text:
    Fred H. Henke et al., appellees, v. Edward W. Creevy et al., on appeal of William C. Crolius, appellant.
    Gen. No. 36,322.
    Opinion filed June 30, 1933.
    Rehearing denied July 11, 1933.
    William F. Donohue, for appellant. Francis A. Harper, for appellees.
   Mr. Presiding Justice Sullivan

delivered the opinion of the court.


source: Caselaw Access Project

author: Mr. Presiding Justice Sullivan

license: Public Domain

text:
    Warshawsky & Company, appellee, v. A. Warshawsky & Company, Inc., et al., defendants, on appeal of Warshawsky & Warshawsky, Inc., appellant.
    Gen. No. 36,435.
    Opinion filed June 30, 1933.
    Hyman Soboroff, for appellants. Rosenberg, Corlett & Toomin, for appellee.
   Mr. Presiding Justice Sullivan

delivered the opinion of the court.


text:
    Warshawsky & Company, appellee, v. A. Warshawsky & Company, Inc., et al., defendants, on appeal of Charles Warshawsky, appellant.
    Gen. No. 36,436.
    Opinion filed June 30, 1933.
    Hyman Soboroff, for appellants. Rosenberg, Corlett & Toomin, for appellee,
   Mr. Presiding Justice Sullivan

delivered the opinion of the court.


text:
    Warshawsky & Company, appellee, v. A. Warshawsky & Company, Inc., et al., defendants, on appeal of Arthur Warshawsky, appellant.
    Gen. No. 36,437.
    Opinion filed June 30, 1933.
    Hyman Soboroff, for appellants. Rosenborg, Corlett & Toomin, for appellee.
   Mr. Presiding Justice Sullivan

delivered the opinion of the court.


author: Mr. Justice Gridley

text:
    William Miller and Peter Bormann for the use of Margaret Polachek, plaintiffs in error, v. Bowmanville National Bank, defendant in error.
    Gen. No. 35,829.
    Opinion filed June 30, 1933.
    Rehearing denied July 11, 1933.
    Maurice L. Davis, for plaintiffs in error. O ’Shaughnessy, O ’.Shaughnessy & Cunningham, for defendant in error; Walter F. Cunningham, of counsel.
   Mr. Justice Gridley

delivered the opinion of the court.


text:
    Fred B. Tidd, trading as Fred B. Tidd Typesetting Company, appellee, v. The General Printing Company, appellant.
    Gen. No. 36,289.
    Opinion filed June 30, 1933.
    Rehearing denied July 11, 1933.
    Harold L. Iekes and Austin Hall, for appellant. Alfred M. Loeser and Kaplan & Kaplan, for appellee; Jacob Kaplan and George Yellen, of counsel.
   Mr. Justice Gridley

delivered the opinion of the court.


text:
    Gertrude La Pook, appellee, v. Charles Sincere et al., trading as Charles Sincere & Company, appellants.
    Gen. No. 36,443.
    Opinion filed June 30, 1933.
    Marshall & Marshall, for appellants; Frank G. Marshall and Abbey Blattberg, of counsel. Kaplan & Kaplan, for appellee.
   Mr. Justice Gridley

delivered the opinion of the court.


text:
    Anna Lakoff et al., complainants, v. Elof I. Peterson et al., defendants. Arthur Freytag, receiver, petitioner and appellee, v. C. S. Jackson, respondent and appellant.
    Gen. No. 36,452.
    Opinion filed June 30, 1933.
    Shapiro & Labkon, for appellant; David W. Labkon, of counsel. Hoffman & Golder, for appellee; G. A. Kappus, of counsel.
   Mr. Justice Gridley

delivered the opinion of the court.


text:
    Chicago Trust Company, administrator of the estate of Harold Elliott, also known as Harold Conway, deceased, plaintiff in error, v. City of Chicago, defendant in error.
    Gen. No. 36,468.
    Opinion filed June 30, 1933.
    McDonnell, Jaehimowski & Sheer, for plaintiff in error; Roy S. Gas-kill, of counsel. William H. Sexton, Corporation Counsel, and Alexander M. Smietanka, City Attorney, for defendant in error; Samuel E. Pineus and John Boyle, Assistant City Attorneys, and Carl J. Appell, Assistant Corporation Counsel, of counsel.
   Mr. Justice Gridley

delivered the opinion of the court.


author: Mr. Justice Seanlan

text:
    Achille Scully, defendant in error, v. L. J. Keefe, plaintiff in error.
    Gen. No. 36,470.
    Opinion filed June 30, 1933.
    Joseph L. Toohey, for plaintiff in error; Edward MeTiernan, of counsel. Louis Greenberg, for defendant in error.
   Mr. Justice Seanlan

delivered the opinion of the court.


text:
    Charles H. Joy et al., appellees, v. Ditto, Inc., et al., defendants. Joseph M. Cheney, appellant.
    Gen. No. 36,518.
    Opinion filed June 30, 1933.
    Knapp, Beye, .Allen, Cochran & Gushing, for appellant; William Beye, R. C. Stevenson and Walter H. Velde, of counsel. Cattell & Waldron, for appellees; Archibald Cattell, Carl A. Waldron and George W. Dammann, of counsel.
   Mr. Justice Seanlan

delivered the opinion of the court.


text:
    Charles H. Joy et al., appellees, v. Ditto, Inc., et al., defendants. K. M. Henderson, appellant.
    Gen. No, 36,519.
    Opinion filed June 30, 1933.
    Knapp, Beye, Allen, Cochran & Cushing, for appellant; William Beye, R. O. Stevenson and Walter H. Velde, of counsel. Cattell & Waldron, for appellees; Archibald Cattell, Carl A. Waldron and George W. Dammann, of counsel.
   Mr. Justice Seanlan

delivered the opinion of the court.


text:
    Evelyn Stein, appellee, v. Chicago Motor Coach Company, appellant.
    Gen. No. 36,563.
    Opinion filed June 30, 1933.
    Rehearing denied July 11, 1933.
    Walter N. Murray, for appellant. Albert H. Elenbogen, for appellee.
   Mr. Justice Seanlan

delivered the opinion of the court.


author: Mr. Presiding Justice Matehett

text:
    F. V. Person, appellee, v. Dr. Max Thorek et al., appellants.
    Gen. No. 36,500.
    Opinion filed July 5, 1933.
    Cohen & Berke, for appellants; H. J. Rosenberg, of counsel. Joseph B. Lawler, for appellee.
   Mr. Presiding Justice Matehett

delivered the opinion of the court.


text:
    Frank Schlegel and Teresa Schlegel, defendants in error, v. Henry S. Banach et al., plaintiffs in error.
    Gen. No. 36,531.
    Opinion filed July 5, 1933.
    Modified and rehearing denied July 17, 1933.
    John A. Blake and Arthur Abraham, for plaintiffs in error. Dana R. Simpson, for defendants in error.
   Mr. Presiding Justice Matehett

delivered the opinion of the court.


text:
    Mildred S. Booth, appellee, v. The Prudential Insurance Company of America, appellant.
    Gen. No. 36,540.
    Opinion filed July 5, 1933.
    Hoyne, O’Connor & Rubinkam, for appellant. Campbell, Clithero & Fischer, for appellee.
   Mr. Presiding Justice Matehett

delivered the opinion of the court.


text:
    B. A. Albert, appellee, v. Liberty Trust and Savings Bank, appellant.
    Gen. No. 36,571.
    Opinion filed July 5, 1933.
    Wilhartz, Hirseh & Sehanfarber, for appellant; Julian H. Levi and J. A. Diamond, of counsel. Herman Waldman, for appellee; Maurice Washer, of counsel.
   Mr. Presiding Justice Matehett

delivered the opinion of the court.


text:
    General Radium Institute, Inc., appellee, v. Commerce Casualty Company, appellant.
    Gen. No. 36,578.
    Opinion filed July 5, 1933.
    Cassels, Potter & Bentley, for appellant; Ralph Potter, John D. DeFeo and E. Douglas Schwantcs, of counsel. Collins, McKenna & McCullough, for appellee.
   Mr. Presiding Justice Matehett

delivered the opinion of the court.


author: Mr. Presiding Justice Matchett

text:
    The People of the State of Illinois ex rel. Oscar Nelson, complainant, v. Citizens Trust & Savings Bank et al., defendants. Appeal of Oliver F. Smith and Ossian Cameron, appellants, v. Erwin J. Zuehls, receiver of Citizens Trust and Savings Bank, appellee.
    Gen. No. 36,618.
    Opinion filed July 5, 1933.
    A. W. Martin and Edward H. S. Martin, for appellants. Edward J. Hess, for appellee.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.


text:
    The People of the State of Illinois ex rel. Oscar Nelson, complainant, v. Citizens Trust and Savings Bank, defendants. Ossian Cameron, appellant, v. Erwin J. Zuehls, receiver of Citizens Trust and Savings Bank, appellee.
    Gen. No. 36,619.
    Opinion filed July 5, 1933.
    A. W. Martin and Edward H. S. Martin, for appellants. Edward J. Hess, for appellee.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.


text:
    John A. Sand, appellee, v. Henry Anderson, appellant.
    Gen. No. 36,683.
    Opinion filed July 5, 1933.
    John E. Wilson, for appellant. Bernard F. Martin, for appellee; Mark H. Ellis, of counsel.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.


text:
    Polar Fluid Company, appellee, v. Coombs Funeral Home, Inc., trading as Coombs-McCready, appellant.
    Gen. No. 36,721.
    Opinion filed July 5, 1933.
    Russell, Murphy & Quigley, for appellant; Walter W. Pearson and Edward Contorer, of counsel. Harry S. Greenstein, for appellee; Harry F. Brewer, of counsel.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.


text:
    Illinois Casket Company, appellee, v. Coombs Funeral Home, Inc., trading as Coombs-McCready, appellant.
    Gen. No. 36,723.
    Opinion filed July 5, 1933.
    Russell, Murphy & Quigley, for appellant; Walter W. Pearson and Edward Contorer, of counsel. Harry S. Greenstein, for appellee; Harry F. Brewer, of counsel.
   Mr. Presiding Justice Matehett

delivered the opinion of the court.


author: Mr. Justice McSurely

text:
    Belle Shapiro, appellee, v. Superior Loan and Mortgage Company et al., appellants.
    Gen. No. 36,686.
    Opinion filed July 5, 1933.
    Albert A. Gomberg and Lowenhaupt & Wolff, for appellants. Arthur Goldblatt and H. Burton Sehatz, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Louis D. Glanz, appellant, v. Meyer W. Goldstein et al., appellees.
    Gen. No. 36,931.
    Opinion filed July 5, 1933.
    Bernhard Stenge and Alex Markels, for appellant. No appearance for appellees.
   Mr. Justice McSurely

delivered the opinion of the court.


author: Mr. Justice O’Connor

text:
    N. P. Severin and A. N. Severin, trading as N. P. Severin Company, appellants, v. American Heating and Plumbing Corporation, appellee.
    Gen. No. 36,556.
    Opinion filed July 5, 1933.
    J. E. Yaffe, for appellants. Marvin A. Jersild and Harold E. Christensen, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    The Cleveland Universal Jig Company, appellee, v. Daco Manufacturing Company, appellant.
    Gen. No. 36,698.
    Opinion filed July 5, 1933.
    Anderson & Roberson, for appellant. Meyer Shapiro, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.


author: Mr. Justice Baldwin

text:
    Second District.
    Loyd W. Lowe, appellee, v. W. R. Hunter et al., appellants.
    Gen. No. 8,562.
    Opinion filed May 19, 1933.
    Rehearing denied June 21, 1933.
    Miller & Shapiro and Evao L. Minor, for appellants. Walter C. Schneider, for appellee.
   Mr. Justice Baldwin

delivered the opinion of the court.


text:
    Alemite Lubricator Company of Illinois, Inc., appellee, v. R. J. Bryhn, Inc., appellant.
    Gen. No. 8,591.
    Opinion filed May 19, 1933.
    Swan Lindskold and B. A. Knight, for appellant. C. A. Pedderson, for appellee.
   Mr. Justice Baldwin

delivered the opinion of the court.


text:
    Laura Christie and John Christie, appellees, v. Eddie Brouillette and Leona Brouillette, appellants.
    Gen. No. 8,602.
    Opinion filed May 19, 1933.
    John A. Mayhew, for appellants. A. L. and C. M. Granger, for apipellees.
   Mr. Justice Baldwin

delivered the opinion of the court.


text:
    The People of the State of Illinois ex rel. Carter Euziere, trading as Leon Euziere Company, appellee, v. William Rice, appellant.
    Gen. No. 8,605.
    Opinion filed May 19, 1933.
    Rehearing denied June 21, 1933.
    Hunter & Minor, for appellant. A. L. and C. M. Granger, for appellee.
   Mr. Justice Baldwin

delivered the opinion of the court.


text:
    B. A. Schmahl, appellee, v. A. F. Jeanblanc et al., appellants.
    Gen. No. 8,608.
    Opinion filed May 19, 1933.
    Edward B. Wingert, for appellants; George W. Hunt, of counsel. H. A. Brooks and F. M. Kaufman, for appellee.
   Mr. Justice Baldwin

delivered the opinion of the court.


text:
    F. C. Harrison, appellee, v. W. G. Michaelsen, appellant.
    Gen. No. 8,618.
    Opinion filed May 19, 1933.
    Frank B. Maynard, for appellant. Welsh & Welsh, for appellee.
   Mr. Justice Baldwin

delivered the opinion of the court.


text:
    S. T. Jackson et al., defendants in error, v. A. E. Anderson and The Belt Route Warehouse and Storage Company, plaintiffs in error.
    Gen. No. 8,623.
    Opinion filed May 19, 1933.
    Miller & Shapiro, W. H. Dyer and John H. Beckers, for plaintiffs in error. Joseph Tolson, Jr., and H. H. Whittemore, for defendants in error.
   Mr. Justice Baldwin

delivered the opinion of the court.


author: Mr. Presiding Justice Wolfe

text:
    Al Simon, appellee, v. Deibler Motor Car Corporation, appellant.
    Gen. No. 8,560.
    Opinion filed May 25, 1933.
    Rehearing denied July 6, 1933.
    Marvin W. Wallach, for appellant. Hall & Hulse, for appellee; Harry A. Hall and Marshall Meyer, of counsel.
   Mr. Presiding Justice Wolfe

delivered the opinion of the court.


text:
    Katherine Harris et al., appellants, v. Nicholas Hildebrandt, appellee.
    Gen. No. 8,568.
    Opinion filed May 25, 1933.
    Myron E. Wisch, for appellants; Benjamin B. Crane, of counsel. Hadley, Weaver & Woodward and Joseph Bonnefoi, for appellee; Joseph Bonnefoi, Palmer Leren and William C. Atten, of counsel.
   Mr. Presiding Justice Wolfe

delivered the opinion of the court.


text:
    In re Estate of Carsten Nickelsen, deceased, appellant, v. Union Bank of Chicago, appellee.
    Gen. No. 8,572.

      Opinion filed May 25, 1933.
    Rehearing denied July 6, 1933.
    Hermann P. Haase and J. Eugene Barber, for appellant; D. T. Smileyf of counsel. Edwards & Block and Schuyler, Weinfeld & Hennessy, for appellee; Sidney H. Block, of counsel.
   Mr. Presiding Justice Wolfe

delivered the opinion of the court.


text:
    George A. Amacker and Harriet M. Amacker, appellees, v. Ferdinand J. Karasek and Marjorie L. Karasek, appellants.
    Gen. No. 8,597.
    Opinion filed May 25, 1933.
    Ferdinand J. Karasek, for appellants and pro se; Harry G. Weaver and William C. Atten, of counsel. Wheeloek, Newey & Mackenzie, for appellees.
   Mr. Presiding Justice Wolfe

delivered the opinion of the court.


text:
    Charlotte Osborn, administratrix of the estate of Roy Osborn, deceased, plaintiff in error, v. Homer L. Parkhill, defendant in error.
    Gen. No. 8,612.
    Opinion filed May 25, 1933.
    Rehearing denied June 23, 1933.
    C. Helnier Johnson, Robert M. Niven and Chester Crabtree, for plaintiff in error. F. A. Ortman and Adsit, Thompson & Herr, for defendant in error.
   Mr. Presiding Justice Wolfe

delivered the opinion of the court.


text:
    William H. Wrigney, appellant, v. Frank W. Lichtweiss, appellee.
    Gen. No. 8,614.
    Opinion filed May 25, 1933.
    Rehearing denied July 6, 1933.
    Frank A. Hall, for appellant. Shurtleff & Niehaus, for appellee.
   Mr. Presiding Justice Wolfe

delivered the opinion of the court.


text:
    A. W. Butterfield, appellee, v. August H. Meins et al., appellants.
    Gen. No. 8,617.
    Opinion filed May 25, 1933.
    Sheldon & Brown, for appellants. Jacob Cantlin and Samuel Rubin, for appellee.
   Mr. Presiding Justice Wolfe

delivered the opinion of the court.


text:
    The Swords Company, appellant, v. Rockford Fibre Container Company, appellee.
    Gen. No. 8,628.
    Opinion filed May 25, 1933.
    C. A. Pedderson, for appellant. Welsh & Welsh, for appellee.
   Mr. Presiding Justice Wolfe

delivered the opinion of the court.


text:
    National Discount Corporation, etc., plaintiff in error, v. Marie P. Forbes, trading as Rockford Automotive, Ltd., defendant in error.
    Gen. No. 8,629.
    Opinion filed June 7, 1933.
    C. A. Pedderson, for plaintiff in error. Welsh & Welsh, for defendant in error.
   Mr. Justice Baldwin

delivered the opinion of the court.


author: Per Curiam.

text:
    Gustav H. Bunge et al., trading as Bunge, Grotefeld & Bunge, appellees, v. Downers Grove Sanitary District, appellant.
    Gen. No. 8,559.
    Opinion filed July 8, 1933.
    Daniel S. Wentworth, for appellant; Joe A. Pearce and Ross G. McClure, of counsel. Alschuler, Putnam, Flannigen & Johnson, for appellees; Edward F. Streit, of counsel.
   Per Curiam.


text:
    H. D. A. Grebe, plaintiff in error, v. Harry E. Miller and Olive B. Miller, defendants in error.
    Gen. No. 8,549.
    Opinion filed September 20, 1933.
    Runyard & Behanna, for plaintiff in error; Eugene M. Runyard and Paul D. Doolen, of counsel. Maurice T. Johnson, for defendants in error.
   Mr. Presiding Justice Wolfe

delivered the opinion, of the court.


author: Mr. Presiding Justice

text:
    The People of the State of Illinois ex rel. Oscar Nelson, auditor of public accounts of the State of Illinois, complainant, v. United State Bank of Crystal Lake, defendant. C. Percy Barnes, administrator de bonis non of the estate of William H. Rupert, deceased, appellee, v. Frank J. Green, receiver for United State Bank of Crystal Lake, appellant.
    Gen. No. 8,633.

      Opinion filed September 20, 1933.
    McKenna, Harris & Schneider, Eugene P. Kealy, Henry H. Koven and William M. Carroll, for appellant; James J. McKenna and Henry H. Koven, of counsel. David R. Jo sly n, Jr., for appellee.
   Mr. Presiding Justice

Wolfe delivered the opinion of the court.


text:
    The People of the State of Illinois ex rel. Anthony Zeimis, appellee, v. Frank G. Gospodaric, appellant.
    Gen. No. 8,672.
    Opinion filed September 20, 1933.
    Frank J. Jones and Ludwig Y. Kuhar, for appellant. Francis J. Loughran and Edward R. Nadelhoffer, for appellee.
   Mr. Presiding Justice Wolfe

delivered the opinion of the court.


author: Mr. Justice Dove

text:
    Sall Brothers Company, defendant in error, v. Jacob Rubin et al., plaintiffs in error.
    Gen. No. 8,644.
    Opinion filed September 20, 1933.
    Welsh & Welsh, for plaintiff in error Jacob Pekarsky. Hall & Dusher, for defendant in error.
   Mr. Justice Dove

delivered the opinion of the court.


text:
    Stella Dombrowsky, appellee, v. Prudential Insurance Company of America, appellant.
    Gen. No. 8,658.
    Opinion filed September 20, 1933.
    Hoyne, O’Connor & Rubinkam and Edwards & Block, for appellant. Cassels, Potter & Bentley and Diver & Populoriim, for appellee; Ralph F. Potter and Robert B. Johnstone, of counsel.
   Mr. Justice Dove

delivered the opinion of the court.


text:
    Beaver Drainage District No. Three of Iroquois County, Illinois, appellee, v. Big Beaver Drainage and Levee District of Iroquois County, Illinois, appellant.
    Gen. No. 8,667.
    Opinion filed September 20, 1933.
    R. F. Goodyear, for appellant. E. A. Mareotte and John H. Beckers, for appellee.
   Mr. Justice Dove

delivered the opinion of the court.


author: Mr. Justice Huffman

text:
    Roxie Toomajan, appellee, v. Harry J. Toomajan, appellant.
    Gen. No. 8,616.
    Opinion filed September 20, 1933.
    Edwards & Block, for appellant; Sidney H. Block and J. E. Bairstow, of counsel. Gerald C. Snyder, for appellee.
   Mr. Justice Huffman

delivered the opinion of the court.


text:
    Charles W. Gelino and Alexander F. Gelino, appellees, v. Fred O. Swannell et al., appellants.
    Gen. No. 8,631.
    Opinion filed September 20, 1933.
    Hunter & Minor, for appellants. Claude M. Granger and Donald Gray, for appellees.
   Mr. Justice Huffman

delivered the opinion of the court.


text:
    Nellie May Ellis, executrix of the estate of Walter A. Righter et al., appellees, v. Walter Blaine Righter et al., appellants.
    Gen. No. 8,645.
    Opinion filed September 20, 1933.
    Rehearing denied December 2, 1933.
    Arthur A. Lowry, for appellants. Adsit, Thompson & Herr, for appellees.
   Mr. Justice Huffman

delivered the opinion of the court.


text:
    The People of the State of Illinois ex rel. Robert M. Gibboney, appellee, v. Board of Education in and for the School District of Rockford, appellant.
    Gen. No. 8,653.
    Opinion filed September 20, 1933.
    Rehearing denied October 10, 1933.
    Roy H. Brown, for appellant. North, Linseott, Gibboney & North, for appellee.
   Mr. Justice Huffman

delivered the opinion of the court.


text:
    George W. Jackson, appellee, v. Illinois Central Railroad Company, appellant.
    Gen. No. 8,662.
    Opinion filed September 20, 1933.
    Hunter & Minor, for appellant; V. W. Foster, of counsel. Miller & Shapiro, for appellee.
   Mr. Justice Huffman

delivered the opinion of the court.


text:
    G. A. Hutchinson, appellee, v. F. G. Simpson, appellant.
    Gen. No. 8,668.
    Opinion filed September 20, 1933.
    Ashcraft & Ashcraft and Charles E. Jack, for appellant; Russell F. Locke, of counsel. J. A. Miller, for appellee; Henry D. Fisher, of counsel.
   Mr. Justice Huffman

delivered the opinion of the court.


author: Per curiam.

text:
    Minnie Kuenzel, administratrix of the estate of Richard Kuenzel, deceased, appellee, v. Chicago Great Western Railroad Company, appellant.
    Gen. No. 8,419.
    Opinion filed September 20, 1933.
    Winston, Strawn & Shaw and Harry G. Weaver, for appellant; Ralph M. Shaw, Walter H. Jacobs, Charles J. MeFadden, Harry G. Weaver and Joseph C. Sibley, of counsel. John A. Bloomingston, for appellee.
   Per curiam.


author: Mr. Presiding Justice Eldredge

text:
    Third District.
    Ada Schultz, appellee, v. Pyramid Mutual Life Insurance Company, appellant.
    Gen. No. 8,620.
    Opinion filed May 22, 1933.
    J. D. Allen, for appellant. W. R. Jewell, for appellee.
   Mr. Presiding Justice Eldredge

delivered the opinion of the court.


text:
    A. F. Dougherty, appellee, v. John P. Brown, appellant.
    Gen. No. 8,654.
    Opinion filed May 22, 1933.
    Edward Free, for appellant. E. C. Mills and Peter Murphy, for appellee.
   Mr. Presiding Justice Eldredge

delivered the opinion of the court.


author: Mr. Presiding Justice Barry

text:
    Fourth District.
    John L. Culbreth, appellee, v. Board of Education of District No. 104, Madison County, Illinois, appellant.
    Opinion filed May 29, 1933.
    Francis J. Manning, for appellant. Karl King Hoagland and Anthony W. Daly, for appellee.
   Mr. Presiding Justice Barry

delivered the opinion of the court.


text:
    Richard Rippley, appellee, v. Reilley Brothers, appellant.
    Opinion filed May 29, 1933.
    Green & Verlie, for appellant; Karl King Hoagland, of counsel. J. B. Harris, for appellee.
   Mr. Presiding Justice Barry

delivered the opinion of the court.


text:
    Oscar Liese et al., defendants in error, v. Jacob Helfrich et al., plaintiffs in error.
    Opinion filed May 29, 1933.
    Eugene W. Kreitner, for plaintiffs in error. Arthur W. Peth and Jas. A. Farmer, for defendants in error.
   Mr. Presiding Justice Barry

delivered the opinion of the court.


author: Mr. Justice Edwards

text:
    W. R. McKernon, plaintiff in error, v. Arvilla S. Smith et al., defendants in error.
    Opinion filed May 29, 1933.
    Pillow & Pillow, for plaintiff in error. W. S. Phillips, Joseph L. Bartley and C. K. Roedel, for defendants in error.
   Mr. Justice Edwards

delivered the opinion of the court.


text:
    Charles Brown, assignee of Lottie Smith, appellee, v. National Life and Accident Insurance Company, appellant.
    Opinion filed May 29, 1933.
    James K. Moran and Philip G. Listeman, for appellant. Frank Summers, for appellee.
   Mr. Justice Edwards

delivered the opinion of the court.


text:
    Charles Agles, plaintiff in error, v. Stolze Lumber Company et al., defendants in error.
    Opinion filed May 29, 1933.
    Ferdinand Tunnell, for plaintiff in error. Donald B. Warnock and Warnock, Williamson & Burroughs, for certain defendant in error.
   Mr. Justice Edwards

delivered the opinion of the court.


author: Mr. Justice Fulton

text:
    Protective Savings & Loan Association, appellant, v. Independence Indemnity Company, appellee.
    Opinion filed May 29, 1933.
    J. P. Drury, for appellant. Kramer, Campbell, Costello & Wieehert, for appellee.
   Mr. Justice Fulton

delivered the opinion of the court.


text:
    J. F. Gillham, executor of the last will and testament of Fred C. Gillham, deceased, appellee, v. Country Club Real Estate Improvement Company, appellant.
    Opinion filed May 29, 1933.
    McMillen, McMillen & Garland and Warnock, Williamson & Burroughs, for appellant. J. F. Beck, for appellee.
   Mr. Justice Fulton

delivered the opinion of the court.


text:
    Mada Wood, appellee, v. Crawford County Mutual Relief Association, appellant.
    Opinion filed May 29, 1933.
    Duane Gaines, for appellant. Sumner & Lewis and Parker, Cox & Eagleton, for appellee.
   Mr. Justice Fulton

delivered the opinion of the court. -


text:
    The People of the State of Illinois ex rel. Oscar Nelson, auditor of public accounts of the State of Illinois, v. Merchants State Bank of Centralia et al. Earl D. Amsler, receiver of Merchants State Bank of Centralia, appellee, v. American Surety Company of New York, appellant.

      Opinion filed May 29, 1933.
    Kramer, Campbell, Costello & Wieehert, for appellant. June C. Smith, Hugh V. Murray, Jr., and R. J. Branson, for appellee.
   Mr. Justice Fulton

delivered the opinion of the court.


author: Mr, Presiding Justice Edwards

text:
    Charles Corcoran, defendant in error, v. Taylor Collieries Company and Taylor Coal Company, plaintiffs in error.
    Opinion filed September 18, 1933.
    Essington & McKibbin and Charles E. Feirieh, for plaintiffs in error. A. D. Morgan and J. Roy Browning, for defendant in error.
   Mr, Presiding Justice Edwards

delivered the opinion of the court.


author: Mr. Justice Murphy

text:
    Margaret Clare (Williams), appellee, v. The Bond County Gas Company, appellant.
    Opinion filed September 18, 1933.
    C. E. Davidson and J. G. Burnsides, for appellant. Meyer & Meyer, for appellee.
   Mr. Justice Murphy

delivered the opinion of the court.


text:
    George Theodorakos et al., appellants, v. Gus Mehilos and Frank Rigas, appellees. Gus Mehilos and Frank Rigas, appellees, v. George Theodorakos et al., appellants.
    Opinion filed September 18, 1933.
    Rehearing denied October 24, 1933.
    E. M. Jacoby and Wilbur A. Trares, for appellants. Wm. B. Boynton, for appellees.
   Mr. Justice Murphy

delivered the opinion of the court.


text:
    Thomas O’Connell, defendant in error, v. Charles L. Chelf, plaintiff in error.
    Opinion filed September 18, 1933.
    John W. Freels, for plaintiff in error; Ropiequet & Freels, of counsel. Beasley & Zulley, for defendant in error.
   Mr. Justice Murphy

delivered the opinion of the court.


text:
    W. F. Wayne, administrator of the estate of Orrin W. Black, deceased, appellee, v. S. L. Wilcoxson, appellant, and Paul Dupee, defendant.
    Opinion filed September 18, 1933.
    Gillespie, Burke & Gillespie and Warnoek, Williamson & Burroughs, for appellant. D. H. Mudge, for appellee.
   Mr. Justice Murphy

delivered the opinion of the court.


author: Mr. Justice Stone

text:
    Martin H. Bultman, plaintiff in error, v. Albert Miller, defendant in error.
    Opinion filed September 18, 1933.
    Pope & Driemeyer, for plaintiff in error. Louis E. Miller and Philip G. Listeman, for defendant in error.
   Mr. Justice Stone

delivered the opinion of the court.


text:
    Electrolux, Inc., appellant, v. Edward J. Hughes, appellee.
    Opinion filed September 18, 1933.
    Charles H. Luecking and W. J. Chapman, for appellant. John B. Harris, for appellee.
   Mr. Justice Stone

delivered the opinion of the court.


text:
    Midwest Dairy Products Corporation, Appellant, v. The Ohio Casualty Insurance Company of Hamilton, Ohio, Appellee.
    Opinion filed September 18, 1933.
    Wham & Wham, for appellant.
    Pope & Driemeyer, for appellee.
   Mr. Justice Murphy

delivered the opinion of the court.

This action was instituted by appellant against appellee in the circuit court of Marion county to recover damages arising out of an alleged breach of the indemnifying provisions of an automobile insurance contract. The declaration contains one count and the contract is set out in Jiaec verba therein. The indemnifying clause involved in the pleadings in this case indemnified appellant against loss or expense for any claim for damages for bodily injuries or death accidentally suffered and arising out of the ownership, maintenance or use of 15 trucks and three automobiles owned by appellant. The declaration avers that during the life of the contract and on July 4, 1931, one of said trucks, while being operated by appellant on a public highway, accidentally caused injury to one lone Reich-man, resulting in her death; that suit was instituted against appellant on said death claim and that upon trial a judgment was entered against appellant for $1,750; that it has paid the same together with attorney fees of $375 incurred by it in the defense of the suit; that notice of said accident and suit was given appellee and that it has failed and refused to indemnify appellant for said amounts.

Appellee filed the general issue and a special plea. A demurrer to the special plea was overruled. Appellant elected to stand by its demurrer. The general issue plea was withdrawn and judgment was entered ' in bar of the suit. The substance of the special plea is that the truck at the time of the accident was being operated in violation of law in that the driver of the truck was employed as a chauffeur and that he was under 18 years of age. The plea is based upon the following provision in the contract: “This policy does not cover any loss, damages or expenses . . . while the automobile insured hereunder is operated or used by any person in violation of law as to age, or in any event under the age of fourteen years.”

At the time of the issuance of the contract and on the date of the accident there was in force in this State a statute which provided, “No person shall operate or drive a motor vehicle who is under fifteen years of age, unless such person is accompanied by a duly licensed chauffeur or the owner of the motor vehicle being operated.” Cahill’s St. 1931, ch. 95a, If 32. Section 27 of the same act, Cahill’s St. ch. 95a, If 28, defined a chauffeur and made provisions for the secretary of state to issue a chauffeur’s license to persons passing an examination and meeting certain other requirements. The act provides, “No chauffeur’s license shall be issued to any person under eighteen years of age.” The act further provides, “No person shall operate or drive a motor vehicle as a chauffeur upon a public highway of this State, unless such person shall have complied in all respects with the requirements of this section.” Section 29 of the act, Cahill’s St. ch. 95a, If 30, is that “No person or corporation shall employ, as a chauffeur or operator of a motor vehicle, any person not specially licensed as aforesaid.”

The question presented is what meaning and effect shall be given to the exclusion clause of the policy. Are the words “operated or used by any person in violation of law as to age or in any event under the age of fourteen years” to be given a construction as limiting it to a violation of law as the minimum age of 15 years or shall it be construed to include a violation of the law as to age limit in reference to licensing chauffeurs Í

Various forms -of exclusion provisions contained in automobile insurance policies have been before the federal courts and courts of review of some of the States. Different conclusions have been reached but the apparent conflict arises more out of the difference in the wording of the policy and the statutes under which they are applied than from a conflict of the application of the legal principles involved.

It is the settled law of this State that contracts of insurance will be liberally construed in favor of the insured so as not to defeat, without necessity therefore, his claim to indemnity. Healey v. Mutual Accident Ass’n, 133 Ill. 556, 566; Kaplan v. United States Fidelity & Guaranty Co., 343 Ill. 44. It is equally well settled that parties competent to contract may enter into binding agreements and in construing such contracts, it is the duty and function of the courts to enforce them as made by the parties. If the language used is not ambiguous and cannot reasonably be construed to have but one meaning, then the rule of construction that requires ambiguous language to be construed most strongly against the insurer has no application. Crosse v. Supreme Lodge Knights & Ladies of Honor, 254 Ill. 80. Some of the cases from other jurisdictions have recognized this rule of construction but held that the wording of the policy was too plain to admit the application of the rule.

In United States Fidelity & Guaranty Co. v. Guenther, 281 U. S. 34, the Supreme Court was considering a provision in an insurance policy which excluded liability if the car was being driven by one who was under the “age limit fixed by law.” In the city where the accident occurred there was an ordinance fixing a minimum age limit under which a person could not drive an automobile upon the streets, and the question was whether under the terms of the policy liability was excluded by reason of the ordinance,. After recognizing this rule of construction, the court said, “ But the rule is equally well settled that contracts of insurance, like other contracts, are to be construed according to the sense and meaning of the terms which the parties have used, and, if they are clear and unambiguous, their terms are to be taken and understood in their plain, ordinary and popular sense.’

“Applying that rule here, we think that when the words of the exclusion clause are taken in their ordinary meaning they are free from any ambiguity that requires them to be construed most strongly against the company. The plain and evident purpose of the clause was to prevent the company from' being held liable for any accident occurring while by reason of the age of the operator the automobile was being operated in violation of law. To that end liability was excluded when the operator was under ‘the age limit fixed by law.’ ”

In Maryland Casualty Co. v. Friedman, 45 F. (2d) 369, the court had before it a policy provision which excluded liability if the car was “being operated by any person under the age limit fixed by law or under the age of sixteen years in any event.” The car insured was being driven by one above the minimum age limit as fixed by the statute of Missouri but under the minimum age for which a chauffeur license could be issued. It was held that there was no ambiguity in the language used and that the plain meaning and intent of the language was to exclude liability if the driver of the car was over the minimum age limit but under the minimum age as it referred to the licensing of chauffeurs.

We do not find in the language used such ambiguity as will permit the adoption of this rule of construction. The words “while the automobile insured hereunder is operated or used by any person in violation of law as to age, ’ ’ are general in their terms and apply to all violations of law as to age wherever the age of the driver of an automobile has been deemed to be of such public concern as to require statutory regulation. The clause of this contract under consideration does not exclude liability for every infraction of the law in reference to licensing chauffeurs. Under its provisions, one might he driving a car as a chauffeur and violate every provision of the law in reference to licensing chauffeurs except as to age and yet if he was over the minimum age of 18 years, it would not exclude the liability of the insurer. The plea in this case is based upon violation of law as to age only. It makes no reference as to whether he had a chauffeur’s license or had complied with the other provisions of the act.

We know of no reason why an insurance company cannot by contract limit its liability to a violation of that part of the chauffeur’s license law referring to age and continue its liability as far as the violation of other provisions of the same act are concerned.

Appellant contends that the age limit of 18 years as provided for in the act is a restriction upon the issuance of the license and not an age limit for the driver of the automobile. In the enactment of these regulatory measures as to driving automobiles, the legislature has deemed the age of the driver to be of such public concern as to require statutory regulation in two instances: First, that no one can drive a car upon the public highway who is under 15 years of age, unless accompanied by a licensed chauffeur or the owner of the automobile being driven, and, second, that no one can drive an automobile as a chauffeur upon the public highways until he has a license. The law expressly prohibits any person from operating a motor vehicle as a chauffeur until he has a license. In other words, he cannot drive a car as a chauffeur until he has a license and he cannot have a license until he is 18 years of age. If one operates an automobile on the public highways as a chauffeur who is under 18 years of age, he is violating a law as to age within the meaning of this clause, the same as one who violates the minimum age law. Maryland Casualty Co. v. Friedman, supra.

Appellant contends that Bitzer v. Southern Surety Co., 245 Ill. App. 295, is controlling in this case. The exclusion clause of the policy in the Bitser case provided that there was no liability “while the car was being operated- by any person in violation of law as to age, or, if there is no legal age limit, under the age of 16 years.” The court there said, “The words ‘if there is no legal age limit’ make it clear that the provision was only intended to apply to a person who was prohibited by law from operating a car, solely because of his age. The law referred to must be one that fixes the age below which no person is permitted to drive. ’ ’ In the suit at bar, the language “in any event under the age of fourteen years” does not modify or in any way reflect the meaning that was intended in the use of the preceding words “in violation of law as to age.” As pointed out, the meaning of the words “in violation of law as to age” is clear and the language which follows does not make that meaning ambiguous but makes provision by contract where there shall not be a liability to the insurer, if the driver is under 14 years of age, notwithstanding a lower age limit may be fixed by law.

There was no error in overruling the demurrer to the special plea.

Judgment affirmed.


text:
    The People of the State of Illinois, Defendant in Error, v. Gola Whitlow et al., Plaintiffs in Error.

      Opinion filed September 18, 1933.
    Rehearing denied October 24, 1933.
    Carl Choisser and Robt. E. Smith, for plaintiffs in error.
    Marion M. Hart, State’s Attorney, and Robert E. Hickman, Assistant State’s Attorney, for defendant in error.
   Mr. Justice Stone

delivered the opinion of the court.

On the 1st day of February, A. D. 1933, the circuit court of Franklin county entered its order adjudging Gola Whitlow, John Moulin and Clyde Lipe, plaintiffs in error, guilty of direct contempt of court and sentencing each of them to the county jail for the period of six months. By writ of error, plaintiffs in error have brought the case to this court for review, alleging that the acts complained of did not constitute a contempt in the presence of the court; but that whatever occurred, occurred outside the courthouse, and not in the ■ presence of the court; that the judgment and sentence of the court is excessive and that the record does not show that plaintiffs in error were present in court when sentence was pronounced. The record consists of the findings and order of the court pronouncing sentence. From this record it appears that at the time in question the circuit court was regularly engaged in carrying on the business of its November term, A. D. 1932; that on January 30, A. D. 1933, the same being one of the judicial days of said court, one of the plaintiffs in error, Gola Whitlow, assaulted Cecil Luther, because he had been a party to a bill for injunction just presented to said court; that said assault took place on the steps of the courthouse as the parties were leaving the courthouse; that the assault was accompanied by threats and intimidations ; that the court was still in session and its usual functions were being carried on; that on the same day, prior to the said assault, said Gola Whitlow, in the courthouse yard, while the court was in session, intimidated one .Tim Weatherford, accused by the said Gola Whitlow of being a party complainant to the same bill for injunction.

The record further discloses that on January 31, A. D. 1933, same being another of the judicial days of said term of said court, John Moulin, another of plaintiffs in error in the court room while court was in session, intimidated and verbally abused one of the parties complainant to said bill for injunction, and threatened him with physical violence because he had a part in causing said bill for injunction to be presented to the court; that shortly thereafter, in the courtyard, on the south side of the entrance to said courthouse, the said John Moulin assaulted one W. M. Bussell, because he believed that the said W. M. Bussell had had a part in bringing the said injunction suit. On both of these occasions the court had in session a petit jury and a grand jury engaged in the regular business assigned to them.

On the same day, Leal W. Eeece, a solicitor for complainants in said injunction suit, on a walk nearby the courtyard and leading to the said courthouse, was violently assaulted by all three of the plaintiffs in error and a great disturbance and commotion was caused in and about the court room; that the commotion and disturbance caused by said assault was so great that it became necessary for the court to dispatch all officers in and about the court down to the courtyard to quiet said commotion, leaving' the jury then and there in deliberation without a sworn officer in charge and leaving the court room and the court without the services of any officers.

There appears no justification for those disturbances, no mitigating circumstances and no just provocation. It is seen that they were brought about by the plaintiffs in error, were concerning one subject matter, the bill for injunction, and were directed against persons connected with of thought to be connected with the said bill for injunction. The assaults were apparently deliberate and organized.

We regard these contempts as committed in the presence of the court within the purview of the law which gives courts power to punish for contempts committed in their presence. Conduct which tends to embarrass or obstruct the court in the administration of justice or which tends to bring the administration of the law into disrespect or disregard constitutes a direct contempt and is punishable as such. (People v. Gard, 259 Ill. 238; Dahnke v. People, 168 Ill. 102.)

A contempt committed in any place set apart for the use of any constituent part of the court during the sessions of the court is committed in the presence of the court. (People v. Cochrane, 307 Ill. 126.) This principle is supported by a great weight of authority in most, if not all, jurisdictions. It could not be otherwise. It would be idle to say that a riot could be carried on in a courthouse yard, in an attempt to prevent free access to the court on court business, making clamor which prevented the court from securing orderly attention to the business before it, and the court be powerless to protect itself against the disturbance and indignity of such an event.

Holding as we do that the contempts were committed in the presence of the court, it is unnecessary to discuss the assignment of error that the court heard the matter without the filing of a formal complaint. The court had plaintiffs in error before it. It appointed counsel to defend them. They had an opportunity to purge themselves by showing that they were not the persons who committed the contempts of which the court already was cognizant. Where acts constituting a direct contempt are committed in the presence of the court an order of commitment may be lawfully made without any preliminary proceedings. (People v. Gard, 259 Ill. 238; People v. Clancy, 239 Ill. App. 369; People v. McDonald, 233 Ill. App. 389.)

The suggestion that plaintiffs in error were not present in court when sentence was pronounced is without merit.

The second paragraph of the court’s order is as follows :

“Whereupon, the defendants, Gola Whitlow, John Moulin and Clyde Lipe, on same day, being in open Court, represented by their attorneys, R. E. Smith and Carl Choisser, the hearing proceeds and sworn testimony is by witnesses presented before the Court; after hearing said testimony, both for the People and for the defendants, and being fully advised in the premises, the Court finds:” This is conclusive of this subject.

It is also assigned as error that the sentence is excessive. The offenses which the court adjudged to be contemptuous were of a vicious character. They were committed in utter disregard of the dignity and orderly procedure of a court regularly in session carrying on the business of the court. They were such as were calculated to and did hinder, delay and disturb the administration of justice. The trial court was in the best position to judge the magnitude of the offenses. We do not feel that we should disturb the judgment of the court on the ground that the sentences imposed were excessive.

Ample opportunity was given plaintiffs in error to purge themselves of the contempt. They failed to do so. We find nothing in the record that would justify a reversal of the judgment. It is, therefore, affirmed.

Judgment affirmed.


author: Mr. Presiding Justice Sullivan

text:
    Wisconsin Bridge and Iron Company, Appellant, v. Missouri-Illinois Bridge Company, Appellee.
    Gen. No. 36,386.

      Opinion filed October 10, 1933.
    Winston, Strawn & Shaw, for appellant; John D. Black, Harold A. Smith and Frank B. Gilmer, of counsel.
    Ryan, Condon & Livingston, for appellee; David J. Greenberg and John M. Tuohy, of counsel.
   Mr. Presiding Justice Sullivan

delivered the opinion of the court.

This appeal ■ seeks to reverse a judgment of the circuit court entered in an action of assumpsit brought by plaintiff, the Wisconsin Bridge & Iron Company, a corporation, against the Missouri-Illinois Bridge Company, a corporation, to recover $24,058.90, principal and interest claimed to be due April 5, 1929, on a written contract, for the erection of the superstructure of a bridge to span the Mississippi river from Louisiana, Missouri, to the Illinois side of the river.

Defendant paid $325,387.61 on the contract price and refused to pay the balance sued for on the ground that it was entitled to withhold that amount as liquidated damages. On the trial the parties agreed that $22,400 was the amount withheld.

At the conclusion of all the evidence offered by both plaintiff and defendant, the trial court held that defendant was entitled to withhold the above amount and, on motion of defendant, directed the jury to bring in a verdict for defendant. Upon return of the verdict judgment was entered against plaintiff, and in favor of defendant for costs.

The declaration alleged the making of the contract for building the superstructure of the bridge and the agreement of defendant to pay therefor; that plaintiff completed the superstructure in accordance with the terms of the contract and that defendant paid certain sums on account, but did not pay in full and is indebted to plaintiff for the balance sued upon; that certain printed specifications attached to and made a part of the contract provided that if either defendant (called purchaser), or plaintiff (called contractor), considers itself aggrieved by any decision of the engineer interpreting the drawings or specifications, it may require the dispute to be finally and conclusively settled by the decision of the arbitrators; that after completion of the work and after the amount due plaintiff was payable, demand was made of defendant for the payment of such balance and defendant refused to pay same. Whereupon plaintiff delivered to defendant a written demand for arbitration in accordance with the contract; that defendant refused to reply to this demand, refused to appoint an arbitrator and refused to arbitrate the matter.

Defendant filed a plea of the general issue and a special plea setting up a certain paragraph of the contract concerning liquidated damages for delaying completion of the bridge; alleged that the bridge was not completed within the time provided by the contract, but was delayed 194 days; that the engineer referred to in the contract decided that 105 days of the delay was caused solely through the fault of plaintiff; and that by reason of such delay there became due and owing to defendant as liquidated damages $22,100, which amount defendant withheld.

Plaintiff filed a replication alleging that the delay in the completion of the bridge was not caused through the fault of plaintiff, nor through causes directly under its control for a period of 105 days, nor for any other period.

No point is directly raised upon the pleadings, except in so far as the trial court held by direction of the verdict that the demand for arbitration was immaterial, and plaintiff did not have the right to require an arbitration in view of the determination by the engineer that 105 days of the delay in the completion of the bridge was caused solely through the fault of plaintiff.

To determine the issues presented by this appeal it is necessary to consider the contract, and certain clauses of the specifications which were made part of the contract, and which are as follows:

1‘ Contract
Between
un , , f Wisconsin Bridge & Iron Company Contractor: j North Milwaukee, Wisconsin.
And
“Purchaser: j Missouri-Illinois Bridge Company
For
Contract No. 2, Superstructure Mississippi River Bridge at Louisiana, Missouri Date
October 6, 1926

“Memorandum oe Agreement, Made and signed this 6th day of October, 1926, by and between Missouri-Illinois Bridge Company, a Corporation of the State of Missouri, the party of the first part, and sometimes termed in this agreement and in the specifications the ‘Purchaser,’ and Wisconsin Bridge & Iron Company, a Corporation of the State of Wisconsin, the party of the second part, and sometimes termed in this agreement and in the specifications the ‘Contractor.’

“Now This Agreement Witnesseth:

“First: The Contractor, for and in consideration of certain payments to be made to him as hereinafter specified, hereby covenants and agrees to perform and execute all of the provisions of the Plans, Specifications, and Proposal and Bid hereto attached and made a part hereof, and to execute in entirety all of Contract No. 2 for Superstructure and to fully finish and. complete the same by November 1, 1927, all in accordance with the Plans and Specifications and such directions as the Engineers may give.

‘ ‘ Second: In consideration for the performance by the Contractor of his covenants and agreements as herein set forth, the Purchaser hereby covenants and agrees to pay the Contractor according to the schedule of prices set forth in the attached Proposal and Bid at the time and in the manner stated in the specifications.

“Third. If the Contractor for Contract No. 1, Substructure fails to complete his worh within the times herein specified, and if in the Engineer’s opinion such failure causes delays to this Contractor, suitable extensions of time to be determined by the Engineers, shall be granted, with due consideration for altered weather and river conditions which may occur under such extended times; and if such delays should require the storing of superstructure metal work at places other than the bridge site, the Engineers shall be authorized to include in monthly estimates suitable allowances on such stored material. (Italics ours.)

“Fourth: The concrete pavement in Mansion Street shall be ready for traffic by May 15, 1927.”

“Clause No. 4, Sec. S. Scope op Contracts.

‘ ‘ The work of construction may be divided into four contracts and Contractors may bid upon any or all of them. Contract No. 1, for substructure, will include furnishing all materials and constructing complete all piers, pedestals and abutments; Contract No. 2, for superstructure, will include furnishing, manufacturing, and erecting all the superstructure including the reinforced concrete floor, the pavement thereon, and the lighting system on both steel structure and embankments; Contract No. 3, for grading and paving, will include the grading and paving in Mansion Street between Third street and the end of the bridge, the construction of the embankment and pavement thereon at the Illinois end of the structure, and the fences on embankment; Contract No. 4, for the entire bridge will include furnishing all materials and constructing the entire project including everything covered under Contracts 1, 2 and 3.”

(Contracts were let separately. Plaintiff was awarded contract No. 2 for superstructure only.)

“Clause No. 5, Sec. S. Program of Construction and Times of Completion.

“The entire structure is to be completed ready for traffic November 1, 1927. The several contractors shall conduct their operations in harmony with a general program of construction to be arranged to the satisfaction of the Engineers when the contracts are let, and designed to secure the earliest practicable completion of the work. The sub-structure shall be completed consecutively from one end of the bridge so that < the superstructure may be delivered and erected in the same consecutive order.

“Clause No. 6, Sec. S. Liquidated Damages for Delayed Completion.

The bridge is to be operated as a toll structure and delay in the completion will cause loss to the Purchaser not only of interest on the investment, but also loss of earnings, hence the times of completion are essential elements of the contract. To cover partially such losses the Purchaser shall deduct from any payments due or which may become 'due the Contractor for the substructure, as liquidated damages fixed and agreed to in advance, the sum of $200.00 for every day, Sundays included, of delay in completing the piers according to the above schedule, which delays the erection or delays the final completion of the bridge. The dates set for "completion contemplate average conditions of river during the intervening period. The substructure Contractor shall provide cofferdams and equipment so that he can work without interruption up to at least a stage of 12 ft. above low water. If, in the opinion of the Engineers, a greater than normal amount of water above elevation 12 occurs and delays the Contractor’s operation, there shall be allowed a corresponding number of days, as may be determined by the Engineers, beyond the dates above mentioned for completing a part, and for completing all of the piers without the assessment of liquidated damages against the Contractor.

“For any delay in completion of the entire bridge beyond November 1, 1927, the Purchaser shall deduct from payments-due or which may become due the Contractor erecting the superstructure the sum of $200.00 per day; but if the substructure is constructed by a separate Contractor, and if in the opinion of the Engineers, the erection is delayed solely by delays in completion of parts or all of the substructure beyond the dates herein specified, allowance shall be made for the number of days of such delay.

“In addition to such liquidated damages, the Purchaser shall also deduct from payments which may become due the Contractor for any contract, the sum of $400.00 per month to cover all costs of engineering supervision and inspection applied to said contract after the required dates for completion.

“Clause 1, Sec. R-O. Arrangements'of Specifications.

“For convenience of reference and index, the specifications are divided into Sections, which are further divided into numbered clauses with headings. Any particular arrangement or order of these divisions and subdivisions, or the wording of any heading shall have no bearing on the interpretation, nor any limiting effects upon parts or the whole of the specifications. . . . (Italics ours.)

“Clause 2, Sec. R-O. Supervision and Inspection.

“ . . .If either the Purchaser or the Contractor considers himself aggrieved by any decision of the Engineer interpreting drawings or specifications, he may require the dispute to be finally and conclusively settled by the decision of arbitrators, one to be appointed by the Purchaser and a second by the Con? tractor. In case the two arbitrators thus chosen fail to agree a third arbitrator shall be appointed by...... By the decision of these arbitrators, or by that of the majority of them, both parties to this agreement shall be finally bound.” (Italics ours.)

“Clause 16, Sec. R-O. Delays and Delayed Completion.

“ . . . If it appears to the Engineers that the Contractor is delayed by conditions beyond his control, or by conditions of weather, times and seasons, and rivers or streams, so unusual as not to be reasonably anticipated, additional time for completion of the contract will be allowed, to be determined and fixed by the Engineers and Purchaser. ...”

It appeared that it was decided by the engineer, and the parties agreed, that construction of the bridge would be commenced on the west or Missouri side of the river; that the contract for the substructure called for the building of a concrete abutment on a high bluff on the western shore of the river to support the Louisiana, Missouri, end of the bridge; five concrete pillars about 90 feet high at various points in the river, toward the Illinois side, to carry the truss spans and concrete pedestals of various heights on the flat, on the Illinois side of the river, to support the girder spans comprising the approach to the bridge on that side; that the concrete piers in the river were numbered, beginning with the westernmost pier, as Nos. 1, 2, 3, 4 and 5; that the metal truss spans composing the bridge proper were all 312 feet long, except the center span which was 417 feet; and that the spans were designated as Nos. 1, 2, 3, 4 and 5, No. 1 span being built from the concrete abutment on the west side of the river to pier No. 1, which was just at the edge of the water, No. 2 from pier No. 1 to pier No. 2, and so on.

It further appeared that under the terms of the contract piers No. 1 and No. 2 were to be completed by June 1, 1927, but because of circumstances over which the substructure contractor had no control and for which it was not held responsible, they were not completed until August 22, 1927, 83 days later .than the contract provided; that the delay in the construction of piers Nos. 1 and 2 delayed the plaintiff in the erection of the superstructure, for which delay the engineer advised defendant that plaintiff was entitled to an allowance of 82 days’ extension of time for the completion of the bridge (contract provided for completion November 1, 1927); that while the spans were being put in place they required -temporary support and this was afforded by erecting temporary “bents,” two between each pair of piers, about equally spaced, and these were built by driving two clusters of piles, one upstream and one downstream, about the width of the bridge apart, connecting them with crossbeams, putting steel tops on the clusters of piles and a steel “tower” or framework from the top of the piling up to the level of the bottom of the bridge; that, after the upper arch of the truss was completed, these “bents” and the pilings were removed, and that until the upper arch was completed these “bents” carried most of the weight of the superstructure; that plaintiff had completed span No. 1, August 3,1927, and had pushed out span No. 2 halfway toward pier No. 2 at the time pier No. 2 was completed, August 22, 1927; that September 6, 1927, when span No. 2 was nearing completion, requiring only a few days’ more work to reach and tie to pier No. 2, the piling and “bents” slipped out from under it and span No. 2 fell into the river; that August 3, 1927, a conference was held in an effort to expedite the erection of the bridge and plaintiff agreed that it would endeavor to conform to a new schedule for the completion of the various stages of the building of the piers and the erection of the superstructure; that while the work of removing the wreckage of span No. 2 from the river was in progress, the work of driving piling for the falsework or “bents” for the other spans continued, and span No. 2 was completed by the use of the steel that was on the ground for span No. 4; that September 18th or 20th, work was started driving piles for “bents” for span No. 3, and continued across the river for the other spans; that about October 10, 1927, high water carried out the piling that had been driven for spans No. 3 and No. 4; that the new span No. 2 was completed about December 1, 1927, and “bents” had been placed on top of new sets of piling that had been driven for span No. 3, when the weather turned cold and ice began to come down the river, cutting* the piling, some of the piles being cut clear off; that about December 12, 1927, the “bents” for span No. 3 were taken down in order to save them, and from that time until January ice froze around and took out some of the clusters of piles; that when the river froze about December 12th, rendering it impossible to work on the truss or river spans, plaintiff proceeded with the erection of the girder spans on the east side of the river that constituted the eastern approach to the bridge proper; that the heavy ice finally went down the river about February 20, 1927. It also appeared that there was no time between December 5 or 8, 1927, until the last week in February, 1928, when it was safe to put the falsework in the river to sustain the spans of the bridge because of the high water and ice; that February 27, 1928, plaintiff started to put in the false-work or “bents” for spans Nos. 3, 4 and 5, and the work on the spans was pushed with a' crew of workmen from each end; that thereafter sleet, wind and rain prevented the men from working at least seven days, inasmuch as it was unsafe on these days to work on slippery steel 100 to 150 feet above the river; and that all of the steel in the superstructure had been put in place March 30, 1932.

Plaintiff contends that the delay of 83 days in the completion of pier No. 2, by the contractor building the piers, entitled plaintiff, under the terms of the contract, to a positive extension of time from November 1, the date provided in the contract for the completion of the superstructure, of 83 days, or until January 22, 1928; that ice appeared in the river about December 8, 1927, making it impossible to work on the spans above the river until the ice went out about February 20, 1928; that due consideration for altered weather and river conditions again extended the time of plaintiff for the completion of the bridge; that the plaintiff actually completed the work well within the time that it was entitled to under the contract under all of the existing conditions, and that therefore defendant had no right to withhold any part of the payments due under the contract.

Defendant’s theory is that the engineer had the sole right to determine whether plaintiff was delayed by conditions beyond his control or by conditions of weather, river, etc., and to determine the number of days ’ allowance for such delay; and that the finding of the engineer that plaintiff was chargeable with 105 days’ delay is conclusive.

The printed specifications were attached to and explicitly made a part of the contract. Clause 1, sec. R-O., of the specifications, provided that any particular arrangement or order of the divisions or subdivisions, or the wording of any heading “shall have no bearing on the interpretation or any limiting effect upon parts or the whole of the specifications.”

Defendant insists that under the contract the engineer’s decision is final on the number of day’s delay in the completion of the bridge which are chargeable to plaintiff, and points to clause 3 of the contract, which is as follows:

“Third: If the Contractor for Contract No. 1, Substructure fails to complete his worh within the times herein specified, and if in the Engineer’s opinion such failure causes delays to this Contractor, suitable ex=tensions of time to be determined by the Engineers, shall be granted, with due consideration for altered weather and river conditions which may occur under such extended times; ...”

We have carefully examined the cases cited in support of defendant’s argument and they are readily distinguishable from the instant case. There was no provision in the contract under consideration in any of those cases for arbitration, in the event that either or- both of the parties considered itself or themselves aggrieved by any decision of an engineer interpreting drawings or specifications. The contract under consideration in this cause contained the following provision:

. . .If either the Purchaser or the Contractor considers himself aggrieved by any decision of the Engineer interpreting drawings or specifications, he may require the dispute to be finally and conclusively settled by the decision of arbitrators, one to be appointed by the Purchaser and a second by the Contractor. In case the two arbitrators thus chosen fail to agree a third arbitrator shall be appointed by...... By the decision of these arbitrators, or by that of the majority of them, both parties to this agreement shall be finally bound.”

Defendant urges that if the parties meant or intended that this provision should have any binding force at all, it was only meant to cover the interpretation of specifications having to do with charts, drawings, quantities or qualities of material and like technical matters. There is no force to this contention. There is less logic and reason for a resort to arbitration on an engineer’s decision, which concerns matters that are purely and strictly technical and the knowledge of which is peculiarly within the possession of a man in the engineering profession, than on a decision of an engineer concerning delay in the completion of a bridge and the cause or causes of such delay.

There is no ambiguity about the provision of the contract concerning arbitration. There would be no occasion for the agreement to arbitrate if the decision of the engineer was intended to be final. The contract anticipated decisions by the engineer in the first instance and resort to arbitration in the event that either or both parties to the contract were not satisfied with such decisions.

Defendant cites Cocalis v. Nazlides, 308 Ill. 152, 155, in support of its contention that the “agreement for arbitration was in no sense binding on defendant.” Bather than supporting defendant’s contention this case sustains the legality of agreements for arbitration. On page 155 of this decision, the' court said:

“Arbitration by agreement of parties as a method of settling disputes and controversies by substituting an arbitrator or arbitrators for a court proceeding according to the course of the common law was recognized at the common law, and an award might be enforced by an action at lhw, or in a proper case a party could call upon a court of equity to compel a specific performance of the award. (Ballance v. Underhill, 3 Scam. 453.) Specific performance of an agreement to arbitrate a present existing controversy would not be decreed by a court of equity, and until an award was made the authority of the arbitrators was subject to revocation by either party to the submission, except when the reference to arbitrators was by a rule of court. (Paulsen v. Manske, 126 Ill. 72; Morse on Arbitration, 230; People v. Nash, 111 N. Y. 310.) Section 3 of the statute revising the law in relation to arbitration and awards now provides that a submission to arbitration shall, unless a contrary intention is expressed therein, be irrevocable. That provision does not violate any constitutional right, and the common law rule that either party might revoke a submission at any time before an award was made and take from the arbitrator all power to make a binding award has been modified in that particular. White Eagle Laundry Co. v. Slawek, 296 Ill. 240.”

That possible disputes concerning delay in the completion of both the substructure and superstructure of the bridge were anticipated by the parties to the contract is evidenced by clause 3 of the contract, supra, and by clause 16, sec. B-O. of the specifications, which reads as follows:

“ . . . If it appears to the Engineers that the Contractor is delayed by conditions beyond his control, or by conditions of weather, times and seasons, and rivers or streams, so unusual as not to be reasonably anticipated, additional time for completion of the contract will be allowed, to be determined and fixed by the Engineers and Purchaser. . . .”

It appears that both parties were dissatisfied with the decision of the engineer on the liability of the respective parties for delay in the completion of the bridge and that plaintiff, after requesting payment of the unpaid balance claimed to be due it on the contract, made a formal demand on defendant for arbitration of the_ question of delay and the cause or causes of delay, naming the person selected as its arbitrator. Defendant ignored this demand and by reason of its refusal to conform to the arbitration provisions of the contract plaintiff was compelled to resort to a court of law for adjudication of its claim.

We are of the opinion that the contention of plaintiff that the delays in the completion of the bridge, their duration, what caused them, and the liability for them, were clearly questions of fact that the court should have permitted the jury to pass upon, is meritorious, and that the court erred in refusing to submit them to the jury for its consideration. To hold otherwise would be to hold that a party to a contract providing for arbitration by refusing to comply with its clear, unmistakable terms, could preclude the other party from redress for claimed grievances.

The contract provided for extension of time to plaintiff if failure of the contractor on the substructure to complete his work on time delayed plaintiff, and that “due consideration should be given by the engineer for altered weather and river conditions which may occur under such extended times.” The specifications also particularly provided for extensions of time in the event of the occurrence of conditions beyond plaintiff’s control, or by condition of weather, times and seasons. The engineer allowed plaintiff some extension of time, but plaintiff insists that the engineer was not justified in holding it responsible for 105 days’ delay. Other contentions have been urged, but in the view we take of this appeal we deem it unnecessary to discuss them. Inasmuch as this cause will undoubtedly be tried again, we have refrained from an extended discussion of the evidence.

For the reasons indicated herein, the judgment of the circuit court entered in pursuance of a directed verdict in favor of defendant is reversed and the cause remanded.

jReversed and remanded.

Gridley and Scanlan, JJ., concur.


author: Mr. Justice Gridley

text:
    The People of the State of Illinois ex rel. Oscar Nelson, Auditor of Public Accounts of Illinois, Complainant, v. Sheridan Trust & Savings Bank, Defendant. Martha Washington Candies Company, Appellant, v. Ernest Ridgeway, Receiver for Sheridan Trust & Savings Bank, Appellee.
    Gen. No. 36,198.

      Opinion filed October 10, 1933.
    Rehearing denied October 23, 1933.
    J. Lester Williams and Marvin Wallach, for appellant ; J. Lester Williams, Jr., of counsel.
    Brundage, Landon & Holt, for appellee; Floyd E. Britton, of counsel.
   Mr. Justice Gridley

delivered the opinion of the court.

This is an appeal by the Martha Washington Candies Company, a corporation (hereinafter called the Candy Co.) from an order or decree of the circuit court, entered June 16, 1932, denying it a preferred claim, as to $25,000 of its total claim, in the assets of the Sheridan Trust & Savings Bank (hereinafter called the Sheridan Bank), which was closed by the auditor of public accounts of Illinois on June 6, 1931, followed shortly thereafter by the appointment of Ernest Ridgeway, as receiver.

In the intervening petition of the Candy Co., filed on October 6, 1931, a part of the prayer is that “an order be entered herein, directing the receiver to turn over to petitioner the sum of $25,000, plus interest and costs, — the same having come into the possession of the receiver by reason of the deposit of a bill of exchange of said amount with the Sheridan Bank drawn June 4, 1931, on the First National Bank of Kansas City, Missouri, and having been by it honored and paid.” In the receiver’s answer he denied that any part of the Candy Co.’s total deposit in the Sheridan Bank was a trust fund or preferred claim, and particularly denied the right of the Candy Co. to have the sum of $25,000 adjudged as a preferred claim. On October 7, 1931, on the receiver’s motion, the issues raised by the petition and answer were referred to a master in chancery to take evidence and report the same, together with his conclusions of fact and law. On the hearing before the master during April, 1932, certain material facts were stipulated to, certain documentary evidence was introduced, and the testimony of William J. Heffernan, assistant general manager of the Candy Co., was heard. During May, 1932, the master’s report was filed, in which the material findings are in substance as follows:

That on the day the Sheridan Bank was closed by. the State auditor (Saturday, June 6, 1931), the Candy Co. had two accounts with the bank, — a general checking account and a payroll account; that the balance in both accounts to the credit of the Candy Co. amounted to $42,852.80 (of which the sum of $25,000 in controversy was a part)that the Candy Co. -was not indebted to the bank, nor did the bank have any equitable set-off against any part of said amount of $42,852.80; that on June 4, 1931, the general account of the Candy Co. with the bank was credited with the sum of $25,000, “conditional, however, upon final collection and payment in money or solvent credits” of a certain bill of exchange or check for said sum, drawn by the Candy Co. upon its account at the First National Bank of Kansas City, payable to the order of itself, and indorsed by it “for deposit only,” which instrument was on said day deposited with said Sheridan Bank “for collection”; that on the following day (June 5th) the instrument was deposited by the Sheridan Bank with the Foreman-State National Bank of Chicago (hereinafter called the Foreman Bank) “for collection,” and was credited to the Sheridan Bank’s account at the Foreman Bank “conditional upon final payment thereof in money or solvent credits”; that the Foreman Bank forwarded the instrument by mail to the Federal Reserve Bank of Kansas City, with instructions to collect the amount of it and “remit the proceeds to the Federal Reserve Bank of Chicago, to be credited to the account of the Foreman Bank”; that in accordance with the instructions the Federal Reserve Bank of Kansas City, on June 6, 1931, presented the instrument to the First National Bank of Kansas City for payment, and on that day received payment of the amount and “remitted the proceeds to the Federal Reserve Bank of Chicago,” which last named bank “received the proceeds on June 6, 1931, and credited the account of the Foreman Bank with the sum on said date”; that “the credit of the sum of $25,000 of the Foreman Bank became final at the close of the business day on June 6, 1931; and that the conditional credit to the Sheridan Bank’s account at the Foreman Bank, and the conditional credit to the Candy Co.’s account at said Sheridan Bank, became simultaneously final, unconditional, solvent credits, respectively.”

The master further found that the “Sheridan Bank received the proceeds of the check for $25,000, in solvent credits, before the Auditor of Public Accounts took possession of the Sheridan Bank, on to wit, Monday, June 8, 1931, at about 8 o’clock, a. m.; and that said sum is not impressed- with a trust.” And the master recommended that “the balance in the hands of the receiver and credited to the account of the petitioner herein, amounting to $37,499.50” (which includes the $25,000 here involved) “be allowed as a general claim, payable in due course of administration.”

On May 19, 1932, the court, having considered the master’s report and having directed that the Candy Co.’s objections thereto stand as exceptions, entered an order making certain adjudications as to the claims of the Candy Co. concerning $17,852.80 of its total deposit of $42,852.80 in the Sheridan Bank at the time it was closed by the State auditor. These particular adjudications are not here material and may be disregarded. In the order it is further adjudged:

“That the court reserves jurisdiction solely on the question of the single item of $25,000, to determine on further hearing by the court whether or not same shall be impressed with a trust and paid as a preferred claim according to the exceptions of the intervening petitioner (Candy Co.) or whether same is to be allowed as a general claim and paid in due course of administration according to the report of the master herein, which said hearing is set for June 2, 1932, before the court.”

During June, 1932, there was a hearing in open court as to the item of $25,000, based upon the pleadings, the master’s report and exceptions thereto, the facts as stipulated before the master and the evidence taken before him, and certain additional documentary evidence introduced before the chancellor. At the conelusion of the hearing the court on June 16, 1932, entered the order or decree in question, in which the court made findings in substance as follows:

(1) . That on June 4, 1931, the sum of $25,000 was credited in the pass-book of the Candy Co. to its account with the Sheridan Bank, “conditional upon the final collection and payment in money or solvent credits of a certain bill of exchange for said sum, drawn by the Candy Co. upon its own account at the First National Bank of Kansas City, payable to the order of itself and endorsed by it ‘for deposit only, transfer $25,000’ which said bill of exchange was deposited with the Sheridan Bank for collection.”

(2) . That the bill of exchange was deposited on June 5, 1931, by the Sheridan Bank with the Foreman Bank “for collection,” and was credited to the Sheridan Bank’s account at the Foreman Bank “conditional upon final payment thereof in money or solvent credits.”

(3) . That the Foreman Bank forwarded bill of exchange by mail to the Federal Reserve Bank of Kansas City “with instructions to collect and remit the proceeds to the Federal Reserve Bank of Chicago to be.credited to the account of the Foreman Bank.”

(4) . That in accordance with the instructions the Federal Reserve Bank of Kansas City on June 6,1931, presented the bill of exchange to the First National Bank of Kansas City for payment and “received payment thereof on June 6, 1931, and remitted the proceeds after the close of business on said date” and that “the Federal Reserve Bank at Chicago received said proceeds on June 6,1931” and, subject to ‘Regulation J’, credited the account of the Foreman Bank with said sum on said date.”

(5.) That the conditional credit of $25,000 on the books of the Foreman Bank to the Sheridan Bank “became final and unconditional at the close of business on June 6, 1931”; that said conditional credit to the Candy Co. by the Sheridan Bank “became, simultaneously, final and unconditional”; and that “said credits at the Federal Reserve Bank of Chicago and at the Foreman Bank were respectively solvent credits.”

And the court adjudged in substance:

That the exceptions of the Candy Co. to the master’s report are overruled, and his report in all respects approved and confirmed.

That the prayer of the intervening petitioner (viz., that the $25,000 be refunded to it and that a trust be declared with relation thereto against cash on hand and in banks which came into the possession of the receiver for the Sheridan Bank) “be and the same is hereby denied,” and that “the balance of the amount (including said $25,000) standing to the credit of the intervening petitioner on the books of the Sheridan Bank, to-wit, the sum of $37,499.50, be and is hereby allowed as a general claim against the estate of said bank, to be paid in due course of administration.”

Supplementing the facts as found by the master and the court, the following facts also appear from the evidence:

The Candy Co. operated a chain of candy stores in the United States. Its main depositary was the Sheridan Bank at Chicago, and among its numerous other depositaries was the First National Bank at Kansas City. In its business dealings with the Sheridan Bank it had never drawn against uncollected deposits. It had in the past frequently transferred funds, standing to its credit in the Kansas City Bank, to its credit in the Sheridan Bank and had done so by the same method as adopted in the present transaction. And it had ascertained by the former transfers that, as to drafts drawn against its account in the Kansas City bank and deposited with the Sheridan Bank for collection, the time usually required for said drafts “to clear,” and the money to become definitely available to it in Chicago, was about four days. On Thursday, June 4,1931, the Candy Co., at Chicago, drew the draft or bill of exchange for $25,000 on the First National Bank of Kansas City. It is post-dated “Chicago, June 5, 1931” and is payable to the order of “ourselves.” On the back is the indorsement of “Transfer $25,000, for deposit only,” followed by the signature of the Candy Co. by its vice president. The instrument, so indorsed and accompanied by the usual deposit slip, was deposited with the Sheridan Bank, “for collection,” on June 4th, and the item was conditionally credited to the Candy Co. in the pass-book, also then presented. Among the printed notations on the back of the deposit slip, as well as in the pass-book, were the following:

“All items credited conditionally, subject to final payment and the right to charge back pending final settlement of the proceeds thereof in money. In receiving items for deposit, or collection, this Bank acts only as depositor’s collecting agent and assumes no responsibility beyond the exercise of due care. All items are credited or cashed subject to final payment in cash or solvent credits. . . . This Bank or its correspondents may • send items directly or indirectly to any bank including the payor, and accept the draft or credit of such bank as conditional payment in lieu of cash. . . .”

On the same day (June 4th) the Sheridan Bank, by its cashier, indorsed the bill of exchange “Pay to the order of Foreman Bank, all prior endorsements guaranteed,” and on June 5th deposited it “for collection” in its account at the Foreman Bank, and the amount thereof was there conditionally credited to the Sheridan Bank’s account “subject to final payment in cash or solvent credits.” The Foreman Bank then indorsed it, ‘ Sheridan Bank, pay through Chicago Clearing' House, 18, June 5, 1931,” and also, “Pay to the order of any bank or banker; all prior endorsements guaranteed.” And the Foreman Bank, being a member of the Federal Beserve System, prepared a list of items, totaling $26,683.36 (of which the $25,000 item was one) and mailed the instruments, for collection, to the Federal Beserve Bank of Kansas City with a letter as follows: “We enclose the following items for our credit with the Federal Beserve Bank at Chicago; telegraph non-payment of items $500 or over.” And simultaneously on June 5th, the Foreman Bank, by virtue of an arrangement between banks and a certain “Time Schedule,” sent a notice to the Federal Beserve Bank at Chicago for a “deferred credit” of said sum of $26,683.36, under the provisions of “Begulation J” óf the Federal Beserve Board. The notice, under a heading “One Calendar Day Points,” stated: “We have today sent cash letters direct to the Federal Beserve Banks and branches listed below to be- credited to our reserve account on June 6, 1931.” The purpose of this notice evidently was that the items (including the $25,000 item), forwarded to a point one day distant, could be credited to the Foreman Bank by the Federal Beserve Bank at Chicago on June 6,1931, thereby permitting said items to be computed in the Foreman Bank’s reserve of that date. It appears that the various Federal Beserve Banks, including those at Chicago and Kansas City, maintain a gold reserve at Washington, D. C., subject to the daily balancing of credits between them; that at the close of business on any day each bank advises by telegram the Federal Beserve Board at Washington as to the amounts each holds for the credit of other banks, and from the gold reserve of the reporting bank there is transferred to the gold reserve of the respective banks such funds as may be necessary to settle the credits; and that in section IY of “Regulation J,” under the heading “Time Schedule and Availability of Credits,” it is provided:

“(1) Each Federal reserve bank will publish a time schedule showing the time at which any item sent to it will be counted as reserve and become available for withdrawal or other use by the sending bank. For all checks received, the sending bank will be given immediate credit, or deferred credit, in accordance with such time schedule, and as provided below. . , .

“(3) For all such checks as are received for deferred credit in accordance with such time schedule, deferred credit, subject to final payment, will be entered upon the books of the Federal reserve bank at full face value, but the proceeds will not be counted as reserve nor become available for withdrawal or other use by the sending bank until such time as may be specified in such time schedule, at which time credit will be transferred from the deferred account to the reserve account or clearing account subject to final payment, and will then be counted as reserve and become available for withdrawal or other use by the sending bank, provided, however, that the Federal reserve bank may in its discretion refuse at any time to permit the withdrawal or other use of credit given for any item for which the Federal reserve bank has not yet received payment in actually and finally collected funds.”

The bill of exchange in question was, about noon on Saturday, June 6, presented for payment by the Federal Reserve Bank of Kansas City to the First National Bank of that city, and the last named bank paid it. On the same day the Federal Reserve Bank at Chicago, on the original notice (which the Foreman Bank had sent to it on June 5, as to the deferred credit on said items aggregating $26,683.36) made the indorsement “Available Jun. 6, 1931; entered Jun. 6, 1931; Bookkeeping dep’t.” On the same day at Kansas City the Federal Reserve Bank of that city mailed to the Federal Reserve Bank at Chicago a letter of advice that said items, aggregating $26,683.36 and including the.$25,000 in question, had been paid, and that the said Chicago Federal Reserve Bank had been credited with said sum. This letter was not received by the Federal Reserve Bank at Chicago, until Monday morning, June 8,1931, which was after the State auditor had closed the Sheridan Bank and had taken possession of its assets. Thereafter appropriate bookkeeping entries were made to the effect that the $25,000 item was received by the Foreman Bank, on its account with the Sheridan Bank, and by other appropriate entries that said item had been received by the Sheridan Bank. It was stipulated that at the time the Sheridan Bank was closed by the auditor on the evening of Saturday, June 6,1931, it was largely indebted to the Foreman Bank, but that the Foreman Bank then held large amounts of collateral sufficient to satisfy said indebtedness and to create an over-plus. No point was made on the hearing before the chancellor, nor is it made here, that at the time of the filing of the Candy Co.’s petition there were not sufficient funds in the hands of the receiver of the Sheridan Bank available to pay the claim of the Candy Co., if it should be adjudged that the same was impressed with a trust and should be considered as a preferred claim.

Counsel for the receiver of the Sheridan Bank, in their brief here filed, make the following statement (italics ours):

“The issue in this case is simple. Appellant (Candy Co.) claims the agency to collect the item in question was never completed before the auditor of public accounts took possession of the Sheridan Bank. Appellee (the receiver) claims it wqs completed.. The terms of the agency were simple. Appellant deposited .the item for collection and credit to its account at the Sheridan Bank pursuant to a deposit contract on the back of the deposit slip, the essential portion of which is the sentence: ‘All items are credited or cashed subject to final payment in cash or solvent credits.’ If the bank received ‘final payment in cash or solvent credits’ before 8 A. M., Monday, June 8, 1931, when the auditor took possession of the bank, the agency had been completed and the relation of debtor cmd creditor established between the bank and appellant. If the bank had not by that time received ‘final payment in cash or solvent credits,’ the agency had not been completed, and appellant is entitled to a return of the proceeds of the item out of the fund consisting of cash on hand and in banhs which came into the possession of the receiver. (Citing People v. Auburn State Bank, 215 Ill. App. 133.) ”

Counsel for appellant (the Candy Co.) in their brief make the following statement (italics ours):

“The ordinary relationship of a cash depositor and the bank is that of Debtor and Creditor, and, if such be the relationship established here, then the Candy Co. is not entitled to a preference on its claim for the item of $25,000. But, where, instead of cash, a bill of exchange, post-dated, is placed with a bank for collection on a distant point, restrictively endorsed, intervening petitioner submits that not until the agency for collection terminates does the relation of Debtor and Creditor come into existence — and that in the instant case, it never came into existence.”

After a careful review of the stipulated facts and other evidence in the record, the exhaustive and able briefs of respective counsel, and numerous authorities and adjudicated cases, we are of the opinion that the Candy Co. is entitled to a preferred claim as to said sum of $25,000, to be paid out of the estate of. tji§ Sheridan Bank now in possession of the receiver, and that the court erred in entering the decree appealed from, wherein the court adjudged that said sum be allowed to the Candy Co. “as a general claim against the estate of said bank, to be paid in due course of administration. ’ ’

Among the material facts in the present case is the fact that when on June 4, 1931, the Candy Co. deposited the bill of exchange “for collection” with the Sheridan Bank, it not only was post-dated (June 5,. 1931) but it bore the payee’s (Candy Co.) indorsement “for deposit only.” Such an indorsement is a restrictive one and gives notice to all subsequent holders of the restriction. In 3 R. C. L., p. 1079, sec. 283, it is said: “A restrictive indorsement — ‘for deposit,’ ‘for collection,’ or the like — gives to all subsequent holders of the instrument express notice that the restricted indorsee has no property in the bill or note, and that he is a mere trustee, without authority to appoint a sub-agent except for the purpose of holding the paper or money on the same trust.” (See, also, First Nat. Bank of Sioux City v. Morrell & Co., 53 S. D. 496, 498.) This is in accord with the policy and decisions in this State. In section 4 of the act of our legislature, “defining the relations between banks and their depositors with respect to the deposit and collection of checks and other instruments payable in money,” approved July 8, 1931 (Cahill’s St. 1931, ch. 16a, ¶ 28, p. 176) it is provided: “An indorsement of an item by the payee or other depositor ‘for deposit’ shall be deemed a restrictive indorsement and indicate that the indorsee bank is an agent for collection and not owner of the item.” (See, also, the decision and holdings in Wilson v. Carlinville Nat. Bank, 187 Ill. 222, 224.) In the South Dakota case of First Nat. Bank of Sioux City v. Morrell & Co., supra, where certain customers’ checks payable to the order of Morrell & Co. had been deposited by it for collection in the Sioux Falls Mat. Bank and it had indorsed them to the order of said bank “for deposit only,” it is said (pp. 498, 499, italics ours):

‘ ‘ Such an indorsement confers upon the indorsee the right to transfer its rights as indorsee, because the indorsement authorized payment ‘to the order of Sioux Falls Mat. Bank’; but the subsequent indorsee (in this case, plaintiff) acquires only the title of the first indorsee under the restrictive indorsement, and, irrespective of the directions contained in the letters of transmittal, plaintiff could only have the rights of an agent or trustee for the defendant (Morrell & Co.), clothed with authority to collect the checks. . . .

“Defendant (Morrell & Co.) had a right at any time to revoke the agency of plaintiff for collection of the checks, and to avoid loss by collecting through other channels the accounts due from the makers of the checks. Had the checks been collected through the medium of the banks, and the money had reached the Sioux Falls Mat. Bank, the relation of debtor and creditor between the bank and defendant (Morrell & Co.) would then, and not until -then, have arisen.”

In 3 R. C. L., p. 635, sec. 264, it is said (italics ours):

“As heretofore shown where a bank, when hopelessly insolvent, receives a general deposit, it commits a fraud upon its customer, and the latter may rescind the transaction and follow the money into the hands of the receiver of the bank. It is upon this principle that if a collection has not been completed before the collecting bank becomes insolvent, any money thereafter received is the property of the principal, and no change of the relation of principal and agent to that of creditor and debtor can be effected after the insolvency of the bank. (Citing St. Louis & S. F. Ry. Co. v. Johnston, 133 U. S. 566; Manufacturers’ Nat. Bank v. Continental Bank, 148 Mass. 553.) And so where paper sent to a bank for collection is not paid before the insolvency of the bank it remains, as against its assignee for the benefit of creditors or in bankruptcy, the property of the customer, and does not pass to the assignee or receiver; and if it is collected by the assignee or receiver he is bound to account to the customer therefor. (Citing Commercial Bank v. Armstrong, 148 U. S. 50; National Butchers’ & Drovers’ Bank v. Hubbell, 117 N. Y. 384; Hyland v. Roe, 111 Wis. 361.) So also one who sends a draft for collection to a bank, which, after being advised by another bank, to which it sends the draft for the same purpose, that it has been collected, credits him with the amount, and afterwards becomes insolvent without having received the proceeds, is entitled to such proceeds from the collecting bank, as against the creditors and receiver of the insolvent bank.” (Citing Armstrong v. National Bank of Boyertown, 90 Ky. 431.)

In the concluding paragraph of their brief, counsel for the receiver of the Sheridan Bank make the following contention:

“We submit that no act necessary to an absolute completion of the agency took place after the auditor took possession of the bank; that all such acts took place before the auditor took possession; that the agency was therefore completed and fully performed before that event; that the relation of debtor and creditor existed between appellant and the bank when the auditor closed the bank and now exists; and that the order of the circuit court allowing appellant’s claim as a general claim should be affirmed.”

The argument in support of the contention is, in substance, as we understand it, that because of the agreements between the various banks involved in the transaction, the letters written by the Foreman Bank pertaining to its “reserve,” the “Time Schedule,” the provisions of “Regulation J” of the Federal Reserve Board, the terms of the deposit slip that “all items are credited or cashed subject to final payment in cash or solvent credits,” etc., it should be considered that the $25,000 in question reached the Sheridan Bank on Saturday, June 6, 1931, and before the bank was closed by the auditor, and that, hence, the relationship of creditor and debtor as to said sum existed between the Candy Co. and the Sheridan Bank at the time of said closing. We cannot agree with the contention or argument. It appears from the evidence that the bill of exchange was not paid by the drawee in Kansas City until about noon of that day; that on that day the Federal Reserve Bank at Kansas City mailed to the Federal Reserve Bank at Chicago a letter of advice that the proceeds of the bill had actually been received; that neither this advice nor the proceeds of the bill were received by the Federal Reserve Bank at Chicago, or by the Foreman Bank, until some time on Monday, June 8, 1931, which was after the auditor of public accounts had closed the Sheridan Bank and had taken possession of its assets; and that said proceeds thereafter became a part of the assets of the closed Sheridan Bank in the hands of its receiver, the appellee herein. Under the facts disclosed, we are of the opinion that at the time the receiver took possession of the assets of the Sheridan Bank the relationship of creditor and debtor between the Candy Co. and the Bank, as to said sum of $25,000, did not exist. Furthermore,- we do not think that agreements between the various banks involved in this transaction or the letters that passed between them, relied upon by appellee, should be considered as binding upon the Candy Co., it not having had any notice thereof or being a party thereto. (Overman v. Hoboken City Bank, 30 N. J. L. 61, 64; Merchants Nat. Bank v. National Bank, 139 Mass. 513, 518; Sneider v. Bank of Italy, 184 Cal. 595, 599.)

For the reasons indicated the order or decree of the circuit court of June 16, 1932, .is reversed, and the cause is remanded with directions that the court enter a decree directing the receiver of the Sheridan Trust & Savings Bank, out of the estate in his' hands, to pay to the Martha Washington Candies Company, as a preferred claim, said sum of $25,000, together with its costs.

Reversed and remanded with directions.

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