author: Mr. Justice Dady

text:
    A. L. Robbs, Appellee, v. Illinois Rural Rehabilitation Corporation, Appellant.

      Opinion filed March 2, 1942.
    Norman M. Littell, Assistant Attorney General, Arthur Bob, United States Attorney, George B. Schwarz, Special Attorney, Vernon L. Wilkinson and W. Bobert Koerner, both of Washington, D. C., for appellant.
    D. L. Duty and L. A. Colp, both of Marion, for appellee.
   Mr. Justice Dady

delivered the opinion of the court.

This is an appeal from a judgment for $25,000 recovered by plaintiff against defendant in an action for damages for the breach of certain oral promises alleged to have been made by defendant.

The complaint alleges that in addition to the consideration stated in certain written options these oral promises were a part of the consideration for the conveyance of five tracts of land by the plaintiff to the defendant. The answer denies that any such oral promises were made or that they were any part of the consideration for the conveyances in question, but alleges that the lands were conveyed for a stated and agreed consideration pursuant to certain options in writing.

The plaintiff Bobbs at the times in question owned and operated at the town of Bobbs, Illinois, a hotel, general store, lumber yard and numerous other business enterprises. In 1934 the Federal Government through the Agricultural Adjustment Administration undertook development of a large area near the town of Bobbs for an agricultural experiment or demonstration area to be known as the Dixon Springs Agricultural Project. At that time the Agricultural Adjustment Administration employed as manager of the Dixon Springs project one Horton. In purchasing-land for this project, Horton foresaw that a number of families who lived in the area would be dislocated, and that some means for their resettlement had to be provided. Accordingly, he undertook to procure options on other lands near the town of Bobbs, which might be purchased for the resettlement of such families.

In late August or early September of 1934, Horton approached the plaintiff, who then owned the farm land here involved. After some negotiations with Horton for the sale and transfer of such lands, the plaintiff executed and entered into with the United States of America by the Federal Emergency Belief Administrator, five written agreements under seal, entitled “For the Lease of and an Option to Purchase Lands.” Four of these instruments were executed by the plaintiff on September 7, 1934, the fifth on Hovember 16, 1934. The material provisions of these agreements insofar as the sale and transfer of the real estate are concerned are alike, except in matters of description, rental, purchase price, etc. The following stipulations, mutatis mutandis, are to be found in all five agreements: “4. In consideration of $1 in hand paid by the United States, the receipt of which is. hereby acknowledged, the Administrator shall have the right to purchase for the United States, and the lessors will convey to the United States, at any time on or before June 30, 1937, . . . upon the terms and conditions hereinafter set forth, (certain described lands) and the option to purchase herein granted shall be effective from the date of the signature of the lessors hereto.

“5. That the price at which said land will be sold to the United States, as hereinbefore provided, shall be as follows:

“(a) $3,300.00 for the tract as a whole, with all buildings and improvements thereon . . .
“6. The lessors . . . agree that at the date of this instrument the title to the said land is clear, free and unencumbered except as hereinafter noted; that the lessors have . . . authority to convey, and that if the aforesaid option is exercised, they will convey to the United States the fee simple title thereto clear, free, and unencumbered, except subject to the following easements: None, and will do or suffer no act whereby such title may be diminished or encumbered ; .. . .
“7. The lessors will execute and deliver upon demand of the . . . agents of the United States, ... a good and sufficient deed of warranty conveying to the United States a safe title to the said lands, of such character as to be satisfactory to the Attorney General of the United States, . . .
“8. In consideration whereof (i.e. the lessors’ covenants to convey clear title, by warranty deed), the said Administrator, for and in behalf of the United States of America, covenants and agrees that, if the aforesaid option is exercised, he will purchase said lands at the price of $3,300.00 for the tract as a whole, including all improvements. . . .
“9. That said Administrator, in the same behalf, further covenants and agrees that, after the execution, delivery, and recordation of the said deed and the signing of the usual Government voucher or vouchers therefor, and after the Attorney General of the United States shall have approved the title thus vested in the United States, he will cause to be paid to the lessors the purchase price by a United States Treasury warrant or disbursing officer’s check.
“10. It is mutually understood and agreed that the Administrator will obtain an abstract of the title to the property hereinbefore described without cost to the lessors, but lessors will provide any abstract in their possession or obtainable by them, and pay all stamp taxes on execution of the deed.
“14. While this agreement is primarily intended to be entered into by the United States by and thru the said Administrator, yet it may be entered into by and thru any other officer or agency of the United States authorized thereunto, and the optional rights hereby granted may be availed of by the United States thru any other officer of agency authorized to purchase or lease said land.”

On September 7, 1934, defendant was incorporated under Illinois law with power to acquire and hold real property. After the establishment of this corporation said-five instruments were mailed by Norton to one C. H. Humphrey, who at that time was a director of the Emergency Belief Commission of the State of Illinois, and also an incorporator and secretary of the defendant corporation. These instruments were in due course accepted by Humphrey on behalf of the defendant, and pursuant to such instruments the lands in question were duly conveyed by the plaintiff to the defendant by deeds executed between May 27, 1935 and Eebruary 1,1936. The purchase prices stipulated in the options and recited in the deeds were paid in full. The parties do not question, and we assume that the defendant was duly entitled to and properly exercised the options in question.

The plaintiff in his brief contends that in return for the conveyances of the lands in question the defendant agreed not only to pay the respective amounts specified in the written options and recited in the deeds, but further orally agreed as part of the consideration for the conveyances of the land in question to settle not less than 125 dwellings on home sites laid out and built thereon, to pay the plaintiff $27,500 for the construction of an electric power plant, and to procure contracts from the occupants of such home sites for the plaintiff to furnish them with electric light and power. In other words, the entire case of the plaintiff is based solely on the breach of such alleged oral agreements.

The trial court, over the objection of the defendant, permitted the introduction of evidence by the plaintiff tending to show the alleged oral agreements. The controlling question in this case is whether the court erred in admitting this parol evidence.

Defendant contends the written options duly accepted by it embodied the complete agreement of the parties for the sale of the lands and that its liability for the conveyances must be limited to the prices stated in the options, and it was therefore error for the trial court to admit evidence of the alleged oral agreements tending to establish that defendant was liable for a consideration in addition to that expressed in the options.

It is important to consider the nature and effect of the written options executed by the plaintiff in this case. In Mitzlaff v. Midland Lumber Co., 338 Ill. 575, the court said: “An option contract is one by which the owner of property agrees with another person that the latter shall have the right to buy the former’s property at a fixed price within a certain time. The owner does not then sell his land or any interest in it, or agree to sell, but he does sell the right or privilege to buy at the option of the other party. The second party gets, in praesenti, not lands or an interest therein or an agreement that he shall have lands, but the right to call for and receive lands if he so decides. (Keogh v. Peck, 316 Ill. 318.) ” An option contract is unilateral. The optionee has the right to purchase upon the terms and conditions named. He, however, is not bound to do so. Lake Shore Country Club v. Brand, 339 Ill. 504. When the option is exercised the contract becomes bilateral and binds both parties and is enforceable at the instance of either party. Macy v. Brown, 326 Ill. 556.

The written options in this case contained all of the essential elements for the sale of the lands involved. Each of the written instruments contained the names of the parties, a description of the land, the price to be paid, a provision as to the furnishing of an abstract, a provision as to the title to be conveyed, a provision as to when the purchase price should be paid, and the time in which the option must be exercised.

In Telluride Power Transmission Co. v. Crane Co., 208 Ill. 218, 226, the court said: “The rule is, that when the writings show, upon inspection, a complete legal obligation, without any uncertainty or ambiguity as to the object and extent of the engagement, it is conclusively presumed that the whole agreement of the parties was included in the writings. The fact that a point has been omitted which might have been embodied therein will not open the door to the admission of parol evidence in that regard. . . . The rule is too well recognized to require citation of authorities that all preliminary negotiations, whether oral or written, are merged in the written contract. ’’ See 22 C. J. 1098.

In Armstrong Paint & Varnish Works v. Continental Can Co., 301 Ill. 102, 106, the court said: “When parties sign a memorandum expressing all the terms essential to a complete agreement they are to be protected against the doubtful veracity of the interested witnesses and the uncertain memory of disinterested witnesses concerning the terms of their agreement, and the only way in which they can be so protected is by holding each of them conclusively bound by the terms of the agreement as expressed in the writing. All conversations and parol agreements between the parties prior to the written agreement are so merged therein that they cannot be given in evidence for the purpose of changing the contract or showing an intention or understanding different from that expressed in the written agreement. . . . But the contentions of the parties to the contract are not the criterion which should guide the court in determining whether the written contract is a full expression of the agreement of the parties. The court must determine this from the writing itself. If it imports on its face to be a complete expression of the whole agreement, — that is, contains such language as imports a complete legal obligation,— it is to be presumed that the parties introduced into it every material item and term, and parol evidence cannot be admitted to add another term to the agreement although the writing contains nothing on the particular term to which the parol evidence is directed. ’ ’

From the foregoing authorities it is apparent to us that the written options must be regarded as a complete expression of the whole agreement for the sale of the lands, and that the alleged oral agreements which were not incorporated into the written instruments must be regarded as intentionally rejected by the parties. A similar situation was presented in the case of Spiegal & Son v. Alpirn, 107 Neb. 233, 185 N. W. 415, where it was sought to show by parol that there was in reality another consideration for certain materials in addition to the stipulated price set forth in a written contract. In holding that parol evidence was inadmissible to show such additional consideration, the court said: “Parties negotiate and presumably discuss and agree upon everything to be done by either party pertaining to the subject of the negotiations. They put the result of their negotiations in writing and the writing covers and includes everything necessary to make a binding contract. Its covenants are mutual and it sets out in detail the precise contractual obligations which each party assumes in consideration of the obligations assumed by the other. One agrees to sell and deliver, the other agrees to purchase and pay a certain definite price for the thing sold. Afterwards the seller asserts that he was induced to sign the contract not on account of the consideration moving to him by the terms of the writing itself, but by an agreement made by the buyer that, in addition to the payment of the stipulated price, he would release an existing obligation of the seller under another contract, and that the promise to release formed the condition upon which he entered into the contract in question. If permitted to show such an alleged preliminary agreement in this case, in which there is no question of the completeness and definiteness of the contract on its face, no case could be imagined in which it would not be possible for one party or the other by parol evidence to insert new conditions into the contract or for one party to impose added burdens upon the other.” See also Mitchill v. Lath, 247. N. Y. 377, 160 N. E. 646.

It must be noted that the price or consideration named in the option contracts are not mere recitals but are contractual in nature. The rule is that where the statement in a written instrument as to the consideration is more than a mere recital and is of a contractual nature parol or extrinsic evidence is not admissible to vary or contradict the consideration expressed in writing. Cary v. Manfull, 41 Wyo. 476, 287 Pac. 433, 5 Wigmore, section 2433 (2d Ed.).

It is common knowledge that the period of an option may extend over some time and during the interim property may increase or diminish in value. Therefore, the intrinsic value of every option lies in the certainty that if it is exercised by the optionee within the time specified, the seller must deliver at the price fixed in the option, regardless of any fluctuations in the value of the property which may occur while the option is in force. To hold that where parties have taken the precaution to reduce an option agreement to writing, the person giving such option may prove contemporaneous parol agreements changing the price fixed in the option, would indeed frustrate the whole force and purpose of the option. It is clear to us that this cannot be done and it was error for the trial court to permit evidence as to the alleged oral agreements. Plaintiff was not compelled to enter into the contracts in question. He makes no charge of fraud or mistake nor does he claim that the oral agreements were collateral to and independent of the option contracts, or that such oral agreements were intended as a modification of the option contracts themselves. If the agreement was as plaintiff contends, he could have insisted that they be inserted in the options and he could have refused to enter into the same if such agreements w.ere not so inserted. We think the options contained a complete statement as to the consideration and plaintiff is in no position to complain that they were not complete in that respect.

The plaintiff relies on the case of Ludeke v. Sutherland, 87 Ill. 481, and many other cases holding that the true consideration for a deed may always be shown by parol evidence. The primary purpose of a deed is to transfer title in execution of an agreement, and a deed ordinarily does not undertake to show what the purchase agreement was, and the consideration named in the ordinary deed is merely a recital and not contractual in nature, and for these reasons parol evidence in such cases is admissible to show the actual consideration although it may not be the same as that recited in the deed. Therefore, we do not consider such cases applicable to the facts in this case.

Other alleged errors are assigned by defendant, but inasmuch as it is our opinion that the plaintiff did not make out a prima facie case there is no occasion for our discussing any other errors so assigned.

For the reasons indicated the judgment of the trial court is reversed:

Reversed.


source: Caselaw Access Project

license: Public Domain

text:
    J. A. Rhodes and G. C. Wilson, Appellants, v. Samuel W. Andrews, Appellee.
    Opinion filed March 2, 1942.
    Walter C. Klitzing, of Altamont, for appellants.
    John W. Kelsey and Glen B. Wilson, both of Greenville, for appellee.
   Mr. Justice Dady

delivered the opinion of the court.

The Model Glove Company, a corporation, executed and delivered to the trustees of the First National Bank of Altamont, Illinois, its judgment note dated July 17, 1934, for $2,590, due six months after date, payable to the order of such trustees. On the date of the note and before its delivery to the payees, a guarantee of payment was written on the back of the note and signed by Frank L. Andrews, and by the defendant S. W. Andrews, who was the then president of the Glove Company. The guarantee read as follows: “For value received the undersigned guarantee the payment of the within note, hereby waiving demand, protest and notice of every kind and nature. ’ ’

The Glove Company defaulted in the payment of the note when it became due. On September 5, 1940, the note was indorsed by the payees without recourse and delivered to the plaintiffs. On December 31, 1940, plaintiffs commenced this suit against the defendant S. W. Andrews to enforce his guarantee on the note.

Defendant moved to dismiss the suit on the ground that a suit on. his guarantee was premature because of certain proceedings had in the United States District Court. Such motion to dismiss alleged that the Model Glove Company, after the maturity of the note and before its transfer to the plaintiffs, applied to the United States District Court for reorganization under the provisions of section 77B of the Bankruptcy Act; that thereafter on February 15,1940, the federal court entered an order confirming a plan of reorganization of the Glove Company; that such order extended the time for the payment of the note by providing for payment of monthly instalments of 5 per cent each, commencing on August 1, 1942; that the trustees of the First National Bank of Altamont, as the then holders of the note, prior to the entry of such order, filed in the federal court their written consent to the plan of reorganization and thereby consented to the extension of the time of payment as provided by the plan of reorganization, and that their written consent, so filed, was addressed to the defendant and H. B. Biedemann as trustees in the bankruptcy proceedings, and that such confirmation order of February 15,1940, was entered in accordance with the petition of the defendant and Biedemann as such trustees.

In their reply to defendant’s motion to dismiss, plaintiffs did not question or deny the allegations of fact contained in the motion but alleged that they had no knowledge of the plan of reorganization of the Glove Company or of the extension of the time of payment of the note as provided in such plan until defendant filed herein his motion to dismiss.

The trial court granted defendant’s motion and dismissed the suit on the ground that it was prematurely brought. Plaintiffs appeal.

The only question presented is whether or not the extension of time of payment provided by the federal court order had the effect of postponing defendant’s liability on his guarantee. Defendant in his brief says that by reason of the fact that he as guarantor also consented to such plan of reorganization he does not contend that he is discharged as guarantor but takes the position that because of the extension his liability is simply postponed along with that of the maker.

Plaintiffs contend that the guarantee signed by the defendant is an absolute guarantee of payment of the note at the maturity thereof and that when the maker failed to pay the debt at maturity the defendant’s liability became independent and fixed and that the liability so fixed could not be changed by the extension. Plaintiffs also contend that in order for the extension to be available to the defendant guarantor as a defense such extension must appear on the note so that all subsequent holders would have actual knowledge thereof.

The original parties to this note had the right to extend the time of payment. It was just as competent for them to extend the time of payment for a specified period as it was to fix the time of payment originally. In 8 Am.. Juris., at page 32, it is said: ‘ ‘ Such an extension postpones the time at which the instrument becomes due and payable, and any demand or suit brought to compel payment prior to the time to which the instrument has been extended is premature. ’ ’ The maker of the note in this case applied for a reoTganization under the provisions of the Bankruptcy Act. Involved in such proceedings was an application for an extension of time of payment of its debts. The payees who were the then holders of the note voluntarily filed their consent in writing to the plan of reorganization and thereby agreed to the extension of time of payment. Not only were the holders of the note and the maker a party to such proceedings, but the defendant guarantor as one of the trustees in the bankruptcy proceedings petitioned for the entry of the confirmation order which extended the time of payment of the note. In view of these facts, it is our opinion that such bankruptcy proceedings suspended the payees’ remedy on the note, against the guarantors as well as the maker, for the stipulated period provided by the federal court order, and that the plaintiffs are in no better position than their assignors.

There is no merit to plaintiffs’ contention that the defense of extension of time of payment cannot be interposed against them because they acquired the note without notice of such extension. Plaintiffs are not holders in due course before maturity. They acquired the note after maturity, and took the note subject to any defenses that could be made to it had the suit been brought in the name of the original payees. (See Bissell v. Curran, 69 Ill. 20; Wolford v. Rusk, 145 Ill. App. 405.)

For the reasons indicated, the judgment of the trial court is affirmed.

Affirmed.


text:
    Arch Baker and Opal Baker, Appellees, v. Retail Clerks’ International Protective Association, Local Union No. 1000, Eldorado, Illinois, et al., Appellants.
    Opinion filed March 2, 1942.
    Lloyd H. Melton, of Harrisburg, for appellant.
    C. A. Whiteside, of Harrisburg, and Harry J. Flanders, of Eldorado, for appellees.
   Mr. Justice Dady

delivered the opinion of the court.

Upon complaint of plaintiffs, and after hearing eviden.ce, the circuit court entered a decree enjoining the defendant union and certain of its members from “Advertising that the store of the Plaintiffs is unfair to union labor by picketing, display of printed matter, or by handbills, newspaper publications, or by carrying printed signs near said business or from molesting or disturbing said customers or possible customers of the plaintiffs, or from disturbing the orderly process of said business in any manner. ’ ’

The facts on which the injunction order was issued are as follows:

Plaintiffs, who are husband and wife, own and operate in a building which is also used by them as a residence, a small grocery store and delicatessen in the city of Eldorado. They do not employ any clerks or help of any kind. The store is kept open in the evenings and also on Sundays and holidays.

The defendant union is made up of retail clerks in the city of Eldorado. This union had entered into contracts with a number of store owners in Eldorado, which, in addition to fixing wages, provided for the closing of such stores at 5 o’clock p.m. on each week day except Saturday, at 8 o’clock p.m. on Saturdays, and entirely on Sundays and holidays. Defendants requested plaintiffs to sign such a contract, but plaintiffs refused on the ground that they could not afford to agree to the closing hours provided by the contract.

About a week after this refusal defendants commenced picketing plaintiffs’ store. The pickets of the defendant union (not more than one at a time) walked back and forth in front of plaintiffs’ store carrying a banner on which was printed, “This Store Unfair to Organized Labor.” This type of picketing continued from February 1, 1940, to about July 18, 1940, at which time it was discontinued. The picketing was renewed on January 29, 1941, and was thereafter continued until February 8,1941, when the injunction complained of was issued.

In addition to carrying the banner, defendants’ pickets also spoke to a number of plaintiffs’ customers and asked them to stop trading with plaintiffs “because plaintiffs’ store was unfair to organized labor.”

There is no evidence that the picketing during either of these periods was accompanied by any physical violence or threats of violence insofar as plaintiffs’ customers were concerned. However, during the second period plaintiff, Arch Baker, on one occasion had a minor physical altercation with one of the pickets. Baker testified that the picket, a “boy,” bumped into him as Baker went out of the store, and Baker grabbed him by the collar and told him to get out, and that the boy then left. Baker also testified that on two other occasions he was threatened with bodily harm while at his store by the defendant Falk, but no blows were struck on either of these occasions. Plaintiffs also testified that at times the picket on duty would interfere with the free access of customers by not “offering” to get off the sidewalk in front of the door to the store, thereby making it necessary for customers to wait until the picket was free of the door before the customer could enter the store. The sidewalk at this point is about four and one-half feet wide.

Plaintiffs attempted to show that coercive pressure was applied by other labor organizations upon some of their members who were also plaintiffs’ customers, for the purpose of inducing them to stop trading at plaintiffs’ store, but the evidence falls short of connecting the defendants with these alleged acts. Moreover, much of such evidence is pure hearsay.

It is defendants’ contention that, under the circumstances as disclosed by the foregoing evidence, the injunction granted by the trial court violates their constitutional guarantee of free speech. Defendants assert that, although no employer-employee dispute is involved in this case, they have a legitimate interest in the question of plaintiffs ’ closing hours; that plaintiffs, by remaining open at late hours and on Sundays and holidays, draw business away from other retail stores which employ members of the defendant union; that this may result in the dismissal of members of the union from their employment; that in this manner the continued operation of plaintiffs’ store during the prescribed hours is a threat to their welfare and security; that they are entitled to meet this threat by peaceful picketing of plaintiffs’ store in an endeavor to persuade plaintiffs to adhere to such closing regulations; and that such picketing is only the exercise of their right of free speech.

It is now settled, both by the United States Supreme Court and our own Supreme Court, that the right to picket peacefully in labor disputes is not to be restricted to cases involving the relationship of employer-employees, and that any attempt to restrict peaceful picketing where the subject matter of the dispute contains elements of common interest, is in violation of the right of free speech as guaranteed by the Fourteenth Amendment to the United States Constitution. (American Federation of Labor v. Swing, 312 U. S. 321, 61 Sup. Ct. 568; Ellingsen v. Milk Wagon Drivers’ Union, 377 Ill. 76.)

In the case before us defendants cannot justify their picketing on the ground that they wish to unionize plaintiffs’ business because plaintiffs are not retail clerks and do not employ any clerks. Plaintiffs’ only offense from the standpoint of the union is in keeping their store open longer than the stores which employ members of the defendant union. A question is thus presented whether this one item of dispute furnishes a legally justifiable1 basis for defendants’ action in picketing plaintiffs’ store.

The case of Senn v. Tile Layers Protective Union, 301 U. S. 468, 57 Sup. Ct. 857, furnishes the closest analogy that we have been able to discover to the facts involved in this case. Senn conducted a small tile contracting business in which he at times employed one or two tile layers and one or two helpers, but he did much of the work himself. Neither Senn nor any of his employees were members of any union and Senn himself was ineligible for membership in the defendant union as a tile layer because he had not served the necessary apprenticeship. Defendant union presented to Senn a contract which contained a provision that no person engaged in the tile contracting business should work as a helper, but that all work should be done by union tile layers. Senn was willing to execute the contract except for this provision, which would have prevented him from doing any further work himself as a tile layer. The defendant union was not willing to permit Senn to unionize his employees and also to continue work himself, and in order to persuade Senn to sign the contract the union commenced picketing at his place of business. Senn sought to enjoin this picketing on the ground that no labor dispute was involved and that such picketing interfered with his property rights as protected by the Fourteenth Amendment, but the Wisconsin court (222 Wis. 383, 268 N. W. 270, 268 N. W. 872) refused to grant him relief. This judgment was affirmed by the United States Supreme Court and, speaking through Mr. Justice Brandéis, that court made this observation as to the constitutional question which was involved: ‘ ‘ There is nothing in the Federal Constitution which forbids unions from competing with nonunion concerns for customers by means of picketing as freely as one merchant competes with another by means of advertisements in the press, by circulars, or by his window display. Each member of the unions, as well as Senn, has the right to strive to earn his living. Senn seeks to do so through exercise of his.individual skill and planning. The union members seek to do so through combination. Earning a living is dependent upon securing work; and securing work is dependent upon public favor. To win the patronage of the public each may strive by legal means. ’ ’

It is true that the Wisconsin Labor Code at the time of the Senn case provided that no injunction should issue in any labor dispute to restrict peaceful picketing, but the court did not consider this statute as the sole source of defendants ’ right to picket. Mr. Justice Brandéis made this point clear by saying: “Members of a union might, without special statutory authorization by a State, make known the facts of a labor dispute, for freedom of speech is guaranteed by the Federal Constitution.”

Inasmuch as the object sought to be accomplished by the defendants in the Senn case was deemed by the United States Supreme Court to be a lawful object, we are bound to follow such ruling and cannot hold that in the present case the defendants were pursuing an unlawful object in attempting to persuade plaintiffs to change the conduct of their business with reference to closing hours.

We conclude, therefore, that defendants, in the exercise of their constitutional right of free speech, were entitled to carry on peaceful picketing at plaintiffs’ place of business.

There remains the further question whether the picketing as carried on by defendants was “peaceful” within the recent definition of that term by our courts.

In Milk, Wagon Drivers’ Union v. Meadowmoor Dairies Inc., 312 U. S. 287, 61 Sup. Ct. 552, the court held that the “right to free speech in the future cannot be forfeited because of disassociated acts of past violence,” or “denied by drawing from a trivial rough incident or a moment of animal exuberance, the conclusion that otherwise peaceful picketing has the taint of force.”

In the present case there was no violence whatever practiced upon the plaintiffs’ customers, and there were no threats of violence or physical intimidation toward them. We do not consider that the three incidents testified to by the plaintiff, Arch Baker, concerning his difficulty with the defendants’ pickets, were sufficient to give such a violent setting to defendant’s picketing as to justify the issuance of an injunction, which in effect restrained the defendants from peacefully picketing plaintiffs’ place of business.

The injunction as granted by the trial court went even further than this and restrained the defendants from “advertising that the store of the plaintiffs is unfair to union labor, by picketing, display of printed matter, or by hand bills, newspaper publications, or by carrying printed signs near said business . . . .” It is our opinion that in all of these respects the order was also erroneous as an infringement of the right of free speech.

The trial court by its order also enjoined defendants from molesting or disturbing plaintiffs’ customers and from disturbing the orderly process of plaintiffs’ business in any manner. We do not think that these broad provisions of the injunction order were justified by the evidence. We find no convincing evidence in the record before us that plaintiffs’ customers were molested or disturbed by any unlawful acts on the part of the defendants’ pickets. We think that the testimony of the plaintiff, Arch Baker, to the effect that the picket on duty “did not offer” to get off the sidewalk when customers approached the store, was too vague and indefinite to form the basis for a finding that plaintiffs’ customers were in fact hindered or prevented from entering the store. The only other unlawful acts complained of by plaintiffs are the three isolated incidents testified to by plaintiff, Arch Baker, in which he became involved in some personal difficulty or argument with defendants’ pickets. Clearly, defendants’ pickets had no legal right to interfere with plaintiffs’ business by threatening either of the plaintiffs with physical injury. However, the plaintiff, Arch Baker, may have been partly responsible for these incidents because of his attitude that the defendants had no legal right to picket his place of business in any manner. For a period of six months, except for these three incidents, defendants’ picketing was entirely peaceful. As was said in the Ellingsen case, supra, “the record does not contain evidence tending to indicate that the threats or statements such as were made are apt to become an element of future picketing. ’ ’ An injunction will not lie merely to prevent the commission, of a tort or crime without a showing of probable irreparable injury from a continuation of the wrongful act or acts sought to be enjoined. Central Cotton Garment Mf’rs Ass’n v. International Ladies’ Garment Workers Union, 280 Ill. App. 168).

There being no basis upon which the present injunction order can be sustained, the decree of the circuit court is reversed.

Reversed.


author: Mr. Presiding Justice Burice

text:
    Benjamin G. Kilpatrick, Successor Trustee, Appellee, v. Isadore Edidin et al., Defendants. Appeal of Henry DeWachter, Appellant.
    Gen. No. 41,781.

      Opinion filed March 18, 1942.
    Rehearing denied April 1, 1942.
    Ratner, Miller & Levenson, of Chicago, for appellant; David J. Ratner and George J. Miller, both of Chicago, of counsel.
    Otis F. Glenn, J. Roy Browning and Raymond G. Real, all of Chicago, for appellee; O. W. Barnes, of Chicago, of counsel.
   Mr. Presiding Justice Burice

delivered the opinion of the court.

On April 15,1929, Isadore Edidin, Anna Edidin, his wife, Israel Edidin and Frieda Edidin, his wife, made and delivered a trust deed to the Reliance Bank and Trust Company, as trustee, to secure payment of $32,000, evidenced by 15 bonds for $1,000 each, 24 bonds for $500 each and 50 bonds for $100 each. These bonds matured in from two to six years. The first bond was payable on July 22, 1931, and the last on July 22,1935, and all bore interest at the rate of 6 per cent per annum, payable semiannually. The interest was evidenced by coupons. The trust deed conveyed real estate located at 2859-61 Palmer street, Chicago, improved with a brick building known as the Logan Apartments, consisting of six five-room apartments and a basement apartment. The. bank failed and a receiver was appointed. Pursuant to the provisions of the General Banking Act, the bank, acting through its receiver, resigned as trustee under the trust deed. In accordance with the provisions of the trust deed, the holders of a majority in amount of the bonds then outstanding appointed Benjamin G. Kilpatrick as successor trustee. On July 27, 1933, the successor trustee filed his bill of complaint in the circuit court of Cook county, seeking to foreclose the lien of the trust deed because of defaults in the payment of principal, interest and taxes. In paragraph 11 of the bill of complaint plaintiff declares that he “brings this suit for the foreclosure of the lien of the said trust deed for and on behalf of and for the use and benefit of each and every of the owners and/or holders of the said bonds and/or coupons.” On June 26, 1940, almost seven years after the filing of the bill, Henry DeWachter was given leave to file an intervening petition. This petition alleged that he was the owner of one $500 bond and interest coupons attached thereto; that on June 24, 1940, he filed a complaint in the circuit court of Cook county, case No. 40C-5927, seeking a partial foreclosure of the trust deed for the payment of said $500 bond and interest coupons attached thereto, “subordinate and inferior to the continuing lien of the trust deed for the security of all other unpaid bonds and interest coupons.” Petitioner further stated that “by virtue thereof he has acquired an interest in the real estate securing said trust deed involved herein, which interest is subject, junior and inferior to the rights of the plaintiff herein and that your petitioner would therefore be a proper party defendant in the above entitled proceeding.” The trustee answered the petition, denying that DeWachter had any right to intervene. The petition and answer were referred to a master who reported adversely to the contentions of petitioner. Objections to the report were overruled. On a hearing before the court, the objections were allowed to stand as exceptions and the exceptions were overruled. The court then approved the master’s report, dismissed the intervening petition for want of equity, taxed the costs against intervener, and entered a decree of foreclosure, placing all unpaid bonds on a parity and directing that the property be sold. This appeal followed.

The theory of the petitioner is that the provision of article 11 declaring that the exclusive right of action under the trust deed shall be vested in the trustee, refers to an action brought on behalf of all bondholders for a complete foreclosure, but not to an action brought by a single bondholder for a partial foreclosure ; that in any event, under the express wording of article 11, this exclusive right of action exists only until the trustee has refused to act, after which the bondholder is entitled to enforce the trust deed in his own name; that no express authority for a partial foreclosure suit need be found -in the trust deed since such right exists without any such express provision therefor in the instrument; that a partial foreclosure suit may be filed even though a bill for complete foreclosure is pending, and at any time until a decree is entered ; that having filed his partial foreclosure suit the petitioner was entitled to intervene in the trustee’s foreclosure proceeding for the purpose of bringing before the court the fact that by virtue of the action taken by him he had subordinated his bond to all other bonds, so that the amount thereof would not be included in the sum found to be due to the trustee for the benefit of all bondholders. Plaintiff’s theory is that article 11 of the trust deed limits the right of action under the trust deed to the trustee except where a party becomes the holder of interest coupons separate and apart from the ownership of a bond or bonds secured by the trust deed, as provided by article 9, or where the trustee refuses to act upon demand or has become disqualified to act for the holders of bonds and coupons. Plaintiff also contends that the language of article 11 is applicable to the facts of this case as the entire issue matured prior to the filing of the intervening petition, pursuant to a demand by bondholders other than intervening petitioner, the trustee filed a suit for complete foreclosure and prosecuted the suit to the entry of a decree of foreclosure, the intervening petitioner had full and complete notice and knowledge of the proceedings, the hearings before the master in chancery, and of the rule to close, proofs, and sat by and did nothing until he knew that a decree of foreclosure was to be presented for entry by the court.

The trustee’s bill was filed pursuant to the written demand of the owners and holders of certain bonds and coupons secured by the trust deed, accompanied by a tender of indemnity in accordance with the provisions of such trust deed. The foreclosure case was prosecuted through master’s hearings, a master’s report was prepared and issued, and a decree of foreclosure was prepared and ready for presentation to the court. The intervenor and plaintiff stipulated before the master that petitioner received notice and had full knowledge of the proceedings in the foreclosure case, and knew of the hearings before the master and of the rule to close proofs. Despite this knowledge, petitioner failed to appear before the master during the presentation of the foreclosure case. It was further stipulated that the complaint for partial foreclosure was filed after the petitioner was informed that a master’s report in the original foreclosure case had been issued and a decree was about to be presented to the court for entry in accordance with such report. The sole defendant in the partial foreclosure suit is the holder of the legal title. No steps were taken to prosecute the subordinate foreclosure suit from the time of its filing until the date of the hearing before the master on the intervening petition.

Article 6 of the trust deed provides for the acceleration of maturity in the-event of a partial default. Article 8 contains detailed provisions authorizing a complete foreclosure suit by the trustee and setting forth the rights of the parties thereunder. This article also states that “the various rights, powers, options, elections, appointments and remedies contained in this deed shall be construed as cumulative, and none of them is exclusive of the others or of any rights or remedies at law. ’ ’ Article 9 reads:

“9. It is further expressly understood, covenanted and agreed that in case the interest coupons hereinbefore mentioned and described, and any additional interest coupons executed upon any extension of said principal sum or sums, if extension thereof shall be made, shall become the property of any person or persons other than the holder or holders of said bond or bonds, or if disbursements shall be made as authorized hereby by any person other than the holder or holders of said bond or bonds then in that case this Trust Deed may be foreclosed for the amount due at any time upon said interest coupons or any of them, or for renewal interest coupons or any of them, *for non-payment of said disbursements the same to all intents and purposes as though they and said principal sum were secured by separate deeds of trust: Provided, however, that any such foreclosure for any amount due upon interest coupons or renewal interest coupons, or for disbursements as aforesaid, shall be in all respects secondary and subject to the lien of this Trust Deed for the security of the principal sum and any and all interest coupons and disbursements other than and in addition to those for which said foreclosure shall be had; and the continuing lien of this Trust Deed for the security of said principal sum and any of the said interest coupons or renewal interest coupons and disbursements other than and in addition to those hereby foreclosed, shall be in no wise affected thereby.” Article 11 contains the following* clause:

“The exclusive right of action hereunder shall be vested in said Trustee until refusal on its part to act, and no bondholder shall be entitled to enforce these presents in any proceeding in law or in equity until after demand has been made upon the Trustee accompanied by tender of indemnity as aforesaid, and said Trustee has refused to act in accordance with such demand. Said Trustee shall not be bound to recognize any person as a bondholder until his bonds have been deposited with said Trustee and until his title thereto has been satisfactorily established.” Petitioner asserts that the right of partial foreclosure is firmly established in the law of this State; that the effect of a partial foreclosure suit is to subordinate the lien of the indebtedness upon which such suit is brought to the lien of all other indebtedness secured by the trust deed, to the same extent as though the former were secured by a separate mortgage, junior in lien; and that such partial foreclosure does not affect the rights of the owners of other unpaid bonds, interest coupons or other indebtedness secured by the trust deed. Plaintiff asserts that the right to partial foreclosure is recognized under the laws of this State only where the trust deed being foreclosed contains no provision limiting the enforcement of the provisions thereof exclusively to an action by the trustee, or where the trustee refuses to act or has been disqualified to act in behalf of the bondholders. The law is firmly established in this State that a partial foreclosure may be maintained by an individual bondholder in the absence of a provision in the trust deed or the mortgage restricting such right. Our first inquiry, therefore, is to determine whether any language in the trust deed restricts the bringing of a partial foreclosure suit. It has been uniformly held that provisions of the kind relied upon by plaintiff are to be strictly construed. In so holding, this court in the case of Boley v. Lake Street Elevated R. Co., 64 Ill. App. 305, at page 313, voiced these words of caution:

“Yet like other compacts strictly construed, they are not to be set aside by such reading as is opposed to the plain meaning of the language employed. Such is the subtlety of the human mind, that with a determined will so to do, there can always be read out of expressions what is clearly therein. It is not the province of the courts, with reference to the interpretation of constitutions, statutes or contracts, to do otherwise than to diligently search for, and honestly apply, the true meaning.” Plaintiff urges that article 11 restricts all rights of action under the trust deed exclusively to the trustee except for the authorization contained in article 9 and the refusal or disqualification of the trustee to act. Petitioner leans heavily on the case of Reliance State Bank v. Zisook, 222 Ill. App. 610. The trust deed in that case contained identically the same provisions as are contained in articles 9 and 11 of the trust deed in the instant case. A reading of the opinion in the Zisook case shows that the Reliance State Bank filed its bill for a partial foreclosure as to certain bonds and interest coupons which came into its possession when it paid the holders thereof as such bonds and coupons matured. A decree for partial foreclosure was entered and the equity owners appealed. One of the contentions was that there could be no foreclosure by plaintiff without first declaring the whole of the principal sum due after default and requesting the trustee to institute suit for foreclosure. The court found that there was ample proof of the refusal of the trustee to institute suit and of compliance with the condition under which a bondholder might institute the suit. The court pointed out that the plaintiff did not exercise its option to declare the whole of the principal sum secured by the trust deed, due and payable. The court said at p. 614:

“We find nothing in the trust deed that can reasonably be said to limit or restrict the right to a partial foreclosure. The fact that it provides for one by holders of interest coupons alone — a right they had without that express provision — cannot reasonably be construed to. deprive the holders of matured bonds, or bonds and interest coupons — as to which on this question no distinction need be made — from exercising a right that exists without any express provisions in the trust deed therefor. (Silverman v. Silverman, 189 Ill. 394.) It would be an absurd construction of the trust deed to hold that while owners of interest coupons on which there had been a default could foreclose subject to a continuing lien for the rest of the debt, the owner of matured bonds on which there had been a default could not likewise foreclose subject to a like lien.” The Zisooh case is authority for the proposition that a trust deed similar to the one in the instant case does not contain language restricting a bondholder’s right to foreclose as to his bonds without declaring the entire indebtedness secured by the trust deed to be due and payable. It will be noted that article 6 of the trust deed in the Zisooh case and in the instant case provides that in case of default for a certain number of days in making payment of any of said bonds, either of principal or interest, “then the whole of said principal sum secured hereby shall at once (without notice thereof to any person interested) at the option of the holder of any of said bonds then unpaid, become due and payable.” Clearly, this language does not require the holder of a bond or coupon which is in default for 10 days to declare the entire indebtedness due and payable. The language gives the holder of any bond or coupon an option which he may or may not exercise. Frequently, it is better for all concerned that the option be not exercised. We are convinced that the instant trust deed, which is similar to the one in the Zisook case, permits a partial foreclosure.

The question still remains as to whether it is necessary for a bond or coupon holder who desires to prosecute a partial foreclosure under such a trust deed, to demand that the foreclosure suit be instituted by the trustee. It will be observed that in the Zisook case demand to foreclose was made on the trustee and the trustee declined. Hence, the plaintiff had a clear right to prosecute the partial foreclosure, the trustee having refused to do so. In the Zisook case the court was not called upon to decide whether a partial foreclosure could be maintained by the holder of a bond where no previous demand by the bondholder had been made. Defendants place great reliance on the case of Dillon v. Elmore, 361 Ill. 356. This was not a partial foreclosure case. The trust deed did contain clauses similar to the clauses in the Zisook case and in the instant case. The court said (361):

“The contract between the mortgagor, the bondholders and the trustee are contained in the trust deed before us. It prescribes the things to be done when a default occurs on the part of the debtor. A compliance with the terms of the trust deed is a necessary and legitimate requirement, and these provisions are en-forcible as conditions precedent to foreclosure. The single exception to the exclusive right of the trustee to foreclose is contained in article 11. The bondholders must be held to have agreed that the privilege to foreclose in their own names was not granted to them but was provided against instead.” The Supreme Court was construing article 11 with respect to the right to prosecute a complete foreclosure. In that case, Joseph Dillon, a bondholder, sought to foreclose the lien of the trust deed on the theory that the trustee, a bank in process of liquidation, could not act. The chief contention revolved about the construction of section 11 of the Banking Act (sec. 11, eh. 16%, Ill. Rev. Stat. 1941 [Jones Ill. Stats. Ann. 10.11]). The Dillon case is not authority for the proposition that it is necessary for a bondholder desiring to prosecute a partial foreclosure, to first serve a demand that the trustee bring such an action. There is much to be said for the contention of petitioner that the language of article 11, vesting the exclusive right of action in the trustee until refusal on its part to act, contemplates a complete foreclosure and not a partial foreclosure. A provision such as that contained in article 11 is strictly construed and cannot be extended by implication. The parties have also discussed article 9, which permits a partial foreclosure by the holder of an interest coupon where such coupon “shall become the property of any person or persons other than the holder or holders of said bond or bonds.” This article also permits a partial foreclosure where “disbursements shall be made as authorized hereby by any person other than the holder of said bond or bonds.” This article does not say whether such partial foreclosure shall be brought by the trustee or the holder of such interest coupon, or by the person who made the disbursement. In the days when the trust deed in question was issued, it was the common practice of bankers and bond houses to purchase interest coupons as they were presented on maturity. These bankers and fiscal agents had in many instances sold the bonds. When the holders presented the interest coupons on the day of maturity, the bank would take up such coupon and retain it uncanceled until payment was in turn made to it by the owner of the property. The provisions of article 9 were inserted apparently for the purpose of allowing the trustee or fiscal agent who took up the coupon at maturity, and which the mortgagor subsequently failed to pay, to proceed to enforce payment without foreclosing the entire issue. It also allowed the trustee, or any person who had been put to expense under the terms of the trust deed to recover such disbursement by partial foreclosure. Plaintiff argues that because article 9 limits a partial foreclosure to the situation there set out, the trust deed should be construed so as to exclude a partial foreclosure on any other ground. We have no doubt that under the trust deed before us a partial foreclosure may be prosecuted. Because of the view we take of the case, it is unnecessary for us to decide at this time as to whether in the prosecution of a partial foreclosure of the trust deed before us, it is necessary for the bondholder to first make a demand that the trustee bring such partial foreclosure suit.

Plaintiff insists that petitioner, having had notice and knowledge of the filing and prosecution of the complete foreclosure case, including the hearings before the master and the rule to close proofs, and having sat by and done nothing until the presentation of the decree, cannot in equity ask for a stay of such proceedings until he can complete a foreclosure to subordinate his bond and coupons. Plaintiff declares that the mere filing of the complaint did not subordinate the bond and coupons of the intervening petitioner. We agree that the complaint filed by petitioner did not explicitly subordinate his bond and coupons. It expressed the intent of petitioner that “the decree of foreclosure herein shall operate to subordinate' the lien and security of the trust deed as to the aforesaid bond and interest coupons" owned by plaintiff to the lien and security of the trust deed in favor of the holder or holders of all other unpaid bonds and interest coupons outstanding thereunder, and with the intent that any sale under a foreclosure decree herein shall be subject, junior and inferior to such continuing lien.” The petition recites that the separate foreclosure suit “seeks a partial foreclosure for his own benefit as the owner of bond D-16 and interest coupons attached, secured by said trust deed, subject, subordinate and inferior to the continuing lien of the trust deed for the security of all other unpaid bonds and interest coupons.” The succeeding paragraph of the intervening petition states that the petitioner 1 ‘ shows that by virtue thereof he has acquired an interest in the real estate securing said trust deed and involved herein, which interest is subject, junior and inferior to the rights of the plaintiff and that your petitioner would therefore be a pr.oper party defendant in the above entitled proceeding.” From the petition of June 26, 1940, it is clear that petitioner was subordinating his bond and interest coupons to the continuing lien of the other bond and coupon holders. Hence, at the time the chancellor ruled on the exceptions and entered the decree, it could not be seriously questioned that petitioner intended to subordinate his bond and interest coupons. By the express language of the petition and the answer thereto the bond and coupons were subordinated. Certainly, petitioner would be estopped to deny that he had subordinated such securities. Plaintiff is mistaken when he infers that the petitioner is asking for a stay of the complete foreclosure proceedings until petitioner can complete his subordinate foreclosure case. The record shows that petitioner did not object to the entry of the decree. He did ask that there be inserted in the decree a finding that his bond and interest coupons be not included in the amount due and owing to the trustee for the use and benefit of the bondholders, and that he, as the owner of bond D-16 and the interest coupons attached thereto, had elected to secure a partial foreclosure of the trust deed, and was entitled to prosecute his separate foreclosure suit subject and subordinate to the continuing lien of the trust deed, or of the decree of foreclosure to be entered, for the use and benefit of all other bonds and interest coupons.

Petitioner urges that plaintiff is in no position to complain that he (petitioner) sat by and did nothing toward prosecuting a subordinate foreclosure case until the presentation of the decree. The trustee filed his bill on July 27, 1933, and the partial, foreclosure complaint was filed on June 24, 1940. Petitioner cites the case of Skolnik v. Verran, 297 Ill. App. 631 (Abst.) as authority for the proposition that the mere pend-ency of a trustee’s bill for complete foreclosure is no bar to an action for partial foreclosure where such action would otherwise lie. We have read the record and the opinion in the Skolnik case. The record shows that on October 15, 1937, the trustee filed his complaint for a complete foreclosure, and that on December 13, 1937, Clara Skolnik filed her complaint for a subordinate foreclosure. On motion of the trustee her complaint was dismissed. She appealed and we reversed the decree of dismissal, holding that she had a right to maintain her action for a subordinate foreclosure. The trust deed in that case specifically authorized the holder of any one or more of the bonds or coupons to foreclose for the amount due upon any such bond or coupon. It is interesting to note that Clara Skolnik filed her complaint for partial foreclosure within two months of the time when the trustee’s bill was filed. The facts in the Skolnik case are so different from the facts in this case that we do not regard the principle of law there announced as applicable to this case. At the time the complaint for a complete foreclosure was filed by the successor trustee (July 27, 1933), he was acting for all of the bondholders. The complaint declared that he brought the suit to foreclose the lien of the trust deed for and on behalf of all the bondholders. Hence, at the time the trustee filed his complaint he was acting for petitioner, who was a bondholder. The case was not prosecuted for several years. This was not uncommon during the period of the depression. During this uncertain decade, allowing a case to lie dormant would not necessarily indicate laxity. On the contrary, delay was often advisable. There was no market for real estate and frequently the bondholders were not able to raise funds or make other suitable arrangements so that they could ask to have a decree entered and proceed to sale. The fact that the trustee did not prosecute the foreclosure case for several years does not necessarily show that he was remiss in the performance of his duty. Petitioner knew of the pendency of the case and what steps were being taken. The record does not show that he made a complaint about the delay. If he had a complaint, the chancellor was there to listen to him and would undoubtedly have required that the action be prosecuted if he determined that to do so would be for the best interest of the bondholders. Petitioner also knew that the case was being heard before the master and that costs and attorneys’ fees were being incurred. He knew that these costs and fees would be a superior lien and would have to be paid from the proceeds of any sale before the bondholders could participate therein. Tet he allowed the trustee to proceed until the hearing before the master was concluded, the master’s report prepared and the decree about to be entered, before filing a partial foreclosure. He did not offer to pay any part of the costs, fees and expenses incurred by the trustee while acting for all of the bondholders, including himself. We are of the opinion that under the circumstances, it would be inequitable to permit the petitioner to prosecute his subordinate foreclosure suit.

We call attention to the fact that section 52 of the Civil Practice Act (sec. 176, ch. 110, Ill. Rev. Stat. 1941 [Jones Ill. Stats. Ann. 104.052]) provides that plaintiff may, at any time before trial or hearing begins, upon notice and the payment of costs, dismiss his action or any part thereof without prejudice by order filed in the cause. This section also provides that after the trial or hearing begins, he may dismiss on the same terms, only upon filing a stipulation to that effect, or on the order of the court made on special motion in which the ground for such dismissal shall be set forth. Our view is that the instant case comes within the spirit of this section. The trustee, in the filing and prosecution of the complete foreclosure case, was representing petitioner. The effect of the granting of the prayer of the intervening petition would be to dismiss the petitioner from the case. As the motion was made after the hearing commenced, the granting of such motion was largely within the discretion of the court. The court refused the relief prayed for by petitioner and thereby in effect refused to permit him to he dismissed from the case. We are convinced that under the circumstances the chancellor did not abuse his discretion in dismissing the intervening petition.

Finally, petitioner maintains that the chancellor erred in fixing the master’s fees incurred on the reference of the intervening petition in the sum of $70, and taxing the same as costs against him. Petitioner points out that the master does not attempt to itemize the amount of time spent in connection with each of the services stated to have been rendered, and that under the rule announced in Litwin v. Litwin, 375 Ill. 90, 96, and Jones v. Felix, 372 Ill. 262, 270, no allowance should be made on account of the service covered by the gross charge. Plaintiff replies that no objection as to the master’s fees was made before the master or the court. Petitioner points out that the last paragraph of the decree recites that “to all of which findings and orders including the taxing of costs against the intervening petitioner and the amount of said costs, the intervening petitioner objects and excepts.” This is a general objection to the entry of the decree and to the payment of any costs. If he urged the point before the chancellor, he should have brought before us a record showing the fact. He did not present such a record. Had the point been made, it is reasonable to assume that the chancellor would have required the master to itemize the charges. As the record does not show that the point was made, petitioner is in no position io urge it here.

Because of the views expressed, the decree of the circuit court of Cook county entered on February 11, 1941, is affirmed.

Decree affirmed.

Hebel and Kiley, JJ., concur.