text:
    People of the State of Illinois ex rel. Catherine L. D. Corbett et al., Appellees, v. James P. Allman et al., Appellants.
    Gen. No. 41,789.

      Heard in the third division of this court for the first district at the June term, 1941.
    Opinion filed January 7, 1942.
    Barnet Hodes, Corporation Counsel, for appellants; James A. Velde, Carl H. Lundquist and Louis H. Geiman, Assistant Corporation Counsel, of counsel.
    Michael F. Ryan, of Chicago, for appellees; Richard F. McPartlin, Jr., of Chicago, of counsel.
   Mr. Presiding Justice Burke

delivered the opinion of the court.

On April 5, 1940, the relators filed their amended petition in the circuit court of Cook county for a writ of mandamus to compel the police commissioner and the members of the Civil Service Commission of the City of Chicago, to do whatever was necessary to have the relators certified and appointed to certain positions in the department of police. The case was tried by the court without a jury, resulting in a judgment awarding the writ, to reverse which this appeal is prosecuted.

The defendant, James P. Allman, is commissioner of police, and the defendants, Joseph P. Geary, Wendell E. Green and John E. Brennan, are members of the Civil Service Commission. The Civil Service Commission Acts pursuant to the Cities Civil Service Act (sec. 39-77, ch. 24½, Ill. Rev. Stat. 1941 [Jones Ill. Stats. Ann. 23.040-23.079]). The commission adopted rules to carry out the purpose of the act. Section 3 of the act provides that the commissioners “shall classify all the offices and places of employment in such city with reference to the examinations hereinafter provided for.” Section 6 provides that such examinations “shall be practical in their character and shall relate to those matters which will fairly test the relative capacity of the persons examined to discharge the duties of the positions to which they seek to be appointed, and shall include tests of physical qualifications and health, and when appropriate, manual skill.” Section 10 provides that “the head of the department or office in which a position classified under this act as to be filled, shall notify said commission of that fact, and said commission shall certify to the appointing officer the name and address of the candidate standing highest upon the register for the class or grade to which said position belongs.” By the rules of the commission, the classified service is divided into five main branches. Branch 1 is defined as “embracing positions the duties of which are principally administrative.” Within each branch the service is divided into classes, each including offices and places of employment of the same relative kind and character of work. Class A in branch 1 is defined as follows: “Clerical, Accounting and General Office Service, embracing positions the duties of which involve auditing, accounting, recording, stenography, machine operating or any kind of general office work and supervision thereof.” The service is also divided into grades.uniform to all branches and classes (except Branch V, Class U). Grade 1 is designated as “Minor Grade. Positions in the lower ranks,” and Grade 2 as “Junior Grade. Positions of routine duties.” Among the positions classified are several classes of telephone operators having such titles as “Telephone Operator (Gas and Electricity),” “Telephone Operator (Board of Health) (Contagious Disease Hospital),” “Telephone Operator and Clerk.” There is also a position having the title “Telephone Operator” and bearing the classification “Branch 1, Class A, Grade 2.” The monthly salary range of the latter position is $125 to $171.66. The duties of the position are stated by the Civil Service Commission to be:

“Under supervision, to operate a telephone switchboard in a municipal department; to keep records of the calls and telephone connections; to give information to persons making inquiries; to perform clerical work incidental or in addition thereto; and to perform related work as required. Examples: Answering incoming calls and making switchboard connections; mailing connections for outgoing calls; keeping records of long distance call; giving information to the public; transmitting messages and assignment's to employes, as directed; assisting on routine clerical work such as card indexing, filing, typing and keeping simple records.” Another classified position is that of police clerk (female) bearing the classification, “Branch 1, Class A, Grade 1.” The monthly salary of this position is $115 for a superior and $100 for others. The duties of the position are stated by the commission to be:
“Female Police Clerks are assigned to the Central Complaint Room of this department, receiving telephone calls over ‘Police 1313’ lines, taking complaints and reports therefrom, and transmitting same through proper channels.”

Examination No. 5005 was held on April 4, 1936, for the position of “Telephone Operator, Branch 1, Class A, Grade 2.” The result was posted on December 30, 1937, and an eligible list was posted on the following day. This list contained 73 names in' numerical order with the grades received in the examination appearing opposite the names. The examination was taken by relators and their numbers on the eligible list are as follows: “51 Catherine L. D. Corbett, 52 Helen O. Hynes, 53 Delia C. Herriman, 56 Florence E. Bush, 58 Ellen J. Blake, 59 Alva G. Johnson and 60 Laura E. Boyle.” The first 23 persons named in the eligible list were certified to the public service department and appointments were made by that department and reported to the Civil Service Commission. On January 28, 1938, the commissioner of police requested the commission to fill 23 vacancies in the position of female police clerk from the telephone operators’ eligible list. In response to this request the commission certified the names of 23 persons from the list of telephone operators and the commissioner of police reported their appointment as police clerks. The eligible list, with 49 certifications made from it, was in effect at the time of the trial. The Civil Service Commission has not called an examination for the position of female police clerk, Branch 1, Class A, Grade 1. During the first half of the month of January 1941, and during every month of the year 1940, there were 12 persons occupying positions of female police clerk by temporary 60-day appointments, which were being continuously renewed at their expiration. During the years 1939, 1940 and 1941 the appropriation ordinances provided for 32 police clerks $1,200 a year each. On November 21, 1939, relators presented to defendants a document called “Notice and Demand.” This document demanded that the commission fill the 12 vacancies “in the positions of telephone operators assigned as police clerks in Branch 1, Class A, Grade 1,” and stated that the plaintiffs were willing to “accept certification to said positions in a grade lower than that for which they were examined. ’ ’ Defendants ignored the demand, whereupon relators filed their petition for mandamus. At the trial 10 witnesses testified for relators. None of these witnesses was a relator. Defendants did not introduce any testimony. The testimony established that the actual duties performed by persons working under the title of telephone operator were the same as the actual duties performed under the title of police clerk (female). Defendants admit that the evidence shows that a person who can perform the duties- of a telephone operator in Branch 1, Class A, Grade 2, can also perform the duties of a female police clerk in Branch 1, Class A, Grade 1. Defendants maintain that it does not follow that a female police clerk is able to perform the duties of a telephone operator and that there is no evidence that a female police clerk is able to perform the duties of a telephone operator, and state that it is inaccurate to say that the duties of the two positions are the same. They also call attention to the fact that the appropriation ordinances depart from the title “Police Clerk (female) ” as established by the commission, by providing for the payment of 32 persons under the title “Police Clerk.” It cannot be doubted that the intent of the appropriation ordinances is to provide for the payment of those performing the duties of female police clerk. The discrepancy shows that the nomenclature of the appropriation ordinances does not always conform to that of the commission in designating the titles of the positions.

Defendants contend that the language of the applicable statutes and rules does not impose a duty on the commissioners to certify the relators as female police clerks and does not give the plaintiffs a right to be so certified. We agree with the statement of defendants that the writ of mandamus confers no new authority upon the person or body against whom it is issued; that it creates no duty, but will issue only where the duty or authority to act exists without the writ. (People v. Board of Review of Lake County, 363 Ill. 106, 112, 3.) Defendants call attention to the fact that the writ of mandamus commands them to do all acts necessary to the end that the names of the eligibles appearing on the eligible register created by examination No. 5005 may be certified and appointed to fill 12 positions classified by the commission under the title of police clerk (female), and that the writ directs the commissioners to certify persons classified as telephone operators (Grade 2) to positions classified as female police clerks (Grade 1). Defondants say they are directed to certify persons classified in the higher grade of telephone operator to positions of a lower Classification. They contend that the commission has no duty to certify a person in one grade to a position in a lower grade. Defendants urge that the provision of section 10 of the Civil Service Act [Jones Ill. Stats. Ann. 23.012] requiring the commission to “certify to the appointing officer the name and address of the candidate standing highest upon the register for the class or grade to which said position belongs ’ ’ is violated when the commission certifies a candidate from a class or grade higher than the grade to which the position belongs. Delators insist that the correct interpretation of the applicable statute imposes a mandatory duty on the defendants to certify and appoint relators for the performance of the duties of telephone operator appropriated for under the title of police clerk (female), and that the courts will recognize the rights of eligibles on a civil service list to certification and appointment to discharge the duties for which they were examined and will consider the nature of the duties to be performed as controlling. They also point out that section 6 of the Civil Service Act [Jones Ill. Stats. Ann. 23.008] provides that the examinations shall be practical and shall relate to those matters which will fairly test the relative capacity of the persons examined to discharge the duties of the positions. We agree with the statement of relators that the testimony shows that the actual specific duties performed by telephone operators and police clerks (female) are essentially the same and have only such incidental differences as exist between the same positions in different departments. The commission has on file four different cards with respect to the position of telephone operator, all of which cards contain various minor distinctions with reference to the duties described thereon, with varying salaries. All of these four cards place the various positions in Branch 1, Class A, Grade 2. Relators argue that if there is no basis for discrimination in the grade classification for the positions described in these four cards, there is likewise no basis for grade discrimination between the positions designated as telephone operator and police clerk (female), and that section 10 is not violated by the certification of those on the telephone operators’ list to the position of police clerk (female) because both are in the same branch and class. They call attention to the language of section 10 that the certification shall be of the candidate standing highest upon the register for the class or grade to which said position belongs. Defendants respond by saying that the words “Class” and “Grade” are synonymous. Relators state that “no one can maintain that if the Police Department should have the titles of some of the patrolmen in the service of the City changed to that of ‘guard,’ that in making subsequent certifications for the filling of vacancies in the position of ‘guard’ that the Commissioner of Police and the Civil Service Commission could do so without regard to any eligible register for the position of patrolman.” We have read the cases cited by the respective parties. In Kipley v. Luthardt, 178 Ill. 525 (as appears from the case of City of Chicago v. Luthardt, 191 Ill. 516), the record shows that Luthardt was dropped from his position as chief clerk of the detective bureau. No charges were preferred against him and the only pretense for his dismissal was the failure of the city council to appropriate for his position by the name of “Chief Clerk of the Detective Bureau of the Department of Police,” and in attempting to discontinue or abolish the said position by changing the name to “Secretary of the Chief of Detectives, rank of lieutenant,” without in any way changing the duties of the position. The court restored Luthardt to his position and held that the mere change of title, without change in the duties, was not an abolishment of the position. In People v. Bundesen, 277 Ill. App. 169, the relator, a civil service supervising field nurse, was assigned to the performance of duties inferior to those of her position, although she was allowed to retain her higher title, classification and salary. Two persons were employed as temporary appointees to perform the duties that had formerly been performed by relator. The court restored plaintiff to the performance of duties for.which she had qualified by civil service examination. We agree with the defendants that the facts in these cases are not analogous to the facts in the case at bar. Defendants also maintain that the imposition of a duty on the commission to certify persons on eligible lists to positions of a classification lower than that for which the eligible list was created, contravenes the classification of positions made by the commission. They suggest that the classification of civil service positions required the determination of many questions of fact and of policy, and that determinations of this kind by administrative bodies are within their discretion and are not interfered with by the courts. (MacGregor v. Miller, 324 Ill. 113, 118). Delators maintain that a determination by the commission that a change of title without a change in duties does not require another examination, is not subject to review. They rely on the case of McArdle v. City of Chicago, 172 Ill. App. 142, and McArdle v. City of Chicago, 216 Ill. App. 343. McArdle passed a civil service examination for the position of “cement tester.” Sometime after he entered upon the performance of his duties, such duties were increased in volume but not in kind. In the appropriation for his position the title thereto was changed from that of “cement tester” to “chief tester in charge.” While employed under the title of “cement tester” his salary was increased from $125 to $250 per month. The court held that the plaintiff was entitled to his civil service standing even in the higher salaried position, without the necessity of taking a promotional examination therefor. The court pointed out that the commission approved and certified the regular payrolls, each of which showed an item of $250 per month to be paid to the petitioner under the specific title of cement tester. From a careful study of the cards on file with the commission, and the testimony of the witnesses we are of the opinion that the duties of the position of telephone operator and police clerk (female) are substantially the same. They are both telephone operators with incidental duties as clerks. The Civil Service Commission did not hold an examination for female police clerks. It did certify as female police clerks 23 girls, whose names appeared on the eligible list for telephone operator. When the certification of these 23 names was made they were not given any other or additional examination" to test their capacities to perform the duties under the title of female police clerks. Under the circumstances shown, the defendants have determined that it is unnecessary to call another examination for the position of female police clerks, and have determined that the sole requisite for the performance of the duties of the position designated as police clerk (female) is to qualify by a civil service examination for the duties of the position of telephone operator. The salary of telephone operators ranges from $125 to $171.66 per month, while the salary of police clerks is fixed at $100 per month. The difference between the lowest salary paid to a telephone operator and the salary paid to a female police clerk is $25 per month, while the difference between the salary paid to those who work under the title of telephone operator is as high as $46.66 per month. It is clear that while the court should take into consideration the difference in the salary, such difference in itself does not establish that the positions or the duties of the positions are different.

Defendants assert that relators rely on a provision of section 2 of rule 4 of the rules of the commission as imposing a duty on the commission to make the certification. The provision reads: “An eligible may expect certification to a position in a grade lower than that for which he was examined, and in the same general class of service and of similar duties, but the acceptance of any such lower grade position shall fix permanently the grade of the appointee therein.” We agree with defendants that this rule does not impose a duty on the commission, and that the purpose is to provide a means whereby an eligible may waive his or her right in his or her grade by accepting a position in a lower grade. Delators answer that they do not rely upon the provision of section 2 of rule 4, and insist that when the duties of the two positions are substantially the same, the commission must certify from the eligible list for the class to which the position in reality belongs. Defendants say that “if the ruling of the trial court in this case is not reversed, a new duty is imposed upon the Civil Service Commission; that whenever there is a vacancy in the position of female police clerk and there is no list of eligibles for the position, the commission must offer to certify telephone operators to the position, and that whenever a similar situation exists with respect to other positions in the classified civil service, that is, when there are vacancies in a position for which there is no eligible list but there are persons on the eligible list for a position of a higher grade who are able to perform the duties of the vacant position, the commission must offer to certify the persons in the grade higher than the vacant position. The result of the ruling is thus to establish a broad principle that will apply, to the entire administration of the Civil Service Act. The effect of the trial court’s ruling is to disrupt the classification of positions made by the Civil Service Commission.” Delators answer that “a decision for the plaintiffs in this case does not, as the defendants maintain, require the Civil Service Commission to certify all eligibles from a higher grade to a vacancy in a lower grade whenever the vacancy occurs. It merely requires the commission'to certify a person for appointment to a position for which he has been examined, when the duties of the so-called lower position are the same as the duties of the so-called higher position, and where no examination is held or deemed necessary for the so-called lower position. There is no reason for saying that a decision for plaintiffs in this case must go beyond the particular facts and circumstances in this case where we have (a) two different titled positions, having the same duties, (b) where we have the Civil Service Commission determining by its own action that examination for one position qualifies the person for appointment to the other and (c) where we have the arbitrary action of the Civil Service Commission in certifying 23 eligibles from the telephone operators ’ list, and refusing to certify the remaining names on said list, though for a period of more than three years from the appointment of the 23 from the telephone operators’ list, temporary appointees have been continuously performing the duties of the position for which plaintiffs have qualified by an examination.” We are of the opinion that the reasoning of counsel for the relators is sound, that the action of the commission in refusing to certify the relators to 7 of the 12 remaining vacancies is an abuse of discretion, and that the court was right in granting the writ of mandamus. Therefore, the judgment of the circuit court of Cook county is affirmed.

Judgment affirmed.

Hebel and Kiley, JJ., concur.


source: Caselaw Access Project

author: Mr. Presiding Justice Burke

license: Public Domain

text:
    Marie Stanton, Appellant, v. Sears Roebuck and Company, Appellee.
    Gen. No. 41,827.
    Heard in the third division of this court for the first district at the October term, 1941.
    Opinion filed January 7, 1942.
    John A. Blake and John O. Wagner, both of Chicago, for appellant.
    Lederer, Livingston, Kahn & Adsit, of Chicago, for appellee; Harry H. Kahn and Leo H. Arnstein, both of Chicago, of counsel.
   Mr. Presiding Justice Burke

delivered the opinion of the court.

Defendant is a retailer of merchandise. On October 29, 1936, plaintiff bought two black rayon dresses from defendant at its store located at State and Van Buren streets, Chicago. She purchased them for her personal use. She enjoyed good health and had not suffered from any skin disease. She had been wearing black rayon dresses for a number of years prior to the time of such purchase and had not suffered any injury or skin disease as a result of wearing that type of dress. She was employed as a cashier in a cafeteria and her employer required that she wear black dresses. After wearing one of the dresses about two weeks she became ill and developed a skin disease known as “dermatitis.” She consulted physicians who treated her for a long period of time. Because of the “dermatitis” she was unable to work for several years. She testified that after she wore the dress two weeks her arms got sore, the skin became blistered and inflamed from the waist up, including her arms and shoulders, the pores were filled with “black stuff,” the blisters were wet, water was coming out of them and the pores were filled with dye.

For many years defendant handled millions of black rayon garments annually, including dresses of the type purchased by plaintiff. It purchased these garments from large reputable and reliable manufacturers who sell to the trade generally. Never before had any complaint of a reaction or ill effect come to the defendant from any of the purchases of black rayon garments. During the year preceding the sale of the two dresses, defendant sold half a million dresses of the same type. A trial resulted in á verdict for the plaintiff in the sum of $1,500. Defendant’s motion for a judgment notwithstanding the verdict was allowed. Plaintiff appeals and asks that we enter judgment in her favor.

Plaintiff asserts that a motion for judgment notwithstanding the verdict should be denied, if there is in the record any evidence, which fairly tends to prove the material allegations of the complaint, and defendant does not challenge this statement. Plaintiff advances the argument that a retail dealer in women’s dresses is liable on an implied warranty where it sells a dress to a woman who suffers injuries from poisonous dyes in the dress, of which poisonous dyes the woman had no knowledge. Defendant answers that a vendor is not liable upon any theory, whether it be warranty or negligence, to a purchaser of a garment not shown to contain any harmful or poisonous substance who suffers a reaction by coming in contact with such garment due to some peculiar idiosyncrasy, allergy or sensitivity. Plaintiff relies on an implied warranty that “the dress she bought was suitable for the purpose for which she bought it, and that the said dress contained nothing that would Tie injurious to her health if she wore it.” She cites par. 1 of .sec. 15, ch. 121½, Ill. Rev. Stat. 1941 [Jones Ill. Stats. Ann. 121.19], which reads: “Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, and it appears that the buyer relies on the- seller’s skill or judgment (whether he be the grower or manufacturer or not), there is as [an] implied warranty that the goods shall be reasonably fit for such purpose.” Plaintiff insists that it is the duty of the seller to know that the goods he is selling are not injurious to the customer, and that in the instant case the plaintiff disclosed that the dress was for her own use. Plaintiff asserts that she relied upon the implied warranty that she could wear the dress without injury to herself; that she had no experience with dyes in dresses; that she had no experience that would lead her to fear that dyes in dresses would cause an injury to her, and that the statute puts the responsibility directly on the seller to be careful and cautious in selling goods that might cause injury. In urging that we sustain the judgment, defendant maintains that there is no evidence that the garment contained any harmful or poisonous substance; that there was no chemical analysis of the garment; that there was no evidence of any negligence on the part of defendant; that there was no evidence that there was anything wrong with the dress, and that there was no duty upon the defendant to make any chemical analysis or to inspect for latent defects. Defendant also maintains that plaintiff urged one theory in the trial court and has shifted to another theory in this court; that she tried the case on the theory that the defendant was guilty of negligence and is now relying on the theory of an implied warranty. We do not agree with the contention that the plaintiff has shifted the theory on which her action is based.

Plaintiff testified that shortly after she became ill she took the dress back to defendant’s store, and that a few weeks later defendant returned the dress to her minus one sleeve. Two physicians were called to the stand by plaintiff. Dr. S. E. Donlon testified that he treated her; that he made a test with patches of the dress and that the test showed that the dye in the dress was the cause of plaintiff’s condition. Dr. L. F. Weber testified to the same effect. Defendant introduced only one witness, Morris L. Heffer, who is manager of its midwest district of women’s apparel, and has held that position for nine years. This district embraces the area from Kansas City to Detroit and Duluth to St. Louis. He testified relative to the care exercised in the purchase of dresses which defendant sells to the retail trade. He also testified that plaintiff was the only one who had complained as to any ill effects from the use of any such dresses. Defendant also relies on the testimony of the two physicians introduced by plaintiff. They testified that Mrs. Stanton was possessed of a peculiar and rare personal idiosyncrasy commonly known as an allergy, or sensitivity to certain substances. Both testified that countless other women could have worn the dress without any reaction or ill effect whatever. The record does not disclose that any chemical analysis of the dress was made by either of the parties to the action. There was no evidence that the dress contained any harmful or poisonous substance. After discovering her plight, plaintiff gave one of the two black rayon dresses to her sister. The sister found it to be too small. There is no evidence that the sister suffered any discomfort from wearing it. The evidence also shows that prior to the time the plaintiff wore the dress she was a normal person in good health and not allergic or sensitive to dresses of that kind. The evidence also shows that she wore the dress for about two weeks before suffering any discomfort. Plaintiff insists that she became allergic after she had worn the dress, that she was poisoned thereby and that thus her resistance was broken down. She admits that she has been allergic to dresses of that type from approximately two weeks after she made the purchase until the present time. We are satisfied that the evidence shows plaintiff’s condition was caused by the dress and the allergy which developed. We also find that there is no evidence that the dress contained any harmful or poisonous substance of any kind. Plaintiff suggests that defendant had the opportunity, because of its possession of the sleeve, to analyze the dyes in the dress. Plaintiff had a like opportunity. The burden of proof was on the plaintiff. She did not offer any evidence that the dyes in the dress were poisonous or contained any harmful ingredient. It is well known that persons become allergic or unduly sensitive to food, dust, odors, plants, drugs and clothing. Apparently, plaintiff became allergic to black rayon dresses. The fact that she had not been allergic to such dresses previously would not show that she could not become allergic. By giving away the other black rayon dress plaintiff revealed that she did not consider that the dyes in such dress contained poison which would cause injury to her sister. According to the testimony of the doctors, there are various types of allergy. It may arise from eating such food as chocolate, strawberries and eggs, from breathing some substance, or from coming in contact with something. Various persons may be allergic to various things. The plaintiff’s case fell within the type of allergy which results from contact with certain substances. Dr. Donlon testified that an allergy meant a sensitivity to something one way or another; that sensitivity of the skin in some persons might result from contact with a substance; that countless other people might come in contact with the same substance without having any ill effect or reaction. He testified that plaintiff’s condition was such that when she came in contact with a black rayon dress she developed a skin reaction due to her own peculiar sensitivity. We have sifted through the numerous cases cited by the respective parties. In the case of Barrett v. S. S. Kresge Co., 144 Pa. Super. Ct. 516, 19 A. (2d) 502, decided by the Pennsylvania superior (Appellate Court) in April 1941, wherein the facts are strikingly similar to the facts in the case at bar, the court said:

“In none of the food and beverage cases, however, was there proof that a plaintiff was peculiarly allergic to something not harmful to others. In each there was the presence of a poison or irritant that undoubtedly was intolerant and injurious to the average person. It is well known that some people are so constituted that they cannot eat fish, strawberries, eggs, and many other foods that could be mentioned, without ill effects. It can hardly be said that a vendor thereof would be liable for a breach of an implied warranty solely because of the harmful effect due to a buyer’s individual idiosyncrasy.” In the Barrett case the court also discussed the applicability of section 15 of the Uniform Sales Act (par. 1, sec. 15, ch. 121½, Ill. Rev. Stat. 1941 [Jones Ill. Stats. Ann. 121.19]) and said:
“We do not conceive that the legislature intended under the Act of 1915 [par. 1, sec. 15, Uniform Sales Act] that a retail vendor of wearing apparel obligates himself by an implied warranty that the merchandise he offers for sale, although harmless to practically all the public, does not contain any substance or ingredient that may injuriously affect some individual purchaser, who has a peculiar susceptibility unknown to the vendor. This, in effect, is appellant’s theory. If sound, it would mean that many merchants have a far reaching and possibly a ruinous liability, which they cannot anticipate or with reasonable precaution avoid. ’ ’

From a careful study of the testimony, the cases cited and the arguments presented, we are convinced that plaintiff failed to produce any evidence that the defendant violated any duty owing to her. Plaintiff failed to. prove that defendant was guilty of negligence, and paragraph 1 of section 15 of the Uniform Sales Act is not applicable to the factual situation presented by the record. The court was right in entering judgment. notwithstanding the verdict and the judgment of the circuit court of Cook county is affirmed.

Judgment affirmed.

Kiley, J., concurs.

Hebel, J., dissents.


text:
    Jacob Link and Aaron B. Link, Trading as Link and Company, Appellants, v. First National Bank of Chicago, Appellee.
    Gen. No. 41,851.
    Heard in the third division of this court for the first district at the October term, 1941.
    Opinion filed January 7, 1942.
    Bernard J. Brown, of Chicago, for appellants.

      Bell, Boyd & Marshall, of Chicago, for appellee; Charles E. Herzog, of Chicago, of counsel.
   Mr. Presiding Justice Burke

delivered the opinion of the court.

On August 4, 1939, plaintiffs filed their statement of claim in the municipal court of Chicago against Morris B. Sachs, alleging that on April 7, 1939, they sold and delivered to him coats of the value of $223.90, on April 26, 1939 coats of the value of $179.50, and on May 10, 1939 woolens of the value of $231.94, a total of $601.34, which he refused to pay. On September 7, 1939, Sachs filed an “Amended Defence,” stating that he “did not purchase or receive the goods described in plaintiffs’ statement of claim, or any part thereof, from the plaintiffs herein, on the dates set forth in the plaintiffs’ statement of claim or at any other time.” On October 4, 1939, plaintiffs filed their amended statement of claim, and averred that they were engaged in the business of manufacturing ladies’ wearing apparel, including ladies’ coats designated as “Roslin” coats; that they were manufacturing “Roslin” coats for the defendant for more than a year previous to the filing of such amended statement of claim, and that they delivered “Roslin” coats and woolens on the dates and of the values set up in the original statement of claim. The trial of the action against Morris B. Sachs was begun on November 14, 1939. At the close of plaintiffs’ case the court overruled defendant’s motion for a finding in his behalf and continued the case to December 20, 1939. On December 18, 1939, the court gave plaintiffs leave to make the First National Bank of Chicago, J. Rosenberg, Alex N. Dolnick and the Amalgamated Trust & Savings Bank, additional parties defendant. On December 20, 1939, on motion of plaintiff, the defendant Morris B. Sachs was dismissed and judgment for costs was entered in favor of Sachs and against plaintiffs. On September 23, 1940, plaintiffs filed their third amended statement of claim and alleged the selling of “Roslin” coats to Morris B. Sachs for one year prior to June 1, 1939, during which time plaintiffs rendered bills to Sachs under the name of “Roslin Coats,” and received checks therefor payable to “Roslin Coats”; that one J. Rosenberg was employed by plaintiffs as a salesman and collector; that on June 6, 1939, Sachs was indebted to plaintiffs for merchandise theretofore sold and delivered to him for the sum of $554.74; that on June 5, 1939, Sachs executed a check for $375.73 payable to the order of “Roslin Coats” and drawn on the First National Bank of Chicago; that on June 6, 1939, Sachs executed a check for $172.01, payable to “Roslin Coats” and drawn on the First National Bank of Chicago; that these checks were in payment of merchandise theretofore sold and delivered to Sachs; that the checks were delivered by Sachs to Rosenberg; that without any authority from plaintiffs, Rosenberg indorsed the checks and secured the money represented thereby, and that the endorsements on the checks were forgeries. The defendant, First National Bank of Chicago, filed its appearance and amended statement of defense, which averred that it had no knowledge as to the sale of the merchandise to Sachs; admitted that the checks were indorsed by J. Rosenberg; denied that such endorsements were forgeries; denied that Rosenberg had no authority to so indorse the checks; averred that each of the checks was payable to bearer and that the endorsements thereon were unnecessary and immaterial; that it paid each of the checks pursuant to the order of the drawer; that plaintiffs ratified and approved the acts of Rosenberg in indorsing and collecting the proceeds of the checks, and that after plaintiffs had full knowledge of the material facts concerning the checks they brought an action against Sachs for the price of the goods for which the checks were given; that in such action plaintiffs took the position that the price of the goods so sold to Sachs remained unpaid by Sachs; that in their action plaintiffs take the position that the price was paid by the checks; and defendant insisted that the bringing of the action against Sachs constituted an election of remedies by plaintiff, which constituted a bar to the instant action. The record is silent as to whether service was had on J. Rosenberg, Alex N. Dolnick and the Amalgamated Trust & Savings Bank, and does not show what disposition, if any, was made of the case as to them. A trial by the court without a jury resulted in a finding and judgment against plaintiffs. Plaintiffs ask that the judgment be reversed and that judgment be entered in their favor.

Plaintiffs’ theory is that they were the owners of the two checks; that Rosenberg had no express or implied authority to indorse the checks, and that the payment of the proceeds by the bank, on the strength of such endorsements, rendered the bank liable. Defendant’s theory is that Rosenberg and Jacob Link were partners, which relationship gave Rosenberg the right to indorse checks; that irrespective of the partnership the name of the payee of the checks did not purport to be the name of any person, so that the checks were payable to bearer, and that in any event the action is barred by the prior action against Sachs. Jacob Link testified that he and his partner, Aaron Link, had been engaged in business in Chicago as co-partners under the name of Link & Company for about 20 years; that they had known Jacob Rosenberg for a number of years; that the first time they had any business dealings with him was in July 1938; that then Rosenberg proposed that the Links should make a cheaper coat which Rosenberg would be able to sell; that the buyer and manager for Morris B. Sachs was his (Rosenberg’s) nephew and that he could get a great deal of business from Sachs; that the Links would design the style and the coats would be made on the outside; that they would be cheaper coats; that he, Rosenberg, would get 50 per cent of the net profits; that they adopted the name ‘ ‘Roslin” coats, a combination of the names Rose and Link. Rose was the name of a sister of the witness. He further testified that Rosenberg frequently collected checks, which he delivered to the witness; that plaintiffs would indorse the checks, “Roslin Coats,” “Link & Company,” and deposit them in plaintiffs’ account in the American National Bank; that in the late spring of 1939 witness did not see Rosenberg for about two weeks; that he then called Rosenberg’s wife on the telephone; that Rosenberg came to plaintiffs’ place of business about June 15, 1939; that in the ensuing conversation, witness asked Rosenberg whether he had received a check from a customer named Vence; that Rosenberg admitted he had received such a check; that witness asked him for the check so he could deposit it; that Rosenberg told him he needed money and cashed the check; that witness asked him whether he had collected any more checks and he answered, “No”; that in the meantime witness found out that Rosenberg received two checks from Morris B. Sachs; witness asked Rosenberg what he did with the Sachs checks ; Rosenberg replied that he cashed them also. Witness testified that plaintiffs did not receive the money represented by the checks from Rosenberg or any one else. He further testified that the endorsements on the checks were not in his handwriting; that he did not see the endorsements until the canceled checks were shown to him by an employee of Sachs following the disclosure by Rosenberg that he had cashed the checks, and that prior to June 5, 1939, Rosenberg did not indorse any. checks issued to “Roslin Coats.” In answer to a question whether Rosenberg was a “member of your firm,” the witness answered, “No.” On cross-examination, witness testified that the checks is-, sued by Sachs were in payment for the goods for which plaintiffs sued Sachs; that Rosenberg was to furnish the customers and do the selling; that he was also to do cutting and help in the shop; that Rosenberg did not do any buying; that witness consulted him with reference to the cloth to buy; that Rosenberg had authority to pick up checks from customers; that separate books were kept for the business done under the name of “Roslin Coats”; that such books were separate from the books of Link & Company; that Rosenberg was not reported as an employee under the Social Security Act; that the name “Roslin” was applied only to garments sold by Rosenberg; that after the arrangement between plaintiffs and Rosenberg came to an end, the use of the name “Roslin Coats” was discontinued; that Rosenberg purchased furs from the Below Fur Company for “Roslin Coats”; that he purchased garments from Below and Saknefsky for “Roslin Coats”; that witness needed some goods and sent Rosenberg to get them, which were the purchases mentioned. Witness further stated that plaintiffs and Rosenberg agreed to keep separate books and to split the profits. Defendant introduced Joseph Rosenberg, who testified that he had a business connection with Jacob Link in the fall of 1938 and spring of 1939 under the name “Roslin Coats”; that he suggested the name, which came from the names Rosenberg and Link; that in July 1938, Jacob Link and witness had a conversation at plaintiffs’ place of business; that the conversation was that as to the business already possessed by plaintiffs, defendant was not to participate; that as to other business the parties would split the profits. Witness further testified that the arrangement was that “We will do all the work; we can save naturally what we can do ourselves, and I said at first, ‘I do not need any money because I have got some money as far as to live on, but will wait until the end of the season, see what we make in a lump, you know, see we will make progress because I figured we will do a good business.’ ” Witness stated that the parties were to do whatever work they could do; and that he was to cut. In answer to a question as to what else was said in the conversation, witness answered, “Nothing of importance, just that we will be partners in that,” and “that whatever we sell, whatever we make, we will divide the profits.” In answer to a question by the court about the losses, witness answered, “If there is any losses, naturally I have to stand those.” In ánswer to another question by the court as to whether witness said anything about losses, he answered, “We didn’t. The truth is we didn’t talk about losses.” Witness further stated that he agreed that he would do everything that was necessary; and that he would deliver and ship. He stated that “Roslin Coats” had nothing to do with Link & Company’s customers; that he went to other sources and obtained garments to copy; that he copied such garments and went out and secured orders; that he started to cut and sew, also to ship and do whatever was necessary; that he went oiit and collected money; that he did cutting, shipping, cleaning and delivering; that he purchased “Roslin” goods; that he sold only to his own customers; that as far as he knew the customers who purchased “Roslin Coats” had never done business with Link & Company. On cross-examination he testified that he was to secure 50 per cent of the net profits; and that at the time the arrangement was made he had money of his own. He did not say where he obtained this money. He testified that the checks he collected for the “Roslin Coats” were delivered to Link, who deposited them in the bank; that he did this except as to the two checks involved in the instant case; that outside of these two checks he did not indorse any checks made payable to “Roslin Coats.” He further testified that he purchased goods in the name of “Roslin Coats” and sometimes in his own name; that the purchases in his own name were from a firm named Below; that such purchases from Below were billed to “Roslin Coats”; that Jacob Link paid for the goods so purchased out of the funds of Link & Company; that he collected from Vence four or five times; that Vence paid by check, which Rosenberg would bring to Link, except the last check which he retained, indorsed and cashed; that he cashed the checks through his son-in-law, Alex H. Dolnik; that he indorsed the checks with the name, “Roslin Coats, by J. Rosenberg, Prop.,” and that he retained the money received on such checks. About two months after the checks were cashed, he filed a petition in bankruptcy. He paid his lawyer $150 for filing this petition and this was part of the money realized from the two checks. In the schedule filed in the bankruptcy proceedings, he showed Link & Company as a creditor for the amount of the checks.

The first point urged by plaintiffs is that the drawee bank is liable to the payee if it pays a check upon an unauthorized endorsement, that after a check has been delivered to the payee it is the property of the payee, and that the bank which pays the check on a forged endorsement is liable to the payee for the funds wrongfully paid out. Defendant does not argue to the contrary. The second point advanced by plaintiffs is that Rosenberg had no express or implied authority to indorse the checks payable to the order of “Roslin Coats.” Defendant declares that the existence of a partnership may be implied from circumstances, and that, in this case the circumstances show that a partnership did exist between Jacob Link and Rosenberg. Defendant asserts that as a member of the partnership, Rosenberg had authority to indorse checks payable to the partnership and to receive the proceeds thereof. In Ryhiner v. Feickert, 92 Ill. 305, the court said (311): “That a partner may, in general, indorse and transfer a promissory note made payable to his firm, is not questioned.” The testimony shows that Rosenberg was to receive 50 per cent of the profits; that he furnished the customers for “Boslin Coats”; that he did some of the cutting of the goods; that he bought some of the cloth and furs for the coats; that Rosenberg and Link agreed on the price of the coats; that Link & Company did not use the name “Boslin Coats” after the arrangement between Link and Rosenberg ceased; that Rosenberg was not reported as an employee under the Social Security Act; and that separate books were kept for the business done in the name of “Boslin Coats.” There is also evidence tending to show that the name “Boslin Coats” was composed of “Bos” from Rosenberg and “Lin” from Link. Jacob Link testified that Rosenberg was not a partner. The latter testified that he was a partner, and that “if there is any loss naturally I have to stand this.’’ He also testified that “the truth is that we did not talk about losses.” The trial judge saw and heard the witnesses and was in a superior position to determine the weight to be given their testimony. Our view is that there was sufficient evidence to warrant the court in finding that Rosenberg was a partner. As a partner, the law gave him the right to indorse the checks.

Defendant insists that plaintiffs made a final, irrevocable election of remedies when they sued Sachs for the price of the goods, and that such election is a bar to this action. Defendants point out that the action against Sachs was predicated upon the theory that he had not paid the price of the goods, and that by such action plaintiffs repudiated the acts of Rosenberg in accepting and cashing the checks. In the action against the bank, plaintiffs ’ theory is that the price has been paid by Sachs and that the bank converted the proceeds of the checks. It is obvious that thereby plaintiffs ratified some of Rosenberg’s acts. In the former action they chose to treat the checks as not being their property, whereas in the present action they necessarily assert the checks were their property. Plaintiffs rely on the case of Golinkin v. First Union Trust & Savings Bank, 276 Ill. App. 40, and Kaszab v. Metropolitan State Bank, 264 Ill. App. 358, to support their contentions. As we have decided that there was sufficient evidence to support the defense that Rosenberg was a partner, it is unnecessary to consider the point that in suing and proceeding to trial against Sachs, plaintiffs made a final irrevocable election of remedies barring them from maintaining the present action. We will not lengthen this opinion by considering another point urged by defendant, namely that the checks were payable to bearer because the name of the payee did not purport to be the name of any person thereby making it unnecessary to indorse payee’s name on the checks.

Because of the views expressed, the judgment of the municipal court of Chicago is affirmed.

Judgment affirmed.

Hebel and Kiley, JJ., concur.


text:
    Kostancija Szurkus, Appellee, v. Joseph Szurkus et al., Defendants. Appeal of Walter Dombrowski, Appellant.
    Gen. No. 41,866.
    Heard in the third division of this court for the first district at the October term, 1941.
    Opinion filed January 7, 1942.
    Albin A. Peter, of Chicago, for appellant.
    Morris Alexander, of Chicago, for appellee.
   Mr. Presiding Justice Burke

delivered the opinion of the court.

On June 5, 1940, Kostancija Szurkus filed her complaint in the superior court of Cook county against her former husband (Joseph Szurkus) and others. She sought to partition the real estate commonly known as 4454-56 South Western avenue, Chicago. On November 29, 1940, the court entered a decree finding plaintiff to be the owner of an undivided one-half interest and her former husband to be the owner of the other undivided one-half interest; that defendant Harry M. Nacey was the owner and holder of unpaid principal and interest notes in the sum of $10,246.37, secured by a trust deed found to he a first and prior lien on the premises; that Martha Yasas, defendant, was a judgment lien holder against the one-half interest of Joseph Szurkus in the sum of $2,649.17; and that John F. Eudikis, defendant, was a judgment lien holder against the one-half interest of Joseph Szurkus for $301.88. The decree further found that on October 11, 1939, the circuit court of Cook county severed the bonds of matrimony between plaintiff and Joseph Szurkus. The realty is improved with a two-story brick building containing two stores, two offices, four apartments and a garage. The income is being collected by the Chicago Realty Management Corporation, as agent of the owner of the mortgage by virtue of an assignment of rents from plaintiff and Joseph Szurkus. The commissioners appointed to partition reported that the parcel was not susceptible of division without manifest prejudice to the parties, and fixed the value at $17,500. On February 6, 1941, a decree was entered directing that the property be sold by a master in chancery for not less than two thirds of the valuation placed thereon by the commissioners. The master was directed to report to the court and to bring the money realized from the sale into court. The master’s report of sale filed on March 7, 1941, shows that Walter Dombrowski bid $11,900, that being the highest and best bid and equal to at least two thirds of the valuation determined by the commissioners. The report stated that upon approval the master would execute and deliver to Walter Dombrowski a deed in accordance with the law and the decree. The then attorney of record for plaintiff, Anthony A. Slakis, served notice on all the attorneys of record for defendants that on March 7, 1941, he would appear before the chancellor and ask that the report of sale be approved. On March 7, 1941, another attorney, Morris Alexander, appeared for plaintiff and filed a verified petition in her behalf. Apparently, because the matter of the approval of the report of sale was set for hearing that morning, no notice of plaintiff’s petition was served on any of the parties. Walter Dombrowski, the high bidder at the sale, did not have notice of the presentation of plaintiff’s petition. Mrs. Szurkus ’ petition recited that the attorney she employed in the Fall of 1939 advised her that:

“The problems involving the joint ownership of said property could not be disposed of in said divorce proceedings and that further legal proceedings would have to be filed; that said attorney made no bona fide effort in said divorce proceedings to obtain personal service on said defendant and thereby made it impossible for plaintiff to obtain support money from defendant in said divorce proceedings; that thereafter said attorney informed petitioner that it was necessary to file what petitioner believed to be a ‘politician suit.' Said attorney explained to petitioner that said proceedings would result in plaintiff obtaining complete title to said property involved in these proceedings, and would ‘foreclose’ the interest of defendant, Joseph Szurkus, in said proceedings, and that thereafter plaintiff would own said property, subject only to the existing first mortgage; that petitioner, who is of Lithuanian extraction, can neither read nor write the English language, except to sign her name, relied upon the representations of said attorney in permitting these proceedings to be filed on June 5th, 1940; that prior thereto, and while the divorce proceedings were pending in the Circuit Court of Cook County, said attorney obtained from petitioner a mortgage note and trust deed secured by the property which is the subject matter of these proceedings, which said mortgage note was in the sum of $2,000; that said documents were executed by petitioner upon instruction of said attorney, but that petitioner did not know at that time, nor did she subsequently learn, until the last few days, what the significance of said documents was ; that thereafter, on June 6th, 1940, petitioner executed another mortgage note and trust deed, said mortgage note being in the principal sum of $1,000, secured by the property involved in these proceedings, at the direction of said attorney; that said attorney gave to petitioner a receipt for said $1,000 mortgage, written in English, the significance of which petitioner, at that time, did not understand; that said receipt recites that the consideration of said mortgage is the release of the previous mortgage of $2,000, and that the $1,000 mortgage was given as security for the attorney’s fees of said attorney in these partition proceedings; that although said mortgage was of record as a lien on the property involved herein at the time that testimony was offered before the Master herein concerning the liens on said property, no mention whatsoever was made of said mortgage, and no reference was made thereto in the Master’s Report or in the Decree of Partition entered herein; that during all the months between June, 1940, and the present time, petitioner on numerous occasions requested from said attorney information with regard to the ‘politician suit’ and on all of said occasions, said attorney did advise petitioner that she would soon have said property back; that at no time did said attorney advise petitioner that there would be a sale of said property, nor did said attorney ever advise petitioner. as to the true nature of partition proceedings; that on March 3rd, 1941, upon inquiry being made by petitioner from said attorney as to the development of her case, said attorney advised petitioner that there would soon be a sale of said property and that the result of said sale would be that Joseph Szurkus, defendant, would lose all interest that he might have in said property, and that petitioner would obtain complete title to said property; that said, attorney also advised petitioner that she should not mention anything about said sale to anyone at all for at least a period of ten days, and that she should not even inform any members of her family as to what said attorney had told her; that because of the evasive and conflicting answers to her inquiries that had been given to petitioner by her attorney for a long period of time, petitioner caused an investigation to be made of said proceedings and consulted other counsel with regard thereto; that as a result of said investigation and consultation, petitioner learned for the first time the true nature of said ‘politician proceedings’ and petitioner learned that a Master’s sale of said property had taken place, pursuant to a Decree of Partition, and a Decree of Sale entered herein, and that said property had been sold to one Walter Dombrowski on March 3rd, 1941, for the sum of $11,900. Petitioner also learned for the first time that there were liens against said property created by Joseph Szurkus, which liens had been proved in these partition proceedings, and that the proceeds of said sale would be used to satisfy the first mortgage, court costs, judgment liens, and the second mortgage held by said attorney, Anthony A. Slakis, and that the proceeds of said sale would be insufficient even to satisfy said prior liens, so that in no event could there be any sums left from the proceeds of said sale for petitioner. Petitioner is informed and believes, and on such information and belief, states the fact to be that said purchaser is acting as a nominee for the owner of the first mortgage, and for one Edward Dombrowski, a tenant in said property, and for defendant, Joseph Szurkus, all with the knowledge and consent of said attorney, Anthony A. Slakis; that the whole purpose of these proceedings and of said sale was and is to dispose of the interest that petitioner may have in said property, so that defendant, Joseph Szurkus, Edward Dombrowski and said attorney, Anthony A. Slakis, may obtain said property for their own benefit. Petitioner is informed and believes, and on such information and belief, states the fact to be that an arrangement has been made with the owner of said first mortgage so that said mortgage will be extended for the benefit of the new owner of said property and for the benefit of Joseph Szurkus, defendant, to the exclusion of petitioner; that the attorney who has appeared herein as attorney for defendant, Joseph Szurkus, is an associate of the law firm which has appeared herein as attorneys for the owner of the first mortgage; that if petitioner had known the true significance and nature of these proceedings, she would not have permitted said attorney to file same and permit the said property to be sold at a forced sale; that said property is worth in excess of $20,000, and that there was and is a substantial equity in said property which could have been realized by negotiation and private sale. Petitioner alleges that the processes of this Court have been used to perpetrate a fraud upon plaintiff and upon this Court, and that if said sale heretofore conducted by the Master in Chancery herein, is approved, petitioner will have been deprived of her interest in said property unfairly and without equity. Wherefore, petitioner prays that an order be entered herein disapproving said sale to Walter Dombrowski for $11,900, and that such other and further orders be entered herein, which upon full investigation by this Court of the circumstances surrounding these proceedings, shall be equitable in the premises.” On March 7, 1941, the court granted plaintiff leave to file her petition, directed that all parties of record have 10 days in which to answer, that the petition and answers would be heard by the court on March 21, 1941, and decreed that the report of sale be disapproved. On March 17, 1941, Joseph Szurkus filed his answer to the petition and also filed a cross petition. The answer denied the allegations of the petition. His cross petition stated that prior to marrying plaintiff, he was married to Veronica Szurkus, who died on July 30, 1933; that he married plaintiff on October 20, 1934; that plaintiff is the mother of two grown sons; that plaintiff and defendant separated on June 13, 1938; that no children were born to them; that prior to the marriage of plaintiff and defendant she owned a bungalow located at 5543 South Nagle avenue, Chicago; that he was then the owner of the property here involved; that on or about January 12, 1935, she induced him to execute a deed whereby she acquired a one-half interest in such property; that the inducement was her promise to give him the sum of $4,000, to be raised from a $2,000 mortgage to be placed against her bungalow, plus $2,000 in cash which he claimed she possessed; that he made the conveyance in reliance on her promise, and that she failed to carry out her promise. He prayed that the court order a new sale of the premises; that she be decreed to pay him the moneys due him, and that no part of the proceeds of any sale be paid to her until she accounts for the moneys owing to him. On March 17, 1941, attorney Anthony A. Slakis filed his petition specifically denying the material allegations of plaintiff’s petition. It will be observed that up to this time none of the parties was averse to the disapproval of the sale. However, on March 21, 1941, which was the day previously set for the hearing on the petition of plaintiff, Walter Dombrowski filed a petition setting up that on March 7, 1941, he was informed that an order was entered disapproving the sale and that the hearing on the motion to enter such order was had without any notice to him and without his knowledge. He prayed that the order disapproving the sale, be vacated, and that he be given leave to answer the petition. On March 21, 1941, the chancellor granted Walter Dombrowski leave to file an answer to plaintiff’s petition. On March 26, 1941, Dombrowski filed a motion to strike plaintiff’s petition on the ground that it was insufficient in law. At the same time he filed an answer. On April 10, 1941, Dombrowski filed his amended answer to plaintiff’s petition and stated that he was the highest bidder at the sale and that he delivered, to the master a cashier’s check in the sum of $1,200 as a deposit in compliance with the decree of sale; that the bid, iii the sum of $11,900, was more than two thirds of the appraised value; that the property was sold to him subject only to the general real estate taxes for the year 1940, amounting to approximately $550, and the -taxes for 1941; that the fair cash market value of the premises on March 3, 1941, was $12,500; that considerable repairs to the building would have to be made; that all exterior woodwork would have to be painted; that the-rear porches needed considerable carpentry work; that all the garage doors would have to be replaced; that the interior would have to be decorated; that the expense of renovating the premises would amount to approximately $1,000; that the property was about 35 years old, located on a commercial and manufacturing street; that there is a lack of concentration of business in the neighborhood and an absence of national chain stores; that it is not in a shopping district; that the rentals are low and not likely to increase; and that the price bid was fair. He denied any collusion with any other parties, and asked that the order disapproving the sale be vacated and that the master’s report of sale be approved. Dombrowski introduced Ernest Geissler, who testified that he was in the real estate business; that he was an experienced appraiser; that he inspected the building; that he was acquainted with the neighborhood; that in his opinion the fair reasonable cash market value was $15,500; that the building was located in a manufacturing district; that it was about 20 years old, in fair condition; that is was badly in need of repairs and that the renovation would cost about $2,000. At the time this witness testified, an attorney, Mitchell Kilanowski, who was not of record as representing anyone, stated to the chancellor that he represented a client who would make a guaranteed bid of $13,000, and that he then had $1,500 as evidence that he could make the bid. On April 10, 1941, the chancellor denied Dombrowski’s motion to strike plaintiff’s petition, and his petition to vacate the order disapproving the sale and directed the master to return the deposit of $1,200 made as earnest money on the bid. Dombrowski appeals and asks that the order of April 10, 1941, be reversed and that the cause be remanded with directions to vacate the order of March 7, 1941, disapproving the master’s sale, and to enter an order approving the sale. The issues made between ICostancija Szurkus, plaintiff, and Joseph Szurkus, defendant, on plaintiff’s petition and defendant’s answer and cross-petition, remain pending and undetermined.

In the case of Anderson v. Weiss, 308 Ill. App. 541, we discussed the law applicable to the facts of this ease. We quoted from the case of Shultz v. Milburn, 366 Ill. 400, where the court said (403):

“A sale by a master in chancery is not, until confirmed by the court, a sale in a legal sense. The chancellor has a broad discretion in its approval or disapproval. The highest bidder . . . acquires no interest in . . . the land and his bid is a mere offer to purchase. Confirmation is final consent, and the court being in fact the vendor, may consent or not, in its sound judicial discretion. This discretion, unless abused, will not be interfered with by a court of review. . . . However, the discretion thus vested in the court is not a mere arbitrary discretion but must be exercised in accordance with established principles of law.” In Levy v. Broadway-Carmen Building Corp., 366 Ill. 279, the court said (292):
“The proof did not sustain a greater value than $50,000 at the time of the sale, but if it be assumed that this was somewhat inadequate, the fact that there was a depressed market for real estate would not be a sufficient circumstance, coupled with the supposed inadequacy in the bid, to warrant the chancellor in disapproving the master’s report of sale. The power to disapprove a sale for gross inadequacy of bid exists independent of an economic depression. The chancellor abused his discretion and erred in refusing to approve the sale at $50,000. ’ ’

The latest pronouncement on this subject by our Supreme Court appears in Ryerson v. Apland, 378 Ill. 472, decided at the November 1941 term, where the court held that on a master’s sale in partition, the chancellor has a broad discretion to accept or reject the bid, and that the sale is not valid until and unless confirmed by the court.

The proposition for us to decide is whether the chancellor abused his discretion. We agree with the assertion of Dombrowski that the sale was conducted in accordance with the decree and that so far as the parties have proceeded, there is no evidence of fraud. Dombrowski relies on the case of Ellguth v. Ellguth, 250 Ill. 214, as authority for the proposition that plaintiff in her petition to disapprove the sale, cannot complain as to matters preceding the decree of sale. We have studied the Ellguth case and are of the opinion that it is not applicable to the factual situation before us. In the case at bar the chancellor had a broad discretion which will not be disturbed unless he exercised that discretion in an arbitrary manner. The presumption is that the order disapproving the sale was in accordance with sound equitable principles. The bid of $11,900 was $233.34 more than the two-thirds minimum sale price authorized by the decree. The court had the right to consider that the sale for this price, if approved, would leave nothing for Joseph Szurkus and very little, if anything, for the plaintiff. The court also had the right to take into consideration the fact that plaintiff and defendant desired to have the sale disapproved. The only right which Dombrowski could assert was that the court exercise a reasonable discretion in deciding whether or not the sale should he approved. At the hearing before the chancellor, Attorney Kilanowski who was not employed by any of the parties, announced that he was authorized to guarantee a bid of $13,000, should another sale be ordered. We agree with Dombrowski that the better practice would be to require the proposed new bidder to make a deposit as evidence of his good faith. This was not done. Nevertheless, in passing on the motion to disapprove the sale the chancellor had the right to give consideration to the statement of Mr. Kilanowski. Dombrowski complains of the action of the chancellor in disapproving the sale without notice to him. We agree that the better practice would be to give notice to the purchaser at the sale. Under the facts of this case, it is not necessary for us to say whether or not a sale, disapproved without notice to the high bidder, should be set aside. To ignore the high bidder would discourage persons from bidding at judicial sales. The law encourages persons to bid. Apparently, the failure to notify the purchaser was occasioned by the fact that the parties were thinking of the controversy between plaintiff and Joseph Szurkus and overlooked the purchaser. He did come into court within 30 days from the time of the entry of the order disapproving the sale, and was permitted to file a petition, a motion to strike plaintiff’s petition, an answer and an amended answer. He was given a full hearing and was permitted to introduce testimony in support of his contentions. From all of this, it is manifest that he had his day in court. It should also be borne in mind that the controversy between Kostancija Szurkus and Joseph Szurkus remains undetermined.

From a consideration of the record and the briefs, we are of the opinion that in disapproving the sale the chancellor did not abuse his discretion. Therefore, the order of the superior court of Cook county is affirmed.

Order affirmed.

Hebel and Kiley, JJ., concur.


text:
    Martin Netzer, Minor, by Catherine Netzer, His Mother and Next Friend, Respondent, v. Isaacson Garage and Motor Sales Company et al. (Defendants Below). Isaacson Garage and Motor Sales Company, Petitioner.
    Gen. No. 41,911.

      Heard in the third division of this court for the first district at the October term, 1941.
    Opinion filed January 7, 1942.
    Andrew J. Farrell, of Chicago, for appellant.
    Winston, Strawn & Shaw, of Chicago, for appellee.
   Mr. Presiding Justice Burke

delivered the opinion of the court.

Plaintiff, a minor, by his mother and next friend, filed his amended complaint in the superior court of Cook county against Isaacson Garage and Motor Sales Company, a corporation, and O. P. Nelson, doing business as O. P. Nelson & Company, to recover damages for personal injuries, and averred that the automobile which caused the injuries was operated by a servant and agent of the defendant, Isaacson Garage and Motor Sales Company, a corporation, and also by a servant and agent of O. P. Nelson. Both defendants answered. For convenience, we will speak of the Isaacson Garage and Motor Sales Company as the corporate defendant and O. P. Nelson as the individual defendant. The corporate defendant, as part of its answer, denied that the automobile was being operated by its servant and agent. The jury returned a verdict finding the individual defendant guilty and assessing plaintiff’s damages at the sum of $900, and returned a separate verdict finding the corporate defendant not guilty. On the day the verdicts were returned, the court entered judgments thereon. Plaintiff’s motion for a new trial was sustained. The corporate defendant’s petition for leave to appeal from the order granting a new trial was allowed.

The accident happened in the city of Chicago about 1:50 p.m. on Saturday, April 15,1939. Broadway runs in a northerly and southerly direction, as does Clark street. Barry and'Wellington avenues run in an easterly and westerly direction. Barry avenue is one block north ojf Wellington avenue. An alley runs in a northerly and southerly direction from Wellington avenue to Barry avenue and between Clark street and Broadway paralleling the latter streets. Vernon Both was driving a Lafayette automobile north in the alley between Wellington and Barry avenues. As he was passing a building on the east side of the alley north of Wellington avenue, plaintiff, seven years of age, while proceeding to a vacant lot used as a playground by the children of the neighborhood was struck by the automobile so being driven by Both. The boy was knocked down. He was taken to a hospital. He was unconscious from 12 to 18 hours. Blood was coming from his left ear, which was badly torn. The doctor performed a plastic operation on his ear. His skull was fractured, the fracture running from the lower part of the forehead back to the occipital bone. There was a large amount of separation. He was in the hospital from April 15, 1939 to July 1, 1939, and was kept at home from July 1 until September. The doctor’s bill was $250 and the hospital bills $512.05. No evidence was introduced by either defendant disputing the nature and extent of the injuries. The driver of the automobile, Vernon Both, was employed by the individual defendant on April 15, 1939. His duties were directed by this individual. The defendant, O. P. Nelson, instructed him to deliver the automobile to the Isaacson Garage and Motor Sales Company. Nelson, the individual defendant was in the business of automobile repairing and his shop was located at 3540 N. Clark street. The garage of the corporate defendant faces on Broadway between Barry and Wellington avenues, and ran back to the alley. Nelson’s automobile repair shop is about six blocks north and one block west of the corporate defendant’s place of business. Nelson did repair work for the corporate defendant and had been repairing the Lafayette automobile involved in the accident. In the process of delivering the Lafayette automobile, Vernon Roth drove south on Clark street to Wellington, then east on Wellington to the alley and north in the alley. This automobile was owned by defendant corporation. It had been brought to Nelson’s place of business on Monday or Tuesday preceding the accident. It was brought there by someone in the employ of the defendant corporation. Men in the employ of the corporate defendant usually drove its cars to and from Nelson’s shop. On April 15, 1939, Vernon Roth received an order to deliver the automobile to the corporate defendant’s garage. The only instructions he received from Nelson was to deliver the Lafayette car to the Isaacson Garage. He received no instructions from anyone connected with the corporate defendant. Nelson had been doing business with the corporate defendant since 1924. On the Thursday preceding the accident, Harry Burstrom, employed by the corporate defendant, called Nelson on the telephone and asked him if he could return the car to the corporate defendant by Saturday. At the time the telephone call was received, Nelson was repairing two cars belonging to the corporate defendant. One of these cars Nelson personally delivered on Thursday. After Thursday there was no further conversation with anyone connected with the corporate defendant. Vernon Roth was paid by the hour. He was being paid by Nelson for the time spent in taking the automobile to the garage of the corporate defendant. The radiator grille of the automobile was slightly damaged in the. accident. Nelson paid the defendant corporation $12.25 for this damage.

The corporate defendant maintains that the trial court should have directed a verdict in its favor because of a failure to prove that the relationship of master and servant existed between it and the driver of the car at the time of the accident. It also asserts that the driver was not an employee loaned to it by the individual defendant. The corporate defendant also declares that where a bailee is hired to perform service upon a thing bailed, and the bailor does not retain control over the thing hailed, such bailor is not responsible to a third person for the negligent use of the property by the bailee or his servants. Plaintiff insists that it was for the jury to say, under proper instructions, whose servant Both was at the time of the accident. Plaintiff argues that if there was a bailment it had terminated when the car left Nelson’s garage. Both was either the servant of the individual defendant or of the corporate defendant at the time of the occurrence. The evidence shows without contradiction that at the time of the accident Both was the servant of Nelson. He was not the servant of the corporate defendant. He was hired by Nelson, paid by Nelson and was under the orders of Nelson. He did not receive any orders from the corporate defendant ; nor was he loaned to the corporate defendant by Nelson.

From a careful reading of the testimony and the cases cited we are convinced that no evidence was produced tending to establish that Both was the servant of the corporate defendant. The court should have directed a verdict for this defendant. We are of the opinion that the court was in error in granting a new trial as to the corporate defendant. For the reasons stated, the order of the superior court of Cook county granting a new trial to plaintiff is reversed as to the corporate defendant and judgment is entered against the plaintiff for costs.

Order reversed and judgment here for defendant, Isaacson Garage and Motor Sales Company, and against plaintiff for costs.

Hebel and Kiley, JJ., concur.


author: Mr. Justice Hebel

text:
    Chicago Title and Trust Company, Trustee, Appellee, v. See-Moon and Company et al., Defendants. Appeal of Margaret Kempf, Appellant.
    Gen. No. 41,647.
    Heard in the third division of this court for the first district at the April term, 1941.
    Opinion filed January 7, 1942.

      Harry M. Ehrlich, of Chicago, for appellant.
    Nicholas J. Madgey, Eckert & Peterson and A. Edmund Peterson, all of Chicago, for appellee.
   Mr. Justice Hebel

delivered the opinion of the court.

This is an appeal by the defendant, Margaret Kempf, from a deficiency decree in the sum of $66,-552.75 entered against her in a real estate foreclosure suit, the subject matter of this litigation.

The theory of the plaintiff is that by the execution of certain extension agreements hereinafter described, the said defendant became personally liable to the plaintiff for the indebtedness secured by the trust deed foreclosed herein. The theory of the defendant, on the other hand, is that when she executed the extension agreements herein, she had no right, title or interest in and to the property herein foreclosed or in the indebtedness secured by the trust deed foreclosed herein; that she signed the said extension agreements merely to release her right of dower, if any, or as a surety or guarantor for her husband, and therefore did not become personally liable for the indebtedness herein; that by the terms of the extension agreements she agreed to pay only the interest on the indebtedness extended and the only remedy or damages provided for nonperformance was that the agreement shall become void and of no effect.

The facts as related by this defendant are that on May 22, 1922, the defendant, See-Moon and Company, a corporation, was the owner of the property involved herein. It executed, on said date, the 125 bonds aggregating the sum of $100,000, due in 10 years, and also the trust deed securing' the same, which was foreclosed in the proceedings herein. Thereafter, by a deed dated October 1, 1923, and recorded October 4, 1923, the said. See-Moon and Company conveyed the premises herein to the defendants, Michael Clamage, Morris Ohalfin and Phillip Kofi, who assumed and agreed to pay the said indebtedness who in turn conveyed to Otto C. Kraemer, who also assumed and agreed to pay the said indebtedness. Thereafter by a deed dated March 29, 1927, and recorded April 2, 1927, the said Kraemer and wife conveyed the premises to Konrad W. Kempf, the husband of the defendant appellant herein, subject to the said indebtedness.

Afterwards, by a deed dated December 17, 1930, and recorded July 20, 1932, the said Konrad W. Kempf and Margaret Kempf, his wife, conveyed the said premises to the defendant, Margaretha Olhausen, which deed was delivered to Harry M. Ehrlich, who in February 1939, after the death of said K. W. Kempf, delivered the same to Margaretha Olhausen, who then took possession of the premises and collected the rents therefrom.

On May 22, 1932, the indebtedness became due and K. W. Kempf and Margaret Kempf executed a three year extension agreement, duplicates of which were attached to each of the 125 bonds. Three years later, on May 22, 1935, the indebtedness again became due and K. W. Kempf and Margaret Kempf entered into an extension agreement with Fred Wittenberg and Company, as agent for the bondholders, whereby the payment of said bonds was extended for a period of three years, and a memorandum of said extension agreement was attached to each of the 125 bonds. On May 22, 1938, the said indebtedness again became due and K. W. Kempf and Margaret Kempf entered into an extension agreement with Fred Wittenberg and Company, as agent for the bondholders, whereby the payment of said bonds was extended for a period of five years, and a memorandum of said extension agreement was attached to each of the 125 bonds. The interest due November 22, 1938 on the said extension agreement was paid. Then there was a default in the payment of interest and taxes and this foreclosure followed.

The matter was referred to a master in chancery to take proofs and report his conclusions. The master found that all of the other defendants in the chain of title, who assumed and agreed to pay the indebtedness herein, were discharged from liability because the said extensions were obtained without their knowledge, consent or approval, and also found that upon the occasion of each of said extensions, K. W. Kempf and Margaret Kempf, his wife, agreed to pay the full amount of the indebtedness herein, and by reason thereof Margaret Kempf, individually and as executrix of the estate of K. W. Kempf, was personally liable for the amounts found due to the plaintiff.

The objections and exceptions of Margaret Kempf were overruled and a decree was entered in accordance with the findings of the master. A sale of the property was had, pursuant to said decree, and the property was sold to C. O. Frisbie, Jr., as nominee for the bondholders’ committee, for $50,000. The report of sale showed a deficiency of $66,552.75. On November 4, 1940, an order was entered approving the master’s report of sale and distribution and a deficiency decree was entered against Margaret Kempf and Margaret Kempf, as executrix, for the said sum of $66,552.75. The defendant, Margaret Kempf, individually, appeals from the said deficiency decree.

It is the contention of defendant appellant that the court erred in holding that she was personally liable for the indebtedness involved herein, and erred in entering a deficiency decree against her. It is suggested that K. W. Kempf and Margaret Kempf did not sign the bonds or the trust deed foreclosed herein, that the deed by which K. W. Kempf acquired title to the premises named him alone as grantee and was merely subject to the indebtedness in question, and that neither the defendant, Margaret Kempf, nor her husband assumed and agreed to pay the same. In support of her contention, defendant suggests that the liability, if any, of herself and her husband, for the indebtedness herein arises only by reason of the said extension agreements executed by them; that the extension agreements of May 22, 1932, and of May 22, 1935, were discharged by the execution of the extension agreement of May 22, 1938; and that, therefore, the terms and provisions of the last mentioned extension agreement govern the rights and liabilities of the parties hereto.

It appears from the last mentioned extension agreement that it provides in substance that K. W. Kempf and Margaret Kempf shall pay on the entire amount of all of the 125 bonds, interest at the rate of 4½ per cent per annum; that they will cause to be attached to each of the 125 bonds a memorandum of this extension agreement; that all provisions, stipulations, powers and covenants in said bond and in said trust deed contained, shall stand and remain unchanged and in full force and effect for and during said extension period; that in the event of the failure to pay the principal of said bonds, or any extension interest coupons, or to keep, fulfill or perform any of the covenants and agreements in the trust deed, then this extension agreement shall become void and be of no effect, the same as if this extension agreement had not been granted.

The appellant defendant submits, as a question which is the subject of the controversy, that the facts and circumstances clearly show that the parties did not intend that K. W. Kempf and Margaret Kempf should become personally liable for the principal indebtedness evidenced by the said bonds and secured by the trust deed; and that the execution of the extension agreement and the interest coupons did not create a personal liability for the principal of the bonds.

The plaintiff replies to defendants’ proposition by contending that the extension agreements were founded upon good and sufficient consideration to support the promise of the defendant, Margaret Kempf, to pay the indebtedness secured by the trust deed. It is contended that an understanding or agreement of forbearance to sue, followed by actual forbearance is a sufficient consideration. The case of Weisse v. Fowler, 176 Ill. App. 260, is cited in support of plaintiff’s contention.

It would appear from the record that the defendant appellant’s principal theory is based upon her erroneous assumption that she was a stranger in law to the mortgaged premises. She married Mr. Kempf in 1926, prior to his acquiring title to the mortgaged real estate and prior to the signing by her husband and herself of the three extension agreements of 1932, 1935 and 1938. It appears from her testimony that she signed the extension agreement of 1938 on June 9, 1938, in her husband’s office. She admitted that “I read the extension agreement before I signed it. It was given to me for my signature in Mr. Kempf’s office. I was signing for an extension of the interest on this property.” On cross-examination, she made the further statement that “in 1932 I knew that my husband owned the property. He told me to sign these agreements, because he said it was customary for the wife to sign whenever the husband signs. Nothing was ever said to me that the bonds had reached the date when they should be paid. I read this document where it is said that it is just the interest got to be paid by the people who sign. I read that document all the way through. I did not read this short document. . . . (The extension agreements executed in 1932, 1935 and 1938.) In each case my husband’s signature was already there. I had confidence in him. ’ ’ It appears further that she testified “Mr. Kempf told me it was necessary for a wife to sign these papers with the husband, and that is all I know about it.” As to the 1932 extension agreement, Mrs. Kempf testified, “I wouldn’t remember whether I was present when

Mr. Kempf signed the agreement to pay the original indebtedness dated May 22, 1932. It is his signature. He did not sign that extension agreement the same time I did, because he told me to come down to the office and sign it. I suppose he had just signed them at that time. I don’t know whether he received any money for signing that. I did not at any time make any promise to Mr. Wittenberg or to any bondholder to the effect that I would pay the original amount of the bonds.” From the testimony above quoted, it appears that Mrs. Kempf signed these extension agreements at her husband’s request and direction. She admitted he was the owner of the property in 1932, when she signed the first extension agreement. Finally, it appears that the defendant signed these documents voluntarily. No fraud or duress was involved. The three agreements were signed by her either for the benefit which might accrue to her, or indirectly to her husband in obtaining the extension of time and the forbearance by the bondholders. In the case of First Nat. Bank of Crown Point, Ind. v. Davis, 146 Ill. App. 462, the court affirmed the proposition that forbearance extended to a husband supplies the consideration for the promise of the wife to pay an indebtedness. There the court said:

“A pre-existing debt is a good consideration for a conveyance by way of mortgage. It has always been so held, both in Illinois and Indiana. Mclntire v. Yates, 104 Ill. 491-501; Work v. Brayton, 5 Ind. 396.
“The very seal indeed imports a consideration. Rendleman v. Rendleman, 156 Ill. 568. But in this case the evidence found by the master and the court sufficient to establish the fact, tended to show the consideration of a forbearance for at least 30 days of an over-due note, and a conditional extension, dependent on payment of interest during these 30 days. This was an alteration of position and full consideration in the legal sense, even had one other than the preexisting debt been necessary.” In passing upon the wife’s objection that there was no consideration as to her, she not being in title, the court said:
“And if any consideration beyond her husband’s pre-existing indebtedness was necessary, it was supplied by the forbearance above noted extended to him.” See also, McLeish v. Hanson, 157 Ill. App. 605; Weiland v. Weiland, 297 Ill. App. 239; Williston on Contracts (Rev. Ed. Vol. 1, sec. 113); and American Law Institute — Restatements of Contracts, sec. 75(2).

The 1938 agreement attached to each of the bonds provided: “In the event of the failure to pay either or any of said extension interest coupons at the time and place when and where the same respectively become due and payable, or to pay the principal of the bond to which this, agreement is attached or at the time and place when and where the same becomes due and payable, or upon the failure to keep, fulfill or perform any or all of the covenants and agreements contained in the Trust Deed securing said bond, then the whole of said principal sum of the bond to which this agreement is attached, shall at the election of the holder or holders of the bond to which this agreement is attached, become at once, without notice, due and payable.” Said agreement also provided, in a confession of judgment clause, the following:

“And to secure the payment of the principal and interest of the bond to which this agreement is attached, we hereby authorize irrevocably, any attorney of any Court of record to appear for us in such Court, in term time or vacation, at any time hereafter, and confess a judgment without process, in favor of the holder or holders of the bond and extension interest coupons to which this agreement is attached for such amount as may appear to be unpaid thereon, together with the costs and reasonable attorney’s fees, and to waive and release all errors which may intervene in any such proceedings, and consent to immediate execution upon such judgment, hereby ratifying and confirming all that our said attorney may do by virtue thereof.” It would appear, therefore, from these provisions of the agreement that the defendant and her husband intended to keep, fulfill and perform the covenants and agreements contained in the trust deed securing the bonds. (See Albers v. Moe, 306 Ill. App. 208, upon like questions as here raised.)

Finally, upon the question of the construction to be given the language of the agreement of 1938, it would appear that the words “void and of no effect,” in the event of default of the extension agreement, was for the benefit of the bondholders and should be construed as meaning “voidable” and does not release the defendant from the obligation to pay the indebtedness. In the language of the extension agreements construed in Albers v. Moe, 306 Ill. App. 208, and Lillie v. McFarlin, 304 Ill. App. 27, the words “void and of no effect” are used, but the court, in each of those cases, found the signers of the extension agreements personally liable nevertheless. The court, in the Albers v. Moe (supra) case said:

“Defendants claim that the only obligation they assumed under the extension agreements was to pay the interest for the extended periods as evidenced by the interest coupons which they executed, while plaintiff insists that under said agreements they directly assumed the payment of the principal of the Moe note, as well as the interest thereon. ’ ’ Again, in this opinion, the court said in passing upon the contract for extension there involved:
“The contract for the extension of July 25, 1927, after reciting that ‘said second party (Websters) desires to have the payment’ of the $4,000 note ‘extended for three years from July 22, 1927, in consideration of the agreement hereinafter made on his part,’ provided that the bank agreed to the three-year extension ‘so long as’ the Websters ‘shall promptly pay interest . . . and shall further keep and perform all and singular the covenants and agreements in said note and trust deed contained’ and provided further that said second party ‘agrees to and accepts said extension upon the conditions aforesaid.’ There is nothing ambiguous about this language and we think it clearly indicates that it was the intention of the parties that the Websters agreed to and did assume the obligation of paying the $4,000 Moe note.” In the case of Soeker v. Kerr, 202 Mo. App. 22, the trial court construed the words “null and void” to render the contract, after the default in the extension agreement, ineffectual. The appeal court reversed this judgment and found the signers of the extension agreement liable, saying:
“Apparently the trial court took the view that, since the contract contained the condition that it should become ‘null and void’ in the event of the failure of the defendants to pay any one of the said notes executed by them, then the failure of defendants to pay the last interest note, maturing July 27, 1915, the date of the maturity of the principal note as extended by said contract, operated to render the contract thereafter wholly ineffectual, and thereby released the defendants from their agreement whereby they made themselves personally liable for the payment of the indebtedness evidenced by the principal note. This we believe to be unsound. The condition in question was, we think, clearly one for the benefit of the other party to the contract, then the holdér of the note secured by the deed of trust, to be invoked by him at his election. And under the circumstances the word ‘void’ though used in conjunction with the word ‘null’ is to be taken as meaning voidable, giving plaintiff’s assignor the right to take advantage of a default on the part of the defendants at his option.” It is a rather unusual contention of defendant appellant that upon default and failure to pay the extension interest coupons, the provisions of the extension agreement should he construed so as to relieve the signers of the extension agreement from payment of the principal bonds to which this extension agreement was attached and from performance of the covenants and undertakings contained in said extension agreement. We are of the opinion that the condition, that the agreement be “void and of no effect” was one for the benefit of the holder or holders of the principal bonds — to be invoked by them at their discretion. It would be inequitable if, upon default of payment of interest coupons, the defendant appellant were relieved of all liability which she assumed by the execution of the several extension agreements. We are of the opinion that the reasonable construction of the words “void and of no effect,” as used in the instant agreement, is that they mean “voidable,” and, therefore, give the plaintiff the right to take advantage of defendant appellant’s default at its option, and that the entry of the deficiency decree herein was justified.

The defendant appellant offers the suggestion that the extension agreement contains no such provision on her part to keep and perform all covenants and agreements in the bonds and mortgage; that on the contrary, the extension agreement involved herein merely provides that all of the provisions, stipulations, powers and covenants in said bond and in said trust deed contained shall stand and remain unchanged and in full force and effect, for and during said extended period, except only as the same are herein and hereby specifically varied or amended. This suggestion, however, does not relieve her from the liability which seems to have been clearly incurred by signing this extension agreement.

It is contended by the defendant that the court improperly allowed the plaintiff the sum of $5,395.59 for solicitor’s fees, trustee’s fees, title charges and other fees and charges, as shown by the foreclosure decree in this case. It is apparent from the statement made by the defendant that this amount was allowed under the terms and provisions of the trust deed foreclosed, but defendant’s contention is that Margaret Kempf did not sign the trust deed and that she did not agree to keep and perform any of the terms or covenants therein contained. However, it appears from this record that the defendant, Margaret Kempf, is liable as a principal, having signed the extension agreement ■with her husband agreeing to pay the bonds as provided for in the trust deed. Therefore, the court properly allowed this amount.

From the facts as they appear in this record, Mrs. Kempf was a principal with her husband and hence the court did not err in allowing the amount complained of. For the reasons stated, the decree is affirmed.

Decree affirmed.

Burke, P. J., and Kiley, J., concur.