text:
    Hamilton Watch Company, Appellee, v. George W. Borg Corporation, Appellant.
    Gen. No. 42,189.
    Opinion filed December 30, 1942..
    Rehearing denied January 20, 1943.
    Samuel R. Kenworthy, of Moline, and Gr. A. Shallberg and Edmund D. Adcock, both of Chicago, for appellant; John W. Day and Eli E. Fink, both of Chicago, of counsel.
    Frank R. Reid, of Chicago, for appellee; Barnes, Richardson & Colburn, of New York City, Charles A. O’Connor, of Aurora, and Frank Reid, Jr., of Chicago, of counsel.
   Mr. Justice Friend

delivered the opinion of the court.

Hamilton Watch Company of Lancaster, Pennsylvania, brought suit against the George W. Borg Corporation of Chicago for the alleged breach of an agreement by defendant to reimburse plaintiff for a specific import duty, in the event plaintiff should be called upon by the United States Customs to pay it, on certain colleted hairsprings imported by plaintiff from Switzerland during the years 1934-37, which plaintiff sold to defendant for use in the manufacture of automobile clocks. The complaint consisted of three counts, one claiming the sum of $137,060.58, another $68,530.29, and the third $173,234.17, all based on the same facts. The motion judge of the circuit court dismissed Counts I and III on defendant’s motion and thereafter, by leave of court, plaintiff filed an amended complaint containing substantially the same allegations as were embraced in Count II, asking judgment for $68,530.29. The case was tried upon the amended complaint, answer, special defenses and plaintiff’s replies. At the close of the case the trial court, on motion of plaintiff and over defendant’s objection, reinstated Counts I and III, and entered the judgment for $200,536.52, which represented the sum of $173,-234.Í7 paid to the customs officials in full settlement of all duties, fines and penalties demanded by the government, plus interest, from which defendant appeals.

No oral testimony was adduced upon trial, the evidence, except for two physical exhibits, being entirely documentary and consisting principally of correspondence between the parties. From, the facts disclosed by the record it appears that prior to 1930 the Hamilton Watch Company had obtained an exclusive license to use and sell a patented hairspring, known as the Elinvar hairspring, manufactured in Switzerland, which was used in the manufacture of its own watches, and under the license agreement of April 11,1930 it undertook to sell the Borg Corporation its Elinvar hairsprings from time to time in such quantities as it might require and at a price to be agreed upon. The agreement merely expressed the intention of the parties to enter into future business relations with each other, and no contractual obligations were imposed upon either party.

Under the stipulation of the parties the article involved in this case is described as a “colleted hairspring ’ ’ or “ hairspring with collet attached. ’ ’ It consists of two parts; one part is a hairspring and the other part is a collet or collar consisting of a small metal disc. When the hairspring is attached to the collet by means of closing together a slot in the collet, into which one end of the hairspring has been inserted, it is known as a colleted hairspring. Through the col-let thus attached to the hairspring is a shaft or staff, upon which the spring operates to regulate the motion of the balance or vibrating wheel regulating the movement of the timepiece.

Following the execution of the agreement of April 11, 1930 defendant submitted purchase orders for colleted hairsprings which were accepted by plaintiff at fixed prices and deliveries were made accordingly. Prior to December 1934 hairsprings were imported by plaintiff from Switzerland, and then in this country with its own colleting machines plaintiff attached or joined together the hairspring and the collet, and sold them in that condition to defendant as colleted hairsprings. Numerous invoices delivered by plaintiff to defendant, dated at various times from December 1931 to August 1933, were offered in evidence, showing the sales of colleted hairsprings at $11.45 per hundred. In September 1934 plaintiff advised defendant that because its colleting machines were fully occupied on plaintiff’s own work, it wouldibe unable to continue attaching the collets to the hairsprings. However, defendant relied on plaintiff for colleted hairsprings in the manufacture of its products and upon so informing plaintiff, the latter ascertained by cable that it could arrange to have the collets attached to the springs in Switzerland, and accordingly on October 2, 1934 advised defendant that the price of the hairsprings, with collets attached in Switzerland, would be the same as it had been when the collets were attached in this country by plaintiff. Following this correspondence plaintiff, December 5, 1934, made its first shipment to defendant of hairsprings which it had imported from Switzerland with collets there attached, at the price of $13.45 per hundred. This was apparently the first shipment of colleted hairsprings plaintiff had ever imported from Switzerland. From that date until February 6, 1935, six more shipments were made at the same price.

Beginning on March 22, 1935 there commenced the important correspondence between the parties which led to the subsequent agreement of April 8, 1935, upon which plaintiff’s claim is predicated. Defendant had requested plaintiff to reduce the price of colleted hairsprings, which at that time was $13.45 per hundred. After the exchange of letters, the agreement of April 8, 1935, which proposed to reduce the price from $13.45 to $10.45 per hundred, was transmitted to defendant and accepted by confirmation in writing. The agreement is as follows:

“In accordance with our previous correspondence, and your letter of March 28th, 1935, we will give you a credit on the contract price of $13.45 per hundred for hair springs of 3^ each, thus in effect reducing the present cost to you from $13.45 to $10.45 per hundred, so long as the Customs Officials do not add a specific duty of 3j each for a ‘ sub-assembly. ’ We do this on the strength of your agreement to pay this company the 3$ deducted as above if the Hamilton Watch Company is at any time called upon by the government to pay the specific duty.
“It is our understanding that the government may demand payment of this extra duty at any time; and your agreement to reimburse Hamilton for any sums for which it is determined this company is liable by reason of a claim for such specific duty. If you should desire to contest such claim, all costs and expenses in connection with any such contest or suit will be borne by your company.
“We are enclosing a copy of this letter, and would ask you to mark your confirmation on the original or copy, signed by the proper corporate officers with an impress of your seal, and return the signed copy to us. On receipt of this letter with your approval noted as suggested, we will issue a credit memorandum of 3<¡; per unit for hair springs supplied you since October 1st, 1934, and will bill future orders at $10.45 instead of $13.45 per hundred.”

Pursuant to this agreement plaintiff issued a credit memorandum reducing the price of colleted hairsprings sold prior to April 8, 1935 from $13.45 to $10.45 per hundred, and thereafter continued to deliver colleted hairsprings to defendant at the reduced price of $10.45 in accordance with the agreement. The first paragraph of the contract indicates that the parties entertained some doubt as to whether the customs officials would consider this mechanism as a subassembly and add three cents for each colleted hairspring as a specific duty, and in fact the reduction in the price was made by plaintiff because of defendant’s undertaking to pay the three cents deducted for each colleted hairspring ordered and delivered in the event that plaintiff was ‘ ‘ at any time called upon by the government to pay the specific duty.” The second paragraph indicates that the parties recognized the government’s right to demand the payment of extra duty at any time, and again reiterated defendant’s obligation to reimburse plaintiff for any sums “for which it is determined this company is liable by reason of a claim for such specific duty,” and at the same time conferred the right on defendant to contest, at its own expense, any claims made by the government. Defendant had on March 28, 1935, only 10 days before the agreement was executed, written plaintiff that “We hardly believe that the customs officials would hold these hair springs in the strict sense as a sub-assembly, inasmuch as certainly the collet is a component part of a hair spring,” thus indicating that it shared plaintiff’s views and entertained the same doubts as to whether the customs officials would rule the assembly as subject to a special duty.

The specific provision of the Tariff Act which evidently gave rise to the doubt entertained by both plaintiff and defendant as to whether the customs' officials would consider colleted hairsprings as one piece, that is, whether the collet would be held to be a component part of the hairspring, or a subassembly thereof, and therefore two parts or pieces of material, each subject to a special duty of three cents, in addition to the 65 per cent ad valorem tax, is contained in paragraph 368 of the Tariff Act of 1930, title 19, U. S. C. A., section 1001, which, with respect to clock parts, reads: “. . . each assembly or subassembly . . . consisting of two or more parts or pieces of metal or other material joined or fastened together shall be subject to a duty of 65 per centum ad valorem, and, in addition, to a duty of 3 cents for each such part or piece of material . . . .”

Under the United States Customs Laws and Regulations, when an importer agrees to purchase articles from an exporter located in a foreign country, the latter is required to prepare an invoice of purchased merchandise, commonly called a consular invoice, on forms furnished by the American Consular Service, containing a detailed description of the merchandise and the name by which each item is known, and the exporter is also required to certify that all the statements in the declaration and invoice are true and correct. One copy of the consular invoice is then sent to the collector of customs at the port of entry named in the invoice, and an uncertified copy is given by the. consular office to the exporter for delivery to the importer, who then presents it to the collector of customs at the port of entry. At the same time the importer is required to prepare and present to the collector of customs at the port of entry a document bearing a correct and accurate description of the articles imported.

Colleted hairsprings, such as were imported by plaintiff in the case at bar and sold to defendant, were subject to an ad valorem duty of 65 per cent, and in addition a duty of three cents for each of the two parts comprising the colleted hairspring. Simple clock hairsprings, on the other hand, without collets attached, were subject only to a 65 per cent ad valorem duty. The Customs Laws provide that if an importer enters any merchandise by means of fraudulent or false invoice or declaration or makes any false statement in the entry, such merchandise or the value thereof is subject to forfeiture, and that any importer who has incurred any fine, penalty or forfeiture may file with the Secretary of the Treasury a petition for a remission or mitigation of such fine, penalty or forfeiture, and for good cause the treasury may remit or mitigate the penalties imposed by the act.

In this case all the colleted hairsprings were declared as consisting of one part, which would have made them subject only to the 65 per cent ad valorem duty, with no additional special duty of three cents for each additional part. Under the Customs Laws “liquidation” is the final computation of the duties owing on an importation. In the absence of fraud, no entry can be reliquidated after the expiration of 60 days from the liquidation date appearing upon the entry documents, whereas in case of fraud the collector of customs may reliquidate an entry within two years after the date of liquidation. It thus appears that liquidation may take place at the instance of customs officials for any reason within 60 days, but after the lapse of this period reliquidation can be made by the government only for fraud, and that must be done within the two-year period.

In the case at bar all the colleted hairsprings imported by plaintiff and sold to defendant were the subject matter of 120 entries at the customs office at Philadelphia. Each importation was preceded by the execution of a consular invoice, indicating that the colleted hairsprings consisted of only one part and were therefore not subject to any specific duty. February 14, 1938, after all the colleted hairsprings involved in this litigation had been delivered, plaintiff' advised defendant that it had just received notice from the customs that a number of invoices had been reliquidated. No specific duty had ever been charged prior to that date. Upon inquiry, defendant was advised by the customs on February 24, 1938 that the colleted hairsprings had been classified as a clock assembly, so that in addition to the duty of 65 per cent ad valorem there was a specific duty for each of the two parts thereof, making a specific duty of six cents for each colleted hairspring. Subsequently, on March 3, 1938, the collector of customs demanded of plaintiff the payment of (1) $14,-548.30 resulting from the reliquidation of certain entries by assessing a specific duty of six cents for each colleted hairspring, and (2) $259,418.97, the penalty represented by estimated forfeiture value of colleted hairsprings for violation of the Customs Law; and the collector of customs accordingly demanded that plaintiff pay the government’s aggregate claim of $273,967.27, resulting from the reliquidation of these entries. Part of this aggregate represented reliquidation, and the balance represented penalty as forfeiture value.

The following day, March 4, 1938, plaintiff wrote defendant that “The Customs Officials are claiming duty as clock hairsprings, specifically subassemblies, at 65% ad valorem plus 6^5 specific duty, under par. 368, Tariff Act of 1930, on the watch hairsprings sold and shipped to you since 1934. Will you please advise us whether you wish to contest this classification in whatever form it may be raised by the government?” In response to this letter defendant wrote plaintiff on March 9,1938 that it was not a party to plaintiff’s controversy with the government, and would not agree to contribute to or participate in the defense thereof. Being thus confronted with payment of the government ’s claim, plaintiff on March 30, 1938 filed with the collector of customs a petition for the remission or mitigation of penalties and forfeitures, in accordance with the suggestion of the customs officials, wherein plaintiff offered to pay in remission or mitigation of penalties and forfeitures the sum of $173,234.17. The commissioner of customs accepted the proffered sum in compromise of the penalty claim for the forfeiture value, and the suit at bar is brought to recover this amount, with interest, pursuant to the letter-agreement of April 8, 1935, wherein defendant agreed “to reimburse Hamilton for any sums for which it is determined this company is liable by reason of a claim for such specific duty.”

By way of defense and as ground for reversal, defendant takes the position that it was induced to enter into the contract because of the fraudulent representations made by plaintiff that it had properly and accurately described the articles under the Customs Laws, and because of these misrepresentations and concealment of material facts the contract of April 8, 1935 was rendered void from its inception; that .the agreement is void as against public policy if it must be construed as a contract to indemnify plaintiff as against demands of the government arising out of violations of the Customs Laws or fraud upon the customs in the importation of the articles in question; that although defendant undertook to reimburse plaintiff for the specific duty of three cents on certain eolleted hair7 springs, the sum paid by plaintiff to the government was a penalty or fine for fraudulent importations and was not in payment of any specific duty, wherefore defendant did not become obligated to pay plaintiff anything under the agreement: that in any event the maximum obligation of the defendant under the contract was to reimburse plaintiff for specific duty at the rate of three cents per eolleted hairspring covered by the agreement, and since the government never called upon plaintiff to pay the specific duty on all the eolleted hairsprings imported by plaintiff, but only upon a considerably lesser number of these articles, the amount of the judgment is clearly excessive and not in accordance with the agreement of the parties.

With respect to the first of these defenses it is argued that defendant did not know, nor was it apprised until this controversy arose in 1938, that plaintiff had been importing the eolleted hairsprings by improperly describing them as hairsprings, and that plaintiff’s letter of March 25,1935, in which defendant was advised that the customs officials were considering the question whether the two pieces would be treated as a subassembly, amounted to a false representation; and it is asserted that defendant did not know until after all this merchandise had been shipped and delivered to it that plaintiff had been misdescribing the articles as hairsprings instead of colleted hairsprings or hairsprings with collets attached. Because of these circumstances it is argued that plaintiff was guilty of such fraud as to nullify the agreement of the parties. There can be no doubt that plaintiff and defendant both entertained doubts as to whether the customs officials would hold that these hairsprings consisted of one or two separate pieces. The correspondence that passed between the parties, and indeed the contract itself, clearly indicate that they were of the same mind with respect to the classification of these articles, and the provision in the contract for the reduction of the price thereof was expressly made in anticipation of and conditioned upon the decision of the customs officials not to add a specific duty of three cents each for the “subassembly.” Moreover, as shown by the second paragraph of the agreement, the parties knew “that the government may demand payment of this extra duty at any time,” and therefore plaintiff provided for defendant’s undertaking to reimburse plaintiff for any sums which might later be assessed for specific duty. These considerations were the primary object of entering into the agreement, for without these provisions the reduction in the price of the colleted hairsprings, and the credit memorandum given defendant for those purchased prior to April 8, 1935, would have been meaningless.

With respect to the contention that the contract is void as against public policy if it must be construed as an agreement to indemnify plaintiff against demands of the government arising out of violation of the Customs Laws for fraud upon the customs in the importation of the articles in question, there is nothing in the agreement requiring either party to defraud the government in carrying out the terms of the agreement. It was not an indemnity against any act which was illegal or with respect to which the parties had any illegal purpose or intention. Moreover, there is no proof of fraud on the part of plaintiff in its dealings with defendant or with the government. After all the colleted hairsprings had been delivered to defendant, the customs officials under the Tariff Act ruled these hairsprings to be a' subassembly within the meaning of the act, but they did not find that there was a fraudulent misrepresentation on the part of plaintiff in declaring them otherwise. Under the agreement defendant had the privilege of contesting any claim made by the government, had it so desired, but it declined to do so. We are therefore of opinion that the compromise of the government’s claim by plaintiff did not have the effect of releasing defendant from its obligation to reimburse plaintiff within the provisions of the contract.

However, we are in accord with defendant’s contention that its maximum obligation under the agreement was to reimburse plaintiff for specific duty at the rate of three cents per colleted hairspring covered by the agreement, and that the trial court erred in entering judgment for the full amount of the compromise payment made to the government, which included penalty and forfeiture charges. The motion judge evidently entertained this view of the litigation and struck Counts I and III, which were predicated on the theory that defendant was obligated to reimburse plaintiff for whatever it paid the government. Count II, upon which the parties went to trial, merely claimed three cents specific duty on each of the 2,284,343 colleted hairsprings sold and delivered by plaintiff to defendant, aggregating $68,530.29. Evidently plaintiff originally claimed no more than that sum, for in its letter to plaintiff, dated May 26, 1938, defendant’s counsel said that their client had referred to them “its files pertaining to your alleged claim of $68,530.39 as additional charge of three cents per hairspring furnished by your company,” and in its response, dated June 1, 1938, plaintiff did not indicate that its claim was for more than that sum. It was only upon the filing of the suit that plaintiff asked for more, and when the motion judge dismissed Counts I and III, it immediately filed an amended complaint limiting its demand to $68,530.29, and, abandoning Counts I and III, went to trial under the amended and limited complaint.

Of course defendant does not concede that it is indebted to plaintiff for any sum whatsoever because of the special defenses interposed, and its counsel say that in any event defendant is only liable, under its agreement, to repay three cents per hairspring on the 50.941 articles sold to it prior to April 8, 1935, and 74,000 hairsprings on order on that date, or a total of 124.941 hairsprings. We do not think the contract, is susceptible of this construction. When in March 1935 defendant asked for a reduction in the cost of the hairsprings, plaintiff pointed out that there were several factors which might offer an opportunity to reduce the cost, namely, (1) revaluation of the Swiss franc?, (2) reductions in cost from plaintiff’s supplier, and (3) favorable reviewing of duty requirements. Ultimately the reduction in price was made and the reduction arrived at in the agreement was evidently the solution reached by the parties, and was contingent upon the favorable review of duty requirements. If there could be any doubt as to the meaning of the contract, the intention of the parties can readily be ascertained from the correspondence which led to the execution thereof. It was a continuing contract which remained in force and effect until all the hairsprings ordered by defendant had been delivered, and its plain meaning is that the reduction should affect all purchases made during the life of the contract, upon the conditional consideration for reimbursement in the event of an adverse review of duty requirements by the customs officials. The last sentence of the contract credits defendant with three cents per unit for the hairsprings supplied since October 1, 1934, and undertakes to "bill future orders at $10.45 instead of $13.45 per hundred.”

There remains the question of whether defendant is liable for interest on the amount held to be due under the contract. Defendant argues that interest allowed without agreement does not apply where the amount to be recovered depends upon which of several constructions might be placed upon the instrument on which suit is brought, and its counsel say that assuming the contract is valid and that defendant is liable for some amount, then the extent of defendant’s liability may be measured by a number of different theories of liability which are set forth in their brief; and they argue that since the damages are not liquidated or of such a nature as to be the subject of computation, interest on the judgment may not be allowed. The reason for the rule contended for is set forth in one of the cases cited by defendant, Sterling-Midland Coal Co. v. Great Lakes Coal & Coke Co., 266 Ill. App. 46, as follows: ". . . where the damages are neither liquidated nor subject to exact computation, [the party against whom recovery is sought] is not able to ascertain the exact amount which is due and therefore is not able to make a tender of the same.” However, in the case at bar plaintiff in May 1938 made a demand on defendant for the sum of $68,530.29. This was before the complaint was filed on'November 16, 1938, and defendant could have tendered that definite sum and thus have been released from liability for any interest thereon, but instead it chose to ignore plaintiff’s demand. Under the agreement of the parties defendant’s obligations to reimburse plaintiff became definite and fixed when plaintiff paid the government. Of course the defendant took the position that it was not obligated for any sum whatsoever, but the plain import of the contract did not warrant such a construction, and the mere fact that defendant interposed a defense does not absolve it from the obligation to pay interest. In numerous cases cited by plaintiff defenses were made in apparent good faith. In Smith v. Gray, 316 Ill. 488, the court, after reviewing the authorities, held that the “cases are to the effect that upon all such instruments in writing, including building contracts, interest is payable after the money becomes due according to the terms of the contract and after it has been substantially performed, even where the amount due is not stated in the writing and is undetermined. If the plaintiff . . . is entitled to recover under the facts as finally established, there can be no question of his right to recover interest from the time of the demand on defendant and the wrongful refusal of the defendant to make settlement.” In Peoria Malting Co. v. Davenport Grain & Malt Co., 68 Ill. App. 104, defendant contended that interest was not allowable except as a penalty for vexatious and unreasonable delay, but the court held that “The question whether there was vexatious and unreasonable delay in the payment of the money need not be considered by us, as we hold interest can be recovered under the written contract. ’ ’

For the reasons stated the judgment of the circuit court is reversed, and since there is no dispute as to the facts and no useful purpose would be served by remanding the case, which was tried by the court without a jury, judgment is entered here in the sum of $68,530.29, together with interest thereon from the date of the demand for that sum by plaintiff in May 1938, at the rate of 5' per cent per annum.

Judgment reversed and judgment here.

Sullivan, P. J., and Scanlan, J., concur.


source: Caselaw Access Project

author: Mr. Justice Friend

license: Public Domain

text:
    Catherina Schneeman and Josepha Scheide, Appellees, v. Alfonse Schneeman, Appellant.
    Gen. No. 42,223.
    Opinion filed December 30, 1942.
    Ross, Berchem & Schwantes, of Chicago, for appellant.
    Milton J. Sabath, of Chicago, for appellees.
   Mr. Justice Friend

delivered the opinion of the court.

Defendant appeals from two orders of the superior court, one making his mother-in-law, Josepha Scheide (hereinafter referred to as petitioner), a party plaintiff in his wife’s suit for separate maintenance, and the other granting petitioner temporary custody of defendant’s child without a hearing.

A summary of events preceding the entry of these orders is necessary to an understanding of the issues involved. Alfonse and Catherina Sehneeman were married March 16, 1935 at Washington, D. C. They had one child, Brunhilda, born January 24, 1937. In June of that year the mother and minor child left the United States for Germany on a temporary visé, to visit her parents, and Mrs. Sehneeman has resided there ever since and throughout these proceedings as a German citizen. In February 1938 she wrote defendant that she had no intention of returning to this country, and later he received other letters informing him that she would never live with him again and requesting him to obtain a divorce. The following October Mrs. Sehneeman’s parents arrived in the United States for a visit with their two daughters and a son who lived in Chicago. They brought with them the minor child Brunhilda, and took up residence at the home of Marie Nelson, one of their daughters. The grandparents kept the child, but because of difficulties arising over defendant’s right to see and visit his child, he filed a petition for a writ of habeas corpus in November 1938 for the custody of Brunhilda. No judgment was ever entered in that proceeding, but for some reason not disclosed of record defendant dismissed his petition in March 1941, and has since then assumed custody of his child.

Later defendant filed a suit for divorce in the city court of Chicago Heights, and pursuant to service by publication obtained a decree -of divorce from his wife May 17, 1941. The following month he was served with summons in the pending separate maintenance proceeding, and he thereupon moved to dismiss the suit because of the divorce decree that had been entered in the city court of Chicago Heights. Because of plaintiff’s contention that the decree was invalid, the parties finally agreed that it be vacated and that the suit in Chicago Heights be dismissed. Following this order defendant filed his answer in the separate maintenance proceeding and also lodged a counterclaim for divorce, charging plaintiff with desertion on February 1, 1938.

On July 1, 1941 plaintiff’s counsel filed a petition in her behalf, asking that the grandparents be given custody of the child, alleging that plaintiff resided in G-ermany, where she had gone to visit her parents with defendant’s consent, and that by reason of his refusal to sign necessary documents, her return to the United States was made impossible; that she had permitted her parents to bring the child to this country, and some time after her arrival here defendant seized the child and has since retained custody thereof.

Defendant’s answer and counterclaim admitted the marriage, the birth of a child, and the departure of his wife for G-ermany on June 2, 1937, ostensibly for a visit with her parents, and averred that she had no intention of returning and remained there beyond the time limit specified in her visé, so that thereafter it was impossible for her to return to the United States; that notwithstanding her letters advising him of her refusal to again resume marital relations, he prepared affidavits necessary for -her re-entry to this country, took them to the immigration office, and while there and during the examination told the officials of the letters which his wife had sent him, whereupon the authorities told him not to file the affidavits; and that in a later communication his wife directed him to take no further steps toward procuring her re-entry permit; defendant admitted that his wife’s parents came to the United States on a visitor’s permit, and brought with them the child Brunhilda, admitted that they had custody of the child for a period of time, that he had filed a petition for a writ of habeas corpus, and subsequent to its dismissal assumed custody of the child; he averred that he was in a position to provide a home for the child and denied that he was not a fit custodian thereof; he denied that plaintiff had at all times been ready and willing to resume cohabitation and averred that resumption of their marital relations was rendered impossible by his wife’s conduct. By way of counterclaim he averred that his wife had wilfully deserted him on February 1, 1938 and by her letters indicated that she would never live with him again; that he has provided a good home for the child, where it is receiving proper support, care and maintenance.

No hearing was had or sought by plaintiff’s counsel on the foregoing petition and answer, but December 22, 1941 Josepha Scheide filed a petition on her own behalf alleging that she was Brunhilda’s grandmother, that she desired the child over the Christmas holidays, and prayed for her custody on December 23 and 24 and until the forenoon of December 25.

Defendant answered the petition, denying that she had the right to have the child for any period of time, averring that a state of war now exists between the United States and Germany, that he and the minor child are residents and citizens of the United States, but that his wife and Josepha Scheide are both citizens of Germany and alien enemies of the United States, the former actually residing in Germany and the latter being present in this country by sufferance of the immigration department on an extension of a visitor’s visé issued prior to the outbreak of hostilities in September 1939; that Josepha Scheide was not a party to the suit and had no standing in court; and that neither his wife nor Josepha Scheide, as alien enemies, had the right to maintain an action in our courts; that defendant had arranged for a Christmas tree, purchased presents for the child and made plans for spending Christmas eve and Christmas day with Brunhilda.

Upon presentation of the petition and without any request on the part of counsel who represented petitioner, the court of his own initiative employed the novel procedure of making the mother-in-law a party plaintiff in the separate maintenance suit by entering the following order: “On motion of the Honorable Court, Leave is hereby given Josepha Scheide to appear as additional plaintiff in this cause,” and by another order, simultaneously entered, he awarded temporary custody of the child to petitioner from December 25 until December 28.

Neither of the plaintiffs has filed briefs herein, but during the pendency of the cause their counsel moved for dismissal of the appeal on the ground that since the separate maintenance proceeding had not been heard or determined “These orders are quasi-interlocutory, ” and therefore not appealable. Obviously the order which made Josepha Scheide a party plaintiff was simply preliminary to the subsequent order which gave her partial or temporary custody of the child, and was therefore properly appealable along with the order for temporary custody that followed. There is ample authority for holding that an order for the custody of a child, even though partial and temporary, is an appealable order. Kulan v. Anderson, 300 Ill. App. 267; Jasper v. Tartar, 224 Ky. 834; Cormack v. Marshall, 211 Ill. 519; Gitsch v. Wight, 61 Utah 175, 211 Pac. 705. In Kulan v. Anderson, Mr. Justice Scanlan, speaking for the court and after reviewing the authorities, said that “the father, under the law of this State and the admitted facts-, had the right to the sole custody of the child, and the action of the trial court in ordering that the aunt have the custody of the child for a certain period of time on alternate week-ends was a material abridgment of that right.” Even though the case at bar was still pending on its merits, the entry of the order abridged the father’s right to the sole custody of his child, and would have subjected him to a charge of contempt if he did not comply with it. In that respect it was like an order for temporary alimony, which was held to be a final and appealable order in In re Estate of Bell, 210 Ill. App. 350. Moreover, the order was entered without a hearing as to the question of the father’s fitness, notwithstanding his denial of the charge that he was an unfit person. Under the circumstances we hold that both orders were appealable, and plaintiffs’ motion for dismissal of the appeal is therefore denied.

Since plaintiffs filed no brief on appeal we have no means of ascertaining what justification they would offer in support of the chancellor’s orders. Plaintiffs’ counsel, who appeared on oral argument of the cause, offered no suggestion, but stated that he relied on his motion to dismiss the appeal, and frankly admitted that if the motion were determined adversely to his clients he could offer no convincing reasons why the orders should be affirmed. During the colloquy which ensued between the court and counsel following the entry of these orders, the chancellor stressed the fact that the award of custody was only “temporary,” and he seemed to resent defendant’s notice of appeal from the court’s decision by fixing the bond at $2,000, which was tenfold in excess of any possible costs that could have been assessed against defendant if he had lost the appeal, with the admonition that “if you can enjoy such luxuries [as an appeal], I think a bond of $2,000 is just about right.” Obviously petitioner had no interest in the proceeding except the natural desire to obtain custody of her grandchild, but she was not entitled thereto as against the father, whose claim of fitness as a parent is unchallenged. (Kulan v. Anderson, 300 Ill. App. 267; Cormack v. Marshall, 211 Ill. 519.) If the court had desired to hear evidence as to defendant’s fitness he could have done so under plaintiff’s petition which was then pending. To make petitioner a party plaintiff was entirely unwarranted, and no valid reason or authority is suggested for so doing. The only reason advanced by the chancellor was that defendant could or should have arranged for the re-entry of his wife to the United States so as to enable her to assert her rights in person, notwithstanding the express' averments of the answer that she refused to come; and since she was not present, the chancellor was of opinion that petitioner therefore became a proper party plaintiff to defend the charges of defendant’s counterclaim as plaintiff’s “agent.”

Defendant’s objections to the chancellor’s awarding custody of the child to petitioner, temporary or otherwise, are contained in the statement which the court permitted him to make in the course of the proceeding, as set forth in the abstract. He told the court that plaintiff’s parents had been taking the child on Tuesday and Friday afternoons under an arrangement to which he consented; that the day preceding the hearing they had taken the child and not returned it; that the child’s mind had been poisoned against its father to such an extent that it swore at him in German, and called him “a dirty rat” and “a dirty skunk.” He complained that on occasions when he wanted to see the child he had been refused admittance to petitioner’s home, and that on one occasion when he brought medicine which the doctor had prescribed for the child, petitioner refused to open the door or receive the medicine; and he offered to produce numerous witnesses who would testify that they would not leave the child in petitioner’s custody “for one more minute,” because of her foreign ideology.

As an additional ground for reversal it is urged that since both plaintiff and petitioner, are German citizens, the former residing in Germany with an avowed intention of remaining there, and the latter present in the United States by sufferance of the federal government on an extended visitor’s visé, and therefore enemy aliens, neither of them has the right to prosecute a suit to obtain affirmative relief from our courts during the period of hostilities. Seymour v. Bailey, 66 Ill. 288, and Ex parte Colonna, 314 U. S. 510, 62 Sup. Ct. 373, decided in January 1942, are cited in support of this contention. We think it is a meritorious one.

For the reasons given, we are of opinion that the orders were erroneously entered and they are therefore reversed.

Orders reversed.

Sullivan, P. J., and Scanlan, J., concur.


author: Mr. Justice Scanlan

text:
    Chicago Trust Company, Trustee v. Dorchester Terrace Building Corporation et al. Marie Moss, Appellant, v. Trust Company of Chicago, Successor Trustee, et al., Respondents. Trust Company of Chicago, Successor Trustee, Appellee.
    Gen. No. 42,192.
    Opinion filed December 30, 1942.
    Rehearing denied January 20, 1943.

      Frederick J. Bertram, of Chicago, for appellant.
    Pritzker & Pritzker, of Chicago, for appellee; Stanford Clinton, of Chicago, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the , court.

This is an appeal by Marie Moss, a bondholder, in a foreclosure proceeding, from a final order dismissing her petition upon motion of The Trust Company of Chicago, as successor trustee.

The verified petition, filed on November 28, 1941, is as follows:

“Your petitioner, Marie Moss, respectfully represents unto the court, as follows:
“1. That she is the holder and owner of bonds of Dorchester Terrace Building Corporation, a corporation, secured by trust deed from said Dorchester Terrace Building Corporation, a corporation, to Chicago Trust Company, a corporation, as trustee, bearing date March 1, 1926, payable to the order of bearer or the registered owner thereof, and foreclosed upon herein, her said bonds being in amounts and numbered as follows:
“2. That a sale was held of the premises involved herein, pursuant to a decree of foreclosure entered herein on October 6, 1931, and that said sale was so held on September 17, 1940; that said sale was thereafter duly approved and confirmed by an order of this court entered in this cause; that the proceeds of said sale were insufficient to fully pay the court costs and prior lien of the trustee herein for its fees, costs, solicitor’s fees and expenses, as allowed in said decree of foreclosure, and that nothing was paid from the proceeds of said sale to the bondholders herein or to apply on account of any of the said bonds; that the fifteen month period of redemption from said Master’s sale expires on December 17,1941.
“3. That subsequently, on December 14,1940, a deficiency decree and judgment was entered in the above entitled cause against Dorchester Terrace Building Corporation, a corporation, in favor of The Trust Company of Chicago, as successor trustee, for the amount of $223,375.13, together with interest thereon at the rate of five per cent per annum from September 17,1940, for the use and benefit of the bondholders herein, according to their respective interests therein.
“4. That there is due and unpaid upon said bonds Nos. 56, 110 and 111 owned by your petitioner, for accrued interest pursuant to the decree of foreclosure in the above entitled cause, for the period from September 1, 1930 to September 17, 1940, the sum of $782.16, making the aggregate sum due your petitioner upon said bonds for principal and interest pursuant to said decree of foreclosure the sum of $2282.16 as of September 17, 1940, and that your petitioner is entitled to receive interest upon the said sum of $2282.16, part of said deficiency decree and judgment at the rate of five per cent per annum from and after September 17, 1940, pursuant to said decree.
“Tour petitioner therefore shows unto the court that, as owner and holder of said bonds Nos. 56, 110 and 111, she is part owner of said deficiency decree and judgment to the extent of the sum of $2282.16 plus interest thereon at the rate of five per cent per annum from September 17, 1940, the same amounting to 1.0216-plus per cent ($0.010216 + per dollar) part of said judgment.
“Wherefore, your petitioner prays that an order and decree may be entered herein that your petitioner is a part owner of said deficiency decree and judgment to the extent of $2282.16 plus interest thereon at the rate of five per cent per annum from September 17, 1940, the same amounting to 1.0216-plus per cent ($0.010216 + per dollar) part of said judgment; and that by virtue thereof your petitioner is entitled to have and recover of and from the said Dorchester Terrace Building Corporation, a corporation, the said sum of $2282.16 with interest thereon at the rate of five per cent per annum from September 17, 1940, with like effect as upon a judgment at law,, and further prays that she may have execution herein against said Dorchester Terrace Building Corporation, a corporation, for the said sum of $2282.16 with interest thereon at the rate of five per cent per annum from September 17, 1940, and that the same may be issued by the Clerk of the Court herein; that the Trust Company of Chicago, as successor trustee, execute an assignment to your petitioner of such part of such judgment; and that your petitioner may have such other and further relief in the premises as equity may require and to the court shall seem meet. ’ ’

The verified motion of The Trust Company of Chicago, as trustee, to dismiss the petition is as follows:

“The Trust Company of Chicago, a corporation, as Trustee, respectfully moves that the petition of Marie Moss for an order requiring it to assign to her a portion of the deficiency decree entered herein be dismissed as being substantially insufficient in law, and in support of said motion, says:
“ (1) No provisions of the bond, the trust deed or decree are set forth in the petition which would authorize this respondent to make such an assignment or would entitle the petitioner thereto.
“(2) It appears from said petition that such an assignment would be in conflict and inconsistent with the duty of this respondent as a fiduciary for all the bondholders.
“(3) It does not appear from said petition that this respondent has in any way failed or neglected to take every step necessary or reasonable for the enforcement of said deficiency decree.
“(4) It appears from said petition that the petitioner has been guilty of laches in requesting such an assignment and is now estopped from petitioning the Court for such relief.
“(5) It appears from said petition that this respondent has no legal authority or power to make such an assignment inasmuch as it appears from said petition that such an assignment would constitute a preference or a discrimination in favor of one bondholder as against all the other bondholders for whose benefit this respondent is acting.
“Wherefore, the Trust Company of Chicago, a corporation, as Trustee, respectfully moves that the petition of Marie Moss be dismissed.”

The Bondholders’ Protective Committee filed an answer to the petition and the petitioner, appellant, filed a reply to that answer.

Appellant, in her brief, has seen fit to refer to allegations in the Bondholders’ Protective Committee’s answer to her petition and to allegations contained in her reply to the same. The sole question before us is the sufficiency of her petition.

Appellant states her theory of the case as follows:

“Petitioner was the owner and holder of original bonds which were represented and included in a deficiency decree rendered in this cause. The foreclosure sale produced no dividend for any of the bondholders, the amount realized being insufficient to pay trustee’s fees and solicitor’s fees. The trustee and the so-called Bondholders’ Protective Committee admittedly had no intention or plans either to make redemption from the foreclosure sale or to take any steps to make collection upon the deficiency decree in the sum of $223,375.15.
“Before the expiration of the period of redemption from the foreclosure sale of the real estate securing said bonds, the petitioner filed her petition.
“Petitioner, in her petition, showed that she was the beneficial owner of a 1.0216 + per cent interest in the deficiency decree, which interest amounted to the sum of $2282.16. Petitioner asked that the court make a finding that she was a part owner of the deficiency decree to the extent of this amount and that the court direct the respondent trustee to execute an assignment to her of her proportionate part of the deficiency judgment, and that she might have an execution issued in the case by the clerk of the court, so that she might be qualified and entitled under the law to mahe redemption in her own behalf and with her own funds from the foreclosure sale of the property in question (which had been sold for the meager sum of $2450.00); and that she might be enabled to pursue her own remedies for the collection of her part of the indebtedness represented in the deficiency decree.
“It is the theory of the plaintiff that she was entitled to the relief prayed in her petition, and that her petition was sufficient in law and in equity to entitle her to the relief, or some part of it, as prayed in her petition.” (Italics ours.)

Appellee states that the petition does not state a cause for equitable relief for the following reasons:

“I.
“A. Petitioner did not offer to do equity, but desired to obtain a selfish advantage which would not be shared in by the owners of 98+% of the bonds.
“Bondholders are cestuis and are in a fiduciary relation to each other, and one may not obtain for himself a special advantage.
“B. Before petitioner may obtain relief, she must show that she has a legal right to the relief prayed.
“0. Even after foreclosure, the trust deed remains in force as a contract between the trustee and the bondholders, by which they are bound. There is no provision in the trust deed under which petitioner might claim the relief prayed.
“D. Petitioner has failed to show that the trustee has neglected to • take every step necessary or reasonable for the enforcement of the deficiency decree.
“E. The trustee may not give petitioner an assignment of part of the deficiency decree judgment, because the trustee is under a duty to deal impartially with all bondholders, and may not use its office to enable one bondholder to obtain a special advantage.
“F. The trustee may not perform any act beyond the scope of the powers granted it in the trust deed. There is no provision in the trust deed empowering the trustee to execute an assignment of part of the deficiency decree judgment.
“Gr. Petitioner says that she could have obtained a judgment at law on her bonds before the entry of the deficiency decree. A court of equity will not lend its aid to a party who had a remedy at law, but neglected to pursue it.
“II.
“A judgment cannot be divided and enforced piecemeal. A separate execution cannot be issued for a part of a judgment.
“The legal title to a deficiency decree judgment is in the trustee who is the only one who can collect and satisfy it.
“III.
“The court did not retain jurisdiction to consider the splitting of the judgment.”

Appellant states that “there is no decision in this State which is decisive of the question presented in the case,” but argues that “where a new case arises out of the ordinary beaten track of equity, equity will not hesitate to give the proper specific relief merely because there is no precedent established.” Appellant further states that “the nearest case that we have been able to find to the general situation presented by the case at bar is the case of Nudelmcm v. Carlson, 375 Ill. 577”; that “the Supreme Court there inferred that the foreclosure court had power to enter an order of court severing the bondholders’ fractional part of the deficiency decree from the remainder held by the trustee and that such order of severance would support a redemption by the bondholder.” The question before us was not involved in the Nudehnan case, which involved a contest between judgment creditors of Floyd W. Sullivan, the judgment debtor, regarding redemption rights. To quote from the opinion of the Supreme Court (pp. 578, 579, 580, 581):

“April 8, 1930, Floyd W. Sullivan was the owner of certain real estate located in Chicago. On that date, he executed instruments creating three mortgage or trust deed liens to secure the payment of certain indebtedness. The priority of the liens was established as first, second and third. May 10, 1930, Sullivan conveyed the premises subject to the mortgage liens to Georgia W. Bibb and has never reacquired the title. In 1932, the third mortgage lien was extinguished by a foreclosure of the second mortgage. Appellant’s assignor owned the third mortgage and was made a party to the foreclosure of the second. He filed an answer and set up his mortgage indebtedness. The decree of foreclosure fixed the amount due on the third mortgage and directed that any surplus remaining after the payment of the second mortgage should be paid on the third. Nothing was received on the third mortgage and no deficiency judgment was taken in the foreclosure proceeding.
“September 9’ 1936, a decree of foreclosure was entered foreclosing the first trust deed and directing a sale of the premises. October 26, 1937, the property sold for $28,000 and a deficiency judgment of more than $90,000 was entered against Floyd W. Sullivan. The deficiency judgment was entered in the name of a trustee for the benefit of all the holders of the bonds secured by the trust deed. Appellees Joseph Z. Willner and Harry A. Biossat, acting through appellee Bay E. Carlson, acquired certain interests and became beneficially interested in the deficiency judgment. They obtained an order of court severing their fractional part of the deficiency judgment from the remainder held by the trustee. This was followed by an attempted assignment by the trustee to appellees of the part of the judgment so set off to them. There being some irregularity in the assignment, appellees obtained a note from Floyd W. Sullivan for the amount of their judgment. They gave him to understand that they expected to put the note in judgment and use it for redemption from the foreclosure sale. They agreed they would not undertake to collect on the deficiency decree. October 25, 1938, the note was placed in judgment in the superior court of Cook county and the amount thereof was the same as appellees’ deficiency judgment, with interest. After the expiration of the twelve-months’ redemption period from the foreclosure sale, appellees effected a redemption from the sale, using the superior court judgment as a basis. A deed was issued to appellee Carlson, but it is conceded that appellees Willner and Biossat are the real parties in interest.
“December 12, 1938, appellant, as assignee of the holder of the indebtedness secured by the third mortgage, obtained a judgment in the municipal court of Chicago and caused an execution to be issued thereon. She first attempted to cause a levy to be made on the premises and to effect a redemption from the mortgage foreclosure sale, thereby ignoring the redemption which had previously been made by appellees and the sheriff’s deed which they had received and which was then a matter of record. Later, appellant filed the instant suit seeking to vacate the redemption made by appellees and to set aside the sheriff’s deed as being void. After the taking of evidence the court dismissed appellant’s complaint for want of equity. This appeal is from that decree.
“The question presented is as to the validity of appellees’ redemption. Appellant contends that since the judgment upon which appellees redeemed was for part of the same indebtedness evidenced by the deficiency judgment, appellees are, in effect, deficiency judgment creditors, and that, under the law, a deficiency judgment creditor cam not redeem from his own foreclosure sale where the judgment debtor is out of title of the premises which is the subject of redemption. Appellees’ contention is that a deficiency judgment creditor is a judgment creditor within the meaning of section 20 of the Judgments act (Ill. Rev. Stat. 1939, chap. 77, par. 20) and has a right of redemption the same as any other judgment creditor and that such right exists even though the judgment debtor is out of title. Appellees say that if it should be determined their redemption was invalid, then appellant has no rig'ht of redemption, for her judgment is the unpaid balance of the third mortgage lien and that appellant’s judgment is the same as that of a deficiency judgment creditor, and that if appellees have no right of redemption where the judgment debtor is out of title, then appellant has no right of redemption for the same reason.” (Italics ours.)

The Supreme Court held that the creditor who redeemed (Carlson) was a judgment creditor on the basis of his note and had a right to redeem, even though the judgment debtor had disposed of his title before the judgment was rendered. The redemption by Carlson was not made under the fractional deficiency decree and the court was not called upon to determine the propriety of the order of the trial court severing Carlson’s fractional part of the deficiency judgment from the remainder held by the trustee.

In our judgment appellee has assigned sound reasons why the petition does not state a case for equitable relief. Appellant, whose interest in the deficiency judgment is 1.0216 per cent, does not seek to redeem for the benefit of all of the bondholders but desires to redeem solely for her own benefit. She makes no claim that prior to the time that she filed her petition she made any demand on the trustee that it effect a redemption, nor does she ask in her petition that the court direct the trustee to use the funds in its possession to redeem for the benefit of all of the bondholders. Nineteen days before the expiration of the period of redemption she appears in court and asks for an assignment of a share of the deficiency judgment and for a judgment in her favor and that execution issue upon.that judgment, so that she may redeem “with her own funds from the foreclosure sale of the property.” As appellee argues: “Had petitioner desired to obtain benefits for all of the bondholders instead of for herself alone, she would have suggested to the trustee a course of action for it to pursue. If the trustee refused, she should have filed a petition advising the court that certain things could be done to enforce the deficiency decree either by way of collection or redemption for the benefit of all the bondholders, and should have asked for the entry of an order directing the trustee to take the necessary steps for the benefit of all the bondholders. That, we repeat, would not and does not suit the purpose of the petitioner, whose only interest in this suit is to obtain a selfish advantage for her own benefit and not for the benefit of all the bondholders.” If appellant is entitled to the relief she asks in her petition, then each of the other bondholders is entitled to like relief, and if such a procedure were followed a new and intolerable situation would be presented in foreclosure proceedings like the instant one. The legal title to a deficiency decree judgment is in the trustee, who is the only one who can collect and satisfy it (Chicago Trust Co. v. Rogers Park Apts., 375 Ill. 599, 610), and if the instant trustee was not performing its full duty in the premises, appellant, by an apt petition, could call that fact to the attention of the trial court and thereby obtain relief for the benefit of all of the bondholders.

The trial court, in our opinion, properly dismissed appellant’s petition, and the judgment order of the Superior court of Cook county entered on December 8, 1941, is affirmed.

Judgment order entered December 8, 1941, affirmed.

Sullivan, P. J., and Friend, J., concur.


author: Mr. Presiding Justice Burke

text:
    Z. W. Lepkowski, Appellant, v. B. Laukemper, Appellee.
    Gen. No. 42,183.

      Opinion filed January 6, 1943.
    Smietanka, Conlon & Nowak, of Chicago, for appellant; George H. Morton, of Chicago, of counsel.
    John Taylor Booz, of Chicago, for appellee.
   Mr. Presiding Justice Burke

delivered the opinion of the court.

A complaint filed in the circuit court of Cook county on May 25, 1940 by Zigmund W. Lepkowski against Bernard Laukemper alleges that plaintiff was engaged for many years in the business of florist, horticulturist and landscape gardener on the northwest corner of LeMoyne Street and Oakley Boulevard, Chicago; that in carrying on his business he leased a tract of land from defendant and maintained thereon certain green and store houses, conservatories and gardens for the purpose of propagating, growing, housing and the sale of seeds, plants, bulbs, flowers and other verdure; that he accumulated on the premises numbers and quantities of such products ready for sale in the market; that while he was the legal owner and in rightful possession of said articles together with certain other fixtures and personalty located on said land, and in the act of removing the same from said tract on or about May 18,1940, and while the defendant disclaimed any right of property in the personalty and fixtures, the defendant mounted an elevation upon the land or in close proximity thereof and harangued passers-by and thereby unlawfully assembled a mob of people, and with the evil and malicious intent to do harm and damage to the plaintiff and plaintiff’s possessions aforesaid, in a loud and commanding voice incited the assemblage to destroy and carry away the property of the plaintiff, and being so incited the mob did carry away, destroy or demolish the same or a greater portion thereof; that although plaintiff exercised every precaution that a reasonably prudent person should under the circumstances for protection of his property, due to the conduct and malicious and mischievous actions of the defendant, the plaintiff was overwhelmed and defeated in his purpose. Plaintiff asked judgment in the sum of $5,000. Defendant answered, denying that plaintiff leased a tract of land from him; asserted that he (defendant) never had title to the property and therefore could not lease the premises to the plaintiff; denied that plaintiff was the legal owner and in rightful possession of the articles, fixtures and personalty located on the land; denied that he (defendant) made any statement disclaiming any right or property in the personalty and fixtures; denied that he mounted an elevation upon the land or in close proximity, or that he assembled a mob or any number of people, or that he had any evil or malicious intent to do any harm or any damage to plaintiff or plaintiff’s possessions; denied that in a loud and commanding voice he incited the assemblage, or any person or persons, to destroy or carry away the property of plaintiff; denied that any person or persons did carry away, destroy or demolish the property of plaintiff, or any part thereof. Further answering, defendant said that if any personalty or fixtures were removed, such removal was done by the bailiff of the municipal court of Chicago pursuant to a writ of restitution issued by the clerk of the municipal court and delivered to the bailiff of that court on or about May 15, 1940. Defendant denied that plaintiff exercised any precaution whatever in the protection of his said property and denied that he, defendant, was guilty of any conduct or of any malicious or mischievous actions which overwhelmed or defeated the plaintiff; and denied that plaintiff was injured or damaged in the manner or to the extent alleged, or that plaintiff, by reason of any action or conduct or intent of the defendant, sustained any damages. A trial before the court and a jury resulted in a verdict finding the defendant guilty, and assessing plaintiff’s damages in the sum of $4,500. The jury also returned a special finding, reading: “We the jury find from the evidence that the defendant was guilty of wilful and wanton conduct in committing the acts which caused the damage as alleged and that malice is the gist of the action.” Motions by the defendant for a directed verdict and for judgment notwithstanding the verdict, were overruled. Defendant’s written motion for a new trial was sustained. We allowed plaintiff’s petition for leave to appeal from this order.

The real estate involved in this law suit is located at the northwest corner of LeMoyne Street and Oakley Boulevard, also known as 1500-08 N. Oakley Boulevard, Chicago, and is owned by the Catholic Bishop of Chicago, a corporation sole. The defendant, Bernard Laukemper, has been the pastor of St. Aloysius Catholic Church since January 1932. His predecessor was Father Thiele. Defendant resides at 2342 LeMoyne Street. St. Aloysius Church is located at the corner of LeMoyne Street and Claremont Avenue. Claremont Avenue and Oakley Boulevard are north and south streets, Claremont Avenue being one block west of Oakley Boulevard. The record shows that in the management and rental of the real estate the defendant was acting as the agent of the Catholic Bishop of Chicago, a corporation sole. Plaintiff first became a tenant in 1928, while Father Thiele was pastor. At that time there was a small store building on the corner and greenhouses in immediate proximity. There was evidence that in 1932 the plaintiff or his wife, or both, expended $1,200 in remodeling and improving the store, and that between the years 1930 and 1932 plaintiff or his wife, or both, expended $3,000 remodeling existing greenhouses and building a new one. The greenhouses rested on heavy planking and were not affixed to the ground. After the defendant became pastor of the church, plaintiff paid to him as rent $105 every three months. In the spring of 1940 the premises were occupied by three greenhouses, a store and a combination garage-boiler room. In October 1939 Father Laukemper filed an action in forcible detainer and for rent against plaintiff, asking judgment for possession and for the accrued rent. On 'October 25, 1939 plaintiff and defendant executed a sealed instrument in which Father Laukemper is described as the “agent of the Catholic Bishop of Chicago so far as management, rental, termination of rental, etc. of the above described real estate.” This agreement recited the pendency of the action in the municipal court, and stated:

“That the tenancy of Z. W. Lepkowski of the premises above described shall terminate on March 31,1940, and that the rental from this date to March 31, 1940 shall be calculated on the basis of $105.00 a quarter, payable in advance, which B. Laukemper agrees to accept and Z. W. Lepkowski undertakes to pay. That a judgment for possession of said premises shall be entered by agreement in the pending Municipal Court action with execution on said judgment to be stayed until March 31, 1940, provided that the rent when due is paid promptly. That Z. W. Lepkowski shall remove from the premises on or before March 31, 1940, all of the buildings, sheds, chimneys, equipment, growing-stock and other things thereon situated, and shall on said date turn over to B. Laukemper possession of said tract of land free and clear of any buildings, sheds, chimneys, equipment, growing stock and other thing’s thereon situated, so that B. Laukemper shall not be put to any expense in removing the same after the termination of the tenancy herein. ’ ’

Judgment for possession was entered in the municipal court and the writ of restitution was stayed until March 31, 1940. Plaintiff did not vacate the premises on March 31, 1940. There was evidence that with the consent of the defendant, plaintiff was permitted to remain on the premises. The parties had more than one conversation on a proposition submitted by defendant to plaintiff relative to the leasing by plaintiff of another tract of land owned or controlled by the defendant and located in the same neighborhood. On May 15, 1940 the defendant, who was the plaintiff in the forcible detainer case in the municipal court, directed that the writ of restitution be served. Anthony Contursi, a deputy bailiff of the municipal court went to the premises at 9:30 a. m. on Saturday, May 18, 1940. He showed the writ of restitution to Lepkowski and his wife and informed them of the purpose of his visit. He then proceeded to execute the writ. Defendant maintains that the testimony of plaintiff does not show that plaintiff was the owner of or entitled to possession of the buildings, sheds and other equipment. In view of the agreement of October 25, 1939, and the fact that the wife of plaintiff who testified for him is not claiming ownership, we are of the opinion that there was competent evidence to warrant the jury in finding that on May 18, 1940 plaintiff was the owner of and entitled to the possession of the buildings, sheds, equipment, flowers, plants, bulbs, etc.

Prior to May 18, 1940 plaintiff had commenced to remove the greenhouses, plants, etc., from the premises. At the time the deputy bailiff arrived there was still standing on the land one-half of the greenhouse that had been built in 1930, the dimensions of which were approximately 34 by 45 feet. This greenhouse was set on heavy blocks with boards on the side, and the remainder was glassed in. Plaintiff testified that after the deputy bailiff arrived, a crowd of from 200 to 400 people gathered; that defendant was standing in the alley smoking a cigar; that defendant talked to the people but that witness did not hear what he said; that the people picked up “everything from the yard by the greenhouse and flowers and whatever they had they took it right away, all the wood, rafters and so on”; that he called the police, who came and talked to defendant; that the police then told the witness that everything belonged to him (meaning defendant) ; that the police then left; that then two employees of defendant came and with two by fours began to demolish the greenhouse. William J. Wall, called by plaintiff, testified as to the damage and the value of the property which plaintiff claims was removed. Walter J. Bieger, called by plaintiff, testified that he was a real estate broker; that he was near the premises between 10:30 and 11 o’clock on May 18, 1940; that he saw from 100 to 150 people there, “possibly more”; that there was “some commotion”; that he saw boys coming out and taking flowers from the sidewalk “next to his hothouse there”; that he remained about an hour; that he saw boys, men and women taking flowers from the sidewalk and carrying them away; that there were men knocking the walls from the side of the hothouse; that he did not see Father Laukemper there, and that the greenhouse was in good condition the last time he saw it prior to May 18, 1940. Alex Byear, called by plaintiff, testified that he visited the premises about noon on May 18, 1940; that there were about 300 men, women and children; that they were wrecking the building; that he saw a priest but could not say he was the defendant; that the priest was talking to the people that were wrecking the building, after which the people stopped for about ten or fifteen minutes; that they then “went at it again”; that the people “went through it just like a cyclone”; and that in ten minutes there was not a glass in the building. The witness was asked as to how many people he talked to. Evidently, the interrogator meant how many people the priest talked to. The answer was that “he must have had a dozen people there. I didn’t pay much attention. I was working, but there was a bunch around and anyway when he walked away later they went to it. There was not a glass in the building in ten minutes.” He further testified that he did not see the priest after the people came back. Henry Radcliffe, called by the plaintiff, testified that he arrived at the scene at 11:45 a. m.; that they were sent to take out the pipes and a boiler; that 300 or more people were around there; that they were taking flowers and breaking windows; that some were pulling the boards away and others were carrying the wood away; that “as we worked there we were in very much danger; that he saw the defendant, who was in the back end, in the alley near the boiler room; that the defendant was not there when witness first arrived; that he [defendant] came in later around when the kids was so bad until he called some of the kids away and he spoke to the kids but mostly the ones that was breaking the glass and there was another young fellow. He was talking to them also, so he leave, about fifteen, twenty minutes, maybe a little longer, I would not be exactly sure, and they started all over again but the people who was taking the flowers they didn’t stop.” In response to a question as to whether the witness knew what defendant said to the people, he answered, “No, I don’t know what he said to the kids there.” Philomena Lepkowski, wife of plaintiff, testified that she worked in the florist shop; that she had been to the market and returned about 10 a. m.; that “they started to wreck already, the children and everything.” She further testified that there were from 100. to 150 people there, and that she saw the defendant who said to the people: ‘ ‘ Crab it, take it, everything, everything belong to me.” Witness further testified that defendant was smoking a cigar and laughing and said: “I did not have so much fun like I have today.” Abraham Byear, called by plaintiff, testified that he purchased from plaintiff the boiler, pipes and fittings that were on the premises, and that he and his men went there to remove these chattels. Asked as to whether he observed anything when he arrived, he answered: “Well, to tell you the truth you were in danger over there. ’ ’ He testified that he saw from 150 to 200 “kids” and a few grown-ups; that the children with long poles were knocking the glass out of the greenhouse; that witness’s men were on the inside and did not want to work for fear of being cut; that he saw defendant; that he did not observe him talking to anyone; that he did not hear him say anything; that he observed him talking to somebody but did not listen to what was said; that defendant was talking to four or five people; and that defendant did not break any glass. In answer to the question: “What did you see the defendant do?”, witness answered: “Just going through the "alley, and never said anything to those kids or the people over there stealing and taking stuff, never said anything but just smoked a good cigar, going through the alley.” Bronis Kolikowski, called by plaintiff, testified that she was at Oakley and LeMoyne at 9:30 a. m.; that about 10 o’clock she observed the defendant standing in the alley; that he was smoking a cigar and laughing; that she saw about 80 children; that the children yelled, “All ready,” and they started to break the glass; that defendant was there in the afternoon; that he talked to the people; that after he talked to the children, “they take everything and broke it.” Anthony Contursi, the deputy bailiff, called by defendant, testified that he arrived about 9 or 9:30 a. m.; that he proceeded to execute the writ of restitution; that he and his men remained there until about 2:30 p. m.; that they proceeded to remove the plants and flowers; that he saw the defendant there; that the defendant did not come near the flower shop; that the witness and his men put the plants and flowers on the sidewalk, near the street. In answer to the question: “Did you protect this man’s property?”, this witness answered: “I couldn’t protect the property. They were taking-care of it. He was there to take care of it. ’ ’

Defendant, called in his own behalf, testified that on May 18, 1940 he saw the deputy bailiff and his assistants ; that he tried his best to keep the youngsters from getting hurt; that his presence on the scene was to avoid danger there; and that he told the people they could have the wood for firewood. He denied that he assembled a mob in the neig'hborhood of the florist shop, or that he encouraged anyone to take any property that belonged to the plaintiff. He further testified that he inquired of a number of people he saw with plants as to how they acquired them; and that he did not have anything to do with the plants that were on the sidewalk or parkway. On cross-examination, he testified that he tried to hold the children back by talking to them; that two athletic coaches were there who were not employed by defendant; that these men also helped to stop the children. Witness also testified that “as fast as the bailiff was through removing the things, we were taking the place down, because it was our property”; that he was on the grounds off and on during the day and that his main concern was to see that no one was injured. John A. Shell, called by defendant, testified that he was the janitor for St. Aloysius Parish; that he saw Father Laukemper about fifteen minutes while he (witness) was near the premises;' that he did not hear Father Laukemper urge anyone to take or remove any property ; that on the contrary Father Laukemper told the children not to throw any stones, to be careful not to hurt anyone and to keep away from the buildings. Witness further testified that he did not do anything until “they had removed all the pipe from the greenhouse”; that he spoke to Father Laukemper about the danger of the glass that was intact on the Oakley Avenue greenhouse; that he advised Father Laukemper to have the glass removed so that the children would not get hurt; that the witness then wrecked the glass. John Slecter, called by plaintiff in rebuttal, testified that he was a police officer for the City of Chicago; that on May 18, 1940 he answered a call to Oakley Boulevard and LeMoyne Street; that there was quite a crowd of children engaged in carrying out lumber and debris; that the children were engaged in carrying off “material and wooden stuff out in back of the building, and there were some parts of it that were dangerous and we wanted them to stay away from that.” Witness further testified that he believed “we talked to the priest, to try to get him to get the children away from there”; and that the children then stopped.

The trial judge announced that the reason he was granting a new trial was because of errors committed in instructing the jury, the submission of a special finding in the manner in which it was submitted, and because of the lack of more positive and affirmative evidence as to the acts committed. A court of review will not interfere with an order granting a new trial based on disputes as to the facts, unless the record shows a clear abuse of discretion. (Parke v. Lopez, 306 Ill. App. 486; Ledferd v. Reardon, 303 Ill. App. 300; Couch v. Southern Ry. Co., 294 Ill. App. 490.) However, the correctness of a ruling on a question of law will be determined on appeal, independently of the judgment of the trial court. (5 C. J. S., sec. 1620; Randall v. Randall, 281 Ill. App. 169.)

It is evident that the trial court judge felt that the evidence did not support the verdict, because he suggested that the plaintiff “get some more positive and affirmative evidence as to the acts committed. ’ ’ Plaintiff’s case, as disclosed by his complaint, is that the defendant mounted an elevation and harangued passers-by and thereby unlawfully assembled a mob, and that in so doing, defendant was actuated by the evil and malicious intent to do harm and damage to the plaintiff and to his possessions, and that defendant, in a loud and commanding voice incited the assemblage to destroy and carry away the property of the plaintiff, and that being so incited the mob did carry away and destroy a great portion of the property of plaintiff. It is evidence that the jurors believed this charge, for they found the defendant guilty, and also found him guilty of wilful and wanton conduct and that malice was the gist of the action. It is clear that the verdict and finding are contrary to the manifest weight of the evidence. There was competent evidence that the defendant talked to the children in an effort to have them desist from a continuance of the damage they were doing, and some of plaintiff’s witnesses lend support to this evidence. The children heeded the request for a period of ten or fifteen minutes. The defendant left the scene, after which the children resumed breaking the glass and removing plants, flowers and other articles. Defendant testified that he was afraid the children would be injured. Two of the workmen who were engaged in removing certain pipes sold to their employer by plaintiff, testified that they were in danger of being cut by the glass. We are satisfied that the court exercised a wise discretion in granting a new trial.

We are of the opinion that it was error to instruct the jury that they could find that malice was the gist of the action. The evidence was not sufficient to show that defendant was actuated by malice, nor was malice the gist of the action. Because of these views, the order of the circuit court of Cook county is affirmed.

Order affirmed.

Hebel and Kiley, JJ., concur.