text:
    American Bonding and Casualty Company, Complainant, v. Chicago Bonding & Insurance Company et al., Defendants. William A. Murphy, Director of Trade and Commerce of Illinois, Cross-Complainant, v. Chicago Bonding & Insurance Company et al., Cross-Defendants. Leonard A. Brundage, Receiver of Chicago Bonding & Insurance Company, Appellee. Appeal of Louis Schwartz et al., Appellants.
    Gen. No. 33,043.

      Heard in the second division of this court for the first district at the October term, 1928.
    Opinion filed February 14, 1929.
    Edward C. Turner, Attorney General, and C. S. Younger, Assistant Attorney General, for State of Ohio, appellant.
    Harry A. Blachman, for certain other appellants.
    Wetten, Pegler & Dale, for appellee.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.

On May 8, 1928, the superior court,' following the recommendation of the master, entered an order or decree allowing the respective claims of four individual claimants of Ohio, viz., Schwartz, $1,242.50, Dudley, $1,512.90, Zaslavsky, $4,431.70, and Mitchell, $1,465, and also allowing two claims (consolidated and compromised by stipulation) of the State of Ohio in the sum of $50,000. The court found that prior to 1920, the Chicago Bonding & Insurance Company, an Illinois corporation (hereinafter referred to as the Chicago Co.) was authorized by the State of Ohio to do business in that State; that before it could there commence actual busines^Tt was required to deposit with the insurance commissioner of that State cash or securities amounting to $50,000, “as a special fund for the protection of policyholders residing within the State of Ohio ”J] that when its subsequent insolvency became knowlla receiver was appointed in Ohio to administer the fund; and that, as a result of proceedings there hacías aid claimants, who had there filed their claims, “were paida dividend of 19% per cent by said Ohio receivei%)^_And the court further ordered that Leonard A. Brundage, receiver herein, do not pay any dividends on the claims of said five Ohio claimants “until the remaining claimants herein have received a dividend equalling 19% per cent”; and that when they shall have received such a dividend, the Ohio claimants “shall be entitled to share in the remaining assets in the hands of said receiver on the same basis as the remaining claimants and said receiver shall pay a diviidend accordingly. 'JJ From this order or decree the Ohio claimants prayed and perfected the present appeal.

The only question involved is whether, as regards a large fund now in the hands of the receiver herein, the court erred in entering said order or decree. The Ohio claimants here contend in substance that the Ohio special fund of $50,000 was not an asset of the Chicago Co., but was in the nature of “collateral security” for the sole benefit of its Ohio policyholders; and that they had the right to participate with all of the other creditors of the Chicago Co. in a general fund, now in the hands of the receiver herein, after they had exhausted the Ohio special fund “which was held in trust for them alone. ’ ’ On the other hand the receiver contends in substance that the fund now in his hands is a special fund, just as was the Ohio fund of $50,000 before its distribution; that both funds were assets of the Chicago Co., and were originally deposited by it in compliance with statutes; that while the Ohio fund was for the protection of Ohio policyholders only, the fund now in the hands of the receiver herein was, as provided by the Illinois statute, “for the special and sole benefit and security of all of the company’s creditors and holders of its obligations and contracts of surety-ship, guaranty and indemnity”; that the Ohio fund did not possess the usual characteristics of ' collateral security ; that the Ohio claimants to the present fund are of the same general class as those of the many other claimants thereto, who were not permitted under the Ohio statute to participate in the Ohio fund; that “equality is equity”; and that it would be inequitable for the Ohio claimants to receive dividends on the full amount of their claims, thus giving them an advantage over other creditors of the same general class to the extent of the 19% per cent recovered in Ohio.

A number of years ago the Chicago Co. deposited certain securities with the insurance superintendent of Illinois. This was done in compliance with section 6 of an act “to provide for the organization, management and regulation of surety companies,” in force April 17, 1899 (Cahill’s St. 1927, ch. 32, fl325). After July 1, 1917, the director of the department of trade and commerce of Illinois became possessed of these securities in trust. About March 2, 1920, the Chicago Co. became consolidated with the American Bonding and Casualty Company, an Iowa corporation (hereinafter referred to as the Consolidated Co.) under the latter’s name. The Chicago Co. ceased doing business in Illinois and abandoned its right to do so. All of its debts and liabilities on policies, indemnity bonds, etc., were assumed by the Consolidated Co., and all of its property and assets, except said securities, were removed to Iowa and taken possession of by the Consolidated Co. On November 3, 1920, the Consolidated Co. filed a bill in the superior court of Cook county (the commencement of the present litigation). The main purpose of the bill was to secure an order of a court of competent jurisdiction for the surrender to it of said securities, then held by said director, and which then amounted at their par value to $305,334. Said director filed a cross-bill, alleging that the Chicago Co. had no property in Illinois except the securities and that it was. indebted to many persons on its issued policies, and praying that a receiver be appointed to take possession of the securities, to settle claims, and do all things necessary to wind up the affairs of the company. A protracted litigation followed. Subsequently, the Chicago Co. and the Consolidated Co. both became insolvent and, on January 24, 1921, a receiver for the latter was appointed by an Iowa court and thereafter he was substituted as complainant herein and he filed an amended and supplemental bill. Finally, on February 4, 1922, a decree as to the main issues was entered herein, sustaining the prayer of the director’s cross-bill, and directing that Leonard A. Brundage, receiver, take charge of the securities, and out of the fund, as far as it would go, pay the allowed claims of bona fide policyholders and creditors of the Chicago Co. The decree was affirmed by this Appellate Court on November 8, 1922 (226 Ill. App. 475). Certiorari was denied by the Supreme Court.

During May, 1921, an action was commenced in a court in Franklin county, Ohio, on behalf of the Superintendent of insurance of that State against the Chicago Co., for the purpose of obtaining distribution of the $50,000 fund (in the form of securities) which the Chicago Co. had deposited with the superintendent prior to its doing business in that State. The receiver herein and the Iowa receiver each attempted to obtain possession of the deposit. /"But the court, on December 26, 1926, held that under the Ohio statute, the deposit was “for the special benefit and security of the policy holders of the company, whose policies were issued or delivered within the State of Ohio.” In that suit the five Ohio claimants herein had filed their claims, as had others whose policies had been issued and delivered within that State, and their claims (except the smaller of the two claims of the State of Ohio) were allowed, and a dividend of 19% per cent was ordered paid to them, which they each thereafter received. These dividends exhausted the fund/

Many claims of policyholders and creditors of the Chicago Co. "were filed with the receiver herein. By order of the superior court all claims were referred to a master for hearing and recommendation as to allowance or disallowance. In September, 1927, the master reported favorably as to the allowance of many claims, including those of the four individual Ohio claimants. Objections were filed by Illinois creditors to the payment of dividends on the claims of said four claimants. In the meantime the solicitors for the receiver and those for the State of Ohio had entered into a stipulation, with the court’s approval, by the terms of which the aggregate amount of the State’s two claims was reduced from $154,960 to $50,000, which latter sum was to be taken as the basis for distribution. Thereafter the claims of the five Ohio claimants were re-referred to the master to ascertain and report what dividends on their claims they had received from the distribution of the $50,000 Ohio fund above mentioned, and also to recommend the amount of dividends, if any, they should receive out of the fund in the hands of the receiver herein. In the master’s final report, filed March 31, 1928, after reviewing the facts and the contentions of the opposing parties, he recommended that the claims of the five. Ohio claimants should be allowed, but that no dividends should be paid by the receiver, Brundage, on any of the claims until claimants other than those from Ohio had been paid dividends aggregating 19% per cent. The master stated in his report that it was the well-settled rule, in the settlement of insolvent estates by courts of equity, that after payment of administration expenses the assets remaining should be distributed equally among those whose claims had been allowed, except in cases where the court had determined that some claimants were entitled to first be paid in full because of facts which in law or equity had created a right in their behalf to a priority or preference over general creditors; that the Ohio claimants in this proceeding “have not sought to have their claims established as prior or preferential to other claimants ’ ’; that if their contentions be sustained the effect will be to give each of them a preference over claimants not residing in Ohio in the assets of the Chicago Co.; that even though the fund deposited with the insurance department of the State of Ohio was a special fund, “it nevertheless constituted and was a part of the assets of the company, subject only to be first applied to the payment of claims arising in Ohio”; that the mere fact that the Ohio fund was handled and distributed by a receiver appointed in Ohio does not take it from the category of assets of the Chicago Co.; and that (for illustration) it would be inequitable and unjust to pay, out of the assets of the Chicago Co., only a total dividend of 30 per cent, and at the same time allow a dividend at the same ratio to the Ohio claimants, who thereby would ultimately be paid to the extent of 49% per cent of their claims. The exceptions of the five Ohio claimants to the master’s report were overruled, the report confirmed in all respects by the court, and on May 8, 1928, the order or decree appealed from was entered. Counsel state in their briefs here filed that the fund in' the hands of the receiver is sufficient to pay about 25 per cent on the allowed claims.

After reviewing’ the present record and considering’ the printed and oral arguments of counsel for the respective parties, we think that the master’s recommendation was in accord with equitable principles and that the decree of the superior court following the master’s report, should be affirmed. £Jt is clear to us that both special funds, the one in Ohio and the one in Illinois, were assets of the Chicago Co. In Scottish Union & National Ins. Co. v. Bowland, 196 U. S. 611, the court had occasion to construe the Ohio statute, or a former similar one, and said (p. 622): “As a condition of doing business in Ohio, companies organized under the laws of foreign governments are, by § 3660, required to invest a portion of their capital in the stock or bonds of the United States or of the State of Ohio, or some municipality or county thereof, and make deposit of such bonds with the superintendent of insurance for the benefit of local policyholders. Subsequent provisions of the section further show that this deposit is to be regarded as a part of the capital of such foreign insurance company, which may be considered in determining the aggregate capital of the company required by law. The companies are permitted to collect the interest or dividends on the securities. These deposits constitute a fund primarily for the benefit of such policyholders, and after their claims are satisfied may be turned over to an assignee or devoted to other purposes. Falkenbach v. Patterson, 43 Ohio St. 359, 1 N. E. 757; State v. Matthews, 64 Ohio St. 419, 60 N. E. 605.” In the present case it appears that the $50,000 Ohio fund, deposited by the Chicago Co. under the Ohio statute, was, in proceedings had in an Ohio court, distributed to Ohio policyholders as far as it would go, and such policyholders, including the five claimants (appellants), received dividends of 19% per cent on their respective claims. They received these dividends because of the Ohio statute. The five claimants after-wards filed claims in the present proceeding and demanded in an Illinois court additional dividends out of similar assets of the Chicago Co., pro rata with other claimants of the same general class, but which latter claimants have thus far not received anything out of any of the assets of the company. Wé do not think that their demand is in accord with the policy of the law in Illinois, or generally. The case of Ramsay v. Ramsay, 196 Ill. 179, cited by the receiver’s counsel, involved the distribution of the property of a deceased insolvent debtor, who at the time of his death resided in Clinton county, Illinois, and left property in this State and also in the State of Missouri. Two claimants, who had filed their- claims in the probate court of Clinton county, recovered about 12 per cent of their respective claims from assets in Missouri in proceedings had in that State, and afterwards sought to recover full distributive shares of the assets in Illinois. The probate court refused to allow this, and, on appeal to the circuit court, the administrator of the estate was directed to pay all claimants, except said two claimants, 12 per cent on their claims, thus making all claimants equal with them, and to then" distribute the balance in his hands ratably among all claimants of the seventh class. The Appellate Court affirmed the judgment and an appeal was taken to the Supreme Court where it again was affirmed. The court said (p. 185):

“It is insisted by appellants that they are entitled to receive full distributive shares of the assets reported by the administrator to the probate court of Clinton county "without in any way being charged with the amounts received from the Missouri assets. The proposition is so manifestly unjust to other creditors of the insolvent estate that it should be sustained only in obedience to strict and imperative requirements of the law. The general policy of the law in all jurisdictions, so far as we are aware, is, that all the property of a deceased insolvent debtor not set apart for the widow or minor children shall become assets in the hands of his administrator for the payment, pro rata, of all his debts according to classification, no matter where the assets may be found or the creditors reside. In Dawes v. Head, 3 Pick. 128, it was said by Parker, Judge: ‘We cannot think that in any civilized country advantage ought to be taken of the accidental circumstances of property being found within its territory which may be reduced to possession by the aid of its courts and law, to sequester the whole for the use of its own subjects or citizens, and where it shall be known that all the estate and effects of the deceased are insufficient to pay his just debts. Such a doctrine would be derogatory to the character of any government. ’ . . . Unless, therefor, appellants have shown that their claims are in some way exceptions to the general rule, the judgment of the circuit court is right and should be affirmed. ’ ’

And the court, in the opinion (p. 186), discussed the contention of the two claimants’ counsel to the effect that they were entitled to a preference over other creditors, as to the Missouri" assets, on the principle that a creditor should be allowed to prove his whole debt without regard to any collateral security he might hold, and be entitled to a dividend on the whole claim so allowed, and the court also referred to three Illinois decisions cited by said counsel. And the court said: “No argument seems necessary to show that the doctrine of these cases can have no application to the question at issue. ’ ’ And we fail to see how the doctrine in these cited cases (one of which, Levy v. Chicago Nat. Bank, 158 Ill. 88, is cited by appellants’ counsel in their brief here filed) is applicable to the question before us. While the Ohio fund of $50,000 was held in trust for the benefit of Ohio policyholders only, the fund now in the hands of the receiver herein also was a trust fund for the benefit of all creditors of the Chicago Co. Both were assets of the company. We cannot see that either fund had or has the characteristics of “collateral security,” such as appeared in the Levy and the other cases referred to. And the Supreme Court further said in the Ramsay case (p. 188): “It is to be observed that these appellants are not content with what the Missouri court gave them, but come into the probate court of Clinton county and demand that they shall be allowed to participate in the assets in the hands of the appellee, the resident administrator. Having done so, we entertain no doubt that the latter court had the power, and that it was its duty, to require them to account for that which they had received under the Missouri administration, and to order a distribution pro rata among all the seventh-class creditors.” The principles enunciated in the Ramsay case have been announced in decisions in other States and held also applicable in the distribution of assets of an insolvent corporation. (Estate of Hanreddy, 176 Wis. 570, 575-577; Buswell v. Supreme Sitting of Order of Iron Hall, 161 Mass. 224, 232; Thornley v. J. C. Walsh Co., 207 Mass. 62, 65.)

And we do not think there is any substantial merit in counsels ’ contention that the court erred in approving the master’s report because no objection was filed by any Illinois creditor or policyholder against the claim of the State of Ohio. Considering the manner in which the present issues were raised in the superior court no such objection was necessary. Other similar Ohio claims had been objected to. The question as to what dividends the five Ohio claimants should receive, if any, was referred by the court to the master to ascertain the facts and report his conclusions. This the master did, recommending that all said claimants should not receive dividends until all other allowed claims had received 19% per cent. To this report, of course, the claimants other than those from Ohio had no objection.

Our conclusion is that the order or decree of the superior court, entered May 8, 1928, should be affirmed, and it is so ordered.

Affirmed.

Scahlah and Barnes, JJ., concur.


source: Caselaw Access Project

author: Mr. Justice Barnes

license: Public Domain

text:
    Noah Gross, Plaintiff in Error, v. Cuneo Press, Inc., Defendant in Error.
    Gen. No. 32,971.
    Heard in the second division of this court for the first district" at the October term, 1928.
    Opinion filed February 14, 1929.
    Earl J. Walker, for plaintiff in error.
    Joseph H. Hinshaw, for defendant in error; Oswell G. Treadway, of counsel.
   Mr. Justice Barnes

delivered the opinion of the court.

The action below was to recover for personal injuries. The declaration charged negligence in the operation of defendant’s motor truck whereby plaintiff was struck and injured, and wanton and wilful negligence of defendant’s employee. Defendant filed a plea of general issue, and later, by leave of court, a plea alleging that at the time of the injury plaintiff was in the employ of the Chicago Surface Lines, which employer was working under and bound by the Workmen’s Compensation Act, Cahill’s St. ch. 48, fí 201 et seq.; that defendant and its agents were also working under said statute, and that the accident arose out of and in the course of plaintiff’s said employment. Issue by replication was duly taken. At the close of all the evidence the court gave a peremptory instruction to the jury to find for the defendant, holding that with the most favorable inferences to the plaintiff from the evidence the only conclusion to be drawn therefrom was that the injury arose out of and in the course of plaintiff’s said employment.

It is conceded that if the accident arose “out of and in the course of” the employment of plaintiff as an employee of the Chicago Surface Lines, the plaintiff, his employer and the defendant would all be bound by the terms of the Workmen’s Compensation Act (section 29), Cahill’s St. eh. 48, if 229. The controlling question, therefore, is, Was there any evidence tending to show that the accident did not arise out of of in the course of such employment? If so, authorities need not be cited to the point that it was error to give such instruction.

Plaintiff was a conductor in the employ of the Chicago Surface Lines on a westbound car on Roosevelt Road, Chicago. At a point about 50 feet west of Wells Street, where it crosses Roosevelt Road, the car was stopped on account of an automobile, that had been towing another, being stalled on the car track about in the middle of the crossing. The other automobile did not obstruct the passage of the car. Wells Street is about 47 feet from curb to curb. East of Wells Street, Boosevelt Boad is about 86 feet from curb to curb. West of Wells Street, it is somewhat narrower. The car tracks continue west on Boosevelt Boad over a bridge that crosses the Chicago River, which is 30 to 40 feet west of Wells Street, and about 250 to 300 feet long. East of Wells Street, the distance between the north curb of Roosevelt Road and the westbound car track is about 40 feet.

After the street car stopped the conductor and motorman walked forward and assisted in pushing the stalled automobile from the westbound street-car track to some 5 feet north of it where it did not interfere with the passage of the street car. However, at the request of those in charge of the automobiles, and as the evidence tends to show, solely for their convenience, the conductor and motorman assisted in pushing the automobile, that had been so removed from the track, from that point to a point some 175 to 200 feet farther west on said bridge, where, while they were continuing to push the automobile, defendant’s truck, proceeding westward, struck plaintiff, causing the injury complained of.

There was also evidence tending to show that no vehicles blocked the intersection or were parked along the curbs of the two streets in that vicinity; that there was plenty of room in that vicinity for the disposition of the automobiles where they would not impede progress of the street car on its route or street traffic, without any necessity of pushing either of them on or across said bridge; and that the services plaintiff so rendered were entirely gratuitous and were not necessary to the continued movement of the street car or for the benefit of his employer.

Such evidence, therefore, tended to show that plaintiff when injured was not acting within the scope of any duty he was bound to perforin to protect the interest of his employer, and hence presented as a question of fact for the jury to determine, and not for the trial judge, whether or not the accident in question arose out of and in the course of plaintiff’s employment.

It is an established rule in this State that where an employee incurs a danger by his own choosing, outside of the reasonable requirements of his employment, the risk arising from such act cannot be said to be incident to his employment (St. Louis & O’Fallon Coal Co. v. Industrial Com., 325 Ill. 574); and the cases are numerous, and need not be cited, holding that the industrial commission cannot award compensation under the Workmen’s Compensation Act, Cahill’s St. ch. 48, 1Í 201 et seq., to one injured while acting as a volunteer in performing an act not incidental to his employment nor in pursuance of any interest of his employer.

While no decision in this State has been cited to the point, we think that though an employee would thus be deprived of right to compensation under said act he would not be deprived of his common-law right of action. It was so held in Cox v. United States Coal & Coke Co., 80 W. Va. 295, L. R. A. 1918B 1118.

It appears from the evidence that plaintiff had accepted compensation for his injuries from his employer, and it is urged that this amounted to an admission of his right to recover from his employer under the Workmen’s Compensation Act, Cahill’s St. ch. 48, ft 201 et seq. The real test is whether or not the act being performed at the time of receiving injury was one coming within the scope of his employment. Whether he received such payments from his employer was no concern of defendant (O’Brien v. Chicago City Ry. Co., 305 Ill. 244, 262, 263), nor did the mere acceptance of them, in our opinion, constitute an election of remedies.

In the view we have taken of the case it is unnecessary to pass on other alleged errors relating to rulings upon evidence.

For error in giving such peremptory instruction the judgment will be reversed and the cause remanded.

Reversed and remanded.

Gridlby, P. J., and Scanlan, J., concur.


author: Mr Justice Barnes delivered

text:
    Mrs. J. Wolf, Appellee, v. Vartan V. Pedian, Appellant.
    Gen. No. 32,989.

      Heard in the second division of this court for the first district at the October term, 1928.
    Opinion filed February 14, 1929.
    Townley, Wild, Campbell & Clark, for appellant; Charles V. Clark and Frederick D. Carroll, of counsel.
    Irving Gr. Zazove, for appellee.
   Mr Justice Barnes delivered

the opinion of the court.

This is an appeal from a judgment for $1,200 in a suit in assumpsit begun by attachment. The jury returned a verdict for plaintiff on both the attachment issue and the merits.

The grounds for the attachment as set forth in the affidavit are those designated as fourth, fifth and eighth in section 1 of the Attachment Act, Cahill’s St. ch. 11, ft 1.

The declaration contains three counts. The first is predicated on an agreement to sell a certain rug upon a commission basis and its conversion; the second, on an agreement to insure the rug and failure, neglect and refusal so to do; and the third, on an agreement to sell said rug and insure the plaintiff against any loss that might be sustained to said rug while in defendant’s possession. Direct issue was taken upon the charges in the affidavit of attachment by a plea in abatement and. those in the declaration by a plea of nonassumpsit and a special plea setting up defendant’s version of the agreement and denying plaintiff’s version thereof and facts on which it was based.

It is first urged that there was error in giving instruction No. 3, which reads as follows:

“The Court instructs the jury as a matter of law that the proof of the delivery of the rug to the defendant for the purpose of selling the same, and the failure on the part of the defendant to return said rug on the value thereof, makes out a prima facie case for the plaintiff, and the burden, under such circumstances, shifts to the defendants to prove, by a preponderance of the evidence, that the loss of the rug was not due to the want of the exercise of ordinary care on the part of the defendant.”

It is true that when a bailor has shown a receipt of goods by the bailee and a failure to return the same on demand, he has made out prima facie negligence against the bailee and the bailee must show that the loss or damage was caused without his fault. But the effect of such rule is not to shift the burden of proof from plaintiff to defendant but simply the burden of proceeding. (Miles v. International Hotel Co., 289 Ill. 320, 328.) But where the bailee introduces evidence tending to explain the loss of the property without negligence on his part, as was- done in this case, the law will not presume negligence and the burden of proving the same still rests upon the bailor. In such state of the record no instruction should be given as to what constitutes a prima facie case or as to its effect. (Grosh v. Acorn, 325 Ill. 474, 494; Beard v. Haskell Park Building Corp., 248 Ill. App. 467.) The giving of such instruction constituted reversible error, as has been frequently held. (Beard v. Haskell Park Building Corp., supra; Rhodes v. Warsawsky, 242 Ill. App. 101; Koczora v. Standard Safe Deposit Co., 221 Ill. App. 43, 49.)

The judgment, therefore, must be reversed and the cause remanded regardless of other questions argued for reversal, as the instruction bears upon the consideration of evidence by the jury on both the attachment issue and the merits of the case.

But were a reversal of such instruction not necessary we would be disposed to agree with appellant that both the general verdict and the findings of the jury on the attachment issue are against the weight of the evidence bearing on each. Appellant, however, contends that the weight of evidence as to the attachment issue is not preserved for our consideration. Among the grounds specifically set forth in the motion for a new trial was that there was no evidence to support the verdict on the attachment issue, and that the verdict thereon was contrary to the law and the evidence in the case. These claims of error went directly to the specific adverse findings of the jury on that issue and were raised in a proper way. It was expressly said in Illinois Steel Co. v. Mann, 197 Ill. 186, 189, that “A party is no more bound by special findings of a jury than by a general verdict, and if he believes that the jury have erred he is entitled to his motion for a new trial on that ground, and may take his appeal.” True, as said in Brimie v. Belden Mfg. Co., 287 Ill. 11, 15, a defendant is conclusively bound by a special finding of fact unless error has been assigned thereon and the question has also been raised on a motion for a new trial, citing several cases. But because the court proceeded to say, “No motion was made by plaintiff in error to set aside this special finding of fact in the trial court nor was any error assigned thereon,” appellee argues in effect that a motion, to set aside the special finding is indispensable to an assignment of error thereon. We do not so interpret the court’s expression. It would be in direct conflict with what was said in the Maim case, supra, above referred to, and the other cases cited in the opinion. On the other hand, it is clearly implied, if not expressly held, in said cases that the sufficiency of evidence to support a special finding may be raised, as specifically done here, on a motion for a new trial. (Avery v. Moore, 133 Ill. 74, 77; Pennsylvania Coal Co. v. Kelly, 156 Ill. 9,15; Empire Laundry Machinery Co. v. Brady, 164 Ill. 58, 61; Voigt v. Anglo-American Provision Co., 202 Ill. 462, 466.) In the last cited case it was because the special findings were not mentioned as ground for a new trial that the court said they could not be assigned as error. True, as held in some of the cited cases, an objection that the verdict is against the weight of the evidence applies only to the general verdict and not to the special findings. But here the objections on the ground recited in the motion for a new trial were made not only to the general verdict but to the special findings; and we entertain no doubt that they are sufficient upon which to predicate the assignment of error that the special findings were against the weight of the evidence on the attachment issue.

While the latitude given to the cross-examination by plaintiff’s counsel was calculated to inject prejudicial matters into the case not substantiated by any direct proof, we need discuss no other errors than those already considered, which require a new trial.

Reversed and remanded.

Gtridley, P, J., and Soanlan, J., concur.


text:
    In re Petition of E. P. Floren, Insolvent Debtor. E. P. Floren, Appellant, v. Olga Schaad, Appellee.
    Gen. No. 33,011.
    Heard in the second division of this court for the first district at the October term, 1928.
    Opinion filed February 14, 1929.
    Adams & Adams, for appellant.

      Smietanka, Rickard & Poulton, for appellee; John J. Poulton, of counsel.
   Mr. Justice Barnes

delivered the opinion of the court.

This is an appeal from a judgment of the county court remanding an insolvent debtor, E. P. Floren, to the custody of the sheriff. He was arrested on a capias ad satisfaciendum issued against his body on a judgment entered against him by default in an action of tort brought by appellee in the municipal court, and seeks his discharge claiming that malice was not the gist of the action.

The statement of claim on which the judgment in tort was rendered was quite lengthy but we need set forth only its substance to determine whether malice was the gist of the action.

The action is one of case for fraud and deceit and the statement of claim sets forth the essential elements thereof, namely, the false representations, the knowledge of the defendant that they were false, their falsity in fact, their materiality, plaintiff’s reliance upon them and belief that they were true, and the consequent damage. (Brown v. Lobdell, Farwell & Co., 50 Ill. App. 559.) The sufficiency of the statement of claim to sustain a judgment in such a cause of action is not questioned. The contention is that malice is not the gist of the action.

It is hardly necessary in view of the numerous decisions in our own State on this subject to discuss the various distinctions made in the use of the term “malice,” or .to state when it becomes the gist of the action. In the various cases in this State where the question raised was whether the tort originated in mal: ice, or malice was the gist of the action, all of them since that of Harpham v. Whitney, 77 Ill. 32, — adopting the definition of malice given in Mitchell v. Jenkins, 5 B. & A. 594 — have construed the term in such forms of action as meaning not in the sense of spite or hatred against the individual “but of malus animus and as denoting that the party is actuated by improper and indirect motives.” Elaborating somewhat upon this definition in First Nat. Bank of Flora v. Burkett, 101 Ill. 391, the court said the term required the intentional perpetration of an injury or a wrong on another, and held that in that case there was an intentional wrong, little, if anything, short of a criminal act, and it was malicious in the statutory sense. The fraud there averred as the ground of action consisted of defendant’s withdrawing money in the hands of a drawee after he had given a draft for the same upon which another had advanced him money. The court said that fraud was of the essence or foundation of said action, and in a statutory sense it was both wicked and malicious, and that the defendant was not entitled to discharge from arrest and imprisonment under section 2, chapter 72 in relation to insolvent debtors, Cahill’s St. ch. 72, If 5.

We need go no further for authority on this subject. Here as there the very essence and foundation of the action was fraud and deceit. It was through them appellant obtained money from appellee. The very nature and character of the action are such as to imply that the guilty party was actuated by improper and dishonest motives and intended perpetration of an injury or wrong. (Jernberg v. Mix, 199 Ill. 254.) It is difficult to perceive how the pleaded acts which gave rise to the cause of action would constitute a tort without such motives.

Upon the hearing the court had before it the record of the action in the municipal court showing the statement of claim, the default taken and the court’s finding and judgment. The finding therein was that defendant was guilty in manner and form as charged in the statement of claim. While the court also heard oral testimony of petitioner it concluded no evidence was admissible dehors the record. In that conclusion we com cur. While the statement of claim is practically in the form of two counts they are both of the same nature, and if each implies malice as the gist of the action, evidence extrinsic to the record was not admissible on that question, it being determinable from the nature of the pleadings and the judgment thereon. In this respect the pleadings are easily distinguishable from those cases — mostly in trover — where because some of the counts on which the verdict rested did not necessarily imply malice, evidence extrinsic to the record was held admissible. The record of the municipal court, therefore, is res adjudicata of that question (Jernberg v. Mix, supra).

And it was not necessary to the determination of that question that either the statement of claim should expressly charge that the false representations were maliciously made or that there should have been an express finding of malice by the court. Malice was determinable from the very nature of the charge of which the defendant was found guilty.

The judgment order will be affirmed.

Affirmed.

G-ridley, P. J., and Scanlan, J., concur.


author: Mr. Justice Scanlan

text:
    Louis D. Glanz, Trustee, et al., Appellants, v. Adolph L. Halperin and Max Korach, Appellees.
    Gen. No. 32,976.

      Heard in the second division of this court for the first district at the October term, 1928.
    Opinion filed February 14, 1929.
    Jacob Levy, for appellants; J. M. Gwin, of counsel.
    Adler, Lederer & Kahh, for appellees.
   Mr. Justice Scanlan

delivered the opinion of the court.

Louis D. Glanz, trustee, Fannie Levy and Flora Goldberger, plaintiffs, sued Adolph L. Halperin and Max Korach, defendants, in the municipal court of Chicago in an action in forcible entry and detainer. The case was tried before the court with a jury and there was a verdict returned in favor of the defendants. Judgment was entered on the verdict and this appeal followed.

The plaintiffs leased the store known as 1231 North Ashland Avenue, Chicago, to Adolph L. Halperin for a term commencing May 1, 1921, and ending April 30, 1931, at a rental of $300 per month. The lease contained, inter alia, the following provision: “It is further agreed that said second party may assign and sublet the said premises; it is further agreed that any sublessee shall have no right to sublet without the written consent of the parties of the first part, unless reassigned to party of the second part.” The lease also contained the ordinary provisions in reference to forfeiture. < On August 30, 1922, Halperin executed a sublease of 'the premises to Max Shure, Abe Shure and Sam Shure for a period commencing September 1, 1922, and ending April 30, 1931. The said Shures entered into possession of the premises and conducted a restaurant therein until August, 1925. On April 1, 1924, the said Shures executed a chattel mortgage to Hyman Shure, their father, conveying to him the fixtures in the restaurant and also all their right, title and interest in and to the lease. Hyman Shure sold the mortgage to George Goldman and Nicholas Goldman. In August, 1925, Max Shure, Abe Shure and Sam Shure defaulted in the payment of the mortgage and abandoned the premises, leaving the fixtures in it. The mortgage was foreclosed and the Goldmans went into possession of the premises and the fixtures in August, 1925. Then (to quote from the statement of the counsel for the defendants to the jury) “the Goldmans took possession of these fixtures under that mortgage sale. . . . They then owned the fixtures in that store, but they had no lease on the store although they had their fixtures in that store' without a lease for it. . . . Whereupon the .Goldmans then went to Halperin who had the original lease with the plaintiffs and by an agreement with Halperin they were permitted to leave their fixtures in the store, and they paid Halperin each month, — commencing in August 1925 . . . something like $350 per month, being fifty dollars a month more than Halperin paid the plaintiffs, until December, 1927.” For a time, at least, the Goldmans conducted, through managers, a restaurant in the premises. The plaintiffs introduced proof to the effect that in July, 1927, a man named Frieberg was in possession of the premises and conducting a restaurant therein. The defendants contend this proof is insufficient to establish the alleged occupancy of the place by Frieberg. The plaintiffs also introduced evidence to the effect that from November 5, 1927, until the time of the trial the defendant Max Korach was in possession of the premises as a tenant of the Goldmans and that he conducted a restaurant therein under the name of the Korach Sandwich Shop. The defendants insist that Korach was merely managing the restaurant for the Goldmans during said period. After a very careful examination of the evidence bearing upon this question, we are satisfied that the overwhelming weight of the evidence sustains the contention of the plaintiffs that Korach occupied the premises as a subtenant of the Goldmans and conducted his own business therein. Korach testified for the defendants respecting the nature of his occupancy. His testimony, standing alone, is of such a nature that it is entitled to but little, if any, probative force, and he was thoroughly impeached by other witnesses and by facts and circumstances in evidence. Prior to December, 1927, Halperin paid to the plaintiffs, monthly, the rent due under the lease. The Shures never reassigned the lease to Halperin. On December 3, 1927, the plaintiffs served a written notice on Halperin terminating the lease “because there has been a sublease of the premises in violation of the terms thereof,” and demanding immediate possession of the premises. “Anywheres between the-first and the tenth” of December, the Goldmans obtained from Halperin what purports to be a written assignment of the lease, and paid the latter $2,000 for the same.

The question before us is, Were the plaintiffs, under the facts and the law, justified in declaring a forfeiture of the lease?

The defendants contend that Max Shure, Abe Shure and Sam Shure were Halperin’s assignees, not his lessees, for the reason that the sublease from Halperin to the Shures demised to the latter, without any reservations, the entire term of the lease. This contention may be conceded. (See Sexton v. Chicago Storage Co., 129 Ill. 318; Lyon v. Moore, 259 Ill. 23.) As the Shures never reassigned the lease to Halperin, the latter, after he assigned to them, no longer had the right or power, under the lease, to assign or sublet the premises.

The defendants argue that the Goldmans were in lawful possession of the premises under the terms of the lease, and in support of their argument they contend: First, “Halperin assigned to the Shures, as he had the right to do under the lease”; second, the Shures had the right under the lease to assign it and the Goldmans “as purchasers of the Shure leasehold under the chattel mortgage foreclosure became the Shures’ assignees by operation of law”; third, the Goldmans never sublet or assigned the premises to anyone.

The first contention may be conceded. We have already disposed of the third contention, and adversely to the defendants,, and our ruling in this regard alone would require a reversal and remandment. of the cause, but because the case must be tried again, we deem it necessary to pass on other questions involved in the appeal.

The defendants contend that there is no restriction in the provision against assigning “by any of Halperin’s assignees.” There is nothing stated in the lease concerning assigning or subletting save what is contained in the provision in question. “In the absence of an express restriction, either by contract or by statute, the right of the tenant to assign his leasehold estate is incident to every tenancy either for life, for years, or from year to year, and it is not necessary that the lease run to the lessee and assigns.” (Am. & Eng. Encyc. of L. (2d Ed.), vol. 18, p. 659; Howland v. White, 48 Ill. App. 236, 243; Barnes v. Northern Trust Co., 169 Ill. 112, 116.) This rule is followed under our statute. (Gillespie v. Fulton Oil & Gas Co., 236 Ill. 188, 206.) If the lessor intended that there should be no restriction as to assignment of the lease, it would have been entirely unnecessary to incorporate in the provision in question the words that “it is further agreed that said second party may assign. ’ ’ The provision was not drafted without consideration, as it is partly in typewriting and partly in handwriting. As we interpret it, the lessors inserted it in order to prevent an undesirable tenant from being forced upon them. Apparently, they had confidence in Halperin and were willing to have him, under certain conditions, name a tenant, but they were not willing to have a sub-lessee or assignee of Halperin name one. The lease provided that the premises were to be occupied as a restaurant, and there is much force in the argument of the plaintiffs that at the present time such a business is subject to surveillance under the Volstead Act and that a landlord is obliged to be careful to whom he rents his premises when they are to be used in a business of that kind. To fairly interpret the meaning of that part of the provision in respect to assignment the entire provision should be considered. We are of the opinion that the Shares, under the terms of the lease, did not have the right to assign the same to the Gold-mans, and it is therefore unnecessary for us to decide the disputed question as to whether or not, if the Stores had the right to assign the lease, the Goldmans, as purchasers of the Store leasehold under the chattel mortgage foreclosure, became the Stores’ assignees, under the lease, by operation of law. The defendants concede, as they must, that if the Stores had not the right and power to assign the lease to the Goldmans the latter could not claim a right of possession of the premises under the lease unless the alleged assignment from Halperin to the Stores, executed in December, 1927, gave them that right. That assignment conveyed nothing under the lease to the Goldmans, for two reasons, first, because it was executed after the plaintiffs’ right of forfeiture had accrued, and, second, because the Stores never reassigned the lease to Halperin and the latter, at the dime he executed the so-called assignment, had no interest in the lease and therefore had no right or power to assign the same to the Goldmans. It is significant that the Stores, after the plaintiffs had declared a forfeiture, were so doubtful as to their right of possession under the lease that they paid Halperin $2,000 for this worthless assignment.

The judgment of the municipal court of Chicago is reversed and the cause is remanded. It is remanded solely for the following reason: There is some evi-

dence- in the record tending to show that the plaintiffs, by reason of their conduct, have waived the right to declare a forfeiture of the lease. While it is perfectly clear from the instructions given to the jury by the court that this issue could have played no part in the determination of the case by the jury, nevertheless, the defendants, in another trial, would have the right to maintain this defense.

Reversed and remanded.

Gridley, P. J., and Barnes, J., concur.


text:
    National Oxygen Company, Appellant, v. James R. Roach, Appellee.
    Gen. No, 32,995.
    Heard in the second division of this court for the first district at the October term, 1928.
    Opinion filed February 14, 1929.
    Maurice A. Barancik, for appellant; Lyle L. Richmond, of counsel.
    Edward M. Keating, for appellee.
   Mr. Justice Scanlan

delivered the opinion of the court.

In the circuit court of Cook county, in an action of assumpsit, the National Oxygen Company, a corporation, plaintiff, sued James R. Roach, defendant, to recover $825, alleged to be due the plaintiff from the defendant for rent. The defendant filed his plea of nonassumpsit and also a plea in bar, alleging that the plaintiff corporation was organized under the laws of Delaware and was a corporation for profit, and that the contract upon which plaintiff brought its suit was executed within this State; that plaintiff, although maintaining its principal office in Chicago, Cook county, Illinois, had failed to file with the recorder of deeds of said county its certificate of authority to do business within the State; that there was issued to plaintiff such certificate on April 28, 1916, but that under the statute of Illinois then and there in force, it was a condition precedent for all corporations, and particularly foreign corporations, that said certificate be filed with the recorder of deeds of the county where such corporation had its principal place of business, and that by reason of the failure of plaintiff to so record its said certificate plaintiff had never acquired a right to transact business, make valid contracts or sue within the State of Illinois. A demurrer filed by the plaintiff to the plea in bar was overruled, whereupon the plaintiff filed a replication to the said plea alleging precludi non, by reason of the fact that plaintiff, being duly organized under the laws of the State of Delaware, and having had, on April 28, 1916, duly issued to it by the secretary of state a certificate of authority to do business within this State, was entitled under the laws of this State then in force to do business, to sue and be sued within this State without the filing of its said certificate of authority with the recorder of the county wherein it maintained its principal place of business. A demurrer filed by the defendant to the replication was sustained, and plaintiff electing to stand by its replication, the suit was dismissed at plaintiff’s costs. This appeal followed.

The principal question presented is: Does the Corporation Act of 1905 require a foreign corporation to file with the recorder of deeds of the county within which it has its principal office its certificate of authority to do business, issued to it by the secretary of state, before it can maintain its suit in the courts of this state? Neither counsel has cited any case that passes upon this question, nor have we found any.

The defendant concedes that plaintiff was not required to requalify under the Act of 1919. Therefore section 131, chapter 32, of the Corporation Act (Cahill’s St. ch. 32, fí 131; Callaghan’s Ill. St. Ann., vol. 2, p. 1974) need not be considered. The defendant’s sole contention is that the plaintiff “did not qualify under the Act of 1905, which was in force at the time the certificate of authority to do business in this state was issued to the appellant,” because it “was bound to record its certificate of authority to do business in this state with the Recorder of Deeds of Cook County, before it could become authorized to do business in this state,” and that it failed in this regard and therefore cannot “maintain an action upon any claim, legal or equitable, . . . in any court of this state.”

In support of his argument, counsel for the defendant cites section 4, chapter 32, of the Corporation Act (Hurd’s Rev. St. 1915-1916, p. 638, in force July 1, 1905), requiring a domestic corporation to record in the office of the recorder of deeds of the county where the principal office of such company is located, the certificate of the organization of the corporation issued to it by the secretary of state; paragraph 67b of the same act (ib. p. 655), prescribing that before any foreign corporation for profit is allowed to transact any business in the State of Illinois “they shall be required to comply with the provisions of this act and shall be subject to all of the regulations prescribed herein, as well as all other regulations, limitations and restrictions applying to corporations of like character organized under the laws of this State”; paragraph 67g (ib. p. 657), providing that “if after this act shall take effect, any foreign corporation shall fail to comply herewith, no suit may be maintained either at law or in equity upon any claim, legal or equitable, whether arising out of contract or tort in any court in this State”; and paragraph 26 (ib. p. 641), declaring that “Foreign corporations, and the officers and agents thereof, doing business in this state, shall be subjected to all the liabilities, restrictions and duties that are or may be imposed upon corporations of like character organized under the general laws of this state, and shall have no other or greater powers. ”

It is conceded, as it must be, that the Act of 1905 contains no express provision for the recording of the certificate of a foreign corporation. That portion of the act that relates to qualifications, rights and duties of foreign corporations sets forth at some length the acts that must be performed by a foreign corporation that desires admission into the State for the purpose of transacting business. Nowhere within the provisions relating to foreign corporations can there be found any reference as to what shall be done with the certificate of authority to do business after the same is issued by the secretary of state. Paragraph 67c (ib. p. 656) provides that “The Secretary of State, upon the admission of such foreign corporation to do business in the State of Illinois, shall issue a certified copy of all papers, including certified copy of the charter of said corporation, and shall state, in a certificate of authority to do business issued by him, the powers and object of said corporation which may be exercised in this State, not in conflict with the law or public policy of this State, and nq corporation shall, by the certificate of the Secretary of State, be authorized to transact any business in this State for the transaction of which a corporation cannot be organized under the laws of this State, and no foreign corporation shall exercise any powers in this State not authorized by the provisions of its charter.” Paragraph 4, upon which the defendant must rely, pertains exclusively to the organization of domestic corporations. It prescribes certain steps that must be taken in the matter of organization. It declares (inter alia) that “the Secretary of State shall thereupon issue a certificate of the complete organization of the corporation, . and the same shall be recorded in a book for that purpose, in the office of the recorder of deeds of the county where the principal office of such company is located. Upon the recording of the said copy, the corporation shall he deemed fully organised and may proceed to business.” The recording is the final act in the organization of the domestic corporation. The domestic corporation must be fully organized, under the act, before it can proceed to business. The foreign corporation is organized under the laws of some sister State and it comes to this State requesting permission to transact business here. To sustain the contention of the defendant would amount to holding that foreign corporations are required to perform the acts required of domestic corporations in and about the organization of the latter. If the legislature, under the Act .of 1905, intended that foreign corporations should not be entitled to sue in the courts of this State unless they recorded their certificate of authority it could have so provided. In the Act of 1919 (see Cahill’s St. ch. 32, IF 131; Callaghan’s Ill. St. Ann., vol. 2, p. 1974, chapter 32, paragraph 131) it specifically requires a foreign corporation to file for record in the office of the recorder of deeds of the county where its principal office is located a “certificate of authority to transact business in this State.” Paragraph 67g, depriving a foreign corporation of the right to maintain suit upon failure to comply with the provisions of the Act of 1905, is penal in its nature, and such statutes are to be strictly construed, and matters which are not clearly included cannot be brought within the operation of- such statutes by mere construction. It has been further held in several cases that unless foreign corporations come within the plain provisions of the Corporation Act, Cahill’s St. ch. 32, file# seq., it should not be so construed as to nullify their contracts and deprive them of their legal remedies. The defendant cites, in support of his contention, Vestal Co. v. Robertson, 277 Ill. 425. In that case the Chicago Eeal Estate Show Company was a pretended domestic corporation that had not complied with all the provisions for incorporation, and it was held that the president of the corporation, who bought materials on an open account in the name of the corporation before the certificate of complete organization of the corporation had been filed in the recorder’s office, was personally liable for the account under section 18 of the General Incorporation Act. That case does not apply to the instant question. We hold that the plaintiff corporation, under the Act of 1905, was not required to file its certificate of authority to do business in the recorder’s office of Cook county.

Marshall v. Keach, 227 Ill. 35, holds that a corporation de facto exists where the law authorizes such corporation and where the company has made an honest attempt to organize under such law and has proceeded to transact business as a corporation, even though it has not filed for record its final certificate of incorporation, and the plaintiff contends that this principle of law should be applied to a foreign corporation and that in the present case the plaintiff should not be deprived of its right of action- even though the Act of 1905 required it to file with the recorder its certificate. There is much force in this contention. In fact, the defendant makes no answer to the same. But in the view that we have taken of the case it is not necessary for us to pass upon this point.

The judgment of the circuit court of Cook county is reversed and the cause is remanded with directions to the trial court to overrule the defendant’s demurrer to plaintiff’s replication and to allow the plaintiff a trial upon the merits.

Reversed and remanded with directions.

Gridlet, P. J., and Barnes, J., concur.


author: Mr. Justice Boggs

text:
    Frank Worthey, Appellee, v. Cleveland, Cincinnati, Chicago & St. Louis Railway Company, Appellant.
    Gen. No. 7,921.

      Heard in this court at the May term, 1928.
    Opinion filed February 15, 1929.
    Geo. B. Gillespie, for appellant; Miller, Elliott & Westervelt and Gillespie, Burke & Gillespie, of counsel.
    John E. Cassidy, for appellee.
   Mr. Justice Boggs

delivered the opinion of the court. The Peoria & Eastern Railway Company was the owner of a certain railroad, extending from Peoria, Illinois, to Indianapolis, Indiana, which road was in the possession, operation and control of appellant.

At Urbana, Illinois, the main line of said road is connected with a roundhouse and turntable by means of two switch tracks, laid upon an embankment which was supported by a concrete retaining wall. At the point where the hereinafter-mentioned accident occurred, the top of the wall was about 18 inches from the end of the ties supporting the outer of said switch tracks. It was the custom to detach engines from both passenger and freight trains on the main line and run them over said switch track to said roundhouse for the purpose of coaling, sanding, quick repairs, etc.

On May 12, 1926, and for a few days prior thereto, appellee, a bridge carpenter, and the gang with which he was working were engaged in removing said concrete wall. On said date, most of the concrete had been removed, leaving a perpendicular wall of dirt, unsupported. About three o’clock in the afternoon, appellee was ordered into the ditch at the bottom of said embankment to assist in removing said concrete. While so engaged, the embankment caved in on appellee, bruising him and rendering him unconscious. He was first removed to a hospital in Urbana, later to a hospital in Indianapolis, and was placed under the care of doctors selected by appellant. He remained in the hospital at Indianapolis for some four months, and was then taken to his home in LeRoy. It was practically conceded that appellee has been seriously and permanently injured.

Negotiations for a settlement were had between appellee and the claim agent of the Peoria & Eastern. No settlement having been reached, appellee’s attorneys filed a claim under the Workmen’s Compensation Act, Cahill’s St. ch. 48, if 201 et seq., after which negotiations for settlement were had between said attorneys and said claim agent. On December 30,1926, L. Earl Bach, one of appellee’s attorneys, with said claim agent, called on appellee at his home, at which time the following instrument was signed by appellee:

“For the sole consideration of Two Thousand Five Hundred and No/100 Dollars, received to my full satisfaction from The Peoria and Eastern Railway Company I hereby release and discharge the said The Peoria and Eastern Railway Company and all other parties in interest F W from all claims, demands, causes of action, and from all liability for damages of whatsoever kind, nature or description now existing or which may hereafter arise from or out of injuries received by me at or near Urbana State of Illinois on or about the 12th day of May, 1926. I have Read and Understand this Release.
Received $2,500.00 in full settlement Dec. 30th 1926.
Release Frank Worthey (Seal)”

Thereafter, appellee employed the attorneys who now represent him, and instituted suit against appellant in the circuit court of Peoria county to recover for said injuries.

The declaration, as finally amended, avers that on May 12, 1926, appellee was engaged in repairing said retaining wall; that, by reason of the negligence of appellant, said embankment became defective; that appellee did not know of said defective condition, but that appellant did know thereof, and of the hazard to which its workmen were subjected; that it was the duty of appellant to remedy said defect, but that it negligently failed to do so, or to notify appellee of said danger, etc., by reason whereof, while appellee was in the exercise of due care, the embankment and retaining wall caved in, injuring appellee, etc.

To said declaration, appellant filed a plea of the general issue, a plea that appellee assumed the risk of said employment, etc., and a plea of release.

Appellee traversed the plea of assumed risk, and, by leave of court, replied double to the plea of release. The first replication denied the execution, etc., of said release; the second replication averred that, on the date of said release, appellee was suffering great pain and was under the influence of drugs; that on account thereof he was not in possession of his mental faculties, and did not sign said release “with knowledge of the meaning of said release, or any knowledge of what he was signing, or that he was signing at all,” and that the execution of said release was obtained’ by fraud and circumvention.

Appellant rejoined, traversing the second replication to the plea of release. A trial was had, resulting in a verdict and judgment in favor of appellee for $5,000. To reverse said judgment, this appeal is prosecuted.

It is first contended by appellant that the court erred in refusing to exclude the evidence and direct a verdict for appellant, upon motions and instructions tendered by it at the close of appellee’s evidence. In this connection appellant first insists that there is no evidence in the record to support the charge of negligence. In other words, appellant insists that appellee was engaged in rendering a dangerous place safe, and that therefore the rule requiring an employer to furnish its employees a safe place to work does not apply.

There is nothing in the record to the effect that, prior to the removal of said concrete wall, there was anything unsafe or dangerous at the place in question. The danger arose while said work was being done, under the direct management and control of appellant’s foreman, and the danger increased as the work progressed.

It is next insisted that the surrounding conditions at the place where appellee was injured were as open and obvious to appellee as to appellant and its foreman, and were incident to appellee’s employment; that appellee therefore assumed the risk thereof.

An employee assumes the risk of dangers normally incident to the occupation in which he voluntarily engages, so far as these are not attributable to the employer’s negligence. Gila Valley, G. & N. R. Co. v. Hall, 232 U. S. 94, 101; Chesapeake & O. R. Co. v. Proffitt, 241 U. S. 462, 468; Beck v. Baltimore & O. R. Co., 244 Ill. App. 441-447. However, the risks assumed by a servant do not include such as arise from the negligence of the master, nor such as are unreasonable or extraordinary (City of La Salle v. Kostka, 190 Ill. 130), or from those which constitute a temporary peril created by the negligent, positive act of the master. Sinclair Co. v. Waddill, 200 Ill. 17-20; Fairbanks v. Haentzsche, 73 Ill. 236.

While, under the Federal Liability Act, Cahill’s St. ch. 114, if 321 et seq., assumed risk is a complete defense, yet the burden of proof on such issue is on the employer. Fisher v. Chicago, R. I. & P. R. Co., 290 Ill. 49-56; Brant v. Chicago & A. R. Co., 294 Ill. 606-616; Kanawha & M. R. Co. v. Kerse, 239 U. S. 576-581, 60 L. Ed. 448-451; Central Vermont R. Co. v. White, 238 U. S. 507-512, 59 L. Ed. 1433-1437; Beck v. Baltimore & O. R. Co., supra, 446.

The law further is that the question of assumed risk is ordinarily one for the jury, under the instructions of the court. City of La Salle v. Kostka, supra, 136; Brant v. Chicago & A. R. Co., supra; Sinclair Co. v. Waddill, supra, 20.

“Where a master confers authority upon one of his employees to take charge and control of a certain class of workmen in carrying on some particular branch of his business, such employee, in governing and directing the movements of the men under his charge with respect to that branch of the business, is the direct representative of the master, and not a mere fellow-servant; and all commands given by him within the scope of his authority are in law the commands of the master. ’ ’ City of La Salle v. Kostka, supra, citing: Chicago & A. R. Co. v. May, 108 Ill. 288; Wenona Coal Co. v. Holmquist, 152 Ill. 581; Mobile & O. R. Co. v. Godfrey, 155 Ill. 78; Fraser & Chalmers v. Schroeder, 163 Ill. 459.

It is also the law that the duty of the master to use reasonable diligence in seeing that the place where the work of his servant is to be performed is safe for that service, extends not only to such risks as are known to him, but to such as he ought to know in the exercise of due diligence. Consolidated Coal Co. of St. Louis v. Haenni, 146 Ill. 614; Illinois Steel Co. v. Schymanowshi, 162 Ill. 447-456; Chicago Edison Co. v. Moren, 185 Ill. 571. In the latter case the court at page 575 says: “In Illinois Steel Co. v. Schymanowshi, 162 Ill. 447, it was held that a servant ordered by the master to perform a particular work has the right to assume that he will not be exposed to unnecessary perils and to rest upon the implied assurance that there is no danger. In Chicago Anderson Pressed Brick Co. v. Sobkowiak, 148 Ill. 573, it was held that where an act was performed by a servant in obedience to a command from one having authority, and the performance of the act is attended with a degree of danger, it is not required that such servant shall balance the degree of danger and decide with absolute certainty whether he mlist do the act or refrain from it; and his knowledge of the attendant danger will not defeat this right of recovery, if, in obeying the command of the master, he acted with that degree of prudence that an ordinarily prudent man would have used under the circumstances.”

The removal of said concrete was not in charge of appellee, to be handled as he deemed best. He was working under the direct order and control of said foreman, who, under the authorities above cited, was a direct representative of appellant. In this connection, appellee testified:

“About 3 o’clock in the afternoon of that day I came back with the push car where I had been to the end of the switch to dump a load which was about a quarter of a mile. The hole I got smashed in was at the east end of the retaining wall. The foreman, Homfeld, told Martin to get out of the hole and let me get in. I said, ‘John, is it safe to go in there?’ John said, ‘Hell, yes, it’s safe to go in there, Whittaker (superintendent) said so.’ I went down. . . . The foreman was around there close. . . . There was dirt along there and the dirt wall was perpendicular. At that particular place the concrete had been taken out that day. I don’t know of anything that was done with reference to bracing or holding up the roadbed and I was there all the time. I was in the hole probably ten minutes. I dug a hole under the end of this rock and the embankment rolled in on me and I was buried under it.”

Appellee was corroborated by Grus Kinsey with reference to the condition of said excavation just prior to the injury. The record further shows that engines were going in and out over said switch tracks while said work was being carried on, one engine having passed over said tracks a few minutes before the injury in question. Appellee testified that he did not know of the engines having passed over the tracks on that day, as he had been away at different times, hauling rock, etc.

Under the above authorities, it was a question of fact for the jury as to whether appellant was guilty of negligence, in failing to protect its employees from the danger of a cave-in of said embankment, in running engines over said embankment in its then condition, and in ordering appellee into said trench at the time in question. See City of LaSalle v. Kostka, supra. In Sinclair Co. v. Waddill, supra, the court at page 20, in discussing a question of this character, says:

“It was a question of fact for the jury to determine whether, under all of the evidence, the structure gave way because it had been imprudently located, negligently planned, constructed of insufficient material, or hurriedly and recklessly overloaded, or whether the defects therein were occasioned by or through the negligence or lack of proper workmanship on the part of the appellee. The appellee had neither experience in such work nor knowledge of what would be required of the structure, and his actions were those of a servant in obedience to the commands of the master. The testimony so far tended to show the injury arose from the negligence of the foreman of the appellant company as to make that a question of fact for the jury, — not of law for the court.”

The court did not err in denying said motion.

It is next insisted that the court should have directed a verdict for appellant at the close of all the evidence, based on said release. The execution of the release was put in issue by the replication of appellee. Its execution was therefore a question of fact for the jury. The court did not err in refusing to direct a verdict.

It is next insisted that the court erred in giving appellee’s first, second and fourth instructions.

Appellee’s first instruction is abstract in form, but it states a correct principle of law, applicable to the facts in the case. While it would not have been error to have refused it, there was no serious error in the giving of said instruction.

Appellee’s second instruction is as follows:

“The Court instructs the jury that if you believe from the preponderance of the evidence that at the time the instrument of release introduced in evidence by the defendant was obtained from the plaintiff that the plaintiff was not in possession of his mental faculties to such an extent that he did not know what he was doing, and that he did not know that he was executing and signing a release to the defendant railway company ; and if you believe from the preponderance of the evidence that such mental condition of the plaintiff was apparent at the time, and if you further believe from the preponderance of the evidence that on account of such facts and circumstances the execution of the release was obtained by fraud and circumvention, the Court instructs that in such state of the proof you should find that the instrument of release is void, and that it was or is not necessary for the plaintiff to return the consideration.”

It is a well-settled principle of law that a party to a contract, who seeks to rescind it on account of fraud practiced on him, must tender back what he has received under the contract, so that the other party may be placed in the same position in which he was before the contract was entered into. Huiller v. Ryan, 306 Ill. 88, citing Brady v. Cole, 164 Ill. 116; Hansen v. Gavin, 280 Ill. 354; Wenegar v. Bollenbach, 180 Ill. 222.

Counsel for appellee, while admitting the correctness of the above proposition, insist that, on the facts disclosed by the record, that rule would not apply, and that he would not be barred from maintaining his suit, notwithstanding his failure to return the consideration received at the time said release was executed.

The fraud which will obviate the necessity of the return of money paid in settlement for a release is the fraud of the party procuring the release, and must be an actual, intentional fraud. Bowen v. Schuler, 41 Ill. 192-195; Wheeler v. Mather, 56 Ill. 241; Wolf v. Dietzsch, 75 Ill. 205-210; Pawnee Coal Co. v. Royce, 184 Ill. 402-411; Litchfield & M. R. Co. v. Shuler, 134. Ill. App. 615.

In Pawnee Coal Co. v. Royce, supra, the court at page 412 says:

“Where there is a disaffirmance of the contract because of fraud, the injured party may, in some cases, bring his action without repaying or offering to repay the money received on the fraudulent contract. In such case the money is retained, not as a part of the consideration of a contract he denies, but as a part indemnity for the fraud perpetrated upon him. . . . But the case is wholly different where he seeks to avoid a contract solely because of a temporary incapacity when he made it, — an incapacity of which he gave no sign and which was unknown to the other party to the contract. His conduct in keeping the money, . . . with knowledge as to where it came from, ... is only consistent with an intention to affirm the contract. It is conclusive evidence of affirmance.”

It is also necessary that a party to a contract, desiring to rescind it for fraud, must make his election to do so promptly after learning of the fraud. Greenwood v. Fenn, 136 Ill. 146; Hansen v. Gavin, supra; Huiller v. Ryan, supra, 94.

A party “should not be permitted to speculate with reference to the possible outcome of his suit for damages.” Paulen v. Springfield Consolidated Ry. Co., 166 Ill. App. 382-384.

While appellee’s second replication, after reciting his mental condition, charges “that on account thereof, such alleged release, as referred to in the plea of the defendant, in the execution thereof, was obtained by fraud and circumvention,” this does not charge actual, intentional fraud on the part of appellant in the procuring of said release.

In Litchfield & M. R. Co. v. Shuler, supra, the court, in discussing a question of this character, at page 617 says:

“The third instruction given for appellee, which was in the following words: ‘The court instructs the jury that if you further believe from the evidence that the release in question was obtained by fraud and circumvention, then and in that case the plaintiff would not have to offer or pay back to defendant the $1,000 paid the deceased before bringing her suit, and you will so regard the law in making up your verdict,’ was misleading as there was no evidence in the case tending to show fraud of the character contemplated by the instruction. The fraud contemplated by the instruction is that which relates to obtaining the release, which means that there was a release and that Shuler executed it, but that his signature thereto was obtained by unfair or fraudulent means. ’ ’

On page 619, the court further says: “Mere incapacity of itself would not render the contract void, but merely voidable, in which event an offer to return the money paid would be essential to a recovery.”

Both at law and in equity, it is essential that the facts and circumstances which constitute fraud should be set out clearly and concisely and with sufficient particularity to apprise the opposite party of what he is called upon to answer. Smith v. Brittenham, 98 Ill. 188-199; Murphy v. Murphy, 189 Ill. 360-365; Bouxsein v. First Nat. Bank of Granville, 292 Ill. 500-503.

The facts on which a charge of fraud is based must be alleged in the pleadings, and must be supported by the evidence. Allegations without proof, or proof without allegations, are not sufficient. Leahy v. Nolan, 261 Ill. 219-221; Houlihan v. Morrissey, 270 Ill. 66-70; Fisher v. Burks, 274 Ill. 363-367.

On the question as to whether appellee’s condition was such that it was apparent to all reasonable persons that he was temporarily incapacitated and mentally not in a condition to understand the business in which he was engaged, it is pertinent to consider the letter written to Mr; Gillespie, appellee’s then attorney, by his wife, son and daughter, prior to the execution of said release, which states:

“Dear Sir:
“In Re: Frank Worthey vs The Peoria & Eastern Railway Company, for injuries received Urbana, Illinois, on the 12th day of May, 1926.
“The undersigned, the wife and daughter and son of the above claimant, Frank Worthey, instructs you to settle- the above claim for cash and as per contract with said Company for the sum of $2500.00 and $100.00 to be paid on bill for operation to be hereafter performed on bladder, etc., of claimant”; that all of said persons were present at the home when said release was signed; that appellee’s wife signed the following statement, attached to said release: “This release was read and signed by the said Frank Worthey in our presence at LeBoy, Illinois, on the 30th day of December, 1926”; that, upon-the face of said release, appellee wrote his initials after the interlineation “and all other parties in interest,” and also wrote the words “I have Bead and Understand this Belease,” the figures for the amount received by him, and the date, and that he signed the release and indorsed the draft given him by the claim agent at that time.

While not expressing any opinion as to the weight of this evidence, we hold that, on the record, it was eminently necessary that the jury be accurately instructed as to what constitutes the fraud which would relieve appellee from returning the consideration received by him. Said consideration, if not adequate, was substantial, especially in view of the fact that appellant had, prior to the execution of said release, expended over $2,600 in hospital and doctor bills, etc., growing out of appellee’s injury. The court committed reversible error in giving appellee’s second instruction.

Appellee’s fourth instruction is of a similar character, except that it did not require the jury to find that appellee’s condition was apparent, and did not present the proposition as to appellee having the right to retain the consideration which he had received.

As there was no instruction in the record explaining the meaning of the term “fraud and circumvention,” used in said instructions, it was also error to give the same without informing the jury as to what constituted, in law, fraud and circumvention.

It is also insisted that there was no sufficient proof that appellee, at the time of his injury, was engaged in interstate commerce. This point is riot well taken, as the evidence is clearly sufficient upon which to base a verdict so finding.

For the reasons above set forth, the judgment of the trial court will be reversed and the cause will be remanded.

Reversed and remanded.


author: Mr. Justice Jett

text:
    Rockford Amusement and Refreshment Company, Appellee, v. Board of Supervisors of Winnebago County, Illinois, et al., Appellants.
    Gen. No. 7,960.

      Heard in this court at the October term, 1928.
    Opinion filed February 15, 1929.
    William D. Knight, State’s Attorney, and A. B. Louison, Assistant State’s Attorney, for appellants.
    Frank E. Maynard, for appellee.
   Mr. Justice Jett

delivered the opinion of the court.

Rockford Amusement and Refreshment Company, a corporation, appellee, filed its petition in the circuit court of Winnebago county, against the Board of Supervisors of Winnebago County, Howard W. Short, county clerk of said county, and George Falconer, chairman of the county board of supervisors of said county, for a writ of mandamus to compel the issuance to it of a license to operate a dance hall or road house, under the act of June 30,1925, Cahill’s St. ch. 34, fí 195 et seq.

In the petition of appellee it is averred that it was organized in February, 1928, under and by virtue of the laws of the State of Illinois, with a capital stock of $20,000, and that Thomas W. Milner is the president and general manager of said company; that before the incorporation of appellee company, Milner was the sole owner of, and operated, a dance hall and café, called “Trocadero Inn,” located at the corner of Charles Street and Broadway, in Gilford Township, in said county.

It is further charged in said petition that on May llr 1927, Milner applied for a license to operate a dance hall at said place, and that a license so to do was granted by the appellant board of supervisors; that on or about June 18,1927, the building in which said dance hall was operated was consumed by fire; that immediately after June 18, 1927, Milner began the rebuilding of said dance hall; that as completed said new building conformed to, and complied with all the regulations and conditions prescribed and required by the laws of the State of Illinois, applicable to dance halls; that the said Milner had personally conducted said dance hall since May 11, 1927, until February 21, 1928, when appellee company was incorporated, and that since said time Milner has acted as president and general manager of said company, and has personally conducted, supervised and managed said dance hall, and that during said time no complaint has been made by the appellant board of supervisors in connection therewith.

The petitioner avers the manner in which said business has been conducted; and that on May 11, 1928, said license to said Milner would expire, and that in anticipation thereof, appellee, of which said Milner is principal owner, on April 13, 1928, made application for a renewal of said license or permit, a copy of which said application is made a part of said petition; that upon the presentation of said petition to the said board of supervisors, Milner, as the president and manager, submitted himself to the committee of said board of supervisors, having the matter in charge, for examination as to his moral character, fitness and qualifications, as the managing officer of appellee company; that no charge was made by said committee against the said Milner, and that a member of said committee stated, that they had nothing against the petitioner, or the Trocadero Inn, “but that they had made a rule, and had adopted a policy of refusing all dance hall permits in Winnebago County, and were following said rule and policy. ’ ’ '

In said petition it is further averred that appellant board of supervisors “has arbitrarily, capriciously, unreasonably, without cause and without warrant, failed, neglected and refused to perform its duty in this behalf, and have failed, neglected and refused to grant your petitioner a permit or license,” praying the issuance of the writ of.mandamus, etc.

To the petition, appellants filed a demurrer, which was by the court overruled, and the writ of mandamus was ordered to issue as prayed for by the petitioner.

From the action of the court in granting the prayer of the petitioner, this appeal is, by the appellant, prosecuted. It is the contention of appellant that the petitioner avers many immaterial matters, and that it fails to aver the good, moral character of petitioner, and fails to aver payment or tender of the license fee. The demurrer filed was general and special, and no question was raised in the special demurrer on the ground that said petitioner did not aver payment, or tender of the license fee.

Inasmuch as the demurrer was special, as well as general, and since it did not raise the question of the failure to show payment or tender of the license fee, appellants are not in a position to urge this point for the first time in this court. We have examined the petition and are of the opinion that it avers a substantial compliance with the statute which authorized the issuing of a license as applied for by the petitioner.

The only question, therefore, for our determination is, as to whether appellant board of supervisors had the right to refuse to grant said license. In other words, whether it was a discretionary matter with the said board of supervisors or whether the word “may” as used in the statute shall be construed as “shall,” where the petitioner has complied with the provisions of the statute warranting the issuance of the license as prayed for.

The law under which the application was made, Cahill’s St. ch. 34, If 195, substantially provides: “It shall hereafter be unlawful for any person or persons to operate or maintain a public dance hall or road house for the use of the general public outside of the limits of any city, village or incorporated town without first obtaining a license therefor from the county board of the county where the public dance hall is situated, in accordance with the provisions of this Act.” By section 2, Cahill’s St. ch. 34, 196, county boards are given power to grant licenses for one year only and to revoke them. Section 3, Cahill’s St. ch. 34, 197, authorizes the continuance of those halls then in operation until the board at its next regular meeting shall issue or refuse to issue a license under the provisions of the act. Section 4, Cahill’s St. ch. 34, IT 198, provides : “A license to operate or maintain a dance hall may be issued by the county board to any citizen, firm or corporation of the State,” who submits a written application for a license as provided in said section 4. The act in question provides for the regulation of public dance halls or road houses used for public dances outside the limits of any city, village or town and does not provide for their prohibition.

In Grove v. Board of Sup’rs of Piatt Co., Ill., 246 Ill. App. 241, the court at pages 24A-245, said:

“In section 4 of the act the word ‘may’ is to be construed as meaning ‘shall,’ ” citing Canal Com’rs v. Sanitary Dist. of Chicago, 184 Ill. 597.

In the later case the court at page 604 said: “The words ‘may’ and ‘shall,’ when used in a statute, will sometimes be read interchangeably, as will best express the legislative intent. The word ‘may’ will be construed to mean ‘shall’ when the public or third persons have a claim that the power ought to be exercised.”

In Grove v. Board, of Sup’rs of Piatt Co., Ill., supra, in discussing the statute in question, the court at page 245 further said: “It therefore follows that the act in question is a valid, mandatory act as to all such persons and corporations who bring themselves within the provisions of the act. ’ ’

In view of the fact that the statute is mandatory as to all persons and corporations who bring themselves within its provisions, the appellant supervisors are not in a position to insist that they had the right to exercise a discretion in the granting of the license.

We are of the opinion that while it may be true that the petition sets forth matters not necessary to have been averred, yet the averments of facts, taken as a whole, are sufficient to show the petitioner’s right to the relief prayed for.

In view of the state of the record and of the rule announced in Grove v. Board of SupWs of Piatt Co., Ill., supra, the judgment of the trial court will be affirmed.

Judgment affirmed.


author: Mr. Presiding Justice O’Connor

text:
    First District.
    Adolph M. Schwarz, plaintiff in error, v. Leo Weil et al., defendants in error.
    Gen. No. 32,591.
    Heard in the first division of this court for the first district at the April term, 1928.
    Opinion filed January 21, 1929.
    Goldman & Seeder, for plaintiff in error. Rothbart & Lewis, for defendants in error; Wharton Plummer, of counsel.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.


text:
    Helen Servati, appellee, v. Evening American Publishing Company, appellant.
    Gen. No. 32,643.
    Heard in the first division of this court for the first district at the April term, 1928.
    Opinion filed January 21, 1929.
    Keehn, Woods & Weisl, for appellant. Ernest Stanley Hodges, for appellee.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.


text:
    L. H. Sohn and C. M. Sohn, trading as L. H. Sohn & Company, appellees, v. New York Indemnity Company, appellant.
    Gen. No. 32,806.
    Heard in the first' division of this court for the first district at the October term, 1928.
    Opinion filed January 21, 1929.
    McKenna & Harris, for appellant. Morris K. Levinson, for appellees.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.


text:
    Alfred Nelson, appellee, v. Carroll C. Figge and Bernhard P. Bohringer, trading as Chicago Waterproofing & Roofing Company, appellants.
    Gen. No. 32,858.

      Heard in the first division of this court for the first district at the June term, 1928.
    Opinion filed January 21, 1929.
    Rehearing denied February 4, 1929.
    West & Eckhart, for appellants. Frederick A. Bangs and Martin Crane, for appellee; Martin Crane, of counsel.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.


text:
    Johnson Office Equipment Company, Inc., plaintiff in error, v. Cowham Engineering Company, defendant in error.
    Gen. No. 32,935.
    Heard in the first division of this court for the first district at the October term, 1928.
    Opinion filed January 21, 1929.
    Moss & Ellman, for plaintiff in error. Cutting, Moore & Sidley, for defendant in error; John Paulding Brown, of counsel.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.


text:
    Charles R. Thompson et al., appellees, v. James H. Hooper, defendant. James H. Hooper, appellant.
    Gen. No. 33,258.
    Heard in the first division of this court for the first district at the December term, 1928.
    Opinion filed January 21, 1929.
    Harold O. Mulks, for appellant. Decker & Golden, for appellees.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.


author: Mr. Justice MeSurely

text:
    Percival B. Coffin, administrator of the estate of Nellie Katherine Nahand, deceased, plaintiff in error, v. Chicago City Railway Company et al., defendants in error.
    Gen. No. 32,783.
    Heard in the first division of this court for the first district at the June term, 1928.
    Opinion filed January 21, 1929.
    Janies C. MeShane, for plaintiffs in error. Brown, Fox & Blumberg, for defendants in error; Frank L. Kriete, Charles LeRoy Brown, A. R. Peterson and Henry Blumberg, of counsel.
   Mr. Justice MeSurely

delivered, the opinion of the court.


text:
    Clifford Hall, by Albert T. Hall, appellee, v. Chicago & West Towns Railway Company and C. D. Gammon Company, on appeal of Chicago & West Towns Railway Company, appellant.
    Gen. No. 32,789.
    Heard in the first division of this court for the first district at the June term, 1928.
    Opinion filed January 21, 1929.
    Berthold L. Goldberg, for appellant. Gardner, Foote, Burns & Morrow, for appellee. Water M. Fowler, of counsel.
   Mr. Justice MeSurely

delivered the opinion of the court.


author: Mr. Justice McSurely

text:
    Rose Pikowske, defendant in error, v. Simon Cholewinske, plaintiff in error.
    Gen. No. 32,900.
    Heard in the first division of this court for the first district at the October term, 1928.
    Opinion filed January 21, 1929.
    Cohen, Tomas & Cohen, for plaintiff in error; George B. Cohen, of counsel. Lehman & Hogue, for defendant in error; Lloyd W. Lehman, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Florence Orlando, defendant in error, v. John E. Stenquist, plaintiff in error.
    Gen. No. 32,912.
    Heard in the first division of this court for the first district at the October term, 1928.
    Opinion filed January 21, 1929.
    Eugene P. Kealy, for plaintiff in error. Robert Berg and Frank Hall Stephens, for defendant in error.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Norman K. Anderson, defendant in error, v. William W. Rice, plaintiff in error.
    Gen. No. 32,939.
    Heard in the first division of this court for the first district at the October term, 1928.
    Opinion filed January 21, 1929.
    William Friedman, for plaintiff in error. Anderson & Clarke, for defendant in error.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Charles W. Stiefel, appellant, v. Henry E. Jonas, appellee.
    Gen. No. 32,948.
    Heard in the first division of this court for the first district at the October term, 1928.
    Opinion filed January 21, 1929.
    Kern, Stiefel & Stiefel, for appellant; Charles W. Stiefel, Jr., of counsel. Castle, Williams, Long & Castle, for appellee; Emmett J. McCarthy and Jesse B. Long, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Elizabeth Metcalf, appellee, v. Alfred. Irmschler and Marie Irmschler, appellants.
    Gen. No. 32,994.
    Heard in the first division of this court for the first district at the October term, 1928.
    Opinion filed January 21, 1929.
    John P. Murray, for appellants. Frank F. Tollkuehn, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Bernhard Kornblith, appellee, v. Sidney H. Stone Co., appellant.
    Gen. No. 33,027.
    Heard in the first division of this court for the first district at the October term, 1928.
    Opinion filed January 21, 1929.
    Rehearing denied February 4, 1929.
    M. M. Jacobs, for appellant. Morris K. Levinson, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Walter E. Heller & Company, appellee, v. Lulu M. Jones, appellant.
    Gen. No. 33,036.
    Heard in the first division of this court for the first district at the December term, 1928.
    Opinion filed January 21, 1929.
    Morris, Cashin & Dickerson, for appellant. Mort D. & Frank Goldberg, for appellee; Mort D. Goldberg, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    C. G. Haebick, appellee, v. Brunswick-Balke-Collender Company, Inc., appellant.
    Gen. No. 33,045.
    Heard in the first division of this court for the first district at the October term, 1928.
    Opinion filed January 21, 1929.
    George D. Anthony, for appellant. No appearance for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    L. E. Schmidt, appellant, v. Edward Byrnes and Mrs. George J. Byrnes, appellees.
    Gen. No. 33,066.
    Heard in the first division of this court for the first district at the October term, 1928.
    Opinion filed January 21, 1929.
    J. J. Moser, for appellant. James J. O’Toole, for appellees.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Bailey Samelow, appellee, v. Earl W. Thompson, appellant.
    Gen. No. 33,121.
    Heard in the first division of this court for the first district at the October term, 1928.
    Opinion filed January 21, 1929.
    Leonard L. Cowan, for appellant. John Prystalski, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.


author: Mr. Justice Matchett

text:
    Sam Benedeck, appellee, v. Minnie W. Christesen, appellant.
    Gen. No. 32,646.
    Heard in the first division of this court for the first district at the April term, 1928.
    Opinion filed January 21, 1929.
    Rehearing denied February 4, 1929.
    Edward J. Queeny, for appellant. Theodore Stone, for appellee.
   Mr. Justice Matchett

delivered the opinion of the court.


text:
    Joseph Simon Wise, appellant, v. Harry Florence and George Lomax, appellees.
    Gen. No. 32,818.
    Heard in the first division of this court for the first district at the June term, 1928.
    Opinion filed January 21, 1929.
    Jesse Marcus, for appellant. Rathje, Wesemann, Hinckley & Barnard, for appellees.
   Mr. Justice Matchett

delivered the opinion of the court.


text:
    Herman Kieselbach, defendant in error, v. Sarah Rosenberg and Louis Rosenberg, plaintiffs in error.
    Gen. No. 32,828.
    Heard in the first division of this court for the first district at the June term, 1928.
    Opinion filed January 21, 1929.
    P. R. Boylan, for plaintiffs in error. Maximilian J. St. George, for defendant in error.
   Mr. Justice Matchett

delivered the opinion of the court.


text:
    Wladyslaw Sokolowski and John Marcinkowski, trading as Perfection Parlor Furniture Company, appellants, v. Boleslaw Sokolowski and Chester Sokolowski, appellees.
    Gen. No. 32,842.
    Heard in the first division of this court for the first district at the June term, 1928.
    Opinion filed January 21, 1929.
    Rehearing denied February 4, 1929.
    Campbell & Jacobson, for appellants; Lawrence A. Jacobson, of counsel. Maximilian J. St. George, for appellees.
   Mr. Justice Matchett

delivered the opinion of the court.