court denied the prayer of the petition of Sarah Braverman.

This order is equivalent to a refusal by the court to fix the amount of the tender including solicitor’s fees, interest and costs, to be paid by the defendant to the complainant, and thereby sustains the complainant’s refusal to accept the money offered to be paid and the legal effect of this order is that the court denied the right of the petitioner to satisfy the claim of the complainant in this foreclosure proceeding.

The purpose of a tender by a party in interest is to satisfy a claim due, and such tender may be offered before or after litigation is instituted, and when made after the proceeding is before the court, the tender should be allowed by the court if properly made, for it tends to end litigation.

The matter in the instant case was properly before the court for consideration, and the order is final upon the question involved1 and binding upon the defendant, unless upon review the order is reversed.

It appears from the receiver’s report that payments were made by him which were of doubtful propriety. It is apparent that he did not pay the taxes for the years 1927 and 1928, charged to be due in the bill of complaint filed herein. Such failure by the receiver to pay taxes should not be encouraged. This receiver had sufficient funds to pay the taxes- for the years 1927 and 1928, but the funds were used for every other purpose than the payment of the taxes due. The first duty of an officer of the court in the administration of the trust committed to him is to satisfy the tax liens upon the property committed to his care, when an order for that purpose is entered by the court.

While the objections of Sarah Braverman to the receiver’s report were overruled by the court, the report does not appear to have been approved by this order, and evidently is still before the chancellor for consideration, and the court no doubt will carefully consider this report and enter such orders as are equitable and just. The order denying the prayer of Sarah Braverman to fix the amount due the complainant is therefore reversed with directions that the order be set aside and vacated, and that the court consider the tender made by Sarah Braverman and fix the amount due to satisfy the claim of the complainant, and allow such an amount for interest, costs, and solicitor’s fees as the court shall determine, and enter such further or other orders consistent with the views herein expressed.

Order reversed and cause remcwided ivith directions.

Wilson, P. J., and Hall, J., concur.


text:
    Chicago Title and Trust Company, Trustee, Complainant, v. Emma Stut et al., Defendants. Straus National Bank and Trust Company, Receiver, Appellee, v. Jeremiah W. McGraw and Lou May McGraw, Appellants.
    Gen. No. 36,261.
    Opinion filed May 24, 1933.
    Frank P. McGinn, for appellants.
    Harry J. Lurie, for appellee.
   Mr. Justice Hebel

delivered the opinion of the court.

This is an appeal by Jeremiah W. McGraw and Lou May McGraw, appellants (respondents) from an order entered on the 16th day of July, A. D. 1932, by the court upon a certain petition of the Straus National Bank and Trust Company, as receiver, in a court foreclosure proceeding wherein the Chicago Title & Trust Company, as trustee, was the complainant and Emma Stut et al., were the defendants.

From this order it appears that the cause was heard upon a petition of the receiver for an order directing the respondents to vacate the premises described in the petition of the receiver, and the answer of the respondents to this petition, and upon the evidence offered by the respective parties, the court found that Jeremiah W. McGraw and Lou May McGraw are now occupying the furnished apartment No. 10 in the premises under foreclosure proceedings, not as tenants of the receiver, but as employees of the receiver, pursuant to an order entered by the court on May 7, 1928; that the receiver was authorized to employ Jeremiah W. McGraw as the receiver’s agent to manage the premises in question in consideration of the receiver permitting Jeremiah W. McGraw and Lou May Mc-Graw, his wife,- to occupy the apartment in the building without the payment of rent, and the payment to said Jeremiah W. McGraw of the sum of $100 per month in cash as the receiver’s agent; that on the date of his discharge by the receiver there was due for services $400.

Pursuant to an order, the receiver was authorized to pay to Lou May McGraw the sum of $60 per month for services as housekeeper for the apartment building, and further, the receiver was to pay Lou May Mc-Graw, the owner of certain furniture, fixtures and personal property used by the receiver in connection with the operation of the furnished apartment building, the sum of $125 per month as rental for said property, which rental was afterwards reduced to $75 a month by a certain other order. On July 7,1932, the receiver dismissed this respondent and the court found that there was due Lou May McGraw on July 1, 1932, the sum of $1,075 for use of the personal property, and the further sum due for wages as housekeeper of $225 at the time the order was entered; that the receiver had in his possession the sum of $117.64, and that other than the amounts due the respondents, there were obligations of the receiver amounting to $1,774.38, which were proper administration expenses. It also appears that the court found that the reasonable value of the furnished apartment occupied by the respondents is $65 per month.

The decretal order directs that the respondents vacate the apartment occupied by them in the premises within 10 days from the date of the order, and upon failure or refusal to vacate, that a writ of assistance issue on July 26, 1932. It was also ordered that the receiver pay to Lou May McGraw within 10 days $100 to apply on the rental of the personal property, and that the receiver pay the respondents the balance due as rapidly as shall be consistent with the payment of all other obligations and expenses incurred in the management of the premises. It is from this order that the appeal is in this court.

The matter which comes before us is upon a plea of release of errors filed by the Straus National Bank and Trust Company, as receiver, the answer of the respondents Jeremiah W. McGraw and Lou May Mc-Graw, his wife, and the demurrer of the Straus National Bank and Trust Company, as receiver, to the answer of the respondents.

At the time the receiver employed the respondents, Jeremiah W. McGraw accepted without objection the terms of the order entered by the court, and continued in the occupancy of the premises, together with his wife, and received part of the wages allowed him foi salary as the receiver’s agent; that his account was adjusted by the court at the time the order was entered; that the respondent Lou May McGraw’s account was also adjusted, and that she accepted employment by the receiver and was allowed a stipulated sum each month for the use of the household furnishings in the building owned by her.

Subsequent to the entry of the order the receiver . mailed the respondents a bill for the rental value of the premises that had accrued in the occupancy of the apartment. The respondent Jeremiah W. McGraw paid the receiver $65 for the August rent and later received a statement from the receiver of the amount due. From this statement it appears that from July 27, 1932, to August 1, 1932, the receiver charged $9.72, together with $65 charged for each of the months of August, September and October, 1932, making a total sum of $204.72, less a credit of $65 paid to the receiver by McGraw, leaving a balance due from the respondent to the receiver of $139.72, which amount the receiver deducted from the sum of $400 found to be due from the receiver to McGraw, as authorized by the respondent in his letter dated October 8,1932, received by the receiver.

In the order of July 16, 1932, the receiver was directed to pay to Lou May McGraw, one of the respondents, within 10 days, $100 to apply on the amount found by the court to be due from the receiver. This the receiver did, and the sum of $100 was accepted by her without objection. After the payment of the $100, the receiver paid the respondent the further sum of $75 on August 15, 1932, September 21, 1932, and October 13, 1932, which money was received on the several dates and accepted by Lou May McGraw without objection.

The reply of the respondents in regard to the acceptance of the benefits provided for in the order is that the order appealed from directs the respondents to vacate the premises in question and that is the subject of this controversy; that there is no controversy about the amount of money to be paid by the receiver, the amount being merely incidental.

The record in this case establishes the fact that this appeal is from the order of July 16, 1932, and apparently the respondents are attempting to limit this appeal by that part of the condition of the bond, which is in part as follows:

“The condition of the above obligation is such that whereas the said Straus National Bank and Trust Company, receiver, did on the 16th day of July, A. D. 1932, in the Circuit Court of Cook County, in the state aforesaid, and of the June term thereof, A. D. 1932, recover a judgment against the above bounden Jeremiah W. McGraw and Lou May McGraw for possession of the apartment occupied by them at 4715 Malden Avenue, Chicago, Illinois, from which said judgment of the said Circuit Court of Cook County, the said Jeremiah W. McGraw and Lou May McGraw have prayed for and obtained an appeal to the Appellate Court, within and for the First District in said State. ’ ’

It is obvious, that the respondents benefited by the order in not only accepting the money paid to them by the receiver, but also in the occupancy of the apartment in the premises, and when their employment ceased and the court adjusted the rental value of the apartment at $65 a month, the respondents remained in possession and paid the accruing rent. Could there be a clearer demonstration of the intention of the respondents to accept freely and voluntarily the benefit of the decretal order entered by the court! The payment of the rent by the respondents vitiated the order to vacate and surely recognized the right of the receiver to accept rent for the use of the apartment by the respondents. The only time that an objection was made was when the case was appealed to this court.

Having accepted the beneficial provisions of the decretal order, the respondents cannot complain of the part of the order that is not favorable to their theory. The acceptance of the benefits operates as a release of errors and may be pleaded in bar to their assignment of errors. Boylan v. Boylan, 349 Ill. 471; Holt v. Rees, 46 Ill. 181; Thoeming v. Hawkins, 291 Ill. 454; Schaeffer v. Ardery, 238 Ill. 557; Reinken v. Reinken, 351 Ill. 409.

The demurrer of the appellee (receiver) to the answer of the appellants (respondents) to the plea of release of errors, as amended, is sustained, and the appellee’s plea of release of errors is sustained. Accordingly the appeal is dismissed.

Appeal dismissed.

Wilson, P. J., and Hall, J., concur.


author: Mr. Presiding Justice Wolfe

text:
    National Lock Company, Appellant, v. Gedor W. Aldeen, Appellee.
    Gen. No. 8,596.

      Opinion filed May 25, 1933.
    Hall & Dusher, for appellant.
    Hyer & Gill, for appellee.
   Mr. Presiding Justice Wolfe

delivered the opinion of the court.

The National Lock Company, a corporation, started suit against Gedor W. Aldeen in the circuit court of Winnebago county, to recover a sum claimed to be due them for wages paid to Gedor W. Aldeen, and for material used by him in developing new ideas which he caused to be patented in his own name, for his own use and benefit, as contended by the appellant. The declaration of the plaintiff below consisted of the common counts. To this declaration appellee filed a plea of the general issue. The case was tried before a jury and at the close of the evidence on the part of the appellant, the plaintiff below, a motion was made to instruct the jury to find for the defendant. This motion was overruled. The appellee then introduced evidence and at the close of all of the evidence the defendant renewed his motion to have the court instruct the jury to find in favor of the defendant. This motion was allowed and the instruction given. Judgment was rendered on this verdict and the National Lock Company brings the case to this court on appeal for review.

The record discloses that the appellee was employed by the appellant and was paid a salary of $21,000 a year; that Ed North was also employed by the appellant and paid at the rate of $450 per month; that in the year of 1928 the appellee perfected and patented a wheel for a sash pulley, also an automatic mortising machine to cut mortises in window frames. In'doing this work appellant contends that appellee used time for which appellant had paid him for working for them; also that appellee used nine months of Ed North’s time for which time the appellant had paid; also that he had used the time of the appellant’s tool makers for which it had paid, and also had used materials, tools and equipment of’ appellant. It is also claimed by appellant that the amount paid as wages to appellee,, and to Ed North and the tool makers, did not represent the total cost to appellant on this account for the time spent, but that there was' an indirect charge of overhead which must be added at 140 per cent of the wages paid to these various' men to get the total costs to appellant of these employees. ' Appellant also claims an item of the useful value- to the appellant of appellee’s services for the time mentioned; that the appellee applied for and received the patents heretofore mentioned, being the ones in question, in his own name; that he applied for the patent of the sash pulley wheel April 19, 1928, and that the patent was issued on the same on December 9, 1930; that he applied for the mortising machine patent on January 7, 1929, and the patent was issued October 9, 1930. The appellant claims it was damaged to the extent of $30,000.

The evidence in this case is quite voluminous. It is contended by the appellant that the appellee, while in the employ of the appellant, not only used appellant’s time in perfecting and obtaining the patents heretofore mentioned, but used the time of Ed North to aid and assist him, and also the time of the tool makers. It appears to us that there can be no question' but what the appellee did use the time properly belonging to the appellant for which he was being paid a large salary, viz., $21,000 a year; and also that he used the time of Ed North and of others, and this was all used, as we believe from what is disclosed by this record, for his own benefit and gain. The question then arises: Did the court err in directing a verdict for the appellee and in denying the motion for a new trial?

The evidence shows that the suit was started in December, 1930; that in June, 1931, the appellee procured an order of court requiring the appellant to submit all of its books and records' for examination- by a duly authorized auditor, or agent of the appellee; that this order was complied with; that on November 30, 1931, was the first time that the appellee tendered to the appellant an assignment of the patents, and during all of this time the patents had been in the possession of the appellee, apparently under a claim of ownership. The appellant was not bound to accept the assignment of these patents in lieu of the amount of money it had paid the appellee for the time to which the appellant was entitled to the services of the appellee. We think the language used in the case of Dice v. Joliet Mfg. Co., 11 Ill. App. 109, is very applicable to this case.

It is conceded by both parties to this suit that when there is evidence offered tending to establish the plaintiff’s case, no matter if there is evidence strongly tending to show the contrary, it is a usurpation of the province of the jury, which has the right to weigh the evidence and judge the credibility of the witnesses, for a court to direct a verdict. We are of the opinion that the appellant made out a prima facie case before the jury and it was error for the court to instruct the jury to find for the defendant.

Complaint is made relative to the rejection of certain evidence of the appellee relative to a conversation that he had with Ed North, and what appellee’s intentions concerning these patents were, in January, 1929. We think it would have been proper for the witness to be allowed to answer the • question propounded to him, but the record shows that the appellant got the full benefit of this evidence in a later question propounded to the same witness. This, standing alone, would not be sufficient to reverse the case.

It is our opinion that the case should have been submitted to the jury for their determination, and it was error for the court to take the case from the jury, and for this reason the judgment of the circuit court of Winnebago county is hereby reversed and the cause remanded.

Reversed and remanded.