author: Mr. Presiding Justice Barnes Gridley and Wells, JJ.,

text:
    Indiana Harbor Belt Railroad Company, Appellant, v. Moses M. Lieberman et al., trading as Joseph L. Lieberman Iron Company, Appellees.
    Gen. No. 31,702.
    1. Carriers — presumption of carrier’s possession of goods. In an action to recover freight and demurrage charges, proof that the railway had the goods at a certain date and sold them at a later date raises a presumption that it had possession thereof in the interval.

      2. Carriers — liability of shipper’s vendee for charges. In an action to recover freight and demurrage charges, proof that the shipper’s vendees guaranteed “all transportation charges” shows they intended to assume responsibility for all such charges under the bill of lading, and acceptance of the freight and reconsigning it made them liable for such charges as consignees.
    3. Carriers — reeonsigning shipment as acceptance. In an action to recover freight and demurrage charges, proof that defendants exercised control of the shipment by ordering it reconsigned necessarily implied their acceptance thereof.
    Appeal by plaintiff from the Municipal Court of Chicago; the.Hon. Samuel H. Trude, Judge, presiding. Heard in the second division of this court for the first district at the March term, 1927.
    Reversed with findings of fact and judgment here.
    Opinion filed October 4, 1927.
    Glennon, Cary, Walker & Murray, for appellant; L. Beers-Jones, of counsel.
    Benjamin B. Morris, for appellees.
   Mr. Presiding Justice Barnes

delivered the opinion of the court.

This is an appeal from a judgment for costs against plaintiff in an action to recover a balance of $212.82 for freight and damage charges accruing for an interstate shipment of scrap iron, after deducting $69.40 realized from the sale of the iron after defendants’ refusal to pay such charges.

The shipment was under a uniform bill of lading, dated June 9, 1920, from Circleville, Ohio, to East Chicago, Indiana, designating J. Krakowitz as shipper to Republic Iron & Steel Company, and routing for delivery by plaintiff.

By letter of June 16 defendants requested plaintiff to have the car diverted to the Interstate Iron & Steel Company, at the same destination, saying therein “charges following,” and promising the original bill-of lading' as soon as received. The same day defendants wrote the agent of the initial carrier to have the " bill of lading corrected for reconsignment to the Interstate Iron & Steel Company, giving the same destination and delivery, saying they had purchased the car and when seller sent defendants the original bill of lading it would be able to surrender the same. In another letter to plaintiff of June 23 “confirming conversation” had that day with one of plaintiff’s representatives with reference to the car, which was referred to therein as “now refused by the Republic Iron & Steel Company on your rails at East Chicago, Ind.,” defendants stated “it is understood you will have this car reassigned to the Interstate Iron & Steel Company, East Chicago, Ind., IHBelt Delivery, and allow all charges to follow. * * * and we hereby agree to guarantee you against any loss due to our inability to surrender at this time the original bill of lading. # * * and will also guarantee payment of all transportation charges. ® * # Kindly acknowledge receipt of these instructions.” (Italics ours.) This letter was acknowledged by plaintiff’s letter of June 23, saying the car had been ‘‘ ordered diverted to the Interstate Iron & Steel Company, East Chicago, Ind., all charges to follow, as per your request.”

The latter company also rejected the shipment and so notified plaintiff on July 7. Referring to the rejection in a letter of July 12, defendants advised plaintiff “to notify and accept dispositions orders from J. Krakowitz, * * * collecting all demurrage and freight charges.”

Plaintiff held the car, as the proof tends to show, until August 26, when the scrap iron was sold for $69.40, at the best offer plaintiff was able to secure.

The legal car rate from point of shipment to ultimate destination was $78.28, the demurrage under the national car demurrage rules, from July 8 (date of defendants’ refusal) to August 26 (the date of sale), $198, and the war tax $5.94, a total of $282.22. Crediting the $69.40 realized from the sale defendants were sued for the balance of $212.82.

No witnesses were offered by defendants:

The above state of facts is not questioned except as to the period for which demurrage was chargeable, there being no express proof of plaintiff’s possession of the car between August 2 and August 26. But in view of plaintiff’s unquestioned possession after said refusal up to August 2, and likewise on the date of sale, we think the proof raises a presumption of plaintiff’s continuance of possession during that interval. (Vol. 1, sec. 41, G-reenleaf on Evidence; Choisser v. People ex rel. Rude, 140 Ill. 21, 35; Thompson v. Crains, 216 Ill. App. 300, 311.)

Defendants contend that their expressed understanding in their letter of June 23, that plaintiff was to allow “all charges to follow” should be construed to mean only for transportation from the original consignee at East Chicago, Ind., to the Interstate Iron & Steel Company at the same destination. The same letter expressly guaranteed “all transportation charges” and indicated their ownership of the bill of lading, which on the day they requested diversion of the shipment they asked to have corrected for reconsignment to the latter company. Not only do we think it clear that they thus assumed and intended to assume liability for all charges for transportation under the bill of lading, but by accepting the freight and reconsigning it they received the benefit of the transportation and became liable therefor as consignees. (Case v. Union Pac. R. Co., 119 Kan. 706, 241 Pac. 693, 694.) It was held in New York Cent. R. Co. v. Warren Ross Lumber Co., 234 N. Y. 261, that “the consignee becomes liable for the freight charges when an obligation-arises on his part from presumptive ownership, acceptance of the goods and tlie services rendered and benefits conferred by the railroad company.-’ ’ In that - case it was said that when the defendant wrote a letter directing the delivery without notifying the plaintiff that it was not the owner of the goods, it acted as a consignee or volunteer, and accepted the goods by an act of ownership in giving such directions. Here defendants not only claimed to have purchased the car, but assumed ownership of the bill of lading and guaranteed its surrender. This same view of liability is taken in Pennsylvania R. Co. v. Rice Coal Co., 113 Ohio St. 34, 148 N. E. 349, and in Central R. Co. of New Jersey v. National Asbestos Mfg. Co. (N. J. L.), 127 Atl. 184. In the latter case it was said, citing decisions of the United States Supreme Court, that “it has been definitely established that under the uniform bill of lading the consignee, by accepting the shipment, becomes liable for the lawful freight charges accrued thereon to the carrier,” and that the exercise of control in a reshipment necessarily implied acceptance. This doctrine has been accepted by this court in Chicago, I. & L. Ry. Co. v. Monarch Lumber Co., 202 Ill. App. 20, and in New York Cent. R, Co. v. Platt & Brahm Coal Co., 236 Ill. App. 150.

In the latter case defendant relied on a contrary ruling by the third division of this court in Chicago, I. & S. R. Co. v. D. E. McMillan & Brother Coal Co., 207 Ill. App. 58, to which that division has adhered in Pere Marquette R. Co. v. American Coal & Supply Co., 239 Ill. App. 139. The opinions in those cases were based somewhat on facts from which the court found that the act of the consignee in reconsigning the shipment did not constitute such a constructive act of ownership as to render him liable for the freight, charges from the original point of consignment, or from the point where the shipment was first diverted. Whatever force may be given to the distinctions there made between the facts of the several cases analyzed, which we find it unnecessary to discuss, we think there can be no doubt that the facts of this case indicate not only constructive acts of ownership by . defendant but show an express promise on their part to pay such charges. Having exercised ownership over the contents of the car and thus impliedly accepted them and the benefits of the transportation, we are constrained to hold that defendants are clearly liable for all such charges, and accordingly reverse the judgment and enter one here for appellant for $212.82, the case-having been tried without a jury:

Reversed with findings of fact and judgment here.

Gridley and Wells, JJ.,

concur.

Findings of fact: We find that defendants accepted the shipment in question and agreed to pay all transportation charges therefor, and afterwards refused to pay the same, and that plaintiff held the car in his possession 43 days, subject to the national car rules as to demurrage.


source: Caselaw Access Project

author: Mr. Presiding Justice Barnes

license: Public Domain

text:
    Julius Mashnowsky, Appellee, v. Frank O’Malley, Appellant.
    Gen. No. 31,738.
    1. Landlord and tenant — admissibility of landlord’s residence adjoining liquor nuisance as proof of guilty knowledge. Knowledge of a landlord that Ms premises were used as a liquor nuisance, which may be sufficient to defeat Ms recovery of rent, is not shown by the mere fact that he lived in the adjoining premises, and evidence of such residence is, therefore, inadmissible.
    2. Former adjudication — decree abating liquor nuisance not res judicata of guilty 'knowledge by premises’ owner. A federal decree abating a liquor nuisance- on premises is not res judicata of the landlord ’s guilty .knowledge thereof in his action for rent against the tenant of the premises who was not Ms adversary in the abatement proceeding.
    3. Landlord and tenant — right to rent not affected by right to terminate tenancy for maintaining liquor nuisance. A landlord’s right to recover rent is not affected by his right under the National Prohibition Act to terminate a tenancy on the ground the premises were used for a liquor nuisance nor does his failure to exercise the right show guilty knowledge in spite of a federal decree abating a liquor nuisance on the premises.
    4. Landlord and tenant — liability of tenant for rent of premises closed as liquor nuisance. A landlord had the right to recover rent for premises used by a sublessee maintaining a liquor nuisance, on the lessee failing to prove the landlord’s knowledge and on evidence from which the court could find the lessee had guilty knowledge of the liquor nuisance.
    5. Landlord and tenant — when closing premises as liquor nuisance not eviction by landlord. A tenant is not released from paying rent on premises, closed as a liquor nuisance by federal decree, on the ground of eviction, on a showing that he had subleased without the landlord’s consent to the parties maintaining the nuisance.
    Appeal by defendant from the Municipal Court of Chicago; the Hon. A. W. Summers, Judge, presiding. Heard in the second division of this court for the first district at the March term, 1927.
    Affirmed.
    Opinion filed October 4, 1927.
    Earl J. Walker, for appellant.
    Lyons & Sherrard, for appellee; Edward J. Lyons and Arthur A. Sherrard, of counsel.
   Mr. Presiding Justice Barnes

delivered the opinion of the court.

Plaintiff was lessor and defendant lessee of certain real estate in Chicago, under a lease executed December 10,1925, for the period of three years from May 1, 1926, the same to be occupied for a restaurant and soft drink parlor and for no other purposes.

Defendant was also lessee of said premises under prior leases from August 1, 1921, and sublet the premises to one Lashover for a term from May 6,1925, to April 30,1926, and sold him the restaurant business he had previously conducted therein. He claims to have had nothing to do with the business nor to have • had possession of the premises after he so sublet them. He, however, paid the monthly rent to plaintiff accruing under his leases up to June 1,1926. The judgment appealed from was for the rent of June and July, 1926.

By a decree of the United States District Court for this division, entered June 18, 1926, in a proceeding under the National Prohibition Act brought against the plaintiff as owner of the record title to the premises, and one Wm. J. Tynan as owner and proprietor of the business conducted on the same, it was found that the premises had been used and maintained in violation of the National Prohibition Act and were on April 16, 1926, a common and public nuisance. The decree enjoined defendants to the proceeding and those in privity with them from using them as a place where intoxicating liquors, as defined in said Act, were sold, and closed them for one year from the daté of the decree.

Appellant contends that as he was not in physical possession of the premises at the time of the alleged violation of the National Prohibition Act or after-wards, but had prior to that time sold the restaurant and sublet to said Lashover, and as he was unable by reason of said abatement order to get possession of the premises on May 1, 1926, the beginning of the term of the last lease to him, plaintiff cannot enforce the covenant to pay thereunder.

This contention is also based upon alleged guilty knowledge by plaintiff of the unlawful use of the premises. While appellant argues that plaintiff must have had such knowledge from the fact that he occupied adjoining premises, the inference does not necessarily follow, either from any evidence produced or offered. There was no direct proof of his knowledge nor any ■ offered proof legitimately tending to show it, consequently there was no error in rejecting such offered proof.

It is also contended that the decree is res judicata as to the landlord’s knowledge of or participation in such unlawful use of the premises. It was held otherwise in Lawer v. Mitts, 33 Wyo. 249, 238 Pac. 654, in a similar action by the landlord against his tenant where the premises had been closed by an order abating a like nuisance. It was there argued that in the absence of any finding in the proceeding exonerating the landlord from knowledge or personal responsibility for the nuisance he could not show in the action against the defendant therein that he was without knowledge thereof or any responsibility therefor. Holding that the judgment in said abatement proceeding was not res judicata on the question of knowledge or lack of knowledge of the landlord as to the unlawful use of the premises or responsibility therefor, the court said (citing well-known authorities), “only adversary parties are estopped or concluded by a judgment under the doctrine of res judicata.” No issue was raised between the parties defendant in the abatement proceeding there or here referred to.

The decree was directed against the plaintiff, not as a participant in the offense, but only as the owner of the title of record. However innocent he might be, his premises were subject to the exercise of such power by the court because of the unlawful use of them. The power so given by said Act to close a place that has thus become a public nuisance “is not made dependent upon the finding of knowledge or notice, on the part of any owner of such a place, of the existence of such nuisance.” (United States v. Boynton, 297 Fed. 261, 267; Schlieder v. United States, 11 F. (2d) 345; United States v. Studio Club, 12 F. (2d) 462.)

But, as stated, so far as the record shows plaintiff was innocent of such unlawful use of the premises. Nor, in our judgment, does the fact that under the National Prohibition Act plaintiff had the option of terminating defendant’s tenancy and did not exercise it, import guilty knowledge on his part or affect his right of recovery under the lease.

While there was no express proof of knowledge by 0 ’Halley of the unlawful use of thé premises, or that he sublet them for such use, there was evidence, though denied by him, that he was repeatedly seen in the premises exercising duties connected with the business carried on there. If the court regarded such evidence as tending to show that defendant sublet the premises for an unlawful use or participated therein, then plaintiff, being innocent, would not be deprived of his right to recover from defendant rents accruing under the lease to him. (Davis v. Vidal [Tex. Civ. App.], 133 S. W. 1074.)

But it appears that during the period of Lashover’s tenancy, Tynan, in some way undisclosed by the record, but apparently through Lashover, obtained possession or occupied and made unlawful use of the premises without plaintiff’s knowledge or consent. There was no privity between plaintiff and them or either of them. Under such circumstances the responsibility for such unlawful use must be chargeable to defendant so far as it results in his inability to obtain possession of the premises under his new lease. His failure to obtain possession of the premises cannot, therefore, be deemed an eviction by plaintiff, but is attributable to his own fault in subletting without plaintiff’s consent to parties for whose acts he is responsible, so far as plaintiff is concerned, and therefore he is not relieved from paying rent under his contract.

Accordingly the judgment is affirmed.

Affirmed.

Gridley and Wells,' JJ., concur.


text:
    George C. Renneker Company, Appellee, v. South Park Commissioners, Appellant.
    Gen. No. 31,759.

      Elections — who liable for cost of printing ballots. The South Park Commissioners are not liable for the cost of printing ballots for submitting, in a general election in the City of Chicago, to the voters in the park district a proposition to issue bonds by the commissioners, either under a contract between the printer and the Board of Election Commissioners, made pursuant to notice from the Park Commissioners, or under the amendments to Cahill’s St. ch. 46, 11 362, since the amendment of 1911 refers to the election of township officers only, and the amendment of 1917 applies only, when the election is for the single purpose of submitting a proposition for the park commissioners; and it seems that the city is liable under Cahill’s St. ch. 46, H 259.
    Appeal by defendant from the Circuit Court of Cook county; tho Hon. John. A. Swanson, Judge, presiding. Heard in the second division of this court for the first district at the March term, 1927.
    Reversed.
    Opinion filed October 4, 1927.
    Rehearing denied October 17, 1927.
    Elmer J. Schnackenberg & William J. Corrigan, for appellant.
    John F. Tyrell, for appellee; Cornelius J. Harrington, of counsel.
   Mr. Presiding Justice Barnes

delivered the opinion of the court.

This is an action in assumpsit brought against the South Park Commissioners, the City of Chicago and the Board of Election Commissioners of the City of Chicago to recover the cost of printing certain specimen and special ballots for submitting to the voters in the south park district a proposition to issue bonds for the South Park Commissioners. Said ballots were printed for and used at the general election held in the City of Chicago, on November 4, 1924.

The declaration contains a special count and the common counts. The special count is predicated upon a contract entered into between the Board of Election Commissioners and plaintiff. It avers that said board, pursuant to notice from the South Park Commissioners to submit said proposition, advertised for bids for specimen and official ballots containing said proposition, and that plaintiff’s bid therefor at the contract price of $6,945.60 was accepted. From a judgment against the Park Commissioners for that sum this appeal is taken.

The bill of exceptions states that the several parties were represented by attorneys and the case heard before the court “upon the pleadings heretofore filed herein”; that at the close of plaintiff’s testimony the attorney for the South Park Commissioners moved the court to find the issues for appellant; that the motion was overruled, a finding for the sum claimed made against appellant; that “the demurrer of the City and the Board of Election Commissioners is sustained and the demurrer of the South Park Commissioners is overruled”; and that appellant’s motions for a new trial and in arrest of judgment were overruled.

This is a praecipe record. It shows no pleadings whatever on the part of the city or the Board of Election Commissioners, and no order of the court directly affecting those defendants. The demurrers referred to in the bill of exceptions being passed on at the close of the evidence appear to be demurrers to the evidence. But whether so or not, and whether or not the city and the Board of Election Commissioners have been eliminated from the case (which the record does not show), we think the proof was insufficient to sustain a judgment against the South Park Commissioners.

We think the expense of printing said ballots was an expense incidental to the duty of said board to conduct said election (Cahill’s St. ch. 46, ([ 239), and that the question of liability therefor was decided in Bolles v. Prince, 250 Ill. 36. In that case it.was sought to compel the board of town auditors of the Town of Danville to pay the expenses of conducting the registration and election in that part of the City of Dan-ville lying within the Town of Danville. The City of Danville adopted the Election Act and the election was under the supervision of the election commissioners of that city. Referring to Article VII, section 1 of the General Election Act (Cahill’s St. ch. 46, 11358), the court said: “The city is required to pay all expenses incurred by, the Board of Election Commissioners.” And referring to that case and such construction in Johnson v. County of Winnebago, 256 Ill. 276, the court said: “We there held that the city shall be liable for all miscellaneous expenses incurred by the board of election commissioners. ’ ’ In fact, the language of the section itself, after making provisions for the salaries of the election commissioners and the chief clerk and the assistant chief clerk, reads as follows: “All expenses incurred by such board of election commissioners shall be paid by such city.” That the preparation and printing of ballots necessary for use at such election was' an expense incident thereto for which the city is liable can hardly be open to question. Section 5, Article II of said Election Law (Cahill’s St. ch. 46, If 259) provides:

‘ ‘ Such board shall provide all necessary ballot boxes and all registry books, poll books, tally sheets, blanks and stationery of every description, with printed headings and certificates, necessary and proper for the registry of voters and the conduct of such election and for every incidental purpose comiected therewith.” And that such a proposition may be submitted at a general, as well as a special election, needs no discussion.

It is urged by appellee that as section 5 of said Article VII (Cahill’s St. ch. 46, If 362) was amended in 1911, following the decision in the Bolles case, making it the duty of the election commissioners in cities lying in two or more townships to apportion the expenses and salaries connected with the registration and election “at all township elections, general or special, held for the election of township officers only for any township or townships of which said city may be a part,” and because in 1917 said section 5 of Article YII was further amended by adding the following paragraph: “At all elections held for the purpose * * * of voting upon a proposition or propositions submitted by such board and for no other purpose, such board shall pay the expenses of such election,” there was manifested an intention of the legislature to modify the rule in the Bolles case.

While we see no application of the amendment of 1911 referred to, nevertheless counsel seemingly fail to recognize that said amendment relates to elections “held for the election of township officers only,” and that the amendment of 1917 making the park board liable for the expense of submitting a proposition to the voters is only when the election is for that single purpose. Liability being thus restricted these amendments can have no application in case of a general election such as was held on November 4, 1924, at which said ballots were used. The contract relied on was for printing, not only of said specimen and official ballots for submission of the proposition of the South Park Commissioners, but ballots for other propositions to be voted upon by the entire electorate of the city as well as ballots for county, State and national officers. The contract was evidently made pursuant to the board’s duty to conduct said general election, the expenses of which are chargeable, under the Election Act, to the city.

Hence there being no liability on the part of the South Park Commissioners for the printing of such ballots, either under said contract or the law, the judgment is reversed.

Reversed.

. Gtridley and Wells, JJ.,; concur.


author: Mr. Justice Gridley Barnes, P. J.,

text:
    The People of the State of Illinois for use of Frank Cech, Appellant, v. Henry M. Christy and The American Surety Company, Appellees.
    Gen. No. 31,495.
    1. Pleading — conclusions not to be pleaded. Allegations of conclusions cannot take the place of allegations of facts warranting prima facie the conclusions.
    2. Justices of the peace — averment of breach of duty in action on bond. In an action on a justice’s bond for a breach of the condition that he should faithfully discharge all the duties required of him by law, the declaration should state facts stating how and in what particular he has not faithfully discharged such duties.
    3. Justices of the peace — averment of acting without jurisdiction in action on bond. In an action on a justice’s bond for wrongful performance of judicial acts, an allegation of the declaration that lie acted “without jurisdiction” is a mere conclusion which cannot satisfy the necessity of alleging facts showing wherein the justice, in doing the acts charged, was not .acting within the scope of his jurisdiction as justice.
    4. Justices of the peace — liability for improper performance of judicial acts. A justice of the peace is not liable for damage for any error in the performance of judicial acts within the scope of his jurisdiction.
    5. Justices of the peace — averments as to unsatisfied judgment against justice in action on his bond. In an action on a justice’s bond for wrongful performance of judicial acts, an averment in the declaration that plaintiff was damaged by an unsatisfied judgment for plaintiff against the justice was insufficient in the absence of averments as to the nature of the judgment action, and how the judgment was or could be binding upon the surety and that the surety was a party to the judgment action or had notice and an opportunity to defend.
    Appeal by plaintiff from the Superior Court of Cook county; the Hon. Hosba W. Wells, Judge, presiding. Heard in the second division of this court for the first district at the October term, 1926.
    Affirmed.
    Opinion filed October 4, 1927.
    Bangs & Frankhauser, for appellant; Wendell McHenry, of counsel.
    Eastman, White, HawxhUrst & Lind, for appellees; Homer C,'Dawson,-of counsel,
   Mr. Justice Gridley

delivered the opinion of the court.

In an action in debt, commenced October 29, 1924, upon the official bond of Henry M. Christy, a justice of the peace in the township of Leyden, Cook county, Illinois, against him and the surety, the general and special demurrer of the American Surety Company to plaintiff’s amended declaration was sustained, and, plaintiff electing to stand by the declaration, judgment was entered against plaintiff for costs, on March 27, 1926, and this appeal followed.

The sole question for our determination is, whether the court properly sustained the demurrer.

The declaration consisted of two counts, and an additional count to which the demurrer was ordered to stand. The debt and damages are placed at $400, and by way of inducement, plaintiff alleges in each count that defendants, by their writing obligatory, dated April 14, 1921, jointly and severally acknowledged themselves to be bound in the sum of $2,000, reciting that Christy had been duly elected a justice of the peace in and for said township of Leyden, and providing that if he should faithfully discharge all the duties required of him by law as such justice, then the bond was to be void, otherwise to remain in full force, and further reciting that the bond was approved by the clerk of the county court of Cook county, was filed for record, and became on April 15, 1921, the official bond of Christy, who qualified and took upon himself the faithful performance of the duties of the office and is still acting as such justice, and further alleged that Christy “has not faithfully discharged all the duties required of him by law as such justice, but has neglected and refused so to do,” to the injury of said Frank Cech.

In the first count, “for assigning a breach” of the condition of the bond, plaintiff alleges that on Septemher 12, 1921, in the village of Elmwood Park, Christy “did falsely and maliciously and without any reasonable and probable cause whatsoever charge the plaintiff (evidently meaning Ceeh) with having committed a certain offense punishable by law, to-wit, failure to obtain a dog license and register his dog with the village clerk, contrary to the ordinance of said village of Elmwood Park”; that upon such charge Christy “falsely and maliciously, while acting as such justice of the peace and under color of his office but ivithout jurisdiction, caused and procured plaintiff (meaning Eech) to be arrested and to be kept in prison for three days,” when he was “duly discharged and fully acquitted of said supposed offense, whereof said Christy stands convicted by the judgment of the Superior Court of Cook County, in the case of Cech v. Christy et al., General Number 378,087”; that in said last-mentioned cause a judgment was rendered upon the verdict of a jury for $400, and costs, against Christy and is still unsatisfied and in full force; and that “thereby an action has accrued to plaintiff for the use aforesaid, to demand of the defendants the said sum of $400”; yet defendants, although requested, have not paid said sum or any part thereof to plaintiff, and refuse so to do, to plaintiff’s damage for the use aforesaid of $400;

In the second count, “for assigning a breach,” etc., plaintiff alleges that on September 12, 1921, while Christy was acting as such justice and while one Clarence I. Kinney was acting as a constable in and for the village of Elmwood Park, said Kinney appeared before Christy, so being such justice, and, ‘ ‘ conspiring with said Christy and without any reasonable or probable cause, charged plaintiff (meaning Ceeh) with having failed 'to obtain a dog license and register his dog with the village clerk", contrary to the ordinance of the village of Elmwood Park”; that, “upon such charge, defendants (i. e, Christy and the Surety Company), falsely and maliciously conspiring together and without any reasonable or probable cause, caused and procured said Christy, so being such justice, to make and grant his warrant under his hand for the apprehending and taking of plaintiff (meaning Cech) and for bringing plaintiff before him”; that “defendants, under and by virtue of said warrant, afterwards * * *, wrongfully and unjustly and without any reasonable or probable cause, caused and procured plaintiff (meaning Cech) to be arrested and kept in prison for three days”; that thereafter defendants, conspiring as aforesaid, “falsely and maliciously and without any reasonable or probable cause, caused and procured plaintiff (meaning Cech) to be carried in custody before said Christy, so being such justice, to be examined touching the supposed offense”; that said Christy, having heard and considered all that defendants could say as to the supposed offense, thereupon in pursuance of said conspiracy “adjudged and determined that plaintiff (meaning Cech) was guilty of the supposed offense”; that thereupon plaintiff (meaning Cech) “sued out of the Superior court of Cook county a writ of habeas corpus” and said court caused him to be discharged, “fully acquitted of said supposed offense”; that he also prosecuted an appeal from the judgment of said Christy as such justice to the criminal court of Cook county and said court dismissed the prosecution at the costs of said village of Elmwood Park and freed him; that defendants have not further prosecuted their complaint, but have abandoned the same, and the said prosecution is wholly ended; that all of which actions “were taken and prosecuted unlawfully and wilfully by said Christy, while acting as such justice in and by virtue of his office * * *, whereof the said Christy stcmds convicted by the judgment of the Superior Court of Cook County, in the case of Cech v. Christy et al., General No. 378,087”; that in said last-mentioned cause a judgment was rendered upon the verdict of a jury against said Christy for $400 and costs, which judgment is still unsatisfied and in full force; and that “thereby an action has accrued to plaintiff, for the use aforesaid, to demand of the defendants the said sum of $400,” etc.

In the additional or third count, “for assigning a breach,” etc., plaintiff alleges that on September 12, 1921, Christy, while acting as such justice, “did unlawfully, willfully and maliciously # * *, but without jurisdiction, cause plaintiff (meaning Cech) to be arrested and confined in a prison, commonly known as the Bridewell, in the city of Chicago,” whereof he, Christy, “stands convicted by the judgment of the Superior Court of Cook County in the case of Cech v. Christy et al., General No. 378,087,” in which cause a judgment was rendered upon the verdict of a jury against said Christy for $400 and costs, and which judgment is still unsatisfied and in full force; and that “thereby an action has accrued to plaintiff,” for use of Cech, etc.

After reviewing the allegations of each of the three counts of the declaration we are of the opinion that in none is a good cause of action stated against the defendants or either of them, and that the court properly sustained the general and special demurrer of the American Surety Company to the declaration, and, as plaintiff elected to stand by the declaration, properly entered the judgment appealed from. The hereinafter mentioned defects in the declaration, as we, see them, are applicable to each and all of the counts. (1) Conclusions rather than facts are stated. It is well, settled that in pleadings allegations of mere conclusions cannot take the place of allegations of facts warranting prima facie the conclusions. (2) The declaration is noticeable for what it does not allege. It does not allege that there was no ordinance of the village of Elmwood Park requiring owners of dogs to take out a license or that Cecil ivas not guilty of the offense charged against him. And it is not stated what was the nature of the action, No. 378,087, in the superior court of Cook county against Christy. And it is not stated how and in what particulars Christy has not faithfully discharged the duties of his office as required by law, concerning which performance the bond sued upon was given. (3) It does not allege facts showing wherein Christy, as a justice of the peace, in doing the acts as charged, was not acting within the scope of his jurisdiction as such justice. The allegation that he acted “without jurisdiction” is a mere conclusion. By virtue of paragraph 16 of the Justices and Constables Act, Cahill’s St. ch. 79, If 16, subd. 7, a justice of the peace has jurisdiction of actions arising under ordinances of cities, towns or villages, where the amount claimed does not exceed $300; and under paragraph 506 of chapter 24 of the Illinois Statutes (Cahill’s St. ch. 24, If 506) a justice or magistrate has power to imprison any person, fined for a violation of an ordinance of a city or village, until said fine is paid — the term of such imprisonment not to exceed six months for any one offense. Furthermore, it is the law that a justice of the peace is not liable for damages for any error or irregularity in the performance of judicial acts within the scope of his jurisdiction. As said in 35 C. J. 471,1f 32: “ The injured party has a remedy in such case by appeal or writ of error. This immunity from civil liability is based upon considerations of public policy, * * *. By the weight of authority a justice acting within his jurisdiction is not civilly liable, even though he acts corruptly or maliciously, the remedy for fraud or corruption being by impeachment. ’ ’ (See, also, Lancaster v. Lane, 19 Ill. 242, 245; Outlaw v. Davis, 27 Ill. 467, 473; Feld v. Loftis, 240 Ill. 105,107.) (4) The declaration does not allege any facts showing-how the alleged judgment in the superior court against Christy, Cfen. No. 378,087, was or could be binding upon the surety on Christy’s bond (American Surety Company).' Furthermore, the. declaration does not allege that said Surety Company was a party to the suit in the superior court, or state any facts showing that Christy’s bond was in any way involved therein, or that, if it was, the Surety Company was giving any notice .thereof or given any opportunity to defend. (See Grommes v. St. Paul Trust Co., 147 Ill. 634, 647; Lesczauskis v. Downs, 286 Ill. 281, 285.) In People v. Zingraf, 43 Ill. App. 337, 338, it is said: “When the condition (of a bond) is to abide the order or judgment of a court, the action of the court binds the surety, though he had no opportunity to influence it; but if it be to perform an act in pais, then such a judgment against the principal is not evidence against the surety.” Counsel for plaintiff in their reply brief here filed, direct our attention to a statement in 29 Cyc. 1465, ¶ 5b, viz, that a “judgment obtained against a principal in an official bond is generally regarded as prima facie, but not conclusive, evidence, in a suit against the sureties to enforce the liability on the bond.” But the citation is not in point because it is not alleged in the declaration that said judgment alleged- to have been obtained against Christy in said suit in the superior court, Gen. No. 378,087, was a suit upon Christy’s official bond, nor are any facts alleged showing that said bond was in any manner involved in said suit.

Our conclusion is that the judgment appealed from should be affirmed and such will be the order.

Affirmed.

Barnes, P. J.,

concurs. Wells, J., took no part in the decision. His predecessor, Fitch, J., concurred in the conclusion reached.


author: Mr. Justicf. Gridley

text:
    The People of the State of Illinois ex rel. Kazimir Jamontas and Stanley Darguzis, Appellees, v. Paul Miller, Appellant.
    Gen. No. 31,523.
    1. Contempt — how one may be acquitted of. One adjudged in contempt for violating an order or decree may acquit himself by showing that the same was invalid or a nullity.
    2. Depositions — necessity of talcing according to statute. The statutory provisions for the taking of depositions must be substantially complied with and ho material departure from the statute can be allowed unless by agreement or waiver of the parties to the suit.
    3. Depositions — necessity as precedent to talcing. Under Cahill’s St. ch. 51, U 24, providing the manner of taking a deposition in a chancery suit, as "shall be necessary,’’ a deposition cannot be required to be taken of a witness when it does not appear necessary to thus preserve his testimony, and when it appears, on the contrary, that the deposition could have been readily procured before another master in a pending proceeding.
    4. Contempt — as not resulting from refusal to appear for unnecessary deposition. A contempt order for failing to appear for depositions before a master may be reversed on a showing that the testimony thus sought could have been readily liad before another master in a pending proceeding.
    Appeal by defendant from the Circuit Court of Cook county; the Hon. Iba Byneb, Judge, presiding. Heard in the second division of this court for the first district at the October term, 1926.
    Reversed.
    Opinion filed October 4, 1927.
    Kazimir P. Gugis, P. B. Smith and Harry C. Kinne, for appellant.
    No appearance for appellees.
   Mr. Justicf. Gridley

delivered the opinion of the court.

This is an appeal by Paul Miller from an order of said circuit court, entered June 22, 1926, finding him guilty of contempt for wilfully refusing to appear and testify before one Miner, a master in chancery, and fining him $100, and ordering that he be confined in jail “until such time as he shall offer to comply with the court’s order, entered May 26, 1926, directing him to appear before' said master * * * and bring with him the documents, books and memoranda specified and described in the subpoena duces tecum theretofore served upon him.” Similar orders were entered against Peter Galskis and Anton Zymont. They perfected separate appeals (Case Nos. 31,526 and 31,529), post, and all these appeals have been consolidated for hearing. The same questions are involved in each. No brief has been filed by appellees.

On January 12,1921, Kazimir Jamontas and Stanley Darguzis filed their bill against Peter Galskis, the Lithuanian News Publishing Company and others, including Miller and Zymont, officers and directors of the company. In February, 1921, the cause was referred to William H. Dellenback, a master in chancery in Chicago, to take proofs and report his conclusions. While the case was pending before him and after many witnesses including Miller, Galskis and Zymont had testified, and about 2,000 pages of testimony had been taken, complainants, on March 23, 1926, filed their second amended and supplemental bill, in which they alleged in substance that the Publishing Company had been organized as an Illinois corporation on April 11,1914, to engage in the business of publishing, in the Lithuanian language, newspapers, pamphlets, etc., and to carry on a general printing business; that on March 8,1920, it was authorized to enlarge its business so as to include the buying and selling of steamship tickets, the forwarding of passengers and freight, and the buying and selling of foreign exchange; that Galskis and Zymont and one Joseph Szmotelis are respectively the president, treasurer and secretary of the company and members of its board of trustees, which consists of fifteen persons, including Jamontas and Miller; that on March 8, 1920, the capital stock of the company - (originally of $15,000) was illegally increased to $50,000, 5,000 shares of the par' value of $10 per share, of which stock complainant, Jamontas, is the owner of 425 shares, and complainant Darguzis, one share; that defendant directors have conspired to pay to certain of them additional compensation and issue to themselves stock without consideration passing to the company; that it is unlawfully transacting its foreign exchange business; that it has failed to promptly transmit money received by it and its -bank account is overdrawn, more than $5,000; that it has unlawfully purchased its own stock and executed a trust deed conveying certain of its own estate to a certain named Building & Loan Association; that certain: of its officers have misappropriated its profits; that it has never paid a cash dividend, although a stock dividend of 30 per cent was declared in 1920; that its assets are rapidly diminishing; and that complainants have been refused an audit of its books. The bill prayed for an injunction, a receiver, an accounting and the dissolution of the company.

On April 6, 1926, the defendant officers, including Galskis, Zymont and Miller, filed a joint and several answer to the bill in which, after admitting the organization of the company, the personnel of its officers and directors, and the said increase of the capital stock, they denied all other material allegations.

On April 5,1926, while the cause was pending before Master Dellenback, a written notice was served upoil the solicitors for defendants, including Miller, Galskis and Zymont, that on April 15, 1926, at 2 o ’clock p. m., complainants would take the depositions of Antón Zymont and others before said Master Miner at his office in Chicago. ■ On that day Miner, as master, issued two subpoenas duces tecum. One wás directed' tó Galskis and Miller, and the other to Zymoiit,- commanding each to appear before him at his office on April 22, 1926, at 2 o’clock p. m., and there produce certain papers or instruments mentioned, and testify “concerning a certain suit, * * * wherein Kazimir Jamontas, et al., are complainants, and Peter Galskis, et al., are defendants.” The subpoenas were served but none of the witnesses appeared. On May 26, 1926, on complainants’ petition, the court entered an order directing them to appear before Master Miner on June 3, 1926, at 2 o’clock p. m., and “bring with them the documents, books and memoranda specified in said subpoenas.” None of them appeared but their solicitor did so and stated that they, acting upon his advice, would not appear.

On June 5,1926, following the filing by complainants of a petition for a rule upon the three parties (hereinafter referred to as respondents) to show cause why they should not be adjudged in contempt, etc., the court entered such a rule. On June 10, 1926, they filed their verified joint and several answer thereto, in which, after admitting the service of the Miner subpoenas and their refusal to appear, they alleged that on February 8, 1921, the cause had been referred to Master Dellenback and Avas still pending before him; that about 30-witnesses had been examined and about 65 separate hearings had; that all respondents had testified before him on behalf of defendants and been cross-examined by complainants ’ counsel; that the last hearing was had on February 14, 1924, Avhen Joseph Szmotelis, a defendant, was cross-examined, but Avhich cross-examination had not been completed; that • all respondents reside in Chicago, that none of them is intending to depart from the jurisdiction of the court, and that all are ready and Avilling to further testify before Master Dellenback, if desired by complainants; that the cause is set for the further taking of testimony before Master Dellenback on June 18, 1926; that, having great respect for the court, etc., they believe the court “has no jurisdiction or power under the laAV to order and direct them or either of them to appear for examination before another Master in Chancery, or other officer, while the cause is pending before Master Dellenback and is actually on trial before him”; and that there is no provision in the laws of Illinois authorizing or empowering the court to order and direct-them to appear and testify before Master Miner under the circumstances shown, in that “it is not necessary to take said depositions,” etc. They prayed that the rule be discharged.

In the contempt order, fining and committing the respondents to jail, the court found the facts as to the prior proceedings substantially as above outlined, and further found that complainants “complied with the statute of the State of Illinois in all respects in regard to the taking of the depositions”; that “the court had jurisdiction to enter the order of May 26, 1926, directing the respondents and each of them to appear before Master in Chancery Miner”; and that the respondents “have willfully neglected and failed to comply with the lawful orders of this court heretofore entered,” and are guilty of wilful contempt.

It is contended by counsel for respondents that, under the provisions of our statutes concerning depositions and under the facts disclosed, the circuit court was without power or authority to issue its order of May 26, 1926, directing respondents to appear before Master Miner and testify and obey the subpoena duces tecum issued by him, and that, hence, the contempt orders appealed from are invalid and should be reversed.

After a review of the present record and of said statutes we are of the opinion that the contentions are well founded. It is the law that a party adjudged in contempt for violation of an order or decree may acquit himself by showing that such order or decree is invalid or a nullity. (Lester v. People, 150 Ill. 408, 416; Leopold v. People, 140 Ill. 552, 557; Armour Grain Co. v. Pittsburgh, C., C. & St. L. R. Co., 320 Ill. 156, 160.) The taking of depositions was unknown at common law, and it is a method of securing evidence created by statute. (Ward Pump Co. v. Industrial Commission, 302 Ill. 199, 202.) And, in the taking of depositions, the statutory provisions must substantially be complied with, and no material departure from the statute can be allowed unless by agreement or waiver of the parties to the suit. (Corgan v. Anderson, 30 Ill. 95, 98.) In section 24 of our Evidence and Depositions Act, which concerns the taking in a chancery suit of the depositions of a witness residing or living within the State (as each respondent was), it is provided. (Cahill’s St. 1925, p. 1203, ¶ 24) :

“When the testimony of any witness, residing or being Avithin this State, shall be necessary in any suit in chancery in this State, the party wishing to use the same may cause the deposition of such witness to be taken before any judge, * * * * master in chancery or notary public, Avithout a commission or filing interrogations for such purpose, on giving to the adverse party or his attorney ten days’ notice of the time and place of taking the same, and one day in addition thereto (Sundays inclusive) for every fifty miles’ travel from the place of holding the court to the place Avhere such deposition is to be taken. If the party entitled to notice and his attorney resides in the County where the deposition is to be taken, five days’ notice shall be sufficient.”

Section 25 of the Act, Cahill’s St. ch. 51, If 25, provides for the taking of the deposition of a resident witness in a suit at law, and section 26, Cahill’s St. eh. 51, 11 26, provides for the taking of the deposition, in any civil suit at lato or in equity, of a Avitness residing Avithin this State but more than 100 miles from the place of holding the court, or not residing in this State. In section 36 of the Act, as amended in 1919, Cahill’s St. ch. 51, |f 36, provision is made for the compelling by the court of a witness to obey the subpoena of the proper officer and to testify by depositions before such officer.

It will be noticed that, under said section 24, only such testimony shall be taken by depositions as ‘1 shall be necessary.” Nowhere in complainants’ petitions of May 26, 1926, and June 5, 1926, are any facts stated,' or elsewhere disclosed, showing that it is necessary to take the. testimony of respondents by depositions ber fore Master Miner, or that the testimony thus sought tp.be obtained is pertinent to the issues of said chancery cause. (See Lester v. People, 150 Ill. 408, 418.) And the verified answer of respondents states facts showing that the taking of such testimony by depositions is not necessary. Such being the condition of the. record, we are of the opinion that the court was not justified, upon respondents’ refusal to. obey Master Miner’s subpoenas and testify before him, in entering its rule of May 26, 1926, or the contempt orders appealed from.. Furthermore, it clearly appears that any proper testimony sought to be procured by complainants before Master Miner could have readily been procured before Master Dellenbaclc, before whom the cause stood referred for the taking of testimony and reporting to the court his conclusions thereon. And we do not think that the decision in Hill v. Thomas B. Jeffery Co., 292 Ill. 490, is contrary to these holdings. The facts in that case are different from those in the present case, and, apparently, the question of the necessity for the taking of testimony by depositions was not raised or discussed.

For the reasons stated the contempt order appealed from against Paul Miller, entered June 22, 1926, is reversed, as well as the similar orders entered against respondents, Peter G-alslds and Anton Zymont.

Reversed.

Barttes, P. J., and Wells, J., concur.


author: Mr.. Justice Gridley

text:
    Genuine Panama Hat Works, Inc., Appellee, v. Paragon Hat Company, Appellant.
    Gen. No. 31,543.
    1. Former adjudication — essentials to establishing. The burden of proving a plea of res adjudicata because of a former judgment is upon the defendant making it; the proof must be clear and convincing, and the very matter in controversy must be shown to have been settled in the prior controversy.
    2. Former adjudication — effect of acceptance of goods after judgment. A judgment that a defendant was not liable for a shipment because of his refusal of the goods on the ground they did not- comply with specifications does not operate as an adjudication that lie continued not to be liable therefor after he changed the relations. of the parties after* that judgment was rendered by accepting the goods.
    3. Sales — when acceptance constitutes. A sale is implied when a party, with knowledge that goods are offered for sale at prices named in invoices accepts them and exercises acts of ownership over them.
    4. Sales — when rejection does not negative. A buyer may accept goods and become liable for their price as originally quoted him although prior to such acceptance lie had rejected them.
    5. Sales — necessity of notice of breach of warranty. Under Cahill’s St. ch. 121a, If 52, providing that an acceptance of goods without notice in reasonable time of a breach of promise or warranty makes the buyer liable, a buyer who first rejects goods and then accepts them, without giving notice they are not according to specifications, cannot afterwards show such alleged breach as an offset to their price.
    6. Municipal courts — necessity of pleading breach of warranty. Under rules of the municipal court of Chicago that all grounds .of defense must be specifically pleaded and that allegations not denied specifically or by necessary implication, are deemed admitted, a buyer who wishes to avail himself of the defense that goods bought were not up to warranty must so plead, in order to use that defense upon trial. ""*!
    7. Assumpsit — as remedy to recover agreed price of accepted gcrods on delayed acceptance. Assumpsit and not conversion is the proper remedy for a seller to recover the price of goods, which .were .first rejected by the buyer but, after the seller had refused to receive tliém back and continued to insist on the buyer’s taking them, were finally accepted by the buyer who then refused to pay for them.
    8. Conversion — what"necessary to constitute. To constitute a conversion of chattels there'must be an unauthorized assumption of the right to the .possession or ownership thereof.........

      Appeal by defendant from the Municipal Court of Chicago; the Hon. C. F. McKinley, Judge, presiding. Heard in the second division of this court for the first district at the October term, 1926.
    Affirmed.
    Opinion filed October 4, 1927.
    Rehearing denied October 17, 1927.
    Lewis, Adler, Lederer & Kahn, for appellant.
    Moses, Kennedy, Stein & Bachrach, for appellee; Hirsch E. Soble, of counsel.
   Mr.. Justice Gridley

delivered the opinion of the court.

In an action in assumpsit, commenced June 9, 1924, for the recovery of the invoice prices, aggregating the sum of $2,972.25, of 159 dozen straw hats, sold and originally delivered in five separate shipments to defendant in Chicago during June, 1920, the court instructed the jury to find the issues against defendant and assess plaintiff’s damages at said sum. Such verdict being returned on February 26, 1926, the court entered judgment thereon and this appeal followed.

In plaintiff’s statement of claim, after stating the sale and delivery at said prices, it is alleged that on June 21, 1920, defendant, after receiving the goods, “rejected and refused to accept the same,” because it claimed that they were not as warranted, “and returned them to the American Railway Express Company for shipment back to plaintiff in New York City”; that “plaintiff refused to accept the return of the goods”; that thereafter they were held in storage by the Express Company until about December, 1923, when defendant ordered them “reconsigned back to it” by the Express Company, and “accepted” them; and that defendant, although often requested, has refused to pay for the goods or any part thereof, to plaintiff’s damage, etc.

In the defendant’s affidavit of merits the only defense stated is res adjudicata. After denying that defendant is indebted to plaintiff it is alleged that on November 17, 1923, in the case of Genuine Panama Hat Works, Inc. v. Paragon Hat Company, lately pending in said municipal court as case No. 853,241, judgment was entered after verdict against defendant; that the judgment thereafter was paid by defendant; that the parties and the subject matter in the two suits are the same; and that, therefore, said suit and judgment are res adjudicata of plaintiff’s claim in the present action.

Prior to the trial plaintiff, by leave of court, filed certain interrogatories to be answered by defendant. In its answers defendant admitted that during June, 1920, it received from plaintiff, through the Express Company, the several shipments as set forth in plaintiff’s statement of claim, and with each shipment an invoice showing the quantity, style and prices of the goods, but stated that shortly after the receipt of the* shipments it rejected the goods and returned them to the Express Company for delivery back to plaintiff in New York City. Defendant further admitted that, on or about November 22, 1923, it “ordered said Express Company to return said merchandise to it (defendant) which was accordingly done on or about November 26,1923.”

Upon the trial plaintiff’s attorney read to the jury the interrogatories and answers, except certain portions of the answer to interrogatories 11 and 12, which on plaintiff’s motion were stricken, and thereupon plaintiff rested. Defendant’s motion for a directed verdict was overruled, and, to sustain its defense of res adjudicata, it introduced the pleadings, verdict, judgment and satisfaction of judgment in the former suit (case No. 853,241), and also certain portions of the proceedings therein. Defendant also made certain offers to prove the' condition and market value of the goods in question, both at the time they were originally delivered to it in June, 1920, and at the time they were again delivered to it by the Express Company in .November, .1923, and also to prove the amounts which •defendant had paid to the Express Company for express. and storage charges and also the amounts paid .for insurance.on the goods while they were in storage with the Express Company. Plaintiff’s objections .to the offered evidence, on the ground that it was incom.petent and not material to the issues, were sustained by the court. Thereupon plaintiff, in rebuttal, introduced in evidence two forms of verdict (which the jury ■in the former suit had returned into court unsigned) and- also certain testimony of the court reporter who had reported defendant’s counsel’s closing argument •to the jury in that suit. At the close of all the evidence defendant’s renewed motion for a directed verdict was overruled, but the court sustained plaintiff’s motion for a directed verdict in its favor for said sum ,pf $2,972.25.

In October, 1920, plaintiff sued defendant to recover the sum of $6,154.50, and interest, for eighteen separate shipments of straw hats, received by defendant during the. months of May and June, 1920. Ten of these shipments were in May and eight in June. Five of the June shipments, aggregating at invoice prices $2,972.25, are those now in question. From defendant’s affidavit of merits, and from interrogatories and answers filed in the former suit, it appears that defendant rejected said, five June shipments, on the claimed ground that the goods were not in accord with samples or .description, and returned them to the Express Company to be returned to plaintiff at New York. City.. It further appears that defendant accepted thirteen of the shipments, aggregating at invoice prices $3,182.25, and that all shipments (including thé five rejected) were accompanied with invoices showing tlie quantities, styles and prices. In the former suit defendant als.o filed a claim of set-off of $8,475.79. This set-off was' made up of the following items: (a) $5,000 for alleged damages because of plaintiff’s failure to deliver other goods át other times; (b) $2,972.25, the invoice prices' of the goods in the five rejected shipments; (c) :$48.49, paid for express charges. on the rejected shipments; and (d) $455.05, for damages because of certain claimed defects in certain goods contained in the thirteen accepted shipments. Plaintiff, in its affidavit, of merits to defendant’s claim of set-off, denied that defendant was entitled, to any damages or deductions, that the goods in the five rejected shipments were not according to sample or description, or that defendant had any right to reject them. During all of the time of the pendency of the former suit, and until a few days after November 17, 1923 (when judgment following the jury’s verdict was entered therein against defendant for $3,659.59), the rejected goods remained in the custody of the Express Company, — plaintiff having refused to accept their return. Upon the trial of the former suit defendant, in support of its set-off, adduced some evidence of damages but only to the extent of $1,600 or $1,800. This evidence was disputed by plaintiff’s contrary evidence. In his closing argument to the jury defendant’s counsel stated in substance that defendant had produced evidence of damage under its set-off to the extent of from $1,600 to $1,800, and, arguing that defendant was justified in rejecting the five shipments, urged-the jury to return a verdict in plaintiff’s favor for the invoice prices of the thirteen shipments which defendant had accepted, less defendant’s damages in said sum from $1,600 to $1,800, but not to award plaintiff anything for said five rejected shipments. The court submitted to the jury three forms of verdict: One finding the issues against defendant and assessing plaintiff’s damages at............ dollars; another finding the issues against plaintiff; and a third finding the issues against plaintiff on defendant’s claim of- . set-off and assessing defendant’s damages at ................ dollars. In its oral charge to the jury the court instructed them that, if they believed from the evidence that plaintiff was entitled to recover, they might allow it interest at the rate of 5 per cent per annum on such sum, if any, as they believed it was entitled to recover from defendant, etc., and also instructed them that if they found the issues for defendant on its claim of set-off, they should sign said third form of verdict. The jury used only said first form, viz, finding the issues against defendant and assessing plaintiff’s damages at $3,659.59. The other two forms of verdict were returned into court blank and unsigned. The invoice prices of the thirteen shipments which defendant had accepted, and which had been delivered to it prior to June 1,1920, amounted to $3,182.25, and it is evident that the jury reached the amount of its verdict by allowing this sum, plus 3 years interest at 5 per cent thereon, or $477.24. On November 22, 1923 (five days after the judgment on the verdict had been reached) defendant ordered the Express Company to ship to it at Chicago all of said previously rejected goods, and on or about November 26,1923, the Express Company did so, and defendant accepted them.

The main contention of defendant’s counsel is that the court erred in holding that defendant had not sustained its plea of res adjudicaba. Notwithstanding that the proceedings and verdict in the former suit sufficiently disclose that plaintiff did not recover anything for said five shipments, aggregating at invoice prices $2,972.25, and that the jury in that suit did not allow defendant anything on its said claim of set-off, and notwithstanding that defendant, after judgment rendered in that suit, accepted the goods of said five shipments which it previously had rejected, counsel argue that its plea of res adjudicata is good and that it is not indebted to plaintiff in any sum. We cannot agree with the contention or argument. To sanction either would allow defendant to obtain and keep goods without paying anything therefor. It is the law that the burden of proof is upon a defendant to sustain his plea of res adjudicatei, and that any uncertainty as to Avliat was determined in the former suit should be resolved against him. (Chicago Theological Seminary v. People ex rel. Raymond, 189 Ill. 439, 444; People ex rel. Mercer v. Wyanet Electric Light Co., 306 Ill. 377, 383; Sawyer v. Nelson, 160 Ill. 629, 631; Pillsbury v. Early, 324 Ill. 562, 565; Washington, A. & G. Steam Packet Co. v. Sickles, 5 Wall. [U. S.] 580, 592.) In the Theological Seminary case, supra, it is said:

“The burden of proof is always upon the defendant, Avho pleads res adjudicata because of a former judgment, to set up that judgment, and sIioav Avhat Avas determined by it, and Avhat is common to the subsequent action. The proof must be clear, certain and convincing. * 0 If there be an uncertainty as to Avhat was the precise question raised and determined in the former suit, as, for example, if it appears that several distinct matters may have been litigated, upon one or more of which the judgment may have been passed, Avithout indicating Avliich of them Avas litigated, the Avhole subject matter of the action will be at large, and open to any new contention.”

In the Sickles case, supra, it is said:

“As we understand the rule in respect to the conclusiveness of the verdict and judgment in a former trial between the same parties, Avhen the judgment is used in pleading as a technical estoppel, or is relied on by Avay of evidence as conclusive, per se, it must appear, by the record of the prior suit, that the particular controversy sought to be concluded was necessarily tried and determined — that is, if the record of the former trial shoAVS that the verdict could not have been rendered Avithout deciding the particular matter, it will be considered as having settled that matter as to all future actions between the parties; and further, in cases where the record itself does not show that the matter Avas necessarily and directly found by the jury, evidence aliunde, consistent with the record, may be received to prove the fact; but,- even where it appears from the extrinsic evidence that; the matter was properly within the issue controverted in the former suit, if it be not shown that the .verdict and judgment necessarily involved its consideration and determination, it will not be concluded. ”

In the- present case, in our opinion, the defendant did not sustain the burden Of its plea of res adjudicata as regards said five shipments, particularly so as-it appears from the evidence that, a few days after the judgment in the former suit had been entered, defendant ordered the Express Company to ship back to it the goods, and, upon the Express Company’s .complying with the order, defendant accepted them. New or additional facts, conditions and rights, therefore, arose concerning the goods and the relations of the parties after the rendition of the judgment in the former suit: In 34 Corpus Juris, p. 808, sec. 1228, it is said: “The estoppel of a judgment extends only to the facts and conditions as they were at the time the judgment- was rendered, and to the legal rights and relations of the parties as fixed by the facts so determined; and- when new facts or conditions intervene before the second suit, furnishing a new basis for the claims and defenses of the parties respectively, the issues are no longer the same, and hence the former judgment cannot be' pleaded in bar in the subsequent action.” In Witherstine v. Snyder, 231 Ill. App. 240, 244, it is said: “A judgment or decree will not operate as an adjudication of rights not in existence at the time of its rendition; (Deke v. Huenkemeier, 289 Ill. 148, 154.) ” ■ •

Counsel for defendant further contend that the court erred in sustaining plaintiff’s objections to defend-, ant’s offers to prove, in mitigation of damages, the' condition and market value of the goods at the time defendant first received them in June, 1920,' and also-at the time- defendant finally received them from "the Express Company in November, 1923. We do not tliink so. When ■ defendant originally rejected the goods in question and returned them to the carrier to be shipped back to New York City, plaintiff refused to accept their return, then claiming and always thereafter maintaining that defendant was not justified in rejecting them. In October, 1920/plaintiff sued defendant to recover the invoice prices of the goods in all eighteen shipments (including the goods in question), for which defendant had refused to pay anything. The jury awarded as damages to1 plaintiff the aggregate invoice prices of the goods in the thirteen shipments (which defendant had accepted) plus accrued interest, and on November 17, 1923, judgment was entered on the verdict ágainst defendant. Although that verdict and judgment probably amounted to an adjudication, under the then existing facts and conditions, that defendant was right in rejecting the goods in questipn and that it was not then liable to plaintiff for the purchase prices, yet, shortly after the entry of said judgment, defendant accepted the goods from the carrier and the relationship of the parties as to the goods was changed. Theretofore, because defendant originally had rejected the goods and plaintiff had refused to take them back, the situation amounted to a continuing offer by plaintiff to sell the goods at invoice prices, and, when defendant finally accepted them, we think it bécame obligated to pay plaintiff' therefor at said prices. It is law that, when goods' are offered for sale by one party at prices named in invoices, and the other party, knowing those prices, receives and accepts the goods and exercises acts of ownership over them, a sale to said other party at the named prices is implied; (35 Cyc., p. 59; Neidig v. Cole, 13 Neb. 39, 42; Estey Organ Co. v. Lehman, 132 Wis. 144, 148; Farmers’ Handy Wagon Co. v. Newcomb, 192 Mich. 634, 639.)"• And, whére a buyer of" goods at prices named in thé invoices at first rejects them, he may afterwards recede from his position and accept them, and, if he does so, he becomes liable for the goods at said prices. (Loveland v. Havlena, 50 N. D. 157, 162; Farmers’ Handy Wagon Co. v. Newcomb, supra.)

In the Netocomb case (192 Mich. 639) it is said:

“Counsel for appellant argue that, even if defendant did have the silo shipped from the warehouse at Grand Rapids to Williamsburg, that was a matter between the defendant and the railroad company from which plaintiff can claim no advantage. This is not a tenable position. Even if defendant had retracted and canceled his order, and even if plaintiff had received notice of such cancellation, the shipment of the silo thereafter to defendant was an offer on the part of the plaintiff to sell it to him in accordance with the terms of the order. And, if defendant thereafter exercised acts of ownership over it, and had it shipped to Williamsburg for his benefit, that was an acceptance which made him liable for the purchase price.”

In view of these authorities, and it appearing in the present case that defendant finally accepted the goods, knowing their condition and the invoice prices, we are of the opinion that it was immaterial what their condition and actual value was in June, 1920, and November, 1923, and that the court properly refused defendant’s offers of proof. Even if the goods, upon their acceptance by defendant in November, 1923, were found not to be according to sample or description or not as warranted, defendant is not entitled to any diminution from the invoice prices, for it does not appear that defendant, after finally accepting the goods, gave any notice to plaintiff of any breach on plaintiff’s part of any promise or warranty. It is provided'in section 49 of the Uniform Sales Act that: “If, after acceptance of the goods, the buyer fail to give notice to the seller of the breach of any promise or warranty within a reasonable time after the buyer knows, or ought to know of such breach, the seller shall not be liable therefor.” (Cahill’s St. 1925, p. 2136, It 52; and see Canada Maple Exchange, Ltd. v. Scudder Syrup Co., 223 Ill. App. 165, 168; Goodlatte v. Acme Sales Corporation, 229 Ill. App. 610, 615.) And there is another reason why the court’s rulings refusing said offers were correct. The only defense pleaded in defendant’s affidavit of merits was that of res adjudicaba. In the rules of the municipal court, which are contained in the present record, it is provided in substance that all grounds of defense must be specifically pleaded, and that every allegation in any pleading, if not denied specifically or by necessary implication, is taken to be admitted. The defendant in its affidavit of merits in the present case did not deny the allegation contained in plaintiff’s statement of claim as to the invoice prices of the goods and as to defendant’s acceptance of the goods, nor did it allege as a defense that the goods were not as warranted or in accordance with sample or description. In Clinton Co. v. Stiles, 197 Ill. App. 505, 507, it is held that, if a defendant has not in his affidavit of merits in the municipal court pleaded that the goods purchased were not satisfactory or according to contract, he cannot, in the trial of a suit for the purchase price, avail himself of these defenses. (See also Smith v. Lord & Bushnell Co., 199 Ill. App. 582, 585.)

Counsel for defendant further contend that, if the goods were the property of plaintiff in November, 1923, Avhen defendant received them and applied them to it own use, plaintiff has misconceived its remedy and that it should have sued defendant for damages for the conversion of the goods, and that in such a suit evidence as to their condition and value would have been proper. Under the pleadings and the facts we do not think this conversion theory to be tenable. Plaintiff originally owned the goods and sold and delivered them to defendant. The latter at first rejected them and returned them to the carrier to be delivered back to: plaintiff, but. plaintiff refused to accept their return and thereafter altyays desired defendant to Tpceiye .them.- and pay the ^purchase price,- Defendant .' finally accepted them from the same c-arrier but .refused to pay anything for them, To constitute a conversion, of chattels there must, be; an unauthorised assumption, pf the right to the possession or ownership thereof. The act of defendant in finally accepting the goods in question was invited by. plaintiff. , ■

.. Our conclusion is that the judgment .appealed from should be affirmed, and it. is so ordered. . ........

■ Barnes,. P, J., and;Wells, J., concur.


author: ' Mr. Justice Gridley

text:
    Saul J. Kaplan, Appellee, v. Grace Williams, Administratrix of the Estate of Gustavis Williams, Deceased, Appellant.
    Gen. No. 31,653.
    ■■ 1. Executions — burden to show tnuliee not gist of action in-obtaining discharge from body execution. A debtor, petitioning under the Insolvent Debtors’ Act, Cahill’s St. eh. 72, for discharge from imprisonment'under a body execution on a "judgment on a general verdict in' an "action in which there were several counts and malice is the -gist-of only one of "them, has the burden to show that the ."verdict was upon counts, of which; malice was not the gist. ' ■ ■
    - .2- Executions — special finding of jury not .showing malice not gist of aetion. On a petition under .the Insolvent Debtors’ Act by a defendant fór.'diseharge "from imprisonment under a" body execution on a judgment for- death resulting from being struck by an automobile, malice is. not shown- not .to 'be the .gist of a count charging that defendant “wilfully, wantonly and maliciously” drove.the ear by the fact that the special finding of the jury;was only ¿hat"defendant “wantonly and wilfully” operated the, car. ......,
    -Appeal by defendant from .the'County .Court of "Cook county; the Hon.-1,;. L. Weaver,• Judgé, presiding. Heard in the second -division of this court for. the first district ^at the March term, 1927.
    Reversed and remanded with directions.
    Opinion filed October 4, 1927.

      Joseph E. Winterbotham:, for appellant. /
    No appearance for appellee..
   ' Mr. Justice Gridley

delivered the opinion of the ; coüft.

On November 24,1926, plaintiff filed a petition in the county court setting forth that he had beeii arrested under a writ of capias ad satisfaciendum in favor of Grace Williams, as administratrix, etc., for the sum of $7,000, and praying for his release under the Insolvent Debtors’ Act, Cahill’s St. ch. 72. Such proceedings were had that on December 28,1926, the court ordered him released, after finding that malice was not the gist of the action in which the writ had been issued. This appeal followed. No brief and argument have been filed by Kaplan.

The following facts in substance are disclosed: On January 31, 1923, Grace Williams, as administratrix, ' etc., brought an action in the superior court of Cook county against Kaplan for damages for causing the death of Gustavis Williams on December 23, 1922, as the result of being struck by an automobile, driven by Kaplan, while Williams, a United States mail carrier, was crossing Washtenaw Street, where it intersects Diversey Boulevard, Chicago. In that action there was a trial before a jury, resulting in a verdict and ' judgment against Kaplan for $7,000. On appeal to the third division of this Appellate Court the judgment was affirmed on October 13, 1926 (Williams v. Kaplan, 242 Ill. App. 166), and Kaplan’s petition for a writ of certiorari was denied by our Supreme Court on ^February 21, 1927. The declaration consisted of five counts — the first charging general negligence in the ■ driving of the automobile, and the second, fourth and )fifth counts, negligence in driving it at excessive rates Of speed in violation of different statutes./ .The onlv count wherein malice was the gist of the action was the third, in which Kaplan was charged with “so wilfully, wantonly and maliciously” driving the automobile that it ran against Williams, without fault on his part, causing injuries which resulted in his death on the same day. Upon the trial, at the close of all the evidence, Kaplan moved that the jury be directed to find him not guilty as to all the counts, and also that they be directed to find him not guilty as to said third count, but the motions were denied. At plaintiff’s-request the following interrogatory was given to the jury: “Did the defendant (Kaplan) wantonly and wilfully propel and operate said automobile in such a manner that it ran into and against the deceased, as alleged in the third count of plaintiff’s declaration?” The jury answered this interrogatory in the affirmative, and the same as so answered was returned into court together with their general verdict, finding Kaplan guilty.

It does not appear from the present bill of exceptions that, upon the hearing in the county court, Kaplan made any effort to show that the jury’s verdict in the negligence action was based upon any count of the declaration other than the third. In order to be entitled to a discharge as an insolvent debtor, the burden was upon him to so show. In Jernberg v. Mix, 199 Ill. 254, 257, it is decided in substance that, if there are several counts in a suit against an insolvent debtor and malice is the gist of only one of them, a judgment upon a general verdict is not conclusive that there was malice, and the debtor, upon petitioning for his discharge from imprisonment, may show that the verdict was upon counts of which malice was not the gist, and that, if issues are made upon all the counts in such a suit, including one count of which malice is the gist, a judgment upon a general verdict is responsive to such issues and prima facie establishes that malice was the gist of the action, and the burden is upon the petitinning debtor to show to the contrary. (See, also, In re Hinson, 162 Ill. App. 121, 124.) It is probable that the reason Kaplan made no attempt to show in the county court that the jury’s general verdict was not based upon said third count was because of the jury’s special finding above mentioned, and also because of the fact that his contentions, made in this Appellate Court on appeal from the judgment (242 Ill. App. 166, 176), that the declaration did not properly state a cause of action based upon wilful and wanton negligence, and that no wilful and wanton negligence on his part was shown, were fully considered and decided adversely to him. The court said (p. 177): “It must be borne in mind that it is not necessary, where a cause of action is based upon a charge of wilful and wanton negligence, even for the evidence to show that the defendant, with malice aforethought, and with premeditation, and with conscious intention, brought about the injuries of the defendant. As the court said in Bremer v. Lake Erie & W. R. Co., 318 Ill. 11: ‘If there is any evidence in the record fairly tending to show such a gross want of care as indicates a wilful disregard of consequences or a willingness to inflict injury, then it is a question to be determined by the jury whether the negligent conduct of the defendant amounted to wantonness or wilfulness. * * *’ (p. 179.) Although the defendant may not have known that Williams was in such a position as to be likely to be injured, and had no intention, as a matter of fact, to injure him, such knowledge and such intention, in fact, were not necessary elements of his, the defendant’s, liability for wilful and wanton negligence. The conclusion follows, therefore, that the declaration properly stated a cause of action based upon wilful and wanton negligence. * * * As to the merits of the case, the evidence of wilful and wanton negligence is so strong that we feel bound to let the verdict stand.”

It is to be noticed that, while the third count of the declaration charged Kaplan with “wilfully, wantonly and maliciously” driving the automobile, the special finding of the jury was only that he “wantonly and wilfully” propelled and operated it — the word “malicir ously” not being in said finding. An examination of the present bill of exceptions discloses that, upon the hearing in the county court, Kaplan’s attorney argued in substance that this shows that the jury did not intend to find that he was guilty of any legal malice. We do not think there is any merit in the argument. ' In Seney v. Knight, 292 Ill. 206, 208, it is said: ‘ ‘ The term ‘malice,’ as used in the Insolvent Debtors act, applies to that class of wrongs which are inflicted with an evil intent, design or purpose.” In Greener v. Brown, 323 Ill. 221, 224, it is said: “The jury in the circuit court found plaintiff in error was guilty of conversion. The action was one in tort based on fraudulent conversion. Malice, as that term is used in cases of this character, does not necessarily mean hatred or ill-will, but pertains to wrongs which are inflicted with an evil intent, design or purpose.” We think that malice was the gist of the third count of plaintiff’s declaration, and the jury by the use of the word “wantonly” in said special finding intended to find that Kaplan propelled his automobile maliciously and without regard to consequences or the rights of others. One of the definitions of the word “maliciously,” as given in the Century Dictionary, is “with wilful disregard of duty. ’ ’ And the word ‘ ‘ wantonly ’ ’ is defined as ‘ ‘ recklessly; * * * without regard for right or consequences.” In Hull v. Seaboard Air Line Ry., 76 S. C. 278, 281, it is said: “Each of the words, ‘wantonness,’ ‘willfulness’ and ‘recklessness,’ embodies the element of malice, either express or implied, and are in law substantially the equivalent of each other, in so far as they give rise to an. action based upon punitive damages.” In Palmer v. Smith, 147 Wis. 70, -75, it is said that the word “wantonly” means “without" reasonable excuse, and implies turpitude” and ‘‘‘"siicli a degree of rashness as evinces a total want of care, or willingness to destroy, although destruction itself may have been unintentional.”

Our conclusion is that the county court erred in ordering Kaplan released from custody. Accordingly that order is reversed and the cause is remanded with directions that he ■ be returned to the custody of the sheriff.

Reversed and remanded with directions.

Barnes, P.J., and Wells, J., concur.


author: Mr. Justice Gridley

text:
    In re Estate of John P. Mancini, Deceased. Antoinette Mancini, Appellee, v. Michele Giannini, Executor of the Last Will and Testament of John Mancini, Deceased, Appellant.
    Gen. No. 31,850.
    1. Escrow — depositary distinguished from agent. One who is directed by the maker of a promissory note to take and hold it until the maker’s death, and then deliver it to the payee, is a depositary of the note, holding it in- escrow and not as mere agent to deliver, whose authority ends with the maker's death.
    2. Escrow — note as subject to. The term “escrow," although, usually applied to deeds, is equally applicable to a promissory note given to a depositary to hold until the maker’s death before delivery to the payee.
    3. Escrow — admissibility of directions and admissions of promisor. The directions given by the maker of a note to the one to whom he handed it, that the latter should hold the note until the maker’s death and then deliver it to the -payee, and also the admissions of the maker as to his .object' in making and delivering the note, are admissible in an- action by the- payee .after the.maker’s death to. collect the note from.the maker’s estate.

      Appeal by defendant from the Circuit Court of Cook county; the Hon. Kiokham Scanlan, Judge, presiding. Heard in the second division of this court for the first district at the March term, 1927.
    Affirmed.
    Opinion filed October 4, 1927.
    S. T. Sutton and Meier & Poorman, for appellant.
    Payton J. Tuohy, for appellee.
   Mr. Justice Gridley

delivered the opinion of the court.

On March 2, 1925, Antoinette Maneini filed a claim in the probate court of Cook county against the estate of her deceased husband, John P. Maneini, who died testate in said county on November 7, 1924. Letters testamentary had been issued to Michele Giannini, the executor named in the will and the stepfather of the deceased. The claim was based upon Maneini’s promissory note, date October 28, 1924, and duly executed in- Ms lifetime, wherein he promised to pay on demand $5,000, to the order of Antoinette Maneini, for value received, without interest, at the office of M. Giannini, Chicago Heights, Illinois. Such proceedings were had in the probate court that, on January 22, 1926, it was ordered that the claim be allowed against said estate for $5,000, as of class No. 6, to be paid in due course of administration. Michele Giannini, as executor, etc., perfected an appeal to the circuit court where, after a trial de novo without a jury, the court, on October 27, 1926, found the issues in favor of the claimant, assessed her damages at $5,000, and entered judgment against said Giannini, as executor, etc., for that amount, to be paid in due course of administration. The present appeal followed.

On the trial the note was admitted in evidence. No question as to its consideration was raised, but it was contended that there had been no valid delivery of it. The claimant called two witnesses, said Michele Giannini and Hilda Madson, a trained nurse in a hospital in Chicago Heights, and they were examined and cross-examined. No witnesses were called by the executor. The facts disclosed are in substance as follows: Maneini, suffering from an abcess of his right lung, was confined in the hospital for about five weeks. About three weeks before his death an operation was performed upon him. His stepfather, Giannini, was accustomed to come to the hospital nearly every day to see him. On October 27, 1924, he executed his last will, which was afterwards probated, and to which said nurse was one of the witnesses. The will is not contained in the present transcript, but it appears that, while he made some provisions therein for his wife, Antoinette Maneini, the chief beneficiary was Giannini. On October 28,1924, he caused the note in question to be drafted, signed it at the hospital in the presence of Giannini and the nurse, and gave it to Giannini. He (Giannini) testified through an interpreter that, when he was given the note, John* Maneini said, “I should put it in my pocket, and when the time comes I should take it out and give it to her”; that two or three days after Maneini’s death he (Giannini) delivered the note to Antoinette Maneini; that when he did so he said to her that “Johnny gave me the note, and said that when it was time for me to take it out I should do it,” and that “I had to give it to her”; that he never told Antoinette Maneini anything about the note until after John’s death; and that John never said anything further to him about the note after he executed it. Hilda Madson, the nurse, testified that Maneini signed the note in her and Giannini’s presence; that Maneini said to Giannini “I want you to hold this for Antoinette; in case I die, see that she gets it”; that Giannini put the note in his pocket and shortly thereafter went away; and that just after the note was signed Maneini said to her: “I fixed my wife, I gave her some more money; I think she deserves it as she has worked so hard in the store for six years.”

Counsel for the executor of the estate here contend that the court erred in allowing plaintiff’s claim, based upon said note, against the estate, and in entering the judgment. And practically the only argument they make in support of the contention is, in substance, that Giannini was the mere agent of Mancini to deliver the note to the claimant and, Mancini having died before such delivery, the agency was revoked, and; when Giannini did deliver the note after said death, no title thereto passed to the claimant. In view of the undisputed evidence we cannot agree with the contention or the argument. We regard Giannini, not as Mancini’s mere agent but as a depositary or trustee of the note, in escrow, with directions to deliver it to the payee (the claimant) in case of Mancini’s death; In 21 Cl J. 865, an escrow is defined to be “a written instrument, which by its terms imports a legal obligation, deposited by the grantor, promisor, or obligor; or his agent with a stranger or third person, who is not a party to the instrument, to be kept by the depositary until the performance of a condition or the happening of a certain event and then to be delivered over to take effect.” Substantially the same definition is found in Main v. Pratt, 276 Ill. 218, 224, where it is also stated that “the term ‘escrow,’ though usually applied to. deeds, is equally, applicable to all written instruments. ’ ’ In Baum v. Parkhurst, 26 Ill. App. 128, 131, it is said: “A promissory note or other simple contract in writing, as well as a deed, may be delivered as an escrow and the law of escrows is substantially the.same in both cases.” (See, also, 1 Parsons on' Notes and Bills [2nd Ed.], p. 51; 1 Daniel on Negotiable Instruments [6th Ed.], sec..68; Foy v. Blackstone, 31 Ill. 538, 541.) Mr. Daniel in the cited section says: “A bill or note * * * may be delivered as an escrow —that is, delivered to a third party (but not to the payee) to hold until a certain event happens, or certain conditions are complied with — and then the liability of the party commences as soon as the event happens or the conditions are fulfilled, without actual delivery by the depositary to the promisee, * * $ and it matters not that the actual delivery is not designed to take place until after the death of the promisor; the instrument, ivhether negotiable or otherAvise, is nevertheless valid.” In a noté under said section the author says in part: “If the maker of a note delivered it to a third person, to be held by him and delivered to the payee on condition that the maker died Avithout recalling it, the happening of the condition left the holder Avith authority to deliver it to the payee and thereby to give him a good title. ’ ’ (Citing Daggett v. Simonds, 173 Mass. 340.) In said Baggett case it is also decided in substance that, in an action by the payee against the executor of the will of the maker of a promissory note, delivered by the testator to a person in his employ and by the latter delivered to the payee after the maker’s death, evidence of directions given by the testator Avhen he handed the note to his servant is competent on the question of delivery, as is also evidence of admissions by the testator upon that subject.

Under the evidence and the authorities above referred to, our conclusion is that the judgment of the circuit court Avas right and should be affirmed, and it is so ordered.

Affirmed.

Barnes, P. J., and Wells, J., concur.'