author: Mr. Presiding Justice McSurely

text:
    New York Hamilton Corporation, Appellee, v. First Illinois Company, Appellant.
    Gen. No. 33,627.

      Opinion filed April 28, 1930.
    John P. Barnes and Clarence N. Boord, for appellant.
    Silber, Isaacs, Silber & Woley, for appellee; Martin J. Isaacs and Clarence J. Silber, of counsel.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.

Plaintiff brought suit in assumpsit to recover an amount claimed to be due on a written contract. Defendant filed its amended affidavit of defense which, on motion of plaintiff, was stricken for insufficiency of law and judgment was entered for plaintiff in the sum of $8,852.47, from which defendant appeals, presenting in this court only the question of the sufficiency of its amended affidavit of defense.

Plaintiff alleged a written promise by defendant to buy back certain bonds and its refusal to do so and plaintiff sought to recover the contract price. Defendant’s affidavit of defense asserted (1) that it did not promise as plaintiff alleged; (2) that the written contract is unilateral and void; (3) and (4) that title to the bonds did not pass to defendant; hence it was liable, if at all, only for damages suffered and not for the purchase price of the bonds.

Does the affidavit of defense sufficiently comply with li 55, chapter 110, Cahill’s Illinois Statutes, which provides that plaintiff shall be entitled to judgment, as in case of default, unless the defendant shall file an affidavit that he has a good defense “and specifying the nature of such defense”?

The declaration alleged that on December 17, 1927, in Chicago, the defendant executed a written contract as follows: (The contract was also executed by Link, Fetter & Company, but as this company does not appear in this suit we shall hereafter omit all reference to it.)

“The undersigned, . . . First Illinois Company, for value, hereby deliver to New York Hamilton Corporation, Forty-two thousand five hundred ($42,-500) Dollars principal amount of. . . Bonds of Continental Properties Corporation, and hereby. . . promise to New York Hamilton Corporation and undertake that sufficient principal amount of these bonds will be purchased from New York Hamilton Corporation at the principal value thereof, so as to put New York Hamilton Corporation in funds to pay as they fall due, certain notes of Duncan-Bankhead Company, Inc., to Edwin Dumble Company and certain notes of Henry S. Duncan to Louis Pizitz . . . the said Dumble and Pizitz notes falling due on the following dates and in the following amounts:”

Then follows a list of the notes, with dates of maturity, the first falling due in January, 1928, and one each month thereafter (except September), the last note falling due October 1, 1928. The aggregate amount of these notes is over $42,000. The declaration alleged that by this contract defendant for a good and valuable consideration undertook and promised to purchase from plaintiff bonds of the Continental Properties Corporation sufficient to enable plaintiff to pay from the purchase price thereof the promissory notes as they severally matured, as set forth in the declaration; that said notes were duly- paid by the plaintiff at maturity out of its own funds and that defendant has failed to purchase the bonds in amounts sufficient to enable the plaintiff to pay from the purchase price two of the notes due respectively July 1 and August 1, 1928. The affidavit attached to plaintiff’s declaration alleged that on and prior to the execution of the contract one Henry S. Duncan of Birmingham, Alabama, was indebted to plaintiff on obligations guaranteed by plaintiff in a sum upwards of $40,000; that payment thereof was partially secured by the pledge of certain personal property made by Duncan and that defendant, in consideration of the release by plaintiff of the liability and indebtedness of said Duncan and of the surrender of said security (except the liability of Duncan on the several promissory notes mentioned in the contract), then and there delivered to plaintiff bonds of the face value of $42,000, issued by the Continental Properties Corporation and thereupon undertook, promised and agreed to repurchase said bonds at their face value in an amount sufficient to discharge the indebtedness of said Duncan when and as said promissory notes became due and payable, and that thereafter defendant purchased bonds of said plaintiff in amounts sufficient to pay the several promissory notes excepting only two notes dated June 3, 1926, for the principal sum of $3,833.33 each, maturing July 1 and August 1, 1928, respectively; that both of said notes have long since become due and payable and that upon maturity plaintiff paid and discharged the same out of its own funds; that demand was made upon defendant to purchase the bonds of the Continental Properties Corporation sufficient in amount to reimburse plaintiff for the sums advanced by it in payment of said promissory notes and that such bonds have been tendered by plaintiff to defendant and plaintiff offered to deliver to defendant bonds at the face value equivalent to the sum due on said promissory notes.

Defendant first asserts in its affidavit of defense that it did not undertake and promise to purchase the bonds “as the plaintiff in its said declaration has alleged,” and points out that the contract says that “these bonds will be purchased” from the plaintiff and argues that this imposed no obligation upon defendant to purchase; that the contract means that the bonds “will be purchased” by some one — not necessarily by the defendant.

The contract must be construed by the court unless its meaning is so ambiguous and uncertain as to call for extrinsic evidence to ascertain its meaning. Graham v. Sadlier, 165 Ill. 95. In Armstrong Paint & Varnish Works v. Continental Can Co., 301 Ill. 102, it was held that the court in construing a contract should take into consideration the surrounding circumstances and should place itself as nearly as can be in the same situation as the parties who made the contract so that “it may view the circumstances as they viewed them and so may judge the meaning of the words.” In Schneider v. Neubert, 308 Ill. 40, it was said that if the meaning is so clear that no reasonable man could reach more than one conclusion, the court must construe the contract and for this purpose may consider the surrounding circumstances and its meaning need not be left to the jury unless, after considering the circumstances, there remains a doubt of its meaning; but if the extrinsic facts and circumstances are controverted, then the jury must determine the meaning of the contract.

The allegations of the declaration as to the circumstances surrounding the execution of the contract are not denied in defendant’s affidavit of defense. Henry S. Duncan was indebted to plaintiff in a sum upwards of $40,000, partially secured by a pledge of personal property, and the defendant, in consideration of plaintiff’s release of the liability and indebtedness of Duncan (except his liability on certain notes) and of the surrender of the security, delivered to plaintiff the bonds in question with an agreement and promise to repurchase them so as to put the plaintiff in funds sufficient to pay Duncan’s notes as they matured.

The contract, in its entirety, clearly indicates a plan to put the plaintiff in sufficient funds to pay Duncan’s notes as they matured. This could be effected only by the undertaking of defendant to purchase the bonds. To construe it, as defendant argues, namely, that some indefinite and undetermined party will purchase, would defeat its obvious purpose. Defendant by purchasing bonds and plaintiff by delivering them to defendant and paying Duncan’s notes as they matured carried out the plan in accordance with the terms of the contract and by this conduct evidenced their construction of the contract as imposing mutual obligations. Defendant cannot now be heard to claim it meant something else.

In the second paragraph of the affidavit of defense defendant asserts that the contract is void as unilateral and not binding upon it. It is argued that this is so because the plaintiff has not signed it. Most of the cases cited by defendant are cases where the parties contracted for the sale and purchase of standard supplies, and it was there held that, where one party was bound to sell and the other not bound to take, such contracts were void as lacking in mutuality. The instant contract is not of this kind. It is supported by an adequate consideration, — that is, the release by plaintiff of the liability and indebtedness of Duncan and the surrender of his securities. Defendant accepted the contract and repurchased the bonds as the contract provided, except as to two of the promissory notes last falling due. The plaintiff has fully performed its part of the contract and the defendant also has performed except with reference to said two notes. Where a party accepts or acts upon a contract in writing, it is effective even though he does not sign it. Stuckrath v. Briggs & Turivas, 329 Ill. 555, and cases cited. In Armstrong Paint & Varnish Works v. Continental Can Co., 301 Ill. 102, it was said that, while consideration is essential to the validity of a contract, “mutuality of obligation is not,” and that there were many valid unilateral contracts. See also Smurr v. Kamen, 301 Ill. 179. We hold that the second paragraph of the amended affidavit of defense presents no legal defense.

The third and fourth paragraphs of the affidavit of defense assert, in substance, that the title to the bonds described in the contract has not passed to the defendant, and that while defendant may be liable for damages for a breach of contract, it is not liable for the purchase price of the bonds. This, again, calls for a construction of the contract by the court and presents no question of fact for a jury. The point made by the defendant is controlled by the decision in Osgood v. Skinner, 211 Ill. 229, and cases there cited. The facts in that case were very similar to those before us. It was there held that the actual delivery of the certificates of stock or an acceptance of them by defendant was not necessary to entitle plaintiff to recover; that where the purchaser refuses to perform his agreement to purchase, the seller who has offered performance on his part may consider the property as the purchaser’s and may hold it subject to the call or order of the purchaser and recover the whole price. In Consolidated Ribbon & Carbon Co. v. Crane Co., 183 Ill. App. 392, the general rule was recognized that where the vendee refuses to pay for goods offered, the vendor may store the goods for the vendee and recover the full contract price. The decisive point in that case was that the buyer repudiated the contract to purchase goods of a standard market value before anything was done in the performance of the contract. There was simply an order which was countermanded. In the instant case the contract was performed by both parties thereto except as to the bonds mentioned in the declaration. Under such circumstances plaintiff had the right to treat the title as vested in defendant and to maintain an action for the purchase price. See also Smith v. Eitel, 121 Ill. App. 464; Kawin & Co. v. American Colortype Co., 243 Fed. 317.

Defendant’s counsel argues that the Uniform Sales Act of Illinois has changed the law announced in Osgood v. Skinner, 211 Ill. 229; that under paragraph 66, subsection 3, chapter 121a, Illinois Statutes, Cahill, it is provided that where the property in the goods has not passed and “if they cannot readily be resold for a reasonable price,” the seller may offer the goods to the buyer and if the buyer refuses may treat the goods as the buyer’s and maintain an action for the price; that under this provision, before a seller may maintain an action for the contract price, it must appear that the goods cannot readily be resold for a reasonable price and that there is no allegation to this effect in plaintiff’s declaration. However, subsection 2 of the same paragraph provides that where under a contract to sell “the price is payable on a day certain, irrespective of delivery or of transfer of title, and the buyer wrongfully neglects or refuses to pay such price, the seller may maintain an action for the price, although the property in the goods has not passed. ’ ’ By the terms of the instant contract the bonds were to have been purchased by a day certain, namely, the respective dates when Duncan’s notes matured, as stated in the contract. This controls the point under consideration. In Santa Rosa-Vallejo Tanning Co. v. Kronauer & Co., 228 Ill. App. 236, we held that the Uniform Sales Act had not changed the law in this respect.

While the contract is in the form of an agreement of purchase and sale and respective counsel have so presented it to this court as controlled by the law of such contracts, yet in substance and essence the agreement is not such a contract; it is rather an agreement whereby the plaintiff agrees to release certain securities and obligations of Duncan and accept as substitutes therefor other securities, namely, the bonds in question, with the understanding that as Duncan’s notes fell due and were paid, an equivalent amount of the bonds would be released. It was simply the withdrawal of certain collateral and the substitution of other collateral under the usual arrangement in such cases that the new collateral would be released as the indebtedness secured thereby was paid. In this view of the case it has been somewhat difficult to apply the ordinary rules regulating contracts of sale. However, we have endeavored to meet the case as presented by counsel.

We hold that defendant’s amended affidavit of defense was insufficient as a matter of law and that the trial court properly struck the same. For the reasons' above indicated the judgment is affirmed.

Affirmed.

Hatchett and O’Cohhor, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Henry M. Perrell and Lulu Perrell, Appellants, v. Abraham J. Liebman and Leah Liebman, Appellees.
    Gen. No. 33,643.

      Opinion filed April 28, 1930.
    Rehearing denied May 12, 1930.
    Henry C. Ferguson, for appellants.
    Hyman A. Pierce, for appellees; Sidney Rosenblum, of counsel.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.

This is an appeal from an order overruling the motion to vacate an order for the issuance of a writ of assistance.

The proceedings leading up to the writ of assistance were as follows: The above named parties on June 7,1919, entered into an agreement for a warranty deed, which provided that upon payment by the Perrells of certain money and upon the performance of certain covenants they should receive title by warranty deed to certain real estate and that upon their failure to do so the Liebmans should have the right to re-enter and take possession of the premises. The Perrells failed to perform the conditions, whereupon the Liebmans served notice of a declaration of forfeiture, demanded possession and commenced forcible detainer proceedings in the municipal court for possession of the premises.

Thereafter the Ferrells filed their bill of complaint seeking an injunction against the forcible detainer suit. A temporary injunction was granted. Thereupon the Liebmans filed their cross-bill asking for the possession of the premises involved. The matter was referred to a master in chancery, evidence was taken and upon his report and recommendations the chancellor entered a decree dissolving the injunction, dismissing the bill of complaint, finding the issues in favor of the Liebmans, the cross complainants, and holding that they werg entitled to immediate possession of the premises and ordering the Ferrells, cross defendants, immediately to surrender possession of the same to the cross complainants; and further:

“That in the event of their failure or refusal so to do within five days from the entry of this decree, the cross complainants, Abraham J. Liebman and Leah Liebman, shall be entitled to have a Writ of Assistance issued in their favor and against the said cross defendants, directing the Sheriff of Cook County to enforce compliance with this decree by evicting the cross defendants, Henry H. Ferrell and Lulu Ferrell, his wife, from the premises described in this decree. ’ ’

Subsequently upon a showing to the court that the cross defendants refused to obey the decree and surrender possession the court issued an order for the writ of assistance to issue. Thereafter the cross defendants moved to vacate the order, which motion was overruled, and they prayed this appeal.

The only point urged by appellants is that proper practice requires that before a writ of assistance shall issue a copy of the decree shall be served upon the defendant in possession and that in the present case no demand for immediate possession after the entry of the final decree nor any showing was made upon which to predicate the order for the writ.

The record shows a sufficient basis for the issuance of the writ of assistance. Section 42, Cahill’s St. ch. 22, U 42, Chancery Act, provides, among other things, that the court may make such decree and may enforce the same “by causing possession of real and personal estate to be delivered to the party entitled thereto . . . and by the exercise of such other powers as pertain to courts of chancery, and which may be necessary for the attainment of justice.” In the instant case the right of possession was the gist of the proceeding. This was the objective of the suit at law brought by the Liebmans in the municipal court, which the complainants by this bill for an injuction sought to prevent. Thereupon the defendants in the chancery proceedings filed their cross-bill seeking affirmative relief by asking that they be granted immediate possession of the premises involved. The decree found that the right to immediate possession was in the cross complainants and ordered the cross defendants here immediately to surrender possession and that upon their refusal the cross complainants should be entitled to a writ of assistance.

The cases cited which require service of a copy of the decree with demand for possession are, for the most part, foreclosure proceedings where the purchaser at the foreclosure sale, who might be a stranger to the proceedings, was demanding possession. Furthermore, such a purchaser is not entitled to possession until he receives a deed and it would be reasonable that he should serve notice after he receives the deed * asking the court to adjudicate, for the first time, his right to possession. In the cases where the court requires notice, the reason for this is that the chancellor may judge the propriety of awarding the writ. That is not this case. Here, the propriety for the issuance of the writ had been settled by the decree and there is no reason or necessity for serving a copy of the decree upon the cross defendants with demand for possession and having a new hearing thereon.

We do not find any cases in this State precisely in point. In Harney v. Morton, 39 Miss. 508, the decree found that certain litigants were entitled to possession and it was held that notice of the application therefor would be useless as between the parties and those claiming under them. This was followed in Gardner v. Duncan, 104 Miss. 477, where it was held that after the decree settled the right of possession a writ of assistance, which is equivalent to a writ of habere facias possessionem, issues as a matter of course without notice.

Although we have considered this appeal upon its merits as if it were properly before us, we are of the opinion that the order appealed from is not appeal-able. The decree which settled the rights of the party was a final, appealable order, but no appeal was taken from this. The order for the writ of assistance was issued to effectuate the decree and was predicated thereon. The last order in a case is not necessarily appealable, as such orders frequently follow merely for the purpose of carrying out or executing the matters which have been determined by the final decree. Myers v. Manny, 63 Ill. 211; Allison v. Drake, 145 Ill. 500; St. Louis, I. M. & S. Ry. Co. v. Southern Express Co., 108 U. S. 24.

The appeal should not have been allowed and as the order is not appealable the appeal will be dismissed.

Appeal dismissed.

Matchett and O’Conxor, JJ., concur.


text:
    Policemen’s Benevolent Association of Chicago, Complainant, v. Etta A. Hill et al., Defendants. Appeal of Huldah Olson, Appellant.
    Gen. No. 33,693.
    Opinion filed April 28, 1930.
    Francis E. Croarkin, for appellant.
    Babcock, Worthy & Gilruth, for appellee; Charles H. Chapman, of counsel.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.

The Policemen’s Benevolent Association of Chicago filed a bill of interpleader, alleging that Edward Strum was a member of the society, receiving a benefit certificate of membership in which his wife, Maggie B. Strum, was named as beneficiary for the sum of $2,000; that Mrs Strum subsequently died and after-wards on application of Edward Strum a new certificate was issued in which Etta A. Hill, his deceased wife’s sister, was named as beneficiary; that Septena-' her 25, 1927, Edward Strum died and that there were various claimants for the proceeds of the certificate. The complainant in the bill of interpleader paid the sum of $2,000 into court and asked the court to award the money to the proper parties. Etta A. Hall filed her answer, as did nine heirs, nieces and nephews of Edward Strum. The chancellor awarded the proceeds of the certificate to Etta A. Hill, and one of the heirs, Huldah Olsen, appeals from this decree.

The question presented to the chancellor was whether or not Etta A. Hill, the beneficiary named in the certificate, was a member of the family of the deceased and entitled to the proceeds under the provision of the certificate which names as one of the objects of the association: “to establish a fund for the payment of death benefits to the families.”

Etta A. Hill testified that she was the sister-in-law of Edward Strum, the deceased, and lived in his family for more than 20 years; that she resided with the family up to the time of Mrs. Strum’s death, and continued to live there afterwards for about four years; that she contributed to the expenses of the household; that when Strum was taken ill he was taken to the hospital and that she continued to contribute to his comfort in the way of food and taking care of his clothes and laundry; that she afterwards took him to the Bethany Swedish Home and while there she called upon him daily, administering to his comfort and wants; that then she took him in an ambulance to the American Hospital where he remained a week and a day, when he died; that while in the hospital she called on him once or twice a day; that she paid all the expenses of his funeral and burial; that during this time she was employed in various offices and contributed to the support of Strum’s family out of her earnings.

These and other circumstances which are virtually admitted furnished a sufficient basis for the conclusion of the chancellor that Etta A. Hill was a member of Edward Strum’s family and entitled as the beneficiary named in the certificate to receive the proceeds thereof.

The word “family” has been given a broad application. It is defined by Webster as “the collective body of persons who live in one house and under one head or manager.” Servants have sometimes been held members of a family. Strawn v. Strawn, 53 Ill. 263. In Race v. Oldridge, 90 Ill. 250, it was held that a friend of the defendant who was a boarder was a member of the family. No definite number of persons is necessary to constitute a family, although there must be at least two persons, and it is not essential that the persons actually reside together in one house. 25 C. J. 665, 666. While in Rock v. Haas, 110 Ill. 528, it was said that a residence together is essential to constitute a family, the court was there considering what was necessary for the creation of an estate of homestead. This distinguishes this case from the one under consideration. In Women’s Catholic Order of Foresters v. Heffernan, 206 Ill. App. 70, the court had under consideration a situation very similar to that before us. The question was whether Katherine Heffernan was a member of the family of Winifred Ryan. These persons were not related, but for two years prior to the death of Winifred Ryan they were close friends, occupying the same residence. It was held that this constituted, in a popular sense, a family, and the opinion also says:

“It would seem to be reasonable, therefore, in such a case as the present, to'consider the word ‘family’ as meaning a collective body, consisting of two or more persons who live together, and between whom there are family relations of a domestic character.” (Citing Carmichael v. Northwestern Mut. Ben. Ass’n, 51 Mich. 494.)

In Women’s Catholic Order of Foresters v. Heffernan, 283 Ill. 429, the judgment of the Appellate Court was affirmed.

With these, considerations in mind, we are of the opinion that the decree of the chancellor awarding the money to Etta A. Hill was proper and the decree is affirmed.

Affirmed.

Matchett and O’Connor, JJ., concur.


text:
    The People of the State of Illinois ex rel. John A. Swanson, State’s Attorney of Cook County, Appellant, v. Michael Heitler and Henry Kimmel, Appellees.
    Gen. No. 34,064.
    Opinion filed April 28, 1930.
    John A. Swanson, State’s Attorney, for appellant; Edgar B. Elder, Assistant State’s Attorney, of counsel.
    Rosenberg, Braude & Zimmerman and Berke & Cohen, for appellees; H. J. Rosenberg and Irving Berman, of counsel.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.

We are asked to construe section 8 of the act providing for the suppression of houses of prostitution as public nuisances (Chapter 38, ¶¶ 148-158, Cahill’s Illinois Statutes, in force July 1, 1915), with reference to whether the word “owner” in the section includes also a tenant or lessee of the building. The entire section is as follows:

“If the owner of such building or apartment, or such place shall appear and pay all costs which may have been assessed, and shall file a bond with sureties to be approved by the clerk, in the penal sum of not less than one thousand dollars nor more than five thousand dollars, conditioned that such owner will immediately abate such nuisance and prevent such a nuisance from being established or maintained therein within a period of one year thereafter, the court shall vacate such decree and order of abatement, so far as the same may relate to such building or apartment, or such place, and shall also vacate the order directing the sale of the movable property. The release herein provided for shall not release such property from any judgment, lien, penalty, or liability to which it may be otherwise subject by law.”

August 30,1929, a bill in equity was filed by the complainant for the purpose of abating a house of prostitution located at 355-357 Burr Oak Avenue, Blue Island, Illinois, sometimes called “Burr Oak Inn,”° pursuant to the provisions of the statute aforesaid. The bill alleged that Sara 0. Colwell, Winston S. Colwell, Everett C. H. Colwell, Audry C. Colwell and Gladys B. Colwell were owners of the property. They were served with summons but did not appear and were accordingly defaulted and the bill taken as confessed as to them. They do not appeal from the decree. The bill charged that a house of prostitution was conducted on said premises by Michael Heitler, Henry Kimmel, alias Harry Kimmel, and Nellie Meyers. These parties were served with summons and the bill taken as confessed as to Nellie Meyers. Heitler and Kimmel appeared and filed a joint answer. A trial was had and at the conclusion the court entered a decree finding that the premises in question was a house of prostitution and a public nuisance; that the Colwells were the owners of the premises; that Heitler, Kimmel and Nellie Meyers operated said house of prostitution. The decree enjoined all the defendants from maintaining and operating said nuisance and directed the sheriff to seal and lock said building and to keep the same locked and sealed for a period of one year and to sell the chattels. This decree was entered December 9,1929, and immediately upon the same date a petition was filed on behalf of the defendant Kimmel invoking the provisions of section 8 as a lessee of the premises. Complainant filed a demurrer to this petition which, after hearing, was overruled. Complainant electing to stand by the demurrer, an order was entered in accordance with the prayer of the petition, from which this appeal was prayed by complainant.

Defendant Kimmel’s petition recited the entry of the decree and alleged that he had been for several years past the lessee and tenant of the premises; that he had a lease on the same expiring April 30, 1933, at a rental of $65 a month; that the premises consist of 37 rooms, all equipped with furniture, and that there is a restaurant also on the premises fully equipped; that he is the sole owner of the equipment and the personal property and has an investment therein to the amount of approximately $12,000; that since the month of September, 1929, when the officers of the State’s Attorney ’s office of Cook county conducted a raid on said premises the nuisance complained of has been abated; that none of the persons arrested in any of the raids are now associated in or about said premises in any manner or form and that no person other than the petitioner has any interest in said hotel and restaurant business; that the business now being conducted on said premises is legitimate and in strict compliance with the law, and that it is the intention of petitioner to continue the business in this manner. Petitioner offered to furnish a bond, as provided by the statute, and to pay all the costs which had been assessed against the defendant in the proceeding.

It should be noted from the record that both defendants Heitler and Kimmel have been repeatedly convicted of violations of the law. Heitler served a term in the federal penitentiary for violation of the White Slave Law; he was also convicted in the criminal court of Cook county as a keeper of a house of prostitution at 357 Burr Oak Avenue, Blue Island, the same premises now in question. Kimrnel also has been repeatedly convicted as the keeper of a house of prostitution and for other violations of the law.

Was it the intention of the legislature to provide by section 8 that not only the owner but a tenant could, by filing a petition and complying with the terms of this section, secure a vacation of the decree ?

Consideration of the entire act shows that the word “owner” and the word “occupant” are used in definite and different connections. The first section provides that the “owners, agents, and occupants of any such building or apartment” may be deemed guilty of maintaining a public nuisance and may be enjoined. Section 2 provides that the nuisance may be abated by injunction, provided that no such injunction shall issue, except when sought by “an owner or agent,” unless “the owner or agent of such building or apartment” knew or had been personally served with a notice of the filing of the petition and that notice must be served “upon such owner or such agent of such building or apartment or place at least five days prior thereto, that such building or apartment or such place, specifically describing the same, was being so used, naming the date or dates of its being so used, and that such owner or agent had failed to abate such nuisance.” This section also provides that the “lessee, if any, of the building or apartment, or of the place shall be made a party defendant to such petition.” Section 5 provides that no injunction shall issue against the owner nor order be entered requiring any building to be closed “if it appears that such owner and his agent have in good faith endeavored to prevent such nuisance.” In other parts of the act the rights and obligation of the owner are expressed as distinct from those of the occupant or lessee.

It is apparent that the act contemplated giving an owner an opportunity to abate the nuisance without an order of court, and is framed upon the theory that the owner may have no knowledge of the nuisance committed by his tenant and that he should not be penalized by the closing of his building where he will give bond, as provided by section 8, that no such nuisance will be allowed.

Consistent with the distinction between the rights of the owner and the right of the occupant are the opinions in People v. Eisenberg, 202 Ill. App. 63; People v. Lipschultz, 240 Ill. App. 411; People v. Kohn, 243 Ill. App. 31. In People v. King, 289 Ill. 462, the court had mider consideration a decree which perpetually enjoined King, a tenant, from maintaining a house of prostitution anywhere “within the jurisdiction of this court.” It appears that King conducted a house of prostitution in premises other than those described in the original bill but within the jurisdiction of the court. It was held that the act gave the People the remedy by injunction not only to close the premises described in the bill but also empowered the court to enjoin the party directly carrying on such a nuisance from conducting any other such nuisance at any place within the jurisdiction of the court.

It would do violence to the purpose of the act, which was to suppress such nuisances, to construe section 8 aforesaid so as to permit the very person who has been conducting the nuisance, by simply promising to reform and paying the costs of the proceeding, to procure the vacation of the injunctional decree. The section was manifestly not intended to protect the person found guilty of conducting the nuisance. The showing that Kimmel and Heitler habitually conducted houses of prostitution and that Kimmel was present and active in running the house in question gives emphasis to this view. The only reasonable construction of the section is to confine its operation to the owner.

For the reasons indicated we hold that the demurrer should have been sustained and the petition dismissed. The order will therefore be reversed and the cause remanded for further proceedings consistent with what we have said in this opinion.

Reversed and remomded.

Hatchett and O’Connor, JJ., concur.


text:
    Sophie Blinder, Plaintiff in Error, v. United States Casualty Company, Defendant in Error.
    Gen. No. 34,077.

      Opinion filed April 28, 1930.
    Teller, Levit, Silvertrust & Levi, for plaintiff in error; George A. Gordon, of counsel.
    Moses, Kennedy, Stein & Bachrach, for defendant in error; Herbert H. Kennedy and Albert Langeluttig, of counsel.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.

Plaintiff brought suit upon a policy of insurance covering residence burglary and theft at 832 Leland Avenue, Chicago, claiming indemnity by reason of an alleged loss of jewelry valued at $5,230. Upon trial by the court it was held that she was not entitled to recover. By this writ of error she seeks the reversal of the adverse judgment.

The policy of insurance provided among other things that the company should not be liable for any loss “If the premises are used in whole or in part . . . for any business or professional purpose unless it is so stated in statement No. 5 of the Declarations.” Statement No. 5 of the Declaration reads: “No part of the premises ... is used for any business purposes . . . except as follows: no exception.”

The decision of the case turns upon a question of fact as to whether, as claimed by the defendant, the apartment at 832 Leland Avenue was used for business purposes. After considering the somewhat variant testimony, we hold that the trial court properly found that the premises were used for business purposes and consequently were not covered by the policy.

The husband of plaintiff, Herman Blinder, was engaged for a number of years in the retail furniture business and was secretary and treasurer of the Blinder Furniture Company. His wife was vice president and his son Abe Blinder was president. All of the stock was held by the Blinder family. They had a place of business at 6910 Cottage Grove Avenue. They had been living at 832 Leland Avenue nearly four years at the time of the burglary. There is abundant evidence that the business of selling furniture was carried on from the apartment where they lived. Herman Blinder inserted advertisements of furniture in 265 weekly and daily newspapers published within a radius of 100 miles of Chicago. A typical advertisement read: "Chance for young couple — will take $550 for all — cost $3,000 4 months ago.” Then followed a detailed list of household furniture; the address given was 832 Leland Avenue, one block east of Sheridan Road, Chicago; ’phone Sunnyside 6190. The application for this telephone number purported to be made by Henry Waller. Herman Blinder first denied that the application card for this telephone number was signed by him, but subsequently admitted that the application was in his handwriting and explained that the fictitious name “Henry Waller” was used “for a telephone purpose” because the newspapers of Chicago “got after furniture dealers selling furniture from homes.” The scheme seemed designed to mislead purchasers into believing that they were buying-second-hand furniture at a reduced price.

The maid employed by the Blinder family testified, in substance, that the furniture was continually going in and out of the Blinder apartment. To the same effect was the testimony of the janitor, who testified that he had seen moving vans come to the house and take furniture away and that strangers came to the premises inquiring where the people lived who had furniture for sale, and they were directed to the Blinder apartment. On their mail box were the words, “Furniture for Sale.” The janitor’s testimony indicates that the furniture was usually stored in the basement and when furniture was sold out of the apartment it was replenished from the stock in the basement. There was also in evidence an estimate by an advertising agency given to Mr. Blinder of 832 Leland Avenue, Chicago, for a 42 line advertisement in 40 newspapers. The estimate was a little over $300. This would indicate that the extent of the business carried on at this number was considerable.

Carrying on a “business” has been defined as that which occupies the..time, attention and labor of men for the purpose of a livelihood or profit. Flint v. Stone Tracy Co., 220 U. S. 107; Cuzner v. California Club, 155 Cal. 303; Territory v. Harris, 8 Mont. 140. The evidence convinces that the premises in question were used in part for the business of the retail sale of household furniture, and as the policy by its express terms did not cover such premises, there cannot be a recovery in this case.

The judgment of the trial court was proper and is affirmed.

Affirmed.

Matchett and O’Conhor, JJ., concur.


text:
    Lu-Mi-Nus Signs, Inc., Appellee, v. Jefferson Shoe Stores, Inc., Appellant.
    Gen. No. 34,106.

      Opinion filed April 28, 1930.
    Alex M. Golman, for appellant; Benjamin M. Washer, of counsel.
    Maurice J. Green and Philip Appel, for appellee; Philip Appel, of counsel.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.

Defendant appeals from a judgment of $579, entered upon a verdict directed by the court upon the trial of a suit brought by plaintiff on a written agreement of the parties. The judgment was originally entered by confession. Subsequently defendant was permitted to appear and make a defense. An affidavit of merits was filed and defendant demanded a jury.

Briefly outlined, plaintiff’s claim is based on what is called a “lease agreement” between the parties made January 15, 1929, wherein plaintiff agreed to furnish and install an electric illuminated sign in accordance with certain specifications set forth in the agreement which are too technical and lengthy to recite. The plaintiff was to maintain and keep the sign in good repair. Defendant agreed to keep and use it for 36 months and to pay therefor $30 in advance upon the first day of each month. The agreement contained a power of attorney to confess judgment. Further conditions and terms were that the sign should remain the property of plaintiff until the expiration of the rental period and thereupon, if all the terms of the agreement had been performed by defendant, the sign should become its property. Paragraph 8, which is the principal subject of controversy, provides that, if default is made in the payment of the monthly rate or other conditions or the refusal or neglect of the defendant to accept the sign or upon the happening of any contingency whereby plaintiff shall feel insecure or if the circumstances require a cancellation of the agreement, it was agreed that in any such event the defendant would pay plaintiff upon demand “as liquidated damages sixty per cent (60%) of the sum of the monthly payments which would accrue during the unexpired term of the lease, which sum is agreed to be the actual loss suffered by the lessor in any such event. Lessor may also, in such event, remove the sign from Lessee’s premises in addition to requiring payment of liquidated damages as aforesaid.” The statement of claim alleged the nonpayment of the monthly instalments for April, May, June and July, 1929. This would be $120. There does not seem to be any serious controversy over 1 this amount. The allowance of $459 as liquidated damages is controverted.

The affidavit of merits denied in general terms any indebtedness. The major portion of the affidavit is the allegation that the execution of the agreement was procured' by fraud, which is set out somewhat extensively. It also alleges that on or about July 1, 1929, defendant notified plaintiff that it could not use the sign any longer and requested plaintiff to call for and remove it.

When the case was called for trial the defendant seems to have abandoned its position taken in its affidavit of defense, and stated in substance that it was ready to rest its defense solely upon the question of the sufficiency of the statement of claim. There was a great deal of talk by the attorneys. Defendant’s counsel stated repeatedly that there was no need for a jury; that they would stand upon the ruling of the court upon its motion to withdraw its affidavit of merits and to strike the statement of claim; that the provision for liquidated damages was “absolutely illegal”; that as the whole suit was based upon the contract, the case “needs no further evidence, nothing but the contract in evidence.” Counsel again stated that the case could be disposed of by his motion to strike, “and we will stand upon that motion”; that the ruling of the court on the motion “disposes of the entire defense in this case.” There was much desultory conversation and the court in effect overruled defendant’s motion and ordered the case presented to the jury. Thereupon plaintiff proved the execution of the agreement and rested. The court then called upon defendant for evidence but its counsel replied, “The court gives a ruling on my motion and I am standing-on that.”

This action of defendant’s counsel thus waived all questions of the sufficiency of the evidence upon the part of plaintiff and narrowed the case to the single question as to whether the provision in the agreement for liquidated damages in case of default should be' enforced or whether plaintiff should be permitted to recover only actual damages. As stated in defendant’s brief, “We contend that plaintiff’s recovery should have been limited to the accrued rent, if any, due and owing and the actual damages, if any, proved to have /been sustained by plaintiff by reason of defendant’s 1 breach. ’ ’

Whether or not a provision in an agreement for an amount payable upon default is liquidated damages or whether the provision is merely for the payment of a penalty has been considered in a great many reported cases both in this and other States. Ordinarily agreements are made to be performed but if from the face of the instrument it appears doubtful whether the parties intended the sum specified as liquidated damages or a penalty, the decisions generally treat it as a penalty to cover the actual damages only, and this is for the reason that the party wronged is entitled to compensation only. In Volume I, Sedgwick on Damages (9th Ed.), sec. 406, the rule is stated that such an amount will be treated as liquidated damages when it appears to be a fair equivalent to a breach of contract. In all agreements fixing upon a sum in advance as the measure of liability, the question for determination is whether this violates the fundamental rule of compensation. It is also a general rule that, where the parties have agreed to have the damages fixed upon a particular basis, the courts will not, unless there is good ground for it, declare such a provision as in the nature of a penalty. Peine v. Weber, 47 Ill. 41; Harper v. Tidholm, 155 Ill. 370. Courts will give effect to the contracts of the parties with reference to liquidated damages in the absence of fraud or unconscionable 'oppression. Pinkney v. Weaver, 216 Ill. 185; Ludlow Valve Mfg. Co. v. City of Chicago, 181 Ill. App. 388; Poppers v. Meagher, 148 Ill. 192; Bartholomae & Roesing Brewing & Malting Co. v. Modzelewski, 269 Ill. 539; 13 Cyc. 89, 90. Where from the nature of the contract damages cannot be calculated with any degree of certainty, the stipulated sum will usually be held to be liquidated damages where they are so denominated in the instrument. Hennessy v. Metzger, 152 Ill. 505.

Defendant admits liability for such actual damages as may be proved to have been sustained, but argues that plaintiff has failed to make such proof. The burden, however, was not upon the plaintiff to prove the actual damages but upon the defendant. In Selby v. Matson, 137 Ia. 97, the court said: “When the stipulation on its face purports to designate liquidated damages, the burden of proof to show that such was not the design in making it is always on the party so contending. Kelly v. Ferjervary, 111 Iowa 693. This being so, it is apparent that in order to recover on a condition broken it is not necessary to plead or prove actual damages. The complainant may rely on the contract as fixing both the fact that damages will result from the breach and the extent thereof.”

If defendant had introduced evidence showing that the actual damages were considerably smaller than the amount stipulated, this could be regarded as an indication that the amount named was intended as a penalty, but no such evidence was introduced.

We are therefore relegated to the contract itself to determine from its face whether or not the provision relating to stipulated damages is so unconscionable in amount that it should not be enforced. As we have above stated, the agreement was a lease in form but with the provision that, if the rentals were paid for a period of 36 months, the sign should become the property of the defendant based upon the monthly payments. The price of the sign was $1080. This covered the cost of its manufacture, installation, maintenance and insurance and a profit to plaintiff. The details of the specifications indicate a sign of a peculiar type with special reading matter, advertising “Buster Brown Shoes,” center lined with red burning neon tubes. It is a reasonable inference that such a sign would be of peculiar value to defendant but be practically valueless to plaintiff. There would be no market value for such a sign, as far as the evidence shows, as it would be difficult to find a person needing this identical kind of a sign with the same reading-matter. Under such circumstances it would be very difficult, if not impossible, to prove with certainty the actual damages suffered by plaintiff by defendant’s breach.

The provision permitting the plaintiff to retake the sign upon default of defendant is criticized; but the converse would be obviously unreasonable, for the defendant might breach the contract at any time and be liable for only 60 per cent of the unpaid balance due and retain the sign at 40 per cent less than the price contracted for.

The form of the agreement might be subject to criticism. We do not see why it should not have been a contract for a conditional sale of the sign rather than in the form of a lease, but this does not of itself make the contract illegal, and defendant does not attack it upon this ground.

It cannot be said from the face of the contract that the provision for unliquidated damages is unconscionable, and we therefore hold that it should be enforced, and the judgment entered will be affirmed.

Affirmed.

Matohett and O’Connor, JJ., concur.


text:
    Antanas Balchunas, Appellee, v. William Novicki et al., Appellants.
    Gen. No. 34,148.
    Opinion filed April 28, 1930.
    Rehearing denied and opinion slightly modified May 12, 1930.
    Hermann P. Haase, for appellants.
    Julius L. Kabaker and Jacob G. Grossberg, for appellee.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.

Defendants appeal from a decree awarding complainant $2,074 and interest in a mechanic’s lien proceeding brought by complainant as assignee. The decree finding the issues for complainant was entered upon the recommendations of a master who took the testimony and reported conclusions.

Defendants’ brief entirely ignores the requirements of Bule 19 of this court, which has made it somewhat difficult to ascertain the decisive points involved.

Defendants’ principal point seems to be that, as the contract giving rise to the mechanic’s lien was under seal between parties other than the complainant, the right to bring suit is confined to the parties to the contract and cannot be brought by complainant. To understand the bearing of this point, we outline briefly the facts as set out by the master.

About June 15, 1925, Joseph C. Wolin, who was doing business under the name of General Construction Company, was the real owner of the premises in question known as 3805 South Bobey Street, Chicago, but on account of some domestic troubles the legal title to the lot was in the names of Edna McLennan and Edward Graff but held by them in trust for Wolin.

Wolin was a builder and had previously erected and owned a two-story flat building elsewhere on Bobey Street, and William Novieki, one of the defendants, desiring to have a similar building, negotiated with Wolin for such a building on the lot in question. Pursuant to these negotiations William Novieki and Martha Novieki, defendants, entered into a contract with Edna McLennan whereby Edna McLennan, for a consideration of $15,000, agreed to erect a two-story building upon said premises in accordance with certain drawings and specifications and to convey the lot with all improvements to William and Martha Novieki in consideration of the Novickis conveying certain other premises. Edna McLennan also agreed to procure certain mortgages upon the premises. Edna McLennan entered into said contract under directions of Wolin and the parties were informed immediately subsequent to the signing of the contract and prior to and during the construction of the building, that said contract was signed by Edna McLennan for the use and benefit of and on behalf of Wolin. The subsequent exchange of the properties was carried out between William Novieki and Wolin, Edna McLennan and Edward Graff conveying the lot in question to William and Martha Novieki, as the contract provided.

Wolin supervised all the work upon the building, hiring subcontractors and paying them, all with the knowledge and consent of William Novieki. All the moneys paid out of a mortgage loan for labor and material were paid upon the written authorization signed by William Novieki and Wolin, and both William and Martha Novieki knew that the signature of Wolin was required to authorize payments and they consented thereto. The building was erected and completed pursuant to the terms of the contract except as to a fence about the yard, for which the master gave credit to the defendants. William and Martha Novieki took possession of the premises in January or February, 1926, and the only dispute between them and Wolin after the completion of the building was with reference to allowance for rentals for the time the flats were unoccupied. The master further found that there was due complainant $2,119 with interest, less a credit of $45, for the failure to build the fence above referred to. On March 17, 1926, a claim for lien in proper form was filed with the clerk of the circuit court of Cook county, signed by the General Construction Company by Joseph C. Wolin, and referring to the contract between Edna McLennan and the defendants. On September 1, 1927, Wolin in writing sold and assigned all his right, title and interest in and to his claim for lien arising out of the contract, to Antanas Balchunas, the complainant herein. It also appears that at the close of the proof on behalf of complainant defendants failed to offer any proof in opposition. The master further found that defendants contended that under the facts complainant could not prosecute this suit, but the master found that Edna McLennan signed the contract of June 15, 1925, as a dummy for Wolin and that William Novicki negotiated and dealt with Wolin throughout the construction of the building and that Wolin was, in fact, the principal in the transaction.

As a general proposition, a bill in equity may always be maintained by the real party in interest, suing in his own right and for his own benefit. Wolverton v. Taylor & Co., 157 Ill. 485; Press v. Woodley, 160 Ill. 433; State Bank of Rock Island v. Pope, 179 Ill. App. 282.

Edna McLennan was made a party to the bill and has been defaulted. She makes no defense here and the defendants cannot make it for her.

Defendants contend that the contract of June 15 was under seal and therefore the only parties entitled ' to bring suit are the parties to the contract, citing Walsh v. Murphy, 167 Ill. 228; Gardner v. Shekleton, 253 Ill. App. 333. Examination of these cases shows that they are not in point, but even if they were the question has been decided contrary to defendants’ contention in Webster v. Fleming, 178 Ill. 140, which reviews many, if not all, of the prior cases in this State. This case holds that a third party for whose benefit a contract is made may bring an action thereon in his own name, whether the contract is simple or under seal. Regardless of the rule prior to the enactment of section 33, Practice Act, Cahill’s St. ch. 110, If 33, this section and section 34 abolish the distinction between contracts under seal and those not under seal (except penal bonds) so far as bringing an action on such contract is concerned. See also Harts v. Emery, 184 Ill. 560; American Splane Co. v. Barber, 194 Ill. 171.

Other points suggested in the brief are not important. There is no defense on the merits and the equities are with complainant. The decree is affirmed.

Affirmed.

Hatchett and O’Conkob, JJ., concur.


author: Mr. Justice O’Connor

text:
    Messenger Publishing Company, Appellee, v. Aaron E. Mokstad, Trading as Mokstad & Company et al., Appellants.
    Gen. No. 33,833.

      Opinion filed April 28, 1930.
    Rehearing denied May 12, 1929.

      Zane, Morse & Norman and McElroy & Pearson, for appellants; Charles F. McElroy and Walter Wm. Pearson, of counsel.
    Thompson, Tyrrell & Chambers and Gilbert, Rommel, Burger & Baker, for appellee; Joseph T. Tyrrell and Samuel H. Gilbert, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.

On January 5, 1928, the complainant filed its bill against the defendants seeking to enjoin them from interfering with complainant in the conduct of its business, and on January 19 an order was entered enjoining each of the defendants, as prayed for in the bill. February 6 defendants moved to vacate the injunction. The motion, together with the cause when at issue, was referred to a master, who took the evidence, made up his report and recommended that the orders awarding the temporary injunction be vacated and the bill dismissed. The report was filed in court October 23, 1928. Exceptions were sustained to the report and a decree entered substantially as prayed for in the bill. The three defendants appeal.

The record discloses that complainant was engaged in business in Chicago publishing calendars, which •are referred to in the record as sacred art calendars. There appear to have been four different kinds of calendars, designated thrift calendars, which were sold by complainant to banks, florist calendars, sacred art and church calendars, and historical calendars. Complainant carried on its business to a great extent by means of traveling salesmen and in each town but one concern engaged in a particular line of business would be sold calendars. The calendars showed the name and address of the business concern, which gave them to its customers and displayed some of them in hotels, garages and other places, for advertising purposes.

Defendant Mokstad was engaged in a similar line of business and was a competitor of complainant. Before going into business for himself he was employed by complainant. Defendants King and Hodges were traveling salesmen employed by complainant for a number of years, — Hodges since 1903 and King since 1921. They both worked until about the last of the year 1927, when they left complainant’s employ, or were discharged, and went to work for defendant Mokstad. Both King and Hodges had written contracts of employment with complainant for the calendar year 1927. They were to travel in Illinois, King having the southern 51 counties and Hodges the northern 49 counties. About September, 1927, they each entered into another contract of employment with the complainant for the calendar year 1928, King being assigned 39 counties in the southern part and Hodges 37 counties in the middle of the State.

The evidence shows that about October, 1927, defendant Mokstad began a systematic effort to secure all of complainant’s traveling salesmen, including defendants King and Hodges. He knew that they were under contract with complainant for 1928. We think it unnecessary to go into the evidence showing Mokstad’s methods in this respect. It is sufficient for us to say that the undisputed evidence shows that the methods he employed were wholly unwarranted. Hodges and King agreed to go with Mokstad for the year 1928 some time before December, 1927, but this jfact was concealed from complainant, and during the latter part of 1927 although ostensibly working for complainant they were actually doing some work for Mokstad. The evidence further shows that complainant for a period of years had built up quite a trade and had prepared a list of its customers which it kept under lock and key in steel filing cabinets under careful supervision at complainant’s office. These lists were bound up and a copy of them was given to King and Hodges to enable them to do their work in selling calendars. They are not merely a list of names and addresses of complainant’s customers but contain a great deal of other information. The counties, cities and villages are named, together with the population of each; the names of the customers who brought complainant’s calendars during 1926, 1927 and 1928, the kind- of calendar each customer bought, and other information.

When King and Hodges in the fall of 1927 agreed to go to work for Mokstad they turned over these lists to him, whereupon he made copies of them and began to circularize complainant’s customers. The evidence further shows that complainant had spent large sums of money in advertising its business and compiling the lists; that once obtained, about 70 per cent of its customers renewed their orders from year to year.

The temporary injunction against King enjoined him from selling or offering for sale in the territory (39 counties in Hlinois) mentioned in his contract with complainant any calendars except complainant’s “until further order of this court but not beyond December 31, 1928.” Hodges was enjoined from divulging confidential lists of customers or other trade secrets of the complainant company and from selling or offering for sale calendars to such of complainant’s customers as had not purchased such calendars from anyone but the Messenger company during 1927; but the injunction was not to continue “beyond December 31, 1928.” In discussing this matter counsel for defendants say, “Hodges is not restricted as much as King. He can work in the territory so long as he stays away from the persons on the list he furnished to Molestad, and even as to those he may solicit any others who were already known to Mokstad. ’ ’

Mokstad is enjoined from persuading or inducing any salesmen under lawful contract with complainant to break his contract with complainant and from soliciting during the calendar year 1928 the sale of any calendars to complainant’s customers of 1927 who had during that year bought such calendars only from the Messenger company. This injunction was limited to the territories covered by the King and Hodges contracts with the Messenger company. It was further limited to those persons whose names and addresses were secured by Mokstad from King and Hodges and who were theretofore unknown to Mokstad. The injunction was to continue “until the further order of this court but not beyond December 31, 1928.”

The final decree was entered July 13, 1929. It sets forth the orders for the temporary injunction, makes certain findings, and orders and decrees that defendants’ motions to dissolve the temporary injunctions be denied. The injunction against King is modified so as to restrain him only from conspiring and co-operating with Mokstad and from delivering to him complainant’s lists of customers or copies thereof or other information, or from using the same, “but not beyond December 31, 1928.” A permanent injunction is decreed against Mokstad enjoining him from directly or indirectly persuading or inducing any of the complainant’s salesmen to break his contract of employment with the complainant. He is further permanently enjoined from using complainant’s list which he had obtained from King and Hodges.

There is evidence in the record to the effect that complainant had wrongfully induced three salesmen employed by Mokstad to leave Mokstad and work for complainant in the sale of calendars, and that other of defendants’ employees were wrongfully induced to leave defendants and were employed by complainant. Other complaints are made against the complainant to the effect that it wrongfully solicited defendants’ customers, etc. And in view of this evidence defendants contend that complainant’s bill should have been dismissed because complainant did not come into equity with clean hands. We think we ought to say that the evidence of wrongdoing on the part of complainant is not of the same character as that complained of by complainant against defendants. We will not stop to discuss such question, for we do not think the contention of defendants is applicable here.

The rule that one who comes into equity must come with clean hands or he will not be entitled to any relief is limited to the misconduct of the complainant in regard to the matter in litigation. Carpenters’ Union v. Citizens Committee, 333 Ill. 225; Fagan v. Rootberg, 320 Ill. 586; Anisfield Co. v. Grossman & Co., 98 Ill. App. 180; Cohn v. Pitzele, 117 Ill. App. 342; same case affirmed 217 Ill. 30; Consumers Co. v. Parker, 227 Ill. App. 552.

In the Carpenters’ Union case the court said (p. 250): “The rule that a complainant must come into equity with clean hands means that he must do equity as respects the defendant’s rights in the particular matter of the suit. . . . The dirt upon his hands must be his bad conduct in the transaction complained of. If he is not guilty of inequitable conduct toward the defendant in that transaction his hands are as clean as the court can require.”

The rule is similarly stated in the Fagan case, and in this connection the court discussed the cases of Ely v. King-Richardson, 265 Ill. 148, and Langdon v. Templeton, 66 Vt. 173. In referring to the Ely case the court said (p. 594): “The complainants filed their bills in chancery against the defendant company for an accounting for salary earned. ... It was contended by the company that the complainants did not come into court with clean hands, because, they -said, they had, while in the employ of the company, begun the organization of a rival corporation in the same business for the purpose of carrying on business in competition with the defendant, and had induced a number of employees of the defendant to leave its employment and enter the employment of the new corporation. ’ ’ Continuing, the court quoted from the Ely case as follows: “ ‘Even if the conduct of the complainants was inconsistent with good faith to their employer and constituted a breach of their contract, they did not thereby forfeit the compensation which they had before earned. They might be liable for damages for the breaches of their contracts, — perhaps they might be enjoined from pursuing a course of conduct inconsistent with their contract obligations, — but they could not be deprived of their compensation already earned. .... The maxim that he who comes into equity must do equity cannot deprive the complainants of their right to an accounting which is not founded in any way upon their wrongful conduct. ’ ” Continuing further the court quoted with approval from the Vermont ease above mentioned, after referring to the maxim under consideration, the following: “it (the maxim) has its limits, and the administration of equitable relief in particular controversies is confined to misconduct in regard to the matter in litigation.”

In the Pitzele case the court quoted with approval the rule as announced by the Supreme Court of Connecticut as follows: (217 Ill. 38) “We suppose it to be a well settled doctrine that if a plaintiff requires any aid from an illegal transaction to establish his demand, he cannot recover it, or, in other words, if he is unable to support it without relying upon an unlaw-. ful agreement between himself and the defendant he must fail.”

In the instant case complainant relies for relief on the wrongdoing of the defendants. The claim of the defendants that complainant is guilty of wrongful conduct is not in regard to the matters alleged in complainant’s bill. The doctrine of unclean hands does not apply. The only exception to the rule is where the complainant, in conducting its business, is perpetrating a fraud on the public. American University v. Wood, 294 Ill. 186, affirming 216 Ill. App. 189.

Defendants further contend that the contracts entered into between complainant and defendants King and Hodges lack mutuality, and that equity will not aid in enforcing such a contract and that the effect of the injunctions in this case is to enforce such a contract. We think this contention is unsound. But whether the contracts are enforceable is, we think, immaterial in this case. Defendants will not be permitted to wrongfully obtain complainant’s lists, and endeavor to destroy complainant’s business by saying that the contracts of employment lacked mutuality.

A further contention is that complainant’s lists are not entitled to the protection of a court of equity; that they are not “trade secrets,” and a number of authorities are cited, among them the case of American Cleaners and Dyers v. Foreman, 252 Ill. App. 122. In the instant case the lists were wrongfully obtained by Mokstad from King and Hodges. They were the valuable property of the complainant, it having compiled them at great expense. They were kept under lock and key at the complainant’s place of business; they contained much information in addition to mere names and addresses of customers. Defendant Mokstad, in effect, obtained them fraudulently. Obviously equity will intervene to prevent their wrongful use.

In the Foreman case we held that where an employee of one had a route where he collected and delivered garments for cleaning and dyeing purposes, and where the employee left the employer, he might solicit his old customers for his new employer. There were no lists stolen in that case nor any deception used. We there discussed the authorities and said (p. 126): “All of the authorities seem to agree that if the employee under such circumstances surreptitiously copies the names and addresses of his employer’s customers while he is employed, and takes such lists with him, he will be enjoined from soliciting the customers for his new employer.” We think the court was right in enjoining the use of the lists by the defendants. But defendants further contend, as we understand the argument, that no actionable wrong was done by the turning over of complainant’s lists to Mokstad, because the contracts of employment between King and Hodges with the complainant provided that in case King or Hodges refused to return the lists, complainant might retain $25 from any commissions it might owe either of them as liquidated damages. We think the fact that the contracts so provided did not warrant defendants in surreptitiously turning over the lists to the defendant Mokstad. The lists were valuable assets belonging to complainant, and we think it obvious that it was not the intention of complainant that King and Hodges could keep the lists merely by complainant taking $25 from their commissions. Moreover, there is no contention that the complainant retained $25 commission.

Considerable is said in the brief filed by defendants as to the temporary and final injunctions against Bang; but we are not interested in that question now because since the case was brought to this court a written, verified stipulation has been filed in this court in which King stipulates with complainant that the appeal may be dismissed and that he releases and waives all errors, if any. This stipulation is properly before us. Wick v. Chicago Tel. Co., 277 Ill. 338: Laskey v. Laskey, 226 Ill. App. 566. The fact that the complainant’s motion to dismiss the appeal as to King, in accordance with the stipulation, was denied by us on the ground that the appeal was joint, does not affect our right to consider that King, so far as he individually is concerned, is not here complaining.

We think the defendants were properly enjoined and the decree of the superior court of Cook county is affirmed.

Affirmed.

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


text:
    Joseph Welley, Trading as International Printing & Publishing Company, Plaintiff in Error, v. Julius Klein, Defendant in Error.
    Gen. No. 33,983.

      Opinion filed April 28, 1930.
    Fred W. Kraft and Milton D. Frifeld, for plaintiff in error.
    Slottow & Leviton, for defendant in error; Bernard Allen Fried, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court. .

By this writ of error Joseph Welley seeks to reverse an order of the municipal court vacating and setting aside a judgment entered in his favor and against the defendant.

The record discloses that on May 24, 1928, plaintiff brought suit against the defendant to recover a claimed balance due him for goods, wares and merchandise sold and delivered to the defendant. An itemized statement was made a part of plaintiff’s statement of claim, showing a claimed balance due $407.31. The summons was returnable June 1, 1928,. and was served on defendant May 26. On May 31 there appears in the record an appearance of the defendant entered by an attorney. On June 1 an order was entered extending the time within which defendant should file his affidavit of merits ten days. On June 9 defendant filed his affidavit of merits, in which he set up that the balance he owed plaintiff was less than one hundred dollars and that he, defendant had a much larger claim which he desired to set off against plaintiff.

July 18 the cause came on for hearing in regular course, the defendant not appearing. The record recites that the court heard the evidence, found the issues against the defendant and assessed plaintiff’s damages at $407.31. The next that appears in the record is that on February 4, 1929, an execution was issued and a demand made on the defendant February 25, 1929. On March 5 the defendant filed a schedule with the bailiff and on March 4 made a motion to vacate the judgment which was supported by his petition. The motion was overruled. April 2 defendant made a motion to vacate the order of March 4, denying his motion to vacate the judgment and the motion was entered and set for hearing April 15. In support of the motion defendant filed his petition. April 18 the motion was heard, the prayer of the petition was allowed, the judgment entered July 18 was vacated and set aside and it is to reverse this last order that plaintiff sued out this writ of error.

The motion of the defendant and the order vacating the judgment having been made about nine months after the judgment was entered, it is obvious that the motion was based on section 21 of the Municipal Court Act, Cahill’s St. ch. 37, If 409, which provides that there shall be no stated terms of the municipal court; that a judgment of that court shall not be vacated after thirty days except “upon appeal or writ of error, or by a bill in equity, or by a petition to said municipal court setting forth grounds for vacating, setting aside or modifying the same, which would be sufficient to cause the same to be vacated, set aside or modified by a bill in equity: Provided, however, that all errors in fact in the proceedings in such case, which might have been corrected at common law by the writ of error coram nobis may be corrected by motion, or the judgment may be set aside, in the manner provided by law for similar cases in the circuit court.” This section means that where a judgment is entered in the municipal court and 30 days have elapsed, the municipal court is without power to vacate or set it aside except it may be vacated or set aside if a motion is made under section 89 of the Practice Act, Cahill’s St. ch. 110, If 89, showing sufficient grounds under that section, or the judgment may be vacated and set aside upon petition being filed which alleges facts sufficient to cause the judgment to be vacated and set aside by a bill in equity if filed in the circuit or superior court.

The defendant’s position is that the petition he filed in support of his motion to vacate the judgment sets forth facts sufficient to warrant the court in vacating the judgment. The motion having been heard upon the verified petition, no answer having been filed thereto, the question for decision is: Did the petition set up such facts as would warrant the court in vacating the judgment!

The petition set up that the defendant was “wholly uninstructed in matters of law and was unwilling to employ counsel to represent him . . . inasmuch as he was firmly convinced that the cause upon which the suit against him was based was totally without good and sufficient grounds,” that the claim made against him was wholly without merit and the suit was brought for the sole purpose of harassing and vexing him when he was extremely busy; that the defendant was a representative of the press and made his livelihood in the profession of journalism; that at the time the suit was brought he was commissioned to go to Vienna; that in his affidavit of merits, which he prepared himself, he explained the fact he was required to go to Vienna and requested the date of the trial to be set for some time in August, 1928, when he would have returned from Vienna; that he did not learn of the judgment entered against him until February 25, 1929, when he was served with the execution. It is obvious that this petition is entirely insufficient to warrant the court in vacating the judgment. If the defendant was required to go to Vienna, he should have had counsel represent him. And moreover, although he stated in the petition and in his affidavit of merits that he would return to Chicago in August, 1928, and apparently did return some time during that month, he made no inquiry about the suit until the following February. We think it obvious that the defendant was so negligent that a court of equity would not be warranted in vacating the judgment under the facts set forth, and therefore the municipal court, under section 21, would not be warranted in doing so.

But the defendant contends that the order vacating the judgment was not final and therefore not subject to review by this court. There is no merit in this contention. The motion of the defendant to vacate having been made more than 30 days after the judgment was entered against him, the petition which he filed in support of his motion was in the nature of a new proceeding and the order vacating the judgment was appealable. Cramer v. Illinois Commercial Men’s Ass’n, 260 Ill. 516; Imbrie v. Bear, 230 Ill. App. 155; Izzi v. Ialongo, 248 Ill. App. 90; Central Bond and Mortgage Co. v. Roeser, 323 Ill. 90.

The defendant further contends that the petition to vacate the judgment could be made a part of the record only by bill of exceptions. This contention is unsound. The petition filed by the defendant in support of his motion to vacate thé judgment was in the nature of a new proceeding, the petition being in the nature of a bill in equity which is a part of the common law record without a bill of exceptions.

A further point is made that the writ of error will not lie because it was not sued out within 30 days after the order vacating the judgment was entered. In support of this, section 23 of the Municipal Court Act, Cahill’s St. ch. 37, JÍ 411, is cited. That part of section 23 of the Municipal Court Act involved was long ago declared unconstitutional. Hoffman v. Paradis, 259 Ill. 111.

, The order of the municipal court of Chicago vacating the judgment is reversed and the matter is remanded to the municipal court for further proceedings in accordance with the views herein expressed.

Reversed and remanded.

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


text:
    The People of the State of Illinois, Defendant in Error, v. Anna Uschold, Plaintiff in Error.
    Gen. No. 34,038.

      Opinion filed April 28, 1930.
    Eugene McCaffrey, for plaintiff in error.
    John A. Swanson, State’s Attorney, for defendant in error; Edward E. Wilson and John Holman, Assistant State’s Attorneys, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.

By this writ of error Anna Uschold seeks to reverse a judgment of the municipal court of Chicago by which she was sentenced to confinement in the House of Correction for a period of 30 days.

On November 23, 1929, an information was filed against the defendant charging her with the stealing of certain personal property. The record discloses that on December 3, the matter came on for hearing, the defendant appearing in her own proper person as well as by counsel; that she was arraigned and pleaded guilty of “larceny of property of the value of twelve dollars and twenty cents ($12.20) ” in manner and form as charged in the information. The record then continues: “And the court having fully explained to said defendant the consequences of entering such plea, and the said defendant still persisting in pleading guilty as aforesaid, it is ordered that said plea and the same is hereby received and recorded, and the court examines witnesses as to the aggravation and mitigation of said offense.

“The State’s Attorney now here moves the court for final judgment on the plea of guilty herein, said people being represented here by the State’s Attorney and said defendant being present in her own proper person as well as represented by counsel, and not saying anything further why the judgment of the court should not now be pronounced against her on the plea of guilty entered in this cause, the court finds that it has jurisdiction of the subject-matter of this cause and of the parties hereto, and it is considered and adjudged by the court that said defendant is guilty,” etc. The record then shows that the court sentenced the defendant to the House of Correction for 30 days and imposed a fine of one dollar. Fifteen days thereafter, December 18,1929, the chief justice of the municipal court then presiding, entered the following order: “It is hereby ordered that the words ‘and the said defendant still persisting in pleading guilty as aforesaid,’ be stricken from the record.”

In this court the State’s Attorney contends that since the defendant was sentenced on December 3, on which date the mittimus was issued, and the defendant was then taken to the House of Correction where she commenced the service of her sentence, the court lost jurisdiction and the order entered on December 18 was entirely void for want of jurisdiction. We think this contention is unsound. The court may, at any time, upon proper showing, correct the record so that it will speak the truth. If the correction is made after the term has expired at which the judgment was entered or after 30 days have elapsed, if the cause is one heard in the municipal court of Chicago, there must be preserved in the record some minute or memorial paper to warrant the correction; People v. Petrie, 294 Ill. 366; People v. Fulimon, 308 Ill. 235; but where, as in the instant case, the amendment is made before 30 days have elapsed after the entry of the judgment, the record may be corrected to speak the truth without any minute or memorial paper, because during the period of 30 days the record, in legal contemplation, is still in the breast of the court. Cook v. Wood, 24 Ill. 295. The fact that the defendant had commenced the service of her sentence before the order correcting the record was made, we think is immaterial. The order correcting the record did not purport to interfere with the judgment of the municipal court, which obviously could not be done. People v. Turney, 273 Ill. 546. We therefore hold that the amendment was properly made.

The defendant contends that since the record as amended fails to show that after she entered a plea of guilty to the charge made in the information, and after the court had fully explained to her the consequences of the entry of such plea, it fails to show that she persisted in such plea, the judgment is wrong and should be reversed because it is not in accordance with the provisions of the statute, oh. 38, par. 756, sec. 4, Division XIII, Cahill’s 1929 Statutes. That section is as follows: “In cases where the party pleads ‘guilty,’ such plea shall not be entered until the court shall have fully explained to the accused the consequences of entering such plea; after which, if the party persist in pleading ‘guilty,’ such plea shall be received and recorded, and the court shall proceed to render judgment and execution thereon, as if he had been found guilty by a jury. In all cases where the court possesses any discretion as to the extent of the punishment, it shall be the duty of the court to examine the witnesses as to the aggravation and mitigation of the offense.”

It has been repeatedly held that a judgment of conviction on the plea of guilty cannot be sustained where the record contains no reference to the fact that the court explained to. the defendant the consequences of such plea. People v. Petrie, supra; Krolage v. People, 224 Ill. 456; People v. Fulimon, supra. But no case has been cited, and we have been unable to find any, where a judgment of conviction has been reversed, where it appeared from the record that after a defendant had entered a plea of guilty and the consequences of such plea had been fully explained by the court, on the ground that the record failed to state that the party persisted in such plea. But whether a judgment of conviction will be reversed because the record fails to disclose that the defendant persisted in his plea of guilty, we do not decide, because we are of the opinion that in the instant case, even with the record corrected, it sufficiently appears that the defendant did persist in her plea of guilty after she was fully advised of the consequences of her plea. For it appears from the judgment entered that after the defendant had entered a plea of guilty to the information, the court fully explained to her the consequences of such plea and it was then ordered that the plea be entered of record. The court then examined witnesses as to the aggravation and mitigation of the offense and thereupon the State’s Attorney moved for judgment on the plea of guilty and the record recites, “and said defendant being present in her own proper person as well as represented by counsel, and not saying anything further why the judgment of the court should not now be pronounced against her on the plea of guilty entered in this cause,” etc. We think it clear from the record that the defendant, as a matter of fact, persisted in her plea of guilty after she was advised by the court of the consequences of her plea. To comply with the statute it is obvious no particular words are required. It is only necessary that the intention of the legislature be carried out. And while it would be more accurate to show specifically that a defendant had persisted in his plea of guilty before the plea was entered of record, yet, in our opinion, this is not required where, upon the whole record, it appears that the defendant did, in fact, persist in his plea of guilty after he had been advised by the court of the consequences of entering such plea.

The judgment of the municipal court of Chicago is affirmed.

Affirmed.

McStjrely, P. J., and Hatchett, J., concur.