text:
    The People of the State of Illinois, defendant in error, v. Ros Chiarelli, plaintiff in error.
    Gen. No. 7,687.
    Prosecution for possessing and manufacturing intoxicants and for possessing a still. Conviction and sentence. Error to the Circuit Court of Winnebago county; the Hon. Edward D. Shurtleff, Judge, presiding. Heard in this court at the October term, 1926.
    Affirmed.
    Opinion filed September 29, 1927.
    Fisher, North, Linseott & Gibboney, for plaintiff in error. William D. Knight, State’s Attorney, and A. B. Louison, Assistant State’s Attorney, for defendant in error.
   Mr. Justice Jones

delivered the-opinion of the court.


source: Caselaw Access Project

author: Mr. Justice Jones

license: Public Domain

text:
    In re estate of Mary E. Brown, deceased. Albert J. Selleck, administrator, appellant, v. Eugene A. Whitney, appellee.
    Gen. No. 7,699.
    Appeal from disallowance of administrator’s disbursement. Appeal from the Circuit Court of Knox county; the Hon. Walter C. Frank, Judge, presiding. Heard in this court at the October term, 1926.
    Reversed and remanded with directions.
    Opinion filed September 29, 1927.
    Alvah'S. Green and R. L. Stuart, for appellant; John S. Bishop, of counsel. A. J. Boutelle, for appellee; M. C. King, of counsel.
   Mr. Justice Jones

delivered the opinion of the court.


text:
    D. B. McPherson, appellee, v. Board of Education of Waukegan Township High School District, appellant.
    Gen. No. 7,704.
    Action to recover unpaid balance of teacher’s salary. Judgment for plaintiff. Appeal from the County Court of Lake county; the Hon. Perry L. Persons, Judge, presiding. Heard in this court at the October term, 1926.
    Affirmed.
    Opinion filed September 29, 1927.
    Miller, Herr, Parnass & Bullinger, for appellant; William E. Herr and George W. Field, of counsel. Ernest S. Gail, for appellee.
   Mr. Justice Jones

delivered the opinion of the court.


author: Mr, Justice Jones

text:
    C. S. Kilbourne, appellee, v. Clyde W. Miller, appellant.
    Gen. No. 7,709.
    Interpleader in attachment. Judgment against interpleader. Appeal from the City Court of the City of ICewanee; the Hon. H. Sterling Pomeroy, Judge, presiding. Heard in this court at the October term, 1926.
    Reversed and remanded with directions.
    Opinion filed September 29, 1927.
    John T. Cummings, for appellant. Andrews & O’Connor, for appellee.
   Mr, Justice Jones

delivered the opinion of the court.


text:
    Francis Hickey, by Frances Hickey, appellee, v. Roy Strauss, appellant.
    Gen. No. 7,714.
    Action to recover for injuries from automobile collision. Judgment for plaintiff. Appeal from the Circuit Court of Winnebago county; the Hon. Earl D. Reynolds, Judge, presiding. Heard in this court at the October term, 1926.
    Affirmed.
    Opinion filed September 29, 1927.
    Knight & Mohr, for appellant; Carl A. Swenson, of counsel. Garrett, Maynard & Fell, for appellee.
   Mr. Justice Jones

delivered the opinion of the court.


text:
    In re estate of Amanda Weaver, deceased, appellee, v. J. W. Weaver, appellant.
    Gen. No. 7,718.
    Appeal by claimant against estate, from judgment for administrator. Appeal from the Circuit Court of Knox county; the Hon. Walter C. Frank, Judge, presiding. Heard in this court at the October term,' 1926.
    Affirmed.
    Opinion filed September 29, 1927.
    Bert E. McLaughlin, for appellant. Hardy, Hardy, Bardens & Hardy, for appellee.
   Mr. Justice Jones

delivered the opinion of the court.


text:
    Robert Kennie, by Ralph Kennie, appellee, v. Timothy Daily, appellant.
    Gen. No. 7,721.
    Action for injuries from collision of motor vehicles. Judgment for plaintiff. Appeal from the Circut Court of Peoria county; the Hon. John M. Niehaus, Judge, presiding. Heard in this court at the October term, 1926.
    Affirmed.
    Opinion filed September 29, 1927.
    Wilson, Mellvaine, Hale & Templeton and Hunter, Page & Kavanagh, for appellant. John E. Cassidy, for appellee.
   Mr. Justice Jones

delivered the opinion of the court.


text:
    Village of Scales Mound, appellant, v. R. J. Gessner, appellee.
    Gen. No. 7,765.
    Bill for mandatory injunction to compel removal of electric wires from public street. Dismissed for want of equity. Appeal from the Circuit Court of Jo Daviess county; the Hon. Harry L. Heer, Judge, presiding. Heard in this court at the April term, 19*27.
    Reversed and remanded with directions.
    Opinion filed September 29, 1927.
    F. J. Campbell, for appellant. Sheean & Sheean and Louis A. Naek, for appellee.
   Mr. Justice Jones

delivered the opinion of the court.


text:
    Legris Trust & Savings Bank and Eugene Granger, appellants, v. Farmers’ Elevator Company of Manteno, appellee.
    Gen. No. 7,781.
    Trial of rights of property. Directed verdict for execution claimant. Appeal from the County Court of Kankakee county; the Hon.-John H. Gillan, Judge, presiding. Heard in this court at the April term, 1927.
    Affirmed.
    Opinion filed September 29, 1927.
    Louis N. Legris, for appellants. Joseph G. Gorman and Eva L. Minor, for appellee.
   Mr. Justice Jones

delivered the opinion of the court.


text:
    Martha K. Considine, appellee, v. John Nottolini, appellant.
    Gen. No. 7,787.
    Action for personal injuries. Judgment for plaintiff. Appeal from the Circuit Court of Kane county; the Hon. William J. Fulton, Judge, presiding. Heard in- this court at the April term, 1927.
    Affirmed.
    Opinion filed September 29, 1927.
    David J. Peffers and Robert J. Wing, for appellant. Leonard C. Mead, for appellee.
   Mr. Justice Jones

delivered the opinion of the court.


text:
    C. D. Kukuk, appellant, v. Willis A. Marin and A. J. Foote, individually and as trustees, appellees.
    Gen. No. 7,798.
    Bill to establish equitable lien. Dismissed for want of equity. Appeal from the Circuit Court of La Salle county; the Hon. Edgar Eldredge, Judge, presiding. Heard in this court at the October term, 1927.
    Reversed and remanded with directions.
    Opinion filed September 29, 1927.
    Rehearing denied November 8, 1927.
    Fred B. Shearer, for appellant; Charles B. Dickerson, of counsel. Woodward, Hibbs & Pool, for appellees.
   Mr. Justice Jones

delivered the opinion of the court.


author: Mr. Presiding Justice Higbee

text:
    Fourth District.
    The Mifflinburg Bank, appellant, v. Thomas Morfoot, appellee.

    Assumpsit on promissory notes. Judgment for defendant. Appeal from the City Court of Alton; the Hon. L. D. Yager, Judge, presiding. Heard in this court at the March term, 1921.
    Reversed and remanded.
    Opinion filed November 10, 1921.
    McGinnis & McGinnis, for appellant. J. J. Brenholt, for appellee.

       Received from clerk of Appellate Court, August 8, 1927.

   Mr. Presiding Justice Higbee

delivered the opinion of the court.


text:
    Edward Whittaker and St. Louis Union Trust Company, trustees, defendants in error, v. Wabash, Chester & Western Railroad Company and Letcher Irons, plaintiffs in error.*
    Judgment reversed pro forma for failure of defendants in error to present briefs. Error to the Circuit Court of Randolph county; the Hon. George A. Crow, Judge, presiding. Heard in this court at the March term, 1922.
    Reversed and remanded.
    Opinion filed April 14, 1922.
    H. C. Horner, for plaintiffs in error. W. T. Pace, for defendants in error.
   Per curiam.


author: Mr. Justice Boggs

text:
    National Cash Register Company, appellant, v. The Alton Fur House et al., appellees.*
    Replevin for personalty claimed by defendant as mortgagee. Judgment against plaintiff. Appeal from the City Court of Alton; the Hon. L. D. Yager, Judge, presiding. Heard in this court at the March term, 1922.
    Reversed and remanded.
    Opinion filed April 28, 1922.
    Henry S. Baker, for appellant. John F. McGinnis, for appellees.
   Mr. Justice Boggs

delivered the opinion of the court.


text:
    Sotir Durato, appellee, v. Jim Tchoukaleff, appellant.

    Bill for partnership accounting and for injunction to restrain disposing of partnership property. Decree for complainant. Appeal from the City Court of Alton; the Hon. L. D. Yager, Judge, presiding. Heard in this court at the March term, 1922.
    Reversed and remanded.
    Opinion filed July 11, 1922.
    H. J. Bandy, for appellant. W. P. Boynton and D. H. Mudge, for appellee.

       Received from clerk of Appellate Court, August 8, 1927.

   Mr. Presiding Justice Higbee

delivered the opinion of the court.


author: Mr. Presiding Justice Boggs

text:
    The People of the State of Illinois ex rel. Florence E. Elam, appellee, v. George Stanbery, appellant.*
    Bastardy proceeding. Judgment of filiation. Appeal from the County Court of Bond county; the Hon. W. H. Hubbard, Judge, presiding. Heard in this court at the October term, 1922.
    Affirmed.
    Opinion filed January 26, 1923.
    F. M. Guinn, for appellant. J. H. Allio and J. D. Biggs, for appellee.
   Mr. Presiding Justice Boggs

delivered the opinion of the court.


author: Mr, Presiding Justice Boggs

text:
    Bertha Ehrhardt, appellee, v. The Pennsylvania Fire Insurance of Philadelphia, appellant.*
    Assumpsit on policy insuring against loss by fire of automobile. Judgment for plaintiff. Appeal from the Circuit Court of St. Clair county; the Hon. George A. Crow, Judge, presiding. Heard in this court at the March term, 1923.
    Affirmed.
    Opinion filed October 29, 1923.
    M. V. Joyce, for appellant. T. M. Webb and R. B. Hendricks, for appellee.
   Mr, Presiding Justice Boggs

delivered the opinion of the court.


author: Mr, Presiding Justice Barry

text:
    George G. Parker et al., appellees, v. Julius Rosenberg, appellant.*
    Bill to enjoin interference with right of way. Order granting temporary injunction. Appeal from the Circuit Court of Madison county; the Hon. J. F. Gillliam, Judge, presiding. Heard in this court at the October term, 1923.
    Reversed and remanded with directions.
    Opinion filed November 15, 1923.
    Williamson, Simpson & George, for appellant. W. P. Boynton, for appellees.
   Mr, Presiding Justice Barry

delivered the opinion of the court.


text:
    Maggie Harrell, appellee, v. Bankers Mutual Life Company, appellant.*
    Action on life insurance policy. Judgment for plaintiff. • Appeal from the Circuit Court of Clay county; the Hon. F. R. Dove, Judge, presiding. Heard in this court at the October term, 1923.
    Affirmed.
    Opinion filed March 10, 1924.
    E. R. Shaw, for appellant. A. N. Tolliver and E. E. Calhoon, for appellee.
   Mr, Presiding Justice Barry

delivered the opinion of the court.


text:
    The People of the State of Illinois, defendant in error, v. Joe Du Bois, plaintiff in error.

    Conviction and sentence for possessing intoxicants contrary to law, on plea of guilty. Error to the County Court of Saline county; the Hon. A. G. Abney, Judge, presiding. Heard in this court at the October term, 1923.
    Affirmed.
    Opinion filed March 10, 1924.
    James B. Lewis, for plaintiff in error. Chas. H. Thompson, for defendant in error.

       Received from clerk of Appellate Court, August 8, 1927.

   Mr, Presiding Justice Barry

delivered the opinion of the court.'


text:
    Tille Scott, administratrix, appellee, v. East St. Louis & Suburban Railway Company, appellant.*
    Action for death of one engaged in interstate commerce, by wrongful act of defendant railway. Judgment for plaintiff. Appeal from the Circuit Court of St. Clair county; the Hon. George A. Crow, Judge, presiding. Heard in this court at the October term, 1923.
    Reversed with finding of facts.
    Opinion filed March 10, 1924.
    Barthel, Farmer & Klingel, for appellant. W. E. Knowles and T. M. Webb, for appellee.
   Mr, Presiding Justice Barry

delivered the opinion of the court.


text:
    Mary Thompson, appellee, v. Laura Jones, appellant.*
    Action for slander. Judgment for plaintiff on defendant’s default. Appeal from the Circuit Court of St. Clair county; the Hon. George A. Crow, Judge, presiding. Heard in this court at the October term, 1923.
    Affirmed.
    Opinion filed March 10, 1924.
    E. W. Kreitner, for appellant. Charles Webb, for appellee.
   Mr, Presiding Justice Barry

delivered the opinion of the court.


author: Mr. Presiding Justice Barry

text:
    John Holst, appellee, v. Christ Bischoff, appellant.*
    Bill to enjoin interference with natural flow of water. Decree for complainant. Appeal from the Circuit Court of Madison county; the Hon. J. F. Gillham, Judge, presiding. Heard in this court at the October term, 1923.
    Decree modified and affirmed.
    Opinion filed March 10, 1924.
    Geers & Geers, for appellant. D. H. Mudge, for appellee.
   Mr. Presiding Justice Barry

delivered the opinion of the court.


text:
    James Steele, administrator, appellee, v. St. Louis, Springfield & Peoria Railroad, appellant.*
    Action for death of one riding in automobile, caused by collision with electric train. Judgment for plaintiff. Appeal from the Circuit Court of Madison county; the Hon. George A. Crow, Judge, presiding. Heard in this court at the October term, 1923.
    Reversed and remanded.
    Opinion filed March 10, 1924.
    Terry, Gueltig & Powell, for appellant. Geers & Geers, for appellee,
   Mr. Presiding Justice Barry

delivered the opinion of the court.


text:
    Clarence Krueger, appellant, v. City of Belleville, appellee.

    Action for damages to automobile from uneven street. Judgment for defendant. Appeal from the Circuit Court of St. Clair county; the Hon. J. F. Gillham, Judge, presiding. Heard in this court at the October term, 1923.
    Affirmed.
    Opinion filed March 10, 1924.
    Turner, Holder & Bullington, for appellant. F. N. Perrin, Jr., for appellee.

       Received from clerk of Appellate Court, August 8, 1927,

   Mr. Presiding Justice Barry

delivered the opinion of the court.


text:
    Charles Pauley et al., appellees, v. County of Madison, appellant.*
    Action for services rendered. Judgment for plaintiffs. Appeal from the Circuit Court of Madison county; the Hon. .George A." Crow, Judge, presiding. Heard in this court at the October" term, 1923.
    Affirmed.
    Opinion filed March 10, 1924.
    J. F. Eeek, for appellant. D. H. Mudge, for appellees.
   Mr. Presiding Justice Barry

delivered the opinion of" the court.


text:
    Robert Burgess, administrator, appellee, v. Southern Railway Company, appellant.*
    Action for death by wrongful act of railway at grade crossing. Judgment for plaintiff. Appeal from the Circuit Court of Wayne county; the Hon. J. C. Eagleton, Judge, presiding. Heard in this court at the October term, 1923.
    Affirmed.
    Opinion filed March 10, 1924.
    Creighton & Thomas and Kramer, Kramer & Campbell, for appellant. Mills & Forth, for appellee.
   Mr. Presiding Justice Barry

delivered the opinion of the court.


text:
    The People of the State of Illinois ex rel. Roy C. Martin, State’s attorney of Franklin county, Illinois, defendant in error, v. Josephine Kuca, plaintiff in error.*
    Conviction and sentence for unlawful possession of intoxicants. Error to the County Court of Franklin county; the Hon. S. M. Ward, Judge, presiding. Heard in this court at the" October term, 1923.
    Reversed and remanded.
    Opinion filed March 10, 1924.
    Moses & PulVerman and Layman & Johnson, for plaintiff in error. Roy C. Martin, for defendant in error.
   Mr. Justice Boggs

delivered the opinion of the court.


text:
    Mary Vucich, appellee, v. National Croatian Society, appellant.*
    Action for sick benefits from fraternal society. Judgment for plaintiff. Appeal from the County Court of Madison county; the Hon. Wilbur A. T'rares, Judge, presiding. Heard in this court at the October- term, 1923.
    Affirmed.
    Opinion filed March 10, 1924.
    B. J. O’Neill, for appellant. R. F. Tunnell, Jr., for appellée.
   Mr. Justice Boggs

delivered the opinion of the court.


text:
    Dorothy L. Boss, by J. R. Boss, plaintiff in error, v. Illinois Central Railroad Company, defendant in error.*
    Action for personal injuries to infant at railway crossing. Judgment for plaintiff which she asks be reviewed as inadequate. Error to the Circuit Court of Effingham county; the Hon. F. R. Dove, Judge, presiding. Heard in this court at the October term, 1923.
    Reversed and remanded.
    Opinion filed March 10, 1924.
    Paul Taylor, for plaintiff in error. Edward C. Craig, for defendant in error.
   Mr. Justice Boggs

delivered the opinion of the court.


text:
    Josephine Oulvey, appellee, v. R. L. Spicer et al., appellants.

    Bill to foreclose realty mortgage. Decree for complainant. Appeal from the Circuit Court of St. Clair county; the Hon. George A. Crow, Judge, presiding. Heard in this court at the October term, 1923.
    Affirmed.
    Opinion filed March 10, 1924.
    MeGlynn & MeGlynn, for appellants. Pope & Driemeyer, for appellee.

       Received, from clerk of Appellate Court, August 8, 1927.

   Mr. Justice Boggs

delivered the opinion of the court.


text:
    Phoebe Ann Naylor, administratrix of the estate of Thomas W. Naylor, deceased, appellee, v. St. Louis, Springfield & Peoria Railroad, appellant.*
    Action for death by wrongful act at railway crossing. Judgment for plaintiff. Appeal from the Circuit Court of Madison county; the Hon. J. F. Gillham, Judge, presiding. Heard in this court at the October term, 1923.
    Reversed with finding of fact.
    Opinion filed March 10, 1924.
    Terry, Gueltig & Powell, for appellant. Geers & Geers, for appellee.
   Mr. Justice Boggs

delivered the opinion of the court.


author: Mr. Justice Higbee

text:
    The People of the State of Illinois, defendant in error, v. Charles Lesefsky and Lucy Lesefsky, plaintiffs in error.*
    Conviction for unlawful possession of intoxicants. Error to the County Court of Franklin county; the Hon. Sidney M. Ward, Judge, presiding. Heard in this court at the October term, 1923..
    Affirmed.
    Opinion filed March 10, 1924.
    H. R. Dial, for plaintiffs in error. Roy C. Martin, for defendant in error.
   Mr. Justice Higbee

delivered the opinion of the court.


text:
    The People of the State of Illinois, defendant in error, v. Icy Cummings, plaintiff in error.*
    Conviction for unlawful possession of intoxicants. Error to the County Court of Saline county; the Hon. A. D. Morgan, Judge, presiding. Heard in this court at the October term, 1923.
    Affirmed.
    Opinion filed March 10, 1924.
    Gustin & Lightfoot, for plaintiff in error. Chas. H. Thompson, for defendant in error.
   Mr. Justice Higbee

delivered the opinion of the court.


text:
    Arabel Wilson, appellee, v. East St. Louis & Suburban Railway Company, appellant.*
    Action for personal injuries in collision between railway" cars. Judgment for plaintiff. Appeal from the, Circuit Court of Madison county; the Hon. J. F. Gillham, Judge, presiding. Heard in this court at the October term, 1923.
    Reversed and remanded.
    Opinion filed March 10, 1924.
    Burroughs & Ryder, for appellant. Geers & Geers, for appellee.
   Mr. Justice Higbee

delivered the opinion of the court.


text:
    William S. Rosenberg, appellee, v. George Nemeth and Dora Nemeth, appellants.

    Bill to foreclose mortgage. Decree for complainant. Appeal from the Circuit Court of Madison county; the Hon. J. F. Gillham, Judge, presiding. Heard in this court at the October term, 1923.
    Reversed and remanded with directions.
    Opinion filed March 10, 1924.
    M. R. Sullivan, for appellants. Jesse Simpson, for appellee.

       Received from clerk of Appellate Court, August 8, 1927.

   Mr. Justice Higbee

delivered the opinion of the court.


text:
    J. T. Joiner, appellee, v. Cave-In-Rock Fluor-Spar Company, appellant.*
    Action for professional services by surgeon. Judgment for plaintiff. Appeal from the Circuit Court of Hardin county; the Hon. J. C. Eagleton, Judge, presiding. Heard in this court at the October term, 1923.
    Affirmed.
    Opinion filed March 10, 1924.
    C. E. Soward, for appellant. James E. Denton, for appellee.
   Mr. Justice Higbee

delivered the opinion of the court.


text:
    Raymond D. Burk, appellee, v. LeGrand A. Flack and E. E. Flack, appellants.*
    Action to recover money paid as laboratory fees and tuition. Judgment for plaintiff. Appeal from the Circuit Court of Effingham county; the Hon. F. R. Dove, Judge, presiding. Heard in this eoúrt at the October term, 1923.
    Affirmed.
    Opinion filed March 10, 1924.
    G. F. Taylor, for appellants. Paul Taylor, for apiiellee.
   Mr. Justice Higbee

delivered the opinion of the court.


text:
    Knox Bank & Trust Company, appellant, v. Elmer L. Warner, appellee.*
    Assumpsit on note given for nonissued stock. Judgment for defendant. Appeal from the Circuit Court of Lawrence county; the Hon. Julius C. Kern, Judge, presiding. Heard in this court at the October term, 1923.
    Affirmed.
    Opinion filed March 10, 1924.
    Gee & Gee, for appellant. Shaw & Huffman, for appellee.
   Mr. Justice Higbee

delivered the opinion of the court.


text:
    Madisonville Saw & Planing Mill Company, appellee, v. Midland Creosoting Company, appellant.*
    Action to recover profits lost by breach of sales contract. Judgment for plaintiff. Appeal from the City Court of Granite City; the Hon. M. R. Sullivan, Judge, presiding. Heard in this court at the October term, 1923.
    Affirmed.
    Opinion filed March 10, 1924.
    H. J. Bandy, for appellant. A. R. Johnson, for appellee.
   Mr. Justice Higbee

delivered the opinion of the court.


author: Mr. Justice Higbcc

text:
    E. L. Damon, appellee, v. Board of Education of Benton Township High School, Township 6 South, Range 3 West of the Third Principal Meridian, Franklin county, Illinois, appellant.

    Bill to enjoin collection of check given with bid for public work. Decree for complainant. Appeal from the Circuit Court of Marion county; the Hon. Thomas M. Jett, Judge, presiding. Heard in this court at the October term, 1923.
    Affirmed.
    Opinion filed March 10, 1924.
    Layman & Johnson, J. L. Kagg and E. B. Vandervort, for appellant. Noleman, Smith & Dallstream, for appellee.

       Received from clerk of Appellate Court, August 8, 1927.

   Mr. Justice Higbcc

delivered the opinion of the court.


text:
    Daniel McLaughlin, appellant, v. Standard Oil Company, appellee.*
    Bill to enjoin construction of filling station. Dismissed for want of equity. Appeal from the Circuit Court of St. Clair county; the Hon. George A. Crow, Judge, presiding. Heard in this court at the October term, 1923.
    Affirmed.
    Opinion filed March 20, 1924.
    T. M. Webb and Webb & Webb, for appellant. Kramer, Kramer & Campbell, for appellee.
   Mr. Justice Higbee

delivered the opinion of the court.


text:
    Charles Fisher, appellant, v. Hazel Fisher, appellee.*
    Bill for divorce on ground of desertion. Decree for defendant on cross-bill for extreme cruelty. Appeal from thé Circuit Court of Madison county; the Hon. J. F. Gillham, Judge, presiding. Heard in this court at the October term, 1924.
    Reversed and remanded.
    Opinion filed February 9, 1925.
    Burton & Burton, for appellant. Willis & Dunham, for appellee.
   Mr. Justice Boggs

delivered the opinion of the court.


author: Air. Justice Barry

text:
    The People of the State of Illinois ex rel. Helen Hageman, appellee, v. Edwin S. Fritz, appellant.*
    Bastardy proceedings. Judgment of filiation and for maintenance. Appeal from the County Court of • St. Clair county; the Hon. W. P. Green, Judge, presiding. Heard in this court at the October term, 1924.
    Affirmed.
    Opinion filed March 4, 1925.
    P. K. Johnson, for appellant. H. C. Lindauer, for appellee.
   Air. Justice Barry

delivered the opinion of the court.


text:
    Frank Kuster, appellant, v. W. A. Hankins et al., appellees.*
    Bill to dissolve partnership, for accounting and to enjoin disposal of funds and property. Dismissed for want of equity. Appeal from the City Court of East St. Louis; the Hon. William F. Borders, Judge, presiding. Heard in this court at the October term, 1924.
    Reversed and remanded.
    Opinion filed March 31, 1925.
    J. E. Grace, for appellant. J. B. MeGlynn and Lester J. Grigsby, for appellees.
   Mr. Justice Boggs

delivered the opinion of the court.


author: Mr, Justice Boggs

text:
    A. O. Mills, plaintiff in error, v. Charles Mathis, commissioner of highways, road district No. 11, Johnson county, defendant in error.

    Petition for mandamus to compel removal of highway obstruction. Judgment against plaintiff. Error to the Circuit Court of Johnson county; the Hon. William N. Butler, Judge, presiding. Heard in this court at the October term, 1924.
    Affirmed.
    Opinion filed March 31, 1925.
    H. A. Evans, for plaintiff in error. H. A. Spann, for defendant in error.

       Received from clerk of Appellate Court, August 8, 1927.

   Mr, Justice Boggs

delivered the opinion of the court.


author: Mr. Justice Barry

text:
    The People of the State of Illinois, defendant in error, v. Murray D. Hornberger et al., plaintiffs in error.*
    Conviction for unlawful possession and sale of intoxicants. Error 1o the County Court of Randolph county; the Hon. W. P. Green, Judge, presiding. Heard in this court at the October term, 1924.
    Affirmed.
    Opinion filed April 15, 1925.
    L. A. Cranston, for plaintiffs in error. H. H. House, for defendant in error,
   Mr. Justice Barry

delivered the opinion of the court.


author: Mr, Justice Barry

text:
    William Connor et al., appellees, v. Robert E. Wahl et al. Adam Eitzenhefer and Myra Wahl, appellants.*
    Bill to foreclose third mortgage. Decree for complainant. Appeal from the City Court of East St, Louis; the Hon. W. P. Borders, Judge, presiding. Heard in this court at the March term, 1925.
    Reversed and remanded.
    Opinion filed August 5, 1925.
    Pope & Driemeyer, for appellants. MeHale & MeHale, for appellees.
   Mr, Justice Barry

delivered the opinion of the court.


text:
    T. T. Hinde, appellee, v. D. Lazaroff, appellant.*
    Action for legal services on written contract. Judgment for plaintiff. Appeal from the Circuit Court of Madison county; the Hon. Louis Bernreuter, Judge, presiding. Heard in this court at the March term, 1925.
    Affirmed.
    Opinion filed August 5, 1925.
    H. J. Bandy, for appellant. D. G. Williamson, for appellee.
   Mr. Justice Boggs

delivered the opinion of the court.


text:
    Mather Pfeiffenberger, plaintiff in error, v. Albert A. Sudro et al., defendants in error.
    Action on promissory note. Judgment for defendants. Error to the City Court of Alton; the Hon. L. D. Yager, Judge, presiding. Heard in this court at the March term, 1927.
    Reversed and judgment entered here for $1,110.
    Opinion filed May 14, 1927.
    McGinnis & McGinnis, for plaintiff in error. John J. Brenholt, for defendants in error.
   Mr. Presiding Justice Barry

delivered the opinion of the court.


text:
    Paul Chocolas, defendant in error, v. Julia Harchany and Tony Harchany, plaintiffs in error.
    Action for personal injuries. Judgment for plaintiff. Error to the Circuit Court of Madison county; the Hon. J. Frank Gdllham, Judge, presiding. Heard iri this court at the March term, 1927.
    Reversed and remanded.
    Opinion filed May 14, 1927.
    Harold J. Bandy, for plaintiffs in error. A. B. Johnson and Willis H. Clark, for defendant in error; Harry Faulkner, of counsel
   Mr. Presiding Justice Barry

delivered the opinion of the court.


text:
    J. W. Davis, appellant, v. D. R. Gaskins, appellee.
    Action on promissory note. Judgment for defendant. Appeal from the Circuit Court of Saline county; the Hon. D. T. Hartwell, Judge, presiding. Heard in this court at the March term, 1927.
    Affirmed.
    Opinion filed May 14, 1927.
    John H. Meyer, for appellant. John W. Browning and Oral P. Tuttle, for appellee.
   Mr. Presiding Justice Barry

delivered the opinion of the court.


text:
    The People of the State of Illinois, defendant in error, v. August Duchow, plaintiff in error.
    Conviction for unlawful possession of intoxicants. Error to the County Court of Fayette county; the Hon. C. B. Torrence, Judge, presiding. Heard in this court at the March term, 1927.
    Affirmed.
    Opinion filed May 14, 1927.
    Rehearing denied July 29, 1927.
    F. M. Guinn, for plaintiff in error. W. P. Welker, for defendant in error.
   Mr. Presiding Justice Barry

delivered the opinion of the court.


text:
    Lincoln Bancroft, appellant, v. H. O. Lewis, appellee.
    Action for damages to automobile and personal injuries from automobile collision. Judgment for defendant. Appeal from the Circuit Court of St. Clair county; the Hon. William B. Wright, Judge, presiding. Heard in this court at the March term, 1927.
    Reversed and remanded.
    Opinion filed May 14, 1927.
    Provine & Provine, for appellant. Brown & Burnside, for appellee.
   Mr. Presiding Justice Barry

delivered the opinion of the court.


text:
    Frank Shay, administrator of the estate of Catherine Shay, appellee, v. J. J. Seibel, appellant.
    Action for wrongful death. Judgment for plaintiff. Appeal from the City Court of East St. Louis; the Hon. William F. Borders, Judge, presiding. Heard in this court at the March term, 1927.
    Affirmed.
    Opinion filed May 14, 1927.
    Kramer, Kramer & Campbell, for appellant. MeGlynn & McGlvnn, for appellee.
   Mr. Presiding Justice Barry

delivered the opinion of the court.


text:
    Edward Bilyeu, appellee, v. Baltimore & Ohio Railroad Company, appellant.
    Action to recover for personal injuries under Federal Employers’ Liability Act. Judgment for plaintiff. Appeal from the City Court of East St. Louis; the Hon. Silas Cook, Judge, presiding. Heard in this court at the March term, 1927.
    Affirmed upon filing remittitur, otherwise reversed and remanded.
    Opinion filed May 14, 1927.
    Kramer, Kramer & Campbell, for appellant. Beasley & Zulley, for appellee.
   Mr, Presiding Justice Barry

delivered'the opinion of the court.


text:
    Flossie Williams, appellee, v. Anna Marks, appellant.
    Action for slander. Judgment for plaintiff. Appeal from the City Court of East St. Louis; the Hon. Silas Cook, Judge, presiding. Heard in this court at the March term, 1927-. -
    Affirmed upon remittitur of $1,000, otherwise reversed and remanded.
    Opinion filed May 14, 1927.
    J. J. Bullington, for appellant. Beasley & Zulley, for appellee.- '
   Mr. Presiding Justice Barry

delivered the opinion of the court.


text:
    Philip Schnell, appellee, v. East St. Louis Railway Company, appellant.
    Action for personal injuries from street car. Judgment for plaintiff:- Appeal from the City Court of East St.-Louis; the Hon. William F. Borders, Judge, presiding. Heard in this court at the March term, 1927.
    Affirmed.
    Opinion filed May 14, 1927.
    MeGlynn & MeGlynn, for appellant. R. B. Hendricks, for appellee.
   Mr, Justice Boggs

delivered the opinion of the court.


text:
    L. E. Cravens, appellant, v. Omer Slichenmyer, appellee.
    Action for damage for shooting foxhound. Judgment for defendan!. Appeal from the Circuit Court of Richland county; the Hon. Julius C. Kern, Judge, presiding. Heard in this court at the March term, 1927.
    Affirmed.
    Opinion filed May 14, 1927.
    S. C. Lewis, for appellant. John C. McNeil, for appellee.
   Mr. Justice Boggs

delivered the opinion of the court.


text:
    Brunswick-Balke-Collender Company, appellee, v. H. L. Webb, appellant.
    Assumpsit on promissory notes. Judgment for plaintiff. Appeal from the Circuit Court of Franklin county; the Hon. J. C. Eagleton, Judge, presiding. Heard in this court at the March term, 1927.
    Affirmed.
    Opinion filed May 14, 1927.
    J. E. Carr, for appellant. Trobaugh & Church, for appellee.
   Mr. Justice Boggs

delivered the opinion of the court.


text:
    The People of the State of Illinois, defendant in error, v. Jacob Harre, plaintiff in error.
    Conviction and sentence for petit larceny. Error to the County Court of Fayette county; the Hon. C. R. Torrence, Judge, presiding. Heard in this court at the March term, 1927.
    Reversed and remanded.
    Opinion filed May 14, 1927.
    F. M. Guinn, for plaintiff in error. W. P. Welker, State’s Attorney, for defendant in error.
   Mr. Justice Boggs

delivered the opinion of the court.


text:
    Ed G. Burd and Ora Knupp, appellants, v. Ida M. Sadler, appellee.
    Partition. Order of distribution, including allowance to appellee out of appellant’s share. Appeal from the Circuit Court of Pulaski county; the Hon. A. L. Spiller, Judge, presiding. Heard in this court at the March term, 1927.
    Appeal dismissed.
    Opinion filed May 14, 1927.
    Jos. O’Sullivan, for appellants. D. B. Reid, for appellee.
   Mr. Justice Boggs

delivered the opinion of the court.


text:
    Annie Nugent, executrix, defendant in error, v. A. J. Francis et al. Martin Grosby, plaintiff in error.
    Writ to review deficiency judgment entered against defendant under foreclosure decree. Error to the Circuit Court of St. Clair county; the Hon. George A. Crow, Judge, presiding. Heard in this court at the March term, 1927.
    Affirmed.
    Opinion filed May 14, 1927.
    Re-hearing denied July 29, 1927.
    Irwin Grossman, for plaintiff in error. MeGlynn & MeGlynn, for defendant in error.
   Mr. Justice Higbee

delivered the opinion of the court.


text:
    Peter P. Schaefer, appellee, v. Frank Koch, appellant.
    Action for loss from failure of defendant to take goods bought. Judgment for plaintiff. Appeal from the Circuit Court of Clinton county; the Hon. William B. Wright, Judge, presiding. Heard in this court at the March term, 1927.
    Affirmed.
    Opinion filed May 14, 1927.
    Maurice B. Johnson, for appellant. W. J. Dolan, for appellee.
   Mr. Justice Higbee

delivered the opinion of the court.


text:
    Manufacturers Finance Trust, appellant, v. Thomas F. Stone, appellee.
    Replevin. Judgment of damages for defendant and writ of retorno htibendo. Appeal from the City Court of East St. Louis; the Hon. M. R. Sullivan, Judge, presiding. Heard in this court at the March term, 1927.
    Reversed and remanded.
    Opinion filed May 14, 1927.
    Stern & Burnett, for appellant. Beasley & Zulley, for appellee.
   Mr. Justice Higbee

delivered the opinion of the court.


author: Mr, Justice Higbee

text:
    Samuel W. Baxter, administrator of the estate of George W. Derlam, deceased, plaintiff in error, v. East St. Louis & Suburban Railway Company, defendant in error.
    Action for wrongful death in collision of automobile with train. Judgment against plaintiff on directed verdict. Error to the Circuit Court of St. Clair county; the Hon. George A. Crow, Judge, presiding. Heard in this court at the March term, 1927.
    Affirmed.
    Opinion filed June 11, 1927.
    H. H. Patterson, for plaintiff in error. Parmer & Klingel, for defendant in error.
   Mr, Justice Higbee

delivered the opinion of the court.


author: Mr. Presiding Justice Matchett

text:
    Theron P. Cooper, Appellant, v. John A. Anderson, Appellee.
    Gen. No. 31,846.
    1. Pleading — issues and evidence as limited by affidavit of merits. Under Cahill’s St. ch. 110, ¶ 55, providing for an affidavit by defendant in response to an affidavit of money claim by plaintiff, the evidence to be offered and issues to be tried are limited to issues as made by the pleas and then only in so far as they are verified by the defendant’s affidavit.
    2. Municipal courts — rule that fact averments not denied are admitted as general principle. The rule of the municipal court that averments of fact in a pleading which are not denied are deemed admitted as true, has always been enforced by the courts as an assertion of the general principle that one waives objections he does not state.
    3. Pleading — when material facts admitted by failure to deny in affidavit of merits. In assumpsit for rent supported by an affidavit for a money claim to which defendant responds by an affidavit of merits setting forth only the affirmative defense of release, the defendant must establish such defense, and all other material facts, not being put in issue, are regarded as admitted.
    4. Landlord and tenant — how far averments of assignment unnecessary in action for rent. In an action for rent brought under Cahill’s St. ch. 80, ¶ 14, by an assignee it is not necessary for the plaintiff to aver or prove the assignment, as required by Cahill’s St. ch. 110, ¶ 18, providing the plaintiff shall set forth how his claim was assigned.
    5. Pleading — necessity of objecting to sufficiency of special count before verdict. After verdict, a special count in a declaration to recover rent, containing the common counts, is good on the defendant's failure to raise by demurrer or otherwise his objection that the written documents on which the suit was based were not set forth.
    6. Appeal and error — when plaintiff’s position on appeal not inconsistent. A landlord seeking to recover rent may offer evidence at the trial to support his claim without being inconsistent in claiming on appeal that the material averments of his affidavit of money claim should be considered proved because of the defendant’s failure to offer any proof towards sustaining his affidavit of merits.
    Appeal by plaintiff from the Superior Court of Cook county; the Hon. Jesse Holdom, Judge, presiding.
    Heard in the first division of this court for the first district at the March term, 1927.
    Reversed and remanded.
    Opinion filed October 10, 1927.
    Rehearing denied October 24, 1927.
    Hall, Spitz & Books, for appellant; Irvin Books and Edward Blackman, of counsel.
    Alden, Latham & Young, for appellee; Charles Martin, of counsel.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.

This is an appeal by the plaintiff from a judgment in favor of the defendant, entered on the verdict of a jury as instructed by the court.

The suit was in assumpsit, the declaration consisting of the common counts and a special count, which alleged that on August 17, 1915, George Strong and Anna Strong leased certain premises from William E. Walker and Hugh McLennan for a term of five years; that Theron P. Cooper, through mesne assignments, acquired all the rights, title and interest of Walker and McLennan in said lease; that at the request of the defendant, John A. Anderson, Walker and Cooper consented to the assignment of their interest in the lease to Orilla Beck, and that in consideration of the consent of Walker and Cooper to the assignment to Beck defendant guaranteed the payment of the rent according to the terms of the lease; that Beck was in arrears for rent from February 1, 1919, to August 1, 1920, and that the defendant has failed to comply with his guaranty and to pay the same, to the damage of the plaintiff in the sum of $4,500.

The defendant filed a plea of the general issue and other pleas, alleging that complainant had not through various mesne assignments acquired all the right, title and interest of the lessors, Walker and McLennan; that on August 17,1915, for valuable consideration, the lessors had released and discharged the defendant from liability. To this plea plaintiff filed a replication denying its material averments.

The plaintiff attached to his declaration a copy of the instrument sued on and also an affidavit by his agent as follows:

“That the demand of the plaintiff in the above entitled cause is for rent due and payable for the premises described in the lease attached hereto as Plaintiff’s Exhibit ‘A’ for a period of time from, to-wit, February 1, 1919, to August 1, 1920, both inclusive, at the rate of $250 per month, payable in advance on the first day of each and every month as stated in the attached lease.
“Affiant further states that there is due to the plaintiff from the defendant, after allowing him all just credits, deductions and set-offs, the sum of $4,500.”

The defendant, by his agent, filed with his pleas an affidavit in which he stated:

“That he verily believes that the defendant has a good defense to this suit upon the merits, to the whole of the plaintiff’s demand, and that the nature of such defense is the cancellation on or about the 4th day of February, 1919, of the said lease of August 17, 1915, and the release and discharge of the defendant from liability thereunder, in consideration of the payment by the defendant of the sum of $1,000 and the sale and transfer by the defendant of certain furniture and fixtures situated at 1200-1202 North State street, Chicago, Illinois.”

The plaintiff offered evidence in support of his claim. The defendant offered no evidence tending to support the defense set up in his affidavit, and the plaintiff, relying upon section 55 of the Practice Act (see Cahill’s St. ch. 110, ¶ 55, Smith-Hurd Ill. Rev. St. 1925, chapter 110, p. 1958), contends that where a plaintiff files an affidavit in his declaration showing the nature of his claim, the defendant files with his pleas an affidavit specifying the nature of his defense; that the issues are joined on the affidavits, and the respective parties are limited in their proofs to the demand or defense specifically stated in the affidavits, and that all claims or defenses other than those set forth in the affidavits are waived. In other words, it was unnecessary in this state of the record for plaintiff to make proof of the material averments of his declaration, which were not denied by the affidavit attached to the defendant’s pleas, and, therefore, in the first instance, it was unnecessary for plaintiff to prove the execution, assignment, guaranty, amount of rent due, etc., as averred. If the plaintiff’s contention is sustained, it was clearly error for the court to instruct the jury to bring in a verdict for the defendant.

Section 55, Cahill’s St. ch. 110, ¶ 55, provides:

“If the plaintiff in any suit upon a contract, express or implied, for the payment of money, shall file with his declaration an affidavit showing the nature of his demand, and the amount due him from the defendant, after allowing to the defendant all his just credits, deductions and set-offs, if any, he shall be entitled to judgment, as in case of default, unless the defendant, or his agent or attorney, shall file with his plea an affidavit, stating that he verily believes the defendant has a good defense to said suit upon the merits to the whole or a portion of the plaintiff’s demand, and specifying the nature of such defense, and if a portion specifying the amount (according to the best of his judgment and belief), * * *.”

The history of this section of the Practice Act and the reasons which led to its enactment have been set forth in Harrison v. Rosehill Cemetery Co., 291 Ill. 416, and the opinion of the Supreme Court in that case stated that under the privilege of pleading as many matters as the defendant might see fit, it was not uncommon to file sham or fictitious pleas, which proved and constituted a defense at law, but which the defendant could not or did riot expect to prove. Delays in the administration of justice being thus caused, the statute was passed to compel the defendant to show by affidavit that he had a real defense.

The first enactment was in 1853, purporting to regulate the practice in the courts of Cook county, and provided in substance that in suits founded on a contract, defendant should not only file his plea but also an affidavit of merits, and, upon his failure so to do, plaintiff would be entitled to default against him. In 1872 a similar act was made applicable to the courts of the whole State and a statute substantially similar to section 55 was passed, with the exception that the defendant was not required in the affidavit to specify the nature of his defense. In 1907 the section was amended in such manner as to require the defendant, where plaintiff had filed his affidavit of claim, to file with his pleas an affidavit which specified the nature of his defense. The affidavit of merits must of course conform to the plea and show a defense under the pleas filed. In that case it was held that the affidavit filed by the defendant complied with the statute, and that the court erred in holding it insufficient, striking it from the files and entering the default of the defendant. That case, however, does not decide the exact point which is presented here.

In Reddig v. Looney, 208 Ill. App. 413, however, the precise question was, we think, decided. In that case the court instructed the jury that defendant in his affidavit of defense did not deny that certain labors and material sued for were furnished, and “that the jury must regard it as established that they were so furnished. ’ ’ The court there said:

“Instruction No. 1 is based on the position that whatever is not specified as a defense in such affidavit is waived, or that all plaintiffs ’ case not denied by the affidavit is conclusively admitted.”

The opinion in that case recites at length the history of section 55 of the Practice Act, formerly section 36 thereof, and points out that in Allen v. Watt, 69 Ill. 655, it was held, construing section 36, that where an affidavit was filed setting up a certain defense, it was the necessary implication therefrom that this was all the defense defendant had. The court held that the instruction given was not erroneous, but because of error in the giving of another and different instruction reversed and remanded the cause.

Reddig v. Looney, supra, is cited with approval by the Appellate Court of the second district in Goddard Tool Co. v. Crown Electrical Mfg. Co., 219 Ill. App. 34, the court in an opinion by Mr. Justice Heard stating:

“We have set forth the affidavits of claim and of merits in so much detail for the reason that by section 55 of chapter 110, Rev. Stats. of Illinois (J. & A. ¶ 8592), the respective parties are limited in their evidence to the matters controverted by the affidavits. Reddig v. Looney, 208 Ill. App. 413; Miller v. Thomas, 200 Ill. App. 125.”

In Humphreys v. Orrey, 220 Ill. App. 523, that being a case in which the plaintiff sued for rent, that court stated:

“In the present case, however, appellee, in his affidavit of merits, did not claim that the amount claimed by appellant in his affidavit of claim was too large but based his defense solely on the claim of payment to the administrator * * * and having done so cannot be heard to urge any defense not set up in the affidavit of merits,”

Reddig v. Looney has also been cited and relied on by the Appellate Court of the third district in Colfax Grain Co. v. Bradford, 225 Ill. App. 419.

Prior to the decision in Reddig v. Looney, supra, namely, at the October term, 1911, this court in the case of Kadison v. Fortune Bros. Brewing Co., 163 Ill. App. 276, was required to construe said section 55. That case was brought before this court by writ of error from the municipal court, and it appears from the opinion that by act of legislature that court had been made the sole judge of the applicability to said court of the rules of practice prescribed by law for similar cases in the circuit court. It had by rule in force at the time the suit in question was commenced, adopted a rule by which it was provided that section 55, as well as certain other sections of the Practice Act, should be held applicable to proceedings in that court. The suit in that case was brought by plaintiff as an assignee of the defendant’s lessor, and the plaintiff claimed for rent due on account of defendant holding over after the expiration of the lease. Plaintiff attached an affidavit of claim, and the defendant filed an affidavit of merits alleging in substance that it did not fail to deliver to the plaintiff the premises at the expiration of the term alleged, and that it was therefore not liable in any sum whatever. This court said:

“The purpose of requiring the affidavit of merits to set out the nature of the defense relied on was to give the plaintiff notice of the real defense to be presented and to limit the issues to be tried to the defense set out in the affidavit. All defenses, the nature of which are not set up in the affidavit, are considered waived and are unavailable on the trial.”

It was therefore held that neither questions as to the execution of the lease, nor the assignments of it, nor whether the plaintiff was the owner of the property, nor whether such an owner could maintain an action for liquidated damages, were issues in the case.

In Weinberger v. Werremeyer, 224 Ill. App. 217, this court had occasion to pass upon an appeal by the defendant from a judgment entered against him in an action for negligence in failing to keep and restore in good condition an automobile of which he was bailee. The defendant had filed an affidavit of merits, and it was urged on appeal that no proof had been introduced on the trial as to plaintiff’s damages. We there said:

“This part of the statement is not denied in the affidavit of merits, and hence plaintiff was not called upon to submit proof of these allegations. In any event the attention of the trial court should have been called to the alleged insufficiencies of the statement of claim before the cause was submitted to the jury.”

In Sears, Roebuck & Co. v. Mears Slayton Lumber Co., 226 Ill. App. 287, the defendant appealed from a judgment against him in the sum of $441.26 for the value of a house and it was urged for reversal that the proof was insufficient to show the value of the house. The third division of this court said:

‘ ‘ There is no denial in the affidavit of merits that the house was not of the value .alleged in the statement of claim. The allegation of value, therefore, stood admitted and no proof was necessary.”

Other cases in which the Appellate Court of this district has made similar rulings are Greeman Bros. Mfg. Co. v. M. L. Nelson Furniture Co., 191 Ill. App. 494; Clinton Co. v. Stiles, 197 Ill. App. 505; McGovern v. City of Chicago, 202 Ill. App. 139. It is true, as pointed out in Reddig v. Looney, supra, that in some of these cases the decisions might have been placed upon the ground that by other rules of the municipal court of Chicago material averments of fact, with certain exceptions, not denied by the affidavit of merits, were to be taken as true. The decisions, however, have not been based upon that ground.

Later decisions, however, of the Appellate Court of the second district, without distinguishing or overruling any of the cases to which we have referred, seem to lay down a contrary rule. Thus in Manufacturers State Bank, of East Moline v. American Surety Co, of New York, 230 Ill. App. 474, the plaintiff brought suit against a surety company on a bond given by the company to insure plaintiff bank against loss through theft, embezzlement or dishonesty of one of its employees. One of the provisions of the surety bond was that the liability of the surety company was conditioned upon a claim being made against it within three months from the discovery of the loss by the employer. The declaration averred that this provision had been waived, and an affidavit, as required by section 55, was attached to the declaration. The defendants filed pleas of general issue and an affidavit of defense, this affidavit stating the defense to be that Taze, the employee, was not guilty of the theft, etc., as charged. Defendants ’ affidavit of merits made no reference to the averment of the declaration regarding the waiver of this provision, and it was argued upon appeal by plaintiff, who recovered judgment, that the failure to include this defense in the affidavit amounted to an admission of the truth of the averment in the declaration as to the waiver. The opinion states that the decisions are easily reconciled with each other; that in McGovern v. City of Chicago, supra, the affidavit presented only the defense of payment, and it was held that other defenses had been waived; that in Reddig v. Looney, supra, the defendant had not been permitted to show that certain labors and materials were not furnished as charged in the declaration. The court, however, said:

“The legislature of 1907 never intended to lessen the amount of proof necessary to be offered by the plaintiff in support of his demand nor to relieve him of the duty of proving the material averments of his declaration, just as he had always been required to do.”

And because the plaintiff had failed to offer evidence tending to sustain the allegation of a waiver of the provision of a notice within three months, the judgment was reversed. The court said in effect, and cited cases tending to show, that it had always been a plaintiff’s duty to prove a waiver averred in his declaration. The court further said:

“It is true that in some of the opinions written upon this subject it is stated that the ‘issues’ to be tried are limited to the defenses set out in the affidavit. The word ‘issues’ as here used refers only to the defenses.”

This decision was rendered at the August term, 1923, and was followed in the case of McPherson v. Board of Education of Waukegan Tp. High School Dist., 235 Ill. App. 426, in an opinion rendered in January, 1925, by the Appellate Court of the same district. That was a case where the plaintiff, a school teacher, sued for an alleged balance due under a contract of employment as a teacher. He filed his declaration and attached an affidavit of claim, claiming a balance due of $411.82. The defendant filed the general issue, and a special plea in which it was averred that the plaintiff had resigned. With these pleas the defendant filed an affidavit setting up that the plaintiff had assaulted one of the pupils and thereafter terminated his contract and withdrew from the employment. Upon the trial the plaintiff offered evidence on the question of damages, but the court ruled that as the affidavit of defense failed to controvert the allegation of damages made in the declaration, the amount of damages was not in issue but admitted by the pleadings. When the defendant undertook to cross-examine the plaintiff for the purpose of determining the amount of damages, an objection was sustained on the same ground, and at the close of the evidence the court instructed the jury that if they found the issues for the plaintiff they should fix his damages at the amount stated in his affidavit. This was assigned for error, and the Appellate Court held that the special pleas could not be utilized as a waiver of allegations of the declaration, even though the averments of such pleas were inconsistent with the denial under the general issue; that under the general issue every material allegation of the declaration must be proved as alleged, and if they were not proved the party bringing the suit had not made out a cause of action; that while it was true, as far as defendant’s defense was concerned, it was limited to the defense set out in the affidavit attached to the pleas, this did not relieve plaintiff of the necessity of proving every material allegation of his declaration.

The many decisions of the courts of this district to which we have referred preclude this court from accepting the interpretation of section 55 as expressed in these last two cases. The statute in question is remedial in its nature, not in derogation of the common law, and should, we think, be liberally construed to the end that the injustice of delaying litigants in the collection of their just claims may be obviated. It is true that the affidavits do not take the place of the pleadings, but the evidence to be offered and the issues to be tried are limited to the issues as made by the pleas as verified by the affidavits. When the plaintiff has filed an affidavit with his declaration, pleas avail nothing unless they also are verified, and only to the extent that the material facts alleged therein are supported by the affidavit of defendant. It can hardly be supposed that it was the intention of the legislature to require a plaintiff to offer proof upon the trial of a cause which the defendant would be precluded from denying.

The rule of the municipal court to the effect that averments of fact in a pleading which are not denied are admitted to be true, states only a general rule, which has from its first existence been applied by the courts of this State. Dana v. Bryant, 1 Gilm. (Ill.) 104; Affeld v. People, 12 Ill. App. 502, and see the numerous cases cited in Puterbaugh’s Common Law Pleading and Practice (10th Ed.), sec. 127, p. 133. This rule indeed states only a general principle which is applied by the courts to the statements in the everyday affairs of life. It has, for instance, been held that a purchaser, who upon the tender of goods states a reason for rejecting them, waives all reasons other than those actually stated. Olcese v. Mobile Fruit S Trading Co., 112 Ill. App. 281; Cary Maple Sugar Co. v. Pierre Viau Maple Co., 173 Ill. App. 93; Littlejohn v. Shaw, 159 N. Y. 188; Ohio & Mississippi Ry. Co. v. McCarthy, 96 U. S. 258; Oakland, Sugar Mill Co. v. Fred W. Wolf Co., 118 Fed. 239.

If such a rule is to be applied to statements made in the ordinary business of life, how much more reasonable that it should be applied to a statement in writing, made on advice of counsel and under oath in a suit at law. Applying this same rule to the facts of this case, we hold that the issues to be tried were limited by the affidavits of the respective parties; that the only defense -set up in the affidavit of the defendant was an affirmative one, and that in this condition of the record when the cause was set down for trial, the duty was cast upon the defendant of establishing in the first instance the affirmative defense set up in its pleas as limited by its affidavit of merits, and that all other material facts not put in issue should have been regarded as admitted.

The defendant, however, contends that the judgment should be affirmed because, he says, the declaration does not state a cause of action. In the first place, it is argued that there was no averment in the pleadings, nor proof in the evidence, as required by section 18 of the Practice Act, Cahill’s St. ch. 110, ¶ 18, as to assigned causes of action. Allis-Chalmers Mfg. Co. v. City of Chicago, 297 Ill. 444; Gallagher v. Schmidt, 313 Ill. 40, and other cases construing that section of the statute are cited.

The pleadings, however, disclose that plaintiff’s suit is brought and maintained under the provisions of section 14 of the Landlord and Tenant Act, Cahill’s St. ch. 80, ¶ 14, Smith-Hurd Ill. Rev. Stat. 1925, chapter 80, p. 1610. That section, not section 18, is applicable. (See Barnes v. Northern Trust Co., 169 Ill. 112, and Barr v. Florentine Alabaster Co., 174 Ill. App. 256.)

It is further urged that the written documents set up are not attached to the declaration or any part thereof; that disregarding these, the declaration contains only incomplete statements and conclusions. Apparently the defendant has neglected to notice that the declaration contains the common counts. It may be that the special count is subject to criticism, but defendant did not attempt to raise that question by demurrer or in any other manner. We think the count good after verdict. J. R. Watkins Medical Co. v. Bailey, 217 Ill. App. 460.

Defendant also contends that plaintiff, having assumed in the trial court the burden of proof and having-tried his case upon the theory that it was necessary to prove the material averments of the declaration, cannot change that theory and adopt a different one in the Appellate Court. Lewy v. Standard Plunger Elevator Co., 296 Ill. 295, and many similar cases are cited. The rule there stated applies only to the assuming of inconsistent positions. The fact that plaintiff offered evidence in the trial court is not inconsistent with the position which he takes here, namely, that under the pleadings, defendant having failed to offer any proof tending to sustain the averments of his affidavit of defense, the material averments of the plaintiff’s affidavit should have been considered as proved, and that it was therefore error for the trial court to instruct the jury to bring in a verdict for the defendant.

Indeed, the plaintiff contends that, irrespective of section 55, the proof offered was sufficient to require the submission of the issues to the jury. That question we think it is unnecessary for us to decide.

We hold that the instruction to find for the defendant was erroneous, and for that error the judgment is reversed and the cause remanded for another trial.

Reversed and remanded.

O’Connor and McSurely, JJ., concur,


author: Mr. Justice McSurely

text:
    Henry Simon, Appellee, v. South End Cleaners & Dyers, Inc., Appellant.
    Gen. No. 31,882.
    1. Usury — right of corporation to pay any rate of interest. A corporation cannot refuse payment of a loan on the ground that certain agreements of the contract for the loan constitute usury, in view of Cahill’s St. ch. 32, ¶ 6, providing a corporation may borrow money at any rate, and chapter 74, paragraphs 4, 5, 6, providing that parties may agree on, pay and take any interest on money loaned to a corporation.
    2. Usury — when contract for loan and for work at less than market price not usurious. A contract which provided for a loan at interest and also for work to be done by the borrower at less than the market price was of two-fold nature and not usurious in view of there being no showing of fraud.
    3. Usury — when question cannot be raised. It is too late to raise the question of usury after a loan has been paid and the chattel mortgage securing it has expired or been released.
    4. Evidence — inadmissibility of market price to vary contract price. Evidence was rightly refused as to the market price of work being greater than that fixed by a contract between entirely competent parties.
    5. Usury — degree of proof requisite. Usury must be definitely proven to be availed of as a defense.
    Appeal by defendant from the Municipal Court of Chicago; the Hon. Arnold Heap, Judge, presiding.
    Heard in the first division of this court for the first district at the March term, 1927.
    Affirmed.
    Opinion filed October 10, 1927.
    Max M. & Samuel Grossman, for appellant.
    E. M. Votaw, R. C. Baumgartner and Harris F. Williams, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.

Plaintiff, bringing suit to recover liquidated damages for a breach of a written contract, had judgment for $500 upon an instructed verdict. Defendant appeals.

The breach of the contract is conceded by defendant, and the contract provided that in this event it should pay the sum of $500 as liquidated damages. The defense is that the contract was for a loan from plaintiff to defendant at 6 per cent per annum and the defendant was also to perform other conditions, which amounted to an agreement to pay a usurious rate of interest.

Even if the contract was usurious, this would not avail the defendant, an Illinois corporation; for the reason that in this State a corporation may make a valid and binding agreement to pay any rate of interest, even beyond the legal rate. Subsection 7, section 6 of the statute on Corporations, chapter 32, Cahill’s St. ch. 32, ¶ 6, subd. 7, provides that a corporation has the power “To borrow money at such rate of interest as the corporation may determine without regard to or restrictions under any usury law of this State and to mortgage or pledge its property, both real and personal, to secure the payment thereof.” This was the law at the date of the instant contract and still is the law. In harmony with this the legislature in 1925 amended .certain sections of the Interest Act, chapter 74, section 4, Cahill’s St. ch. 74. Paragraph 4 was amended so as to provide “with respect to money loaned to or in any manner due and owing from a corporation, the parties may stipulate or agree upon any rate of interest whatsoever, and take and pay the same.” Section 5, Cahill’s St. ch. 74, ¶ 5, provides that no person should receive as interest any greater sum than as prescribed by law “except from a corporation,” and the same exception as to a corporation is found in section 6, Cahill’s St. ch 74, ¶ 6. It follows, therefore, that the defendant could make a lawful contract to pay such rate of interest as it might determine. We are not referred to any adjudicated cases, but the language of the statute is clear and unambiguous. Defendant does not attempt to controvert this point.

However, an inspection of the contract leads us to the conclusion that it is not usurious. Both parties conduct dyeing and cleaning establishments in Chicago. Plaintiff desired to turn over his work of this sort to the defendant, and prior to the contract in question had another contract with it, whereby he agreed to lend it certain moneys for a specified rate of interest and defendant agreed to do his dyeing and cleaning work at specified rates. When this contract expired the parties desired to make another similar contract, and in January, 1922, the contract in question was made and signed by both parties. In it Simon, the party of the second part, agreed to lend the defendant $5,000, the principal to be repaid in instalments and the amount remaining unpaid to draw 6 per cent interest. This was secured by a chattel mortgage upon the goods of the defendant. The defendant also agreed to do such work — cleaning, dyeing and finishing — for the plaintiff as would be required, to the extent of $300 worth of work a week, said work to be done at certain specified prices which are detailed in the contract. There was also a provision that when bills were paid the plaintiff, the party of the second part, should be allowed certain discounts, depending upon the amount of his payments. The contract was to run 50 months, viz, until March 20, 1926. There was also the provision that should the party of the first part, the defendant, fail to perform the terms and conditions of the contract it should become liable to pay the plaintiff as liquidated damages the sum of $500. In September, 1924, the ownership of the defendant changed and the new owners refused to carry out the contract. The amount of the loan with interest has been paid in full. Plaintiff claims that because of the breach he is entitled to recover the amount agreed upon as liquidated damages.

The theory of the defendant apparently is that the specified prices at which it agreed to do plaintiff’s work, with the discounts, are less than the market prices, and therefore this difference represents an additional amount of interest which the defendant contracted to pay. We do not so construe the contract. It is twofold in nature: First, the agreement for the loan of $5,000 at 6 per cent interest, and, second, the agreement for the defendant to do the work for plaintiff at specified rates. Even when the loan was paid, the contract with reference to the work still continued. The agreement with reference to the work was for the benefit of both parties. Simon apparently did not have the equipment for this work and the defendant was satisfied to secure his business. A contract somewhat similar in nature was considered in Norwood & Co. v. Faulkner, 22 S. C. 367, where the court said that the object of the contract was not merely to secure the return of money advanced, but also to promote their business, and that plaintiffs very naturally endeavored to take all lawful means of extending their business. They required not only that the defendant should " secure them the repayment of any advances they might make, with lawful interest thereon, but in order to further their primary object, required the defendant also to ship them cotton, the main staple of their business.” Also in Cockle v. Flack, 93 U. S. 344, it was held that one might not only loan money at lawful interest rates, but also on such terms as would be advantageous to its business. We see nothing illegal in such an arrangement.

There is no evidence that this was a fraudulent device to cover up usurious interest. The parties worked together under a similar contract for a year and a half before the instant contract was drawn and nearly three years and three months under the present contract. Objection was for the first time made when new parties bought the controlling interest of the defendant company.

It is a fair inference from the record that the note has been paid and the chattel mortgage securing it has been released or has expired. They are no longer in existence as liens. It has been held that it is too late to raise the question of usurious interest after the loan has been paid and the matter closed. Mason v. Pierce, 142 Ill. 331.

There was no error in the refusal by the court to admit evidence as to the market price of work called for by the contract, even if there was a market price. The parties were entirely competent to agree upon the rate of compensation for the work specified, and the market prices were immaterial.

It is a well-established principle that usury to be availed of as a defense must be definitely proven. Wilson v. Kirby, 88 Ill. 566; Mosier v. Norton, 83 Ill. 519; Stanley v. Chicago Trust & Savings Bank, 165 Ill. 295; Home Building & Loan Ass’n v. McKay, 217 Ill. 551, and many other cases. Even if the defendant corporation could raise the defense of usury, its proof failed in this respect.

Under the law and the facts the judgment is proper and is affirmed.

Affirmed.

Matchett, P. J., and O’Connor, J., concur.


text:
    Thomas Skelers et al., Appellees, v. Edward I. Meyer et al., Appellants.
    Gen. No. 31,988.
    1. Injunctions — when breach of lease restrained before lease term begins. A preliminary injunction is properly issued before a lease term begins, to restrain the lessor from leasing adjacent property contrary to the terms of the prior lease on the property in dispute.

      2. Injunctions — when breach of lease properly restrained without notice. A preliminary injunction without notice was properly issued to restrain a lessor from leasing property adjacent to that under a prior lease and contrary to its terms, in view of promptness being required to prevent such infraction.
    3. Injunctions — when bond not required on. A bond need not be required, in the court’s discretion, of complainants for a preliminary injunction which will only deprive lessors of their chance to lease property contrary to the terms ,of their lease with complainants who have put in escrow a cash deposit to guarantee compliance with their lease.
    Appeal by defendants from temporary injunction order issued by the Circuit Court of Cook county; the Hon. Ira Ryner, Judge, presiding.
    Heard in the first division of this court for the first district at the March term, 1927.
    Affirmed.
    Opinion filed October 10, 1927.
    Two rehearings denied October 24, 1927.
    Lowenhaupt & Wolff, for Edward Meyer and Robert Meyer, appellants. Slottow & Leviton, for William Nelson, appellant; Charles Leviton, of counsel.
    Moses, Kennedy, Stein & Bachrach, for appellees; Robert Bachrach and Isaac E. Ferguson, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

Defendants appeal from a preliminary injunction restraining them from leasing and renting certain premises. .

Complainants’ bill shows that March 9, 1927, they entered into a lease with defendants, Edward I. Meyer and Robert Meyer, as lessors, for a storeroom to be erected by lessors in accordance with certain plans and specifications referred to in the lease. The lease was to begin June 1, 1927, and run for five years. At the time it was executed $1,800 was placed by the lessees (complainants here) in escrow with the lessors’ attorney to be delivered to lessors as security for the payment of rent. The storeroom leased was to be erected as a part of a building containing other storerooms and the lease expressly provided that the lessors would not lease any part of said building other than said storeroom for use as a restaurant or chop suey establishment. Complainants allege in their bill filed April 30, 1927, that the new building would include a certain space, 12 by 20 feet, in the rear of the space leased to lessees, which the defendants were about to complete and deliver possession of to one William Nelson under a lease to him, to be used by him as an addition to a restaurant he was then occupying. The bill of complaint was accompanied by affidavits, and thereupon the injunctional order was issued restraining Edward Meyer, Robert Meyer and William Nelson from renting, leasing, using or permitting to be used the said rear space as a restaurant or chop suey establishment or in connection with or as a part of the restaurant then occupied by said Nelson.

Defendants first urge that the injunction issued April 30, 1927, is wrong because complainants had no rights which might be preserved until the commencement of the term of the lease, which is June 1, 1927. There is no merit in this. It has been repeatedly held that it is one of the most valuable features of equity jurisdiction to anticipate and prevent a threatened injury, especially where the consequent damages would be insufficient or difficult to determine. To have waited until June 1, when the lessees’ term began, before applying for injunctional relief, would have permitted the contemplated wrong to be consummated, and defendants might then have raised the point that by standing by without opposition complainants had waived the restrictive covenants of the lease. It was a situation peculiarly appealing to the equitable discretion of the chancellor, and the injunctional order was properly issued. Such action is in line with many decided cases. VanSant v. Rose, 260 Ill. 401; Anderson v. Hultberg, 117 Ill. App. 231; Garden City Sand Co. v. Southern Fire Brick & Clay Co., 124 Ill. App. 599, 223 Ill. 616; Thomas Cusack Co. v. Mann, 160 Ill. App. 649; Standard Fashion Co. v. Siegel-Cooper Co., 157 N. Y. 60, 43 L. R. A. 854; United Cigar Stores Co. of America v. Levin, 198 App. Div. 268, 190 N. Y. S. 469; Pomeroy’s Equity Jurisprudence (4th Ed.), vol. 4, sec. 1708; High on Injunctions (4th Ed.), vol. 2, sec. 1134.

Objection is next made to the issuing of the injunction without notice. The chancellor might well have been of the opinion that if notice had been given to the defendants they would have proceeded at once to consummate the proposed violation.of the covenants of the lease. Under the circumstances the effectiveness of the injunction would largely depend upon the promptness with which it was issued. We think it sufficiently appears that the rights of the complainants might have been unduly prejudiced if notice had been required. Cases approving the issuance of an injunctional order without notice are Stafford v. Swift, 121 Ill. App. 508; Village of Itasca v. Schroeder, 182 Ill. 192. Every such case depends upon its peculiar facts, and citations covering different situations are not helpful.

The same is true with reference to the issuance of the injunction without bond. The only result of the injunction is to deprive the defendants of the use of certain space in their new building in direct violation of the covenants of the lease. We can see no good purpose which would be served by requiring complainants to file a bond, especially as they have already put up a cash deposit of $1,800 with the lessors’ attorney. Requirement of a bond is largely within the discretion of the chancellor, and his order in this respect will not be disturbed unless there is a clear showing of an abuse of discretion. City of Kewanee v. Otley, 204 Ill. 402; New Ohio Washed Coal Co. v. Coal Belt Ry. Co., 116 Ill. App. 153; Young v. Federal Union Surety Co., 183 Ill. App. 278; West Side Hospital of Chicago v. Steele, 124 Ill. App. 534.

The preliminary injunction was proper and is affirmed.

Affirmed.

Matchett, P. J., and O’Connor, J., concur.


author: Mr. Justice O’Connor

text:
    The Baltimore & Ohio Railroad Company, Appellee, v. Denney & Company, Appellant.
    Gen. No. 31,861.
    1. Carriers — jurisdiction to determine reasonableness of freight charges. A court has no authority to pass upon the reasonableness or unreasonableness of freight charges on an interstate shipment, but the question is one for the Interstate Commerce Commission.
    2. Carriers — what is not cause for continuance of freight rate case. A defendant cannot ask that a ease be continued till the reasonableness of freight rates sued for can be determined without a showing of any action therefor before the Interstate Commerce Commission or positive assurance of future action.
    3. Carriers- — showing necessary to sustain icing charge. A carrier cannot collect a charge for icing freight nearly 23 hours after a diversion order without showing that it was not guilty of negligence in failing to ice sooner.
    4. Appeal and error — when judgment entered in Appellate Court. Proper judgment may be entered in the Appellate Court in case there was no jury and the facts' were stipulated.
    Appeal by defendant from the Municipal Court of Chicago; the Hon. Theodore F. Ehler, Judge, presiding.
    Heard in the first division of this court for the first district at the March term, 1927.
    Reversed and judgment here.
    Opinion filed October 10, 1927.
    O’Connell, McGlinn & O’Gallagher, for appellant; Thomas Donnelly, of counsel.
    H. D. Sheean and E. W. Lademann, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.

Plaintiff brought an action against the defendant to recover $54 claimed to be due for transportation charges, icing, and other services rendered. There was a trial before the court without a jury and a finding and judgment in plaintiff’s favor for $52, and defendant appeals.

Plaintiff set up in its statement of claim that there was a balance due it for freight charges on a shipment of a mixed carload of spinach and parsley, which was transported from Laredo, Texas, to St. Louis, Missouri, and there diverted to Washington, D. C.; that plaintiff had collected from the defendant for its services $372.40, but that the correct amount was $426.40; that the error occurred by reason of the fact that the car was billed as a straight carload of spinach, when in fact the car contained spinach and parsley, and that the charges were higher on the latter than the former. In its statement of claim there was an item of $2.40 for icing the car at St. Louis and a further charge of $2 for what is designated as “car service” at St. Louis, Missouri.

The defendant filed an affidavit of merits in which it set up that it had paid the plaintiff $372.40 as plaintiff alleged; that the correct charge according to the tariffs on file with the Interstate Commerce Commission was $422, but that this charge was unreasonable to the extent of $49.60; that the charge plaintiff made for the two items of $2.40 and $2 above mentioned, was erroneous; that defendant had paid these two items and that they should be refunded. The facts were stipulated and from them it appears that the proper" freight charge for transporting the car in question, as shown by the tariffs filed with the Interstate Commerce Commission, was $422, as plaintiff alleged and as defendant admitted.

The defendant contends that the charge for freight was unreasonable and the court should have so found; or, in the event it was held that the court had no such authority, the cause should have been continued until it could have had the matter heard before the Interstate Commerce Commission. It has been repeatedly held that a court has no authority to determine the reasonableness or unreasonableness of freight charges, but that this is a matter for the Interstate Commerce Commission. Texas & P. Ry. Co. v. Abilene Cotton Oil Co., 204 U. S. 426; Mitchell Coal & Coke Co. v. Pennsylvania R. Co., 230 U. S. 247. Nor do we think there is any error in the refusal of the court to continue the case so that the defendant might take the matter of the alleged unreasonableness of the rates up with the Interstate Commerce Commission. The record shows that the defendant had filed an “informal complaint with the commission, ’ ’ and that it had there been denied. There was nothing then pending before the Interstate Commerce Commission and there was no positive assurance that any action would be taken. Counsel for the defendant admit they have no case sustaining their contention on this point and no law is called to our attention that requires a continuance in such a situation. We think there was no error in the ruling of the court in refusing to continue the case.

The defendant further contends that the item of $2.40 paid for re-icing the car at St. Louis was an improper charge against it. The provisions of the tariff on file with the Interstate Commerce Commission, pertaining to the point under consideration, are paragraph D of Rule 200 and paragraphs A and D of Rule 225. Paragraph D of Rule 200 provides: “State refrigeration charges shown herein include the services of icing and reicing from point of origin'to final destination except as otherwise provided in Rules Nos. 75, 215 and 225. ’ ’ Paragraph A of Rule 225 is headed as follows: “Re-icing at intermediate, stop or hold points at reconsigning points and final destinations.” And that paragraph provides: ‘ ‘ (A) When cars are stopped or held at any intermediate points between origin and final destination on orders of or awaiting reconsigning or other instructions from shipper, owner or consignee, carrier will examine bunkers or tanks daily, and when such cars require additional ice they will be re-iced to capacity and when ordered forward from such intermediate point bunkers or tanks will be re-iced to capacity before forwarding. (See Paragraph ‘D.’)” Paragraph D is as follows: “(D) When cars are stopped or held at any intermediate point between point of origin and final destination on orders of, or awaiting reconsigning instructions from shipper, owner or consignee, a charge as published in Section No. 4 of this tariff will be made for all ice which may be supplied at such intermediate, stop or reconsigning point and collected in addition to all other charges.”

The facts as stipulated show that the car arrived at St. Louis, Missouri, at 1:55 p. m. on March 14, 1923; that it was reconsigned by the defendant to Washington, D. C. at 2:25 p. m. on March 15, 1923, and that the car was reiced at St. Louis, Missouri, at 1:15 p. m. on March 16, 1923. The charge made for this icing was $2.40. The defendant’s contention is that under the rules of the tariff, which we have above quoted, the charge of $2.40 could not be properly made against it because the car was not awaiting a reconsigning order when the icing was done, but on the contrary the car was ordered to-Washington at 2:25 p. m. on March 15 and the icing was not done until nearly 24 hours thereafter. We had occasion to consider the identical paragraphs of the tariff in the case of the Union Pac. R. Co. v. Denney & Co., 237 Ill. App. 483, where a similar contention was made, and in passing on it we there said (p. 487): “It seems obvious that plaintiff could not always be in a position to immediately move the cars forward upon receiving the reconsigning orders. Some delay must inevitably take place, and in the instant case it being stipulated that there was no negligence on the part of the plaintiff (the railroad) we think defendant was required to pay for the icing.” It will be noted that in that case it was stipulated that there was no negligence on the part of the railroad in moving the car forward after it had received the reconsigning order. There is no such stipulation in the case at bar. All that appears is that the car was not re-iced until nearly 23 hours after the reconsigning order was given to the railroad company. Whether there was any negligence in this delay is not disclosed, and since plaintiff is contending that it is entitled to the $2.40, we think it was incumbent upon it to show that it was not guilty of any negligence in failing to ice the car sooner. It had all the facts in its possession. We made a somewhat similar ruling in the case of Alton v. Mineral Point & Northern Ry. Co., 222 Ill. App. 105. From what we have said it follows that the judgment was entered for $2.40 too much, but since there was no jury and the facts are stipulated, we can enter the proper judgment here without remanding.

The judgment of the municipal court of Chicago is reversed and judgment entered in this court in favor of the plaintiff against the defendant for $49.60. The defendant will be required to pay the costs in this court.

Judgment reversed and judgment here.

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


text:
    C. O. Kinn, Appellant, v. Otto P. Slyde, Appellee.
    Gen. No. 31,870.
    1. Landlord and tenant — when failure to heat premises relieves from rent payment. A tenant may refuse rent payments if he vacates the premises upon the landlord failing to furnish the heat required by the lease.

      2. Landlord and tenant — requisites of constructive eviction. There cannot be a constructive eviction without surrender of the -premises.
    3. Landlord and tenant — how right to refuse rent payments waived. A tenant waives his right to refuse rent payments for a landlord’s failure to furnish heat required by a lease if he neglects to surrender possession of the premises within a reasonable time after the breach.

      4. Landlord and tenant — when tenant’s waiver of right to refuse rent is law question. Though generally a fact question, whether a tenant vacated premises by reason of the landlord’s failure to heat them early enough to entitle him to refuse to pay Tent is a law question if all reasonable minds reach the conclusion the time taken was unreasonable.
    5. Landlord and tenant — what tenant must prove to escape rent payment. The burden is on the tenant to show in an action against him for rent the failure of the landlord to furnish the heat required by the lease and his own due diligence in thereupon vacating the premises.
    Appeal by plaintiff from the Municipal Court of Chicago; the Hon. William E. Viner, Judge, presiding.
    Heard in the first division of this court for the first district at the March term, 1927.
    Reversed and remanded.
    Opinion filed October 10, 1927.
    Charles H. Havard, for appellant; W. P. Quinby, of counsel.
    No appearance for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.

Plaintiff, the landlord, obtained a judgment by confession against the defendant for $103.50 for rent claimed to be due under the terms of a written lease for the month of April, 1925. Afterwards the judgment was opened on motion of the defendant and he was given leave to defend. He filed his affidavit of merits and the cause was heard before the court without a jury. There was a finding and judgment in defendant’s favor and plaintiff appeals.

The record discloses that the defendant was a tenant under a written lease covering a period from May 1, 1924, to April 30, 1925. The lease was for an apartment in a building which consisted of 60 apartments. On March 19, 1925, the defendant moved out and paid his rent to April 1, 1925. His claim is that he is not liable for the month of April because he was constructively evicted from the premises by the landlord.

The defendant in his affidavit of merits set up, inter alia, that the landlord did not furnish hot water as the lease required, but that he was compelled to heat his own water; that several times during November, December and January he took the temperature of the apartment with a thermometer and that the heat was as low as 48 and 50 degrees; that because of the coldness of the apartment defendant’s wife became ill and could no longer live in the apartment; that he frequently called the matter to the attention of plaintiff and his agent and gave a written notice by registered mail that he was moving from the apartment because of the lack of heat and hot water.

Defendant testified on the trial that during the months of November, December, January and February the apartment was so cold that he and his wife had to sit around in the evening with their wraps and overcoats on to keep comfortable; that the temperature as shown by the thermometer was as low as 48 and 50 degrees during the coldest weather in the months of November, December, January and February, and that he frequently advised plaintiff and his agent of this condition but without result. Defendant then offered in evidence written memoranda showing the temperature of the apartment on December 13, 21, 22 and 30, January 12 and 13, February 25 and March 7, the latter showing the temperature at 10 o’clock p. m. was 59 degrees.

One Hart testified on behalf of the defendant that he visited the defendant at the apartment in the months of December, January and February and stayed all night, and that on some occasions it was so cold that they had to put their wraps on to keep warm.

In rebuttal plaintiff ’s agent testified that the defendant had made complaints of lack of heat in the months of December, January and February, but that no attention was paid to them because he considered the defendant a trouble-maker; that he was the only tenant in the building that made any complaint on the ground of lack of heat; that the heating system in the building was known as the automatic vacuum system, having two large oversized Herbert boilers; that there was a maintenance man at the building who was known as a trouble-man, to remedy matters in case anything was found wrong.

It will be noticed, from the evidence, that no witness testified that any complaint had been made on account of the - lack of heat during the month of March, but the testimony covers only November, December, January and February. The only mention made of March appears in the memoranda taken by the defendant, which indicated that on March 7 the temperature in the apartment was 59 degrees at 10 o’clock p. m.

Under the evidence in the record we are of the opinion that if the court believed the testimony of the defendant, the court would be warranted in holding that the defendant might legally have vacated the premises during the months of November, December, January and February, but defendant did not vacate during these months. The evidence as to the temperature of the apartment in March is very meager.

The law has long been firmly established in this State that a tenant may abandon the premises where the landlord fails to furnish heat as required by the lease. Lawler v. McNamara, 203 Ill. App. 285. But to relieve the tenant from the payment of rent he must vacate the premises. There cannot be a constructive eviction without surrender of the premises. Keating v. Springer, 146 Ill. 481. It is also the law that where a tenant fails to surrender possession after the commission of acts by the landlord which would justify the tenant in abandoning the premises, he will be deemed to have waived such right and will be liable for the rent at least during the time he occupies the premises. It is also the law that where the landlord fails to furnish heat as required by the lease and the temperature is such that the tenant would be warranted in vacating the premises, the tenant is not obliged to vacate at once, but is entitled to a reasonable time after such breach; and what is a reasonable time is generally a question of fact. Hartenbauer v. Brumbaugh, 220 Ill. App. 326; 36 C. J. 324; New York State Investing Co. v. Woolf, 84 Misc. 66, 145 N. Y. S. 945; Wood on Landlord and Tenant, p. 800; General Industrial & Manufacturing Co. v. American Garment Co., 76 Ind. App. 629; Minneapolis Co-Operative Co. v. Williamson, 51 Minn. 53. And while it is generally a question of fact whether the tenant vacated the premises within a reasonable time after breach by the landlord, yet such question may be a question of law where all reasonable minds reach the conclusion that the time was unreasonable.

In the instant case plaintiff having occupied the premises for the months of November, December, January and February, and having paid rent for those months, he waived any right to vacate the premises on account of lack of heat during those months (Keating v. Springer, supra), but not for subsequent breaches. Vintaloro v. Pappas, 228 Ill. App. 182, same case affirmed 310 Ill. 115. And as stated the evidence as to the temperature of the apartment in March is most meager. There is no evidence at all that the defendant after the 7th of March did anything towards securing another apartment or some other place as a residence, except the fact that he moved out on the 19th of that month. Whether the defendant was warranted in vacating the apartment during the month of March, and whether he acted with that diligence which the law requires, we are unable to say because there is no evidence on these points. The burden was upon defendant to make such showing, and he having failed to do so, the judgment of the municipal court of Chicago is reversed and the cause remanded.

Reversed and remanded.

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