author: Mr. Justice O’Connor

text:
    The People of the State of Illinois ex rel. Andrew H. Richards et al., Appellants, v. James P. Allman et al., Appellees.
    Gen. No. 38,970.

      Opinion filed April 5, 1937.
    Rehearing denied April 19, 1937.
    John S. Flannery, of Chicago, for appellants.
    Daniel F. Murphy, Eichard Lefebure and Andrew P. Schoenberger, all of Chicago, for (defendants) separate appellants.
    Barnet Hodes, Corporation Counsel, Quin 0 ’Brien, Assistant Corporation Counsel, Michael F. Eyan, Wilbert Y. Dunne and John E. McSweeney, all of Chicago, for appellees.
   Mr. Justice O’Connor

delivered the opinion of the court.

On August 26, 1933, Andrew H. Eichards filed his petition praying that a writ of mandamus issue against the civil service commissioners and other city officials to compel them to certify his name so that he could be appointed sergeant of police, he having theretofore successfully passed a promotional examination for this position. Afterward a number of other patrolmen who had successfully passed the examination filed their petitions and joined Richards in his action, and later a great many more of the patrolmen filed what they designated a counterclaim. The purpose of all these petitions, amendments and counterclaim was to have their names certified for vacancies in the office or position of sergeant of police of Chicago. After various other pleadings, which will be hereinafter mentioned, were filed defendants filed a written motion to dismiss the suit. The motion was sustained, the suit dismissed, and 179 of the patrolmen who sought relief prosecute this appeal.

The record contains 460 pages and except for a few orders is made up of the pleadings, petitions, amendments and the counterclaim. On this account it is difficult to sift out the few essential matters. It is obvious from their built that they are exceedingly verbose and most of the allegations entirely unnecessary. In cases of this kind there are-but few essential allegations in a petition for mandamus, although we admit the practice has been otherwise. O’Brien v. Frazier, 228 Ill. App. 118.

In the instant case the civil service commissioners held a promotional examination for the office or position of sergeant of police which, under the law, was open only to civil service patrolmen. The examination was successfully passed by 479 patrolmen and their names were placed on a list by the civil service commissioners in the order in which they passed. The list was posted March 10, 1931. The percentage of each man was given. There were some vacancies in the rank of sergeant, but on account of the depression the vacancies were not filled. The first certifications made from the list were on April 21, May 6, and June 7, 1933; a total of 63 were certified in the order in which their names appeared on the list and apparently took their positions as sergeants of police.

June 15, 1933, the Civil Service Commissioners entered an order canceling the list, and counsel for Richards in his brief says that after the attempted cancellation of the list 60 patrolmen,, whose names appeared on the posted list, obtained writs of mandamus from the circuit and superior courts of Cook county. The names on the list were in numerical order, from 1 to 479, and counsel say that the 60 who obtained the writs of mandamus were numbered from 64 to 472 and that 30 of these 60 were properly awarded writs, but that the other 30 obtained the writs through fraud and imposition on the courts. A great deal of argument is made tending to sustain counsel’s position.

Counsel contends that the Civil Service Commission was not authorized to cancel a promotional list and therefore the attempted cancellation was void, and that when vacancies occurred the names appearing on the list, in the order in which they appeared, should be certified to fill such vacancies. In support of this contention it is said that the applicable provisions of the Civil Service Act are ch. 24, secs. 9 and 10, IfU 693 and 694, Ill. State Bar .Stats. 1935; Jones Ill. Stats. Ann. 23.048, 23.049 (Smith-Hurd Ill. Rev. Stats. 1935, ch. 241/2).

Section 9 provides that the Civil Service Commission shall by its rules provide for promotions in the classified service on the basis of ascertained merit, seniority in service and examination, and “in all cases where it is practicable, that vacancies shall be filled by promotion,” that such examination shall be competítive among such members of the next lower rank as desire to submit themselves for such examination, and it is made the duty of the commission to submit- to the appointing power “the names of not more than three applicants for each promotion having the highest rating. The method of examination and the rules governing the same, and the method of certifying, shall be the same as provided for applicants for original appointment.” And by section 10 it is provided that the head of the department in which a classified position is to be filled shall notify the commission of that fact and the commission certify to the appointing officer “the name and address of the candidate standing highest upon the register for the class or grade to which said position belongs. . . . The appointing officer shall notify said commission of each position to be filled separately, and shall fill such place by the appointment of the person certified to him by said commission . . . which appointment shall be on probation for a period to be fixed by the rules. Said commission may strike off names of candidates from the register after they have remained thereon more than two years.” Counsel say there is no provision in section 9 for canceling a promotional list and that the provision in section 10 providing that the commission may strike off the names on the list after they have remained thereon for more than two years applies only to original examinations. We think this contention cannot be sustained. People ex rel. Walsh v. City of Chicago, 226 Ill. App. 409; People ex rel. Lynch v. City of Chicago, 271 Ill. App. 360; People ex rel. Jahn v. City of Chicago, 279 Ill. App. 624.

In the Walsh case a petition for a writ of mandamus was filed by Walsh, who as patrolman had successfully passed a promotional examination for the office of sergeant of police of Chicago, to compel the Civil Service Commission to appoint the persons whose names appeared on the original list posted by the commission. It was contended that the superintendent of police had illegally promoted 27 persons to the positions of sergeants of police contrary to the Civil Service Law, and that such promotions should have been made from the eligible list posted April 4, 1917. It further appears that the eligible list in that case was canceled by the Civil Service Commission on August 12, 1920. The court held that the list was properly canceled under the statute and a rule of the Civil Service Commission, and therefore Walsh was not entitled to a writ of mandamus. The court there said (p. 412): “The statute gives to the.commission the undoubted right to strike from an eligible list all names appearing thereon for a period of more than two years. It will be conceded that the commission had ample power to strike names from the list that had remained thereon for more than the two-year period, and it follows of necessity that where all the names on the list have remained thereon for more than the statutory period the commission would have the power to strike all the names therefrom. This would in effect amount to a cancellation of the entire list.” The section of the statute referred to in that case is section 10 above quoted from.

In the Lynch case (271 Ill. App. 360) a police patrolman who had successfully passed a promotional examination for sergeant of police filed his petition for a writ of mandamus. The defendants filed a demurrer to the petition, which the court overruled. They stood on their demurrer, the writ was issued and an appeal followed, where the judgment of the trial judge was reversed and the cause remanded, the court holding that under section 10 the Civil Service Commission might cancel an eligible list. In that case the eligible list was posted December 24, 1927, and was canceled by the Civil Service Commission on January 2, 1930. The petitioner contended that the commission in canceling the list did so “wrongfully, illegally and arbitrarily” and “changed that list so as to place the names of others thereon, and whose stated grades were lower than petitioner’s grade, ahead of petitioner’s name,” and afterward certified such names for appointment as sergeant of police.. The court said (p. 370): “Because of a provision contained in section 10 of the ‘Act to regulate the civil service of cities’ (Cahill’s St., ch. 24, par. 694) it is apparent that said cancellation of the list was lawful and proper. ’ ’

In the Jahn case, 279 Ill. App. 624 (abstract opinion), a fireman who had successfully passed a promotional examination for a position as captain and whose name was on the posted eligible list, filed a petition for writ of mandamus to compel the certification of names appearing on the list to fill vacancies. The list was posted August 30, 1929, and was canceled September 3, 1931. A demurrer was sustained to the petition, the action was dismissed and Jahn appealed. It was held that the list was properly canceled because the cancellation was more than two years after the list was posted. The court there quoted with approval from the Lynch case (271 Ill. App. 360) and continuing said: “The fact that there was a vacancy at the time the list was cancelled, in our opinion does not vitiate the right of the Civil Service Commission to cancel the list.”

The opinion in the Walsh case (226 Ill. App. 409) was filed October 30, 1922, and it has' been uniformly held by this court since that time that the Civil Service Commission may, after two years, properly cancel a list posted as a result of a promotional examination.

We are further of opinion that the court properly sustained defendants’ motion to strike the several petitions, amendments, and counterclaim, on the ground that the men seeking the writs were guilty of gross laches. It is the law that where one seeks a writ of mandamus in a case such as the one at bar, he must not only act promptly in beginning his action but he must also see that it is expeditiously prosecuted as well. People ex rel. Lynch v. City of Chicago, 271 Ill. App. 360, and People ex rel. Jahn v. City of Chicago, 279 Ill. App. 624.

A few facts will demonstrate the laches of the parties seeking the writs here. June 15,1933, the list was canceled and on August 26, 1933,- Richards filed his petition. A demurrer was interposed which was overruled October 21, 1933. About ten months thereafter, August 23, 1934, the defendants filed a plea averring that since the last continuance the circuit and superior . courts had issued writs of mandamus compelling defendants to certify the names of certain individuals whose names appeared on the list. On September 5, 1934, plaintiff demurred to this plea but apparently the demurrer was never called up and about ten months thereafter, July 5, 1935, plaintiff filed a replication to the plea. September 30, 1935, John G. Bowen and a number of others who had successfully passed the examination were by order of court made coplaintiffs, and on November 22 following, other parties whose names appeared on the list were given leave to intervene as parties plaintiff. On December 20, 1935, certain other persons whose names appear on the list and who had been summoned as defendants were given leave to join as plaintiffs. January 3, 1936, certain amendments to the petitions were allowed and other amendments permitted on January 7th. January 22, 1936, Edward Flannery and others filed what they designate a counterclaim. They did not ask or receive any permission of the court to file this document. January 11th the defendants filed a motion in the nature of a demurrer to strike all the petitions and the amendments thereto, which was allowed. The suit was dismissed and the appeal taken.

From the foregoing, which is but a partial statement of what was done in the case, it appears that the list was canceled June 15, 1933, and although Richards filed his petition on August 26, 1933, which was about two months thereafter, yet we find pleadings were filed in the case two and one-half years thereafter. In the Lynch case (271 Ill. App. 360) in discussing the question of laches the court said (p. 371): “Furthermore, we are of the opinion that the petition shows on its face such laches on petitioner’s part as is a bar to the relief as prayed. If he was improperly and unlawfully displaced from his proper position on the eligible list, by the advancement and certification of others lower on the list, then he should have taken steps by appropriate suit before said list became more than two years old and was canceled on January 2, 1930. He does not show by proper allegations any excuse for the delay.” And in the Jahn case (279 Ill. App. 624) the court said: “We believe that the second position taken by defendants, namely, that the petitioner was guilty of laches, is well founded. A writ of mandamus is not a matter of absolute right. The court still has a right to exercise its discretion in ordering the writ and if the right is doubtful it may be refused. Kenneally v. City of Chicago, 220 Ill. 485. The reason offered for the delay in the filing of the petition is not sufficient, in our opinion, to justify the action of the petitioner in delaying his application for the writ.”

In People ex rel. Oberhart v. Durkin, 285 Ill. App. 156, it was held that one who seeks a writ of mandamus, as in the instant case, must show that he had been diligent not only in instituting but in prosecuting his action.

In none of the cases cited was the delay in prosecuting or in filing the intervening petitions, the amendments thereto and the counterclaim as aggravated as in the instant case. The intervening petitioners and counterclaimants seek to excuse the delay on the ground that they did not become aware of the fraud in the action of some of the defendants in certifying names from the list which were lower on the list than others, because “the fraud was not fully consummated until the appointment of these men, ’ ’ which was in September, 1935, when the names were taken from an alleged reinstatement list made by the Civil Service Commission. There is no such allegation made by Richards in his petition, nor in the other petitions. Some of them charged that they learned “of recent date” of the filling of the vacancies; and Richards, who filed his petition in August, 1933, could not sit by for more than two years without being guilty of laches. The other parties knew that the list had been canceled June 15, 1933.

For the reasons stated the judgment of the circuit court of Cook county is affirmed.

Judgment affirmed.

Hatchett, P. J., and HcSurely, J., concur.


source: Caselaw Access Project

author:
Mr. Justice O’Connor
      Hatchett, P. J.,

license: Public Domain

text:
    William Gottlieb, Appellee, v. S. A. Crowe, Jr., and J. O. Stoll. J. O. Stoll, Appellant.
    Gen. No. 39,229.
    Hatchett, P. J., dissenting.
    Opinion filed April 5, 1937.
    Rehearing denied April 19, 1937.

      Albert W. Froehde, of Chicago, for appellant.
    Samuel M. Bloomberg and Leo Segall, both of Chicago, for appellee; Samuel M. Bloomberg, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.

Plaintiff brought an action to recover the face value of three bonds of $500 each, with interest thereon, against the defendants on their guaranty to pay the bonds. Crowe was not served with process and did not enter his appearance. Stoll will hereinafter be referred to as the defendant. There was a trial before the court without a jury, and a finding and judgment in plaintiff’s favor for $1,583, the amount of his claim, and defendant appeals.

The record discloses that January 15, ■ 1927, the “Ten Fifteen North Clark Building Corporation” issued its construction bonds aggregating $250,000. Some years afterward the building corporation was financially embarrassed and filed its proceeding in the District court of the United States for the Northern District of Illinois, Eastern Division, under 77-B of the Bankruptcy Act, as amended. November 26, 1934, the United States District Court entered a decree confirming a plan of reorganization of the property. The decree finds the plan for reorganization filed by the debtor had been referred to Referee Adcock, as special master; that the court considered the report of the master and the petition for confirmation of the plan and finds that the petition of the debtor was filed June 20, 1934, pursuant to the provisions of section 77-B of the Bankruptcy Act; that September 25, 1934, the debtor filed its proposed plan for reorganization and a hearing thereon was set for November 5, 1934, and notice given to all creditors and stockholders of the debtor by publication and by mail; that thereafter the plan was referred to Special Master Adcock and after a hearing he made his report on November 21, 1934, in which it was found that the plan was fair and equitable; that “It complies with the provisions of subdivision (b) Section 77-B of the Bankruptcy Act”; that the plan provided it should not become effective until accepted by the required number of creditors; that the plan was presented in good faith.

The court further found that on June 20, 1934, and thereafter the debtor was unable to meet its debts as they matured and unless relief were granted by the court great loss would occur to its creditors and stockholders ; that the plan for reorganization had been accepted in writing by more than two-thirds of a certain class of its creditors and more than a majority of another class of creditors; that no objections were made to the plan, and it was ordered and decreed that the report of the Referee Adcock, as Special Master, be approved; that the plan and order of confirmation be binding upon the debtor, all stockholders and “all creditors, secured or unsecured, whether or not affected by the Plan, and whether or not their claims shall h'ave been filed, and if filed, whether or not approved, including creditors who have not, as well as those who have, accepted.” The plan provided for the organization of a new corporation and that for each $100 of first mortgage bonds issued by the debtor there be issued to the owners one share of common stock in the new corporation known as the Olympic Hotel Building Corporation; and the plan further provided for the payment of certain overdue interest to the bondholders, and that “the personal guaranty of J. O. Stoll and S. A. Crowe, Jr., of said First Mortgage 6%% Gold Bonds shall be cancelled and surrendered in consideration of the transfer of all the assets of said Debtor to the Olympic Hotel Building Corporation and the surrender of the said Common Stock of the Debtor”; and that all claims and rights of stockholders and creditors of the debtor upon the confirmation of the plan be discharged and cancelled and the only rights of such stockholders and creditors shall be those accruing to them in and through the securities to be issued by the new corporation. It further appears that notice of the hearing for the purpose of considering the plan was given to plaintiff; that after the plan was approved it was fully carried out and bonds aggregating $206,000, which was 96 per cent of the total bonds outstanding, had been surrendered and canceled.

It further appears that creditors of the same class as plaintiff in the instant case, filed written objections to the cancellation of the guaranty of the defendant and moved that the confirmation of the plan, as approved by the District Court, be vacated. The objections were referred to a special master to take evidence and make up his report and recommendation. The master heard the evidence and recommended that the objections be overruled and the court followed the recommendations of the master. All of the assets of the debtor have been transferred to the new corporation, the Olympic Hotel Building Corporation.

Plaintiff did not appear in the proceedings in the district court, but during the pendency of the instant case in the municipal court of Chicago he filed his verified petition in the District Court, in which he set up the ownership of the three bonds of $500 each and that he had not approved or accepted the plan of reorganization theretofore confirmed by the District Court, and averred that the District Court did not have the power to cancel the written guaranty of the defendant. And the prayer was that the District Court enter an order vacating or modifying the decree so as to eliminate the cancellation of the guaranty. The debtor filed a verified answer to the petition in the District Court, in which it set up what had been done in that court, including the cancellation of the g'uaranty, and that plaintiff had been given a number of notices of the several hearings of the matters pending in the District Court. The District Court considered the petition and the answer and entered an order again refusing to modify the decree of the District Court approving the plan of reorganization.

Counsel for plaintiff contend that the District Court was without authority to cancel the guaranty and therefore the judgment of that court is not res adjudicates. The District Court expressly found that the debtor had complied with all the provisions of section 77-B of the Bankruptcy Act and construed the Bankruptcy Law as authorizing the cancellation of the guaranty. That court on two occasions expressly passed on this question, viz., when creditors of the same class raised the question as above stated, and afterward when plaintiff in the instant case again raised the question. The question was there squarely put in issue and if plaintiff or the other creditors were dissatisfied with the decision of the District Judge they should have appealed from his decision to the United States Circuit Court of Appeals, where they probably would have obtained relief. In re Diversey Bldg. Corp., 86 F. (2d) 456. Plaintiff cannot now complain. Chamblin v. Chamblin, 362 Ill. 588.

In this state of the record, we would not be warranted in disturbing the judgment of the District Court in this collateral proceeding unless it was clear that the District Court was wholly without jurisdiction, and this we are unable to say.

For the reasons stated the judgment of the municipal court of Chicago is reversed.

Judgment reversed.

McSurely, J., concurs.

(See next page.)

Hatchett, P. J.,

dissenting: Under the decision in In re Diversey Bldg. Corp., cited in the opinion, the Federal Court was wholly without jurisdiction of the subject matter of this guaranty and its order is therefore void.


text:
    Chicago Title and Trust Company v. Julia Szymanski et al. Julia Szymanski, Appellant. Agnes Kubiatowski, Appellee.
    Gen. No. 39,261.
    Opinion filed April 5, 1937.
    Andalman & Shamberg, of Chicago, for appellant; Maxwell N. Andalman and Norman H. Arons, of Chicago, of counsel.

      Hinshaw & Culbertson, of Chicago, for appellee; Oswell Gr. Treadway and James Gr. Culbertson, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.

The Chicago Title & Trust Company, a corporation, filed its complaint in interpleader against Julia Szymanski, Agnes Kubiatowski and others and alleged, among other things, that it held $3,178 under an escrow agreement which was claimed by Julia Szymanski and also by Agnes Kubiatowski. Each of these two defendants filed her answer claiming the money. The case was heard and a decree entered that the Chicago Title & Trust Company pay $3,121.05, being the amount remaining in its possession, to Agnes Kubiatowski, and upon such payment being made it be relieved and discharged from any other duty or liability. There are other allegations in the complaint and other pleadings, and other parties are made defendants. The decree deals with other matters, but we think it unnecessary to refer to them because the contest in this court is between Julia Szymanski and Agnes Km biatowski as to which is entitled to the $3,121.05.

The record discloses that Walter Keczek and Katarzyna Keczek, his wife, owned a piece of real estate in Chicago mortgaged to secure an indebtedness on which there was a balance due of $13,455. The notes and trust deed were owned by the defendant Agnes Kubiatowski and there being a default she filed her bill for foreclosure. Shortly thereafter Reczek and his wife applied for a loan to the Home Owners’ Loan Corporation, which examined the property and agreed to lend $9,783. Upon getting this information the Reczeks and their attorney took the matter up with Agnes Kubiatowski to see whether she would accept this sum in payment in full for the amount due her. She refused to take anything less than the face amount due her, or $13,000. Thereafter the Eeczeks took the matter up with their friend, the defendant, Julia Szymanski, and the latter agreed to pay $3,100 to Agnes Kubiatowski in case the deal went through with the H. O. L. C. Afterward Julia Szymanski deposited $3,100 with the Chicago Title & Trust company under an escrow agreement. After this was done Boy Kroeschell, as agent and attorney for Agnes Kubiatowski, signed a written document addressed to the Home Owners’ Loan Corporation, in which it is stated that Agnes Kubiatowski is the owner of the trust deed and mortgage on the Eeczeks ’ property, on which there is a balance due of $13,455; that she was informed the Eeczeks had made application to the H. O. L. C. to refund the indebtedness and that she “consents, if said refunding can be consummated, to accept in full settlement of the claim of the undersigned the sum of $9,783, face value of the bonds of the Home Owners ’ Loan Corporation, ’ ’ etc.

Some time after this document was executed as above stated, Agnes Kubiatowski’s attorney dismissed her foreclosure suit, which was necessary before the deal could be consummated, exhibited evidence of this fact to the attorney for the Home Owners’ Loan Corporation, canceled the trust deed and notes belonging to Agnes Kubiatowski and delivered them to the attorney for the H. O. L. C. The foreclosure suit was dismissed shortly after ten o’clock March 1, and immediately thereafter the notes and trust deed were delivered to the attorney for the H. O. L. C. About two o’clock in the afternoon of the same day Agnes Kubiatowski’s attorney went to the Chicago Title & Trust Company to obtain the $3,100, but was advised that about an hour before it had been notified in writing by Julia Szymanski to return the $3,100 to her because the agreement entered into between the Eeczeks and Agnes Kubiatowski was unlawful, being in violation of section 8a of the Home Owners’ Loan Act of 1933. The next day Agnes Kubiatowski, by her attorney, served written notice on the Chicago Title & Trust Company to disregard the notice given to it by Julia Szymanski the day before, and that the $3,100 be paid to Agnes Kubiatowski in accordance with the escrow agreement. Afterward the Title & Trust Company filed its complaint, as above stated.

Counsel for Julia Szymanski contend that since the evidence shows that Agnes Kubiatowski, by her attorney, signed “a form of consent that she was accepting bonds of the H. O. L. C. in the sum of $9,783 in full settlement of the mortgage indebtedness in the sum of $13,455’"’ owed by the Reczeks when prior to that time she had an agreement whereby she was also to receive $3,100 from Julia Szymanski, this was a violation of section 8a of the Home Owners’ Loan Act of 1933. That section provides: “Whoever makes any statement, knowing it to be false . . . for the purpose of influencing in any way the action of the Home Owners’ Loan Corporation . . .. upon any application ... or loan, under this Act, . . . shall be punished by a fine of not more than $5,000, or by imprisonment for not more than two years, or both.” (12 U. S. C. A. Sec. 1467 (a).) Counsel say that such violation was a bar to the enforcement of the escrow agreement. In support of this contention United States v. Kreidler, 11 F. Supp. 402; Jessewich v. Abbene, 277 N. Y. S. 599; and First Citizens Bank & Trust Co. v. Speaker, 287 N. Y. S. 831, are cited.

In the Kreidler case an indictment was returned charging that Kreidler, as manager of a bank, made a written statement to the Home Owners’ Loan Corporation for the purpose of influencing that corporation to make a loan to William H. Rudd in refunding a mortgage on Rudd’s property which was held by the bank. The indictment charged the bank stated it would accept the bonds of the H. O. L. C. in full settlement of its claim against Rudd; and it was alleged that this statement was false because at the time it was made the bank had an agreement with Rudd whereby he promised that if a loan could be secured from the H. O. L. C. (.whose bonds would be accepted by the bank) he would execute and deliver to the bank a second mortgage on his property for the difference. It was held that this indictment charged a violation of the section above quoted. The court there said (p. 404): “A representation then by the holder of the loan that it would accept less than the face value of the debt in full settlement therefore would be relevant. Being relevant, the court could hardly say as a matter of law that the statement charged as false might not be material as a motivating force likely to influence the action of the corporation as charged. ... I am unable to say as a matter of law that the questions raised by the indictment are not questions of fact that should not be presented to a jury. ’ ’ And the demurrer to the indictment was overruled.

In the instant case the evidence shows that after the foreclosure suit was filed the Reczeks made application to the H. O. L. C. and were advised that it would make a loan for about $9,700. They thereupon took the matter up with Agnes Kubiatowski, but she refused to accept less than the face amount due on her mortgage, or $13,000, because the Reczek’s property, which was in foreclosure, was worth more .than the amount of the indebtedness. Thereupon Julia Szymanski, a friend of the Reczeks, agreed that she would advance the $3,100 to make up the full amount of the mortgage indebtedness, which Agnes Kubiatowski agreed to accept.

The evidence further shows that Agnes Kubiatowski at no time saw any representative of the H. O. L. C., but her attorney appeared and in her behalf signed the consent above referred to. He testified that he did not read the consent and he did not think that anything was said at the time as to the amount that was in escrow.

“Q. You didn’t tell them that the agreement was consummated by the deposit of the money? A. I don’t think so. Possibly I did and possibly I didn’t. I really don’t remember because that was common practice.” He further testified that at the time he took the mortgage and. notes and delivered them to a representative of the H. O. L. C. he told the representative that he had to have the “interim certificate” to exhibit to the Chicago Title & Trust Company in order to release the escrow.

The evidence is wholly insufficient to show that Agnes Kubiatowski, through her attorney, made any false statement to the H. O. L. C. for the purpose of influencing its action in any way. No representative of the H. O. L. C. was called to testify, Julia Szymanski did not testify, nor were the Eeczeks called. The evidence shows that for a considerable time after the statement was signed by Agnes Kubiatowski’s attorney, Julia Szymanski and her attorney knew the contents of that statement and that no mention was made in that document of the $3,100 in escrow, and it is agreed that her counsel advised her to say nothing about the matter until the foreclosure suit was dismissed and the notes and trust deed canceled and delivered to the H. O. L. C., for the reason that if objection were then made to the H. O. L. C. the deal would probably fall through and the foreclosure proceeding against the property of the Eeczeks would be pushed to a decree, and that Julia Szymanski and her attorney deliberately kept quiet until the deal was consummated. Their action in this respect is reprehensible and they will not now be permitted to contend that the $3,100 should be returned to Julia Szymanski.

In the Jessewich case, 277 N. Y. S. 599, it was held that where mortgagees receive from the H. O. L. C. the corporation’s bonds in full satisfaction of a second mortgage and relinquish $700 balance due on the mortgage, a secret collateral agreement between the property owners and the mortgagees, whereby the owners agree to give a second mortgage for $700, was void as being in contravention of the provisions of the Home Owners’ Loan Act. In that case the court said (p. 601): “Collusive agreement between creditor and home owner creating on the owner occupied home encumbrances too heavy and terms too severe for the home owner to work out his problem would easily defeat the very purpose of this act, interfere by trickery with this corporation collecting its bonds. . . . The second mortgagee would thereby benefit by his own wrong, first, in being paid by the government the greater part of his second mortgage in its tax exempt bonds which it guarantees unconditionally . . . then by getting the defendant’s homestead through foreclosure for the small balance due; and, lastly, by getting the benefit of the excellent first mortgage thereon, never intended for him.”

In the instant case, as we have said, there was no collusive agreement between the creditor, Agnes Kubiatowski, and the home owner. And there was no trickery indulged in by Agnes Kubiatowski or her attorney. There was no second mortgage involved.

In addition to the evidence which we have stated, it was further stipulated that the entire transaction was brought to the notice of the H. O. L. C. in May or June, 1935, and that afterward the corporation issued its bonds in accordance with the interim certificate which it theretofore had given to counsel for Agnes Kubiatowski, and that no question has been raised by the H. O. L. O. as to the validity of the transaction.

Counsel for Julia Szymanski further say that Agnes Kubiatowski failed to perform the acts required of her in the time specified in the escrow agreement. The escrow agreement is dated October 26, 1934, and was signed by Julia Szymanski and Nathan Schwartz, an attorney, and others; on January 22, 1935, Schwartz wrote a letter to the Chicago Title & Trust Company in which he stated: “Inasmuch as H. O. L. C. Application . . . has not as yet been completed, Mr. Eoy Kroeschell, attorney for Agnes Kubiatowski, and myself, as attorney for Julia Szymanski, have agreed to extend this escrow for a period of sixty (60) days from date.” This extension was agreed to by attorney Kroeschell. On the trial Schwartz testified he was not the attorney for Julia Szymanski. We will not discuss further the evidence in the record on this question because it is obvious that in view of all the evidence, including the letter signed by Schwartz, from which we have above quoted, he could not now be permitted to stultify himself and swear that he had no authority to represent her. All the evidence, except his testimony, is to the contrary. We think it clear that the court was warranted in giving no credence to his testimony on this question.

The decree of the circuit court of Cook county is affirmed.

Decree affirmed.

Matchett, P. J., and McSurely, J., concur.


author: Mr. Presiding Justice Matehett

text:
    First District.
    The People of the State of Illinois ex rel. Jacob Twardzik et al., appellants, v. Francis X. Swietlik et al., appellees.
    Gen. No. 39,173.
    Opinion filed February 15, 1937.
    Thomas J. Courtney, State's Attorney, and Maximilian J. St. George, for appellants. Wolf & Love, for appellees; Stephen Love, of counsel.
   Mr. Presiding Justice Matehett

delivered the opinion of the court.


author: Mr. Justice MeSurely

text:
    Eleanor K. Ruddiman, appellee, v. Eclipse Laundry Company and Leon Bernbach, appellants.
    Gen. No. 39,162.
    Opinion filed February 15, 1937.
    Cassels, Potter & Bentley, for appellants; Balph F. Potter, Leslie H. Vogel and Horace G. Marshall, of counsel. George E. Woods, for appellee; Angus Boy Shannon, of counsel.
   Mr. Justice MeSurely

delivered the opinion of the court.


text:
    Underground Construction Company, appellee, v. The Sanitary District of Chicago, appellant.
    Gen. No. 39,186.
    Opinion filed February 15, 1937.
    Ernest Buehler, Lawrence J. Fenlon, William C. Oehlsen and Thomas F. Donovan, for appellant. John L. Melnerney and Luella Either, for appellee.
   Mr. Justice MeSurely

delivered the opinion of the court.


text:
    Charles F. Alexander, appellant, v. State Savings Bank and Trust Company et al., defendants. Appeal of Charles F. Alexander, appellant, v. Liberty National Bank of Chicago, appellee.
    Gen. No. 39,195.
    Opinion filed February 15, 1937.
    Frank O. Hilburn, for appellant. Wilhartz & Hirseh, for appellee; Jack A. Diamond and Eugene H. Nirdlinger, of counsel.
   Mr. Justice MeSurely

delivered the opinion of the court.


text:
    People ex rel. Helen Fleming Czachorski, appellant, v. Barbara Anna Fisher, appellee.
    Gen. No. 39,136.
    Opinion filed February 15, 1937.
    Rehearing denied March 1, 1937.
    Thomas J. Courtney, State's Attorney, Julius F. Smietanka, Leon C. Nyka and Ewart Harris, for appellant; Edward E. Fleming and K. M. Milgrom, of counsel. Maximilian J. St. George, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Harry J. Diacou, appellee, v. Fred. A. Snow, George J. O’Malley. George J. O’Malley, appellant.
    Gen. No. 39,189.
    Opinion filed February 15, 1937.
    William T. Dickerman, for appellant. Reuben S. and William L. Flacks, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Julius Browdy, appellant, v. Julian Black, appellee.
    Gen. No. 39,200.
    Opinion filed February 15, 1937.
    James J. Trainor and Robert J. Rafferty, for appellant. Irvin C. Mollison, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.


author: Mr. Justice O'Connor

text:
    Anna M. Hintz, appellee, v. Ridgewood Cemetery Company, appellant.
    Gen. No. 39,210.

      Opinion filed February 15, 1937.
    Brelin, Britton & Landon, for appellant; Floyd E. Britton, of counsel. Rathje & Connor, for appellee. Oliver B. Opsahl, of counsel.
   Mr. Justice O'Connor

delivered the opinion of the court.


author: Mr. Presiding Justice Matchett

text:
    Ross D. Netherton et al., appellees, v. Vivid, Inc., appellant.
    Gen. No. 39,028.
    Opinion filed March 15, 1937.
    Wisner, Davis & Walsh, for appellant. V. D. McConnell and Herbert A. Sehryver, for appellees.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.


text:
    Tina Ortgiesen, plaintiff, v. Chicago Title and Trust Company et al., defendants, on appeal of Chicago Title and Trust Company et al., appellants.
    Gen. No. 39,193.
    Opinion filed March 15, 1937.
    Winston, Strawn & Shaw, for appellant Chicago Title and Trust Co.; Richard H. Hollen and George W. Ott, of counsel. Cummings & Wyman, for appellants E. G. Swanson et al.; Joseph W. Cummings and Elmer C. Grage, of counsel. Monahan & Monahan, for appellants Raymond J. Downey et al. Francis E. Cash and Morris Blank, pro se.

   Mr. Presiding Justice Matchett

delivered the opinion of the court.


text:
    Albert Goldman et al., appellees, v. John A. Holabird et al., appellants. Horatio B. Hackett et al., defendants.
    Gen. No. 39,203.
    Opinion filed March 15, 1937.
    Rehearing denied March 29, 1937.
    Taylor, Miller, Busch & Boyden and Cassels, Potter & Bentley, for appellants; Preston Boyden, David S. Sampsell, William H. King, Jr., Leslie H. Vogel and William R. Rodenberg, of counsel. Jaffe & Green, for appellees; Jacob H. Jaffe, of counsel.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.


text:
    Tina Ortgiesen, plaintiff, v. Chicago Title and Trust Company et al., defendants, on appeal of Chicago Title and Trust Company et al., appellants.
    Gen. No. 39,204.

      Opinion filed March 15, 1937.
    Winston, Strawn & Shaw, for appellant Chicago Title and Trust Co.; Richard H. Hollen and George W. Ott, of counsel. Cummings & Wyman, for appellants E. G. Swanson et al.; Joseph W. Cummings and Elmer C. Grage, of counsel. Monahan & Monahan, for appellants Raymond J. Downey et al. Francis E. Cash and Morris Blank, pro se.

   Mr. Presiding Justice Matehett

delivered the opinion of the court.


text:
    The People of the State of Illinois, appellee, v. 245 East Grand Avenue—Search Warrant. Outdoor Publishing Company, appellant.
    Gen. No. 39,287.
    Opinion filed March 15, 1937.
    Rehearing denied March 29, 1937.
    Alois S. Knapp, for appellant. Thomas J. Courtney, State’s Attorney, for appellee; Edward E. Wilson, John T. Gallagher, Melvin S. Rembe and Blair L. Varnes, Assistant State’s "Attorneys, of counsel.
   Mr. Presiding Justice Matehett

delivered the opinion of the court.


author: Mr. Presiding Justice

text:
    The People of the State of Illinois, defendant in error, v. Harry C. Shaver, plaintiff in error.
    Gen. No. 39,322.
    Opinion filed March 15, 1937.
    Rehearing denied March 29, 1937.
    Thomas Marshall and Ray E. Lane, for plaintiff in error. Otto Kernel", Attorney General, for defendant in error; A. B. Dennis, Assistant Attorney General, Thomas J. Courtney, State’s Attorney, Edward E. Wilson, John T. Gallagher and Richard H. Devine, Assistant State’s Attorneys, of counsel.
   Mr. Presiding Justice

Matehett delivered the opinion of the court.


text:
    Chicago Title and Trust Company, plaintiff, v. Egidio Mazzarese et al., defendants. Harry Friedman, appellant, v. E. G. Swanson et al., appellees.
    Gen. No. 39,133.
    Opinion filed March 15, 1937.
    Shulman, Shulman- & Abrams and Isadora Kaplan, for appellant; Meyer Abrams, of counsel. Campbell, Clithero & Fischer, for appellees.
   Mr. Justice MeSurely

delivered the opinion of the court.


author: Mr. Justice McSurely

text:
    Kellam Foster, appellant, v. John H. Powrie, trading as Warner Research Laboratory, appellee.
    Gen. No. 39,178.
    Opinion filed March 15, 1937.
    Rehearing denied March 29, 1937.
    Marshall Solberg, for appellant. Milton S. Applebaum, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    The People of the State of Illinois, defendant in error, v. William Jacobson, plaintiff in error.
    Gen. No. 38,967.
    Opinion filed March 15, 1937.
    Rittenhouse & Marovitz, for plaintiff in error; Harold Marovitz, of counsel. Thomas J. Courtney, State’s Attorney, for defendant in error; Edward E. Wilson, John T. Gallagher, Richard H. Devine and Melvin S. Rembe, Assistant State’s Attorneys, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.


author: Mr. Presiding Justice Denis E. Sullivan

text:
    Universal Credit Company, appellant, v. Standard Oil Company, appellee.
    Gen. No. 38,969.
    Opinion filed March 24, 1937.
    Rehearing denied April 12, 1937.
    Goldman, Allshouse & Healy, for appellant; Robert G. Dreffein, M. M. Loman and M. J. Hirsehenbein, of counsel. Brewer, Smith & Farrell, for appellee; William L. McKay and George D. Smith, of counsel.
   Mr. Presiding Justice Denis E. Sullivan

delivered the opinion of the court.


text:
    Hugenia S. Doggett, appellee, v. Margaret L. Blocher et al., defendants. Mathea Hansen, appellant.
    Gen. No. 38,998.
    Opinion filed March 24, 1937.
    I. W. Kaufman, for appellant. William J. Mahoney, for appellee.
   Mr. Presiding Justice Denis E. Sullivan

delivered the opinion of the court.


text:
      City of Chicago, appellee, v. Michael Ohlsen, trading as M. Ohlsen Coal Company, appellant.
    Gen. No. 39,009.
    Opinion filed March 24, 1937.
    Harry O. Lindahl, for appellant; Robert G. Phelps, of counsel. Barnet Hodes, Corporation Counsel, for appellee; J. Herzl Segal and David Lefkovits, Assistant Corporation Counsel, of counsel.
   Mr. Presiding Justice Denis E. Sullivan

delivered the opinion of the court.


text:
    Maria Stanke, appellee, v. Arden Atherton, appellant.
    Gen. No. 39,088.
    Opinion filed March 24, 1937.
    Rehearing denied April 12, 1937.
    Anson H. Brown, for appellant. Paul B. Pischer, Paul E. Johnson and Kellam Poster, for appellee.
   Mr. Presiding Justice Denis E. Sullivan

delivered the opinion of the court.


text:
    George A. Tetzlaff, Jr., a minor, by his father and next friend, George A. Tetzlaff, appellee, v. Edward E. Lickton, appellant.
    Gen. No. 39,089.
    Opinion filed March 24, 1937.
    Robertson, Crowe & Spence, for appellant; Burt A. Crowe, of counsel. John A. Bloomingston, for appellee.
   Mr. Presiding Justice Denis E. Sullivan

delivered the opinion of the court.


author: Mr. Justice Hall

text:
    Lars Lindquist, appellee, v. Herman L. Schmidt and August Schmidt, trading as Schmidt Brothers Garage, appellants.
    Gen. No. 38,754.

      Opinion filed March 24, 1937.
    Robertson, Crowe & Spence, for appellants; Burt A. Crowe, of counsel. Robert S. Cook, Harold Epstein and Julius Epstein, for appellee.
   Mr. Justice Hall

delivered the opinion of the court.


text:
    Louis D. Goodman, appellee, v. Fred Parker and Harry S. Parker, Sr., appellants.
    Gen. No. 38,807.
    Opinion filed March 24, 1937.
    Rehearing denied April 12, 1937.
    Richard Hill, Jr., and Winston, Strawn & Shaw, for appellants; Soelke, Koehn & Loewy, George B. Christensen and George W. Ott, of counsel. Martin M. Gross and Earl J. Walker, for appellee.
   Mr. Justice Hall

delivered the opinion of the court.


text:
    Brainerd Auto Sales, Inc., appellant, v. Studebaker Sales Company of Chicago, appellee.
    Gen. No. 38,824.
    Opinion filed March 24, 1937.
    Harry A. Carlson, for appellant. Isaac B. Lipson, for appellee; Philip E. Golde, of counsel.
   Mr. Justice Hall

delivered the opinion of the court.


text:
    Hedwig Kristensen, appellee, v. Antoni Balczeniuk et al., on appeal of Antoni Balczeniuk and Rachela Balczeniuk, appellants.
    Gen. No. 38,835.
    Opinion filed March 24, 1937.
    Mitchell Kilanowski, for appellants. C. C. H. Zillman, for appellee.
   Mr. Justice Hall

delivered the opinion of the court.


text:
    Anna Schneider, appellee, v. Samuel Meyer and Julia Meyer, appellants.
    Gen. No. 38,846.

      Opinion filed March 24, 1937.
    Livingston & Kaufman, for appellants. Edward M. Herman, for appellee.
   Mr. Justice Hall

delivered the opinion of the court.


text:
    Aram Kaspar, appellant, v. Absalom Eshoo, also known as Absalom Eshoo Daniel, appellee.
    Gen. No. 38,860.
    Opinion filed March 24, 1937.
    Walter C. Wellman, for appellant. Bennett & Colbach, for appellee.
   Mr. Justice Hall

delivered the opinion of the court.


text:
    The National Bank of the Republic of Chicago, appellee, v. Kaspar American State Bank, appellant.
    Gen. No. 38,869.
    Opinion filed March 24, 1937.
    Rehearing denied April 12, 1937.
    Robertson, Crowe & Spence, for appellant; Eugene P. Kealy, of counsel. Lord, Lloyd & Bissell, for appellee; A. C. Wetterstorm and Gordon R. Close, of counsel.
   Mr. Justice Hall

delivered the opinion of the court.


author: Mr. Justice Hebei

text:
    J. Harry Green, appellee, v. James Stewart Corporation, appellant.
    Gen. No. 38,838.
    Opinion filed March 24, 1937.
    Cassels, Potter & Bentley, for appellant; Ralph P. Potter, Leslie H. Vogel and George C. Bunge, of counsel. P. L. Pairbank and Thomas Marshall, for appellee.
   Mr. Justice Hebei

delivered the opinion of the court.


text:
    People of the State of Illinois, defendant in error, v. Edward Stanton, plaintiff in error.
    Gen. No. 39,231.

      Opinion filed March 24, 1937.
    Julius Reznik, for plaintiff in error. Thomas J. Courtney, State’s Attorney, for defendant in error; Edward E. Wilson, Blair L. Varnes, John T. Gallagher and Melvin S. Rembe, Assistant State’s Attorneys, of counsel.
   Mr. Justice Hall

delivered the opinion of the court.


text:
    John T. Kamen and Minnie F. Kamen for the use of Patrick W. Murphy, appellee, v. Chicago Coil Spring Company, appellant.
    Gen. No. 38,876.
    Opinion filed March 24, 1937.
    Samuel F. Strong, for appellant; Herman S. Waldstein, of counsel. Russell, Murphy & Pearson, for appellee; Francis J. Garvey, of counsel.
   Mr. Justice Hebei

delivered the opinion of the court.


text:
    Josephine Slansek, appellee, v. Slovenska Narodna Podporna Jednota (Slovene National Benefit Society), appellant.
    Gen. No. 38,889.
    Opinion filed March 24, 1937.
    Rehearing denied April 12, 1937.
    Philip B. Heller, for appellant; Philip B. Heller and Arthur J. Goldberg, of counsel. Richard J. Zavertnik, for appellee.
   Mr. Justice Hebei

delivered the opinion of the court.


text:
    Mary Hooks, appellant, v. Pullman Porters Benefit Association of America, Inc., appellee.
    Gen. No. 38,920.
    Opinion filed March 24, 1937.
    Ellis & Westbrooks, for appellant; Richard E. Westbrooks and Edward M. Byrd, of Counsel. J. A. O’Connell and W. J. Butler, for appellee.
   Mr. Justice Hebei

delivered the opinion of the court.


text:
    National Builders Bank of Chicago, administrator of the estate of Lottie Gold, deceased, et al., appellees, v. A. A. Sprague and Britton I. Budd, appellants.
    Gen. No. 39,000.
    Opinion filed March 24, 1937.
    Gardner, Foote, Morrow & Merrick, for appellants; Walter M. Fowler, of counsel. Irving G. Zazove and Wolf & Love, for appellees; Alexander Wolf, of counsel.
   Mr. Justice Hebei

delivered the opinion of the court.


text:
    Becca Alexander and Jennie Levi, appellants, v. Charles H. Stern et al., defendants. Charles H. Stern and Maurice S. Stern, individually and as executors and trustees under the last will and testament of Esther Stern, deceased, appellees.
    Gen. No. 39,097.
    Opinion filed March 24, 1937.
    Joseph E. Winterbotham, for certain appellant. Alden, Latham & Young, for certain other appellant; William Tracy Alden, Francis J. Napliin and Norman A. Korfist, of counsel. Lee D. Mathias, for appellees.
   Mr. Justice Hebei

delivered the opinion of the court.


author: Mr. Presiding Justice John J. Sullivan

text:
    Agatha Janusz, appellant, v. Dr. Lewis Kent Eastman, appellee.
    Gen. No. 38,849.
    Opinion filed March 30, 1937.
    Ben Meyers and Hart E. Baker, for appellant. Edward W. Rawlins and James F. Wright, for appellee.
   Mr. Presiding Justice John J. Sullivan

delivered the opinion of the court.


text:
    Sydney Stein, appellee, v. Harry Steiner, appellant.
    Gen. No. 38,868.

      Opinion filed March 30, 1937.
    Rehearing denied April 13, 1937.
    Hirseh E. Soble, for appellant. Mayer, Meyer, Austrian & Platt, for appellee; David F. Rosenthal and Frank D. Mayer, of counsel.
   Mr. Presiding Justice John J. Sullivan

delivered the opinion of the court.


text:
    Paul C. Loeber et al., appellees, v. 14 West Elm Street Building Corporation et al., appellants.
    Gen. No. 38,907.
    Opinion filed March 30, 1937.
    Rehearing denied and additional opinion filed April 13, 1937.
    Kirkland, Fleming, Green, Martin & Ellis, George Gillette, Norbert B. Tyrrell and John Mann, for appellants. Sabath, Perlman, Goodman & Rein, for appellees.
   Mr. Presiding Justice John J. Sullivan

delivered the opinion of the court.


text:
    Melvin L. Straus, plaintiff, v. Samuel E. Zuker et al., defendants. Samuel E. Zuker and Hannah Zuker, appellants, v. Harriet Gratz Keene et al., appellees.
    Gen. No. 38,954.
    Opinion filed March 30, 1937.
    H. J. Rosenberg, for appellants. McKinney, Folonie & Grear, George Gillete and Norbert B. Tyrrell, for appellees.
   Mr. Presiding Justice John J. Sullivan

delivered the opinion of the court.


author: Mr. Justice Friend

text:
    Lewis Myers, appellant, v. Heitman Trust Company, appellee.
    Gen. No. 38,748.
    Opinion filed March 30, 1937.
    Rehearing denied April 13, 1937.
    Slmlman, Shulman & Abrams and Abram L. Myers, for appellant; Meyer Abrams, of counsel. Hershenson & Hershenson and Urion, Bishop & Sladkey, for appellee; Harry G. Hershenson, Howard F. Bishop, Jerome J. Sladkey and Arthur Abraham, of counsel.
   Mr. Justice Friend

delivered the opinion of the court.


text:
    Louis G. Quigley, administrator of the estate of Harley D. Warner, deceased, appellant, v. Frank E. Merrill et al., defendants. The Northern Trust Company, appellee.
    Gen. No. 38,903.
    Opinion filed March 30, 1937.
    Bull, Lytton & Olson, for appellant; Follett W. Bull and Norman A. Broholm, of counsel. Judah, Reiehmann, Trumbull, Cox & Stern, for appellee.
   Mr. Justice Friend

delivered the opinion of the court.


text:
    Charles DeLeuw and Company, appellee, v. Village of Midlothian, appellant.
    Gen. No. 38,951.
    Opinion filed March 30, 1937.
    Rehearing denied April 13, 1937.
    Paul T. Klenk, for appellant; Franklin W. Klein, of counsel. Lang-worthy & Stevens, for appellee.
   Mr. Justice Friend

delivered the opinion of the court.


text:
    Julius Luhrsen, administrator of the estate of Alfred L. Muller, deceased, appellee, v. John Marcus and Frank W. Glen, appellants.
    Gen. No. 38,977.
    Opinion filed March 30, 1937.
    Cassels, Potter & Bentley, for appellants; Ralph F. Potter and-Kenneth B. Hawkins, of counsel. Crahen, Sullivan, O’Toole & Sullivan, for appellee; John E. Crahen, of counsel.
   Mr. Justice Friend

delivered the opinion of the court.


text:
    Faye Williams, guardian of the estate of Charles Williams, Jr., a minor, appellee, v. Bowman Dairy Company, appellant.
    Gen. No. 38,991.

      Opinion filed March 30, 1937.
    Montgomery, Hart, Pritchard & Harriott, for appellant; Louis E. Hart and L. Edward Hart, Jr., of counsel. Lester L. Bauer and Herbert W. Auw, for appellee; Lester L. Bauer and Abraham Miller, of counsel.
   Mr. Justice Friend

delivered the opinion of the court.


text:
    Julia E. Adams, appellant, v. Isadore Stein et al., defendants. Chicago Title and Trust Company, appellee. Chicago Title and Trust Company, appellee, v. Isadore Stein et al., cross defendants. Julia E. Adams, appellant.
    Gen. No. 39,011.
    Opinion filed March 30, 1937.
    Joseph C. Cowen and Andalman & Shamberg, for appellant; Maxwell N. Andalman, Joseph C. Cowen and Norman H. Arons, of counsel. Butz, Yon Ammon & Marx, for appellee; Bodney C. Glover and Kenneth E. Becker, of counsel.
   Mr. Justice Friend

delivered the opinion of the court.


text:
    Ralph Carlburg, appellee, v. Henderson Plastering Company, defendant. MacDowell-Scheying Construction Company, appellant.
    Gen. No. 39,022.
    Opinion filed March 30, 1937.
    Arthur A. Basse, for appellant. Osear G. Wahlgren, for appellee.
   Mr. Justice Friend

delivered the opinion of the court.


author: Mr. Justice Scanlan

text:
    Clara Warneke, administratrix of the estate of Frank Warneke, deceased, appellant, v. Henry A. Torstenson, appellee.
    Gen. No. 38,964.
    Opinion filed March 30, 1937.
    McKenna, Harris & Schneider, for appellant; Abraham W. Brussell, of counsel. Robertson, Crowe & Spence, for appellee; Burt A. Crowe, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    Milton H. Friend, appellee, v. General Accident, Fire and Life Assurance Corporation, Ltd. of Perth, Scotland, appellant.
    Gen. No. 38,975.
    Opinion filed March 30, 1937.
    John A. Bloomingston, for appellant; Robert A. Isaacs, of counsel. Krinsky, Levitan & Glassner, for appellee; Moses Levitan, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    Mattie Holt, a minor, by Bessie Holt, her next friend, appellee, v. Mary Sorge, appellant.
    Gen. No. 39,003.
    Opinion filed March 30, 1937.
    Rehearing denied April 13, 1937.
    Harry A. Biossat, for appellant. Nicholas J. Mascha and Edward J. Lyons, for appellee.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    William L. Lewy and Sigmund Rothblum, appellees, v. Western Union Telegraph Company, appellant. William L. Lewy and Sigmund Rothblum, cross appellants.
    Gen. 39,125.
    Opinion filed March 30, 1937.
    Rehearing denied April 13, 1937.
    West & Eekhart and Francis R. Stark, for appellant; Owen A. West and Paul Hassell, of counsel. Ringer & Reinwald and Samuel A. Reinaeh, for appellees; Philip E. Ringer, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    The People of the State of Illinois ex rel. John Jacobson et al., petitioners, v. City of Chicago et al., defendants. Edward J. Doyle et al., appellants. Thomas F. Reilly and Johan Waage, appellees.
    Gen. No. 39,194.
    Opinion filed March 30, 1937.

      Alexander J. Besa and Gordon Quinn, for appellants. Gregory A. Gelderman, for appellees; Thomas F. Reilly and Johan Waage, pro so, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    Samuel J. Clapham, plaintiff, v. Abraham Kapes et al., defendants. State Life Insurance Company, appellant. Heitman Trust Company, appellee.
    Gen. No. 39,205.
    Opinion filed March 30, 1937.
    St. George & Davis, for appellant; Maximilian J. St. George, of counsel. Hershenson & Hershenson, for appellee.
   Mr. Justice Scanlan

delivered the opinion of the court.


author: Mr. Presiding Justice Hatchett

text:
    New Era Motors, Inc., and A. M. Andrews, appellants, v. O. L. Ashton et al., appellees, and Foreman State National Bank, appellee.
    Gen. No. 39,001.
    Opinion filed April 5, 1937.
    Schein & Beckwith, for appellants. Hershenson & Hershenson, for certain "appellees. Kurt J. Salomon, for certain other appellee.
   Mr. Presiding Justice Hatchett

delivered the opinion of the court.


text:
    Humphrey Trimble, appellant, v. Harry Manaster and Brother, Inc., appellee.
    Gen. No. 39,072.
    Opinion filed April 5, 1937.
    Thomas C. Hollywood and A. J. Schultze, for appellant. Henry J. & Charles Aaron, for appellee; Franklin Raber and Sidney J. Hess, Jr., of counsel.
   Mr. Presiding Justice Matehett

delivered the opinion of the court.


text:
    Chicago City Bank and Trust Company, plaintiff, v. Martha Paschong et al., appellees, and Mary Bromstedt et al., defendants, and Sixty-third and Halsted Realty Company, appellant, on appeal of Sixty-third and Halsted Realty Company, appellant.
    Gen. No. 39,232.

      Opinion filed April 5, 1937.
    Clausen, Hirsh & Miller, for appellant. Chas. O. Rundall, for appellees.
   Mr. Presiding Justice Matehett

delivered the opinion of the court.


text:
    National Builders Bank of Chicago, appellee, v. Otto Frerk et al., appellants.
    Gen. No. 39,252.
    Opinion filed April 5, 1937.
    Michael B. Roderick, for certain appellants. Arthur J. Hughes, for appellee; Frank H. Klaas, of counsel.
   Mr. Presiding Justice Matehett

delivered the opinion of the court.


text:
    The First National Bank of Chicago, appellant, v. Elizabeth Martin et al., defendants. George S. Martin, appellee.
    Gen, No. 39,264.
    Opinion filed April 5, 1937.
    Oscar E. Carlstrom, for appellant; William I. Conway and Frederick W. Turner, Jr., of counsel. No appearance for appellee.
   Mr. Presiding Justice Matehett

delivered the opinion of the court.


text:
    Guiseppe Tito, executor of the last will and testament of the estate of Maria Nicola Tito, deceased, appellant, v. Societa Agricola Operaia S. Cristoforo E. Maria Vergine Incoronata di Ricigliano, appellee.
    Gen. No. 39,298.
    Opinion filed April 5, 1937.
    Emil Sehlan, for appellant. John S. Flannery, for appellee.
   Mr. Presiding Justice Matehett

delivered the opinion of the court.


text:
    Harold Epstein et al., appellees, v. Alvin C. Dunas et al., defendants, on appeal of Fannie Pinsler, petitioner.
    Gen. No. 39,246.
    Opinion filed April 5, 1937.
    Rehearing denied April 19, 1937.
    Harold O. Hulks, for appellant. Samuel Grossman, for appellee Harold Epstein. Jesse Sissman, for receiver Milton Morris. Peter Sissman, pro se; Peter Sissman, of counsel.
   Mr. Justice MeSurely

delivered the opinion of the court.


text:
    Jules Gilmer Korner, Jr., appellant, v. Maurice T. Weinshenk, appellee.
    Gen. No. 39,267.
    Opinion filed April 5, 1937.
    Cummings & Wyman, for appellant; Daniel P. Nagle, of counsel. Maurice T. Weinshenk, pro se.

   Mr. Justice MeSurely

delivered the opinion of the court.


text:
    M. Kozak, trading as Advance Neon Company, appellee, v. Lerner Shops of Illinois, Inc., appellant.
    Gen. No. 39,277.
    Opinion filed April 5, 1937.
    Rehearing denied April 19, 1937.
    Myron E. Wisch, for appellant. Seymour M. Lewis, for appellee.
   Mr. Justice MeSurely

delivered the opinion of the court.


text:
    Edward E. Plath, executor under the last will and testament of Ida Plath, deceased, plaintiff, and Edward G. DeLaunty et al., defendants. Richard M. O’Brien, appellee, v. Ruth Hoffman, appellant.
    Gen. No. 39,368.
    Opinion filed April 5, 1937.
    Rehearing denied April 19, 1937.
    C. Francis Stradford, for appellant. Joseph Bonnefoi, for appellee; Charles A. Churan and H. E. Raymond, of counsel.
   Mr. Justice MeSurely

delivered the opinion of the court.


text:
    Charles K. Buckels, appellee, v. Arcole Construction Company and Jack Fitzgerald, appellants.
    Gen. No. 39,249.
    Opinion filed April 5, 1937.
    Rehearing denied April 19, 1937.
    Cassels, Potter & Bentley, for appellants; Ralph F. Potter, Leslie H. Vogel, Richard H. Merrick and Horace G. Marshall, of counsel. Root & Miller, Paul B. Fischer and Kellam Foster, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Catherine Schultz, appellant, v. The Live Stock National Bank of Chicago, administrator of the estate of Max Grabo, deceased, appellee.
    Gen. No. 39,280.
    Opinion filed April 5, 1937.
    John A. Bloomingston, for appellant. Barrett, Barrett, Costello & Barrett, for appellee; Chester D. Kern, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Newman-Rudolph Lithographing Company, appellant, v. Shepard & Lawrence, Inc., and Child Development Foundation, Inc., appellees.
    Gen. No. 39,304.
    Opinion filed April 5, 1937.
    Winston, Strawn & Shaw, for appellant; George T. Evans and Gerard E. Grashorn, of counsel. Osborne, Kline & McGurren, for appellees; Wilson L. Kline, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.


author: Mr. Presiding Justice Stone

text:
    Fourth District.
    John Wetzel, appellant, v. Charles Pruitt, appellee.

      Opinion filed March 4, 1937.
    Wilbur A. Trares, for appellant. Henry B. Eaton, for appellee.
   Mr. Presiding Justice Stone

delivered the opinion of the court.


author: Mr. Justice Murphy

text:
    Mary C. Gass Mueller, appellee, v. Edward J. Cruse, appellant.
    Opinion filed March 4, 1937.
    James O. Miller, for appellant. James J. Hickey and H. Grady Vien, for appellee.
   Mr. Justice Murphy

delivered the opinion of the court.


text:
    City of Eldorado et al., appellees, v. The Eldorado Water Company, appellant.
    Opinion filed March 4, 1937.
    A. W. Summers, for appellant. Harry J. Flanders and W. W. Damron, for appellees.
   Mr. Justice Murphy

delivered the opinion of the court.


author: Wat.t.. J.

text:
    Third District
    November Term, 1887.
    Chicago, Burlington & Quincy Railroad Company v. David M. Bryant.

      Railroads—Damages for Injury to Stock—Fence and Cattle Guard— Sufficiency of—Question for Jury—Evidence—Instructions—Improper Remarks by Counsel—New Trial—Newly Discovered Evidence—Diligence.

    1. In an action against a railroad company to recover damages for injuries to stock, the sufficiency of a cattle guard can not be shown by evidence that it is the same in construction as those generally used by the defendant and other roads.
    2. It is proper to refuse instructions when the substance thereof is contained in others given at the instance of the party requesting the same.
    3. Objection to statements of counsel for the adverse party in his closing remarks to the jury can not be first raised in this court.
    4. In the case presented, it is held: That the verdict for the plaintiff is supported by the evidence; that there was no error in the modification and refusal of instructions asked by the defendant; and that it was proper to refuse a new trial on account of newly discovered evidence for want of diligence.
    [Opinion filed May 25, 1888.]
    Appeal from the County Court of Morgan County; the Hon. O. P. Thompson, Judge, presiding.

      Messrs. Sweeney & Walker, O. F. Price, and Morrison & Whitlock, for appellant.
    Appellant, on the trial, offered to prove that the cattle guard in question was of the size and character ordinarily as well as uniformly used by railroad companies, but the court refused to allow such proof. That this proof was proper and competent would not seem to admit of doubt, and certainly1 the authorities so hold. Smead v. L. S. & M. S. R. R. Co., 58 Mich. 200; Davidson v. M. C. R. R. Co., 49 Mich. 428.
    In the Farrelly case, 3 Ill. App. 60, this evidence was held to be admissible.
    Although this identical question does not seem to have been passed upon by our Supreme Court, yet it has uniformly held that it was proper to prove the custom of railroad companies as to the construction of their cars, road-bed, etc. I., B. & W. Ry. Co. v. Flanagan, 77 Ill. 367; Penn. R. R. Co. v. Hawkey, 93 Ill. 584; C., R. I. & P. Ry. Co. v. Lonergan, 118 Ill. 48.
    As the exercise of reasonable care and diligence exonerates appellant from liability, and as this evidence would, of itself, have established such diligence and care, there is no principle upon which it could have been withheld from the jury.
    Mr. George W. Smith, for appellee.
   Wat.t.. J.

The appellee recovered a judgment for $200 against appellant on account of damage done to three horses of appellee by a train or trains running upon the railroad of appellant. The ground of recovery was that appellant had neglected to maintain suitable fences and cattle guards, whereby the animals went upon the track.

There was evidence tending to prove the fence at one point was so defective that the animals might have gone over it, and there was evidence tending to prove that they must have gone over a cattle guard. Ho witness saw them go either way, and the proof is circumstantial, resting ■ mainly upon such indications and marks as would support one or the other of these theories. It is certain, injuries were inflicted by a train or trains passing over the road, and if there is enough evidence to show that the fence or cattle guard was deficient, then, upon the facts, a recovery was justified. It was for the jury to determine this question of fact. There was abundant evidence that the fence was bad, although there was a conflict on this point. But the chief difficulty grows out of the fact that there is much to induce the belief that the animals went over the cattle guard and not through the broken fence. It is not very probable that where, as in this case, the breach in the fence is at the point of connection with the cattle guard, a horse would vault the more difficult harrier. The indications referred to, consisting of marks and hair, were mainly on the west side of the cattle guard near the defect in the fence, and it is possible if these were made by the stock when it went on the road, that the defective condition of the fence induced the effort to cross at that point.

Appellant, insisting that the animals jumped over the guard, and that the fence, whether good or bad, is not to ho considered, sought to prove that the guard was such in point of construction, as generally used on that and other roads. This proof was rejected, but appellant was permitted to prove the condition of the guard and its mode of construction, and that it had been found sufficient to turn stock theretofore. This ruling of the court is complained of, as we think, without cause.

The statute required the appellant to make the guard <e suitable and sufficient to prevent * * horses * * * from getting on the railroad,” and while it was not required thereby to use extraordinary care in that regard, yet we think its duty could not he measured by what it had done on other parts of its lino, or wliat other railroads had done. It may have con-tructed deficient cattle guards elsewhere, and so may have other companies. That would not prove this guard was tC suitable and sufficient,” or that reasonable diligence had been used to make it so. It was competent to prove what sort of a guard would, according to experience, answer the purpose, and such proof was allowed as tending to show that the statutory duty had been performed. It was a question of fact as to what was necessary. In the case of C. & A. R. R. v. Utley, 38 Ill. 413, the Supreme Court in discussing the instructions refused, say: “ A good and sufficient fence must be not merely one which will turn ordinary stock, for a slight barrier might do that, but one that will turn stock, even though, to some extent, unruly.” Conceding that the stock went over the guard and not the fence, or, what is more likely, that the entrance was effected at the point where the fence joined the guard, we can not say the jury erred in finding that the defendant had not complied with the requirement of the statute in that behalf.

Objection is urged to the action of the court in modifying the tenth and eleventh instructions asked by appellant.

As to the tenth, the modification consisted in striking out the words, “ found to be,” before the words, “suitable and sufficient,” the latter words having reference to the size and character of the cattle guard. This was right. While it was competent to show what had been found to be sufficient as tending to show that the structure was properly built, this did not furnish a conclusive test as to whether the defendant had discharged its duty in regard to the cattle guard. . The modification of the eleventh consisted of striking out the words, “ordinary stock,” and inserting the word, “horses.” There can be no valid objection to this. Horses were the subject of the injury, so far as this cattle guard was concerned, and the modification but made the instruction conform to the language of the statute, and rendered it the more appropriate to the matter in hand. Moreover, if the extract above quoted from the Utley case is a correct statement of the rule, the instruction as asked was unsound. Be this as it may, however, the appellant obtained, in at least two of its instructions which were giVen, the use of the word, “ ordinary,” as applied to horses and stock, and has no occasion to complain in this respect.

It is urged that the court erred in refusing certain instructions asked by appellant. The reasons or grounds for this objection are not pointed out, hut, after an examination, we find that the substance of all of the refused instructions which was proper to go to the jury was embodied in the instructions given at the instance of the appellant. These, eleven in number, presented very fully and very favorably all the legal propositions called for by the case and there is, in our judgment, no occasion for complaint in this respect.

It is urged, also, that the court should not have allowed counsel for appellee, in his closing argument, to go outside of the record in discussing the evidence. The only foundation for this objection is in an affidavit, filed on the motion for a new trial. It does not appear that the remarks of counsel wore brought to the notice of the court at the time they were made. Had this been done, and had the court declined to interfere or apply the proper corrective, we would impure whether the objectionable utterances were of such importance as to justify a reversal of the case.

While we do not feel bound to make such inquiry in the present instance for the reason stated, we may say that we are not impressed with the significance of the matter. The utterance in question was not very unusual in its character, nor likely to have any special effect on the jury.

Finally, it is pressed npon us that a new trial should have been granted on account of the newly discovered evidence of a witness named.

It does not appear that the proper diligence was used to learn the existence of this testimony, nor that it would have been decisive of the case. The point was properly overruled by the Circuit Court.

We find no error in the record and the judgment will be affirmed.

Judgment affirmed.


author: •Wall, J.

text:
    James S. Ward et al. v. Soloman Ware et al. The Same v. William Sherrick.

      Practice—Bill of Exceptions.

    The motion for a new trial and exceptions in respect thereto must he preserved in the bill of exceptions, or error can not be assigned thereon.
    [Opinion filed May 25, 1888.]
    Appeal from the Circuit Court of Cumberland County; the Hon. W. C. Jokes, Judge, presiding.
    Messrs. George W. Fithiak and W. S. Everhart, for appellants.
    Messrs. P. A. Brady and L. M. Brewer, for appellees.
   •Wall, J.

These cases were tried by the court, a jury being waived, and appeals are prosecuted from the judgments rendered. Mo objection was taken to the judgment in either case, nor does it appear from the bill of exceptions that any exception was saved as to any of the matters now assigned for error. The clerk in making up the record states that a motion for new trial was made and overruled in each case, but the points urged do not appear, nor does it appear that any exception was taken to the action of the court in refusing the motions. Such motions and the exceptions in respect thereto must be preserved in the bill of exceptions, and error cannot be assigned with reference to matters such as here presented, unless exception was taken at the time. Daniels v. Shields, 38 Ill. 197; Nason v. Litz, 73 Ill. 371.

Affirmed.


author: Pleasants, J.

text:
    John P. Dunsworth v. Walter A. Wood Machine Company.

      Sales—Joint Purchase—Action against Survicor—Bill of Particulars— Pleading—Justice Court.
    1. It is sufficient if an account ok bill of particulars filed in a justice court indicates with reasonable clearness the facts on which the plaintiff relies.
    2. In an action to recover the price of a harvesting machine from the survivor of two joint purchasers, it is held: That if the plaintiff can not recover the price, eo nomine, he might recover damages for the breach of the special contract for payment in'notes; and that the bill of particulars contained a sufficient statement of the'plaintiff’s claim.
    [Opinion filed May 25, 1888.]
    Appeal from the Circuit Court of Green County; the Hon. George W. Herdman, Judge, presiding.
    Messrs. James B. Ward and Frank A. Whiteside, for appellant.
    Mr. John G. Henderson, for appellee.
    The cause of action having been stated to be the price of a machine sold, etc., generally, and not damages for a breach of a written agreement, the orders were variant from the bill of particulars, and did not prove the cause of action stated. It was error, therefore, to admit them in evidence and to permit appellee, after the trial had been entered upon, to thus abandon the cause of action stated and rely upon another not embraced in the bill of particulars. Morton v. McClure, 22 Ill. 258; Ferguson v. People, 73 Ill. 560; Ill. Fem. Col. v. Perry, 8 Ill. App. 188; Meyers v. Schemp, 67 Ill. 469; Russell v. Gilmore, 54 Ill. 147; Burnham v. Roberts, 70 Ill. 24; 1 Chitty Pl. 347.
    We contend that this action can not be maintained for the price or value of the machine, for the reason that the evidence establishes that this machine was to be paid for by notes, not in cash, and on a credit which had not expired when this suit was brought. The rule being that when goods are sold and delivered to be paid for by note or bill payable at a future day, and the note or bill is not given, the vendor can not maintain assumpsit for the price or the value of the goods until the expiration of the time of the credit, unless the vendee has converted the goods into money or money’s worth. For in the one case the vendor may rescind the contract and elect to sue in assumpsit upon such conversion, and in the other, until the expiration of the credit no debt is due. Kellogg & Co. v. Turpie, 93 Ill. 265; Same, 2 Ill. App. 55; 2 Greenleaf on Ev., Sec. 104; Johnston v. Salisbury, 61 Ill. 327; Creel v. Kirkham, 47 Ill. 349; Dickinson v. Whitney, 4 Gilm. 409; Allen v. Ford, 19 Pick. 217.
   Pleasants, J.

Appellant offered no evidence on the trial below, nor does he here suggest any merit, unless it appears from the foregoing statement. His appeal is based on grounds purely technical. It seems that, on his motion, the Circuit Court ordered the plaintiff to file a bill of particulars, under which it filed the following:

“To one mowing and reaping machine sold to John P. Dunsworth and Jas. W. Dunsworth, the said
Jas. W. having since departed this life........ .$185.00
To interest.................................... 20.00
To one mowing and reaping machine............ 185.00
To interest on same............................. 20.00”

From the limit of jurisdiction of the court in which the action was commenced, it may be inferred that this bill was so made to present the claim upon one machine in two aspects, to meet either view that might be taken of his liability, if any, as sole original or surviving joint contractor.

When the orders were offered in evidence the defendant objected to tlieir admission for reasons not quite clear from the statement in the record, but which are understood to be (1) that the bill of particulars gave no notice of anything the orders could tend to prove; (2) that it was ambiguous on its face (or perhaps that the orders, being two, and alike, were ambiguous); and (3) that they were variant from the bill—they stating the price at 8175 and in notes, and it at §185. They were admitted over these objections, and then plaintiff’s agent testified to the delivery and that defendant gave the notes promised for one, but refused to give them for the other of the machines. The death of James W. Dunsworth, as stated, was admitted.

Upon the conclusion of plaintiff’s evidence, defendant moved the court to strike it all out, which motion was denied; and on these rulings the questions here are made.

Appellant insists that the suit was for the price, as such, of the machine sold; that the bill of particulars conclusively so shows; that therefore the plaintiff’s right of proof was limited to that cause of action in all its technical strictness; and that the evidence admitted entirely failed to prove it, since it showed that, by the contract of purchase, a credit was to be given which had not expired when the suit was commenced.

This argument would not be entitled to much consideration if it were sound. It is built on a very nice technicality, not touching the merits; and this does not seem to be a case in which such a point should be allowed to defeat substantial justice. If plaintiff could not recover the price, eo nomrne, he could recover damages for the breach of the special contract for payment in notes, and the measure of damages would be the amount for which they should have been given. Manton v. Gammon, 7 Ill. App. 201. The result being the same. the naming of it as the price, if it had been so named, instead of damages, though it were proper, should not prevent his reaching it. In the court where this action was commenced, written pleadings are unknown. In a court of record the items in an account or bill filed under the common counts, which furnish no particulars of the cause of action, are not treated with the strictness applicable to a declaration on a special contract. It is sufficient if it indicates with reasonable clearness the facts on which the plaintiff relies to sustain any claim recoverable under such counts. In a justice’s court, where the summons stands for a good count, common ox-special, as the case xxpon the proof may require, the rule should be no less liberal. And if, in this case, the statement had been in terms, “for the price of one mowing and reaping machine,” it would have indicated with reasonable clearness a claim arising xxpon the sale of such a machine and the nonpayment of the price as promised. Whether the right turned out upon the evidence to be to the price, eo nomine, or to damages for breach of a special promise as to pávment, should make no difference as to the sxxfficiency of the notice.

But is the position of appellant technically sound? Does the bill indicate a claim for the pi-ice, as such? The statement of the item in question, as here made, would have different meanings, according to the form of action. If in debt, it-would doubtless signify a claim for the px-ice. But assumpsit is framed for the recovery of damages only. And yet this same form of statement is universally followed for accounts ox-bills of particulars, in actions of assumpsit for goods sold and delivered. And it is alike appropriate wherever the price has not been paid according to the contract, express or implied, whether it were for cash on delivery, or upon a credit which had expired, or for specific articles on delivex-y or xxpon a like credit, though neither is indicated by it. We perceive no reason why it is not as proper where the contract was to pay in notes on delivery, though that be not indicated. It is enough that the promise in consideration of which the article was sold and delivered by the plaintiff, has been broken without legal excuse ox- justification, and the mere charge for the article as here made, £:to one mowing and reaping machine,” clearly implies a claim that it has not been paid for according to the promise.

The orders tended to prove the promise and the measure of damages for its breach, which was otherwise shown, and under this notice were properly admitted. Since the plaintiff did not claim that the possession of the machine was fraudulently or tortiously obtained, or that the credit was procured by fraud, nor treat the contract as rescinded, the rule declared in Kellogg v. Turpie, 93 Ill. 265, does not apply.

The judgment will be affirmed.

Judgment affirmed.


author: Conger, P. J.

text:
    Charles F. Steiger v. Samuel F. Prather.

      Landlord and Tenant—Bemoval of Improvements by the Lessee—Fire-Bill of Exceptions.

    In an action by a landlord to recover damages from a tenant for the removal o£ improvements, this court declines to interfere with the verdict for the defendant, only part of the lease appearing in the bill of exceptions.
    [Opinion filed May 25, 1888.]
    Appeal from the Circuit Court of Sangamon County; the lion. J. A. Creighton, Judge, presiding.
    Messrs. Bradley & Carpenter, for appellant.
    Messrs. Conkling & Grout, for appellee.
    Appellee has a right to have the whole case before this court, or in its absence this court will presume that the terms of the lease justified the verdict and judgment below. Roger v. Hall, 3 Scam. 5, is the leading case and is cited with approval in McLaughlin v. Walsh, 3 Scam. 185; Ballance v. Leonard, 37 Ill. 43; Hayes v. Lawver, 83 Ill. 182; Lee et al. v. Town of Mound Station, 118 Ill. 312.
    An improvement attached to real estate becomes a fixture and part of the realty and as a general rule cannot be removed by the tenant. To this rule trade fixtures are an exception as between landlord and tenant. Taylor’s Landlord and Tenant, 5th Ed., Sec. 546.
    This pipe, used to conduct water to the boilers on the leased premises, is a trade fixture between appellant and appellee. Phillbrick v. Ewing, 97 Mass. 133. And could be removed by the latter during the term. Moore v. Smith, 24 Ill. 513. Or even after the term expired and before yielding possession of the premises. Moore v. Smith, supra, 517; Schreiber v. Chicago & Evanston R. R. Co., 115 Ill. 340; Van Ness v. Paccard, 2 Pet. 146; Penton v. Robart, 2 East, 88.
    The character of personal property and right of removal may he preserved by an agreement with the owner of the land previous to annexation. Ewell on Fixtures, 66; Dooley v. Christ, 25 Ill. 453.
    Where improvements are placed by the lesseeuponthe land of the lessor, upon an agreement or understanding that they may he removed, they do not become apart of the real estate, but continue to be personal chattels and the property of the person who erected them. Smith v. Benson, 1 Hill, 174; Dame v. Dame, 38 N. H. 429; Doak v. Wiswell, 38 Me. 569.
   Conger, P. J.

In the year 1881 appellant was the owner of certain property near Springfield, known as the Hominy Mill property, consisting of twenty acres of land, mill and machinery for carrying on the milling business. The water for the use of the boilers was obtained from wells on the premises, and, as a reserve, there was a two-inch iron pipe laid in the ground extending some three quarters of a mile to the city water works. In that year appellee, Prather, and others, leased these premises, took possession and continued to occupy them until the 16th of April, 1882, when the mill was destroyed by fire.

During the time they were in possession appellee took up this iron pipe and replaced it with new. Some five months after the mills were burned appellee, Prather, took up the pipe he had placed in the ground and sold it, and this suit was instituted to recover the value of the pipe and for trespass upon the premises of appellant.

We find by referring to the record that the lease was introduced in evidence and read to the jury, but no part of such lease appears in the record except one clause, as follows: ct And the party of the second part further covenants with the party of first part that, at the time in the lease mentioned, he will yield the premises up to the party of the first part in as good condition as when the same were entered upon by the said party of the second part, loss by fire, inevitable accident or ordinary wear and tear excepted. And it is further agreed by the parties of the first and second part that the said rent shall be paid quarterly. And it is further agreed that the party of the second part shall have the right to remove all improvements by him made upon the demised premises.”

Dor aught we know there may have been other provisions in the lease fully sustaining the finding of the jury.

If the whole lease was before us we should know whether there wore or not provisions in it allowing the removal of improvements after the lease was'canceled; but not having it all, we must presume it did authorize the appellee to make the removal which the jury have found was lawful. Roger v. Hall, 3 Seam. 5; McLaughlin v. Walsh, 3 Scam. 185.

The judgment of the Circuit Court will be affirmed.

Judgment affirmed.


author: Per Guriam.

text:
    John Yowell v. Jacob Braden et al.

      Highways—Commissioners—Trespass—Cutting of Timber—Tender—■ Evidence.

      In an action of trespass against commissioners and overseers of highways, for entering upon the plaintiff’s land and cutting timber thereon, this court reverses a judgment for the defendants, although three juries have found for them, the verdict being contrary to the evidence.
    [Opinion filed May 25, 1888.]
    Appeal from the Circuit Court of Edgar County; the Hon. C. B. Smith, Judge, presiding.
    Mr. S. S. Whitehead, for appellant.
    Messrs. Sellar & Dole and Egbert L. McKinlay, for appellees.
   Per Guriam.

Trespass by appellant against the commissioners and overseer of highways and others for entering upon his land and cutting down growing timber. The action was commenced in the fall of 1881, and has been four times tried. One jury failed to agree, and three found for the defendants. We infer from the record that two of these verdicts were set aside as being against the law and the evidence, and the last allowed to stand only because the power of the court to grant new trials for the same reason was thereby exhausted.

The trespass complained of was proved beyond dispute. Plaintiff’s witnesses testified, from actual count and measurement, that defendants cut down about eighty trees and saplings from two to twenty-one inches, and that the actual damage was from $10 to $35, the average estimate being about $22.

The defense offered was that they acted in good faith, as road officers, to open and clear what they supposed to he a public highway regularly laid out and established, and that the damage was very little, if any. There was some evidence that they did so suppose, but none whatever that such was the fact, or that any care was taken to ascertain the fact, although plaintiff warned the overseer of this suit, if he should enter as threatened. This warning, given long before the entry, shows a disposition to avoid a law suit, and being so wilfully (we do not say maliciously) disregarded, he could not well do otherwise than bring it and persist in its prosecution as far as he may against such verdicts. We regard his claim shown by this record as something more than nominal damages, and if the amount of costs involved is large, it does not appear to he through any fanlt on his part. '

The matter of the tender, so called, was, in our ojnnion, improperly admitted and, notwithstanding the instruction as to its effect or bearing, probably prejudicial to the plaintiff’s ease.

Fertile reasons thus indicated, the judgment will be reversed and the cause remanded.

Reversed and remanded.


author: Per Curiam.

text:
    John Dayton v. Thomas Rutherford et al.

      Drainage—Cutting Ditch from Natural Drain without District—Injunction.

    1. An injunction lies to prevent the cutting of a ditch connecting a natural drain or slough without, with a branch ditch within, a drainage district.
    2. In the case presented, this court holds that the evidence sustains the finding of the chancellor that the drain or slough in question is a natural channel or watercourse having its outlet outside the district.
    [Opinion filed May 25, 1888.]
    Appeal from the Circuit Court of Douglass County; the Hon. C. B. Smith, Judge, presiding.
    Messrs. Anthony Thornton, C. W. Woolverton and William J. Ammen, for appellant.
    The alleged injury is too uncertain to justify the interposition by injunction. The particular relief sought is premature.

      There is no charge of insolvency in the bill, as against the defendant; no averment that multiplicity of suits might be avoided if equity would take jurisdiction. There is no averment that any damage whatever has resulted to the drains in the district. Appellant was at work on his own land, and the court is asked to perpetually enjoin him from the further prosecution of the work, for fear that water may be thrown into the drains under the care of appellees and injure them.
    An injunction is a harsh remedy and will never be granted upon the mere allegation of irreparable injury. Facts and circumstances should be stated that the court can be satisfied as to the nature of the injury. Upon the indefinite statements in the bill, no court could be satisfied of probable injury. 1 High on Injunctions, Sec. 34.
    To authorize an injunction in a case like this there must appear to be well-grounded apprehension of immediate injury. 1 High on Injunctions, Sec. 7.
    From the allegations in the bill, as well as the proof, it is wholly uncertain and indefinite whether the ditch of appellant will operate to the damage of the drains. Even if there be possibleT'njury, equity will not interfere. 1 High on Injunctions, Sec. 742.
    The proof consists simply of opinions. It is impossible for the court to know that any injury will ensue until the threatened ditch is completed. In such case the writ of injunction is always refused. 1 High on Injunctions, Sec. 743.
    Upon the proof submitted on the hearing a jury would not allow damages. The damages, if any, are entirely speculative. Neither from the allegations in the bill nor from the proofs— consisting of vague opinions—can the court determine that the acts done or threatened would result in irreparable damage, or in fact any injury. There is not sufficient evidence that the alleged or threatened trespasses are, or ever would be, a nuisance.
    In such case the rule is that “ the thing charged must be a nuisance before a court will grant preventive relief to stay irreparable damages until the question is determined by an action at law.” Dunning v. The City of Aurora, 40 Ill. 486.

      From the contradictory opinions given as to the effect of the contemplated ditch which is to he constructed by appellant upon the drain with which the former may be connected, it is impossible to determine the effect.
    66 Where the thing complained of is not necessarily a nuisance, but may or may not be so, according tó circumstances, a court of chancery will not stay a party until the matter has been tried at law.” Town of Lake View v. Letz, 44 Ill. 84.
    These cases have been followed and approved in a recent opinion of the Supreme Court Thornton v. Roll, 118 Ill. 363.
    ££ Whore the thing sought to he restrained is not in itself noxious, but only something which may, according to circumstances, prove to he so, the court will refuse to interfere until the matter has been tried at law.” Mohawk Bridge Co. v. The N. & S. R. R. Co., 6 Paige, 563.
    Appellant can not be held responsible for the additional water conducted by these artificial ditches constructed by other parties, with whom he was in no manner connected. C. & A. R. R. Co. v. Glenney, 118 Ill. 491.
    Appellant was the owner of the dominant heritage, and had an easement in the servient tenement for the discharge of all waters which naturally rise or fall upon him. While he could not create new channels entirely diverting the water, yet he may make drains for agricultural purposes on his own land, as may bo required by good husbandry, even though the flow of the water may thereby he increased. Peck v. Herrington, 109 Ill. 612.
    Messrs.-Eckhart & Moore, for appellees.
    This is a threatened diversion of surface water, whereby a legal wrong would be perpetrated, and a threatened continuing injury. The appropriate function of the writ of injunction being to afford preventive relief, this is a case that justifies its interposition.
    The remedy by interlocutory injunction being preventive in its nature, it is not necessary that a wrong should have been actually committed before a court of equity will interfere; since, if this were required, it would in most cases defeat the very purpose for which the relief is sought by allowing the commission of the act which complainant seeks' to restrain. And satisfactory proof that defendants threaten the commission of a wrong which is within their power, is sufficient ground to justify interference. High on Injunctions, Sec. 18.
    It is only to be used for the prevention of a future injury actually threatened, and to prevent the perpetration of a legal wrong for which no adequate remedy can be had in damages. High on Injunctions, Sec. 23.
    The remedy to prevent improper diversion of surface waters by injunction is clearly established. Hicks v. Silliman, 93 Ill. 255.
    The diversion or obstruction of a watercourse has been the subject of frequent equitable interference by way of injunction, both in England and America. Gould on Waters, Sec. 534.
    And where the defendants in relieving their lands from surface water, deepened a ditch upon the highway, and thus caused an increased and unnatural flow of water through the surface drains of adjacent owners, causing injury to then-lands, and making farther injuries probable, a mandatory injunction was issued directing the defendants to fill up the ditch. Gould on Waters, Sec. 553.
    So, the leading of surface water from one’s premises upon those of another, causing overflow and injury to the latter, may he enjoined as a nuisance. High on Inj., Sec. 809, 2d Ed.
    Where defendant, by digging a ditch for that purpose, draws off surface water which has accumulated in a natural pond or reservoir upon his own premisos, to and upon the premises of plaintiff adjoining, the injury being continuous in its nature, affords sufficient ground for relief by injunction. High on Inj., 2d Ed., Sec. 809.
   Per Curiam.

This was a hill filed by the commissioners to enjoin appellant from cutting a ditch from what is alleged to be a natural drain or slough running through his land outside of the district to a branch ditch in it, thereby turning into the latter the water from his own and other lands, also out of the district, which naturally drained to another outlet.

By force of the statute, Drainage Act of 1885, Soc. 42, the connection proposed to be made by appellant would bring into the district his own land, but not that of the others referred to. And it gives him the right to drain from bis own land ontsido into tho ditches of the district, the water that comes upon it from other lands also outside, unless it goes off by the continuation of the same natural channel by which it conies on. But to divert the water from such a channel to the ditches of the district would be a wrong in itself; and since the damage would be continuing or recurring, and difficult of computation, injunction is a proper remedy.

Whether the slough mentioned in the bill was such a channel or watercourse was a question of fact, upon which tho evidence was conflicting. The chancellor found it was, and we are not prepared to say his finding was not sufficiently supported. By the decree made, appellant’s right to drain his own land outside of the district into its ditch—which we understand it holds to be as herein above stated—is expressly saved, and so, in view of the fact as found, we think he has no cause of complaint.

Decree affirmed.


author: Per Ouriam.

text:
    The Town of Talkington v. Robert Bullard.

      Highways—Dedication and Acceptance—Penalty—Instructions.

    In an action to recover a penalty for obstructing an alleged highway, the evidence being conflicting, this court declines to interfere with the verdict.
    [Opinion filed May 25, 1888.]
    Appeal from the Circuit Court of Sangamon County; the lion. J. A. Ceeightoit, Judge, presiding.

      Messrs. John M. & John Mayo Palmes, for appellant.
    Messrs. Patton & Hamilton, for appellee.
   Per Ouriam.

This suit was commenced before a justice of the peace to recover of appellee a penalty for obstructing an alleged highway. The record is quite large and shows a conflict of evidence upon the questions of fact, whether there had been a dedication and acceptance of the locus as a public highway. Two juries have found the issues for the defendant. The only complaint of the court’s action is in reference to the instructions given for him, but we do not discover in them any error serious enough to vitiate the judgment. It will therefore be affirmed.

Judgment affirmed.