author: Mr. Justice Gridley

text:
    Henry D. Laughlin, Appellee, v. John Irwin and First Union Trust & Savings Bank, Executors under the Last Will and Testament of Alexander Irwin, Deceased, Appellants.
    Gen. No. 34,631.

      Opinion filed May 19, 1931.
    Sims, Godman, Stransky & Brewer, for appellants; Elwood G. Godman and Otto W. Berg, of counsel.
    Winston, Strawn & Shaw, for appellee; Edward. W. Everett and George T. Evans, of counsel.
   Mr. Justice Gridley

delivered the opinion of the court.

On December 22, 1926, Laughlin filed a bill in the circuit court against Alexander Irwin, seeking to have confirmed in him (Laughlin) the title to 800 shares of stock of the Northern Hotel Co., an Illinois corporation, and praying for an accounting, etc. Irwin filed an answer. On February 7,1927, Laughlin filed a supplemental bill, containing additional allegations and making the Northern Hotel Co., Charles B. Holden and two other individuals additional parties defendant. After all defendants had filed answers the cause was referred to a master, before whom much oral and documentary evidence was introduced. During the hearing before the master Irwin filed an amended answer to both bills. After the taking of testimony had been completed, Irwin’s death was on March 5, 1929, suggested, and the above named executors were substituted as defendants in his stead. The bill is based upon the provisions of eight written contracts signed by Laughlin and Irwin. The first is dated January 14, 1909, the last on November 22, 1923, and the others on various intervening dates. For many years Laughlin and Irwin had been friends, both had been large "stockholders in the Northern Hotel Co., both had been officers and directors thereof, and both had been closely associated in the management of the Great Northern Hotel, at Jackson and Dearborn Streets, Chicago, which was the hotel property operated by the corporation. From the eight contracts it appears that Irwin from time to time had loaned to Laughlin the aggregate sum of $80,000, that Laughlin had transferred to Irwin as security a total of 800 shares of the stock of the Northern Hotel Co. of the par value of $100 a share, and that Irwin was to receive the dividends on the stock in lieu of interest. The total amount of dividends which he received on the stock between 1909 and 1926 was $87,850. One of the issues was whether or not these contracts were pledge contracts. Both the master and the court found that they were such and not contracts of sale, and this finding is not here contested by Irwin’s executors. Another issue was whether the contracts were “usurious.” The master found that they were, but the court upon exceptions adjudged that they were not. Still another issue was whether Irwin was entitled, as claimed, to the sum of $30,000, by reason of a certain promise made by Laughlin whereby he and Irwin were to divide equally certain profits from the sale of the 800 shares of stock, above the par value. Both the master and the court found against Irwin’s executors on that issue. In the decree, entered April 28, 1930, the court adjudged in part substantially as follows:

That the 800 shares of stock are the property of Laughlin and he is entitled to possession of the certificates therefor, free and clear of all claims on the part of Irwin’s legal representatives; that Laughlin is entitled to receive since August 12,1926 all dividends on said shares and to be paid all moneys distributed upon the same since said date and to receive all benefits flowing to him as owner.

That Laughlin is not entitled to be reimbursed or' to be paid back any part of the $87,850, received in divi- , dends by Irwin in lieu of interest on said loans, aggregating $80,000, “on the ground that such payments constituted payments of usury,” notwithstanding that the proof shows that Laughlin has offered to allow defendants to retain, out of the moneys in their hands belonging to him, a sum equal to 7 per cent on said respective loans, from the time the same were made down to the date of the payment to Irwin of the amount of the aggregate principal of said loans; and that Laughlin is not entitled to receive from defendants any amount claimed by him to have been paid to Irwin as usury on the loans covered by said pledge contracts, and is not entitled to recover the difference between said $87,850 and the amount of legal interest on said loans computed on the basis of 7 per cent.

That on August 10, 1926, when Charles R. Holden, agent for the stockholders of the Northern Hotel Co., paid to Irwin a total of $140,000, representing the partial distribution of the portion of the purchase price of said Northern Hotel Co., to which said 800 shares were then entitled, the said principal sum of $80,000 representing the aggregate amount of -the loans for which said stock was pledged, “was voluntarily paid”; that the interest on said sum of $80,000 “was voluntarily paid” by the dividends received by Irwin in his lifetime from the Northern Hotel Co., in lieu of interest, in the aggregate sum of $87,850, and that said loans, both as to principal and interest thereon, by such payment “have been fully discharged and complainant ever since said date became and now is entitled to have returned to him the certificates of said pledged stock or to receive such other certificates as have been or may be issued in lieu thereof. ’ ’

That Irwin’s said executors pay to Laughlin the sum of $40,473.80, and the additional sum of $6,773.73 (being interest on said first mentioned sum at the rate of 5 per cent per annum from the date of the filing of the bill to the date of entry of this decree), “making the aggregate amount due complainant from said defendants $47,247.53.”

That Irwin “has not satisfactorily established any binding, legal obligation, verbal or otherwise, and no such obligation exists under which or by reason of which the complainant, Laughlin, is or should be required or obligated to divide with the defendant, Irwin, or his legal representatives, the gains, profits, or earnings on said 800 shares of stock of said Northern Hotel Co. over par, resulting from the sale of the properties of said Northern Hotel Co. on April 26, 1926.”

And the court further adjudged and decreed that Laughlin have judgment against Irwin’s said executors for said two sums, $40,473.80 and $6,773.73, and that one-half of the taxable costs be assessed against Irwin’s executors and one-half against Laughlin.

From the decree both Irwin’s executors and Laughlin prayed separate appeals, which were perfected in the circuit court. The transcript of the record was filed in this court by Irwin’s executors and on the record Laug'hlin has assigned cross errors to the effect that the circuit court erred in denying to him the recovery back of the claimed usurious payments made under the eight contracts. His counsel here ask that the decree “be affirmed to the extent that it awards complainant a recovery in the amount of $47,247.53, and that it be reversed to the extent that complainant is denied any share in the amount of $87,850, received as dividends, but in fact as interest and in violation of the law of Illinois denouncing usurious payments, and remanded with directions to the circuit court to proceed with an accounting in regard thereto. ’ ’ And they state in their brief that the dividends of $87,850, received by Irwin, are “in excess of the highest legal rate of interest on the loans made to complainant” by the sum of $30,800. The main contention of counsel for Irwin’s executors is that the court erred in holding that Laughlin was not legally obligated to divide equally with Irwin the gains or profits over par on the 800 shares of stock, arising from the sale of the hotel property. And counsel argue that Laughlin’s promise, that such division would be made, is supported by good and sufficient considerations, and, further, that Laughlin is estopped by his conduct to contend to the contrary. The evidence discloses that one-half of these gains or profits over par amounts to $30,000.

The evidence further discloses the following: Laughlin was an experienced lawyer. He had practiced his profession in St. Louis, Missouri, for about 25 years, and had there served as a judge of the circuit court for several years. Subsequently he moved to Chicago, ceased to practice his profession and engaged in various business enterprises. The eight contracts herein involved were all prepared and dictated by him. When the first contract, dated January 14, 1909, was presented to Irwin for signature, and he suggested that his lawyer should first pass upon the provisions of the contract for him, Laughlin replied that he was a lawyer and would not draft a contract that was not all right and that the proposed contract was a fair one for both parties, etc. At this time Laughlin was a director and president of the hotel company and the dominating head in the management of its affairs. Irwin also was a- director, and in May, 1915, on Laughlin’s motion, became vice president. Both were large stockholders, and then and thereafter they and one Maguer held the stock control of the company. Laughlin held the position of president and was said dominating head from 1909 until April, 1926, when the hotel property was sold. During this period, however, Laughlin did not himself own a majority of the stock, and on numerous occasions Irwin rendered financial aid to Laughlin by loans of money, etc. In 1917, it became necessary for Laughlin to procure an appeal bond for $60,000 in a ease in which he was the unsuccessful litigant, and, at his request, Irwin and his brother (James C.) signed the bond as sureties and filed a property schedule. Irwin testified that, at the time Laughlin made said request and was asked what he (Irwin) would get for signing the bond, Laughlin replied: “You have some stock of mine that is standing in your name; I will agree to give you half of what this stock will sell for over par for your part in this bond”; that the par was $100 a share; and that the arrangement was that whatever that stock sold for over that par “we would split fifty-fifty,” when the hotel property was sold. In 1918, after said appeal case had been decided against Laughlin and it became necessary for him to pay about $109,000 and to borrow the money for such payment, Irwin and his brother guaranteed Laughlin’s note for that amount which was delivered to the Union Trust Company bank, Chicago. In May, 1921, Laughlin, needing money, borrowed from Irwin the sum of $5,195.69, and gave his demand note therefor, payable to Irwin. In January, 1925, Laughlin needed $13,000 to buy 130 shares of the stock of the company from John Irwin, a nephew of Irwin, and, at Laughlin’s request, Irwin again came to his financial aid and loaned him said sum upon his demand note, payable to Irwin and dated January 5, 1925. Irwin further testified that subsequent to the appeal bond transaction Laughlin, on numerous occasions when he needed financial assistance, repeated his promise that Irwin was to receive one-half of the gains and profits on the stock over par if and when the hotel property was sold, and that these repetitions of the promise were so frequent that “it was regular stuff.” Although Laughlin testified that he “never undertook to withdraw that promise,” his position on the trial was, and is here, that it was made in consideration only of love and affection for Irwin and his brother (James C.) and that it was not supported by any legal or valid consideration. Prior to the sale of the hotel property and while negotiations to that end were pending, Irwin requested Laughlin to put his promise in writing and Laughlin agreed to do so. On September 1, 1925, they signed an agreement (drafted by Laughlin) pertaining to the 800 shares of stock and a pending deal for the sale of the hotel property, etc. The 1st and 8th paragraphs of the agreement are in part as follows:

“1st. Laughlin having already succeeded in inducing others to deposit their shares subject to the deal in question, Irwin will forthwith deposit with the Union Trust Company all the shares of stock in the Northern Hotel Co. which he holds, — the 400 shares belonging to himself and the 800 shares in his name belonging to Laughlin, and will leave all so deposited with the Trust Co., and all assigned in blank for delivery to the purchaser in the event they are paid for within 90 days, and will accept in payment for all $250 a share. . . . Having received the proceeds of all he will retain the moneys payable to him for his 400 shares, and will also receive the moneys payable to him for the 800 shares belonging to Laughlin, out of which he will reimburse himself his loans to Laughlin on account of said 800 shares, amounting in the aggregate to $80,000. But, inasmuch as Laughlin gave to Irwin his verbal promise to divide with him the gains on said 800 shares, Irwin will retain one-half of the difference between the amount he advanced on account of them and the amount he collects on account of them, and will account to Laughlin for the other half; by which is meant that he will retain $60,000 of the gains on said 800 shares and will account and turn over to Laughlin the other half of said gains, amounting to $60,000.

“8th. This contract is made in anticipation of the success of the pending deal, . . . but if that deal for any cause fails of success, . . . this agreement shall also be treated as having failed of its purpose, and of no force or effect; and the parties shall be restored to the status quo as that stood prior to the making of the agreement; and all the stock deposited by Irwin with the Trust Co. shall be returned to him, and he shall continue to hold it in the same manner, and with the same rights and obligations, as he held it prior to the entering- into it by the parties hereto.”

The evidence further discloses that said pending deal failed of consummation but that Irwin did not cause the 1,200' shares, so deposited by him with the Trust Co. to be returned to him; that a sale of the hotel property and of the stock held or controlled by them had long been in contemplation by them; that as early as 1921 Laughlin told Irwin that, as he (Laughlin) was getting old and his health was poor, he thought it wise to sell out; and that he then “solicited his cooperation” in a sale and “said to him that I would make no contract that he (Irwin) did not first approve.” After the failure of consummation of said deal, Laughlin, assisted by Irwin, made other efforts to bring about a sale, and finally one William M. Collins offered $1,600,000 for the hotel leasehold, building, furniture, fixtures, etc. Laughlin testified that when this offer was made he and Irwin “immediately agreed that the thing to do was to let him (Collins) have it.” Finally a contract for the sale was executed in April, 1926, and the sale to Collins consummated in July, 1926, — he paying the sum of $1,600,000 to Charles B. Holden (a vice president and general counsel of said Union Trust Company), who had been appointed the agent of the stockholders of the hotel company to make distribution to them of the proceeds of the sale. On August 10, 1926, Holden made a partial distribution of $175 per share to the stockholders of record. Included in the distribution was a payment to Irwin, at said rate, of $70,000 for the 400 shares which he owned in his own right, and a payment to him of $140,000, for said 800 shares of stock. Holden' gave Irwin a check for $210,000. Laughlin was present at the time and made no objection. Holden then had in his possession the two Laughlin notes, payable to Irwin’s order, for $13,000 and $5,195.69, which, still remained unpaid, and Holden indorsed on each “Paid by debit Vs. $210,000,” and handed them to Laughlin. On the following day (August 11) Holden forwarded to Laughlin a statement of account, in which mention was made of said two notes, which with the accrued interest aggregated .$19,526.20. Laughlin testified in substance that he previously had told Holden that Irwin, out of said $140,000, was to retain the $80,000 (which Irwin had loaned to him under the eight contracts) and also, out of the remaining $60,000, was to retain the said amount ($19,526.20) of said two notes; that thereby said loans, aggregating $80,000, and said two notes were paid; and that as to the net balance remaining he and Irwin “would adjust our own accounts.” On August 11, also, Irwin personally delivered to Laughlin a letter, containing a written statement of account and Irwin’s check, payable to Laughlin, for $10,473.80. The statement was to the effect that after deducting the ,$80,000 from the $140,000, a balance of $60,000 remained; that after deducting therefrom $30,000, for Irwin’s one-half share under said profit sharing promise or agreement, there remained $30,000; and that after deducting the sum of $19,526.20 for the payment of said two notes there remained a net balance due to Laughlin of $10,473.80, for which a check was inclosed. Irwin testified that when he delivered the envelope to Laughlin it was unsealed and that he “told Laughlin what was in it,” who replied: “I won’t see it now; I will look it over after I come back from my trip out west. ’ ’ Laughlin testified that when Irwin delivered the sealed envelope he said there was a check in it, but that he (Laughlin) did not then open the envelope; that on the following day he left for Boise, Idaho, and did not return to Chicago until about the middle of September; that he “never did open the envelope with the check inclosed”; that about a week after his return from Idaho he ‘ ‘ delivered the envelope, sealed as it was when delivered to me, to Mr. Miller” (his then attorney); that Miller “did not open it in my presence”; but that he “probably told Miller at the time what had occurred between Irwin and me.” About two months later Irwin received a letter, dated December 14, 1926, from a firm of Chicago attorneys, returning said check for $10,473.80, and stating that the same “is respectfully declined.” On December •22, 1926, the present bill was filed.

After reviewing the evidence, as contained in the abstract of this voluminous record, and after considering the briefs and arguments of opposing counsel, we are of the opinion that the court, as to the accounting portion of the case, erred in not allowing to Irwin’s executors an additional credit of $30,000, for Irwin’s one-half share of the profits over par on said 800 shares, as promised by Laughlin. The court denied such credit solely because, as stated in the decree, Irwin “has not satisfactorily established any binding, legal obligation, verbal or otherwise,” whereby Laughlin should be required to make such a division. Counsel for Laughlin contend-that Laughlin’s promise to divide such profit was “without consideration and evidenced a mere intention, at the time when the promise was made, to make a gift or donation at some possible and undetermined future time.” Counsel, however, do not deny that Laughlin made the promise and many times repeated it, especially when he solicited and obtained additional financial aid from Irwin. And we think that the contrary contention of counsel for Irwin’s executors (viz., that Laughlin’s promise is supported by good and sufficient considerations) is amply sustained by the evidence and the law. In Schlatter v. Triebel, 284 Ill. 412, 415, it is said: “A contract to be legally binding must be based on a consideration, but any act which is a benefit to one party and a disadvantage to the other constitutes a sufficient consideration to support a contract.” (See, also, Burch v. Hubbard, 48 Ill. 164, 171; Buchanan v. International Bank, 78 Ill. 500, 505.) Applying this principle to the present case we think that Irwin’s signing of Laughlin’s appeal bond for $60,000 in 1917; his written guaranty of Laughlin’s note for $109,000 in 1918; his loaning in 1921 and in 1925 to Laughlin upon the latter’s demand notes the respective sums of $5,195.69 and $13,000, which notes were not paid until the sale of the hotel property in 1926; his deposit at Laughlin’s request of the 1,200 shares of stock with Holden; his aid to Laughlin during several years in enabling him to continue as president of the hotel company and as its managing head; his signing at Laughlin’s request the agreement of September 1, 1925; and his assistance to Laughlin in consummating the sale of the hotel property, etc.; — all disclose sufficient and valuable considerations to support Laughlin’s promise.

And we think that, under all the facts and circumstances in evidence and the law applicable, there is substantial merit in the further contention of counsel for Irwin’s executors, namely,-that Laughlin should be estopped .by his conduct to contend that his said promise (which as he testified he “never undertook to withdraw”) is illegal and void for want of consideration. In Hefner v. Vandolah, 57 Ill. 520, 523, it is said: 1 ‘ There can be no doubt, that if a party makes a declaration, or does any act to induce another to do an act he would not otherwise do, or to invest his capital on the faith of such declaration or act, he will be estopped to deny the truth of his declaration, or the just effect of his act.” The evidence discloses that Laughlin first made his promise in 1917, wdien Irwin signed as a surety Laughlin’s appeal bond for $60,000; that he many times thereafter, and particularly when soliciting further loans or advances from Irwin, repeated the promise; that he “solicited Irwin’s co-operation” in the sale of the hotel property and the latter always thereafter assisted him to that end; that in 1925, after negotiations had progressed so that it appeared that such a sale might be brought about and the stockholders receive $250 a share for their stock, Laughlin drafted the contract of September 1, 1925, and Irwin signed the same at Laughlin’s solicitation; that in the 1st paragraph of this contract appears Laughlin’s written admission of his promise previously given verbally, viz., “inasmuch as Laughlin gave to Irwin his verbal promise to divide with him the gains on said 800 shares,” etc.; that, relying on Laughlin’s promise, Irwin, in accordance with the provisions of said contract, deposited with Holden not only the 800 shares of stock, which he held as security for Laughlin’s indebtedness to him of $80,000 under said eight contracts, but also 400 shares of the stock which he (Irwin) owned in his own right; that after the deal (pending at the time of the execution of the contract of September 1, 1925) fell through, Irwin did not withdraw the stock so deposited with Holden, but assisted Laughlin in finally consummating a sale of the hotel property, etc., at a lesser price; that when the purchaser (Collins) had paid to Holden the purchase price and Holden was about to make a distribution of $175 per share on the stock, Laughlin directed Holden to pay all of the $140,000 (on account of said 800 shares) to Irwin, and stated in substance to both Holden and Collins that Irwin was to receive one-half of the profits over par on said 800 shares; that Laughlin never stated or intimated to Irwin, prior to the consummation of the sale to Collins, that he considered his promise to be illegal for want of consideration; that after Irwin had accounted for the proceeds received by him on said 800 shares, on the basis of said promise, and had delivered to Laughlin the check for $10,473.80, Laughlin made no objections to the account or the- amount of the check for a period of more than four months; and that Irwin first learned of Laughlin’s contention (that his promise was illegal) when the present bill was filed. Had Irwin been informed of this contention or position prior to the signing of the contract of September 1, 1925, he doubtless would not have signed that contract or deposited with Holden the 1,200 shares of stock, or, if later informed, would not have assisted Laughlin in bringing about the consummation of the sale to Collins. These acts of Irwin, as well as many other acts of his as disclosed in the present record, were performed in reliance upon Laughlin’s said promise. After the sale to Collins had been consummated Irwin no longer had any control over the 1,200 shares of stock and his situation had been changed. We think that the evidence shows that Laughlin was silent when he should have spoken and that he should be estopped from claiming that his promise is illegal and void for want of consideration. (Milligan v. Miller, 253 Ill. 511, 517; 2 Pomeroy’s Eq. Juris. 4th Ed., p. 1680, sec. 818; also p. 1642, sec. 804.) The author says (sec. 804): “Equitable estoppel is the effect of the voluntary conduct of a party whereby he is absolutely precluded, both at law and in equity, from asserting rights which might perhaps have otherwise existed, either of property, of contract, or of remedy, as against another person, who has in good faith relied upon such conduct, and has been led thereby to change his position for the worse, and who on his part acquires some corresponding right, either of property, of contract or of remedy.”

And we think that Laughlin’s counsel’s contention (that Laughlin’s promise to divide said profits on the 800 shares of stock is so unconscionable and oppressive as not to be enforceable in equity) is lacking in merit in view of the circumstances disclosed. Even if such a promise might under other circumstances be so considered it sufficiently appears that Laughlin knew exactly what he was doing when he made and many times repeated his promise and finally put it in writing; also that he had good and sufficient reasons for making it and repeating it. Furthermore, in the absence of fraud, courts of equity usually enforce agreements which are understandingly entered into. In Cumberledge v. Brooks, 235 Ill. 249, 257, it is said: “But the object of courts of equity, as well as courts of law, is the enforcement of contracts understandingly entered into, rather than their evasion. . . . There is no charge or evidence of fraud in the case. The parties were competent to contract, and did fairly contract, with each other, and neither side ought to be relieved from the agreement on the ground that good business judgment was not used in entering into the contract.”

Equally without merit, in our opinion, are the contentions of Laughlin’s counsel, in support of the assigned cross errors, that the eight contracts are usurious, and that Laughlin is entitled to recover back such portion of the $87,850, paid to Irwin “under the guise of dividends” on the 800 shares of stock, as is in excess of interest at the rate of 7 per cent per annum on said loans, aggregating $80,000, which Irwin made to Laughlin from time to time, commencing in January, 1909, and continuing until November, 1923. In Clemens v. Crane, 234 Ill. 215, 229, it is said: “To constitute usury, in contemplation of law, the following essential elements must be present: (1) There must be a loan or forbearance; (2) the loan must be of money or something circulating as money; (3) it must be repayable absolutely and at all events; (4) something must be exacted.for the use of the money in excess of and in addition to the interest allowed by law.” In the last paragraph of the last of the eight contracts (dated November 22, 1923) it is provided: “It is further agreed that in the event Laughlin dies before he redeems other shares by Irwin held for his account on the same or similar terms, Irwin’s title to the shares shall thereafter be treated as absolute.” It thus„appears that the principal of the loans was not “repayable absolutely and at all events,” and that such repayment depended upon a contingency, viz., the continuance of the life of Laughlin. Furthermore, the contracts had provisions to the effect that Irwin was to receive the dividends on the stock “in lieu of interest,” or that Laughlin was “to pay no interest” on the loans, and the evidence shows that he never made any interest payments. Furthermore it appears that, after the sale of the stock and property of the hotel company to Collins and after Holden had paid to Irwin the $140,000 for the 800 shares of stock, Laughlin considered that his indebtedness to Irwin of $80,000 (evidenced by said eight contracts) was paid. Laughlin testified that, before the distribution of the money received by Holden from said sale, Holden ‘ ‘ asked me what to do with the money which those 800 shares represented in his distribution, and I told him to pay Irwin the eighty thousand that I owed him, and to allow him to take from the sixty the two notes, one of thirteen thousand and one of five thousand, and Holden did that, and turned the notes to me as vouchers.” This transaction and Laughlin’s statement to Holden amounted, we think, to a voluntary payment of Laughlin’s indebtedness of $80,000 to Irwin. And we understand it to be the law that, even where usurious interest payments have been exacted and paid, the voluntary payment of the principal debt by the debtor pre- • vents his recovery back of such usurious payments. (Hadden v. Innes, 24 Ill. 381, 384; Parmelee v. Lawrence, 44 Ill. 405, 414; Mason v. Pierce, 142 Ill. 331, 336.) Furthermore, inasmuch as the contracts provided that Laughlin should not pay any interest on the indebtedness or that Irwin should receive the dividends on the pledged stock in lieu of interest, Irwin took the hazard that in some years he might not receive either legal or any interest on the loans. There was no certainty that the hotel company would be able to pay dividends every year. In 29 Ency. Law (2nd ed.) p. 486, it is said: “On the other hand, however, if there is a hazard of losing legal interest, the fact that upon the happening of a contingency the lender may receive more than legal interest will not render the transaction usurious.” (See, also, Potter v. President and Fellows of Yale College, 8 Conn. 52, 62.)

Our conclusion is that the decree appealed from should be modified to the extent of giving to Irwin’s executors an additional credit of $30,000 for Irwin’s one-half share of the profits on the 800 shares of stock, realized from the sale of the hotel property to Collins in July, 1926. Accordingly, the decree is reversed and the cause remanded, with directions to the circuit court to make modifications therein as follows: In the judgment clause of the decree, wherein the court adjudges that Laughlin have judgment against Irwdn’s executors for $40,473.80, these figures should be changed to $10,473.80, and, inasmuch as Irwin before the filing of Laughlin’s bill tendered said last mentioned sum to him, and during the hearing in the circuit court kept the tender good, the circuit court will not charge any interest against Irwin’s executors on said sum of $10,473.80, and will tax all costs against Laughlin. And the costs in this court will also be taxed against Laughlin.

Reversed and remanded tvith directions,

Soahlah, P. J., and Keener, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Wendt & Crone Company, Appellant, v. John Traff, Appellee.
    Gen. No. 34,655.
    Opinion filed May 19, 1931.

      George C. Bliss, for appellant.
    Johh A. Bloomihgstow, for appellee.
   Mr. Justice Gridley

delivered the opinion of the court.

In an action commenced on July 21, 1928, based upon section 29 (1st clause) of the Illinois Workmen’s Compensation Act (Cahill’s St. 1927, ch. 48, ¶ 229, p. 1236), there was a trial before a jury on April 24, 1930, and at the close of plaintiff’s evidence the court, on defendant’s motion, directed the jury to find defendant not guilty. Such verdict was returned and a judgment-against plaintiff for costs entered. The action was originally brought against John Traff and John A. Lundstrom as defendants, but during the trial, on plaintiff’s motion, Lundstrom was dismissed from the case. Plaintiff has appealed from the judgment against it and here urges that the court erred in entering the judgment on a directed verdict.

The statute referred to is as follows:

“Where an injury or death for which compensation is payable by the employer under this Act, was not proximately caused By the negligence of the employer or his employees, and was caused under circumstances creating a legal liability for damages in some person other than the employer to pay damages, such other person having also elected to be bound by this Act, or being bound thereby under section three (3) of this Act, then the right of the employee or personal representative to recover against such other person shall be subrogated to his employer and such employer may bring legal proceedings against such other person to recover the damages sustained in an amount not exceeding the aggregate amount of compensation payable under this Act, by reason of the injury or death of such employee,”

In plaintiff’s declaration, consisting of one count, it is alleged in substance that on August 3,1927, defendants were engaged in a business or enterprise in Cook county, Illinois, and were operating under and subject to the provisions of the Compensation Act, and, by virtue of section 3 of the Act, Cahill’s St. ch. 48, ¶ 202, were automatically under the provisions thereof, —being engaged in the erection of a structure or building and having elected prior thereto to provide and pay compensation to their employees and having filed notice of such election with the Illinois industrial commission ; that plaintiff, on said date and prior thereto, also was engaged in the same business or enterprise subject to the provisions of the Act, had made a similar election and had filed a similar notice of its election, and was automatically under the provisions of the Act, — being engaged in the erection of the structure or building; that on said day defendants owned, operated and controlled a certain hoist erected alongside of a building under course of construction, located at 2734 — 38 Pine Grrove avenue, Chicago; that the hoist was used for the conveying of cement and other material used in the construction of the building; that plaintiff was a contractor and had contracted to furnish certain work in connection with the construction of the building; that one Charles Schroeder then and there was working for it, as its employee; that in connection with its work certain material would be taken to the various floors of the building on the hoist; that it was necessary for Schroeder in the course of his employment, when the hoist had been elevated, opposite to certain floors of the building, to go out upon the platform thereof for the purpose of removing into the building certain of plaintiff’s material; that it then and there became defendants’ duty to use reasonable care for the safety of Schroeder; that they failed in their duty and so negligently operated, controlled and maintained the hoist that, while he was on said platform, opposite to the 11th floor, the cables, clamps and appliances, used in connection with the operation of the hoist, suddenly broke, became loose or gave way, whereby the platform (upon which he was) fell and he received injuries resulting in his death; that both before and at the time of the accident he was using due care for his own safety; that his injuries and death “were not proximately caused by the negligence of plaintiff or its employees”; that he received the injuries resulting in his death in an accident arising out of and in the course of his employment by plaintiff; that he left him surviving his wife, Ella Schroeder, and one minor child, whom he was under legal obligation to support; that as a result of his death, and by virtue of the provisions of said Compensation Act, plaintiff became liable to pay, has entered into an agreement to pay, and has paid the sum of $4,200 to Ella Schroeder in the manner provided for in said Compensation Act; that an order has been entered by the industrial commission of Illinois on plaintiff to make said payments as aforesaid for the benefit of Ella Schroeder and said minor child; and that, by virtue of section 29 of said Compensation Act, Cahill’s St. ch. 48, ¶ 229, defendants are liable and indebted to plaintiff in said sum of $4,200, which they have refused to pay. To plaintiff’s damage, etc.

On the trial plaintiff called six witnesses who testified as to details of the accident, arid four other witnesses. Certain photographs, documents and other writings also were introduced.

Plaintiff’s evidence disclosed the following facts in substance: Prior to and at the time of the accident Traff was a contractor doing the concrete and mason work on the building, known as the Lincoln Park Arms Hotel. He had various bricklayers, laborers, carpenters, etc., engaged in the work. Other contractors were engaged in other work on the building, among them plaintiff, which by employees was installing a ventilating system for the building. Traff had erected a hoist or tower in front of. the building which, when not in use by him, he rented to the other contractors, at $5 per hour or 50 cents “a lift,” for the purpose of conveying their material to different floors of the building. In May, 1927, Traff made arrangements to borrow from John A. Lundstrom, also in the general contracting business, what is described by the witnesses as a hoist, tower or steel mast. Besides the tower and.mast there was a platform, but Lundstrom did not furnish any cables, machinery, electrical devices, etc., to operate the hoist, which was thereafter erected in front of the building by Traff’s employees and operated solely by them. Its operation was controlled by electrical devices, etc., in a shanty in front of the building near the bottom of the hoist. These devices, etc., were controlled and operated at the time of the accident by one Shumacher, Traff’s employee, and known as his hoisting engineer. The hoist had been in- operation since May, 1927. One Wenckert, superintendent for Traff, testified that no one, besides himself and the hoisting engineer, had anything to do with the control or operation of the hoist. On the morning of the accident plaintiff’s foreman, Weiss, desiring to elevate certain pipe for use in its work on the building, made arrangements with Traff to use the hoist and to pay him therefor 50 cents a lift. Some of plaintiff’s employees, when the platform thereof was at the bottom, placed thereon two joints of pipe, about 8 feet long and weighing about 140 pounds. Signal was given to Shumacher to elevate the hoist platform to the 10th floor of the building, and this was -done. When the platform had reached that floor two employees of plaintiff, Charles Schroeder and Edward Miller, who had walked up through the building, got upon the platform and removed one of the pipes into the building. Signal then was given to Shumaeher to elevate the platform to the 11th floor and this was done. Sehroeder and Miller, who had walked up to that floor, got upon the platform for the purpose of removing the remaining joint of pipe into the building. As they were in the act of lifting the pipe, and while both were on the platform, it suddenly fell to the ground and with it the two men and joint of pipe. Sehroeder-received injuries which caused his death on the following day. Miller, although injured, had sufficiently recovered at the time of the trial to testify as plaintiff’s witness. He and other of its witnesses testified that neither he nor any of its employees had anything to do at or prior to the time of the accident with the operation or control of the hoist, except to give the signals for its movements as mentioned.

Ella Sehroeder testified that she is the widow of the deceased, who also left him surviving a daughter, 13 years of age; that she had entered into a settlement contract with plaintiff; and that up to the time of the trial she had received compensation payments, aggregating $2,155. The settlement contract, approved by the Illinois industrial commission, was also introduced in evidence. It states in substance that the deceased was killed as the result of an accident that arose out of and in the course of his employment with plaintiff; that he was the parent of a child under the age of 16 years; and that under the terms of the settlement contract the applicant was to receive the sum of $4,200, at the rate of $15 per week.

Plaintiff’s evidence further disclosed that shortly before the accident, on the same morning, two other joints of pipe by similar actions had successfully been hoisted and put into the building for plaintiff; that two joints of pipe and two men on the platform were not considered a heavy load; and that heavier loads on previous days had been elevated and deposited on various floors of the building. Three photographs, showing the condition of the hoist, etc., immediately after the accident, were introduced in evidence by plaintiff. From these photographs and from the testimony of witnesses it appeared that certain “U” bolts, holding the end of the cable which passed through a so-called “shiv” above the hoist platform, had come loose, causing the cable, which did not break, to slip through the “shiv” and resulting in the fall of the hoist, etc., to the ground. Another photograph, presented by defendant and introduced in evidence by agreement, showed the hoist as repaired after the accident, disclosing four “clips” or “U” bolts, with a loop in the cable after it comes through the “shiv” whereas before the accident there was no loop and only three “U” bolts clamping the cable.

Shumacher, who had control of the hoist, machinery, electrical devices,, appliances, etc., and their operation, just before and at the time of the accident, testified in substance that he had what is known as a two-drum machine but was using only one drum; that after he got his orders to stop the hoist at the particular floor he did not notice that anything unusual occurred except that the cable “may have doubled up on the drum and gave her' some kind of a jerk . . . and the hoist platform fell”; that after the accident he found that the cable had pulled out of the clips, and “was raveled on the ends”; that he had greased or oiled all moving parts of the hoist in the morning, shortly before the accident; that when he did the oiling “these clips were a few inches in front of me and they appeared all right”; that before the accident there were three clips or “U” bolts holding the cable; that in his opinion the fact that the cable" doubled up on the drum and jerked was “the reason for the clips pulling out”; that part of his duties was to see that “things are in working order”; that he could not say how long the “clips had been on there,” that he “did not tighten them that morning,” and that “if the clips or nuts loosen up, the cable is apt to slip through”; and that there was no protection if the bolts became loose, “except one safety catch in there, which is pretty hard to get at. ’ ’

The bill of exceptions also disclosed that, during the argument in chambers on defendant’s motion for a directed verdict, the trial court stated in substance that in his opinion, under the evidence, the accident was in part brought about by the negligent failure of Shumacher, defendant’s engineer, to properly inspect the hoist, its machinery, appliances, etc., on the morning of and prior to the accident; that the duty of such inspection rested upon defendant but that plaintiff, by its employees, had the equal duty to make such inspection ; and that, as it does not appear that it made such inspection, plaintiff should not be allowed to recover as a matter of law, because plaintiff’s employees, Schroeder and Miller, were themselves guilty of negligence, which contributed to the accident, in failing to make such inspection.

In view of the language of the statute, we cannot agree with this reasoning, and are of the „ opinion, under all the facts and circumstances in evidence, that the court erred in directing a verdict in defendant’s favor. The statute (section 29) upon which the action is based, reads in part that “where an injury or death, for which compensation is payable by the employer (plaintiff) under this Act, was not proximately caused by the negligence of the employer or his employees, and was caused under circumstances creating a liability in some person (defendant) other than the employer to pay damages,” etc. We think that the questions whether Schroeder’s death was proximately caused by the negligence of plaintiff or its employees, or whether it was proximately caused by the negligence of defendant or Ms employees, or whether plaintiff or its employees wTere. guilty of any negligence which contributed to said accident and death, were all questions for the jury, and not for the trial court, to determine. In O’Brien v. Chicago City Ry. Co., 305 Ill. 244, it is held in substance that under said section 29, where the injury is caused by the negligence of a tMrd party who is bound by the provisions of the Act, the employee has no right of action against the third party, but such right is transferred to the employer, who has paid the compensation fixed by the Act. In the present case it appears that all parties were bound by the provisions of the act and that the employer (plaintiff) has paid or is paying weekly the compensation as fixed by the act and awarded by the commission. In the O’Brien case, at page 253, it is said: “Where the negligent party was subject to the provisions of the act, section 29 provided that the measure of his liability should be the damages sustained, not, however, exceeding the compensation payable under the act, and the employer of the injured employee should be subrogated to his employee’s right against the party causing the injury.”

The judgment appealed from is reversed and the cause remanded.

Reversed and remanded.

Soanlan, P. J., and Keener, J., concur.


author: Mb. Justice Gbidley

text:
    American Trust and Safe Deposit Company, Complainant and Appellee, v. 180 East Delaware Building Corporation et al., Defendants. Appeal of Fanny Meyers, Executrix of the Estate of Lizzie M. Diederichs, Deceased, Petitioner and Appellant.
    Gen. No. 34,673.
    Opinion filed May 19, 1931.
    Rosenberg, Braude & Zimmerman, for appellant; H. J. Rosenberg and Irving S. Berman, of counsel.

      Keehn, Woods, Weisl & Keelet, for appellee; W. M. Keelet, of counsel.
   Mb. Justice Gbidley

delivered the opinion of the court.

In a foreclosure proceeding, commenced March 27, 1929, Lizzie M. Diederichs, on October 8,1929, by leave of court, filed her petition praying that she be allowed to become a party defendant and to file an answer, without prejudice to' the reference to the master, etc. To the petition complainant, as trustee in the trust deed sought to be foreclosed, filed an answer in which, after making numerous allegations, it prayed that the petition be dismissed, etc. On July 8, 1930 (two days before the final foreclosure decree was entered) there was a hearing upon the petition before the chancellor, resulting in the entry of an order or decree denying the prayer of, and dismissing, the petition, for the reason, as stated, that “the court is of the opinion that the allegations of the petition are insufficient. ’ ’ In the order, it appearing that Lizzie M. Diederichs had died on February 20, 1930, the court directed that Fanny Meyers, as executrix, etc., be substituted as petitioner in place of the deceased. From the order or decree Fanny Meyers, as executrix, etc., prayed and perfected the present appeal.

On October 28, 1930, after the transcript of the record and appellant’s abstracts and printed briefs had been filed in this court, appellee (complainant) appeared and moved that the appeal be dismissed upon the ground that the order denying leave to petitioner to intervene as a defendant was an interlocutory one and not appealable. After the filing of counter suggestions the motion to dismiss the appeal was denied. (See 3 Corpus Juris, p. 639, sec. 500; Hoier v. Kaplan, 313 Ill. 448, 450; Wightman v. Evanston Yaryan Co., 217 Ill. 371, 375-6.)

After the cause had been taken and oral argument had, appellant (petitioner) on March 24, 1931, asked leave to file a supplemental record, instanter, to which motion appellee (complainant) filed counter suggestions. The supplemental record sought to be filed included (1) the decree of foreclosure entered by the circuit court on July 10,1930; (2) the petition and motion of appellant (petitioner) “to stay the sale” under the decree until the disposition by this court of the present appeal; and (3) the order of the circuit court, entered September 5,1930, denying the motion to stay the sale. The motion to file said supplemental record was denied by this court on March 30, 1931.

On October 15,1925, the 180 East Delaware Building Corporation, to secure a large number of its bonds aggregating $1,200,000, executed and delivered its trust deed, conveying certain real estate in Cook county to complainant as trustee. Because of certain defaults made, complainant declared all unpaid bonds to be due and payable, and on March 27, 1929, filed the present bill to foreclose the trust deed for the benefit of all bondholders, for a receiver, etc. A copy of the trust deed is attached to and made a part of the bill. None of the bondholders was by name made a party complainant or defendant to the bill, nor was the American Bond and Mortgage Company made a party defendant. On each of the bonds is the statement to the effect that it is issued subject to the provisions of the trust deed securing the same. In the trust deed, Article IX, are the following provisions, inter alia:

“Section 1. (a) If the said Trustee . . . shall declare the whole amount or any part of the outstanding and unmatured indebtedness of the Company, and secured hereby, then to be due and payable for default or defaults as provided above in Article VTI, it shall have the power and right exclusively (except as hereinafter provided) thereupon to commence foreclosure proceedings of this trust deed for the benefit of and to secure the payment of all, or any number less than the whole, of said bonds and interest, advances, and other moneys and indebtedness secured hereby ratably and without preference and priority of one bond or the interest thereon before another, and for the payment of any advances which have a priority hereunder as specified herein, and if the said Trustee shall so- commence such foreclosure proceedings for all or any of the holders of the bonds, such foreclosure proceedings by said Trustee for their use and benefit shall be exclusive and preclude the said bondholders from taking any proceedings in foreclosure in their own names, or otherwise, than by and through the proceedings commenced by such Trustee; ...”

“Section 5. . . . Every holder of any of the bonds hereby secured, including pledgees, accepts the same subject to the express understanding and agreement that every right of action, whether at law or in equity upon or under this indenture, is vested exclusively in the Trustee as Trustee of an express trust, and under no circumstances shall the holder of any bond or coupon, or any number or combination of such holders, have any right to institute any action at law upon any bond or bonds or any coupon or coupons or otherwise, or any.suit or proceeding in equity or otherwise, except in case of refusal on the part of the Trustee to perform any duty imposed upon it by this Indenture sixty days after request in writing by the holder or holders of bonds. ...”

In the petition of October 8, 1929, Lizzie M. Diederichs alleges in substance that she is the owner of one of said bonds for $1,000, No. 144, maturing April 15, 1931, and secured by said trust deed; that interest due on the bond on April 15, 1929, has not been paid; that she purchased the bond from the American Bond and Mortgage Co., at Chicago (hereinafter called the Mortgage Co.); that when she purchased it “she understood” that the payment of the principal and interest of the bond was guaranteed by the Mortgage Co.; that when she purchased it she “was given to understand” that, if she purchased from the Mortgage Co. any securities, all defaults upon the same would be made good by the Mortgage Co., and that the default upon said bond has not been made good by it; that the capital stock of complainant is owned almost in its entirety by the Mortgage Co. and its officers were designated by the Mortgage Co.; that complainant, as trustee in the trust deed, was chosen by the Mortgage Co., which has now practically ceased doing business; that petitioner “has lost all confidence” in the Mortgage Co., and “has no confidence in complainant trustee, purporting to represent her as one of the beneficiaries under the trust deed being foreclosed,” and avers that she is entitled to and should be given leave to appear in the cause for the protection of her interests; that through the instrumentality of the Mortgage Co., some sort of bondholders’ committee has been formed, and petitioner and other bondholders have been solicited to deposit their bonds with such committee, but petitioner has refused to deposit her bond; that not having deposited her bond she “fears” that “her rights will not be protected unless permitted to become a defendant in this cause”; that the property pledged as security under the trust deed is scant security for the indebtedness, and that it is of “vital importance” to the owners of bonds that “the costs of this proceeding be kept as low as possible so as to permit the bondholders to receive the maximum out of such security”; that complainant, as trustee, and the bondholders “are adverse in interest” as to many of the matters involved in the litigation, that the trust deed provides for a trustee’s fee, and that the amount of the fee is a question upon which complainant and the bondholders have adverse interests; that the same is true as to a solicitor’s fee to be allowed to complainant; that complainant and other bondholders should be given an opportunity to be heard on these questions, together with all matters in connection with the receivership and the receiver’s expenses and fees; that petitioner is entitled to know the time and place of the foreclosure sale in order to protect her interests at such sale; and that she is entitled to make proof of her rights in advance of the sale, etc. She prayed that by. order of court she be allowed to become a party defendant, without prejudice to the reference to the master, etc., and be allowed to file an answer to the bill, etc.

It will be noticed that in the petition there are stated numerous conclusions, unsupported by any allegations of fact, and that it is not alleged that complainant as trustee is incompetent or in any way disqualified to act, or that it has failed in any particular to act for the best interests of all of the holders of the bonds, or that complainant has neglected or refused to comply with the proper requests of any of the holders of the bonds.

We are of the opinion that the action of the court in dismissing the petition on the ground of its insufficiency was proper and should be upheld. (See Gunderson v. Illinois Trust & Savings Bank, 199 Ill. 422, 435; Clyde v. Richmond & D. R. Co., 55 Fed. 445, 448; Farmers’ Loan & Trust Co. v. Kansas City, W. & N. W. R. Co., 53 Fed. 182, 186; Trust Co. of America v. Norfolk & S. Ry. Co., 174 Fed. 269, 271; Palmer v. Bankers’ Trust Co., 12 Fed. [2d] 747, 754.). In view of the provisions of the trust deed as above set forth, it was not necessary to make any of the bondholders parties complainant or defendant to the bill. No bondholder had an absolute right of intervention, especially in the absence of any allegations of fraud, misfeasance or bad faith on the part of the trustee. (Chicago & G. W. R. Land Co. v. Peck, 112 Ill. 408, 435-6; St. Louis & Peoria R. Co. v. Kerr, 153 Ill. 182, 196; Farmers’ Loan & Trust Co. v. Lake Street Elevated R. Co., 173 Ill. 439, 459-60; Guaranty Trust Co. v. Chicago, M. & St. P. Ry. Co., 15 Fed. [2d] 434, 440; Bowling Green Trust Co. v. Virginia Passenger & Power Co., 132 Fed. 921, 926.) In the case last cited it is said: “This motion to admit the petitioners as parties is one addressed to the sound discretion of the court, and in disposing of the same the court must take into consideration the facts and circumstances surrounding the case, and at least those shown and set forth in the petition itself, including the object and purpose of the petition as shown by its prayer. . . . Courts in any case should be slow to interfere with trustees, in the apparently lawful discharge of their duties, at the instance of a comparatively small number of minority bondholders or stockholders, and least of all should it do so when it appears that such bondholders and stockholders are not themselves seeking actual relief, but are attempting to obstruct the trustee in the discharge of what it deems to be its duty.” In the Guaranty Trust Co. case, supra (p. 441), it is said: “They (the courts) will be equally vigilant to see. that dissenting bondholders be not permitted to create a maneuvering value in their bonds.”

Our conclusion is that the order or decree appealed from should be affirmed and it is so ordered.

Affirmed.

Scanlan, P. J., and Keener, J., concur.


author: Mr. Justice Kerner

text:
    Chicago Paper Company, Appellee, v. Grigsby-Grunow-Hinds Company, Appellant.
    Gen. No. 34,640.

      Opinion filed May 19, 1931.
    Theodore A. Kolb, for appellant.
    Culver, Ahdrews, Seiter & Gilmore, for appellee; Orville B. Seiter, of counsel.
   Mr. Justice Kerner

delivered the opinion of the court.

Action was brought by plaintiff, Chicago Paper Company, against defendant, Grigsby-Grunow-Hinds Company, to recover the contract price of 814 pounds of paper delivered, and for 4,033 pounds of paper offered to be delivered. Tried before a jury and a verdict and judgment in favor of the plaintiff for $2,908.94, from which the defendant appealed.

The statement of claim sets forth that on July 7, 1926, defendant delivered to plaintiff a written order RO-3170 for 5,000 pounds of #1,500 condenser tissue 6" dia. 2-⅝" thick l-⅛" core, price .70 lb. net F. O. B. our plant, subject to the following conditions:

“1. All orders not acknowledged within three days of receipt may be cancelled. ’ ’

That on July 13,1926, plaintiff delivered the following letter to the defendant:

“July 13, 1926.
Grigsby-Grunow-Hinds Co.,
Chicago, Illinois.
Gentlemen:

We acknowledge with thanks your order RO-3170 which we have entered as follows:

5,000 lbs. 2-⅝" width, .00056 to .00064, #1500 Condenser tissue, outside diameter to be 6", but not to exceed 7"
l-⅛" core @ 70c per lb. net 90 days Shipment will be made
1.000 lbs. to come from N. Y.
4.000 lbs. to come from mill Remarks :
The above is an exact copy of the entry of your order on our records. If you desire to make any corrections or changes, please notify us at once.
The fulfillment of this order or contract is contin- % gent upon strikes, fires, accidents, or other causes beyond our control. All goods sold subject to trade customs.
Yours very truly,
Chicago Paper Company
By H. B. Ingersoll.”

That defendant did not at any time notify plaintiff that it desired to make any change or corrections of the terms of sale as stated in plaintiff’s letter of July 13, 1926, that defendant retained plaintiff’s letter and assented to the terms therein outlined and on July 30, 1926, inquired of plaintiff when the first 1,000 pounds of said paper would be delivered. That on August 7, 1926, plaintiff delivered to defendant 814 pounds of said paper, which defendant accepted and used; that on September 13, 1926, plaintiff offered to deliver to defendant an additional 4,033 pounds of paper, and has at all times since been ready, and is now ready and willing to deliver the same and hereby again offers to deliver the same but that defendant always had and still does refuse to accept the same. That all of said paper, delivered and undelivered, was identical and corresponded with the description of said paper “as specified in said contract of sale dated July 13, 1926,” and that all of said paper was merchantable No. 1500 condenser tissue paper.

The affidavit of merits admits giving the order and the receipt of plaintiff’s letter of July 13; that the order of July 7 provided for cancellation of the order unless the same were acknowledged within three days ; that the same was not acknowledged in three days; that it subsequently did cancel it and that defendant is therefore not liable for paper not actually delivered; admits 814 pounds of said paper was received but in co-operation with the plaintiff was used for experimental purposes; that prior to August 20, 1926, defendant informed plaintiff that it would not give an order for paper until it had had a chance to try out at least another 1,000 pounds of said paper; alleges that prior to August 26, 1926, it notified the plaintiff that the trials being made with the sample shipment were unsatisfactory and that the paper was developing leaks. That at the time plaintiff delivered the paper to the defendant for experimental purposes it informed defendant that by signing an order calling for No. 1500 condenser tissue the paper previously experimented upon would be duplicated; that defendant relied upon this representation, but that the paper actually delivered and that tendered for delivery was not the same paper as that which defendant had experimented upon. That plaintiff represented to defendant, before July 7, 1926, that the paper defendant had experimented upon was all linen, but that it would not be necessary to specify that on the order and that by simply ordering No. 1500 paper all linen paper would be ordered and furnished; that defendant relied on this statement and believed the same, and executed and signed the order, but that the paper thereafter delivered and tendered for delivery was not all linen paper. That prior to July 7, 1926, defendant advised plaintiff in detail of the purpose for which the paper was desired, and explained the tests which it would have to meet and the conditions and purposes for which the same was to be used; that plaintiff informed defendant that if it would order paper by designating it as No. 1500, that paper- would be delivered which would be satisfactory and meet the requirements and tests of the defendant and would be usable for its purposes ; that the paper was not usable for said purposes.

The material facts are that the plaintiff is a broker handling a general line of paper, and defendant is engaged in the manufacture of radios. During the autumn of 1925, E. V. Hadley, an employee of F. C. Strype, offered to sell to defendant a condenser tissue paper and sample rolls were delivered, which defendant subjected to tests, covering a period of months. These tests showed the paper to be satisfactory for the purpose for which the defendant intended to use it. This paper was manufactured in Germany. Between the fall of 1925, and June, 1926, Strype had abandoned the sale of condenser paper in Qhicago, but arranged with plaintiff to represent him in the sale of paper in Chicago. In June of 1926, Harold B. Ingersoll, salesman for plaintiff, was requested to send defendant a sample of the condenser tissue and five or six rolls were delivered about June 20, 1926, which were also subjected to tests. About July 2, 1926, Hadley and Ingersoll jointly called on defendant and informed an employee of defendant that plaintiff had taken over the local distribution of the Strype tissue and that all negotiations in the future about Strype paper would be handled by plaintiff, and that the samples which Hadley had submitted and those that Ingersoll submitted were the same. On July 7, Hadley and Ingersoll called again and talked with Mr. G-runow who was informed by Sidney P. LeMonier, one of defendant’s employees, that the test was satisfactory, and thereupon the order for the 5,000 pounds was given. On August 8,1926, 814 pounds of the paper were delivered and used. On August 26, 1926, plaintiff was informed the paper was not satisfactory, that it was developing leaks of electricity and did not properly insulate, and plaintiff was advised the order was canceled and that no further paper would be received; the 4,033 pounds of paper refused by defendant was the same as the 814 pounds delivered. Defendant did not examine the undelivered paper. At the time defendant informed plaintiff the order was canceled, the paper was on its way from Germany and it reached the Chicago warehouse during the middle of September, 1926.

There was evidence on behalf of defendant that between September 7, 1926, and the spring of 1927, defendant made further tests, but was of the opinion that the paper was not serviceable and usable and persisted in its refusal to accept the 4,033 pounds of paper, and there was evidence on behalf of plaintiff that it was serviceable and usable. There was evidence that before the order was given the defendant conducted Ingersoll through its condenser manufacturing plant, and showed him its machinery and processes, and that Ingersoll informed defendant that the paper he had sold would be serviceable and usable for the purpose for which it was intended, but this was denied by Ingersoll. There was also evidence on behalf of defendant that before it placed the order it was informed by Ingersoll that the paper was all linen, but Ingersoll denied this and testified that he did not know of what the paper was made., Sidney P. LeMonier, an employee of defendant who had made the tests, testified no one said anything about the paper being all linen and that Hadley said it was a secret process that he was not at liberty to disclose.

Prom an examination of all the evidence we are of the opinion that the defendant in purchasing the paper relied on its own judgment and its own tests.

Defendant’s counsel takes the position and strenuously argues that the verdict is contrary to the evidence, because the title to the paper did not pass, therefore the measure of damages is the difference between the contract price and the market price, and that there is no evidence in the instant case, of such damages. In making this contention he cites clause 2 of section 64 of the Uniform Sales Act (Cahill’s St. ch. 121a, ¶ 67), which provides that the measure of damages is the estimated loss directly and naturally resulting in the ordinary course of events from the buyer’s breach of contract. Section 18 of the same Act provides that in a contract to sell specific or ascertained goods, the property in them is transferred to the buyer at such time as the parties to the contract intend fit to be transferred, and for the purpose of ascertaining that intention, regard shall be had to the terms of the contract, the conduct- of the parties, usages of trade and the circumstances of the case. Clause 5 of section 19 of the same Act, Cahill’s St. ch. 121a, H 22, provides:

“If the contract to sell requires the seller to deliver the goods to the buyer, or at a particular place, . . . the property does not pass until the goods have been delivered to the buyer or reached the place agreed upon.”

Defendant’s counsel argues that the order called for the delivery of the paper at the plant of the defendant in Chicago; that the paper reached plaintiff’s warehouse in September, 1926, and notwithstanding it had refused to accept the paper, since the plaintiff did not notify defendant that the paper would be thereafter held by the plaintiff as bailee for defendant, the plaintiff cannot recover under the evidence in this case. We cannot agree with defendant. It is clear that on August 6, 1926, while the paper was on its way from Germany, defendant informed plaintiff that the order was canceled and that it would not receive the paper. Defendant in its brief and argument admits that the paper was on hand in Chicago in September and could have been delivered. It was, therefore, unnecessary for plaintiff to deliver the paper to defendant’s plant at Chicago. It is also clear that plaintiff had performed all of its obligations under the contract and the title vested in defendant (Wade v. Moffett, 21 Ill. 110; Commonwealth Title Ins. & Trust Co. v. Gregson, 303 Ill. 458), and plaintiff was entitled to recover the contract price because it was ready and able to deliver and offered to deliver the paper (section 51, Uniform Sales Act, Cahill’s St. ch. 121a, ¶ 54), and defendant’s refusal to accept delivery relieved plaintiff from making Actual delivery. (Osgood v. Skinner, 211 Ill. 229; Norton Iron Works v. Wilson Steel Products Co., 232 Ill. App. 523; Interocean Mercantile Corp. v. Sawyer Biscuit Co., 253 Ill. App. 551, and cases cited.) The title to the paper having vested in defendant, it being the kind specified, section 63 of the Uniform Sales Act (Cahill’s St. ch. 121a, ¶ 66) is applicable here, which provides:

“Where, under a contract to sell or a sale, the property in the goods has passed to the buyer, and the buyer wrongfully neglects or refuses to pay for the goods according to the terms of the contract or the sale, the seller may maintain an action against him for the price of the goods.” (See also Santa Rosa-Vallejo Tan Co. v. Kronauer & Co., 228 Ill. App. 236.)

As additional grounds for reversal, it is urged that the jury disregarded the instructions of the court, and adopted some rule of their own for ascertaining damages. At the request of defendant, the court instructed the jury that the measure of damages for the undelivered paper was the difference between the contract price and the market value. These instructions did not, under the pleadings, state a proper rule, but as the defendant requested the instructions and the verdict is, in our opinion, in accordance with the law and the evidence, it will not be disturbed, and defendant cannot be heard to complain. (Luken v. Lake Shore & M. S. R. Co., 248 Ill. 377; Kellner v. Schmidt, 328 Ill. 426.) The words of the court in Faulkner & Co. v. Centralia Bottling Works, 234 Ill. App. 9, are applicable here. The court said (p. 15):

“We do not know just what elements went into the amount found by the jury but in any event the amount is not in excess of what the jury under proper measure of damages would have been justified in finding in case they found the facts in favor of appellee.”

It is next contended that there never was any contract between the parties, for the reason that the order of July 7 contained a condition that urdes s it was ac-' knowledged in three days it could be canceled by defendant; that it was not acknowledged until July 13. It is undisputed that defendant received plaintiff’s letter of July 13; that it retained it and made no objections to its terms, and on August 8, 1926, received the 814 pounds of paper. We are of the opinion that the receipt of the letter of July 13, holding and acting under it, is equivalent to its formal execution. (Vogel v. Pekoc, 157 Ill. 339; Sellers v. Greer, 172 Ill. 549.)

We are not impressed with the assignment based on the admission of the testimony of the witness J. C. Miller. He was called as a witness for plaintiff in rebuttal. Defendant objected to Ms testifying on the ground that Ms testimony was not rebuttal, and that he had been in court in violation of the rule excluding the witnesses. It does not appear that any harm to the defendant resulted from a violation of the rule. Whether a witness shall be permitted to testify in rebuttal rests in the discretion of the court. The court did not abuse its discretion in permitting this witness to testify.

We have examined all of the remaining suggestions made by the defendant and relied upon by it for a reversal of the judgment and are satisfied that no reversible error was committed by the court.

For the reasons stated the judgment will be affirmed.

Affirmed.

Scahlah, P. J., and Gridley, J., concur.


author: Mr. Justice Keener

text:
    Hyman Meyer, Appellee, v. William Surkin, Appellant.
    Gen. No. 34,670.

      Opinion filed May 19, 1931.
    Max 0. Liss, for appellant; Frank J ohnston, Jr., of counsel.
    Gallagher, Shulman & Abrams, for appellee; Meyer Abrams, of counsel.
   Mr. Justice Keener

delivered the opinion of the court.

On September 2, 1927, Hyman Meyer, complainant, filed a bill against William Surkin, defendant, to enjoin Surkin from enforcing a judgment in forcible detainer obtained by Surkin in the municipal court of Chicago, and that Surkin be decreed to execute a lease. After issues joined the cause was referred to a master to take the testimony and report his conclusions of law and fact. The master filed his report, in which he recommended that the court decree that the lease executed by Nicholas Butlér, by William F. Butler, as his agent, is binding upon Surkin; that Surkin be enjoined from enforcing the judgment and that the lease remhin in force and effect. Objections-to the report were ordered to stand as exceptions. There was a hearing on the exceptions, which were overruled, and on May 26, 1930, the court entered the decree appealed from.

By the decree the chancellor found inter alia, that on July 3, 1920, the complainant entered into a written lease with one Nicholas Butler in which Nicholas Butler demised to Meyer the store and flat upstairs in the building at No. 1300 South Kedzie Avenue, for a term beginning August 1, 1920, and ending April 30, 1922, rental $70 a month, with an option to renew the lease for a period of five years; that on January 9, 1922, a new lease was executed by Nicholas Butler, per William F. Butler, agent, as lessor, and the complainant-as lessee, in which Nicholas Butler demised the store, rear four rooms and flat upstairs, in the same premises above described, for a term beginning May 1,1922, and ending April 30, 1927, rental $85 per month; that in said lease it was provided that the lessee had the right to assign his lease on, or sublet, said premises, without the consent of the lessor, at the same rental and terms therein provided; and had the right to make physical changes, provided the changes would improve the premises, the alterations and additions to remain for the benefit of the lessor; and the lessee had an option to renew the lease upon its expiration for a period of five years; that William F. Butler is the son of Nicholas Butler; that Nicholas Butler died in February, 1922, testate, his will being admitted to probate by the probate court of Cook county, on March 27, 1922; that under the will William F. Butler as devisee acquired the title to the real estate described in the lease, and that during Nicholas Butler’s lifetime and after his death William F. Butler collected the rent; that on July 18, 1922, the rear four rooms were not connected with the store, the water pipes were leaking, the rear flat had wooden walls and no plaster; that for the purpose of connecting the four-room flat with the store the complainant built a hallway, tore out all partitions and walls, and plastered and built a brick wall on the south side of the building; that he cut through the stairway and removed certain pipes and rebuilt the water and gas connections and installed new basins, washtubs, air vents and bathrooms; that he removed the old plumbing and replaced it with new, made new partitions and walls in the rear four rooms and plastered the walls and ceilings; he repaired the five rooms above the store by installing electric wiring and plastered the walls, and installed new plumbing and fixtures, and repaired the sewer and installed two furnaces ; for these improvements he testified he expended $4,500 and has produced bills showing the expenditure of $2,700; that complainant continued in possession of the premises by his subtenant and paid a monthly rental of $85 to William F. Butler until about September 1, 1925, when William F. Butler sold and conveyed the premises and assigned the lease to Ben S. Goldman, Bertha Goldman, Morris Weller and Rae Weller; that on June 26, 1926, the Goldmans and Wellers conveyed the premises to the West Side Trust & Savings Bank, as trustee, and the bank, as trustee, on October 15, 1926, conveyed the premises to the defendant Surkin, pursuant to an agreement in writing whereby Surkin purchased the property subject to the lease in this cause, expiring April 30, 1927, at a rental of $85 a month, with an option to April 30,1932; that prior to the time Surkin acquired the title complainant sublet the store and four-room flat in the rear at a rental of $200 a month by a lease which expired April 30, 1927; that in April, 1927, complainant notified Surkin that he had elected to renew the lease for a period of five years; that after Surkin acquired title he refused to accept the rent from complainant and on December 29, 1926, served notice upon him that his lease would be terminated on April 28, 1927, and on March 7, 1927, filed a suit in the municipal court of Chicago for forcible entry and detainer against complainant as defendant for possession of the premises; that Surldn claimed in the municipal court that the lease was void, because it was signed by the agent of the lessor without written authority from his principal; that complainant Meyer attempted to prove in those proceedings that he was in possession, and that he had made improvements, but the municipal court held that said defense was not available in an action at law and on April 9, 1927, entered a judgment for possession; that subsequent to the entry of said judgment of the municipal court, Meyer and Surldn entered into a stipulation that pending the disposition of a bill in equity to restrain the forcible entry and detainer suit, Max C. Liss, Surldn’s attorney, was to collect the rents from the subtenants in possession of the premises at the rate of $200 a month and pay to Surkin $85 a month and retain the balance until the disposition of the bill in equity, then to turn over the funds in accordance with the final termination of the case; that complainant was in possession at the time the improvements before stated were made by him, and they were made with the written consent of the lessor and pursuant to the terms of the lease which authorized the same, that they were substantial and enhanced the value of the property and at the expiration of the lease become the property of the lessor, and that defendant is estopped to contest the validity of the lease; that the improvements coupled with the possession of the premises by the complainant, constitute such part performance as will justify a court of equity to enforce the lease; that the judgment of the municipal court does not constitute res adjudicata because.the defense of making the improvements, possession and payment of rents was not available and was not considered in that proceeding; that no fraud was perpetrated upon Surkin because he purchased the premises with the understanding that the lease provided for a rental of $85 a month and that it could be assigned without consent.

In the decree the chancellor, after making the above findings, adjudged and decreed that the said lease executed by Nicholas Butler, per William Butler, agent, is in full force and effect and binding upon the defendant, and that the defendant be enjoined from enforcing the judgment obtained by him, and that the lease executed January 9,1922, remain in full force and effect until April 30,1932; that all funds deposited with Max C. Liss in accordance with the stipulation of the parties, be turned over to the complainant after deducting therefrom the sum of $85 a month, which $85 a month is to be turned over to defendant.

The main contention of the defendant is that the lease of January 9, 1922, is voidable under the statute of frauds, it being signed in the name of Nicholas Butler, per Walter F. Butler, agent, without authority in writing. Section 2 of the statute of frauds, Cahill’s St. ch. 59, ¶ 2, requires that a lease for a longer term than one year shall be in writing and signed by the person to be charged thereby or by some other person “thereunto by him lawfully authorized in writing.” William F. Butler was not authorized in writing to sign the lease. It appears from the evidence that on July 18, 1922, the rear flat had wooden walls and no plaster and was not connected with the store, and the water pipes were leaking; that complainant connected the four-room flat with the store; that he tore out all partitions and walls, built and plastered a brick wall on the south side of the building; he rebuilt the water and gas connections and installed new basins, washtubs, air vents and bathrooms; he removed the old plumbing and replaced it with new, and installed electric wiring, new plumbing and fixtures and plastered the walls in the flat above the store; he repaired the sewers and installed two furnaces; for these improvements he testified he expended $4,500, and that these improvements are of a permanent character. To take a contract out of the statute of frauds, possession must be had under the contract and the possession must be continuous and the improvements must be made under the lease. (Clark v. Clark, 122 Ill. 388; Koch v. National Union Bldg. Ass’n, 137 Ill. 497; Shovers v. Warrick, 152 Ill. 355; Christensen v. Christensen, 265 Ill. 170); taking possession and making valuable improver ments is sufficient part performance (Burgess v. Burgess, 306 Ill. 19; Morrison v. Herrick, 130 Ill. 631, and cases cited). In the instant case, the chancellor found that the complainant had substantially improved the premises, enhancing their value, which at the expiration of the lease became the property of the lessor; that complainant was in possession under the lease of January 9, 1922, at the time the improvements were made, and that they were made with the consent of the lessor pursuant to the terms of the lease which authorized the same. After an examination of the evidence, we are of the opinion that the court was justified in these findings and did not err in decreeing that the lease is binding upon the defendant.

It is contended that the chancellor erred in not dismissing the bill on the ground that complainant did not come into court with clean hands, in that he violated the terms of the lease of January 9, 1922, by subletting the premises for an amount in excess of the rent stipulated in the lease. The rent fixed by the lease is $85 a month, while the amount received by complainant from his subtenant is $200; after January 9, 1922, while complainant was in possession of the property conducting his business, and on July 18, 1922, William F. Butler gave his consent to the remodeling of the four rooms in the rear of the store and complainant expended $4,500 in improving the premises. In May, 1924, he sold the business and sublet the store and the rear four rooms and received as rental $175 a month until May, 1926, and after that date he received $200 a month. The defendant purchased the property October 15, 1926, pursuant to a written contract, in which was recited the fact that complainant had a lease for the premises at $85 a month, expiring April 30, 1927, with an option to April 30, 1932. Defendant knew that complainant was in possession of the premises by his subtenant and he was bound to take notice of the fact that complainant’s subtenant was in possession and under what terms. The rule that one who comes into equity must come with clean hands or he will not be entitled to any relief is limited to the misconduct of the complainant in regard to the matter in litigation. (City of Chicago v. Union Stock Yards & Transit Co., 164 Ill. 224; Fagan v. Rootberg, 320 Ill. 586; Carpenters’ Union v. Citizens Committee, 333 Ill. 225; Anisfield Co. v. Grossman & Co., 98 Ill. App. 180; Cohn v. Pitzele, 117 Ill. App. 342; Consumers Co. v. Parker, 227 Ill. App. 552.)

In the Carpenters’ Union case, the court said (page 250):

11 The rule that a complainant must come into equity with clean hands means that he must do equity as respects the defendant’s rights in the particular matter of the suit. . . . The dirt upon his hands must be his bad conduct in the transaction complained of. If he is not guilty of inequitable conduct toward the defendant in that transaction his hands are as clean as the court can require.”

In the City of Chicago v. Union Stock Yards & Transit Co. case, the court said (p. 238): “The wrong must have been done to the defendant himself and must have been in regard to the matter in litigation. ’ ’ The fact that complainant sublet part of the premises for more than $85 a month in nowise injuriously affects or damages the defendant, and the doctrine of unclean hands does not apply.

It is next claimed that it was error to decree that the lease remain in full force and effect until April 30, 1932, and that defendant he required to execute a new lease in' accordance with the terms of the option therein contained. Defendant contends that where an original lease contains a provision permitting a renewal of the lease upon the same conditions of the original lease, the provision does not require that the new lease issued include a renewal clause. That such is the law is conceded. Complainant, however, does not seek to enforce the lease because of his option in the lease of July 3, 1920, nor that the lease of January 9, 1922, was executed pursuant to authority of the renewal clause in the first lease. The first lease was for a different rent and did not include the rear four rooms adjoining the store. By the lease of January 9, 1922, complainant obtained a new lease under different terms and for different space, and the option claimed in the instant case was contained in the lease of January 9, 1922. By the decree the lease is to remain in force until April 30,1932. Complainant makes no claim that he has a right to renew the lease for another period of five years commencing May 1, 1932.

It is also urged that William F. Butler did not have authority from Nicholas Butler to insert the option for renewal. There is no evidence in the record that William F. Butler was or was not authorized to insert in the lease the renewal clause. It does appear, however, that defendant purchased the premises subject to the lease expiring April 30, 1927, with an option to April 30, 1932. An option in a lease is an integral part of the lease. (Garlick v. Imgruet, 340 Ill. 136.)

The defendant further contends that the judgment of the municipal court is res adjudicata,. It appears from the evidence that after Surkin acquired title to the premises and on December 29, 1926, he served upon Meyer a 60-day notice in which he said that in consequence of his desire to terminate Meyer’s lease, Meyer was requested to deliver to Surkin the store and four-room flat in the rear and the five-room flat on the second floor of 1300 South Kedzie avenue; that on March 7, 1927, Surkin brought an action in forcible detainer in the municipal court of Chicago against Meyer. It further appears from the evidence in the trial of said" forcible detainer suit in the municipal court that at the time William F. Butler signed his father’s name to the lease he had no written authority to execute the lease; that Nicholas Butler died February 11,1922, testate, and in his will he devised the real estate to William F. Butler; that the will was admitted to probate and William F. Butler became the owner of the real estate; he held title to it for two and one-half years during which time he collected the rents; that Meyer, in his defense in the municipal court, claimed that William F. Butler as owner of the real estate after his father’s decease, had ratified the lease and was estopped to deny the validity of the lease, and that Surkin, who acquired the property immediately from William F. Butler, was also estopped. April 9, 1927, there was a finding of guilty and judgment rendered against Meyer for possession of the premises. The rule is well settled that where a former adjudication is relied on as an answer and bar to the whole cause of action, it must appear that the cause of action and the thing sought to be recovered are the same in both suits. The former adjudication in cases of this class is technically known as an estoppel by judgment, and the judgment itself is commonly characterized as a bar to the action, but where some specific fact or question has been adjudicated and determined in a former suit, and the same fact or question is again put in issue in a subsequent suit between the same parties, its determination in the former suit, if properly presented and relied on, will be held conclusive upon the parties in the latter suit, without regard to whether the cause of action is the same in both suits or not. (Celotex Co. v. Koblitz, 241 Ill. App. 159, and cases cited.) Where some of the questions involved in dispute are of an equitable character and were not and could not be passed upon in the legal form, courts of equity will interpose to restrain judgments at law. (Hawley v. Simons, 102 Ill. 115.) If the matter relied upon by the complainants could not be received as a defense in an action at law, equity may relieve notwithstanding an ineffectual attempt to defend at law. (Chapman v. American Surety Co., 261 Ill. 594, 600.) As a general rule, if a party against whom an action is brought has a legal defense, he must avail himself of it in the suit at law. But if the defense is purely equitable in its nature, he may enjoin the judgment by bill in equity. (Vennum v. Davis, 35 Ill. 568.) Where the party has no defense at law against the recovery of a judgment, he need not defend or enjoin the suit before judgment, if he has an equitable defense, but may enjoin the collection of the judgment. (Weaver v. Poyer, 79 Ill. 417.) The bill for injunction may be entertained in equity before the commencement of a suit at law pending such suit, or after its decision by the highest law tribunal. (Chapman v. American Surety Co., supra.) The defenses of possession and part performance were not available to complainant in the forcible detainer action and could only be interposed in equity. (Chicago Attachment Co. v. Davis Sewing Mach. Co., 142 Ill. 171. See also Pillsbury v. Early, 324 Ill. 562; People v. Wyanet Electric Light Co., 306 Ill. 377.)

It is contended by defendant that Bakaitis v. Fink, 340 Ill. 440, is decisive of the instant case. We have examined that case and cannot agree with his contention. The Balcaitis case, supra, was a bill for specific performance of an agreement to convey real estate; the defendant pleaded former adjudication in a forcible detainer suit, which was upheld. It was Balcaitis’ contention that his defenses in the forcible detainer suit were equitable only and not available at law, but the court held that Balcaitis in the forcible detainer action had the right to prove his rights as vendee, in other words, that the defense was available at law. In the instant case complainant’s defenses were only available in equity. (Chicago Attachment Co. v. Davis Sewing Mach. Co., supra.) Where the defense is purely equitable and therefore not cognizable in a court of law, equity will take jurisdiction and grant relief. We are, therefore, of the opinion that the judgment of the municipal court was not res adjudicata.

It is next contended that the chancellor erred in decreeing that Max C. Liss, defendant’s attorney, turn over to the complainant certain money deposited with him pursuant to stipulation. Liss was not a party to the canse. The stipulation which authorized Liss to collect the income and hold it provided that it should be retained by him until the final disposition of any suit in equity that might be brought by Meyer to establish his right to the possession of the premises under his lease. This appeal is not prosecuted by Liss but by Surkin. Defendant cannot take advantage of alleged imperfections in the record which do not in any way concern him or his interest, but relate to other persons as to whom the errors, if they exist, cannot be availed of by anyone but themselves. (Clark v. Shawen, 190 Ill. 47; People v. Conleur, 294 Ill. 139.)

We have considered the remaining arguments of defendant’s counsel that specific performance will be denied where complainant’s use and occupation of the premises compensated him for improvements made and that complainant has an adequate remedy at law, but we are compelled to agree with complainant’s contention that‘the main scope of the bill was to enjoin the judgment of the municipal court.

After an examination of the entire record, and giving consideration to the arguments of counsel, we are of the opinion that the decree of the superior court is sustained by the evidence.

The decree is affirmed.

Affirmed.

Scanlan, P. J., and Gtudley, J., concur.