text:
    O’Kellie Summers et al., Appellees, v. Fred R. Hendricks, Trading as Hendricks Trucking Company, Defendant. Fred R. Hendricks, Appellant.

      Opinion filed March 13, 1939.
    Rehearing denied July 1, 1939.
    Terry, Gueltig & Powell, of Edwardsville, for appellant.
    J. N. McClees, of Collinsville, and Whitnel, Browning, Listeman & Walker, of East St. Louis, for appellees.
   Mr. Justice Edwards

delivered the opinion of the court.

On August 28,1937, 0 ’Kellie Summers, accompanied by his brother Lee Summers and the latter’s two minor children, Curtiss and Barbara, were driving southerly on State Highway No. 67, near Wood River, in the automobile of the said O’Kellie Summers. As they were thus proceeding, their car was forced off the cement slab, as they claim, by reason of the fact that a truck of defendant, then being driven northerly on such highway, was traveling on the left or wrong side of the pavement, and as a result of so being crowded off their car collided with a certain tree, wrecking the car, killing Lee Summers, and injuring Curtiss Summers and O’Kellie Summers.

Action was brought against defendant by O’Kellie Summers, by the mother and next friend of the minor Curtiss Summers, and by Emily Summers, administratrix of the estate of Lee Summers, deceased, to recover for the damages claimed to have been sustained as a result of the accident. Upon the trial a jury awarded verdicts in favor of plaintiffs; to O’Kellio Summers, $1,000, to Curtiss Summers, $500, and to Emily Summers, administratrix, $4,000; upon which the court, after overruling defendant’s motion for a new trial, entered judgments, and from wMch this appeal is prosecuted.

Defendant assigns and argues numerous reasons for reversing the judgments. Motions to direct a verdict were seasonably made and overruled, and the court’s ruling thereon is assigned as error. In order to justify a directed verdict it must appear that there is no evidence which, considered in its most favorable light, supports the plaintiff’s contention; Streeter v. Humrichouse, 357 Ill. 234. We are satisfied such evidence was offered by plaintiff, and that the motions were properly overruled.

It is also argued that the verdicts are contrary to the manifest weight of the evidence. From a consideration of the testimony it appears that the proof bearing upon the questions of the negligence of defendant, whether same was the proximate cause of the accident, and whether plaintiff, O’Kellie Summers, was guilty of contributory negligence, was conflicting, and raised a fair question of fact. Where such is true the verdict will not be set aside as against the weight of the evidence; Mirich v. Forschner Contracting Co., 312 Ill. 343; Gregory v. Merriam, 294 Ill. App. 483.

Defendant, previous to the trial, moved for a continuance upon the ground of absent testimony. Plaintiffs agreed that the witness, if present, would testify as set forth in the supporting affidavit, whereupon the court overruled the motion, and upon the hearing the contents of same were read to the jury, except certain portions stricken as improper testimony. Defendant contends that he was prejudiced by being required to proceed without having such witness.present in person.

It had long been the practice in this State to deny a motion for continuance, based upon the absence of a witness, when the opposite party admitted that such witness, if present, would testify to the facts set forth in the affidavit supporting such motion; American Car & Foundry Co. v. Hill, 226 Ill. 227; Graff v. Brown, 85 Ill. 89. Rule 14, supplementing the Civil Practice Act [Ill. Rev. Stat. 1937, ch. 110, § 259.14; Jones Ill. Stats. Ann. 105.14], provides that the court may grant the continuance even when the opposite party admits that the witness, if present, would so testify, “for the furtherance of justice. ’ ’ This leaves the matter in the discretion of the trial judge, whose action will not be disturbed unless it appears that there has been an abuse of judgment. We do not think the record discloses any failure of discretion on the part of the court in denying the continuance.

The complaint charged that defendant was driving the truck at the time of the occurrence in question, while the proof is that it was being operated by his servant, and that defendant was not present. He insists that the proof thus fails to sustain plaintiffs’ allegation that defendant was driving the truck.

For the reasons stated in Rich v. Albrecht, 300 Ill. App. 493, in which opinion is filed this day, we are of opinion that the allegations that defendant was driving the car are sustained by proof that it was then being operated by his servant.

Defendant further asserts that there was a variance between averments of the complaint and the testimony, the allegation being that “the defendant, Fred R. Hendricks, doing business as Hendricks Trucking Company,” was driving, etc., the truck in question, whereas the proof discloses that it was the truck of Fred R. Hendricks, and that there is no evidence that he was doing business as “Hendricks Trucking Company.”

In Pennsylvania Co. v. Sloan, 125 Ill. 72, the court held: “The law undoubtedly is that, where the real party in interest and the one intended to be sued is actually served with process in the cause, even though under a wrong name, he must take advantage of the misnomer by plea in abatement in such suit, and if he does not, he will be concluded by the judgment or decree rendered the same as if he were described by his true name.” And to the same effect are, Springfield Consolidated Ry. Co. v. Hoeffner, 175 Ill. 634; Pond v. Ennis, 69 Ill. 341; Ferenc v. Shaw Auto Livery Co., 210 Ill. App. 340.

Here there is no question but that Fred B. Hendricks was the real party in interest and the one whom plaintiffs intended to sue. He was personally served with summons on March 29, 1938, and if sued by a wrong name was obligated to plead such fact in abatement, otherwise be bound by the judgment rendered. There was no variance for this reason.

Lastly, it is claimed that the trial judge erred in certain rulings on evidence. We have considered same and are of opinion that no error was thereby committed.

We find no reversible error in the record and the judgments will be affirmed.

Judgments affirmed.


source: Caselaw Access Project

author: Mr. Justice Stone

license: Public Domain

text:
    Industrial Loan and Trust Company, Appellant, v. William K. Bell, Appellee.

      Opinion filed March 13, 1939.
    Rehearing denied July 1, 1939.
    J. P. Streuber, of Alton, for appellant; H. Grady Vien, of East St. Louis, of counsel.
    Green, Verlie & Hoagland, of Alton, for appellee.
   Mr. Justice Stone

delivered the opinion of the court.

This case was brought in the circuit .court by plaintiff appellant, hereinafter referred to as plaintiff, against defendant appellee, hereinafter referred to as defendant. The plaintiff sues as assignee claiming to be a holder in due course of a certain note based upon and attached to a conditional sales contract whereby the Kingsland Motor Company, Inc., undertook to sell to defendant a certain automobile. This motor company will hereafter be referred to as the assignor.

The note and contract constituting the alleged sale was entered into between the assignor and the defendant on the 7th day of October, 1937, and on the next day the said note and contract were assigned to plaintiff. At the time of the transaction between the assignor and the defendant there were still due on the note 18 monthly payments of $30.77 each. Defendant paid 9 of these payments, some of them to the assignor and others to the plaintiff. About the time of the end of the 9 payments a prior lienholder on the car replevied the same from the defendant and ultimately deprived him of the possession and claimed ownership of the car.

In its complaint plaintiff made the usual allegations to the effect it was a holder in due course of the note in question and that certain amounts were due thereon and had not been paid, praying judgment. The defendant answered this- claim by setting up that there was no consideration for the note and that such fact was known to plaintiff at the time he took the said note and contract.

Plaintiff replied to the answer by denying such allegations and taking the position that if it were true, whether there was any consideration for the note was immaterial. The defendant also filed his cross complaint in which he stated that the 9 payments which he had made were made under a mistaken set of facts and that, therefore, he was entitled to recover back the amount of said 9 payments. Plaintiff answered, denying all these allegations. This in brief is the issue in this case, and I think fairly states it, notwithstanding the fact that it took the plaintiff 13 pages to make its statement and took the defendant 9 more pages to restate the case.

A trial was had before a jury. At the close of plaintiff’s evidence defendant moved for judgment, and consideration of that motion was withheld. At the close of all the evidence plaintiff moved for judgment, which motion was denied, and the case submitted to the jury. The jury returned its verdict finding the defendant not guilty as to the claim of plaintiff and finding the issues for the defendant on his counterclaim, and assessing his damages at the sum of $311.50. Plaintiff moved for judgment notwithstanding the verdict, and this motion was denied. Judgment was entered upon the amount found due defendant on his counterclaim. This appeal follows.

The settlement, or rather the restatement, of a question of law which seems to be disputed here, — we do not know why, may help to shorten the consideration of this case.

Plaintiff very earnestly insists that the burden of proof is upon the defendant to show that plaintiff is not a holder in due course, while defendant takes the other side of the issue. Plaintiff has cited some early Appellate Court cases which insofar as they hold the proposition contended for by plaintiff, have either been reversed specifically or reversed in principle not only once but many times by the Supreme Court. Not only that, but section 59 of the Negotiable Instruments Act [Ill. Rev. Stat. 1937, ch. 98, § 79; Jones Ill. Stats. Ann. 89.079] provides that although every holder is deemed to be prima facie a holder in due course, yet, when it is shown that the title of the party who has negotiated the instrument was defective, the burden is on the holder to prove that he or some person under whom he claims acquired the title as a holder in due course. The provisions of this section have been upheld in Justice v. Stonecipher, 267 Ill. 448, and Bell v. McDaniels, 308 Ill. 329, and numerous other cases; so that there would seem to be little question on this issue in this case but that the burden was on plaintiff to show that he was such a holder in due course as the statute prescribes. If, therefore, there was contradictory evidence which the court received on this question, or circumstances which amounted to a tendency to prove or disprove the issue, then the question of plaintiff’s being a holder in due course was a question properly submitted to the jury. A review of the evidence on that subject shows First, that defendant was viciously defrauded ; that he was defrauded by means of a contract which the plaintiff itself prepared, and which is of such a character as to open up all avenue for fraud. The note was equally as harsh for the signer as the contract itself. The note had its foundation in the contract, and recites that it is not payment, but only an evidence of indebtedness. Second, plaintiff took this note from its assignor when it was on the verge of bankruptcy; it not only took an assignment of the note, but the car also was assigned to plaintiff. It may be seen at a glance that the debt here in question was conditioned on the sale and delivery of the car to the defendant. These are all circumstances which it seems to us the jury might properly consider in determining the question of notice to plaintiff. In addition to that, no official who had the authority to bind the bank testified or offered to testify, that the bank did not have knowledge of the whole transaction. Even if some official had so testified it still would be a question of fact for the jury under all the facts and circumstances whether plaintiff actually had knowledge of the defect in plaintiff’s title to this note and contract. This issue was submitted to the jury under proper instructions.

Plaintiff complains that the jury was not properly instructed; that its first instruction telling the jury that the burden was on the defendant to show actual notice in the plaintiff should have been given. We have already commented on where the burden of proof lies in a case of this character and that comment answers the contention that this instruction should have been given.

Plaintiff’s second instruction tells the jury that where a person takes an assignment of commercial paper for a valuable consideration before due and is not guilty of bad faith, even though he may be guilty of gross negligence, he will hold it by title valid against the world and he will not be subject to the defense of failure of consideration in his hands. This instruction is bad, not only because it is a general and abstract proposition of law, but it fails to recite the conditions and circumstances under which the note and contract in question were delivered to plaintiff.

Plaintiff’s third instruction is obviously bad because it refers to the sale contract, — probably meaning the note, and puts the burden upon the defendant of overcoming the prima facie case made by the contract without regard to whether there was performance either in whole or in part on the part of the plaintiff.

The instructions of the defendant complained of have to do with the burden of proof, which, as we say, we have already discussed.

We think the main issue in this case was properly submitted to the jury.

If plaintiff took the note and contract in question with notice of the fact that there was no consideration, then defendant paid money that he should not have paid. It must necessarily be so; otherwise plaintiff might have destroyed the contract and still undertaken to recover upon its note. Could it be contended that by virtue of this assignment plaintiff could tear up the contract and still recover on the note without regard to the obligations of the contract? We know of no such rule. While this question has not been directly passed upon by the courts of our State, so far as we know, we think it is logical and sound that one cannot have all the benefits of a contract without taking therewith the obligations imposed by that contract. One of the obligations of the contract was to give defendant a title to the car in question. This plaintiff was not in a position to do so. Under our statute the seller of a chattel guarantees the title to that chattel and while in this case the contract even undertakes to deprive the defendant of that warranty fixed by statute, we are still of the opinion that the statute prevails and that under the circumstances of this transaction, plaintiff, having taken an assignment of the car as well as the contract, was obligated to deliver title to that car the same as the original seller who made the contract would have been. It is obvious, therefore, that if plaintiff had knowledge of the defects in the assignor’s title, that it could not deliver title to the car and never was in position to do so, that it received money from defendant which it was not entitled to receive and which was paid under a mistaken state of facts and which under the law may be recovered back. Brennan v. Persselli, 353 Ill. 630; Winkelman v. Erwin, 333 Ill. 636.

These questions were fairly presented to the jury and the jury found against the plaintiff on its claim and in favor of the defendant on its counterclaim. 'We find no error in submitting these questions of fact to the jury and we are unable to say that the jury’s verdict was against the manifest weight of the evidence.

The jury found against the plaintiff on its claim and in favor of the defendant on its counterclaim and assessed defendant’s damages on his counterclaim at $311.50. The court ordered a remittitur of $34.57 on this verdict and entered judgment for the sum of $276.93. That judgment is affirmed.

Judgment affirmed.


text:
    Charles Dillow and Cora A. Dillow, Appellees, v. Hallie L. Hileman et al., Appellants.
    Opinion filed March 13, 1939.
    Rehearing denied July 1, 1939.
    J. Kelly Smith, of Mounds, for appellants.
    W. D. Lyerle and R. Wallace Karraker, both of Jonesboro, for appellees.
   Mr. Justice Stone

delivered the opinion of the court.

This is a suit in forcible entry and detainer brought in the county court of Union county. The second amended complaint alleges that plaintiffs are entitled to the possession of the premises described therein and that defendants unlawfully withhold possession thereof from them.

Defendants deny the right of possession in plaintiffs; deny that they are in possession by lease, but claim that they are in rightful possession of the premises by virtue of a bond for deed by plaintiffs and allege that they have performed all conditions precedent to entitle them to a bond for deed and in fact a deed. In support of this contention they bring into court their Exhibit “B” which is the same as plaintiffs’ Exhibit “A” with the addition of the following written by plaintiff, Charles Dillow, thereon:

“Be it further agreed that parties of the first part agree to make parties of the second part a bond for deed, per verbal agreement, when the terms and conditions of the above contract are fully complied with.”

What was this verbal agreement? The trial court refused to hear evidence on it. This was error. While the general rule is that parole evidence may not be heard to modify or contradict the terms of a written agreement, yet, “Where there is a direct reference in writing to a verbal agreement, such agreement may be proved by parol evidence even though the effect be to add material terms and conditions to the writing.” 9 Enc. of Evidence, p. 353, sec. D.

The oral agreement referred to in the writing under consideration might have had much to do with whether defendants were in possession of the premises by lease or as purchasers.

While we are aware that title to real estate cannot be tried in forcible entry and detainer suits, the conditions under which defendants held possession could have much to do with whether plaintiff was entitled to possession of the premises.

In Moran v. Redder, 254 Ill. App. 595, the court said “We see no reason why a landlord and his tenant may not enter into a valid contract for the purchase and sale of the premises, and when this is done, the relation of landlord and tenant ceases even though the contract does not specifically authorize the tenant to enter into or withhold possession as purchaser of the premises, as this authority may be implied from the circumstances.” Leary v. Pattison, 66 Ill. 203; Stanwood v. Kuhn, 132 Ill. App. 466; Mahannah v. Mahannah, 292 Ill. 133.

It was a question of fact for the jury whether defendants held as tenants or purchasers; or whether they held by virtue of some agreement contained in the verbal conversation which would render their possession lawful.

Defendants insist that they had performed • every condition which would entitle them to a bond for deed. We think they were entitled to show that. This includes what constituted the different elements of the $185 paid by them.

It was error for the court to give the peremptory instruction.

The judgment of the county court is reversed and the cause is remanded with instructions to take further proceeding in accordance with the views here expressed.

Reversed and remanded.


author: Mr. Presiding Justice McSurely

text:
    Eugenie M. Leahy et al., Appellees, v. Thomas Vincent Cannon, Individually and as Trustee Under the Will of Denis J. Leahy, Deceased, Appellant.
    Gen. No. 40,472.

      Opinion filed June 19, 1939.
    Louis N. Grossman, of Chicago, for appellant.
    Charles H. Mitchell, Herman J. Shaprin and William C. Greatman, all of Chicago, for appellees.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.

Plaintiffs filed their complaint asking for a construction of the will of Denis J. Leahy, deceased, with special reference to clause 10, which purported to create a trust; the trial court held this provision void and defendant appeals.

August 1, 1935, the complaint was filed by the heirs of Denis J. Leahy, and the defendant is the executor and also the trustee named in clause 10 of the will.. This clause conveys to defendant as trustee the residuary estate, approximately $31,000, for certain purposes. In his answer to the complaint defendant asked for instructions from the court with reference to distribution of the funds in his hands as trustee; the decree, after finding that clause 10 creating the trust was void, found that plaintiffs were entitled to the residuary estate.

Plaintiffs say that clause 10 of the will is too indefinite and uncertain as to the beneficiaries and therefore void, and also that it violates the rule against perpetuities.

July 24, 1929, Denis J. Leahy died; his will is dated November 18, 1927, in which he nominated defendant as executor and trustee; after making certain specific bequests he devised and bequeathed in clause 10 all the rest of his property to defendant, “or in the event of his failure, refusal or inability to act, to whomsoever the court probating this my last will may designate, in trust nevertheless for the following uses and purposes :

“For the period of six months following my death to seek out and find the names and addresses of the persons, firms and corporations, or where such ... are not in existence, the names and addresses of their heirs, administrators, successors and assigns, to whom at the time of my settlement with creditors in the year 1892 there was due and owing from me certain monies and to whom, pursuant to the said settlement, there was not paid the full amount of the money at that time due and owing; that all of said persons, firms and corporations, their heirs, administrators, successors and assigns, whose present whereabouts are so found by him at the expiration of said period, shall constitute a class who shall be the cestui que trustant of this trust, subject, however, to be added to by the discovery of any other persons, firms or corporations fulfilling the qualifications of the above described class before the final distribution of the monies contained in the said trust.

“The said trustee is, in his discretion and without any right on the part of any of the said cestuis above-described to demand and receive any sum, to pay to each of such persons, firms or corporations, constituíing said class, their heirs, administrators, successors and assigns, from the monies coming to his hands as trustee, as his portion of the trust fund, that proportion of the total monies coming to his hands which the monies unpaid to each of said persons, firms or corporations so receiving said sums bears to the whole of said monies remaining unpaid to all the members of said class constituted as above.

“I have, during my lifetime and to the best of my ability, sought out the said persons, firms and corporations, their heirs, administrators, successors and assigns, and leave herewith a letter of instruction for the guidance and information of my said trustee, in which said letter I have given the names of said persons, firms and their heirs, administrators, successors and assigns, and their last known addresses, together with amounts of monies unpaid to them at the time of my settlement with creditors.

“After determining the said class as above described, the said trustee shall promptly make distribution among the said class of all the monies remaining in my estate, it being my intention to exhaust the whole of any monies remaining in my estate among those who can now be found of my former creditors upon an equal percentage basis and that forthwith this trust shall terminate.”

September 25,1934, defendant filed his first and final account as executor, to which plaintiffs filed objections, and an order was entered in the probate court of Cook county, Illinois, continuing the hearing on these objections until the termination of the instant proceedings.

Clause 10 provides that for a period of six months following testator’s death the trustee shall seek out and find the names and addresses of the persons, firms and corporations who at the time of a settlement made with creditors in 1892 did not receive payment in full. The evidence tends to show that after this settlement the testator’s financial condition became much improved and lie very worthily intended by this provision in his will to pay in full such of his creditors who had not received full payment at the time of the settlement in 1892.

The trustee must ascertain the names and addresses of these creditors within six months, but he is not directed to distribute at any specified time, but “promptly.” The provision also says that none of these creditors shall have the right to demand or receive any sums from the residuary estate, thus leaving the name of any creditor and the amount to be paid him solely within the control of the trustee.

In a sworn answer filed September 27, 1937, defendant says that prior to the time the complaint was filed, “he visited New York and made a search for some of his (testator’s) creditors, and those whom he found stated that due to the fact that it was such an old matter it would be necessary for them to refer to their books and records; that as soon as this was done they would communicate with him; that he engaged a person in New York City to make a search for said creditors and received substantially the same report from said person; that after this suit was filed he discontinued the search for said creditors, pending the outcome of this law suit.” Defendant’s position seems to be that he is unable to locate the testator’s creditors, and he asks the court for directions as to the disposition of the funds in his hands belonging to this residuary estate.

The will provides that if the trustee shall fail to perform his duties the probate court shall appoint a trustee to act. Plaintiffs do not ask that defendant be removed for failure to perform his duties as trustee and another trustee appointed in his stead; and the will provides that none of the creditors may make any demands upon him. The situation results in an impasse.

Plaintiffs charge that defendant has embezzled over $20,000 of the residuary estate; that his final account shows this. Moreover, it appears that defendant refused to answer certain interrogatories propounded to him on the ground that if he answered he would incriminate himself and would be subject to criminal prosecution.

In Orr v. Yates, 209 Ill. 222, it is said that the declaration of a trust must be reasonably certain in its terms and, among other things, must with certainty include the beneficiaries or persons in whose behalf the trust is created, the nature and quantity of interests which they are to have and the manner in which the trust is to be performed; that “If the language is so vague, general or equivocal that any one of these necessary elements .of the trust is left in real uncertainty, the trust must fail.” Other cases to the same effect are Estate of Marble v. Marble, 304 Ill. 229; Snyder v. Snyder, 280 Ill. 467; Illinois State Trust Co. v. Jones, 351 Ill. 498, 506.

The provision in question specifically denies the right on the part of any creditor to demand and receive any part of the residuary estate, and provides that the payment to him shall be solely in the discretion of the trustee. In Wilce v. Van Anden, 248 Ill. 358, the opinion quotes from Story’s Equity Jurisprudence, sec. 1070: “Wherever, therefore, the objects of the supposed recommendatory trusts are not certain or definite; '. . . wherever a clear discretion or choice to act, or not to act, is given; ... in all such eases courts of equity will not create a trust from words of this character. ’ ’

Clause 10 of the will contains a provision that the testator leaves herewith “a letter of instruction for the guidance and information of my said trustee, in which said letter I have given the names of said persons, firms and their heirs, administrators, successors and assigns, and their last known addresses, together with, amounts of monies unpaid to them at the time of my settlement with creditors.” The attorney who drew the will testified that no letter of instructions was left with him, and this seems to be conceded. Apparently the testator left with the attorney a list of names. This list was not produced on the trial but an alleged typewritten copy was offered; objection was made that this was not sufficiently identified as a copy of the document left by the testator, and it was sustained. In the case of Atwood v. Rhode Island Hospital Trust Co., 275 Fed. 513, the will provided that the remainder of the estate should be disposed of to such persons as the testator “may have instructed or shall hereafter instruct said Trust Company”; the court held that the disposition of the residuary estate could not be made “by the shifting provisions in the trust instrument.”

The trial court held that clause 10 is void as violating the rule against perpetuities. The will in this case was dated in 1927, the testator died in 1929, the will was probated in 1930, and no distribution has yet been made of the residuary estate. The trial court held that there was no obligation on the part of the defendant to dispose of the residuary estate within 21 years after some life in being at the creation of the trust. If this is true, the provision is void as a violation of the rule against perpetuities. Keefer v. McCloy, 344 Ill. 454. The court rested its opinion upon the fact that none of the persons who were the creditors in the year 1892 has any right to make a claim for any part of the residuary estate; that the time of distribution was within the unhindered discretion of the trustee.

While we would be inclined to hold that a court of equity could of its own motion compel a trustee to perform the duties of the trust, yet here the trustee says in effect that the duties cannot be performed; that he cannot ascertain the names of the creditors referred to in the will nor the amounts of their respective claims which have not been paid; he asks the court for directions as to what disposition he shall make of the residuary funds in his hands. But whether or not clause 10 is void for the reasons urged is immaterial. Here the trustee was directed to distribute the residuary estate “promptly” after the expiration of six months following the death of the testator; as he died in July, 1929, this six-month period ended January, 1930, and yet at the present date- — over nine years thereafter — the names of the creditors and the amounts owing them have not been ascertained. Under these circumstances the bequests under clause 10 have lapsed and these funds should be turned over to the heirs at law as part of the intestate. estate, to be divided as instructed in the decree.

Other points are suggested which are not of decisive importance. The decree of the trial court in its disposition of the residuary estate accords with justice, and it is affirmed.

Affirmed.

Matchett and O’Connor,, JJ., concur.


author: Mr. Justice Matchett

text:
    Malcolm McKerchar, Appellee, v. Mabel G. Ayres, Individually and as the Sole Heir of Lloyd C. Ayres, Deceased, Appellant.
    Gen. No. 40,483.

      Opinion filed June 19, 1939.
    Clyde C. Fisher, of Chicago, for appellant.
    Malcolm McKerchar, pro se.

   Mr. Justice Matchett

delivered the opinion of the court.

This is an appeal by defendant from a decree of foreclosure entered April 21,1938. The cause was heard on exceptions to the report of a master recommending a decree as prayed in the complaint. There is practically no dispute as to the material facts. The original trust deed was .executed by Lloyd C. Ayres and Mabel G. Ayres, his wife, March 5, 1925, to secure their notes for $2,100 with interest. The notes and trust deed were delivered to the Glenview Borders Realty Trust. January 27,1928, an agreement was made for the cancellation of the old mortgage upon the delivery of a new ' note for $2,100 due January 27, 1931, with six interest notes representing interest which would accrue until maturity, together with a new trust deed securing same. The notes were executed and delivered but the new trust deed was not delivered. January 7, 1932, Lloyd C. Ayres and Mabel G., his wife, quitclaimed the premises to George T. Ayres in consideration of $500. After the filing of this suit and after it was lis pendens the trustee named in the first trust deed, or old mortgage, gave a release deed which was recorded. However, the evidence shows the indebtedness was never in fact paid, and the decree finds that the old trust deed remains a lien on the premises, and that there is due and unpaid the total amount of $4,283.88.

June 22, 1936, the Glenview Borders Realty Trust assigned the note and mortgage to plaintiff. Defendant undertook to interpose as a defense to the action an alleged set-off on account of salary claimed to be due from the Glenview Borders Realty Trust to her husband, Lloyd C. Ayres. Defendant contends such a defense is permissible under sections 38 and 44 of the Civil Practice Act (Ill. Rev. Stat. 1937, ch. 110, pars. 162,168, pp. 2392, 2394). In support of this contention she quotes Professor Sunderland’s analysis of the Civil Practice Act in 28 Ill. Law Rev. 868, where he says:

“All cross demands may hereafter be availed of in any action and the procedural propriety of a cross action can no longer be litigated. ’ ’

Defendant calls our attention to the annotated notes covering section 38 of the act in Jones Ill. Stats. Ann., vol. 18, p. 151, par. 104.038. Defendant also says that section 44 of the Civil Practice Act makes clear that there is no distinction between cross-demands in law or in equity. We think the authorities cited are not applicable. The Glenview Borders Realty Trust is not a party to this proceeding, and defendant did not ask to have it made a party. So far as the record shows the Glenview Borders Realty Trust was given no notice of any counterclaim to be made against it.

Evidence was introduced tending to show that on February 10, 1924, Lloyd C. Ayres was elected secretary of the executive committee of the Realty Trust at a salary of $50 a month; that he served from July 1, 1925, to May 6,1932, without compensation; that there is due to him or to his estate from the trust $4,110. However, Lloyd C. and Mabel Gr. Ayres on January 7, 1932, conveyed and quitclaimed all their title and interest in the premises. They acquired no right, title or interest therein thereafter. At the time they conveyed they knew the premises were subject to the lien of the trust deed. The foreclosure is a proceeding in rem against the property. It was brought to enforce a right against the property itself. It is binding upon defendants only so far as their interest in the property is concerned. Manifestly, under such circumstances defendant could not interpose this supposed set-off as a defense to the foreclosure. Reeve, Ill. Law of Mortgages and Foreclosures, vol. 2, par. 650, p. 732. Phelan v. Iona Sav. Bank, 48 Ill. App. 171; Cotes v. Bennett, 183 Ill. 82; Bouton v. Cameron, 205 Ill. 50; Cook v. Moulton, 64 Ill. App. 429; Okon v. Kaenes, 222 Ill. App. 45; Lewis v. Matteson, 257 Ill. App. 1. The Civil Practice Act has not changed the nature of a foreclosure proceeding. As a matter of fact, the master recommended that in case of a deficiency decree after sale defendant should be allowed to interpose this claim as a defense to it. The right of a defendant under the Civil Practice Act, where the facts warrant, to have a set-off allowed in a foreclosure suit is not questioned. But the right of set-off in a case of this kind must exist as between the parties to the proceeding. No such right was interposed here. Defendant points out (citing cases) that the purchaser of a trust deed takes it subject to infirmities to which it is hable in the hands of the mortgagee. This general proposition is unquestioned law, as the cases cited show. But defendant disregards a well-settled exception which discloses the rule is not applicable to this record. That exception is that the equities which may be interposed as a defense to foreclosure in such case must arise out of the transaction in which the note and mortgage were given. The restriction was stated in Colehour v. State Sav. Institu tion, 90 Ill. 152, where the defendant undertook to interpose the defense of usury against an assignee of the mortgage. Justice Sheldon, for the Supreme Court, said: '

“Although it be the rule in this State that where there is a promissory note secured in its payment by a mortgage, an innocent transferee of the note before maturity, in a suit for the foreclosure of the mortgage, will be subject to any equitable defense on the part of the mortgagor, when the note itself, if the suit were upon it, would be exempt from such defense, (Olds v. Cummings, 31 Ill. 188, and subsequent cases), we understand this as restricted to all equities arising out of the note and mortgage transaction itself, and not extending to a set-off in respect of a debt due from the assignor to the mortgagor, arising out of a collateral matter, such an one as we view this, here, to be.” See Chitty on Bills, 13 Am. Ed. 251.

The same restriction is stated in the later case of Peoria & Springfield Railway v. Thompson, 103 Ill. 187, where Mr. Justice Mulkey, speaking for the Supreme Court, held that the doctrine of Olds v. Cummings had no application to deeds of trust -given to secure railroad coupon bonds intended to be thrown upon the market and circulated as commercial paper and to be used as securities for permanent investments. The court said that to hold otherwise would be doing violence to the manifest intention of the parties to such instruments, and would unquestionably lead to very disastrous consequences. The same reasoning controls here, and there is nothing in the Civil Practice Act upon which defendant relies to indicate that the law has been changed in this respect. Indeed, the two cases cited by defendant (Pacific States Life Ins. Co. v. Richcreek, 288 Ill. App. 469, and Slate Bank of St. Charles v. Burr, 295 Ill. App. 15) disclose that the Appellate Court recognized the restriction on the doctrine pointed out in the Colehour case.

Defendant claims the master erred in striking testimony of Lloyd C. Ayres to the effect that in a conversation with his brother, George T., prior to January 7, 1932, he told George there was a trust deed of record against the lot but that the Glenview Borders Realty Trust owed him money as security that would offset the amount of the trust deed so that it would be taken care of, and that he received $500 from his brother; that his brother and he and Mrs. Ayres executed and delivered the quitclaim deed and had it recorded in furtherance of this agreement. The evidence was merely hearsay and wholly immaterial. Reeve, Ill. Law of Mortgages and Foreclosures, vol. 1, par. 11, pp. 16, 17; par. 281, p. 332; par. 284, p. 355. See also Fetrow v. Merriwether, 53 Ill. 275; Pratt v. Pratt, 96 Ill. 184; Reed v. Jemings, 196 Ill. 472.

There is no error in the decree and it is affirmed.

Affirmed.

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


author: Mr. Justice O’Connor

text:
    Herbert Levy, Appellant, v. Maurice Ralph Rosen, Appellee.
    Gen. No. 40,516.

      Opinion filed June 19, 1939.
    A. Charles Lawrence, of Chicago, for appellant; James J. Lawrence, Max Frederick Goldberg and Sidney Levy, all of Chicago, of counsel.
    George H. Kriete and Max W. Petacque, both of Chicago, for appellee; Theodore E. Rein, of Chicago, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.

June 11,1930, plaintiff brought an action of assumpsit against defendant to recover damages for a claimed breach of a contract by which defendant agreed to buy from plaintiff a seat on the Chicago Stock Exchange. There was a trial without a jury, a finding and judgment in defendant’s favor and plaintiff appeals.

The record discloses that about September 20, 1929, plaintiff and defendant, who had known each other socially for some time, entered into an oral contract whereby plaintiff was to sell to defendant his seat on the Chicago Stock Exchange for $49,000, $25,000 to be paid when defendant w-as elected a member of the Stock Exchange and $24,000 to be paid in 12 monthly pay-meats of $2,000 each, to he evidenced by defendant’s notes secured by collateral. There was some delay on account of illness and business matters, but on October 14,1929, defendant gave plaintiff his written application for membership in the Chicago Stock Exchange to be filed with the proper representative of the Exchange and it, together with plaintiff’s application to transfer his membership, was filed with the secretary of the Exchange on the same day. At that time defendant turned over to plaintiff a memorandum of the list of mortgages which he submitted as collateral for payment of the $24,000.. On the same day the secretary of the Exchange wrote defendant a letter requesting him to prepare in typewritten form and send to the Exchange, “a complete history of your business connections from the time you entered into business to the present time,” and on October 16 defendant complied with the request by sending the Exchange a letter giving the information. Two days prior to this, October 14, the Exchange ordered an investigation of defendant to be made by an agency, which reported to the Exchange, a part of which report was to the effect that defendant had become a citizen of the United States in April, 1929. This written report was excluded upon defendant’s objection. October 26 defendant received a letter from the secretary of the Exchange requesting him to appear before the Committee on Admissions at a meeting to be held- October 28 at 3:15 p. m. Four days before this letter was received by defendant there was a crash in the stock market and within ten days stocks declined about 50 per cent. About October 25 defendant advised plaintiff he would not go through with the deal and he failed to appear before the Committee on Admissions.

Defendant testified he was born in Constantinople, Turkey, and came to the United States in March, 1897, with his parents, sisters and brothers when he was four years old; the family went to Minnesota where they resided for about four years and then moved to Milwaukee ; in 1905, his father having died, he moved to Chicago with his mother where after a time he engaged in the real estate and mortgage business; that “I registered for the draft in 1917”; that he was married at the time but did not claim any exemption by reason of dependency. He further testified that he first discovered he was not a citizen of the United States in 1927; that at that time he applied for a passport as he wanted to leave the United States, and was told that unless he could prove he was born in this country or that his father was a citizen, he would have to obtain his own citizenship papers; that he could not produce his father’s naturalization papers and then for the first time discovered he was not a citizen. On cross-examination he testified he voted in the primaries in 1928; that he applied for his first papers as a citizen in 1931 and received his final papers in October, 1935.

Defendant further testified that upon receipt of a letter on October 26 from the secretary of the Exchange advising him to appear before the Committee on Admissions, he went to the Stock Exchange and talked with the secretary who had sent the letter and asked if he could learn something about the workings of the Exchange, and was given a book containing such information; he took the book home over the week-end and read that no one could become a member unless he was a citizen of the United States; the following Monday he went to see plaintiff and told him what he had read in the book; that plaintiff asked him if he was a citizen and he answered, “No.” Plaintiff then said, “Well, keep it quiet and I will get you in anyway.” This statement was denied by plaintiff; and the secretary of the Exchange, Warren A. Marler, who wrote defendant the letter of October 25, testified he had posted defendant’s name as a transferee and plaintiff’s as transferor of the membership in question; he further testified that at no time had he had a conversation with defendant as to whether defendant should appear before the Committee on Admissions.

The constitution of the Chicago Stock Exchange, a voluntary unincorporated association, provides that ‘‘ every applicant for membership must be a male citizen of the United States, at least 21 years old.”

Since defendant repudiated the agreement plaintiff was not required to do anything further, but was entitled to sue upon the contract. Weill v. American Metal Co., 182 Ill. 128; Roehm v. Horst, 178 U. S. 1; vol. 3, sec. 1303, p. 2354, Williston on Contracts.

Defendant contends that he “was not a citizen of the United States and hence plaintiff could not transfer or cause the transfer of a membership to him, nor could defendant receive such membership,” therefore there is no liability on his part to respond in damages.

On the other side plaintiff’s position is that, “The alleged alienism did not excuse performance by defendant”; that it “did not render the contract in point of fact impossible of performance.” And counsel say, “The defendant could unquestionably have become a citizen and in that way obviated any obstacle whatsoever to admission. And even if this were not so, the Stock Exchange could have altered its regulations to permit him to become a member though he was an alien. The plaintiff offered to show that the Chicago Stock Exchange had, with knowledge of the facts, admitted aliens to membership, ’ ’ and in support of the proposition that “non-citizenship” fails to render the contract in fact impossible of performance counsel cite Beebe v. Johnson, 19 Wendell 500. In that case plaintiff averred that Johnson for a consideration of $5,000 conveyed to Beebe the sole and exclusive right to make, use and vend in Canada, in certain counties of New York and in other places a threshing machine patented to one Warren, and covenanted to perfect the patent right in England as soon as practicable and within a reasonable time, so as to secure to Beebe the entire control of the Provinces of upper and lower Canada. After a reasonable time Johnson failed to perfect the patent right in England and secure to Beebe the exclusive right to sell the machine, etc., in Canada, and Beebe brought suit to recover damages. Beebe further averred in his declaration that Johnson and himself were citizens of the United States and therefore Johnson could not obtain either for himself or for Beebe from the Canadian authorities the exclusive right of selling the machine there, “and so, . . . Johnson had not kept his covenant. ’ ’ Defendant pleaded the general issue and gave notice of special matter to be proved on the trial. On the trial it was stipulated that the patent right could not be perfected in England because the authority to grant such letters patent was vested in the Canadian provinces, “and that in the provinces the exclusive right of vending improvements of this nature can be conferred only upon a subject of Great Britain, and a resident of the provinces, and that the patentee, the plaintiff and the defendant, are all citizens of the United States, and cannot become subjects of Great Britain short of a residence in the provinces of seven years.” The jury returned a verdict for plaintiff for $601.23; judgment was entered on "the verdict which on appeal was affirmed. In affirming the judgment the court said (p. 501): “It is supposed by the counsel for the defendant that a legal impossibility prevented the fulfilment of the covenant to perfect the patent right in England, so as to secure the monopoly of the Canadas,” and therefore the obligation was dispensed with, so that the action could not be maintained. But the court held this contention untenable and continuing said (p. 502): “if the covenant be within the range of possibility, however absurd or improbable the idea of the execution of it may be, it will be upheld: as where one covenants it shall rain tomorrow, or that the Pope shall be at Westminster on a certain day. To bring the case within the rule of dispensation, it must appear that the thing to be done cannot by any means be accomplished; for, if it is only improbable, or out of the power of the obligor, it is not in law deemed impossible. , . . Now it is clear that the fulfilment in this case cannot be considered an impossibility within the above exposition of the rule; because, for anything we know to the contrary, the exclusive right to make, use and vend the machine in the Canadas, might have been secured in England by an act of parliament or otherwise ; at least, there is nothing in all this necessarily impossible. These provinces are a part of the British Empire, and subject to the power of the parliament at home; which body might very well grant the privilege the defendant covenanted to procure. Certainly we are unable to say the government cannot or would not by any means grant it. ’ ’ The court then refers to authorities and continues: “if a party enter into an absolute contract without any qualification or exception, and receives from the party with whom he contracts the consideration of such engagement, he must abide by the contract, and either do the act or pay damages; his liability arising from his own direct and positive undertaking. . . .

“Again: It was said the contract was void, because it contemplated a renunciation of citizenship by the defendant. Whether, if the fact was admitted, the consequence would follow, we need not stop to consider, because it is very clear that no such step is necessarily embraced in the covenant. For aught we know, the patent might be procured without such renunciation; and if it were considered unlawful to contract for expatriation, inasmuch as this agreement does not necessarily contemplate it, we would be bound to hold that the defendant assumed to procure the patent without it. But even in England, the common law rule against the expatriation of the subject is so far modified that naturalization abroad for commercial purposes is recognized; and is of course lawful. ’ ’ To the same effect are Reid v. Alaska, 43 Ore. 429; Watson v. Blossom, 4 N. Y. Supp. 489; Wright v. Fullerton, 60 Mo. App. 451; Standard Oil Co. of New York v. Central Dredging Co., 225 App. Div. 407 (233 N. Y. Supp. 279).

In the Reid case where defendant contracted to sell to plaintiff salmon packed in Alaska to be “ exactly like Puget Sound fancy Sockeye” he was unable to do so; yet the Supreme Court held he was liable' ‘ ‘ not, in fact, for not doing what cannot be done, but for undertaking and promising to do it.” This was quoted from 2 Parsons on Contracts (7th ed.) * p. 673. In the Watson case (4 N. Y. Supp. 489) the New York court.said: “As a rule, men of full age and understanding have the liberty of contracting, and their contracts, when entered into voluntarily, are ordinarily held binding, unless they are contrary to public policy, or in violation of some rule of law.”

In the Wright case (60 Mo. App. 451) plaintiff and defendant owned premises abutting on a public alley and defendant contracted with plaintiff to construct a sewer at his own expense in the alley for the use of both premises; the municipal authorities refused to permit this work to be done but laid the sewer in the alley and the cost was assessed against the abutting property owners. It was held that defendant was liable for damages for a breach of the contract; that where a contract is unconditional and its performance is possible, no intervening obstacle will relieve the obligor from the performance of it.

In the Standard Oil Co. case (225 App. Div. 407, 233 N. Y. Supp. 279) it was held that the difficulty or even improbability of accomplishing without great financial loss would not release an obligor from performing its contract, but that in order to establish a defense under such conditions defendant must prove that the thing could not by any means be effected.

We think the rule announced in the Beebe case (19 Wend. 500) has in recent years been somewhat relaxed. Sections 454 and 456, Restatement of the Law. Section 454 defines impossibility as follows: “In the restatement of this subject impossibility means not only strict impossibility but impracticability because of extreme and unreasonable difficulty, expense, injury or loss involved.” And in the comment following the section it is said: “ Impossible ’ must be given a practical rather than a scientifically exact meaning. Impracticability rather than absolute impossibility is enough; and the words ‘impossible’ and ‘impossibility’ are used in the restatement of this subject with that meaning. Mere unanticipated difficulty, however, not amounting to impracticability is not within the scope of the definition. ’ ’

And in cases growing out of the World War the rule announced in the Reid case was relaxed. The Kronprinzessin Cecilie, 244 U. S. 12.

But whether the rule is rigidly enforced as announced in the Beebe case, or is somewhat relaxed in the cases above cited, we think the defendant is liable, for the reason that defendant might have been admitted to membership in the Chicago Stock Exchange, as the offered evidence tended to show, without change of the constitution of the Exchange, or the constitution might have been amended by simple and speedy procedure. The constitution and by-laws of the Exchange provided for a governing committee of 15 members; that by a vote of two-thirds of the members of such committee any provision of the constitution or by-laws could be amended by such committee posting such amendment on the bulletin board of such Exchange and mailing a copy of the amendment to the members, and if such amendment were not disapproved by one-third of the members within one week, the amendment would become the law of the Exchange.

We think the overwhelming weight of the evidence shows that defendant’s refusal to carry out his part of the contract was occasioned solely on the ground that the stock market had dropped a great deal at about the time the contract was to be consummated, depreciating to a great extent the value of a seat on the Exchange, and that the fact defendant was not a citizen of the United States had nothing to do with his refusal to purchase the seat.

The learned trial judge in his opinion expressly stated that he decided the case against plaintiff on the question of law — the fact that defendant was an alien and therefore could not become a member of the Stock Exchange.

For the reasons above stated we hold this was error. And plaintiff contends that he is entitled to judgment in this court for $1.6,500, being the difference between the contract price of $49,000 and $32,500, the price at which plaintiff succeeded in selling the membership after the breach; that “In no event shall the liability of the defendant be less than $11,500, that being the difference between the contract price and the amount at which the highest sale took place next subsequent to the defendant’s repudiation.” There is no dispute as to the amount of plaintiff’s damages, no evidence being offered to show that the figures above mentioned are not warranted by the evidence. In these circumstances there would be no purpose in remanding the cause.

For the reasons stated the judgment of the superior court of Cook county is reversed and judgment entered in this court in plaintiff’s favor against defendant for $11,500.

Judgment reversed and judgment in this court.

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


text:
    Pure Oil Products Company, Appellee, v. Albert J. Horan and Italo Pellegrini. Italo Pellegrini, Appellant.
    Gen. No. 40,533.
    Opinion filed June 19, 1939.
    I. B. Padorr and David S. Chesrow, of Chicago, for appellant.
    Townley, Campbell, Clark & Miller, of Chicago, for appellee; Glenn G. Paxton and Richard C. Bleloch, both of Chicago, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.

Plaintiff brought an action against defendants claiming it was entitled to the possession of a motor boat by virtue of a chattel mortgage acknowledged and recorded May 21, 1937; that the boat was held by the bailiff of the municipal court under a writ of attachment issued on a judgment for $500 rendered April 18, 1938, in favor of defendant, Italo Pellegrini, and against Robert M. Hoffman, the mortgagor. There was a trial before the court without a jury, a finding and judgment in plaintiff’s favor, and defendant Pellegrini appeals.

■ The record discloses that May 21, 1937, Robert M. Hoffman executed his note for $2,465.92, secured by a chattel mortgage. The note was payable 10 months after date. At the same time Hoffman executed his chattel mortgage on a motor boat named “Soubrette” and other personal property. The note was described in the mortgage except that the date of its maturity was not mentioned. March 24, 1938, the bailiff of the municipal court took possession of the boat by virtue of a writ of attachment issued in a suit filed by Pellegrini against Hoffman, and April 18, 1938, judgment in that case was entered in favor of Pellegrini and against Hoffman for $500. The bailiff was in possession of the boat when the instant suit was brought May 6, 1938, and on that date plaintiff took possession of the other personal property covered by the chattel mortgage, which it caused to be sold May 12, 1938, and credited the proceeds on the indebtedness, leaving a balance due of $956.81.

Defendant contends that since there was a failure to state the date of maturity of the debt in the chattel mortgage, he was entitled to take the boat under his writ of attachment. In support of this counsel cite Snite v. Gehrke, 189 Ill. App. 382. In that case the chattel mortgage purported to have been made by Catherine D. Pearce and George C. .Pearce, but the clerk of the municipal court before whom it was acknowledged certified that the persons acknowledging it were Arthur D. Pearce and George C. Pearce. The mortgage there also purported to have been given to secure a note of even date which the mortgage said came “due and payable on or before 35 months after the date of option of the legal holder thereof. ’ ’ It was held that the mortgagee could not maintain replevin for possession of the household goods covered by the mortgage.

There is no such uncertainty in the facts disclosed by the evidence in the instant case. In the Snite case it was attempted to state the date of maturity of the note. The court said: “Manifestly this is no time at all.” In the instant case the date of the maturity is in no way mentioned. In that case the mortgagors were not the same persons who acknowledged the mortgage, while such is not the fact in the case before us. We think the chattel mortgage is not subject to the objection made. Polo State Bank v. Typer, 249 Ill. App. 604; In re George Seton Thompson, 297 Fed. 934.

Defendant further contends that as to him the mortgagee had no right to take possession of part of the mortgaged property, sell it and retain his lien on the motor boat; and in support of this the cases of Cash Register Co. v. Riley Advertising System, 329 Ill. 403; Van Zele v. Cleaveland, 208 Ill. App. 397, are cited.

In the Cash Register case, where a trial of the right of property was had, it was held that one claiming to be entitled to the possession of certain property by virtue of a chattel mortgage has the burden of proof to show he has a superior lien, and that a chattel mortgage being in derogation of the common law must be strictly construed.

In the Van Zele case the mortgagee took possession of part of the mortgaged property upon default but delayed a considerable time before making any effort to take possession of the remainder of the mortgaged property. In the meantime a judgment creditor of the mortgagor levied upon that part of the mortgaged property not taken possession of by the mortgagee. And it was held that the mortgagee lost his lien as against the judgment creditor because he had not acted promptly. Section 4 of the Chattel Mortgage Act, which was in force at the time that case was decided (Hurd’s 1919 Stats., ch. 95, sec. 4) provided that a chattel mortgage if bona fide would “be good and valid from the time it is filed for record until the maturity of the entire debt or obligation, or extension thereof.” This section was amended in 1921 and as amended it provides that the chattel mortgage shall be good and valid “from the time it is filed for record until ninety days after the maturity of the entire debt or obligation or until ninety days after the extension of the time of payment thereof.” (Laws of 1921, p. 569.)

In the instant case plaintiff took possession of part of the mortgaged property May 6, 1938. At that time it could not take possession of the motor boat because on that date the bailiff had taken it under the writ of attachment. Under section 4 as amended, from which we have above quoted, plaintiff might take possession within 90 days after the maturity of the note. It did this and therefore its lien is protected. Moreover, we are of opinion that plaintiff did not lose its hen as to third parties because it foreclosed on but part of the property. 11 C. J., secs. 512, 515, 522, pp. 710, 711 and 715. It is certain it did not lose such lien in the instant case.

The judgment of the municipal court of Chicago is affirmed.

. Judgmewb affirmed.

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