text:
    S. Milkes, Trading as Tempter Food Shop, Appellee, v. United States Fidelity & Guaranty Company, Appellant.
    Gen. No. 34,075.

      Opinion filed April 22, 1930.
    Eugene P. Kealy and Chester E. Lewis, for appellant.
    Darrow, Smith, Cronson & Smith, for appellee; Milton D. Smith, William L. Carlin and Walter R. Titzel, Jr., of counsel.
   Mr. Presiding Justice Barnes

delivered the opinion of the court.

This is a suit on an insurance policy indemnifying the plaintiff against the loss by robbery within the premises designated in the policy under certain definitions and conditions contained in the policy. The case was tried without a jury and the court found in favor of appellee and entered judgment for $750, from which this appeal is taken.

The property taken was money that had been placed in a strong box in a desk in the premises in question. The policy provides that “premises” as used in this policy, shall mean the interior of the portion of the building occupied solely by the assured in conducting his business. One of the provisions of the policy limiting liability is contained in the so-called “declarations,” reading as follows: “ (Item 4) Section (E). On property specified in Item 8 from within the premises, while at least one custodian is on duty therein $1,000.” Item 8 includes money in the property insured.

One of the definitions of “custodian,” as used in the policy and applicable to the facts of the case, is:

“ (4) Any person not less than seventeen nor more than sixty-five years of age, who is in the regular employ of the assured and duly authorized by him to act as paymaster, messenger, cashier, clerk or sales person, and while so acting to have the care and custody of the property covered thereby.”

Appellee operated a delicatessen store at the place designated in the policy on the first floor of a two-story building. One Weinrich was one of his employees. His usual duties were to prepare food stuffs and, as testified to, on occasions he assisted in the sale of them, when he placed the money in the cash register. There was some contradictory evidence as to his acting as salesman and whether his duties brought him within the definition aforesaid of custodian. We deem it unnecessary to discuss the evidence on that point, for assuming that he was a custodian we tlfink there can be no recovery if, as we think, it cannot be said from the undisputed evidence that he was on duty within the premises as such custodian at the time of the robbery, as required in section E above quoted.

No question arises but that the robbery took place within the premises and that the property taken was such as required the presence of the custodian on duty within the premises at that time.

The undisputed facts upon which the question depends are as follows: About 12:30 a.m., January 3, 1927, Weinrich was on his way to start his nightly chores at appellee’s place of business. After he had entered the yard back of the building and was within 8 or 10 feet of the rear door of the store he heard footsteps behind him and immediately turned away from the walk with the intention of going across the yard and returning to the alley when he was stopped by a man pointing a gun at him. A second man immediately came up, carrying a revolver, and ordered him to unlock the door. Being unable to do so on account of nervousness, one of the men took the keys from his person and unlocked the door. He was then compelled to enter the store and to turn on the lights in the rear of the premises. He was then bound and locked in the basement where he remained until about 8 o’clock in the morning. In the meantime, the robbers opened the desk in the store and took the money.

The store had been locked for the night by the son of plaintiff about one-half hour before the robbery. No one was left therein.

It is true, as argued by appellee, equivocal expressions in an insurance policy are interpreted most strongly against the insurer, and where doubt exists will be liberally construed in favor of the insured. But as said in Crosse v. Knights of Honor, 254 Ill. 80, 86, that rule “does not authorize a perversion of language or the exercise of inventive powers for the purpose of creating an ambiguity where none exists,” and it is the function of the court to construe and enforce the contract as it is written. (Imperial Fire Ins. Co. v. Coos County, 151 U. S. 452; C. J. 32, par. 258, p. 1148.) Such doctrine will not be applied to enforce liability contrary to an express provision of the policy in unambiguous language clearly intended to limit it. That the provision in question which makes one of the conditions of liability that the property taken by the robber from within the premises shall be “while at least one custodian is on duty therein” is not only not ambiguous but clearly contemplates that the custodian must not only be present but be on duty within the premises when the robbery takes place. We think it is too clear for discussion that Weinrich was not on duty within the premises at the time of the robbery. The purpose of the provision unquestionably was to have the custodian present in the line of his duty and thus presumably in a situation to prevent or give notice of the robbery.

That there was a robbery within the premises and property taken of the kind which would render the insurer liable if at the time thereof the custodian was on duty within the premises, is not open to question. But while at the time of the robbery he was within the premises, it cannot be said that he was then “on duty.” It was not enough that he intended to be on duty, or would have been had he not been deprived of his freedom before and after he entered the building where his duties as such were to be exercised. Had he been already in the building on duty before being deprived of his freedom and brought therein under duress, a different state of facts would be presented. But the provision in question plainly contemplates that he should be in the building in the exercise of his duty or in a position to exercise it at the time of the robbery. But he had been deprived of his freedom and power to exercise such duty from the time he came under the control and domination of the robbers outside of the building until he was released several hours afterwards. Under that state of facts we do not think that it can reasonably be said he was “on duty,” within the intendment of the policy, when.the robbery took place. In that respect the facts are no different than if the robbers had bound and left him in his home, taken the keys from him, and then had entered the premises and taken the property. Mere intention on his part to enter the premises and engage in his duties was not a compliance with the requirement of being on duty within them.

Interpreting the phrase “present on duty,” it was held in H. & S. Pogue Co. v. Fidelity & Casualty Co., 299 Fed. Rep. 243, that it includes “not only physical or bodily presence at the place, but a certain amount of freedom for the performance of duties.” The policy in that case required the presence of two watchmen. One only was present when the entrance to the building by the robbers was effected. He was at once bound, blindfolded and tied to a chair. When the other watchman appeared he was likewise bound and tied. The court said that at no time were there two employees of the plaintiff present at the store, “who were possessed of freedom of movement or capable in the slightest degree of performing their regular duties,” and that the purpose of the requirement of the presence of two employees was clearly defeated if the one had been wholly deprived of his freedom and volition before the other arrived. The principle on which the decision rests applies here. That compliance with the provision in section (E), aforesaid, is a condition precedent to the right to recover and manifestly material to the risk is not questioned. The assured was bound to.show that he came within the terms of the policy he had accepted. (Wakem & McLaughlin, Inc. v. Royal Ind. Co., 241 Ill. App. 427; Imperial Fire Ins. Co. v. Coos County, supra; C. J. Yol. 32, p. 1291, sec. 517.)

Appellee cites an opinion rendered by the Appellate Court of the Third District at the April Term, 1929, where an employee of the insured having charge and control of the store and property, was taken at night from his house by a bandit to the store and compelled to open up the safe of his employer. The policy in that case required that the robbery should be within the premises and inflicted by violence or the fear thereof upon the custodian having “actual care and custody of the property at the time.” The court held that under the circumstances the custodian at the time of the robbery was in the premises and had the actual care and custody of the property taken. While the provision in the policy on which the case turned is not like that in question here, yet so far as the opinion is deemed applicable we cannot agree with it. In our judgment to be “on duty” implies that one is in the place and in a position to perform it. At the time of the robbery that cannot be said to be the fact in this case.

Accordingly the judgment will be reversed with a finding of fact.

Reversed with a finding of fact.

Scahlah, J., concurs;

G-ridlbt, J., dissents.

Finding of fact: We find that there was no custodian on duty within the premises at the time of the robbery in question.


source: Caselaw Access Project

author: Mr. Justice Gridley

license: Public Domain

text:
    R. L. Benson et al., Trading as Carter-Crane Controls, Appellants, v. Herbert W. Crane, Appellee.
    Gen. No. 33,882.

      Opinion filed April 22, 1930.
    Knapp & Campbell, for appellants; John R. Cochran and. Leonard F. Martin, of counsel.
    Murray & Murray, for appellee; Frederick L. Fake, Charles F. Murray and Donald R. Murray, of counsel.
   Mr. Justice Gridley

delivered the opinion of the court.

This is an appeal by complainants, trustees under a common-law trust known as Carter-Crane Controls (hereinafter referred to as Carter-Crane), from a decree of the superior court of Cook county, entered June 27, 1929, dismissing their original bill, amended bill, amended and supplemental bill, and supplemental bill for want of equity. All bills prayed for in junctional relief against defendant (hereinafter referred to as Crane.) The original and amended bills were filed when there was pending in the same court, and undisposed of, an equity suit by Crane against the trustees, whereby he sought the cancellation of certain existing license contracts between the- parties and other relief. The amended and supplemental, and the supplemental, bills were filed after the same chancellor had dismissed Crane’s suit against the trustees for want of equity.

There are four written agreements involved in the litigation. The first was signed by the parties on April 25, 1919. It recites that Crane has invented certain new and useful improvements in “Operating Means for Doors,” and devices relating thereto, for which he has received four Letters-Patent of the ' United States (dates and numbers stated) and has filed two applications for other patents (application numbers stated) and that Carter-Crane is desirous of acquiring the exclusive right, within and outside of the United States, to manufacture and sell, rent or otherwise dispose of, control devices for doors, windows, etc., containing the improvements, and “also such other improvements or inventions in control devices as Crane may hereafter invent.” It is agreed in substance:

Crane grants to Carter-Crane such “exclusive” right or license. Carter-Crane “may issue sublicenses to others,” provided they shall themselves be engaged in the manufacture or sale of the devices (modified in a supplemental agreement of April 17, 1922). This exclusive right or license is to include any patents which may be secured in foreign countries for and with the consent of Carter-Crane, — they to pay the expense . of obtaining such foreign patents. Crane is to receive $10,000 of the par value of the preferred shares of Carter-Crane, and 10 per cent (10%) of their common shares. In addition, Crane is to receive five ($5) dollars, as a license fee or royalty, upon every door control device manufactured by Carter-Crane, or by any of their sublicensees, “but in no case shall Crane receive license fees or royalties aggregating less than the following minimum amounts, viz., for the year 1919, $500; for 1920, $2,000; for 1921, $3,500; for each subsequent year not less than $5,000.” (This provision also was modified in the supplemental agreement of April 17,1922.) Upon failure of Carter-Crane to make returns or payment of license fees, “or should they be in material default in any other manner and so continue for 90 days after written notice thereof has been delivered to them,” Crane may terminate this license by serving written notice thereof upon Carter-Crane ‘ ‘ at any time after said 90 days ’ notification in case such default be not cured within said 90 days.” In case of termination Crane shall receive from Carter-Crane “one complete set of each active drawing, specification or pattern,” as may be in use by them at the time, “together with all jigs and dies” employed by Carter-Crane in the manufacture of the devices. Crane grants to Carter-Crane the right to use his name for the purpose of bringing suits for infringement of the patents contemplated herein, and he agrees that he will furnish all .proper assistance, in prosecuting such suits, all at the expense of Carter-Crane; but Crane shall have the right at his own expense to be represented in such suits by counsel of his own selection. Any amounts collected by way of profits, damages and costs in any suit shall be retained by Carter-Crane, provided Crane may notify Carter-Crane of a particular infringement and request them to bring suit, and, if Carter-Crane shall not bring such suit within 30 days after such notice, then Crane shall have the right to bring such suit in his own name and at his own cost, “in which event any profits, damages and costs collected as the result of such suit shall be retained by him. ’ ’

In the “supplemental” agreement of April 17, 1922, it is agreed in substance as follows:

Carter-Crane may issue an “exclusive” license to the Streeter-Amet Weighing & Recording Co., an Illinois corporation having its principal office and factory in Chicago (hereinafter in this opinion referred to as Streeter-Amet), “for the United States and its possessions and the Dominion of Canada and not elsewhere,” to manufacture and sell, rent or otherwise dispose of the devices, subject to the payment of royalties and the conditions as stated in this contract. This modification is to be binding upon Crane only so long as the contract, signed concurrently herewith, shall be retained by Streeter-Amet, and, in the event of cancellation or forfeiture of said Streeter-Amet contract, this contract shall automatically be terminated. And Crane agrees, in the event of violation of any of the terms of the contract of April 25,1919, that, in addition to notifying Carter-Crane thereof, he will notify Streeter-Amet, and the latter shall have the right to discharge any obligation of Carter-Crane within 30 days after the expiration of the time allowed Carter-Crane.

In lieu of the provision providing for minimum royalties (which is canceled), Crane is to receive from Carter-Crane “three (3%) per centum of the gross list selling price to the ultimate consumer, as a license fee, upon every door control device manufactured and sold.” And Carter-Crane “shall use due diligence in developing the market both at home and abroad,” and “shall manufacture in quantities sufficient to meet the trade demand as developed”; and, as it is impossible now to estimate what the trade may demand, the question of any specific minimum of royalties is “to remain in abeyance until January 1, 1924”; and then the question of a “fair minimum for the future” is to be determined from the experience gained during the years 1922 and 1923; and in case the parties cannot then agree as to what would be a fair minimum the dispute shall be determined by arbitration in the usual manner. Crane, in consideration of the increase of royalties, agrees to return to Carter-Crane the stock in Carter-Crane Controls heretofore held by him.

In the contract of the same date, between Carter-Crane and Streeter-Amet, it is recited that the contract of April 25,1919, .as modified, is in full force and effect, and that by its terms Carter-Crane is empowered to grant to Streeter-Amet an exclusive license. And it is agreed in substance as follows:

Carter-Crane will not knowingly do, or omit doing, any act which will cause cancellation of the contract of April 25, 1919, as modified. And Carter-Crane grant to Streeter-Amet the “exclusive” right or license to “manufacture and sell, rent or otherwise dispose of the devices,” constructed in accordance with said inventions and which come within the terms of the contract of April 25, 1919, as modified, “within and throughout the United States and its possessions and not elsewhere.” Streeter-Amet will manufacture said devices in a good and workmanlike manner, etc., and “use its best endeavors to satisfy the demands of the users of the devices.” All drawings, patterns, dies, jigs, etc., turned over by Carter-Crane to" Streeter-Amet, or made by Streeter-Amet, shall be the property of Carter-Crane. Streeter-Amet “will produce, offer for sale, and pay royalties on, as many devices as it can induce the trade to take” in the United States, its possessions and in Canada, — it being understood that “any specific minimum for each year shall remain an open question until January 1,1924, when a proper and fair minimum for each year thereafter may be mutually agreed upon.” Streeter-Amet will account to Carter-Crane, quarterly each year, showing number of devices constructed, sold or used during the preceding quarter and will “include royalty payments of ten (10) per cent of gross list sales price to ultimate consumer for each device sold or used other than for demonstration purposes.” Carter-Crane do not warrant the validity of the patents, or that articles accompanying the inventions do not infringe other patents. In case of infringement of the Crane patents by others, Carter-Crane will prosecute infringement suits at their own expense if requested by Streeter-Amet so to do, but such expense shall not exceed the amounts of royalties received from Streeter-Amet during the pendency of such suits. Streeter-A met may, at its own expense, prosecute suits for infringements of the Crane patents and may retain all profits or damages received from such prosecution. Carter-Crane will assist Streeter-Amet in the defense or prosecution of suits involving said inventions.

The contract between Crane and Carter-Crane of April 25,1919, was further modified by another agreement between them, dated March 31,1924, in which the parties agreed in substance as follows:

That Carter-Crane shall dismiss a suit commenced by them against Crane in the superior court, No. 382773, — the same having been settled; that Crane shall turn over to Carter-Crane “the improvements in the device which he has in mind for types ‘A’ and ‘B’ doors, which improvements will greatly cheapen the cost of such controls”; that on such new and improved devices Crane “shall receive 40% of the total royalty payments coming to Carter-Crane, instead of the 30% which he gets on all other devices, including the present device, and that when the total royalties going to Carter-Crane, exclusive of those paid to Crane amount to $25,000 (being the sum incurred in developing the present door control devices), then Crane shall receive 50% of the gross royalties paid on the new and cheap controls for types ‘A’ and ‘B’ doors herein referred to, it being understood that no change is made in the present scale of royalties other than as herein stated”; and that as long as Carter-Crane, or their assignees, receive any income or returns from the manufacture or sale of said devices, even after patents have expired, Crane’s interest shall remain as herein set forth.

Inasmuch as new and strong competition from other and cheaper door control devices has been developed during the past two years, and the development of the Carter-Crane devices has been hindered by disputes and other causes operating to the injury of the market for the devices, and as neither Streeter-Amet (now manufacturing and selling those devices) nor any other responsible' manufacturer is now willing to do more than its very best to create and supply the demand for such devices, “it is agreed that the fixing of any specific minimum scale of royalties under the contracts of April 25,1919 and April 17,1922, now existing between Carter-Crane and Crane, is hereby waived

If for any reason the contract of April 17, 1922, between Carter-Crane and Streeter-Amet, is terminated, then Carter-Crane “shall have the right and power to contract if possible with any other responsible manufacturer for the making and selling of said devices, upon such terms and conditions as they may see fit, provided that said contract shall comply, as far as the interests of Crane are concerned, with the provisions of the agreements of April 25,1919 and April 17, 1922, and this agreement. ’ ’

The following facts in substance appear from the evidence, oral and documentary, as contained in the present transcript:

The devices involved are electrically operated for opening or closing heavy doors in garages, manufacturing plants, etc. They are expensive to make and were sold by Streeter-Amet for slightly over $250 each. The best field for sales was in public garages and in those connected with large apartment buildings or hotels. Practically no sales could be made for use in private garages on account of the price. Prior to the execution of the contract of April 17, 1922, Carter-Crane applied for patents in Great Britain and other European countries. Investigation disclosed that in none of those countries was there a good field for the sale of the devices and large annual fees had to be paid for the patents. It was decided to withdraw the applications, or, where patents had been obtained, to relinquish them. Crane was advised of the situation and given the opportunity to take out patents in the European countries in his own name, but he declined. The situation caused the limitation, in the license contract to Streeter-Amet, to the United States and Canada. Up to April 17, 1922, Carter-Crane had expended about $25,000 in the development of the devices. This fact is referred to in the contract of March 31,1924, signed by Crane. After April 17,1922, from time to time, Streeter-Amet expended over $50,000 in making drawings and dies, jigs, etc., for the manufacture of the devices, and in the printing and distribution of catalogues, circulars, etc., advertising the devices. It also employed three special salesmen and established selling agencies in many cities in the United States. As testified by its president, Henry F. Beck, it in good faith endeavored to promote sales throughout the United States and Canada to the best of its ability. It at all times kept up with the demand and never was unable to fill an order for lack of a device ready for delivery. It ascertained that Canada was not a good field for sales. It, however, established local agencies in the larger cities of the Provinces of Ontario and Quebec. A few of the devices were sold in Windsor, Ontario. After it had been engaged in the sale of the devices for a year or so other concerns put upon the market other cheaper devices which accomplished similar results, and competition became keen. This fact is mentioned in the contract of March 31, 1924, signed by Crane. Streeter-Amet’s sales of the „ devices gradually increased up to the year 1926, but thereafter decreased. In 1922, 121 devices were sold; in 1923,148 devices; in 1924, 179; in 1925,173; in 1926, 205; in 1927,115; in 1928, 76.

About April 17, 1922, Crane was employed by Streeter-Amet at a salary of $200 a month. His duties were to service and repair devices for which Streeter-Amet made charges to customers. He continued .to perform these duties until July 16, 1927, when he was discharged. Prior to his discharge he did considerable service and repair work for which he did not account to Streeter-Amet, but himself collected the charges and retained the moneys. He also secretly sold 10 or 12 second-hand devices, at prices considerably less than the prices for new ones, and collected and converted to his own use the moneys received therefor. These second-hand devices accomplished the same results as new ones, and the sales were made to prospective buyers of new devices. When Beck, president of ' Streeter-Amet, learned of the fact that Crane had made two of such sales he complained to him. Crane did not advise Carter-Crane that he was making such sales. In March, 1927, there was some talk between Beck and Crane as to Streeter-Amet either giving up its license or buying "out the interests of Carter-Crane and Crane. Under date of June 21, 1927, (before Crane’s discharge) Beck wrote Crane that the directors of Streeter-Amet had recently discussed the subject of buying out Carter-Crane and Crane but that, “due to a very marked falling off in the door control business and because . . . there is little possibility of developing the business on a large scale,” the directors had decided not to make the purchase. And Beck in the letter suggested that, if Crane could find some other concern to take over the manufacture and sale of the devices under license, in all probability a termination of the existing Streeter-Amet license could be brought about on certain stated terms. Nothing came of the negotiations and Streeter-Amet continued to manufacture and sell the devices under its license. About August, 1927 (after his discharge), Crane perfected an improved device and made application for a United States patent. He did not notify Carter-Crane of these facts until several months thereafter. In September, 1927, he commenced the manufacture by himself and the sale for Ms own account, of the new device. He sold some at $175 each, and others at $200 each — considerably less than the prices as charged by Streeter-Amet for the original device. Up to May, 1929, he continued to himself manufacture and sell the new devices, having sold during the period a total of forty-two (42) of such devices. They included some of the features for his original patents — the arm or lever being practically the same though shorter. They are more simple and less expensive to manufacture than the old devices. Crane was fully aware when he manufactured and sold these new devices that Carter-Crane, or its Sublicensee, Streeter-Amet, had the exclusive right to manufacture and sell the same, as provided in the contracts.

On September 7, 1927, Crane served a notice, dated September 1, 1927, upon Carter-Crane and Streeter-Amet, to the effect that they were in default under the contracts “in failing to pay royalties,” and of his intention to cancel and terminate the contracts for that reason. In the latter part of October, 1927, Carter, one of the trustees of Carter-Crane, saw in operation one of Crane’s new devices, which Crane had sold, and he (Carter) was favorably impressed with it. According to Carter’s testimony, he told Crane that the latter under the contracts should have informed Carter-Crane of the invention and that Crane’s manufacture and sale of the new devices on his own account was a violation of the contracts and injured the business of Carter-Crane and Streeter-Amet; that Grané replied that he was acting under the advice of counsel and that he “needed the money”; that on the same day Carter told Beck to send a draftsman to make drawings of the new device, which drawings Crane did not have, and that Streeter-Amet ought to manufacture and sell the new device; that after receiving a preliminary drawing from the draftsman and a report as to the approximate time and expense required to construct dies, jigs, etc., Beck estimated that the cost of complete working drawings, and the making of the necessary dies, jigs, etc., would be about $10,000; and that Beck was not inclined under existing circumstances to make such expenditures. According to Beck’s testimony the reason for his unwillingness to have Streeter-Amet incur such an expenditure, and begin the manufacture and sale of Crane’s new device, was the fact that Crane had served the notice of his intention to cancel, if he could, the existing contracts, and, hence, he (Beck) did not think it wise to make any new outlays until it was decided whether Crane could or could not legally cancel said contracts. Carter, assenting to Beck’s position, did not further urge Streeter-Amet to make such expenditure for the present or take on the manufacture and sale of the new devices.

On November 12, 1927, Crane filed a bill in the superior court against Streeter-Amet and Carter-Crane, praying that both render an account and pay to him “accrued royalties due,” to be ascertained on the accounting; that the contract of April 25, 1919, be rescinded “for lack of performance and as being against public policy and unconscionable”; that the contract of April 17, 1922, be rescinded “as being without consideration and for fraud and misrepresentation”; that the contract of March 31, 1924, be rescinded “as being without consideration and procured by duress”; and that Streeter-Amet and Carter-Crane be enjoined from interfering with Crane in carrying on his lawful occupation, etc.

On January 7, 1928, on Crane’s motion, the bill was dismissed as to Streeter-Amet. On the same day Crane filed a supplemental bill, alleging that “under date of September 1, 1927” he gave written notice to Carter-Crane of its “failure to pay royalties”; that it had not “during the succeeding 90 days” corrected the default; that “since December 1, 1927, the date of the expiration of said 90 day period,” he had given to Carter-Crane “due notice of said default and of the cancellation of said contracts”; that the 30-day period after December 1, 1927, allowed to Streeter-Amet, has now expired “without payment to or offer to pay said Crane for the royalties in arrears”; that the contract of April 25, 1919, provided that, in case of termination of the contract, Carter-Crane would turn over to Crane a complete set of drawings and specifications and “the patterns, jigs and dies employed in the manufacture of the devices”; that Crane is able to make manufacturing or license arrangements with another concern, and “he must have said drawings, patterns, jigs, dies, etc., the denial of which from Carter-Crane is causing him irreparable damage. ’ ’ The prayer of the supplemental bill was to the same effect as the original, with the addition that the court order that said drawings, patterns, jigs and dies, etc., be turned over to Crane. On November 10, 1928, the three trustees of Carter-Crane filed an answer to the bill and supplemental bill. They admitted the execution of the contracts and the payment of royalties to Crane; denied that any of the contracts was procured by misrepresentations, fraud or duress, or that any royalties were unpaid, or that Carter-Crane was in default in any manner, or that Crane had given due notice of his intended cancellation of the contracts, or that he was entitled to any relief; and alleged that the falling off in the sales of the devices was largely due to Crane’s failure to perform the contract on his part.

On July 2, 1928, while Crane’s action was pending, the trustees of Carter-Crane filed their original bill against Crane in the present case. It was superseded by an amended bill, filed October 16, 1928, in which the contracts were set forth in full. Complainants alleged that they had expended more than $25,000, and Streeter-Amet a larger aggregate sum, in developing the manufacture and sale of the devices; that, in violation of the provision in the contracts and of complainants’ rights, Crane had sold to certain individuals or corporations (naming them) devices covered by the patents, had installed the devices and had appropriated to his own use the proceeds; and that he was discouraging others from purchasing the devices manufactured by Streeter-Amet. The bill also set forth the fact of Crane’s service on Carter-Crane on September 7, 1927, of the notice that Carter-Crane was in default “in payment of royalties” and of his intention to cancel the contracts for that reason, and further alleged that on November 5, 1927, Crane served upon them a further notice that he was about to file a bill for the cancellation of the contracts because of “failure of performance,” because the contracts “were procured by fraud and duress,” and because they “were unconscionable”; that on December 2, 1927, he served a further notice upon them that, because of their “failure to pay royalties,” all the contracts “had been terminated”; that Crane was wrongfully claiming that the contracts had been terminated, and that he was wrongfully giving out to the trade that Streeter-Amet had no longer any right to manufacture or sell the devices, to complainants’ great damage; and that as a matter of fact said contracts were still legally in force and effect. The bill prayed that the court decree that the contracts were still in full force,' and that Crane, his agents and attorneys, be restrained by injunction from giving out to the trade and others that said contracts were no longer in force, and from in any manner discouraging prospective purchasers from purchasing the devices from Streeter-Amet, and from in any manner threatening said purchasers. On Octoher 26, 1928, Crane filed his answer admitting the giving of the notices, denying that the contracts were in force, and alleging that complainants were not entitled to the relief as prayed, or any relief.

On November 16, 1928, both causes (Crane’s suit and complainants’ suit) came on for trial before the chancellor. By agreement evidence was first introduced in Crane’s suit during which he testified at length in his own behalf and one witness for him. He also introduced certain written evidence. In defense of Crane’s suit, two of the trustees of Carter-Crane testified; also Beck, president of Streeter-Amet; and other writings were introduced. The trial of Crane’s suit was finished on November 20, 1928, and it was stipulated that the evidence, taken therein, might in the subsequent trial of complainants ’ suit be considered in that suit, “so far as material.” The hearing of complainants ’ suit did not, however, commence until May 17,1929.

On November 23, 1928, the court entered a decree in Crane’s suit dismissing his bill and supplemental bill “for want of equity.” In the decree the court found that Crane “offered no evidence that any of the contracts were executed by him as the result of any fraud, misrepresentation or duress, or that they were unconscionable, or against public policy, or without consideration”; that Crane’s notice, dated September 1, 1927, of alleged default and of his intention to cancel the contracts, was not actually served upon Carter-Crane until September 7, 1927; that under the contracts, after delivery of such a notice, Carter-Crane had the right for 90 days to cure any claimed default ; that Crane’s further notice, dated and served upon Carter-Crane on December 1, 1927, and stating that because of Carter-Crane’s failure to cure the default he had elected to and did cancel the contracts, was delivered to Carter-Crane at a date less than 90 days after Crane’s first notice was delivered; and that Crane’s said notice of December 1st of cancellation and forfeiture of the contracts was “ineffectual and void.”

On October 1, 1928, before said decree had been entered, Streeter-Amet, by Beck, wrote Carter-Crane to the effect that, because of Crane’s formal notice of December 1, 1927, canceling the contracts, and because he was giving out to the trade that such contracts had been canceled and Streeter-Amet’s right to manufacture and sell the devices had ceased, Streeter-Amet’s business in selling the devices had been seriously injured, and that Streeter-Amet had concluded that, under its contract of April 17, 1922, it “was not obligated to submit further to this situation.” The letter gave formal notice to Carter-Crane that it would, from and after December 1, 1928, cease all operations under its contract.

On November 26,1928 (three days after the entry of said decree against Crane), Carter-Crane, by Carter, for the first time replied to Streeter-Amet’s letter and notice, stating that they had not theretofore made reply as they had anticipated an early determination of Crane’s suit against them, that said suit had finally been decided in their favor, that they were not responsible for Crane’s actions in attempting to cancel the contracts or giving out to the trade that the same had been canceled, and demanding that Streeter-Amet continue, in accordance with its contract, to manufacture and sell the devices. There was further correspondence, and on December 8, 1928, Carter-Crane wrote Streeter-Amet requesting that it temporarily accept and fill all orders for the devices, and agreeing that compliance therewith on the part of Streeter-Amet should be without prejudice to any claims arising between them. Streeter-Amet complied with the request and continued to manufacture and sell the devices. For the period from January 1 to May 31,1929, it received from sales of devices the aggregate sum of about $5,000, and accounted for the same.

On November 26,1928, also, Crane served upon Carter-Crane new notices of his intention to terminate the contracts of April 25, 1919, and April 17, 1922, not upon the ground of “failure to pay royalties” as stated in his former notice of September 7, 1927, but upon other grounds for the first time stated, viz., failure on the part of Carter-Crane (a) “to use due diligence in developing the market both at home and abroad for door control devices”; (b) “to manufacture in quantities sufficient to meet the trade demand ’ ’; and (c) “to institute or prosecute in good faith any suit or suits for infringement of the patents included in said agreements, notwithstanding the fact that numerous infringements have been or are taking place.” None of the new notices was served upon Streeter-Amet.

After the temporary arrangement had been made in December, 1928, between Carter-Crane and Streeter-Amet, Carter-Crane, knowing that Streeter-Amet desired to discontinue the manufacture and sale of the devices, and having in mind the provision of the contract of March 31,1924 (that in the event of the termination of the Streeter-Amet contract it had the right to contract with any other responsible manufacturer for tne making and selling of the devices, etc.), at once entered into negotiations to that end with numerous manufacturers. They found several such manufacturers who were willing to do that work upon the proposed terms, but none was willing to consummate any contract with Carter-Crane until the pending litigation was ended.

On January 7,1929, complainants filed their amended and supplemental bill against Crane, in which they repeated the allegations of their amended bill of October 16, 1928. They also alleged the fact of Crane having served on November 26, 1928, his new notices of intention to terminate the contracts because of Carter-Crane’s claimed defaults as therein stated for the first time. They also alleged facts showing that Carter-Crane were not in default in any of the particulars as stated. They further alleged that Crane, during the past two years, had improperly endeavored to deprive them and Streeter-Amet of their rights under the contracts, in order that he (Crane) might secure the benefit of the large sums of money which Carter-Crane and Streeter-Amet had expended in the development of the business, that Crane had frequently threatened that he would, in one way or another, terminate said contracts; that Crane’s acts had caused irreparable damage to complainants; that they had no adequate remedy at law; and that Crane was financially unable to respond to any suits by complainants for damages for Crane’s breaches of the contracts and for his unlawful acts. The bill prayed for an injunction restraining Crane, his agents and attorneys, from giving out to the trade or claiming that said contracts are not in full force; from further attempting to terminate the contracts and from' discouraging prospective purchasers of the devices from the purchase or use of the same and from threatening such purchasers; and for further relief. After Crane’s demurrer to the bill had been overruled he filed an answer.

Ón March 28, 1929, Crane served upon Carter-Crane a written notice to the effect that, because of Carter-Crane’s defaults in their obligations under said contracts (as stated in Crane’s notice of November 26, 1928), he has canceled and terminated all of them, and that, in view of such termination he demanded “compliance with the terms of paragraph 13 of said contract of April 25, 1919.” The paragraph referred to provides that “in case of termination hereof by default, or otherwise,” Crane shall receive from Carter-Crane “one complete set of each active drawing, specification and pattern,” as may be in use at time of such termination, “together with all jigs and dies employed in the manufacture of the devices.”

On April 3, 1929, complainants filed their supplemental bill, setting forth the service upon them on March 28 of Crane’s notice of his termination of the contracts and demand for the property mentioned. They alleged that by reason of the notice Crane now is claiming that the contracts are no longer in force and is so informing the trade and others; that complainants are not in default; and that Crane is not entitled to cancel the contracts or to claim that they have been terminated. The prayer of the bill, as to the injunctional relief asked, is substantially the same as in the amended and supplemental bill above-mentioned, and there is the additional prayer that the court decree that the contracts have not been canceled or terminated by Crane, and that Crane’s said notice of March 28,1929, is void and of no effect. Crane’s answer was ordered to stand to the supplemental bill.

On the hearing of complainants’ suit, which was begun in May, 1929, a mass of evidence, oral and documentary, was introduced by both parties. Beck, president of Streeter-Amet, and Carter and Benson, two of the complainants, testified at length for complainants. Crane was called as a witness for them. And complainants introduced in evidence the pleadings and decree, as above-mentioned, in Crane’s suit against them. For defendant Crane testified in his own behalf as did three other witnesses. Beck was called as a witness for Crane and gave further testimony.

In addition to the facts, as above outlined in this opinion, the following other facts were disclosed: After the contracts of April 17, 1922, were executed, Carter-Crane, through the efforts of Carter, assisted Streeter-Amet in advertising the devices and in stimulating sales. Through Carter’s efforts many sales were made, including a number of devices to the new Union Station at Chicago and to the Ford automobile plant at Detroit. Carter-Crane, as well as Streeter-Amet, diligently and in good faith pushed the sales of the devices. When, because of Crane’s breaches of the contracts and the strong competition which had developed, Streeter-Amet gave notice that it would cease, on December 1,1928, to manufacture and sell the devices, Carter-Crane used their best efforts to prevent it from so doing, made the temporary arrangement as above stated for it to continue making sales, and immediately started negotiations to procure another responsible manufacturer to take the place of Streeter-Amet, and pushed those negotiations as far as possible in view of Crane’s notices and the pending suit.

As to the issue concerning infringements by others of the Crane patents and the prosecution by Carter-Crane of such suits, the evidence does not disclose numerous infringements, as claimed by Crane, or any default on the part of Carter-Crane or Streeter-Amet in prosecuting any suit or suits. No notice of any claimed infringement was given by Crane or any request made by him to bring a particular suit. Furthermore, Crane had the right under the contract of April 25, 1919, in case of refusal by Carter-Crane to bring an infringement suit, to himself bring it, and in the event of the successful termination thereof he would be entitled to retain all profits or damages recovered. It appears that in 1926, Streeter-Amet, by its Chicago patent attorney Lotz, commenced one infringement suit in the United States Court at Minneapolis, Minnesota, but that the suit was not very vigorously prosecuted. One of the reasons was that, from the defendant’s answer in the suit, it appeared that there was some doubt whether Crane’s patent sued upon was a valid one, in view of the prior art as disclosed in said answer. Lotz was of the opinion that it was the better policy not to press the suit to trial and his advice was followed, — Beck telling Lotz to use his best judgment in the matter. It does not appear that Crane made any objections to this course.

After a careful consideration of the provisions of the contracts, the breaches by Crane, and all the facts and circumstances as disclosed by the evidence, we are of the opinion that complainants were not in default under the contracts for any of the reasons as stated in Crane’s notice of November 26,1928; that Crane could not legally or equitably terminate the contracts on March 28,1929, and the same were not then terminated; and that the trial court erred in dismissing complainants’ bills for want of equity. In Palmer v. Ford, 70 Ill. 369, 377, it is said: “Forfeitures are not regarded by courts with any special favor. The party who insists upon a forfeiture, must make clear proof, and show that he is entitled to make such declaration. It is a harsh way of terminating contracts, and not infrequently works great hardships.” (See, also, Jones & Dommersnas Co. v. Crary, 234 Ill. 26, 30; Gessler v. Erwin Co., 182 Wis. 315; Schweyer, etc., Co. v. Regan Safety Devices Co., 4 Fed. Rep. (2d) 970.) In Barnett v. Q. & C. Co., 226 Fed. Rep. 935, 940, it is said: “The modified exclusive license under a patent is a unique property right, against the destruction of which a court of equity will give protection by injunctive relief.” And we think that the court, in view of all the facts and circumstances in evidence, should have decreed that the contracts were in full force and effect and should have granted an injunction against Crane in substantial accord with the prayers of complainants ’ amended and supplemental bill and supplemental bill.

Accordingly, the decree of the superior court of June 27, 1929, dismissing complainants’ bill for want of equity, is reversed, and the cause is remanded to the superior court with directions to enter a decree to the effect that Crane’s attempted forfeiture and termination of the three contracts between the parties (dated respectively April 25, 1919, April 17, 1922, and March 31,1924) are void and of no effect, and that the defendant, Crane, his agents and attorneys, be enjoined and restrained from claiming or giving out to the trade or others that said contracts are no longer in force, from discouraging any and all persons, firms or corporations from purchasing the door control devices mentioned in said agreements from complainants or their sublicensees, or from using the same, and from in any manner threatening such purchasers or users.

Reversed and remanded with directions.

Barnes, P. J., and Scanlan, J., concur.


text:
    Barnes Scale Company, Appellant, v. Oscar Rose et al., Defendants. Meyer W. Lippman (sued as John Doe), Appellee.
    Gen. No. 33,997.
    Opinion filed April 22, 1930.
    Victor B. Scott, for appellant.
    No appearance for appellee.
   Mr. Justice Gridley

delivered the opinion of the court.

On May 24,1929, plaintiff commenced a replevin suit to recover possession of one “Barnes Scale, No. 15574. ’ ’ On the following day the bailiff took the property under the writ, served the writ upon Meyer W. Lippman (sued as John Doe) and turned over the property to plaintiff, taking its receipt therefor. The other defendants were not served with process. Lippman entered his appearance, and on September 25, 1919, there was a trial without a jury resulting in the court finding the property in defendants, and adjudging that they recover the possession and that a writ of retorno habendo issue. Plaintiff has appealed. Lippman has not filed any brief in this court.

On May 3,1928, under a written conditional contract, plaintiff, by its salesman, Eli A. Kling, sold the particular scale to Oscar Rose for $245, — $20 cash down, and the balance of $225 in 21 equal monthly instalments of $10 and one of $15. Kling, plaintiff’s witness, who also had charge of collections, testified that Rose made the cash payment of $20 and three of the $10 payments (a total of $50), but did not make the third payment until April, 1929; that several times in May, 1929, he demanded of Rose but did not receive another payment; that he then demanded of him the scale which demand was refused; that shortly thereafter he found the store closed with a sign on the door “Mortgagee’s Sale”; and that shortly thereafter plaintiff commenced the present action. The contract, signed by Rose, expressly provided-that the title to the scale should remain in the seller (plaintiff) until paid for in full, and that, in case of Rose’s failure to make the payments at any of the times mentioned, plaintiff had the right to repossess itself of the scale. On the trial Kling was cross-examined by Lippman’s attorney, but Lippman did not introduce any evidence. It appeared from Kling’s cross-examination that plaintiff, before the present action was commenced, had not made any demand for the scale upon Lippman. The court held -that, although the scale replevied was the identical one mentioned in the contract and that Rose had failed to -make payments thereon as agreed and that plaintiff’s demand upon him for the scale had been refused, still plaintiff could not recover the possession of the scale in the absence of proof of a demand upon Lippman prior to the commencement of the present action.

We think that the court erred in its holding and in entering the judgment against plaintiff - as first above-mentioned. There is no evidence contained in the present transcript shewing what interest Lippman had, or claimed to have, in the scale. He could have introduced evidence showing what interest, if any, he had, but he did not do so. He, however, contested plaintiff’s right to replevy the scale, although the evidence showed that plaintiff had the right, under the contract and because of Rose’s defaults, to take possession of it. Even assuming that Lippman had possession of the scale when it was seized by the bailiff under the writ, and that he claimed the right of possession as a chattel mortgagee, still, by his contesting at the trial plaintiff’s right of possession, a demand upon him by plaintiff for the scale was not required before it commenced suit. In Cobbey on Replevin, p. 242, sec. 450, it is said: “Where both parties claim title to personal property and the right of possession thereunder, a demand is not necessary to enable either to maintain replevin against the other. . . . This claim of ownership by defendant is inconsistent with the theory that he might have surrendered them (the chattels) on demand, and removes the necessity for demand if one had been necessary.” In National Bond & Investment Co. v. Zakos, 230 Ill. App. 608, 612,. it is said: “The object of a demand is to afford the defendhnt an opportunity to restore the property to the one entitled to possession without being put to the expense and annoyance of litigation. But where it appears that the defendant either before the action was instituted or upon the trial contests the plaintiff’s rights upon the merits, or where it appears that a demand would have been of no avail, then none is required, for the law never requires the doing of a useless thing.” (See Kee & Chapell Dairy Co. v. Pennsylvania Co., 291 Ill. 248, 255.)

The judgment of the municipal court must- be reversed and, inasmuch as it appears that Bose was not served with process and did not appear, the cause is remanded for further proceedings.

Reversed and remanded.

Barpes, P. J., and Scaplap,’ J., concur.


text:
    John Karchiunes, Appellant, v. John Mitsias and Bernard W. Snow, Bailiff of the Municipal Court of Chicago, Appellees.
    Gen. No. 34,007.

      Opinion filed April 22, 1930.
    Brundage & Gorman, for appellant.
    Julius L. Kabaker, for appellees.
   Mr. Justice Gridley

delivered the opinion of the court.

On July 31, 1929, plaintiff, under section 48a of the. Municipal Court Act (Trial of right of property), Cahill’s St. ch. 37, H 437, filed a praecipe and a verified statement of claim against defendants. He, as claimant, alleged that he is the owner of one Singer sewing machine (and other enumerated chattels); that the property has been levied upon by virtue of a certain writ of execution issued out of said court, No. 1423619, wherein Mitsias is plaintiff and Christ Katsipos and Gust Katsipos are defendants; and that the property, of the value of $8,000, is now in the possession of said Snow, as bailiff. Defendants entered their appearance by attorney and there was a trial without a jury, during which both parties introduced oral and documentary evidence, and at the conclusion of which, on August 28, 1929, the court found the issues for “the defendant and that the right to the property is in the defendant,” and entered “judgment on the -finding for defendant.” The present appeal followed.

On the trial the following facts were, disclosed: In August, 1927, Karchiunes and the two Katsiposes entered into a copartnership agreement to conduct a “pressing shop” business at No. 2956 East 92nd street, Chicago. Each was to have a one-third interest, and, as partners, they conducted the business until July 18, 1929, when the partnership was dissolved by mutual consent. During its existence, on June 5, 1928, the partners, as mortgagors, executed a chattel mortgage, conveying to Karchiunes (plaintiff and one of the partners) certain enumerated chattels, “together with all other fixtures, equipment and other property” in the shop, and “together with the lease and good will of said business.” The mortgage secured three notes, each signed by the three partners, payable to bearer and dated June 5, 1928. Two of the notes were for $1,000 each, and due respectively in one and two years after date; the third was for $4,000, due in two years and eleven months after date. The notes were delivered to Karchiunes, he having loaned the partnership $6,000. The mortgage was acknowledged on June 14, 1928, by the mortgagors’ duly constituted attorney in fact, and the certificate of acknowledgment and entry is signed by “James A. Kearns, clerk of the municipal court of Chicago,” with seal of the court affixed. The mortgage was recorded on the same day. All of the mortgagors were residents of the second district of the municipal court of Chicago.

When the first note of $1,000 matured it was not paid, and Karchiunes caused the chattel mortgage to be foreclosed and he purchased all of the chattels mentioned in the mortgage at the foreclosure sale, which occurred on July 18, 1929. On the same day the two Katsiposes executed and delivered to Karchiunes a bill of sale conveying to him the same chattels as mentioned in the mortgage. Karchiunes thereafter conducted the pressing shop business as sole owner at the same location and the two Katsiposes worked for him as employees. .

In the meantime on June 6, 1929, John Mitsias recovered a judgment by confession in the municipal court against the two Katsiposes, individually, for $4,983.75. On July 3, 1929, while the chattel mortgage was being foreclosed, but before the bill of sale was delivered to Karchiunes, and before the partnership was dissolved, an alias execution on said judgment was placed in the hands of Snow, as bailiff, and he made demand upon the two Katsiposes (each of whom delivered to him sworn schedules to the effect that neither was possessed of any property subject to execution) and on July 26, 1929, he levied on the chattels and other property then in the possession of Karchiunes. His so-called “Return of Levy” is as follows:

“By virtue of the annexed alias writ of execution, No. 1423619, issued from the municipal court of Chicago in favor of John Mitsias and against Christ Katsipos and Gust Katsipos, defendants, I did, on July 26, 1929, levy upon all the right, title and interest of said defendants in and to the following described property”; (here are mentioned the same chattels as enumerated in plaintiff’s statement of claim, first above mentioned).

In sections 24 and 25 of the Uniform Act relating to Partnerships, in force July 1, 1917 (Cahill’s St. 1929, ch. 106a, p. 1980) it is provided in part:

“Sec. 24. The property rights of a partner are (1) his rights in specific partnership property, (2) his interest in the partnership, and (3) his right to participate in the management.
“Sec. 25. (1) A partner is a co-owner with his partners of specific partnership property holding as a tenant in partnership.
“(2) The incidents of this tenancy are such that: . . .
“(c) A partner’s right in specific partnership property is not subject to attachment or execution, except on a claim against the partnership. . .

Under the evidence, as above outlined, we think it clear that, if the chattel mortgage to Karchiunes was a valid one as against third persons, the levy of Mitsias ’ execution on the right and interest of the two Katsiposes in the same chattels could not prevail as against the mortgagee. Mitsias ’ counsel here contends that the mortgage was not valid as against third persons because section 2 of our Chattel Mortgage Act, Cahill’s St. ch. 95, 2, was not complied with, in that (the mortgagors being residents of the second district of the municipal court of Chicago) the mortgage was acknowledged before the clerk of the municipal court in the first district, whereas it should have been acknowledged before a deputy clerk in the second district. Karchiunes ’ counsel contend to the contrary. Regardless of the question as to the validity of the chattel mortgage as to third persons, we are of the opinion that the judgment appealed from must be reversed, because of the provisions of the above quoted statute concerning partnership property and the rights of partners. When Mitsias ’ judgment was obtained on June 6, 1929, the partnership, consisting of the two Katsiposes and Karchiunes, was in existence and possessed of the chattels in question as partnership property, which chattels were subject to the Karchiunes mortgage, valid at least as between the parties thereto. The two Katsiposes, as partners, each had a right or interest in the chattels subject to the mortgage. Mitsias ’ judgment was not against the partnership, but against the two Katsiposes individually. Their right or interest in the “specific partnership property” was “not subject to attachment or execution, except on a claim against the partnership.” After the execution on the judgment had been placed in the bailiff’s hands, and before the levy, Karchiunes caused a foreclosure sale of the chattels to be made to him on July 18, 1929, and on the same day the two Katsiposes by bill of sale conveyed all their right, title and interest therein to him and he immediately took possession as sole owner. After these happenings the chattels were no more subject to an execution on a claim or judgment against the two Katsiposes individually than they were before.

The judgment appealed from is reversed and the cause is remanded to the municipal court with directions that the court order the bailiff to release the levy and that the court enter a judgment in favor of the plaintiff, Karchiunes, for the property in question.

Reversed and remanded with directions with finding of fact.

Barnes, P. J., and Scanlan, J., concur.

Finding of fact: We find as a fact that the right to the property in question was and is in the plaintiff, Karchiunes.


author: Mr. Justice Scanlan

text:
    Royal Indemnity Company, Appellant, v. Seth Siders et al., Appellees.
    Gen. No. 33,746.

      Opinion filed April 22, 1930.
    Kremer, Branand & Hamer, for appellant.
    Church, Traxler & Kennedy, for appellees; Dean Lake Traxler and Walter W. Stevens, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.

Boyal Indemnity Company, a corporation, sued Seth Siders, a corporation, Mather & Co., a corporation, and C. J. Howard, a corporation, in the Municipal Court of Chicago in an action of the fourth class. The cause was submitted to the court for trial and there was a finding in favor of the defendants. Judgment was entered on the finding and plaintiff has appealed.

The claim of the plaintiff was based upon a “Workmen’s Compensation and Employers’ Liability” policy issued by it to the defendants and upon which the latter paid an estimated advance or deposit premium of $321. After the expiration of the policy the plaintiff caused an audit to be made of the defendants’ payrolls and thereafter claimed that there was further premium due it. The case was tried upon a stipulation of facts in which the defendants admit the issuance of the policy and that premiums to the amount of $310.99 were earned by the plaintiff; that the defendants paid to “outside salesmen” employed by them on a commission basis $375,820.76, “but defendants do not agree that the sums so paid to such salesmen are included in or intended to be covered by said policy, and defendants reserve the right to object to the offer and/or admission of such evidence. All parties agree, however, that if, and only if, such evidence is held by the Court to be competent and admissible and if under all the evidence and the law in this case the defendants are held to be liable for the earned premium' in respect of such sums, then, but only in such case, the earned premium in respect of such sums is agreed to amount to $603.72.” In the lower court the plaintiff claimed that it was also entitled to additional premiums on account of salaries paid to three vice-presidents, but the court held adversely to this claim and the plaintiff, in its brief, concedes that this ruling was correct.

The plaintiff states that the sole question in the case is, are the defendants liable, under the policy, for additional premiums on account of payments made by them to “outside salesmen” employed on a commission basis. The trial court held that the plaintiff was not entitled to such additional premium and the plaintiff contends that under the policy and the stipulated facts the trial court should have found that issue in favor of it.

The policy is entitled “Standard Workmen’s Compensation and Employers’ Liability Policy” and the concluding part of it is called “Declarations.” From the photostatic copy of the policy, contained in the record, it appears that this part of the policy is drafted on a printed form used by the plaintiff and so far as it is pertinent to the present inquiry it reads as follows :

From an examination of the photostatic copy it appears that Item 3, 5 (b), as the form was printed, read: "Outside Salesmen, collectors and messengers (where-ever engaged) who do not deliver merchandise." Before the issuance of the policy, the plaintiff struck out all of these words excepting the first one, "Outside," and it added two words, "Sales Managers," so that same item read, "Outside Sales Managers." The plaintiff contends that ~`Outside Sales Managers "is only "an exalted name for traveling salesmen." A traveling salesman has been defined as one who goes out and solicits business, takes orders for goods, etc. (Upchurch v. City of La Grange, 159 Ga. 113; T. C. May Co. v. Menzies Shoe Co., 184 N. C. 150; Strain v. Chicago Portrait Co., 126 Fed. 831, 835.) On the other hand, a "sales manager" is not a mere "salesman." "Ordinarily, the term manager means `one who has the conduct or direction of anything; as the manager of a theatre; the manager of a lottery, of a ball, etc.'" (Commonwealth v. Johnson, 144 Pa. St. 377, 381.) "A manager is a person appointed or elected to manage the affairs of another." (19 Am. & Eng. Enc. of Law (2d Ed.) 707.) As the defendants argue: "It must have been clear to plaintiff, however, at the time plaintiff issued its policy, that it was no mere idle gesture to cross out `salesmen' and insert `sales managers' in its stead. The two words have different meanings in our ordinary, every day conversation; it was not merely a question of choosing a word to ff1 in a blank space. Plaintiff was put upon inquiry, and it is safe to assume in this argument that plaintiff did inquire and did know that defendants' salesmen greatly outnumbered its salesmanagers, and that the policy covered the latter but intentionally omitted and failed to cover the former."

But the plaintiff contends that it is perfectly clear from the terms of the policy "that it covered any person or persons whatsoever employed by the defendants and that the premium was to be based upon the entire remuneration paid such persons.” The plaintiff cites the following sections in support of this contention-:

“Five. This agreement shall apply to such injuries sustained by any person or persons employed by this Employer whose entire remuneration shall be included in the total actual remuneration for which provision is hereinafter made, upon which remuneration the premium for this Policy is to be computed and adjusted, . . .
Six. This agreement shall apply to such injuries so sustained by reason of the business operations described in said Declarations which, for the purpose of this insurance, shall include all operations necessary, incident or appurtenant thereto, or connected therewith, whether such operations are conducted at the work places defined and described in said Declarations or elsewhere in connection with, or in relation to, such work places.” (Italics ours.)

In our judgment these sections do not sustain the plain-, tiff’s instant contention. ' By Section Six only those employees engaged in the business operations “described in said Declarations” and “all operations necessary, incident or appurtenant thereto, or connected therewith,” are covered. To determine what particular employees are covered it would seem necessary to refer to said “Declarations.” As the defendants argue: “If, as plaintiff contends, the policy was intended to cover ‘any persons whatsoever,’ it would have been a simple matter to state just that in so many words.” Section Five, upon which plaintiff strongly relies, must be construed in connection with Condition A, which reads: “A. The premium is based upon the entire remuneration earned, during the Policy Period, by all employees of this Employer engaged in the business operations described in said Declarations together with all operations necessary, incident or appurtenant thereto, or connected therewith whether conducted at such work places or elsewhere in connection therewith or in relation thereto; . . (Italics ours.) From the f oregoing, it would appear that Section Five is subject to the same limitations as Section Six.

In support of its instant contention the plaintiff also cites the following indorsement attached to the policy on the date of the issuance of the same :

“Workmens’ Compensation Extension Endorsement.
It is understood and agreed that this insurance is hereby extended as follows:
(1) To assume the obligations of this Employer under any Workmen’s Compensation Law of any State of the United States of America, to pay compensation for personal injuries, fatal or non-fatal, sustained by any traveling salesmen, collectors, buyers, messengers, drivers, drivers’ helpers, chauffeurs and chauffeurs’ helpers while temporarily and not permanently in such States and while engaged in following such occupations in the employ of this Employer in the trade, business, or profession of this Employer described in this policy provided the remuneration of such employees is included in the amount of remuneration earned by employees of this Employer upon which the premium for this policy is based and provided further that such injuries arise from accidents occurring during the time that this policy is in force.” (Italics ours.)

Plaintiff argues that this indorsement aids its contention that the policy covers any and all employees of the defendants. By the proviso in the indorsement the employees covered by it are apparently limited to those whose remuneration is covered by the terms of Condition A (heretofore referred to), and, as we have heretofore shown, the entire remuneration to which Condition. A applies is limited to “employees of this Employer engaged in the business operations described in said Declarations.” (Italics ours.) The indorsement enlarges the territory covered, but, in our judgment, it is far from clear that it was intended to enlarge the classes of employees otherwise covered by the policy.

The plaintiff concedes that unless it is clear that the policy covers “outside salesmen” it is not entitled to recover. There is much force in the position of the trial judge that when the plaintiff “struck out ‘salesmen and outside salesmen’ and inserted ■ ‘sales managers’ it intended to cover as to sales managers and not as to salesmen.” If the policy was intended to cover all persons employed by the defendants, as plaintiff contends, it is difficult to understand why the policy did not so state. If the policy had so stated, many provisions in it would have been entirely unnecessary. If the policy is ambiguous, the plaintiff, and not the defendant, is responsible for that condition. After a careful consideration of the instant question, we are satisfied that we cannot hold that it is clear that the policy covers “outside salesmen.”

The judgment of the Municipal Court of Chicago is affirmed.

Affirmed.

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


text:
    Kate Frenkel, Appellee, v. Mary A. Ragen (Formerly Mary A. Rogers), Appellant.
    Gen. No. 33,797.
    Opinion filed April 22, 1930.
    Frank & Shomberg, for appellant; Milton Hart, of counsel.
    Schimberg & Harrison, for appellee.
   Mr. Justice Scanlan

delivered the opinion of the court.

Kate Frenkel, plaintiff, sued Mary A. Ragen (formerly Mary A. Rogers), defendant, in an action of contract. There was a trial by the court and a finding that there was due plaintiff from defendant the sum of $1,187.21. Defendant has appealed from a judgment on the finding.

Defendant was the owner of the premises, 6411 Vernon avenue, Chicago, and on April 19, 1926, she, as vendor, entered into a written agreement for a warranty deed to said premises with Arthur W. Willis and Katherine E. Willis as vendees. The agreement was recorded. On March 3, 1927, defendant sold and conveyed the premises to plaintiff for the sum of $8,386.55, subject to a first mortgage in the sum of $4,500 and subject also to the said agreement. At the same time, for the sum of $3,886.55, defendant assigned to plaintiff the agreement and she also gave plaintiff a chattel mortgage note in the sum of $1,200. On the back of the note appears the following: “Subject to terms of chattel mortgage of even date.” The chattel mortgage, also signed by defendant, contained the following provisions:

“It is hereby understood and agreed by and between the mortgagor and the mortgagee, and the legal holder of said chattel mortgage and note, that if and when the sum of Twelve Hundred ($1200.00) Dollars be paid on account of certain real estate purchased by Arthur W. Willis and Katherine Willis, his wife, from Mary A. Rogers, said property being commonly known as number 6411 Vernon Avenue, Chicago, Illinois, as evidenced by a certain written contract dated April 19, 1926, that said chattel mortgage will then be released, surrendered and note described therein duly marked paid, cancelled and surrendered. The said sum of Twelve Hundred ($1200.00) Dollars to be paid over
and above all credits due Arthur W. Willis under the contract as of this date.
. . . And upon default in any of the payments to be made by said Arthur W. Willis and Katherine Willis, then the sum provided for in this mortgage shall at once become due and payable as to such defaulted payments.
. . . Any payment made by Mary A. Rogers shall entitle her to have credit for such payments in and to the Willis contract.”

At the time of the signing of this last instrument there was due from the Willises on the agreement, $4,915.37. From April 1, 1927, to May 1, 1928, the Willises made payments thereon to plaintiff aggregating $901.30. Plaintiff credited $524.38 of this amount to principal and $376.92 to interest. On September 20, 1928, the Willises had failed to pay six monthly items of $85 each that were due. They also owed $157.50 interest on the first mortgage, $249.67 for general taxes, $16.80 for water taxes and $31.25 for special assessments. On September 20, 1928, in consideration of $75 then paid to them by plaintiff, the Willises executed the following assignment on the back of the agreement:

“In consideration of Seventy-five ($75.00) Dollars receipt whereof is hereby acknowledged, the undersigned hereby transfer, assign and convey to Kate Frenkel all our rights and interest of every kind and nature in and to the within Articles of Agreement as provided for on reverse side hereof.
Arthur W. Willis (Seal)
Katherine E. Willis (Seal) ”

On the same date the Willises executed a quit-claim deed to plaintiff to the premises in question. This instrument contained the following:

“ (Being their interest acquired by a certain contract dated April 19, 1926, and recorded in the Recorder’s office as Doc. 9245310.) ”

Prior to September, 1928, the Willises had collected the rents for the premises, but thereafter plaintiff collected all rents. On March 8, 1929, plaintiff and her husband conveyed the premises by warranty deed to Newman A. Dumont. This conveyance made no reference to the Willis agreement. On March 12, 1929, Dumont executed a trust deed on the premises to secure his note for $4,000. On March 22, 1929, plaintiff brought the present action, which is based upon the chattel mortgage note of $1,200. The assignment of the agreement by the Willises and the giving of the quit-claim deed by them to plaintiff was without the consent of defendant.

Defendant contends that “the appellant’s liability on the chattel mortgage note was that of surety or guarantor;” that plaintiff, by dealing with the principal debtor (the Willises) without the consent of defendant, discharged the latter from her liability under the note given to guarantee the Willis payments, “because (1) the transaction was equivalent to a payment by Willis of his entire agreement; (2) because the contract was extinguished by the joinder of the equitable and legal titles and (3) because the defendant was thereby deprived of her right of subrogation;” that “the sale by Willis of his interest in the premises (the equitable title) to plaintiff, the owner of the legal title, was a payment in full by Willis of his obligations under the articles of agreement for warranty deed as fully as if he had paid in cash or securities. . . . His equitable title in the property . . . was a property right, and his transfer of this right extinguished the agreement and constituted payment thereof. . . . The intention to destroy this agreement is clearly shown by the conveyance of the premises ... to Dumont, free and clear of the lien of this agreement . . . In her chattel mortgage, plaintiff expressly reserved the right of subrogation in and to the Willis contract.”

Plaintiff’s position is as follows: “The obligation of defendant on her note to plaintiff secured by her chattel mortgage was not a collateral but direct obligation, and the law of suretyship has no application whatever. . . . When defendant signed the note, she was acting not as Willis’ surety, but for herself. . . . She signed the note as part of the consideration, which she gave for what she directly received from plaintiff. At the time she sold the property to plaintiff and executed the note in question, Willis got nothing new. . . . Defendant did not sign for the accommodation or for the benefit of Willis, but for her own benefit and accommodation. Under the law, she was therefore a principal on the note and not a surety.”

“The term ‘guaranty’ or ‘guarantee’ as it is called by some authorities, ... is a collateral promise or undertaking by one person to answer for the payment of some debt or the performance of some contract or duty in case of the default of another person, who in the first instance is liable for such payment or performance.” (28 C. J. 886.)

“A guaranty in its technical and legal sense has relation to some other contract or obligation with reference to which it is a collateral undertaking; it is a secondary and not a primary obligation, and can exist only where there is some principal or substantive liability to which it is collateral.” (Ib. 887.)

“The guarantor is not a party to the contract between the principal and the guarantee.” (Ib. 888.)

“The guarantor is entitled to stand upon, and cannot be held liable beyond, the strict terms of his contract.” (Ib. 947.)

“A guarantor is discharged by operation of law from further liability by any act on the part of the guarantee which extinguishes the principal contract.” (Ib. 993.)

By the indorsement upon the back of the note defendant’s liability upon the note is conditioned upon the terms of the chattel mortgage, which provides that the note was given to secure the further payment of $1,200 by the Willises under the agreement for a warranty deed, and further provides that when the $1,200 shall have been so paid the “chattel mortgage will then be released, surrendered and note described therein duly marked paid, cancelled and surrendered.” It would seem, therefore, that defendant became a guarantor for the payment of the $1,200 by the Willises. In fact, plaintiff so regarded defendant, for her only witness, her husband and agent, testified that “this is the note Mrs. Ragen gave us to guarantee payment of the first $1,200.” (Italics ours.) One of the major contentions of plaintiff, why the latter should recover in the present case, is that there was no contractual relationship between defendant and the Willises, but there is no merit in this contention.

“The undertaking of the guarantor, as a general rule, is his own separate and independent contract, distinct from that of the principal debtor; the guarantor is not a party to the contract between the principal and the guarantee, and the principal obligor is not a necessary party to the contract of guaranty.” (28 C. J. 888.)

On September 20, 1928, the Willises were behind in their payments and under the terms of the agreement plaintiff, had she seen fit to do so, might then have declared them in default and determined the contract and relied upon the liability of defendant under the guaranty. She did not pursue that course but treated the agreement as still in full force and effect. Defendant, under the terms of the mortgage, specifically retained the right of subrogation to the agreement, but plaintiff, without declaring a default, and without determining the contract, and without making any demand or serving any notice upon defendant, and without her consent, purchased the Willises ’ interest in the agreement and took from them a quit-claim deed to the property.' From that time until March, 1929, plaintiff received rents from the premises and exercised all the rights of ownership in the same. In March, 1929, she transferred the premises to Dumont by a warranty deed that contained no reference to the Willis agreement. From the record it appears that in September, 1928, plaintiff desired to relieve the property of the equitable title of the Willises, and to bring about that result she purchased from the latter the assignment of their rights under the agreement. In so doing she not only extinguished any claim she had against them under the agreement, but she also discharged defendant, the guarantor, from any further liability under the mortgage note. In her dealings with the Willises, plaintiff entirely disregarded the right of defendant to be subrogated to the Willis agreement. She practically concedes this, in her brief, for she claims that Dumont holds the property in trust for her and that he is willing to give defendant “an interest in the property to the extent of the money which she paid on account of the contract, as provided in the chattel mortgage. . . . Let her pay what she promised to pay by her note when she received the plaintiff’s money, and then if plaintiff does not give her what she agreed to give her, the defendant will have ground for complaint.” While this offer, in the present suit, is but an idle gesture, the confession contained therein is not without significance.

Holding, as we do, that plaintiff has no right, under the law and the evidence, to sue defendant on the $1,200 mortgage note, the judgment of the Municipal Court of Chicago is reversed.

Reversed.

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


text:
    The Garrett Biblical Institute, Appellee, v. National Fire Insurance Company of Hartford, Appellant.
    Gen. No. 33,834.

      Opinion filed April 22, 1930.
    Rehearing denied May 5, 1930.
    Hicks & Folonie, for appellant.
    Arvid B. Tanner, for appellee; Butler, Lamb, Foster & Pope, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.

The Garrett Biblical Institute, a corporation, sued the National Fire Insurance Company of Hartford, a corporation, in an action in contract. The case was tried before the court, with a jury, and at the conclusion of all the evidence the court directed the jury to find the issues for plaintiff and to assess its damages at $460.87. This appeal followed judgment on the verdict.

Plaintiff owned a building and defendant, a fire insurance corporation, through its agents in Chicago, Moore, Case, Lyman & Hubbard, issued, on June 21, 1916, a three-year policy on the property, and plaintiff paid the premium, amounting to $326.70. Between the time of the issuance of the policy and October 5, 1916, plaintiff equipped the building with a sprinkler system, which reduced the rate of insurance premium. On. October 5, 1916, the said agents indorsed on the face of the policy the following:

“Chicago Oct. 5-1916 Bate reduced to ,377/.9425 from Date For improvements
Beturn Premium $284.29
Moore, Case, Lyman & Hubbard.”

Plaintiff sued to recover this return premium.

Defendant contends that “plaintiff’s claim is barred by the five year Statute of Limitations, which was pleaded.” In support of this contention defendant argues that the present action is based upon an oral • contract and that it is barred by Section 15 of the Statute of Limitations, commonly called the five year statute. The said indorsement was only one of several amendments inserted in the policy, each of which created new rights and liabilities, and each of which became an integral part of the policy of insurance. In The Garrett Biblical Institute v. Franklin Fire Insurance Co., 246 Ill. App. 623, the same contention as the instant one, under a like state of facts, was urged, and it was there held that the indorsement “became and was a part of said policy; and that the parties had a right to make changes or alter conditions in said instrument, so as to make it an integral part of said policy, by either endorsing it upon the face thereof or by changing the policy itself. The policy contains a provision providing for this very thing, namely, that it was made and accepted subject to stipulations and conditions "made therein, together with such other provisions and conditions as might be endorsed thereon or added thereto. . . . We consider that the endorsement on the policy became part of the same, and was sufficient to import a promise to pay, as a rebate to the plaintiff below, the sum of $210.58, on October 19,1916, — the date on the face of the endorsement and, therefore, not subject to the defense of the Statute of Limitations.” Certiorari was denied in that case. In its reply brief the defendant argues that the present suit was not brought upon the policy and that the present claim is merely one for a refund or return of premium. While the policy is not set out in the amended statement of claim verbatim, the statement does allege the issuance of the policy, the amount of insurance, the property covered, the rate, the premium paid, the effective dates, the reductions in the rate, the refund agreement, the name of the issuing company and its agent, the installation of the sprinkler system, the reduction of the rate thereby and the indorsement of the refund provision on the face of the policy. Defendant made no demand that the policy be set out or attached to the amended statement of claim. Defendant argues that “plaintiff’s action is not brought on the policy of insurance, but is brought specifically for recovery of a supposed account stated, which supposed stated account was denied by the defendant.” The basis for this contention is the following allegation in the amended statement of claim: “That after the completion of said sprinkler system a balance was struck and an account was stated between the plaintiff, and the defendant whereby the defendant was found to be indebted to the plaintiff on October 5, 1916, in the sum of $294.29, which the defendant promised to pay, and said insurance policy was then endorsed by the defendcmt as above described.” In the light of the entire amended statement of claim this amounts to no more than an allegation that after the sprinkler system was put in the parties came to an agreement as to the amount of refund premium due plaintiff under the policy and that then defendant made the indorsement in question upon the policy. We think that when the entire amended statement of claim is interpreted in a reasonable way it must be held that plaintiff’s action is brought on-the policy of insurance as amended by the refund indorsement. The present contention of defendant cannot be sustained.

Defendant next contends that “the evidence shows that Douglas Bros. & Bice were agents of the plaintiff in the transaction, and payment to them was payment to plaintiff.” To this contention plaintiff responds that “assuming that Douglas Bros. & Bice were plaintiff’s agents for the purpose of securing the refund endorsement and collecting the refund it could not accept payment in anything but money and the balancing of debits and credits on the books of the clearing house was not payment to plaintiff.” It is a reasonable assumption from the evidence that Douglas Bros. & Bice were plaintiff’s agents for the purpose of collecting the refund from defendant. There existed at the time in Chicago an organization known as ‘ ‘ Chicago Board of Underwriters’ Clearing House.” Its membership consisted of insurance brokers and agents. Douglas Bros. & Bice and Moore, Case, Lyman & Hubbard were members of it. The organization was maintained for the convenience of its members and it was used by them as a medium for handling business among themselves. If a broker was indebted to another broker on any transaction, either for his own account or for the account of a policy holderj the creditor broker prepared a statement in triplicate showing the item of indebtedness. He retained one copy and submitted two to the debtor broker, who retained one copy and O.K’d the other and returned it to the creditor broker, who then forwarded it to Clearing House, where each broker had an open account. Upon receipt of the O.K’d statement Clearing House made an entry on the debtor broker’s account showing the amount he was required to pay and another entry on the account of the creditor broker showing the amount he was entitled to receive. The brokers were then no longer debtors or creditors of one another, but were debtors or creditors of Clearing House. On the tenth of each month Clearing House balanced the accounts of the broker members and sent statements to them. Those whose accounts showed a debit balance were required to send a check, payable to Clearing House, for the amount due, and those whose accounts showed a credit balance were given a check of Clearing House for the amount to their credit. The alleged payment in the present case was handled by Moore, Case, Lyman & Hubbard and Douglas Bros. & Bice, through Clearing House, in the manner we have heretofore outlined. No check or money was sent by Moore, Case, Lyman & Hubbard to Douglas Bros. & Bice or to plaintiff, or to Clearing House. The evidence offered by plaintiff tended to show that plaintiff never authorized the payment of the refund through Clearing House and that it had no knowledge of the existence of that organization or of the methods employed by brokers and agents in clearing transactions among themselves. Defendant alleged in its affidavit of merits that any money which was due and owing from defendant to plaintiff for or on account of the rebate had been paid to plaintiff by defendant. Payment is a matter of defense and the burden was upon defendant to prove it and in the absence of evidence it will be presumed that it has not been made. We find no evidence in the record tending to show that plaintiff authorized the payment of the refund through Clearing House. Defendant cites no authorities in support of the instant contention. The following cases sustain the position of plaintiff in reference to the instant contention of defendant: Scott v. Irving, 1 Barn. & Ad. 605; Sweeting v. Pearce, 99 Eng. C. L. Rep. 534; Bartlett v. Pentland, 10 Barn. & Cres. 760; Everts v. Lawther, 165 Ill. 487; Scott v. Gilkey, 153 Ill. 168; Bank of Antigo v. Union Trust Co., 149 Ill. 343; Federal Reserve Bank v. Malloy, 44 Supr. Ct. Rep. 296. Defendant argues that it had the right to pay Douglas Bros. & Bice or a messenger from that firm and that Clearing House “was in effect a messenger from Douglas Bros. & Bice,” and further argues that Douglas Bros. & Bice were plaintiff’s agents to secure the indorsement on the policy and the refund of the premium and that as plaintiff ratified the action of its agent in securing the indorsement on the policy “it cannot disavow the act of its agent in designating the Clearing House as the medium or mes- ■ senger for the delivery of the payment,” and that plaintiff has thereby ratified the act of its agent “in designating the Clearing House as the medium or messenger for the delivery of the payment.” We find no merit in either theory. Defendant cites no cases in support of them and the cases we have cited are adverse to them.

Defendant next contends that “plaintiff’s waiting nine years to assert its supposed rights was laches, operating as estoppel against the assertion of the claim.” We find no merit in this contention. “The Statute of Limitations is a purely legal as contra-distinguished from an equitable defense.” (Evans v. Moore, 247 Ill. 60, 72.) The object of statutes of limitations “is to suppress fraudulent and stale claims from springing up at great distances of time and surprising the parties or their representatives when all the proper vouchers and evidences are lost or the facts have become obscure from the lapse of time or the defective memory or death, or removal of witnesses.” (37 C. J. 684. See also Miller v. Calumet Lumber & Mfg. Co., 121 Ill. App. 56, 66.) The statute fixes the time within which an action at law may be brought and the present proceeding was commenced within the statutory period. Laches is in the nature of an equitable estoppel. Defendant claims that through the delay of plaintiff it suffered the loss of evidence, but the record fails to sustain this contention. There is no showing that any witness material to the defense could not be produced. The chief accountant of Moore, Case, Lyman & Hubbard testified that he remembered the transaction and detailed it at length; Bice, a member of the firm of Douglas Bros. & Bice, who handled the account of plaintiff for that firm, testified in detail as to the transactions in question; the manager of Clearing House and defendant’s controller were present and testified. No showing was made that any witness not procurable could have thrown any additional light on the issues. Douglas Bros. & Bice became insolvent in 1917 and their records appear to have been destroyed about that time. The books and records of Moore, Case, Lyman & Hubbard were destroyed in 1921. The records of Clearing House were destroyed about 1922. Had plaintiff started its suit five years' before it did, defendant would then have been unable to introduce the records of these firms. Defendant did not attempt to prove that any of the destroyed records contained any evidence material to its defense which it was not otherwise able to introduce. The evidence clearly shows how the transactions between the several parties took place, including the manner in which the alleged payment was made.

Defendant contends that the court admitted incompetent evidence over its objection. We find no substantial merit in this contention.

Defendant contends that the court erred in overruling its motion for a directed verdict in its favor. We find no merit in this contention.

Defendant contends that “the Court erred in granting plaintiff’s motion for direction of verdict in its favor at the close of all the evidence.” We find no merit in this contention.

After a careful consideration of the various contentions raised by defendant, we are satisfied that the judgment of the Municipal Court of Chicago should be affirmed and it is accordingly so ordered.

Affirmed.

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