author: Mr. Justice McSurely Mr. Presiding Justice O’Connor

text:
    Central Trust Company of Illinois, Administrator with Will Annexed of the Estate of Arthur H. Reynolds, Deceased, Appellee, v. O. C. Hagen, Appellant.
    Gen. No. 32,718.

      O’Connor, P. J., dissents.
    Opinion filed June 25, 1928.
    Rehearing denied July 9, 1928.
    SONNENSCHEIN, BeRKSON, LaUTMANN & LEVINSON, for appellant; Henry L. Kohn, of counsel.
    Pratt & Zeiss, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.

Defendant appeals from a judgment against him for $1,565.34 entered after trial by the court.

The suit was upon promissory notes executed by the defendant and was originally for $4,989.25. The affidavit of merits admitted $3,551.70 to be due and judgment for this amount was entered, and the trial proceeded for the balance claimed and the instant judgment followed. The defense as to this balance was accord and satisfaction.

The execution of the notes was admitted by the affidavit of merits, which further alleged that there was due from Arthur H. Reynolds, the holder of the notes, to defendant a certain amount for rental of office space. The affidavit admitted $3,551.70 to be due and therein tendered said sum, together with plaintiff’s costs, in full accord and satisfaction of any and all claims of plaintiff. Defendant’s counsel attempted to deposit the amount of the tender with the clerk of the municipal court, who refused to accept the money, and there: after defendant, through his counsel, moved the court-for an order directing the clerk to accept the tender. When the motion was called, one of the attorneys for the defendant placed the amount of the tender with costs, in money, on the bar of the court and stated that defendant tendered the money to plaintiff in full satisfaction of all claims and demands of plaintiff in this case against the defendant. The attorney for plaintiff stated that he refused the tender. Defendant’s counsel then asked the trial judge to enter an order directing the clerk to accept the money, but the court stated that it was not necessary, as the tender had been made in open court, that the tender was alive and the defendant was fully protected. The attorney for plaintiff then asked for judgment for the amount admitted to be due, and judgment for this amount — $3,551.70— and costs was entered. Plaintiff’s attorney then took the money which had remained on the bar of the court and on his motion the judgment for $3,551.70 was satisfied. Plaintiff’s attorney then asked that the trial proceed as to the balance claimed. Defendant was then given leave to file an amended affidavit of merits, which set up the tender in full settlement of all claims and the acceptance of the same by the plaintiff, claiming an accord and satisfaction. Upon trial for the balance claimed, the finding was against the defendant and the instant judgment for $1,565.34 was entered.

We are of the opinion that the facts show an accord and satisfaction. There was a dispute as to the amount due and an actual tender of money to which was attached the condition that plaintiff could only take the same in full settlement of all its claims. The case comes within the rule stated in Watson v. Lee Loader & Body Co., 302 Ill. 276, where, after reciting section 55 of the Practice Act, Cahill’s St. ch. 110, If 55, which provides for partial judgments and under which plaintiff proceeded in the instant case, the court síaid:

“That section has not repealed the statute in relation to tender, nor abolished the law of tender and deprived any party of its benefit. The statute gives a defendant the right to make a tender, after an action is brought upon any contract, of the sum due thereon, with the legal costs of suit incurred up to the time of the tender, and if plaintiff accepts the tender upon the terms offered he cannot afterwards maintain his suit, as the tender operates as a satisfaction of his claim. If money is so tendered as to amount to a condition that acceptance will be in satisfaction of the demand it must be accepted upon the terms offered, and an acceptance is a bar to a right of action on the demand.” Citing cases.

The decision in that case turned upon the absence of the actual money in court, the defendant merely incorporating a tender in his affidavit of merits and doing nothing more. The opinion proceeds:

“In any case of tender where there is a suit the money must be brought into court, (Wood & Co. v. Merchants’ Loan and Trust Co., 41 Ill. 267; O’Riley v. Suver, 70 id. 85;) to enable the plaintiff, if he sees proper, to accept the amount tendered and thus put an end to the litigation. The- defendant did not bring itself within the terms of the statute by bringing the money into court, but after judgment whs entered for the amount admitted to be due it paid the judgment. ’ ’

The instant case is clearly distinguished from the cited case. There, the defendant did not bring the money into court, but after judgment was entered paid the amount admitted to be due. Here, the defendant brought the actual money into court, tendering it in full settlement of all claims. Defendant did not pay the judgment, but plaintiff took the money tendered by defendant and applied it in satisfaction of its judgment.

The money was subject to appropriation by the plaintiff only upon the condition named, to wit, full satisfaction of all claims. Plaintiff could not by physically appropriating the money forcibly separate it from this condition. Plaintiff could either leave it or take it, and when it took the money it accepted the condition attached thereto.

Whether the amount accepted was less than the plaintiff was entitled to receive or would have recovered is immaterial and does not in any way affect the rule of tender. Canton Union Coal Co. v. Parlin & Orendorff Co., 215 Ill. 244; and it is immaterial whether the counterclaim in dispute is set-off or recoupment. Ostrander v. Scott, 161 Ill. 339; Lapp v. Smith, 183 Ill. 179; Snow v. Griesheimer, 220 Ill. 106; see also In re Estate of Cunningham, 311 Ill. 311. In Lapp v. Smith, 183 Ill. 179, the opinion quotes the apt language of Fuller v. Kemp, 138 N. Y. 231, as follows:

“The tender and the condition could not be dissevered. The one could not be taken and the other rejected. The acceptance of the money involved the acceptance of the condition, and the law will not permit any other inference to be drawn from the transaction. Under such circumstances the assent of the creditor to the terms proposed by the debtor will be implied, and no words of protest can affect the legal quality of this act.”

Many other supporting cases might be cited sustaining our conclusion that an accord and satisfaction of plaintiff’s claim was amply proven.

" Plaintiff argues that an administrator cannot compound a claim without the approval of the probate court. We do not read the statute in question, section 83 of chapter 3, Administration Act, Cahill’s St. ch. 3, If 84, as holding the settlement of a claim is void. It simply provides that the court may order an administrator or executor to compound a claim. It is evident that such an order is for the protection of the administrative officer. We do not read any of the cases cited by plaintiff as applicable- to the present situation.

It is also said that the acceptance of a tender in full accord and satisfaction by the attorney cannot bind his client, but under paragraph 5, chapter 135, Illinois Statutes, Cahill’s St. ch. 135, If 5, it is provided that the tender may be made ‘ ‘ either to the plaintiff or his attorney in the suit,” and that such tender is available as a defense.

It is not necessary to submit propositions of law upon trial in the municipal court to have the judgment reviewed by the Appellate Court. Zanias v. Davies Laundry Co., 242 Ill. App. 637; Pittsburgh, C., C. & St. L. Ry. Co. v. Chicago City Ry. Co., 300 Ill. 162.

Although counsel for plaintiff have submitted a very ably written brief, it cannot prevail and for the reasons above indicated the judgment entered is reversed, and as the case was tried by the court we will enter judgment in this court that the plaintiff take nothing.

Beversed and judgment of nil capiat.

Hatchett, J., concurs.

Mr. Presiding Justice O’Connor

dissenting: In my opinion the judgment of the municipal court of Chicago should be affirmed. I agree with the law announced in the majority opinion and if the facts adduced on the trial were properly before us the question whether the judgment should be reversed would be an exceedingly close one; but I am of the opinion that the facts adduced on the trial of the case are not properly before us.

The record discloses that on July 12,1926, the court, on motion of plaintiff, entered judgment on the pleadings in plaintiff’s favor for $3,551.70, being the amount due as admitted by the defendant in his affidavit of merits. The judgment then awards an execution and continues:

“The plaintiff having in open court acknowledged the payment in full to said plaintiff of the amount of the judgment in this cause, it is ordered that said judgment be and it hereby is satisfied in full of record.

“The Court reserves for future determination and adjudication the matter of the balance of plaintiff’s demand claimed in said plaintiff’s affidavit of claim and the matter of whether further costs shall be allowed herein to either of the parties to this cause.

“It is further ordered that the Court retain jurisdiction herein, and that this suit proceed as to said portion of the plaintiff’s demand in dispute as if the suit had been brought therefor.

“On motion of the defendant it is ordered by the Court that leave be and hereby is given to file amended affidavit of merits in ten days.”

Nine days afterwards the defendant pursuant to the leave given filed his amended affidavit of merits and on September 24, 1926, plaintiff’s motion to strike the amended affidavit from the files was overruled except as to the fifth paragraph thereof which was sustained. About eighteen months after the judgment above mentioned was entered, namely, on January 23, 1928, the cause as to the remainder of plaintiff’s claim came on for trial before the court without a jury and on the hearing the defendant, over plaintiff’s objection, introduced evidence tending to show what took place before the court on July 12, 1926. This evidence was to the effect that when the matter came on before the court on that date the defendant tendered $3,551.70 in money and placed it upon the bar of the court. The tender was made on condition that it be accepted by plaintiff in full of his claim; that plaintiff refused such tender and thereupon moved the court to enter judgment in its favor upon the pleadings; that immediately after the judgment was entered counsel for the plaintiff stepped to the bar of the court and took the $3,551.70 and acknowledged payment of the judgment. This evidence tended to contradict the record of the judgment because it was to the effect that plaintiff had accepted the money in payment in full of all of its claim, while the judgment recites that the plaintiff acknowledged receipt of payment of the judgment and not of his claim. This plaintiff had a right to do under section 55 of the Practice Act, Cahill’s St. ch. 110, 55.

So far as the judgment entered on July 12 discloses, the defendant acquiesced in what the court did at that time. It is elementary that the recitals of a judgment import absolute verity and cannot be contradicted. People v. Noonan, 276 Ill. 430. If the defendant desired to review the action of the court as shown by the record of July 12, 1926, he should have preserved the facts that occurred at that time by bill of exceptions, stenographic report or some other proper manner provided by law. Not having done this he cannot eighteen months afterwards adduce testimony tending to show what occurred in court at that time and which tends to contradict the record.

Bills of exceptions were first introduced by Statute of Westminster 2. Jones v. Sprague, 3 Ill. 55. It was the practice to file an exception at the time the ruling complained of was made or during the trial. This has been modified by statute in this State which permits the filing- of a bill of exceptions upon leave of court at any time during the terms at which judgment was entered or within such time thereafter as shall during such time be fixed by the court. Section 81, Practice Act, Cahill’s St. ch. 110, 81. In Village of Franklin Park v. Franklin, 228 Ill. 591, it was held that where it was desired to question the ruling of a trial court, which was not saved by the common-law record, it must be preserved by a bill of exceptions whether the ruling excepted to was final and appeal-able or not. That was a special assessment proceeding. The legal objections were heard and overruled. At the next term of court, the question of benefits was disposed of. The court held that to preserve the question on the ruling of the court on the legal objections, leave must have been obtained during the term at which the legal objections were disposed of, to file a bill of exceptions. The court there said (p. 592):

“The only ground upon which it is insisted that this bill of exceptions could be signed and sealed in September when the time was not extended at the May term is, that the order overruling the legal objections was not a final and appealable order. But that does not create any exception to the general rule. The statute contemplates, and in fact provides, that the hearing of these cases shall be conducted as other cases at law, and the same rule must apply that applies in all other cases. Motions may be made and acted on in relation to process, to pleadings, or to almost any conceivable thing, in course of legal proceedings, and the fact that the rulings cannot be appealed from and are not final in the case does not affect the question when the bill of exceptions must be taken.”

In the instant case the bill of exceptions was not taken within thirty days after the judgment of July 12, 1926, was entered, and the defendant could not, nearly one year and one-half afterwards, introduce evidence to show what took place before the court on July 12.


source: Caselaw Access Project

author: Mr. Justice Matchett

license: Public Domain

text:
    James R. McCord, Appellant, v. Briggs & Turivas, Appellee.
    Gen. No. 32,492.
    Opinion filed June 25, 1928.
    Winston, Strawn & Shaw, for appellant; John C. Slade, of counsel.
    Francis X. Busch and Hopkins, Starr & Hopkins, for appellee.
   Mr. Justice Matchett

delivered the opinion' of the court.

At the June term, on the 28th day of the month, there was pending in the circuit court of Cook county an appeal of the defendant, Briggs & Turivas, a corporation, from a judgment entered by a police magistrate in an action in forcible entry and detainer. James It. McCord, appellant here, was the plaintiff in that action. The record shows that on that day the following order was entered by Judge Caverly:

“This cause being called for trial and the defendant failing to prosecute the appeal herein, on motion of plaintiff’s attorney it is ordered that the appeal be and the same is hereby dismissed at defendant’s costs for want of prosecution.

“Therefore it is considered by the court that the plaintiff do have and recover of and from the defendant his costs and charges in this behalf expended and have execution therefor.”

On August 2, 1927, the record shows a motion by plaintiff for the issuance of procedendo to the court below and the following order entered by Judge Rush:

“It appearing that the appeal of the above named defendant was heretofore, on June 28, 1927, dismissed for want of prosecution, now, therefore, on motion of plaintiff’s attorney it is

“Ordered that a procedendo do issue herein to the court below.”

On September 10, 1927, the defendant Briggs & Turivas filed a motion to vacate these orders and reinstate the appeal. Leave was given to file the motion, and on that day defendant filed its petition in writing, together with certain affidavits, in support thereof. To these the plaintiff McCord demurred. The court overruled the demurrer and entered an order as prayed on October 22, 1927, being one of the regular days of the October term of the court. The order recites the prior proceedings, finds that the merits are with the defendant Briggs & Turivas, overrules the demurrer and allows the motion according to the prayer of the petition. The order states:

“And the court here now further finds, orders and adjudges said orders entered respectively on June 28, A. D. 1927, and August, A. D. 1927, in said Petition mentioned, were entered by error of fact and misprision of the Clerk, and that said order for procedendo was improvidently entered and said writ of restitution was improvidently issued and the orders and proceedings therefor were based upon errors of fact and misprision of the clerk of this court.”

From this order the plaintiff has perfected this appeal.

The defendant has filed in this court its motion to dismiss the appeal on the ground that the order entered by the court was not final. The motion was denied but is again urged. We adhere to our former decision on the authority of Cramer v. Illinois Commercial Men’s Ass’n, 260 Ill. 516. On the same authority we must hold that as the term at which the judgment was set aside had ended, we must assume that the proceedings in the trial court were under section 89 of the Practice Act, Cahill’s St. eh. 110, ¶ 89.

The plaintiff urges that section 89 is applicable only to proceedings which are according to the course of the common law 'and argues that a proceeding by way of appeal from a judgment before a justice of the peace in an action in forcible entry and detainer is a special statutory proceeding. He cites Schooner Constitution v. Woodworth, 1 Scam. (2 Ill.) 511, as to appeals, and City of Chicago v. Chicago Steamship Lines, Inc., 328 Ill. 309, as to actions in forcible entry and detainer. He then argues, citing Bishop v. Illinois Western Elec. Co., 221 Ill. App. 141, that under section 89 the motion is not applicable to the proceedings and that the court is without jurisdiction to grant it.

Bishop v. Illinois Western Elec. Co., supra, is a case where the provisions of section 89 were held inapplicable to a proceeding under the Workmen’s Compensation Act, Cahill’s St. ch. 48, 201 et seq. In so far as the mode of proceeding is concerned, it would not be difficult to distinguish a proceeding of that kind from appeals from justices of the peace in actions of forcible entry and detainer. However, we do not find it necessary to decide that question, but prefer to place our decision in this case on other and, as we think, firmer grounds.

Assuming that the motion under section 89 is applicable, the controlling question in the case is whether the petition of defendant and affidavit supporting the same state facts which would justify the order setting aside the judgment.

The petition avers the parties, the nature of the action, the judgment before the magistrate, and the appeal perfected to the circuit court. It avers that the cause was placed on a preliminary calendar which was called by Judge Caverly in June, 1927; that it was called June 14 and set over until June 28; that in conducting the preliminary call, the usual order was the dismissal of the cause at plaintiff’s costs for want of prosecution; that on June 28 at a preliminary call of the cases upon the daily trial call, "without this cause being reached for trial, an order was pronounced and made by Judge Caverly dismissing the said cause on motion of defendant at plaintiff’s costs for want of prosecution and directing that the defendant recover from the plaintiff its costs and charges; that by the original entry of the clerk’s minute of said order made immediately at the time said order was pronounced by the deputy clerk performing the duty of trial clerk in Judge Caverly’s court, and by the report of the petitioner’s counsel, who attended upon the same, petitioner was informed and believed that the cause had been dismissed on motion of defendant and was disposed of; that, relying thereon, it paid no further attention to the cause, but that at some time after the malting of the original entry of the clerk’s minute of said order, the said minute by error of fact and misprision of the clerk was altered without knowledge of or notice to the petitioner or any of its counsel, so that it was made to recite that on motion of plaintiff (instead of defendant, as theretofore had be.en recited therein) said appeal was dismissed at the costs of defendant (instead of at the costs of plaintiff, as had been originally entered), so that plaintiff recovered from the defendant his costs and charges in that behalf for want of prosecution.

The petition also avers that on August 2, 1927, without notice to petitioner or its attorneys and without their knowledge, counsel for plaintiff appeared before Judge Rush and procured the entry of an order by error of fact (as the order and judgment theretofore made by the court and the entry of which had been thereafter .altered, as before alleged) directing that a procedendo issue to the police magistrate; that said writ issued and was filed with the police magistrate, who issued a writ of restitution which was placed in the hands of a constable for execution.

The petition further set up facts tending to show that defendant had a meritorious defense to the action of forcible entry and detainer, and that upon a trial on the merits plaintiff could not have prevailed.

In support of this petition an affidavit of DeWolfe, an attorney at law, was submitted averring that he examined the files and records in the case and the facts in connection therewith, and that in his opinion, based on the authority of Fitzgerald v. Quinn, 165 Ill. 354, plaintiff could not have established the right to possession. The affidavit of Smith, an attorney at law, stated that while the appeal was pending in the circuit court he had a conversation with plaintiff’s attorney, who told him he was satisfied that the action of forcible detainer would not lie and that he did not expect to try the case; that it was thereupon agreed that the same should be placed on a passed case calendar, which was shortly thereafter done. The affidavit also states that Smith was informed by an associate, Wentz, on June 28, 1927, that the suit had been dismissed on motion of the defendant and that affiant had no knowledge that the suit was not in fact dismissed as reported by Wentz until August 31, 1927, when some one brought a copy of the writ of restitution to the office.

An affidavit of Wentz, an attorney at law employed in the office of defendant’s attorneys, was also submitted. He states that he had from day to day after June 1, 1927, watched the call of Judge Caverly for the appearance of the case thereon; that the case was set over and continued until June 27 and then until June 28. He says that the list of cases on the trial call of Judge Caverly included cases of original jurisdiction and also appeals from police magistrates, including the one here in question. He says that Judge Caverly did not try any case on that day, and on information and belief states the fact to be that Judge Caverly heard only a few motions of course and conducted only a preliminary call of the few cases appearing on his trial call for that day; that affiant attended the court in answer to the announcement of said call, “and there observed that said case was dismissed on motion of defendant; that he thereupon reported to Earl J. Smith, his associate, and others in the office of his said firm, that said case had been dismissed on motion of defendant at the plaintiff’s costs; that he, in good faith, so believed.”

The affidavit further states that he was informed on September 1 that an order had been entered dismissing the appeal; that he thereupon investigated the files and records and learned the facts which are stated in defendant’s petition; that in investigating he examined the file "wrapper and the minute clerk’s blotter and observed therefrom that the notations of the minute clerk thereon with reference to the order of June 28, 1927, recited that on motion of defendant the appeal was dismissed at plaintiff’s costs with judgment for want of prosecution; that the notation so written had been written over so as to recite that on motion of plaintiff the appeal was dismissed at defendant’s costs with judgment for want of prosecution; that the judgment order of June 28 did not provide that a procedendo issue in the cause; that the files contained a motion presented to Judge Rush on August 2, 1927, in said cause wherein plaintiff moved the court, without notice to defendant, to enter an order directing that a procedendo issue, which was granted. Ho also corroborates statements in the affidavit of Smith as to knowledge and belief on the part of the attorney for plaintiff that he could not maintain an action and did not intend to try to do so.

A further affidavit of Wentz is to the effect that the preliminary call of cases on June 28 was conducted by the deputy clerk, who called out the cases, received the requests and motions on behalf of the parties and indicated the same to the judge, and that the orders of June 28 were made by the deputy clerk upon his indication of the same to Judge Caverly, in order that the same might be quickly accomplished; that the announcement for daily call was made by the clerk as the same appeared in the Chicago Law Bulletin; that the case here in question was number B108113, entitled McCord v. Briggs & Turivas Co., and, while the preliminary call was being made, Judge Caverly announced that he did not wish to try a case that day and would only make the preliminary call and hear a few motions; that no case was tried by Judge Caverly on that day; that he adjourned court on the completion of the preliminary call; that the minute clerk in Judge Caverly’s court made the original entry of the minute of June 28, 1927, upon what is customarily known as the “daily trial call sheet”; that the original entry made at the time read: “B 108113 McCord No. Deft. Appl. Dis. Briggs Turivas”; that the original entry had not been changed up to the time of making the affidavit; that on June 28 the minute clerk transcribed said original entry upon the page of his blotter or minute book and also upon the file wrapper of the files of the cause, and that the transcriptions were afterwards altered as before stated. Photostatic copies of this page of the minute book and of the file wrapper were attached to the affidavit as Exhibits “B” and “C.”

Section 89 of the Practice Act, CahilPs St. ch. 110, 1i 89, in substance provides that the writ of error coram nobis is abolished and that all errors of fact committed in the proceedings of any court of record, which by the common law could have been corrected by said writ, may be corrected by the court in which the error was committed upon motion in writing made at any time within five years after the rendition of final judgment in the case upon reasonable notice. This section of the statute is by its terms limited to those cases which could have been corrected by a writ of error coram nobis according to the course of the common law. It has been construed in numerous cases. In Mitchell v. King, 187 Ill. 452, the court said:

“But while the statute abolished the writ it did not abolish the essentials of the proceeding, which, in nature, remains the same.”

In Cramer v. Illinois Commercial Men’s Ass’n, 260 Ill. 516, the court said:

“After the expiration of the term of court at which a judgment is entered the court has no authority to set aside the judgment for any alleged error of law, and can only amend it in matter of form after notice to the opposite party. (Cook v. Wood, 24 Ill. 295; Cox v. Brackett, 41 id. 222; Barnes v. Henshaw, 226 id. 605; People v. Wilmot, 254 id. 554.) The court, however, may correct errors of fact after the term by virtue of section 89 of the Practice act, which provides that errors in fact which by the common law could be corrected by the writ of error coram nobis may be corrected, upon motion, * * * and we will not presume that the court attempted to examine, revise or correct its action for an error of law at a subsequent term, in view of the long established rule that it would have no power to do so. (Pisa v. Rezek, 206 Ill.344.)”

In the case last cited the court said:

“The motion substituted by the statute for the writ of error coram nobis may be invoked to enable the court to correct an error of fact that came within the scope of the writ as it existed at the common law * * *. It is only the correction of matters of form, clerical errors or matters quite of course that may be had on mere motion, after the close of the term. ’ ’

In Ernst Tosetti Brewing Co. v. Koehler, 200 Ill. 369, the court said, in discussing the errors of fact correctible under this statute:

“Such errors of fact may involve questions of duress, fraud, or excusable mistake, without negligence on the part of the party against whom judgment is rendered; but, aside from cases within the purview of the statutory motion, a court cannot set aside, reverse, ór change its judgment after the term at which it is rendered.”

In Chapman v. North American Ins. Co., 292 Ill. 179, the Supreme Court held that a judgment entered in a case where the return of service by the sheriff was untrue could not be set aside in this proceeding, and said:

“Such error of fact which may be assigned under such writ, or by motion under section 89 of our Practice act, which is controlled by similar rules, must be some fact unknown to the court at the time judgment was rendered, as well as one which would have precluded the rendition of the judgment. * * * The error of fact alleged must not be one appearing on the face of the record or one contradicting the finding of the court.”

In Marabia v. Mary Thompson Hospital of Chicago for Women and Children, 309 Ill. 147, the court again held, following the Chapman ease, that the sheriff’s return of service might not be contradicted in a proceeding under this section. The court there said that the errors of fact which might be corrected in the same court “referred to the disability of parties, the incapacity of the plaintiffs to sue or the disability of the defendants to defend, such as infancy, coverture, death of one or more of the parties, death of a joint party, insanity.” It was stated that these were the cases described in 2 Tidd’s Practice, secs. 1136-1137, and the intimation is that the cases that may be corrected under this section are limited to the classes there enumerated. The court expressly said that the section does not apply to those cases involving only “lack of knowledge on the part of the court of facts constituting a cause of action or a defense to it. ’ ’

In People ex rel. O’Connell v. Noonan, 276 Ill. 430, it was said:

“It will thus be seen that while the writ of error coram nobis has been abolished, the same errors which at the common law could have been corrected by that writ may now be corrected, under section 89 of the Practice act, upon motion in writing, by the court in which the error was committed.

“* * * The alleged errors here sought to be corrected are findings of fact contained in the judgment order itself. It is only concerning matters of which the judgment itself is silent that the court may entertain a motion, under section 89 of the Practice act, to correct errors in fact, and affidavits in support of such motion cannot be heard to contradict the record.

“It is elementary that the judgment of a court imports absolute verity.”

In Domitski v. American Linseed Co., 117 Ill. App. 292, this court said that while there were cases seeming to hold that the remedy by writ of error coram nobis was limited to cases of persons under special disability, these cases were mere illustrations of the scope of the remedy afforded by the writ, and held that the misprision of the clerk of the court in failing to keep the declaration in the files and in failing to make an entry of the filing thereof on the register kept pursuant to rule of court was such an error as would warrant the vacation of a judgment after the term of entry and the order of the trial court setting aside a judgment entered through that error was set aside. The judgment of the Appellate Court was affirmed in Domitski v. American Linseed Co., 221 Ill. 161.

In Holbrook v. Lawton, 207 Ill. App. 497, it appeared that through the failure of the clerk of the circuit court to obey a rule of court requiring him to place upon the wrapper of a case the name of the judge to whom the case was reassigned, a judgment by default was entered by a judge whose name was on the files and to whom it had been assigned at a prior time. A proceeding having been brought under section 89, the judgment was set aside on the authority of Domitski v. American Linseed Co., 117 Ill. App. 292; Brady v. Washington Ins. Co., 82 Ill. App. 380; Tidd’s Practice, sec. 1137; Silverman v. Childs, 107 Ill. App. 522. The court quoted Cramer v. Illinois Commercial Men’s Ass’n, supra, to the effect:

“If the clerk should fail to file a plea or answer, and by such failure a party should be prevented, without fault or negligence, from making a defense, the error might be corrected by the motion substituted for the writ.”

The opinion also cited Pickett’s Heirs v. Legerwood, 7 Pet. (U. S.) 144,147, and quoting Archbold it further said: “ ‘Error in the process, or through default of the clerk’ is a ground for error coram nobis.”

In Butterick Pub. Co. v. Goldfarb, 242 Ill. App. 228, this court held that where a clerk of the county court had included in the May calendar a cause on the November calendar preceding which had been marked for trial, it was his duty to strike the cause from the November calendar, and judgment by default having been taken in defendant’s absence by reason of the misprision of the clerk, the same was ordered corrected by motion- under section 89 and the judgment set aside.

In McNulty v. White, 248 Ill. App. 572, a judgment had been entered against defendant in the circuit court. Defendant had filed appearance in the cause by his attorneys but had failed to file pleadings within the time allowed therefor. At the next term the defendant presented a motion under section 89 and by leave filed his petition supported by an affidavit of one of his attorneys. The plaintiffs filed a general demurrer, and later two more affidavits were filed in support of the petition. The plaintiffs made a motion that the petition be stricken from the record, which was denied. The petition was allowed, the order of default vacated and the judgment set aside. The petition alleged that there had been a dismissal of other-parties defendant without notice, and other paragraphs alleged that when damages were assessed neither defendant nor his attorneys were present and that the record falsely recited that the parties to the suit were present by their respective attorneys. Another paragraph alleged that when.defendant’s attorney who had charge of the pleadings was reminded that the time for filing a plea in the case was about to expire, he, through confusion or inadvertence, had failed to file it. In another paragraph the petition charged that the damages were assessed through failure to give notice to defendant of such assessment.

On the authority of People ex rel. O’Connell v. Noonan, supra, the second division of this court held that the petition might not aver that the record falsely recited that the parties were present by their respective attorneys; that it was only concerning matters of which the judgment itself was silent that the court could entertain a motion under section 89 of the Practice Act, Cahill’s St. ch. 110, ft 89, and that affidavits in support of such a motion could not be heard to contradict the record. As to the matter- of failure to file a plea through inadvertence, it was held that such failure must be deemed negligence or a mistake of fact by counsel, but not an error in fact which if known by the court would have prevented entering the judgment. As to the allegation that the defendant had a meritorious defense, it was said that lack of knowledge by the court of facts in the case which constituted the defense was not such an error of fact that could be corrected by such a motion, and as to the allegation of the failure to give notice, it was held that notice was not necessary. Accordingly, the order vacating the judgment and setting aside the default was reversed.

In Bucker v. Central Business Men’s Ass’n, 248 Ill. App. 657, where the clerk of the court erroneously permitted a cause to remain on the calendar of Judge Scanlan, after an order had been entered assigning the same to the calendar of another judge and the trial judge calling cases from Judge Scanlan’s calendar was not apprised of the fact and therefore dismissed the same in the absence of the plaintiff, for want of prosecution, it was held that the judgment would be set aside upon petition under section 89.

In Loew v. Krauspe, 320 Ill. 244, Loew sued Krauspe in the circuit court. The suit was placed on calendar No. 4, which was then Judge Scanlan’s calendar. After defendant filed a plea and affidavit of merits of his defense the cause was placed on the short cause calendar. It was called as a short cause case, and no one appearing for defendant, a jury was impaneled, evidence heard and a verdict and judgment rendered for plaintiff for $4,000. After the expiration of the term the defendant filed a motion supported by affidavits under section 89 of the Practice Act to set aside the judgment on the ground that its entry resulted from an error of fact. Counter-affidavits were filed and the court allowed the motion to set aside the judgment. Upon appeal to the Appellate Court, the judgment óf the circuit court was reversed and the Supreme Court granted the petition of defendant for a writ of certiorari. The facts disclosed were that calendar No. 4 was the calendar of Judge Scanlan prior to his assignment to hear special chancery cases. Before the suit ivas commenced, under the authority of the rules of the circuit court of Cook county, the executive committee made an order assigning Judge Swanson to hear short causes after August 1, 1923. In December an order was made by the executive committee transferring common-laAV calendar No. 4 to Judge McGoorty, and it Avas repeated in this order that Judge Swanson Avas assigned to hear short causes. Notice of these transfers and assignments were ordered to be printed and distributed among the members of the bar generally, and the same were published in the Law Bulletin.

It was contended that there were three errors of fact: (1) The unauthorized act of the clerk in putting the case on the trial call for February 18 Avhen it had been set for trial on the short cause calendar February 11. (2) The unauthorized act of the minute clerk in placing the case on Judge Swanson’s trial call when it should have been on the trial call of Judge McGoorty. (3) That when the case was not called or tried February 11 it constituted a continuance, which resulted in taking it from the short cause calendar, and it could not be restored without filing a neAv affidavit and service of notice. Plaintiff’s affidavit in opposition to the motion states (and it was not disputed) that defendant’s attorneys were subscribers to the Law Bulletin; that the call of all cases to be heard by Judge Swanson was published in the Law Bulletin on February 16, the same as the call sheet made out by the clerk.

The court held that after the adjournment of a term of court at which a judgment was entered, it could not be set aside or overcome by affidavit; that the motion in the nature of a writ of error coram nobis was not addressed to the equitable powers of the court nor intended to relieve the party from the consequences of his own negligence, and that in construing section 89 “it has always been held that errors of fact which could be made the basis of the motion are facts which, if known to the court, would have prevented the entry of the judgment, and not the lack of knowledge on the part of the court of facts constituting a cause of action or a defense to it. Marabia v. Thompson Hospital, 309 Ill. 147; Village of Downers Grove v. Glos, 316 id. 563.”

We think this review of authorities discloses that errors which can be corrected by motion under section 89 are only such errors of fact as go to the capacity of the parties or misprision of the clerk of the court which do not contradict the record and which if known to the court would have prevented the entry of the judgment. This is the sum and substance of all the decisions, and we think the same disclose that the petition and affidavits here filed were wholly insufficient to justify the court in entering an order to set aside the judgment, because the alleged error which it is sought to correct appears by the allegation of the petition to be one which contradicts the finding of the court. The averments of the petition and the statements in the affidavit of Wentz are to the effect that on June 28 Judge Oaverly entered an order dismissing the cause on motion of defendant at plaintiff’s costs for want of prosecution and directed that the defendant have and recover from the plaintiff its costs and charges. It is also averred that the cause was not actually called for trial on June 28; on the contrary, the record of the court shows that the case was called for trial; that defendant failed to prosecute the appeal; that plaintiff’s attorney made a motion, upon which the court ordered that the appeal be dismissed and that the plaintiff have judgment for his costs and charges.

These findings of the judgment cannot be contradicted by the affidavits nor does the fact that plaintiff demurred to the averments of the petition avail, since it is only facts that are well pleaded which the demurrer admits. The cases which we have reviewed disclose that in no one of them has the petition or affidavit of the parties making the motion been allowed to contradict the record of the court, and it is plain, both upon reason and authority, that to permit such a practice would result in an intolerable situation. Thus in People ex rel. O’Connell v. Noonan, supra, the court goes so far as to hold that where the record shows that a party was personally present in court, that party will not be permitted to aver or prove that he was not in fact present.

As to the further averments of the petition and affidavits that the clerk of the court made changes in his minutes, this would not constitute an error of fact under section 89. Indeed, the presumption would be that the clerk in making such corrections was only performing his duty. As plaintiff points out, matters relating to the clerk’s notation in his minute book and docket and also on the file wrapper, in so far as the same are alleged, appear to be of such a nature that they came into existence only after the judgment had been pronounced and not before it was entered, and hence these could not have been the cause of the failure of the court to be informed upon any question of fact which could have precluded the entry of the judgment. Moreover, the memoranda of the clerk made after the judgment was pronounced are not part of the record of the court. They are not required to be made or kept by law; they are merely memoranda for the convenience of the clerk from which the record is made up by him. People v. Petit, 266 Ill. 628.

It may possibly be true (although we do not wish to be understood as so holding) that the memoranda might have been made the basis of an order after the term for the amendment of the judgment which was entered. Judgments may be amended after the term where there are memoranda in the files or kept by the judge which may form the basis of such amendment, although in such case the judgment itself may not be set aside. In the interest of public justice, such memoranda should be kept by every judge who pronounces a judgment in any case before him. It is significant that the motion here was not made before the judge who entered the judgment.

The demurrer to the petition of defendant and the affidavits submitted in behalf of his motion were improperly overruled, and the order setting aside the judgment was unwarranted. The order is therefore reversed.

Reversed.

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


author: Mr. Justice Scanlan

text:
    The Harmony Cafeteria Company et al., Appellees, v. International Supply Company, Appellant.
    Gen. No. 32,361.

      Opinion filed July 10, 1928.
    Hirsch, Chaikin & Bloch, for appellant.
    Harry S. Harned, for appellees.
   Mr. Justice Scanlan

delivered the opinion of the court.

In the municipal court of Chicago, in an action in contract, the plaintiffs, The Harmony Cafeteria Company, a corporation, A. J. Cooper and S. Cooper, obtained a judgment by confession against the defendant, International Supply Company, a corporation, in the sum of $320. The plaintiffs’ claim was for rent due upon a written lease executed by the plaintiffs, as lessors, and the defendant, as lessee, whereby the plaintiffs demised to the defendant “the premises in the City of Chicago, County of Cook, and State of Illinois, known and described as follows: That certain space known and described as rooms 302-3 on the third floor of the Hamilton Building, South East corner of Clark and Van Burén Streets, to be occupied for its hardware specialty business and general merchandise, and for no other purpose whatever.” The lease contained an ordinary confession of judgment clause. Thereafter the defendant filed a motion to vacate the judgment, and in support thereof filed an affidavit of the president of the defendant corporation. The material parts of the affidavit, so far as this appeal is concerned, are as follows:

“That prior to the entering into of the lease between the plaintiff and the defendant, the plaintiff promised the defendant that in consideration of his signing the aforesaid lease, the plaintiff would give unto the defendant the privilege of using, during the term of said lease, a certain storage place in the basement of the building, of which the defendant’s premises are a part, which said space and place was at that time designated, and subsequently in accordance with said promise occupied by the defendant for a period of about three (3) months aftér January 1st, 1926; and used by the defendant to store merchandise and stock of the defendant and boxes of the defendant used in the defendant’s business; that said premises are material and essential to the conduct of defendant’s business; that on or about April 15th, 1926, the plaintiff moved into and occupied the second floor of the building at 81 West Van Burén Street, said building being the one in which the premises occupied by the defendant are located, and in addition to occupying said second floor the said plaintiff took possession and made use of a greater portion of the basement, and also that portion of the basement which had been set aside for storage purposes for the use of the defendant; that as a consideration for the entering into of the lease upon which judgment was taken in this cause, the plaintiff promised unto the defendant that it would be allowed to place a sign on the front of said building ; that he (defendant) has repeatedly notified the plaintiff; and has oft requested that the defendant be allowed the use of the aforesaid designated space, and to remove the rubbish and belongings of the plaintiff from the aforesaid space so that the defendant may occupy the same, but the plaintiff has wholly refused so to do, and still refuses so to do.”

The trial court entered an order overruling the defendant’s motion and this appeal followed.

The sole contention of the defendant is that the trial court erred in refusing to vacate the judgment, for the reason that “the affidavit set forth that the store-room in the basement was necessary and essential to the conduct of the business of the plaintiff in error, and that the store-room, or space in the basement had been specifically designated by all of the parties, and had been in use by the plaintiff in error for a period of over three months. It then became a question of fact as to whether or not the store-room was, or was not appurtenant and running with the demised premises. The affidavit set forth that the plaintiff in error had been promised a space in front of the building, where he could place a sign. A sign is clearly essential and necessary to the business of any concern, and it became a question of fact as to whether or not it was an appurtenance”; that the plaintiffs have evicted the defendant from the “certain storage space” in the basement and that the said space was appurtenant to the premises described in the written lease, and that by reason of the said eviction the defendant was thereby excused from the payment of any rent, although he continued to occupy the premises described in the lease.

While the affidavit is based entirely upon the theory that the alleged oral agreement entered into prior to the making of the lease constituted a demise of the certain storage space in the basement, subject to the terms and provisions of the written lease, the defendant has abandoned that theory in this court, as clearly appears from the sole contention raised, but we have concluded , to consider the contention as though it were supported by the averments in the affidavit. It is elementary, of course, that when parties deliberately reduce their agreements to writing, parol evidence is inadmissible to contradict, add to, explain or modify the writing, and that a written contract executed between parties supersedes all their prior negotiations and agreements upon the same subject, and this appeal might well be determined by this rule of law.

In support of its present contention the defendant cites Parish v. Vance, 110 Ill. App. 50; Vinissky v. Lazovsky, 155 Ill. App. 596, and Johns v. Eichelberger, 109 Ill. App. 35. In the first case the court held that the right of the lessee to the light in controversy was necessary and essential to the proper enjoyment of the. estate granted and that it passed as an “appurtenance” by the terms of the written lease. In the second case the court held that a lease of a certain building for a store and dwelling carried with it a right to the use of a passageway in controversy. In the third case it was held that where a landlord leases to a tenant a single room in a building, retaining control of the other parts, including the roof, it is the duty of the landlord to keep the roof in repair, so the tenant may not be injured in his holding. None of these cases has any application to the facts of the present proceeding.

“An appurtenance is defined to be ‘a thing used with, and related or dependent upon, another thing more worthy, and agreeing in its nature and quality with the thing wliereunto it is appendant or appurtenant.’ (2 Am. & Eng. Ency. of Law, — 2d ed.— 521. ) It is true, a mere convenience is not an easement, but the right or privilege must be necessary or essential to the proper enjoyment of the estate granted.” (Jarvis v. Seele Milling Co., 173 Ill. 192, 195.) “Nothing passes by the word appurtenance, except such incorporeal easements, or rights, or privileges, as are strictly necessary and essential to the proper enjoyment of the estate granted. A mere convenience is not sufficient to thus create such a right or easement.” (2 Am. & Eng. Ency. of Law, — 2d ed.— 522, and cases cited.) “The word (appurtenance) has a technical signification, and, when strictly considered, is employed in leases for the purpose of including any easements or servitudes used or enjoyed with the demised premises.” (Bouvier’s Law Dictionary, Bawle’s Bevision, Yol. 1, p. 158.)

The language in the lease, “that certain space known and described as rooms 302-3 on the third floor of the Hamilton Building, South East corner of Clark and Yan Burén Streets, to be occupied for its hardware specialty business and general merchandise, and for no other purpose whatever,” in our judgment, cannot, by any reasonable interpretation, be made to include, as an appurtenance, “a certain storage place in the basement of the building,” which “place” was on another floor and entirely apart from the space designated in the lease itself. A case in point is Fuchs v. Par Kar Amusement Co., 236 Ill. App. 487. Moreover, the affidavit in question is silent as to the character and size of the building in question and how, if at all, the premises described in the lease were connected with the “place” in the basement. It does not even aver that the use of the “place” in the basement was material and essential to the conduct of its business at the time the lease was made. The allegation is that the premises are material, etc. Neither the size of rooms 302-3 nor the size of the basement is given, nor does the affidavit even state in what part of the basement was the “certain storage place,” nor the dimensions of the same, and for aught that appears in the affidavit, the size of the latter may have been exceedingly small. “To be the basis of an eviction, the omission of duty on the part of the landlord or the wrongful act committed by him must be something of a grave and permanent character, evidencing an intention on his part that the tenant shall be deprived of the enjoyment of the demised premises.” (Gibbons v. Hoefeld, 216 Ill. App. 282, 289.)

The defendant asserts, rather than argues, that it was entitled to a space in front of the building where it could place a sign; that a sign was an appurtenance of the premises demised and that the plaintiffs refused to allow the defendant to place a sign, and that such conduct of the plaintiffs amounted to an eviction from a portion of the premises. The lease contains no provision that the defendant was entitled to a space in front of the building where it could place a sign. In fact, it provides that the defendant “shall not allow any signs or placards posted or placed thereon except by written consent of first party.” But if it be conceded that the alleged right was an appurtenance to the premises demised, the refusal of the landlord to permit the use of the sign could not be held to amount to an actual eviction from a portion of the premises described in the lease. The defendant admits that it continued to occupy the premises described in the lease and that it failed to pay its rent. “No constructive eviction exists without a surrender of possession. With retention of possession after constructive eviction, liability for rent exists, according to the terms of the lease, during occupancy thereunder.” (Leiferman v. Osten, 167 Ill. 93,101.) The rule stated in Gibbons v. Hoefeld, supra, is also applicable to the present contention.

The contention of the defendant is without the slightest merit, and the judgment of the municipal court of Chicago should be and it is affirmed.

Affirmed.

Gtridley, P, J., and Barnes, J., concur. •


author: Mr. Justice Newhall

text:
    George W. Bennett et al., Plaintiffs in Error, v. Benton State Bank, Defendant in Error.
    Original opinion filed June 20, 1928.
    Modified opinion filed July 21, 1928.
    R. Shad Bennett, for plaintiffs in error.
    Hart & Hart, for defendant in error.
   Mr. Justice Newhall

delivered the opinion of the court.

The Benton State Bank, as complainant in the court below (defendant in error), filed its bill to foreclose a mortgage executed by the plaintiffs in error, George W. Bemiett and Frances L. Bennett, to secure their note for $8,000. The bill alleged that the note and mortgage were originally made to the John Hancock Mutual Life Insurance Company; that the same had been assigned to the bank and were due and unpaid; that B. Shad Bennett claimed some interest in the premises, and copies of the note and mortgage were attached to the bill. All defendants to the bill filed a joint answer admitting the execution of the note, mortgage, and extension agreement between the original parties, but denied that the note and mortgage were due or had been lawfully assigned to the bank.

Beplication to the answers of all defendants, except B. Shad Bennett, was filed by the complainant bank.

On December 13, 1926, the cause came on for final hearing, the respective parties being represented by counsel, and the court entered a decree after hearing the evidence and argument of counsel, in which decree the court found that the allegations of the bill of complaint were true; that the court had jurisdiction of the subject matter and parties to the cause; that there was then due from the defendants, George W. Bennett and Frances L. Bennett, for principal and interest on said note and mortgage the sum of $8,960.36, and the further sum of $516 for a reasonable solicitor’s fee for the complainant, which, by the terms of the mortgage, was a part of the mortgage debt; that the defendants, George W. Bennett and Frances L. Bennett, were decreed to pay to the complainant bank said sums so found due, with interest, within 30 days, and that, in default of payment, the property mortgaged was directed to be sold by the master at public sale, upon giving public notice by publication in a public newspaper in said county, once a week for three successive weeks; that the master was directed, after such sale, to issue a certificate of purchase, which should be subject to redemption according to law.

The record shows the issuance of a master’s certificate pursuant to a sale held by him under the terms of the decree, whereby the complainant bank became the purchaser for the sum of $9,800; that the sale so made was approved by the court, without objection, and the master reported that he had made the sale according to law and the terms of the decree.

The evidence heard by the court was not preserved by certificate, and the plaintiffs in error seek a reversal of the decree on the grounds that the findings contained in the decree are insufficient to support the decree.

Counsel for plaintiffs in error contends that the decree affirmatively shows that the original note and mortgage were never produced in evidence, and that the relief granted by the decree includes sums which the record shows were represented by interest notes, which were not produced in evidence or attached by exhibit to the pleadings. The decree recites that the court heard the “evidence,” and there is no affirmative finding as to the kind of evidence heard, whether oral or documentary, and this finding would not warrant the presumption of counsel that the note and mortgage were not produced and read to the court, or that only oral evidence was heard.

The answer of the defendants admitted the execution of the note, mortgage, and extension agreement mentioned in complainant’s bill, and, therefore, it was unnecessary to prove the same. (See Macaulay v. Jones, 295 Ill. 614, 616.)

The delivery of the note and mortgage was an essen- . tial part of their execution, and the admission in the answer of their execution was necessarily an admission that they were delivered. (Hunt v. Weir, 29 Ill. 83; Bailey v. Valley Nat. Bank, 127 Ill. 332.)

It clearly appears from the decree that the court found the ultimate facts which justified the relief granted. The decree need not recite merely evidentiary facts tending merely to sustain the ultimate conclusion of fact upon which the decree is found. The final conclusion reached by the court as an inference of fact drawn from all the circumstances is a fact within the meaning of the rule requiring the facts sustaining a decree to appear of record. (Koch v. Arnold, 242 Ill. 208.)

The bill avers that the $8,000 note, with interest thereon frpm date, remains due and unpaid to defendant in error, although the same has long since become due. It also avers that the note arid mortgage were assigned to the complainant. The decree finds that the principal and interest due on the note and mortgage is $8,960.36 and the further sum of $516 for a reasonable solicitor’s fee and that the aggregate amount due the defendant in error from the Bennetts is $9,476.36. The court could not make such a finding in the absence of proof that the note had been assigned and that the bank was entitled to the unpaid interest. We would not be warranted in assuming that the court made such a finding without there was evidence to support it. In a foreclosure suit it is not essential that the bill should set out the note and mortgage in haec verba or that copies be attached to the bill provided the instrument’s are identified by proper description and referred to in apt words. (Jocelyn v. White, 201 Ill. 16.)

It is further urged by counsel that the court erroneously included solicitor’s fees as part of the mortgage indebtedness in the decree. The mortgage provided for a reasonable solicitor’s fee in the event of foreclosure, and the decree found a certain sum as a reasonable fee, which by the terms of the mortgage became a part of the mortgage debt. The allegations of the bill in connection with the mortgage attached thereto as an exhibit, in our opinion, were sufficiently broad enough to warrant the allowance of reasonable solicitor’s fees as part of the debt. (See Healy v. Protection Mut. Fire Ins. Co., 213 Ill. 99; Roby v. Chicago Title & Trust Co., 194 Ill. 228, 232.)

Where the findings of fact recited in the decree are not contradicted by the evidence in the record, they are conclusive upon a court of review. (Allen v. Henn, 197 Ill. 486.)

A party dissatisfied with the findings of fact upon which the decree is based must bring the testimony before this court that will show that such facts were erroneously found, otherwise this court will presume the evidence warranted the findings of fact as recited in the decree. (Groenendyke v. Coffeen, 109 Ill. 325; Allen v. Henn, 197 Ill. 486.)

It is also claimed by counsel that the notice of sale prescribed by the decree to be published once a week for three successive weeks was insufficient.

In Crosby v. Kiest, 135 Ill. 458, 462, it was held that where a court of chancery decrees the sale of land, it may, under its general chancery powers, prescribe such notice as may be reasonable, and that a publication once a week for three successive weeks was sufficient. A like sale was approved in Springer v. Law, 185 Ill. 542.

We have considered the other contentions made by counsel as to the sufficiency of the decree sought to be reversed, and are of the opinion that they are insufficient to warrant a reversal.

For the reasons above stated, the decree of the court below is affirmed.

Affirmed.


author: Mr. Presiding Justice Barry

text:
    John F. Davis et al., Appellees, v. Louis Wirth, Appellant.

      Opinion filed June 1, 1928.
    J. J. Burlington, for appellant.
    Hill & England, for appellees.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

The issues presented in this case are substantially the same as in term Nos. 18 to 41 inclusive and term No. 44. Appellees are the same in all of the cases and the various appellants are represented hy the same attorneys. Counsel for appellants say that the primary issues in all of the cases are identical and notwithstanding slight differences existing by reason of facts peculiar to individual cases they think the ruling on all cases should be the same, as there is not enough distinction in the facts or in the records submitted to authorize a different decision in any case from the decision in the other cases. In view of that statement we shall dispose of all of the cases in this opinion.

Appellees procured a judgment by confession against appellant in the city court of Bast St. Louis on January 30, 1926. Appellant filed a verified motion to set aside the judgment and for leave to plead. About a year later the motion was set for hearing and appellant asked leave of court to file other affidavits and documentary evidence in support of his motion and leave was denied. On September 6, 1927, the court entered an order denying appellant’s motion to set aside the judgment and for leave to plead.

The first ground set out in appellant’s motion is to the effect that the note upon which judgment was entered was obtained from him by the payee therein named by fraud, misrepresentation and deceit and was without any consideration whatever. The words “fraud,” “misrepresentation” and “deceit,” are of no avail in the absence of averments of facts to which they properly apply. Fortune v. English, 226 Ill. 262-269. They' are merely the statement of a conclusion. The facts upon which a charge of fraud is based should be averred. People v. Henry, 236 Ill. 124. That is the rule both at law and in equity. Bouxsein v. Granville Nat. Bank of Granville, 292 Ill. 500. A general allegation of fraud, however strong in expression, is insufficient. The particular facts and circumstances relied on as constituting fraud must be set out. Dickinson v. Dickinson, 305 Ill. 521-527.

The bare statement that the note was without any consideration whatever is probably sufficient in a motion, but where the motion is verified and there is no other affidavit in regard to the consideration for the note, it is not such an affidavit as would warrant the court in opening the judgment and granting leave to plead. Parent Mfg. Co. v. Oil Products Appliance Co., 246 Ill. App. 222.

The second ground of the motion is as follows: “The note upon which judgment was entered was made as part of a contract which was to be executed in the State of Missouri, was made payable in the State of Missouri, and that portion of the note authorizing judgment by confession is null and void and conferred no authority upon a court in the State of Illinois to enter .judgment by confession on said note.” Appellant argues that the note is a Missouri contract and that under the laws of the State of Missouri a judgment by confession cannot be entered thereon in this State. The law of another State is a question of fact to be proven like any other fact. The motion does not set out the law of Missouri in regard to that matter, nor is it shown by affidavit. A party to a contract made or to be executed in a foreign State, who desires to claim the advantage of some law or statute of such foreign State, must show, by appropriate pleadings and proof, what that law is, or the courts of this State will apply the law of the forum. Shannon v. Wolf, 173 Ill. 253.

The motion states that the note was made payable in the State of Missouri and that the portion thereof authorizing judgment by confession is null and void. The judgment was taken during the January term of court. Where a judgment by confession is entered in term time the note and warrant of attorney are not a part of the record unless preserved in a bill of exceptions. Waterman v. Caton, 55 Ill. 94; Boyles v. Chytraus, 175 Ill. 370. In the case at bar the note and warrant of attorney were not so preserved and cannot be considered even though the clerk has copied the same into the transcript of the common-law record. People v. Faulkner, 248 Ill. 158.

The statement to the effect that the note was made payable in the State of Missouri is without force. The note was before the trial court and we must assume that the court found from an examination of the. note that it was not made payable in the State of Missouri. The copy of the note set out in the transcript does not show that the note was payable in Missouri. The declaration avers that the note was delivered in the State of Illinois. The place where a note is made depends not upon where it is actually written, signed or dated, but upon the place where it is delivered as consummating the bargain. Walker v. Lovitt, 250 Ill. 543.

The third ground of the motion asserts that the note upon which judgment was rendered was without any consideration whatever and was obtained from appellant upon false, fraudulent and deceitful misrepresentations made by the payee and was obtained without paying any money or value therefor. The facts upon which these conclusions are based are not set out and for that reason the averments are wholly insufficient under the authorities cited in the consideration of the first ground of the motion. The third ground of the motion further states that the payee named in the note transferred the note to the Midcontinent Finance Corporation, a corporation under the laws of the State of Missouri, and that the payee was the president of said corporation and a member of its board of directors; that said corporation was not an innocent purchaser for value of the note, but the transfer was made for the sole purpose of cutting off any defense which appellant might have to said note for want of consideration or for failure of consideration. That part of the motion is without force because it is not shown in the verified motion that appellant has any defense to the note.

The fourth ground of the motion is as follows: “Said note is not a negotiable instrument and the Mid-continent Finance Company, nor the receivers of said Company are authorized or have the power to obtain judgment by confession or otherwise on said note.” This contention is based upon the wording of the power of attorney, but as we have shown, the note and power of attorney were not properly preserved and cannot be considered.

The additional affidavits and the documentary evidence offered by appellant, and which the court refused to consider, are shown in the purported bill of exceptions hereafter mentioned. They tend to show that the payee in the note claimed to have bought certain tracts of land which were to be platted and that he sold lots and took notes in payment for the same.

There is no showing that the particular note sued on was given as the purchase price of one of the lots. The affidavits simply raise the suspicion that perhaps the note in question was given in payment for a lot which was never conveyed to appellant.

So far, we have considered and treated the motion, and the affidavit in support thereof, as having been properly preserved and presented to this court. We would call attention to the fact, however, that while there is a purported bill of exceptions attached to the transcript of the record, yet it appears to be fatally defective. Appellant’s motion was overruled on September 6, 1927, and 30 days were allowed in which to file a bill of exceptions. The time for filing the same was duly extended to October 26, 1927. So far as the record shows there was no further extension of the time for the filing of the bill. The purported bill attached to the transcript shows that it was signed by the trial judge on February 23, 1928, and that it was filed in the office of the clerk of the trial court on the same day. The transcript of the record certified by the clerk of the trial court contains no bill of exceptions. The clerk’s certificate to the transcript is dated February 8,1928, and states that the bill of exceptions is included in the transcript. The clerk’s certificate was made 15 days before the bill of exceptions was signed by the judge' or filed with the clerk. There is nothing to show that the bill of exceptions was presented to the trial judge prior to February 23, 1928, nor is it properly certified by the clerk as a part of the transcript of the record. The statute requires an authenticated transcript of the record. Authentication by a certificate of the clerk of the trial court is essential under the section of the statute in question. Glos v. Randolph, 130 Ill. 245.

Affidavits in support of a motion to open a judgment and for leave to plead are not a part of the record so as to be considered on appeal, unless they are preserved in a bill of exceptions. Anderson Transfer Co. v. Fuller, 174 Ill. 221. Following the purported bill of exceptions is a stipulation between the attorneys to the effect that the bill of exceptions shall be filed in the office of the clerk of the city court on the 23rd"day of February, 1928, or any day thereafter, to and including February 28, 1928. The settlement of a bill of exceptions is a judicial act. When a final appealable order is entered the court may fix the time within which a bill of exceptions shall be presented. The time so fixed may be extended in open court before the time originally fixed has expired. There may be more than one extension, providing the. extension is procured before the time has expired. If a bill of exceptions is not presented within the time originally fixed, or within the time as extended, the judge of the trial court has no power or authority to sign and settle the bill.

We would also call attention to'the fact that the appeal bond recites that appellant prayed an appeal from the original judgment rendered on January 30, 1926, and it does not in any way refer to the court’s order denying the motion to vacate the judgment and for leave to plead. In any view of the case no reversible error has been shown and the judgments in this case •and in term Nos. 18 to 41 both inclusive and term No. 44 are affirmed.

Affirmed.


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    Charles Corcoran, Appellant, v. Franklin County Coal Company et al., Appellees.
    Opinion filed June 1, 1928.
    J. Roy Browning and A. D. Morgan, for appellant.
    E. M. Spiller and C. E. Feirich, for appellees; Essington & McKibbin, of counsel.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

Appellant sought to recover damages to his house and lot due to subsidences, alleged to have been caused by appellees in the mining of coal. The general issue and several special pleas were filed. Demurrers to the sixth and seventh pleas were overruled and appellant electing to abide by his demurrers the suit was dismissed at his costs.

The sixth plea avers that the deed to appellant for the lot in question contained this provision: “Reserving the coal under said lot and the right to mine same, and is not held responsible for any damages that may occur while removing said coal or after the same has been removed,” and that by reason thereof appellant is without any lawful right to maintain his action, etc. The seventh plea is to the effect that appellant was never, at any time, possessed of any right to the support of the surface of his lot, etc. Both pleas amounted to the general issue. Such a defect can be reached by a motion to strike or by a special demurrer, but not by a general demurrer. Wadhams v. Swan, 109 Ill. 46-54. The point was properly raised as to the seventh plea and the court erred in overruling the demurrer thereto. The demurrer to the sixth plea was both general and special but contained no suggestion that the plea amounted to the general issue. A special demurrer that does not raise the point is as ineffective' as a general demurrer.

So far as the averments of the sixth plea are concerned, appellees are total strangers to the surface and mineral estates in the land. They seek the benefit of the covenant in appellant’s deed without showing that they are parties thereto or privies in respect to the contract or the mineral estate. They insist that it is not necessary for them to show that they became the owners of the coal and the right to mine the same without liability for damages to the surface. They argue that appellant never acquired the right of surface support and that by reason thereof he cannot maintain an action for damages thereto even though such damages were caused by those who were utter strangers to any right, title or interest in the land.

Their contentions are based upon Graff Furnace Co. v. Scranton Coal Co., 244 Pa. 592, 91 Atl. 508; Charnetski v. Miner’s Mills Coal Min. Co., 270 Pa. 459, 113 Atl. 683, and Young v. Thompson, 272 Pa. 360, 116 Atl. 297. Those cases hold that three estates may exist in land and be vested in different persons at the same time — the surface, the right of surface support, and the minerals. They also hold that the owner of the surface alone, without the right of support, cannot recover damages from the owner of the minerals resulting from withdrawal of vertical support in mining. As before stated, appellees do not show that they are the owners of the mineral estate in the land, and without such a showing the cases relied upon do not apply.

It is unnecessary for us to decide whether under the law of this State the right of surface support is an estate in land and may be owned by a person who has no other right, title or interest in the premises. If the deed to appellant for the lot in question contains the provision set out in the sixth plea, we are of the opinion that no one could damage his premises without liability therefor other than the grantor in his deed and those who derived title to the mineral estate from or through the said grantor.

A release from all liability for damages for injury to the surface, stipulated in a deed, runs with the land and is binding on subsequent grantees of the surface land. 40 C. J. 1198; Graff Furnace Co. v. Scranton Coal Co., supra; Gordon v. Delaware, L. & W. R. Co., 253 Pa. 110, 97 Atl. 1032; Kellert v. Rochester & Pittsburgh Coal & Iron Co., 226 Pa. 27, 74 Atl. 789. We are not aware of any rule of law that will permit a total stranger to any interest in land to avail himself of the benefit of a covenant' running with the land.

The sixth plea purports to answer the entire declaration, but it fails to answer the counts which charge appellees with having removed the lateral support of appellant’s lot and the damages caused thereby. There is no claim that appellant released the damages that might be caused by a removal of the lateral support of his lot. So far as the record shows he is entitled to lateral support and to recover such damages as were occasioned by a removal thereof. 40 C. J. 1193; Scranton Coal Co. v. Graff Furnace Co., 289 Fed. 305. For the reasons aforesaid the court erred in overruling the demurrer to the sixth plea.

We have held that a grantee, who stipulates for the removal of coal without liability for damages to the surface, cannot hold the owner of the mineral estate liable for damages caused by a subsidence. Wesley v. Chicago, Wilmington & Franklin Coal Co., 221 Ill. App. 427; Boyer v. Old Ben Coal Corp., 229 Ill. App. 56. The Appellate Court of the third district reached the same conclusion in Cope v. United States Fuel Co., 229 Ill. App. 243. If appellant’s deed contains the covenant set out in the sixth plea, we are of the opinion that it is broad enough to release all damages to the surface caused by the mining of coal, in favor of the grantor and those who derived title from or through the grantor. Stilley v. Pittsburg-Buffalo Co., 234 Pa. 492, 83 Atl. 478; Weakland v. Cymbria Coal Co., 262 Pa. 403, 105 Atl. 558.

The judgment is reversed and the cause remanded with directions to sustain the demurrers to the sixth and seventh pleas.

Reversed and remanded with directions.


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    Illinois Midwest Joint Stock Land Bank, Defendant in Error, v. George J. McMahon et al. George J. McMahon, Plaintiff in Error.
    Opinion filed July 16, 1928.
    Winston, Strawn & Shaw, for plaintiff in error.
    Williamson, Burroughs & Simpson, for defendant in error.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

The Illinois Midwest Joint Stock Land Bank procured a decree of foreclosure and sale on November 10, 1926. By that decree plaintiff in error was ordered to pay the amount therein found to be due within 30 days, and that in default of payment the master in chancery should sell the mortgaged premises after giving public notice of the time and place of sale for four successive weeks in a newspaper of general circulation — the first publication to be at least 30 days prior to the day of sale. The master advertised the sale for December 30, 1926, the first publication being made on November 25, 1926, and the last on December 16th.

The public sale was held on December 30, 1926, and the premises were sold to the Illinois Midwest Joint Stock Land Bank, and on January 6, 1927, the master ■ reported the sale to the court and the same was then and there confirmed and a deficiency decree was entered for $900.

Plaintiff in error filed no objections to the master’s report of sale and made no motion to set aside the sale. This writ of error was sued out more than one year after the premises were sold by the master as aforesaid.

Plaintiff in error contends that the master in chancery did not comply with, the terms of the decree and that the sale should be set aside. His contention is based upon the fact that he was allowed 30 days from the date of the decree within which to pay the amount found to be due and that the master started the publication notice of the sale before the expiration of the 30 days; that the sale was held on December 30, 1926, whereas it should not have been held for several days thereafter.

It has been held that an order of confirmation is conclusive as to all matters upon which the court might have been called upon to pass had the parties chosen to have brought them forward as objections to the confirmation. Speck v. Pullman Palace Car Co., 121 Ill. 33; Davies v. Gibbs, 174 Ill. 272; Barnes v. Henshaw, 226 Ill. 605-611.

Confirmation cures irregularities, and gives the sale the same validity and effect as if made upon the precise terms of the decree. Robertson v. Smith, 94 Va. 250, 26 S. E. 579; Castleman’s Adm’r v. Castleman, 67 W. Va. 407, 68 S. E. 34.

If the master, in making a sale, departs from the direction of the decree, the court, by confirming the sale, may ratify his action provided that the terms so ratified are such as the court had power to direct in the first instance. Freeman on Yoid Judicial Sales, section 21; Bechtel v. Wier, 152 Cal. 443, 93 Pac. 75; Farmers’ Loan & Trust Co. v. Oregon Pac. R. Co., 28 Ore. 44, 40 Pac. 1089.

If there is an alleged failure to comply with some direction of the decree or of the law with which the court had power to dispense before the sale, it may dispense with it afterwards, and the confirmation is equivalent to a dispensing with such direction, as where the officer did not sell the property upon the terms required by the decree, in which case its confirmation must be accepted as aii approval of the different terms imposed or accepted by the officer and disclosed to the court by his report of sale. Freeman on Void Judicial Sales, section 44.

A foreclosure sale by á sheriff on a date different from that designated in the decree of sale, if confirmed by the court, will be valid. Farmers’ Loan & Trust Co. v. Oregon Pac. R. Co., supra.

Section 19 of the Partition Act, Cahill’s St. ch. 106, If 19, requires, under certain circumstances, that the report of the commissioners should state that the land was not susceptible of division. It is held, however, that an objection that the report of the commissioners failed to state that the land was not susceptible of division cannot be raised for the first time on appeal. Ward v. Ward, 174 Ill. 432; Miller v. Banning, 211 Ill. 620.

We are of the opinion that if the plaintiff in error desired to question the act of the master in chancery in advertising the sale, he should have filed objections to the master’s report. Having made no objection thereto, he cannot question the validity of the sale for the first time in this court.

For the reasons aforesaid, the order confirming the report of sale is affirmed.

Order affirmed. ■


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    Nathan Mathes, Defendant in Error, v. A. L. Stewart et al., Plaintiffs in Error.
    Opinion filed July 16, 1928.
    F. A. Reisner, for plaintiffs in error.
    xIarry Faulkner, for defendant in error.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

Mr. A. L. Stewart entered into a written contract to build an addition to the store of defendant in error, and to do some other work in connection therewith. The contract price was $3,425 and the contractor gave defendant in error a bond in that sum executed by Williams-Barr Lumber Company, as surety. Neither the contract nor the bond made any provision for any additional work or extras. After the execution of the contract, and during the time Mr. Stewart was engaged in its performance, certain changes and extra allowances on account thereof were agreed to by Mr. Stewart and were reduced to writing and signed by him. The amount thereof was $270.50. Some other work, not mentioned in the contract, was done but there was no written agreement with reference thereto.

Mr. Stewart did not complete his contract. He contends that defendant in error was to blame for his failure to complete it, while defendant in error insists that it became necessary for him to take the matter out of the hands of Mr. Stewart in order to protect himself against mechanics’ liens. -

The undisputed evidence shows that defendant in error paid to Mr. Stewart by checks offered in evidence the sum of $2,584; that in addition thereto he paid bills for labor and material furnished under the terms of the contract in the sum of $1,989.95, the total amount paid by defendant in error being $4,573.95. The contract price was $3,425. The total amount paid by defendant in error was $1,148.95 more than the contract price.

Defendant in error brought this suit upon the bond against Mr. Stewart and the surety and the trial resulted in a verdict and judgment for $687.25. The surety on the bond was engaged in the lumber business and furnished the lumber for the improvement and defendant in error paid that bill amounting to $900. He testified that the other bills paid by him were approved by Mr. Stewart. He also testified that he paid for extras and additional work which Mr. Stewart agreed in writing he should do.

The main contention seems to be that additional work and extras were contracted for without the knowledge or consent of the surety on the bond and that by reason thereof the surety was discharged by operation of law. In the case of voluntary sureties for accommodation, the surety is discharged if there is any change made in the contract without his consent, whether he is actually damnified or not; but surety companies doing a surety business for profit cannot be relieved from their obligations except where it is shown there was a material departure from the contract which had resulted in some injury to the surety. Gunsul v. American Surety Co. of New York, 308 Ill. 312; City of Chicago v. Agnew, 264 Ill. 288.

In the case at bar the surety is not a surety company doing a surety business for profit. Neither can it be said to be an accommodation surety. It is quite apparent that the Williams-Barr Lumber Company signed the bond as surety in consideration that Mr. Stewart would purchase from it the lumber necessary to carry out the contract. It seems to us that the rule applicable to surety companies as above stated should apply to a case of this kind where the surety executed the bond for a consideration.

In the case at bar defendant in error shows that he paid out $1,148.95 more than the contract price. The jury allowed him but $687.25. It was a controverted question of fact as to whether he paid for the extras which were contracted for in writing by Mr. Stewart, in addition to the amount hereinabove stated. Mr. Stewart testified that defendant in error required him to provide a watchman while the work was being done and that this cost him $93. According to the abstract he also testified that at the request of defendant in error he placed shelving in the store room at a cost of from $300 to $400. There was nothing in the contract that required him to pay a watchman or to put in that shelving and defendant in error did not testify as to those matters. It looks as if the jury had allowed plaintiffs in error credit for those two items or at least for the greater portion of them. We fail to see wherein the ordering of the extras and the additional work resulted in injury to the surety.

Mr. Stewart was required by the terms of the contract to move a "balcony to the rear of the new room. He says that he was to use the same lumber but that after he had taken the balcony down the lumber disappeared and he had to order other lumber at a cost of $300-. He does not claim that defendant in error was in any way to blame for the disappearance of the lumber. Mr. Stewart was responsible for the lumber and if he allowed it to disappear he is in no position to claim that defendant in error should reimburse him therefor. He claims some of the other extra work and material furnished cost him more than the amount he agreed that defendant in error should pay for such changes. Having agreed to make the changes for a certain amount we are of the opinion that he cannot make such contention.

It is argued that the court erred in modifying certain instructions requested by plaintiffs in error. If the court modified any of such instructions the same is not shown in the abstract or the transcript of the record. So far as it appears the instructions given on behalf of plaintiffs in error were given in the language in which they were asked by them. It is also suggested that their refused instructions should have been given. Counsel simply make a statement without attempting to show why they should have been given.

From a careful consideration of all of the evidence, the law applicable thereto and the rulings of the court, we are of the opinion that no reversible error has been shown and for that reason the judgment is affirmed.

Affirmed.


text:
    H. Schuman et al., Appellees, v. Sam Arsht, Appellant.
    Opinion filed July 16, 1928.

      Pulverman & Cantrell, for appellant.
    Neeley I. Glenn, for appellees.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

Mrs. Minnie Stein, appellant’s sister-in-law, owned and conducted a store at Bloomington, Illinois. She purchased goods from appellees since 1920. She did not pay her bills promptly, would give appellees postdated checks, and her bills for spring goods would not be paid until she had received her fall shipment. Goods ordered for the fall trade would not be paid until she had received her spring goods

On January 12, 1922, appellant was at the store of appellees in the city of Chicago and asked the office manager how he was getting along with Mrs. Stein’s account. Upon being informed that it was unsatisfactory .and that he was going to close it out, appellant said: “Don’t close it; I will guarantee it to $5,000.00, but don’t tell her and don’t tell my wife.” Thereupon the office manager prepared and appellant signed the following instrument: “In consideration of the extension of credit by H. Schuman & Brother to Mrs. Minnie Stein, doing business as the Emporium at Bloomington, Illinois, I hereby guaranty to H. Schuman & Brother her account in any sum up to $5,000.00. This guarantee is a continual guarantee until revoked by me in writing. Dated at Chicago this 12th day of January, 1922.”

Appellees thereafter sold goods to Mrs. Stein, some of which she paid for, but at the time this suit was begun she was indebted to appellees in the sum of $2,297.50. Appellees sued appellant upon the guaranty aforesaid who filed the general issue and certain special pleas. The first and second special pleas were to the effect that appellees accepted from Mrs. Stein, on July 27, 1923, certain promissory notes exeóuted by her in full payment and satisfaction of their account against her. The third special plea was to the effect that appellees sold certain goods to Mrs. Stein, to the amount of $2,205.25; that said amount was due and owing to appellees on July 27, 1923; that on said date appellees extended the time for the payment of said amount by taking certain notes, the last of which fell due on November 5, 1923; that the extension of the time of payment of the amounts due was without the knowledge or consent of appellant and that by reason thereof appellant was discharged from all liability. To the first and second special pleas appellees replied that the notes were not taken or accepted as payment of the debt. To the third special plea appellees replied double. First, that the notes did not operate to extend the time of payment but were made and accepted as collateral security for the debt. Second, that the said notes were made and accepted as collateral security and that after the making thereof appellant, wdth full knowledge of the transaction, ratified and acquiesced in the same.

The guaranty was absolute and unqualified and notice of acceptance was not essential to create a liability on the part of appellant. Frost v. Standard Metal Co., 215 Ill. 240. The fact that a creditor takes a note from his debtor and enters the amount thereof as a credit upon his books does not afford a presumption of law that such note was received as an actual payment. The taking of a note, either of the debtor or of a third person, for a pre-exisisting debt, is no payment, unless it be expressly agreed to take the note as payment and to run the risk of its being paid, or unless the creditor parts with the note, or is guilty of laches in not presenting it for payment in due time. Cheltenham, Stone & Gravel Co. v. Gates Iron Works, 124 Ill. 623. Under the law and the evidence the taking of the notes was not a payment or satisfaction of the account which Mrs. Stein owed to appellees.

We are of the opinion that it cannot be said that the notes were taken as collateral security for the book account. The judgment must be sustained, if at all, upon the ground that appellant ratified the taking of the notes which extended the time of payment. Appellees’ office manager testified that on August 27, 1923, just one month after the notes had been given, he told appellant he had taken the note from Mrs Stein and that appellant replied: “I am glad you have notes, for I will have evidence that I have paid her indebtedness.” Appellant denied that he had such a conversation and said that he did not know that notes had been taken until three or four months later. The trial was before the court, without a jury. The court saw and heard the witnesses and was in a better position to determine which witness was the more worthy of credit.

If appellant had said to appellees, before the notes were taken, that he would be glad if they would take notes for Mrs. Stein’s account so that he would have evidence that he had paid her indebtedness, it would be a consent to the taking of the notes and he would not be relieved from liability. The court evidently believed the testimony of the office manager of appellees to the effect that appellant said he was glad they had taken notes for he would have evidence that he had paid her indebtedness. If that amounts to a ratification the judgment should be affirmed. Where there was a question as to whether the principal had ratified the act of his agent, there was evidence to the effect that when the act of the agent was reported to the principal he said, “All right” and, “That is all right.” It was held that such language amounted to a ratification. Tummonds v. Moody, 51 Hun 637, 3 N. Y. S. 714; Brown v. Wilson, 45 S. C. 519, 23 S. E. 630.

We are of the opinion that there is sufficient evidence to show that appellant ratified the taking of the notes. At the time appellant signed the guaranty he was informed that Mrs. Stein then owed appellees about $1,400 and that appellees were going to cut off her credit and close her account. It is quite apparent that appellant desired to procure an extension for Mrs. Stein on the amount then due as well as future credit for her. There is no evidence in the record as to the terms upon which any of the goods were sold. The only evidence as to Mrs. Stein’s account being past due at the time the notes were taken is the following question and answer which appears in the cross-examination of appellees’ office manager. “Q. There was exactly $2,005.25 that she owed you on the 27th of July, 1923, and which had been past due for some time? A. Tes.”

While it does not appear upon what terms goods were sold to Mrs. Stein at any time from 1920, yet it does appear that her bills for one season were not paid in full until after the shipment for the next season had been made. There is no showing as to when the seasons began or when they ended. The office manager testified that in July, 1923, he told Mrs. Stein she was not taking care of her account satisfactorily; that he wanted to have some specific dates when she would pay; that it would be better to have notes and not post-dated checks; that" he explained to her that the notes could be discounted and appellees would have the use of the money and she would not have to pay any sooner than she would if notes were not given. We are of the opinion that it cannot be said that under the circumstances of this case the taking of the notes actually extended the time of payment. The mere taking of a note falling due in the future, as evidence of the account, would not releasé the guarantor. Kalmon v. Scarboro, 11 Ga. App. 547, 75 S. E. 846.

Where there is nothing to show when the principal debt matures, there can be no such extension of time as to discharge the guarantor; in such a case the taking of the note for the principal debt payable at a specified time in the future is not such an extension of time as will release the guarantor, although he has no notice of the agreement under which the note is taken. 28 C. J. 1003.

The reason a guarantor is released when the creditor extends the time of payment without his knowledge or consent is that if the guarantor should pay the debt he could not recover from the principal before the maturity of the latter’s obligation to the creditor. In the case at bar appellant did not execute the guaranty at the request of Mrs. Stein. The evidence shows that he did not want Mrs. Stein to know that he was assuming any responsibility for her debt. Ordinarily a guarantor is not entitled to indemnity for amounts which he has paid under a guaranty entered into by him voluntarily without the request or knowledge of the principal obligor. 28 C. J. 1038. In the case at bar the reason for the rule that the extension of the time for payment will release a guarantor does not exist. Finding no reversible error in the record, the judgment is affirmed.

Affirmed.