author: Mr. Justice Haul

text:
    Hershel California Fruit Products Company, Appellee, v. Contadina Brokerage and Distributing Company et al., Appellants.
    Gen. No. 38,997.

      Opinion filed October 20, 1937.
    Rehearing denied November 3, 1937. Additional opinion filed November 4, 1937.
    Freeman & Freeman, of Chicago, for appellants; Irving Goodman, of Chicago, of counsel.
    Barnett & Truman, of Chicago, for appellee; Otto R. Barnett and Lawrence T. Barnett, both of Chicago, of counsel.
   Mr. Justice Haul

delivered the opinion of the court.

Defendants appeal from a decree and order entered in the superior court of Cook county on April 27,1936, in an action by which plaintiff seeks to enjoin the use by defendants of certain trade-marks and names. In this decree it is ordered: “That defendants, and each of them, be perpetually enjoined from distributing, selling, putting out or in any way using any label on tomato paste bearing the name ‘ Contadina Brokerage & Distributing Co.’ or bearing the word ‘Contadina,’ either alone or in any association with other words.”

The prayer of the complaint filed in the cause is that defendants be enjoined temporarily and permanently from distributing, selling, putting out, or in any way using any label on tomato paste bearing the name “Contadina,” from further using on cans of tomato paste a certain label described in the bill of complaint, or any other label bearing such close resemblance of defendants ’ label so as to mislead the public, and that defendants be required to account for and pay over to plaintiff all profits accrued and received by the defendants during a period stated, because of the use of the label complained of, together with any damage suffered by plaintiff by such use. Defendants deny the charges in the bill, allege that plaintiffs consented to the use of the trade-mark and name, and in a counterclaim pray that the plaintiff be required to account to them in the sum of $10,000, based on plaintiff’s refusal to deliver to defendants certain tomato paste, as agreed. Issues were joined in the superior court on the bill of complaint, answer and counterclaim of defendants, and .on October 31, 1936, the matter was referred to a master in chancery to take testimony and report his conclusions of law and fact. After hearing a great amount of testimony, the master found that from long established use, the plaintiff had the exclusive right to the name “Contadina” as a trade-mark appearing on packages containing tomato paste, and had the further exclusive right to the use of a certain label for certain paste described in the complaint; that by using a certain other label described in the complaint, defendants had used a label so similar to plaintiff’s as to constitute unfair competition; that by the use of the word “Contadina” on defendants’ label, they had violated plaintiff’s trade-mark rights. The master recommended that an injunction be issued restraining the defendants from continuing the use of the label and the use of the word “Contadina,” and that a decree be entered in accordance with the prayer of the complaint and the findings of the report. The master also found that neither plaintiff nor defendants are entitled to an accounting. Upon a hearing before one of the judges of the superior court, on March 11, 1936, upon exceptions filed by both the plaintiff and defendants to the master’s report, the court ordered that both plaintiff’s and defendants’ exceptions be overruled, that the master’s report be confirmed, and that a decree be prepared and entered in accordance therewith. Thereafter, in the absence of the judge who entered the order referred to, on April 27, 1936, and after a further hearing, the decree appealed from was entered.

The record indicates that prior to the 31st of August, 1920, through various mesne conveyances, the plaintiff acquired title to and the right to the use of the word “Contadina,” as a trade name, in and about the business of manufacturing, canning and vending tomato paste, which word as a trade-mark had theretofore been registered in the United States patent office as trade mark No. 123957, and that for a period of time subsequent to the acquisition of such trade name, the defendants, the Contadina Brokerage & Distributing Company, acted as broker and agent for plaintiff company in the sale of this product. Subsequently, plaintiff and defendants ceased these business relations, and defendant engaged in the business of manufacturing and selling tomato paste. In connection with the manufacture and sale of tomato paste, the plaintiff had theretofore adopted a label which shows at the top thereof the words “Tomato Paste,” and then a cultivated field of tomato plants in regular rows, with a female figure in the foreground, wearing a red dress with a blue apron and carrying a basket of tomatoes with the words across the sky above the head of the female figure, “Salsa di Pomidoro,” and below those words, the words “Naples Style,” and then at the bottom, below the female figure, the words, “Contadina Brand,” and in smaller letters, below, “net weight 6 oz.” After defendant had ceased doing business with plaintiff and after it began the business of manufacturing and distributing tomato paste, the defendant adopted a label, which bears, at the top thereof, the word “Signorina” in large letters, and below that in smaller letters the words “product — Brand—of U. S. A., ’ ’ and also shows a cultivated field of tomatoes with a female figure in the foreground, wearing a red waist and blue skirt and holding aloft a bunch of tomatoes, with the words “Salsa di Pomidoro” across the sky, and the words “Naples Style” above the words, and having across the bottom of the label, below the female figure, the words, “Distributed by,” and then the word “Contadina” in somewhat larger letters, with the remainder of the name, “Brokerage and Distributing Co.,” continued around on the reverse side of the label. Another label used by the defendant in connection with its sale and distribution of tomato paste, appears in the record, which contains the words, “Packed in California for . . . Contadina Brokerage & Distributing Co.,” an examination of which shows that there is no material difference between this label and the one hereinbefore described. As already suggested, the master found in his report, which was confirmed by the court, that “from long established use, the plaintiff had the exclusive right to the name Contadina as a trade-mark appearing on packages containing tomato paste, and had the further exclusive right to the use of the label for certain paste described in the complaint,” and the injunction order from which this appeal is being prosecuted, as already suggested, enjoined and restrained the defendants from in any way using1 either upon labels or otherwise, the word ‘ ‘ Contadina, ’ ’ in connection with its product.

A number of witnesses were produced, who testified as to their business in purchasing and selling tomato paste. It appears that all of them had made purchases from both plaintiffs and defendants, and that the packages purchased from defendants containing this paste had on them one of the labels in dispute, and all these persons were in business in and around the city of Chicago. One witness testified that she kept a store in Forest Park. She also testified to the effect that when her customers asked for Contadina Brand tomato paste, she gave them the Signorina Brand, which is defendants’ product. Another merchant engaged in the same business testified that when his customers asked for Contadina Brand, which is plaintiff’s product, he would give them defendants ’ product, because he made more profit out of it. Several merchants who dealt in this product, testified to the same effect. Another testified to the effect that he thought defendants ’ product was made by the same company as Contadina Brand, and that when he sold the Signorina Brand (defendants’), he thought it was made by the plaintiff’s company. Another testified that in purchasing tomato paste, which he had dealt in for a number of years, he looked at the word Contadina and took it for granted that he was buying the same product that he had purchased for a considerable time through defendants.

In Mossler v. Jacobs, 66 Ill. App. 571, the complainant, engaged in the tailoring business, advertised his business under the style of “Six Little Tailors.” Defendant conducted his business and advertised the same under the name and style of “Six Big Tailors,” and there was proof offered to the effect that there were six big brothers in his family, all engaged in the tailoring business. The action was brought to restrain the use of the name, “Six Big Tailors,” and in sustaining the injunction issued by the trial court, this court said:

“No person is entitled to represent his wares as being the goods of another man, or articles of his manufacture as having been made by another, and no person is by the law permitted to use any mark, sign, symbol, name, device or other means, whereby he makes a false representation, or deceives as to his own goods, or as to the goods of another, or whereby, without himself making a false representation to a buyer who purchases from him, he enables such buyer to tell a lie or to make an untrue representation to somebody else who is the ultimate customer. Nor is it a defense to an action, the gist of which is a charge of deception, to reply that the words uttered by the defendant were the literal truth, for the truth may be stated in a way likely to, and that does, deceive. What is required is, that a party shall not conduct his business so that by what he says or does, he deceives customers to their injury, or to that of a competitor.

“A man may not use his own name for the purpose of deception, and such fraudulent use will be enjoined. Fair competition in business is legitimate and promotes the public good, but an unfair appropriation of another’s business by using his name or trade mark, or an imitation thereof calculated to deceive the public, is not permissible and will be enjoined by a court of equity. Hazelton Boiler Co. v. Hazelton Tripod Boiler Co., 40 Ill. App. 430; Same, 142 Ill. 509; Reddaway v. Banhan, House of Lords, opinion filed March 26, 1896; Celluloid Co. v. Cellonite Co., 32 Fed. Rep. 97.

“While the court is not bound to interfere where ordinary attention will enable the purchasers to discriminate between the trade-marks used on the goods manufactured by different parties, nevertheless, the character of the article, the use to which it is put, and the kind of people who are likely to ask for it, as well as the manner in which it is probable it will be ordered, must not be lost sight of. Popham v. Cole, 66 N. Y. 69, 23 Am. Rep. 22, and cases there cited; Morgan’s Sons v. Troxell, 89 N. Y. 292, 42 Am. Rep. 294; Manufacturing Co. v. Trainer, 101 U. S. 51; Ball v. Siegel, 116 Ill. 137; Reed v. Richardson, 45 L. T. (N. S.) 54; Beard v. Turner, 13 Id. 746; Leidesdorf v. Flint, 7 N. W. Rep. 174; Eggers v. Hink, 63 Cal. 445; Morgan’s Sons Co. v. Troxell, 23 Hun 932; Ewing v. Johnston, L. R. 18, Ch. Div. 612; Apollinaris Co. v. Scherer, 27 Fed. Rep. 22; N. K. Fairbank Co. v. Swift & Co., 64 Ill. App. 477.”

Prior to the filing of the complaint in this cause, plaintiff had complained to defendants of the character of label used by them in connection with the distribution and sale of tomato paste, and thereafter defendants adopted another label. This last mentioned label is in the record, and an examination of it shows that it is quite similar to the label complained of, except in some slight detail. It also appears from the record that at the time the Contadina Brokerage & Distributing Company was incorporated and the name adopted by defendants, various officers and stockholders of plaintiff company were parties thereto and were instrumental in the adoption of the name, and that there was no complaint as to the corporate name during all the time plaintiff and this corporation did business together.

The label used by plaintiff in the marking of its product, and the two labels adopted by defendants, are so similar in every respect, except as to slight details, that anyone purchasing defendants’ product with these labels attached thereto, might very easily be misled and to assume that the product was that of the plaintiff corporation. It is useless to cite the very great number of cases which support the doctrine advanced in the case of Mossler v. Jacobs, 66 Ill. App. 571.

We are of the opinion that defendants should be enjoined from using the character of label that appears in the record. It is very evident that they were adopted to simulate plaintiff’s label and to deceive. Also, they should be enjoined from using the word “Contadina” as a brand for their product. We are of the opinion, however, that the court was in error in enjoining defendants from using their corporate name on their labels or in any other way in connection with the sale of their product. Defendants can very easily adopt labels and trade-marks which will not simulate the labels and trade-marks of the plaintiff, and can use their corporate name in such a way as not to mislead, if they choose to do so.

The decree is, therefore, reversed and remanded with the direction that the trial court enter a decree in conformity with this opinion.

Reversed and remanded with directions.

Hebel, P. J., and Denis E. Sullivan, J., concur.

Supplemental Opinion.

To supplement the opinion already filed in this case, we add the following:

In its bill, plaintiff prayed for an accounting from defendants for profits claimed to have been made by them through the use of plaintiff’s trade name, and the use of the simulated label described in our opinion. The master found that the defendants acted in good faith in endeavoring to settle their differences with plaintiff, and recommended that the defendants be not required to make an accounting for any such alleged profits. The trial court affirmed the master’s report in this regard and denied plaintiff’s prayer for an accounting. Upon this finding, plaintiff entered a cross appeal.

We are of the opinion that the master and court were in error in their holdings, and that if a proper showing is made that defendants made profits through the means suggested, plaintiff is entitled to an accounting therefor. The portion of the decree denying plaintiff the right to an accounting is reversed and the court is directed to enter such further orders as may be consistent with this supplemental opinion.

Hebel, P. J., and Denis E. Sullivan, J., concur.


source: Caselaw Access Project

author: Mr. Justice Hall

license: Public Domain

text:
    Edward G. Busca, Appellant, v. Frank Gasiorowski et al., Appellees.
    Gen. No. 39,242.
    Opinion filed October 20, 1937.
    Rehearing denied November 2, 1937.
    David H. Caplow and Earle Gr. Fallen, both of Chicago, for appellant.
    J. E. Tafee and Alfred J. Kolomyski, both of Chicago, for appellees.
   Mr. Justice Hall

delivered the opinion of the court.

By this appeal plaintiff seeks the reversal of a decree and order of the superior court of Cook county, dismissing a petition for the foreclosure of an alleged mechanic’s lien on real estate. Issues were joined upon the petition and answers of defendants, and the matter was referred to a master in chancery, who, after hearing evidence, recommended the dismissal of the petition.

The record indicates that on and prior to July 24, 1930, the defendants, Frank Gasiorowski and Nellie Gasiorowski, his wife, were the owners of the real estate involved, located at 1348 and 1352 North Ashland avenue in the city of Chicago. The property at 1348 North Ashland avenue was improved with a frame, two-story building, and that at 1352 North Ashland avenue was improved with a brick, three-story building. Prior to that time, the city of Chicago had instituted a proceeding for the widening of Ashland avenue, which necessitated the taking of 17 feet off the front of the Gasiorowski properties, which included a portion of the buildings. An adjustment was made with the city of Chicago, by which the city agreed to pay the Gasiorowskis, after deducting certain sums owed the city on account of special assessments, the net sum $6,877, as compensation for their property taken and damaged. At this time, the defendant, Polish Roman Catholic Union of America, held a first mortgage on the property to secure a debt of the Gasiorowskis to it. Under the terms of a settlement made between the Gasiorowskis and the city of Chicago, it became necessary that the two buildings be moved back 17 feet, and the contract hereinafter mentioned was entered into between the Gasiorowskis and the plaintiff to do the work in connection therewith. Before the city of Chicago would pay over the money on account of such award, it became necessary that a release of the mortgage of the Polish Roman Catholic Union of America, as to the 17 feet, be obtained. Also, it appears that one Robert F. Bradbnrn, attorney-at-law, who had represented the G-asiorowskis in the condemnation proceeding, had filed a claim for an attorney’s lien with the city of Chicago for his attorney’s fees amounting to $839, and it became necessary that it be arranged that a release of this lien be obtained before the city would agree to pay over the money on account of the award. On July 24, 1930, a written agreement was entered into between the Gasiorowskis and the plaintiff by which plaintiff agreed to move the buildings back, and to do a considerable amount of other work in connection therewith, for a price named, which contract provided, among other things, that the plaintiff ‘ ‘ shall and will, for the consideration hereinafter mentioned, on or before the October 31, 1930, well and sufficiently erect and finish the building.” Thereafter, the following additional agreement was entered into:

“Memorandum of agreement made and entered into this 9th day of December, 1930, by and between Edward G. Busca of the City of Chicago, and State of Illinois, and the Polish Roman Catholic Union op America, witnesseth; that,

“Whereas, The Polish Roman Catholic Union of America is the holder of a mortgage dated September 26, 1929, and recorded as document No. 10506277 made by Frank Gasiorowsld and Nellie Gasiorowski for the sum of Thirteen Thousand Dollars ($13,000.00) covering the premises commonly known as:

“Lots five (5) six (6) and seven (7) in Bauen & Hoffman’s subdivision of Section six (6), Township thirty-nine (39) North, Range fourteen (14), and

“Whereas said Frank Gasiorowski and Nellie Gasiorowski having entered into a contract with the said Edward G. Busca for the remodeling of the improvements situated on the premises hereinabove described, in which said contract the price stated is Nine Thousand Fifteen Dollars ($9,015.00), and

“Whebeas a part of said premises has been condemned by the City of Chicago and the gross compensation awarded to the owners for the part condemned is Nine Thousand Three Hundred Sixty-one Dollars ($9,361.00) and that the net amount thereof to be realized by said Frank Gasiorowski and Nellie Gasiorowski is approximately Five Thousand Eight Hundred Dollars ($5,800.00).

“Now thebeeore in consideration of the sum of One Dollar in hand paid and other good and valuable considerations the receipt whereof is hereby acknowledged and in further consideration of the Polish Roman Catholic Union of America issuing a partial release deed covering that part of said premises condemned by the City of Chicago and in paying out to the contractor and sub-contractor the net amount paid over to it out of said compensation at the direction of the said Frank Gasiorowski and Nellie Gasiorowski, the said Edward G. Busca agrees to and does hereby waive and relinquish any and all claims for liens for work, labor, services rendered or performed now or hereafter on the premises hereinabove described in connection with the remodeling thereof, and further agrees to keep and save harmless the said Polish Roman Catholic Union of America from any and all mechanics lien claims of himself or any of his subcontractors or material men, and further agrees to and does hereby subordinate his claim for lien for work, labor and services or material performed or delivered to said premises to the lien of the mortgage of the Polish Roman Catholic Union of America first herein-above referred to, and further, to accept a junior mortgage executed by Frank Gasiorowski and Nellie Gasiorowski for the unpaid balance of the contract price on the contract hereinabove referred to.

“The Polish Roman Catholic Union of America in consideration of the premises does hereby agree to execute a partial release, releasing from the mortgage first hereinabove referred to that part condemned by the City of Chicago and to accept the net amount realized in the condemnation proceedings and to pay out the sum to the contractors, subcontractors and material men on orders signed by said Frank Gasiorowski and Nellie Gasiorowski and by Edward G. Busca.

“In witness whereof the parties hereto have placed their hands and seals this 9th day of-December, 1930.

“Edward G. Busca (Seal)

“Approved:

Frank Gasiorowski -

Nellie Gasiorowski”

Under this latter agreement, the net amount of the award paid by the city of Chicago on account of the proceeding for widening Ashland avenue, was deposited with the defendant, Polish Roman Catholic Union of America, which thereupon executed a partial release of its mortgage, and the Polish Roman Catholic Union of America paid to Bradburn, on account of his attorney’s lien, the sum of $839. For a short time, plaintiff proceeded with the work which he had contracted to perform, and the sum of $5,053.32, was paid to him or his subcontractors, under the terms of and in the manner provided by his contract with the Polish Roman Catholic Union of America, which payments were approved- by the Gasiorowskis. It appears from the record, however, that a large proportion of such work had not been completed on January 22, 1931. Because of the delay and a controversy over the character of the work performed by the plaintiff, Frank Gasiorowski notified the plaintiff on January 25, 1931, that “he was through.” Gasiorowski testified to the effect that on January 2, 1931, and prior thereto, he had given notice to the plaintiff to finish up, but that because of his pleas, the witness told him that he could have two weeks more. Gasiorowski also testified that there was a small amount of work done on January 15th and 16th, and that “nobody worked after that day.”

The Gasiorowskis take the position that, by the terms of the contract between plaintiff and the Polish Boman Catholic Union of America, approved by the Gasiorowskis, plaintiff waived his lien. An examination of this document shows clearly that this is not true. It distinctly provides that he merely subordinated any lien which he might have for work, labor and service or materials furnished, to the lien of the mortgagee, and that he agreed to accept a junior mortgage to be executed by the Gasiorowskis for any unpaid balance on the contract price for the work. There is no evidence that any such mortgage was tendered.

Plaintiff testified before the master and admitted that the work which he agreed to do for defendants was not completed on October 31, 1930, in accordance with his agreement; that from September 16, 1930, when the work was started, to October 31, 1930, the date on which he agreed to complete it, he did not have men working daily during regular working- days; and that he had men working during that period only about three-quarters of the time, but that after October 31, 1930, he had men steadily employed during regular working days; and that he, himself, was on the premises steadily from October 31, 1930, until he was ordered from the work.

The work was completed by a general contractor named Frank Koellner, who testified that he started to work on the property some time in July, 1931. He also testified to the effect that when he started to work, the building had been moved, but that the floors were not level, that the building was not properly set, that the floor joints had to be replaced and the floors straightened out, that the plastering* in every room was loose, that he repaired all the doors and windows, placed new windows on the front and side, and new front doors, that he repaired the outside of the building, and constructed cement steps in front, that the two front doors and their transoms had been damaged in moving and had to be replaced, that all the wires on the outside had to be changed and new conduit pipes put in, that practically every room had to be plastered or patched, that the only room in the two buildings which was completely plastered, was the kitchen at 1348, that he had to take out approximately 55 or 60 bad joists, which were decayed, that the floors sagged 2% to 3 inches, and had to be raised because they were not properly braced, that he put in trim work in the front hall and on the railings, and that he finished up the windows, frames and trim, that he put in one door from the hallway to the first floor, that-because of the moving of the building, the door frames were out of shape and had to be recut and refitted, that the floors had to be refinished. In fact, the testimony of this witness indicates that after he took charge, he did a very large proportion of the work which plaintiff had agreed to do under his contract. Plaintiff does claim that Koellner did considerable work other than the work which plaintiff was to do. None of this is denied by the defendants, but, if so, is beside the point. Frank Koellner was paid $3,400, for the work performed by him.

We have examined plaintiff’s testimony carefully, and in no place does he claim that there was a substantial compliance with his contract, nor that any particular effort was made by him to perform within the time agreed, to wit: October 31, 1930, or at all. He gives no legitimate excuse for Ms failure.

We are of the opinion that upon the entire record, the court was correct in dismissing the petition. The judgment of the superior court is, therefore, affirmed.

Affirmed.

Hebel, P. J., and Denis E. Sullivan, J., concur.


text:
    Richmond D. Thomason and George P. Phillip, Appellees, v. Adolph J. Krasa et al. Appeal of Adolph J. Krasa et al., Appellants.
    Gen. No. 39,269.

      Opinion filed October 20, 1937.
    Adolph J. Krasa and Klenha & Greenfield, both, of Chicago, for certain appellants; Adolph J. Krasa and William E. Anderle, both of Chicago, of counsel.
    John A. Cervenka, Jr. and Theodore A. Spence, both of Chicago, for certain other appellants; John A. . Cervenka, Jr., of Chicago, of counsel.
    Herman A. Fischer and Carlton L. Fischer, both of Chicago, for appellees.
   Mr. Justice Hall

delivered the opinion of the court.

Defendants appeal from a decree of sale entered in the circuit court of Cook county on July 10, 1936, in a foreclosure proceeding, brought to foreclose a mortgage trust deed on real estate, and from a series of orders entered in the cause prior to the date of the entry of the decree. The petition upon which the decree was entered, was filed by Richmond D. Thomason on July 28, 1931, and seeks the foreclosure of a trust deed given by defendants, Adolph J. Krasa and Mabel M. Krasa, his wife, to secure bonds in the total sum of $70,000, of which $7,000 had previously been paid. The bill recites the facts as to the execution of certain bonds, their denominations, and the trust deed by which certain real estate was conveyed to the Garfield State Bank, as trustee. Each of the bonds contains the following provision: “It is further expressly agreed that if default be made in the payment of any one of said Bonds or Coupons at the time and place where and when the same become due, and such default shall continue for 30 days, then the said entire principal sum of this Bond shall, at the election of the legal holder hereof at once become due and payable, such election to be made at any time after the expiration of said 30 days, without notice, and the entire principal sum secured by said trust deed may thereupon become due and payable at the election of the legal holder or holders of any one or more of said Bonds, upon the terms and under the conditions prescribed in the trust deed.”

Articles VI and XI of the trust deed contain the following provisions, respectively:

“(VT). It is further covenanted and agreed that in case of default for a period of 30 days in making payment of any of said bonds, either of principal or interest, then the whole of said principal sum secured hereby shall at once, (without notice thereof to any person interested) at the option of the holder of any one of said bonds then unpaid, become due and payable.”

“(XI). The exclusive right of action hereunder shall be vested in said trustee until refusal on its part to act, and no bondholder shall be entitled to enforce these presents in any proceeding in law or in equity until after demand has been made upon the trustee accompanied by tender of indemnity as aforesaid, and said trustee has failed or refused to act in accordance with such demand.”

On July 23, 1931, the plaintiff Thomason gave the trustee, G-arfield State Bank, the following notice:

* ‘ Chicago, Illinois.

July 23, 1931.

“Garfield State Bank,

Chicago, Illinois.

‘ * Gentlemen:

“The undersigned, Richmond D. Thomason, being the legal owner and holder of one of the bonds made and executed by Adolph J. Krasa and Mabel M. Krasa, his wife, and secured by trust deed made to you as trustee dated and recorded in the Recorder’s Office of Cook County, Illinois, as Document No. 9717631, and having elected to declare the whole of the principal sum secured by said trust deed at once due and payable by reason of default for a period of thirty days in making payment of principal on said bonds which fell due on February 10, 1931, hereby requests and demands of you that you institute a suit for foreclosure of said trust deed, and tenders and offers to deposit said bond so held by him secured by said trust deed, and offers and tenders to give you such assurance of indemnity for your disbursements and fees as you may require, and tenders you such indemnity, and requests you to indicate what assurance of indemnity you will require.

“Richmond D. Thomason.”

To this letter, plaintiff received a reply from the president of the bank to the effect that the trustee bank was closed, and was in the hands of the auditor of public accounts of the State of Illinois.

By the complaint filed, plaintiff alleges that he is the legal owner and holder of one of the bonds bearing the serial number 126, in the principal sum of $100, the principal of which became due on August 10, 1934, together with certain interest coupons appertaining to the bonds, which were in default on August 10,1930, and that the defendants had defaulted in the payment of bonds numbered 15, 16 and 17, due February 10, 1931; that he brought suit on behalf of himself, together with each and every owner or holder of bonds, with the intent and purpose that any action taken by the court should inure to the benefit of each and every bondholder and interest coupon holder. Thereafter, the bill was amended and one Rees Beynon was made an additional party defendant. Also, one Gfeorge P. Phillip, who, subsequently to the filing- of the original bill, had been appointed successor trustee in place of the Garfield State Bank, under the terms of the trust deed, was given leave to join as a party complainant. The Garfield State Bank had theretofore resigned its trusteeship. Leave was also given plaintiffs to file a supplemental bill, which was filed on October 7, 1931, in which it is averred that on August 12,1931, a receiver had been appointed for the Garfield State Bank, that the receiver had resigned as trustee under the trust deed, that the resignation had been filed of record under and in pursuance of the terms of the trust deed, that a majority of the bondholders of the bonds secured by the trust deed had, in writing, appointed Phillip as successor trustee, and that this instrument was duly recorded on September 24, 1931. It is further recited in the supplemental bill that the plaintiffs prosecute the suit as representing all of the bondholders, and for the benefit of the bondholders according to their respective rights. Defendants were duly served with process and defaulted, and the cause was referred to a master in chancery, and hearings were had on the bill and considerable testimony heard.

On May 2, 1935, an order was entered setting aside the default of the defendants, Adolph J. Krasa and Mabel M. Krasa. John M. Krasa had also been made a. party defendant to the complaint, and all of the defendants were given leave to file their appearances, and to plead, answer or demur to the complaint so amended and supplemented, within 15 days from May 2, 1935. Thereafter, these three defendants filed an answer in which they alleged that bonds numbered 1 to 14 inclusive had been paid in full, and that $2.58 had been paid on account of certain interest due on February 10, 1931. In this answer they denied that plaintiff was the legal owner of bond number 126 in the principal sum of $100, and deny that there is any default in the payment of interest due August 10, 1930, and allege that by virtue of an agreement with the Garfield State Bank, as trustee, no bill to foreclose the trust deed could be filed if the entire net rentals derived from the mortgaged premises be paid to the trustee in monthly instalments, and that under the terms of the trust deed, plaintiff had no right to exercise the option set forth in the trust deed and to declare the whole of said principal sum to be due and payable. They also deny that plaintiff had any right of action under the terms of the trust deed, and deny that George P. Phillip, as successor trustee, was authorized to maintain the bill of complaint.

After the filing of the amended and supplemental complaint, the parties appeared at various times before the master. On July 2, 1935, the master entered an order to the effect that proofs should be closed by July 8, 1935, and in view of the fact that no further proof was offered, the master declared the proofs closed, and recommended that the prayers of the bill, as amended and supplemented, be granted. Thereafter, the master sent out a notice, with a copy of his report, to the solicitors for the parties in interest. Defendants, Adolph J. Krasa and Mabel M. Krasa, filed objections to the master’s report, which were disallowed, except that they were given credit of $165.47, which had not been given in the original report. After the hearing of exceptions to the master’s report before the court, a reference was made to the master as to certain of the bonds. Upon a rehearing, the master found that three of the bonds had been presented for payment to the bank, and that the amounts due thereon were advanced by the bank. On April 24, 1936, defendants presented a petition to the court, in which they allege that plaintiff was not the owner of bond number 126, on which he predicated his action. Thereafter, an order was entered denying the petitions of the Krasas, and on July 10,1936, after a hearing, the court entered the decree of foreclosure from which this appeal is taken.

It is the contention of the defendants that, under the terms of the bonds and trust deed, Thomason, the plaintiff, had no right to file the bill of complaint, and that the court acquired no jurisdiction of the subject matter. It is also contended that Phillip, as successor trustee, had no right of action, and had no right to become a party plaintiff in the suit. Also, that the master, in making his report, made unauthorized material changes and alterations ip the testimony of the witnesses. We will first consider the two first contentions of defendants. Plaintiff’s position as to the first contention is that no bondholder had the right to bring an action until demand had been made upon the trustee, accompanied by indemnity, and until the trustee had failed or refused to act. The record clearly indicates that before the suit was brought, demand had been made by the plaintiff on the Garfield State Bank to act, and that at the same time, there was tendered to the trustee a bond and an offer of indemnity, as provided by the bond. It also clearly appears from the record, as already noted, that in reply to this demand, plaintiff was informed that the trustee bank was closed, and was in the hands of the auditor of public accounts of the State of Illinois. As to the propriety of adding Phillip, trustee, as party plaintiff, we cite the following:

In Knight v. Village of Thompsonville, 74 Ill. App. 550, a mandamus proceeding was instituted to compel the treasurer of the village to restore certain moneys to the village treasury, which, it is alleged, had been wrongfully paid out. After the suit was instituted, an amendment was allowed by the court, substituting another person as party plaintiff, to which objection was made, and in sustaining the action of the court, this court said: “The amendment is a formal amendmeint. The defendants are the same. The object sought is the same, namely, to collect from the defendants $200, for the village of Thompsonville, alleged to have been wrongfully caused to be paid out by defendants as officers of said village. The adjudication of the court allowing an amendment is conclusive of the identity of the action. This assignment of error is not then well taken.”

In Thulin v. Anderson, 154 Ill. App. 41, a bill to foreclose a mortgage was filed by a Mrs. Crosby. After the bill was filed, the court permitted the bill to be amended by substituting the name of Christine Thulin as party complainant. The same question was raised there as is raised here, and in sustaining the action of the trial court, this court said: “The legal title was in Mrs. Crosby. . . .- The bill was filed in the name of Mrs. Crosby, and afterwards appellee was substituted as complainant as before stated. . . . Before appellee was substituted for Mrs. Crosby as complainant, Mrs. Crosby had assigned :the note and mortgage to appellee. She thereby ceased to be a necessary party, for she had never had the equitable interest and by the assignment she ended her legal interest. The substitution of parties complainant was in harmony with Winkleman v. Kiser, 27 Ill. 21, and Smith v. Brittenham, 109 Ill. 540. It may well be that appellee should have been a party to the original bill, but that defect was cured by the substitution. We are therefore clear that there was no lack of proper parties at the time the decree was rendered.” (Italics ours.)

We are of the opinion that the court was not in error in allowing Phillip, as successor trustee, to be made a party plaintiff, and that, as such, he could prosecute the action to its conclusion. See also Northern Trust Co. v. Sanford, 308 Ill. 381. In view of the fact that all the necessary parties were within the jurisdiction of the court when the decree was entered, we are of the opinion that the points urged are without merit.

In their answer, the defendants deny that Thomason was the owner of bond number 126 at the time the original bill was filed. Upon a hearing before the master, Thomason testified as follows: “Prior to the filing of the complaint in this cause, I made a demand on the then trustee under the trust deed in this case for foreclosure to start. I made a written demand on Mr. Delbert A. Clithero, as President of the Car-field State Bank. ... To the demand, I received an oral reply made by Mr. Clithero, President of the Garfield State Bank, who told me that the bank was closed and was in the hands of Oscar F. Nelson, the then Auditor of Public Accounts of the State of Illinois, and that he could do nothing about the matter. At the time to which I have testified, I was the owner and holder of bond No. 126, being a bond in the principal amount of $100.00, dated July 1, 1927, due August 10, 1934.” We find nothing in the record to disprove Thomason’s testimony. This bond was then received in evidence without objection.

In Witting v. Claras, 274 Ill. App. 449, this same question was raised, and the court said:

“The sole contention of the defendants is that the complainant was not the legal holder or owner of the notes; that he had no beneficial interest in them and therefore could not maintain the bill to foreclose the trust deed. We think there is no merit in this contention. Bourke v. Hefter, 202 Ill. 321; Hirsh v. Arnold, 318 Ill. 28; Morrison v. Steinberg, 151 N. Y. S. 607; National Bank of Rochester v. Erion-Haines Realty Co., 206 N. Y. S. 452.

“In the Bourke case a bill was filed to foreclose a mortgage. The complainant testified that the notes ‘were transferred to Mm for the purpose of commencing foreclosure proceedings, and that he paid nothing for them. . . .

“ ‘The court found that appellee (complainant) was the legal holder of the notes.’ It was contended that the decree was wrong because the real owner of the note should have been made a party to the sMt. The court said (p. 323): ‘ There was no evidence as to the real owner of the notes. They were in the possession of G-reenebaum Bros., and were delivered to appellee for the purpose of bringing suit and he was clothed with the legal title to them. Appellant was not prevented from making any equitable defense she had to the notes. . . . The real owner having put the notes in the power of the appellee by having them endorsed to him unconditionally, cannot be heard to complain, and, as we have seen, no harm was done appellant thereby. ’

“In the instant case the defendants were invited to present any defense they might have to the notes, but none was presented. The notes were negotiable and passed by delivery. Sec. 30, ch. 98, Cahill’s 1933 statutes. Complainant was the legal holder of the notes and was entitled to maintain foreclosure, and there is no contention that the defendants were in anywise injured.” We are of the opiMon that the contention as to Thomason’s ownership, is without merit.

As to the defaults upon which the action is predicated, the master found “that interest coupons series 1 to 5, inclusive, are fully paid, interest coupons series 6 maturing August 10, 1930, were paid but not can-celled and are held by Receiver of Garfield State Bank;

“that interest coupons Series 7, aggregating Two Thousand Forty-seven Dollars and • fifty cents ($2,047.50), pertaining to bonds 15 to 210 inclusive, matured on February 10, 1931, and were excepting coupons of bonds 37, 66, 98 and 135, presented to Garfield State Bank for payment and were paid with the funds of said bank. That the Receiver of said bank still holds the coupons unpaid and uncancelled and by reason of said advancement has a lien upon the premises, subordinate to the lien of the bonds and other coupons as hereinafter set forth. That coupons Series 7 of bonds 37, 66, 98 and 135, totalling Fifty-two Dollars ($52.00) are unpaid;

“that the makers of coupons Series 7 defaulted in the payment thereof, which default continued for more than thirty days prior to the filing of bill of complaint, and still continues;

“that bonds 15 to 17, inclusive, aggregating One Thousand Five Hundred Dollars ($1500.00) matured on February 10, 1931. That bonds 15 and 16 were presented to said Garfield State Bank and the sums due thereon were advanced by said Garfield State Bank; that by virtue of said advancement, Receiver of said bank has a lien upon said premises, subordinate to the lien of the other bonds and coupons ;

“that the makers have failed to pay bonds 15 and 17, inclusive. Such default continued for more than thirty days prior to the filing of the bill of complaint and still continues;

“that on July 23, 1931, complainant, Richmond D. Thomason, owner of one of the bonds secured by said trust deed, said grantors being in default for more than thirty days in payment of principal and interest, caused a written demand to be served upon the Garfield State Bank, wherein he declared the entire principal sum, together with interest, at once due and payable; requested trustee to institute foreclosure; offered and tendered trustee indemnity; offered to deposit with trustee bond held by him;

“that said trustee refused to accept deposit of said bond, refused to indicate what assurance of indemnity it would require, refused to accept indemnity and refused to institute suit for foreclosure;

“that George P. Phillip accepted the appointment as Successor Trustee, under said trust deed, in writing on the same day;

“that by leave of court, George P. Phillip, as Successor Trustee, was made additional party complainant to this cause;

“that the defendant, Pees Bey non, is the legal owner of bonds Nos. 202 to 205, inclusive, upon which on November 15, 1934, he recovered a judgment against the makers in the sum of Five Thousand Twenty Dollars and Ninety-four cents ($5,020.94), excluding attorneys’ fees, in case No. 543171, Superior Court of Cook County, and that said bonds have merged into said judgment, which is unpaid, and which judgment is secured by the trust deed sought to be foreclosed.”

The master found the sum of $76,083.99 to be due on account of unpaid bonds and interest thereon.

We find nothing in the record to indicate that the master’s findings as to defaults in payment were not correct. These facts are not denied. It is also not questioned but that the amount found by the master and by the decree of the court to be due and unpaid, is correct. The decree of. the circuit court of Cook county is, therefore, affirmed.

Affirmed.

Hebel, P. J., and Denis E. Sullivan, J., concur.


text:
    People of the State of Illinois ex rel. The Western News Company, Appellee, v. City of Chicago, Appellant.
    Gen. No. 39,321.
    Opinion filed October 20, 1937.
    Rehearing denied November 2, 1937.
    Barnet Hopes, Corporation Counsel, for appellants; Joseph F. Grossman, First Assistant Corporation Counsel and J. Hbrzl Segal, Assistant Corporation Counsel, of counsel.
    John L. McInerney and Edward H. Murnane, both of Chicago, for appellee.
   Mr. Justice Hall

delivered the opinion of the court.

This is an appeal from an order entered on October 2, 1936, directing that a peremptory writ of mandamus issue out of the superior court of Cook county, commanding the city of Chicago and certain of its officers to pay forthwith to the petitioner, The Western News Company, the sum of $18,025.50, together with interest from January 14, 1935, at the rate of 5 per cent per annum to the date of payment, together with costs of the proceeding. ■<

The petition in the cause recites inter alia that on January 14, 1935, The Western News Company, petitioner, obtained a judgment against the city of Chicago for the sum of $18,000, entered in a proceeding wherein The Western News Company claimed damages to its real estate, caused by the building of a viaduct, which interfered with the ingress and egress to and from the property of the plaintiff, and that no appeal had been taken from such judgment, that the Western News Company, petitioner herein, in whose favor the judgment was entered, has demanded payment by the city of Chicago of the amount thereof, and that the city has refused to pay. The prayer of the petition is that the writ of mandamus issue compelling the city and its officers to pay the judgment.

In the answer filed by the city, it is stated that at the time of the filing of the petition for mandamus and the issuing of the writ, the city had no money whatsoever for the payment of the judgment, and the answer avers that the city has certain moneys in its judgment fund, levied pursuant to law, for the purpose of paying judgments rendered prior to January 1, 1935, and that such funds are not available for the payment of any judgment rendered subsequent to January 1, 1935. The city further avers that on January 3, 1936, the city council of such city" passed its annual appropriation bill for the year 1936, and that thereafter on January 9, 1936, the council passed an ordinance amending the bill so passed on January 3, 1936, in and by which the annual appropriation bill, as amended, it appropriated the sum of $110,000, for the payment of judgments entered subsequent to January 1, 1935, together with interest thereon, and that thereafter on January 29,1936, the city council passed an ordinance levying a tax for the year 1936, which included a tax levied for the said sum of $110,000, so appropriated for the payment of judgments entered after January 1, 1935, together with interest thereon, and that a copy of such tax ordinance, properly certified by the city clerk, was filed with the county clerk of Cook county for the purpose of extending this tax levy and putting the same in for collection by the county collector. It is further averred in this answer that the proceeds of this tax levy will not be available for distribution in accordance with the appropriations made for 1936 until such taxes are collected, and that the first instalment levied for the year 1936 would not become delinquent until August 1, 1937, and that it has exhausted its borrowing power as limited by the constitution of the State, and is unable to borrow any money for the payment of plaintiff’s judgment. A hearing was had on the petition and answer.

An act to provide for the manner of issuing warrants upon the treasurer of the State or of any county, township, city, villag'e or other municipal corporation and jurors’ certificates, provides:

“That warrants payable on demand, shall hereafter be drawn and issued upon the Treasurer of the State or of any county, township, city, village or other municipal corporation, or against any fund in his hands, only when at the time of the drawing and issuing of such warrants, there shall be sufficient money in the appropriate fund in the treasury to pay said warrants.”

In DeWolf v. Bowley, 355 Ill. 530, a writ of mandamus issued out of the circuit court of Boone county; directing the county clerk of that county to issue warrants' upon the treasurer of Boone county payable to the order of the petitioner in that case as a judge’s pension. In answer to the petition for the writ, the clerk answered, among other things, that there was no money in the treasury either arising from the appropriation for the purpose or of moneys otherwise appropriated, with which to pay this pension, and it was urged that this was a complete defense in an action seeking the peremptory relief of mandamus, and in passing upon this question, the Supreme Court said: “Want of funds is a complete answer to a petition for mandamus to compel an officer to draw a warrant in a case of this character. Mandamus is an extraordinary remedy. Petitioner must show a clear right to the writ. If there be no funds with which to pay the warrant sought, its issuance will not be commanded by writ of mandamus. People v. Brown, 281 Ill. 390; Board of Supervisors v. People, 222 id. 9.” In order to comply with the court’s order, it would be necessary to divert funds from the purpose for which they were appropriated and set apart.

Par. 436, ch. 38, § 208 of the Criminal Code, Ill. State Bar Stats. 1935; Jones Ill. Stats. Ann. 37.396, provides that: “Every person holding any public office (whether State, county or municipal), trust or employment, . . . who shall be guilty of diverting any public money from the use or purpose for which it may have been appropriated or set apart by or under authority of law, . . . shall be fined not exceeding* $10,000, and may be removed from his office, trust or employment.”

Sec. 2 of art. 7, ch. 24, ft 92 of the Cities and Villages Act, Ill. State Bar Stats. 1935, p. 354; Jones Ill. Stats. Ann. 21.192, provides that: “The city council of cities, and board of trustees in villages, in cities and villages having a population of less than one hundred and fifty thousand, shall, within the first quarter of each fiscal year, pass an ordinance, to be termed the annual appropriation bill, in which such corporate authorities may appropriate such sum or sums of money as may be deemed necessary to defray all necessary expenses and liabilities of such corporation, and in such ordinance shall specify the objects and purposes for which such appropriations are made, and the amount appropriated for each object and purpose. No further appropriations shall be made at any other time within such fiscal year, unless the proposition to make each such appropriation has been first sanctioned by a majority of the legal voters of such city or village, either by a petition signed by them, or at a general or special election duly called therefor.”

In Siegel v. City of Belleville, 349 Ill. 240, in passing upon this act, and the object and purpose thereof, the Supreme Court said: “The object of the foregoing statutory requirements is to enable the tax-payer to compel the application of public funds to the purpose for which they were appropriated; to prevent the application of such funds to other purposes and to prevent the raising or expenditure of greater sums of money than are necessary for legitimate corporate purposes. (People v. Chicago and Eastern Illinois Railway Co., 326 Ill. 354; People v. Eastern Illinois and Missouri Railroad Co., 335 id. 245.) The necessity of these requirements and the duty of observing them are exemplified in section 208 of the first division of the Criminal Code (Cahill’s Stat. 1931, p. 1052; Smith’s Stat. 1931, p. 1056), which provides that every person holding any public office, whether State, county or municipal, who shall be guilty of diverting any public money from the use or purpose for which it may: have been appropriated, or who shall be guilty of contracting, directly or indirectly, for the expenditure of a greater sum of money than may have been set apart for the subject matter of the contract, shall be fined not exceeding $10;000 and may be removed from office.”

Sec. 2a of the same art. 7, ch. 24, provides that: “In cities and villages having a population of one hundred and fifty thousand or more, the city council or the board of trustees, as the case may be, shall, on or before the fifteenth day of June of the year 1933, and within the first quarter of each fiscal year thereafter, pass an ordinance, to be termed the annual appropriation bill, in which such corporate authorities, subject to the limitations hereinafter contained, may appropriate such sum or sums of money as may be deemed necessary to defray all necessary expenses and liabilities of such corporation to be paid or incurred during such fiscal year. ’ ’

In this same section, after a detailed statement as to the manner in which such appropriations shall be made in the appropriation ordinance of a city or village containing a population of 150,000 or more, we find the following further provision: “Except as otherwise specially provided by law, no further appropriations shall be made prior to the passage of the next succeeding annual appropriation bill; provided, however, that the city council or board of trustees, as the case may be, shall, at any time after the first half of each fiscal year, have power, by a two-thirds vote of all the members of such body, to make transfers within any department or other separate agency of the municipal government, of sums of money appropriated for one corporate object or purpose to another corporate object or purpose, but no appropriation for any object or purpose shall thereby be reduced below an amount sufficient to cover all obligations incurred or to be incurred against such appropriation.” (Italics ours.)

There is no showing by the petitioner that the appropriation made for paying judgments entered prior to January 1, 1935, was more than sufficient to pay such judgments, and it certainly cannot be claimed that the city council could divert funds appropriated for other specific purposes, police and fire for instance, to pay this judgment.

We are of the opinion that not only were the authorities of the city of Chicago fully justified in refusing to pay the judgment out of funds which would necessarily have to be diverted for that purpose from the purpose for which they were already appropriated, but we are further of the opinion that they would have been liable to a criminal prosecution had they done so. The court was in error in issuing the writ, and the judgment is reversed.

Judgment reversed.

Hebel, P. J., and Denis E. Sullivan, J., concur.


text:
    Rose Gholston, Appellee, v. Thomas Terrell, Appellant.
    Gen. No. 39,334.
    Opinion filed October 20, 1937.
    Rehearing denied November 2, 1937.
    William A. Macintyre, of Chicago, for appellant.
    William L. Dawson and Truman K. Gibson, Jr., both of Chicago, for appellee.
   Mr. Justice Hall

delivered the opinion of the court.

On April 11,1936, judgment was entered in a forcible entry and detainer suit instituted in the municipal court of Chicago by plaintiff against defendant. This judgment recited that plaintiff have and recover from defendant the premises described in the complaint filed in the cause. On April 16, 1936, notice of appeal from the judgment was filed with the clerk of the municipal court of Chicago. A copy of this notice was served on the defendant on April 20, 1936. On April 20, 1936, a written motion to vacate the judgment was filed. On April 23, 1936, an order was entered in the municipal court of Chicago denying’ the motion to vacate the judgment, and on the same date, notice of appeal from the order denying the motion to vacate the judgment, was filed in the office of the clerk of the municipal court of Chicago, together with evidence of service of this notice upon the attorney for the plaintiff. On April 28, 1936, an order was entered in the municipal court of Chicago, approving an appeal bond filed in the cause. The record, including a transcript of the evidence taken on the trial, was filed here on November 30,1936. On February 17, 1937, defendant filed -his abstract, brief and argument, and on February 25,1937, plaintiff filed a motion to dismiss the appeal “for the reason that the appeal bond in the court below was not filed within the five day period as prescribed in the Forcible Entry and Detainer Act, but was filed on April 28, 1936, seventeen days after the entry of the judgment on April 11, 1936.” On March 24, 1937, plaintiff (appellee) filed her brief and argument, in which she again urges that the appeal be dismissed.

Sec. 1, ch. 110, § 125, Ill. Rev. Stat. 1937 (page 2381); Jones Ill. Stats. Ann. 104.001, provides that “The provisions of this Act shall apply to all civil proceedings, both at law and in equity, unless their application is otherwise herein expressly limited, in courts of record, except in attachment, ejectment, eminent domain, forcible entry and detainer, garnishment, habeas corpus, mandamus, ne exeat, quo warranto, replevin, or other actions in which the procedure is regulated by special statutes. As to all matters not regulated by statute or rule of court, the practice at common law and in equity shall prevail.”

Sec. 18, ch. 57, of the Forcible Entry and Detainer Act, Ill. Rev. Stat. 1937, § 19; Jones Ill. Stats. Ann. 109.279, provides that: “If any party shall feel aggrieved by the verdict of the jury or decision of the court, upon any trial had under this Act, such party may have an appeal, to be taken to the same courts, in the same manner, and tried in the same way as appeals are taken and tried in other cases. Provided such party files notice of appeal and bond within five (5) days from the rendition of the judgment and no writ of restitution shall be issued in any cases until the expiration of said five (5) days. No notice of appeal shall be required in cases appealed from justices of the peace, but such appeal shall be taken and perfected in the same manner that appeals from justices of the peace are perfected in other cases, except that bond shall be filed as provided herein and the appeal shall be perfected within the time limited by this Act.”

In Sexton v. Curley, 112 Ill. App. 450, this court said: “The statute provides the only way whereby an appeal may be taken from a judgment in forcible entry and detainer. Sections 18 and 19, chap. 57, Starr & Curtis, require that appeal must be prayed and bond filed five days from the rendition of the judgment . . . ‘which said bond shall be in sufficient amount to secure rent, damages and costs to be ascertained and fixed by the court. ’ By his failure to apply to the trial court for an appeal and have the amount of the bond fixed within five days, as required by statute, the defendant lost his right to an appeal. ’ ’

In Lanquist v. Grossman, 282 Ill. App. 181, this court further said: “The filing of the notice of appeal June 15, 1934, was jurisdictional and constituted a pending perfected appeal which was a continuance of the proceeding in the court below, and we are at a loss to understand how, under the terms of the act, when the jurisdiction of the court had attached by an appeal already perfected and pending, a subsequent notice of appeal could have any force or effect.”

In McCoy v. Acme Automatic Printing Co., 278 Ill. 276, the Supreme Court said: “When plaintiff in error prayed and perfected its appeal it waived and abandoned its motion to vacate the judgment and could not longer rely on it. The appeal removed the cause to the Appellate Court, and the trial court lost all jurisdiction and had no power thereafter to enter any order on the motion to vacate the judgment. The appeal was perfected from the final order and should not have been dismissed. ’ ’

In his reply brief, defendant does not take issue with the contention of the plaintiff, but insists that by filing a brief in the cause, plaintiff waived her motion to dismiss the appeal, and cites a number of cases in support of his position, among them, being the case of Gillis v. Jurzyna, 284 Ill. App. 174, where this court said: “The filing of the brief is held to be equivalent to a joinder in error, and by joinder in error the right to move to dismiss the writ is waived. Fread v. Hoag, 132 Ill. App. 233, Finlen v. Foster, 211 Ill. App. 609, and cases there cited.”

We are of the opinion that the point is not well taken. As already suggested, plaintiff in her brief not only indicated clearly that she did not intend to waive the motion to dismiss, but an examination of this brief shows that she adhered to this contention, and cited a great number of cases in its support.

In addition to other points made in his brief, defendant insists that the landlord’s five-day notice was insufficient. The notice is as follows:

“Landlord’s Five Days Notice

“No. 1. Chicago, Illinois, January 30,1936.

“To Thomas Terrell: You are hereby notified that there is now due the sum of $60.00 being rent due for the premises situated in the City of Chicago, County of Cook and State of Illinois, and known and described as follows, viz: 4 rooms on the 3rd floor of building known as 4404 Calumet Avenue. And you are further notified, that payment of said sum so due has been and is hereby demanded of you, and that unless payment thereof is made on or before the 4th day of January, A. D. 1936, your lease of said premises will be terminated.

“Bose Gbolston at 4736 Michigan Ave., is hereby authorized to receive said rent for me.

“Signed Bose Gholston, Landlord.”

This is the only point of defendant referred to by plaintiff (appellee) or argued in her brief, other than that she insists that the appeal should be dismissed. As to the question raised as to the sufficiency of the notice, plaintiff contends that there evidently was a typographical error made in this notice in which she warns defendant that unless payment be made by the 4th of January, the lease would be terminated. The notice clearly indicates that this was a typographical error. It is dated January 30, 1936, and it is evident that it could not mean that defendant should vacate on a date prior to the date of the notice, and we are of the opinion that by calling the court’s attention to this matter in her brief, plaintiff did not waive her right to move a dismissal of the appeal. The order of this court is that the appeal be dismissed .

Appeal dismissed.

Hebel, P. J., and Denis E. Sullivan, J., concur.


author: Mr. Justice Denis ID. Sullivan

text:
    M. G. Byrne et al., Appellants, v. H. L. Meites, Appellee.
    Gen. No. 39,303.
    Opinion filed October 20, 1937.
    Rehearing denied November 2, 1937.
    -Stephen A. Cross and W. L. Murray, both of Chicago, for appellants.
    Bernard J. Brown, of Chicago, for appellee.
   Mr. Justice Denis ID. Sullivan

delivered the opinion of the court.

This is an appeal by plaintiffs, M. Gr. Byrne, R. C. Brinker, and E. F. Bradford, from a judgment entered in favor of defendant H. L. Meites for costs in a suit brought by them upon an assigned account or indebtedness for the sum of $500, which was owing to All-Weather Tire & Supply Company, a corporation.

Plaintiffs’ amended statement of claim alleges that certain school scrip had been delivered to one Irving Meites for the purpose of converting the same into warrants and that on December 31, 1932, there was a balance of $500, owing to All-Weather Tire & Supply Company, a corporation, to recover which amount suit was contemplated, but the action was withheld when H. L. Meites, defendant, who is the father of Irving Meites, agreed to assume responsibility for the payment of this balance of $500, which was owing by his son, and guaranteed to pay said sum at the rate of $50 per month. The guarantee reads as follows:

“December 31, 1932

“All-Weather Tire & Supply Company 1520 W. 35th Street, Chicago, Illinois

‘‘ Gentlemen:

“This is to acknowledge receipt by Irving Meites, my son, of certain school scrip for the purpose of converting same into warrants. Most of them have been so converted but there is a balance left amounting to $500.00.

“I, the undersigned, assume responsibility for same and guarantee payment thereof, with the understanding that such payment be made at the rate of $50.00 per month until paid up in full. ■

“Very truly yours,

“H. L. Meites.”

Upon this written guarantee the defendant had paid $110, on account so that there remained unpaid a balance of $390, and interest on said balance.

The statement of claim then set forth a series of assignments of “all the assets of said corporation” through which the plaintiffs in this suit became the actual bona fide owners of said chose in action, setting forth how the owner or assignee acquired title. The allegations as to each assignment set forth “how” and “when” the assignee acquired title.

The statement of claim further set forth that one of the plaintiffs, by affidavit, swore that the allegations in the statement of claim were true and further stated that the plaintiffs were “the actual bona fide owners of the chose in action” as shown by the statement of claim.

In the affidavit of merits of defendant it is alleged that Irving Meites was to receive a commission for the exchange of the school scrip into warrants and that by reason of the fact that the scrip was not worth its face value, the commission due Irving Meites was in excess of the value of the scrip withheld. The affidavit of merits did not deny there was a balance of $500, owing on December 31, 1932, and did not deny and did not mention the various assignments of the assets of this corporation, which assignments listed the claim herein and did not deny that plaintiffs were the “actual bona fide owners” of the particular item sued on and further did not deny that defendant had agreed to assume the responsibility for payment of the balance owing by Irving Meites.

At the hearing of the cause the court indicated that the original statement of claim was not sufficient and offered to give the plaintiff the opportunity of amending its pleadings and indicated that he would render judgment in favor of the plaintiffs if that were done.

Counsel for plaintiffs contend that there being no denial of the liability or the amount due, that further amendments were not necessary. We think the contention of counsel for plaintiffs was correct.

Buie 63 of the municipal court of Chicago provides: “Every allegation of fact in any pleading, if not denied specifically or by necessary implication, or stated to be not admitted in the pleadings of the opposite party, shall be taken to be admitted, except as against an infant or other person not sui juris.”

By assuming liability for the debt, the defendant became the primary debtor and in his guarantee of payment he set out specifically the amount of money he would pay. In his affidavit of merits defendant did not deny that he obligated himself to pay the sum of $500, part of which was paid, leaving a balance due.

Whilst care should be used in the preparation of pleadings, so as to make the issues growing out of the same intelligent to the reader, yet such criticism should not be so hypercritical as to defeat or interfere with the administration of justice. There can be no doubt from the pleadings and the evidence before us that the defendant agreed to pay this amount of money, that he paid part of it and, having done so, he should now be required to pay the balance. For that reason the trial court erred in entering judgment for defendant and should have entered judgment for the plaintiffs. Therefore, for the reasons herein set forth the judgment of the municipal court is reversed and judgment is entered here for plaintiffs in the sum of $390, with interest thereon at the rate of five per cent from March 1, 1933.

Judgment reversed and judgment here.

Hebel, P. J., and Hall, J., concur.


author: Mr. Justice Denis E. Sullivan

text:
    Lillian Lindor, Appellee, v. Lawrence H. Burns, Trading as Larry Burns Motor Sales et al. Appeal of Lawrence H. Burns, Trading as Larry Burns Motor Sales, Appellant.
    Gen. No. 39,363.

      Opinion filed October 20, 1937.
    Samuel G-. Rautbord, of Chicago, for appellant.
    Beverly & Klaskin, of Chicago, for appellee; Samuel T. Klaskin, of Chicago, of counsel.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.

This is an appeal from a judgment entered in the municipal court finding defendants, Lawrence H. Burns, doing business as Larry Burns Motor Sales, William Johmsy, doing business as L Auto Service, liable for the loss and destruction of plaintiff’s automobile and assessing plaintiff’s damages at $443. The cause was tried before the court without a jury.

The evidence shows that on June 1, 1935, the plaintiff’s automobile was taken to the Larry Burns Motor Sales, one of the defendants, for repair, it having been damaged in an accident; that the said automobile was sent by that company to one William Johmsy, doing business as L Auto Service, the other defendant named in this suit, for the purpose of having some work done on the frame of the car as the defendant Burns did not have the equipment to do the work.

The evidence further shows that while the automobile was in the possession of Johmsy and his workmen were endeavoring to make the necessary repairs, and were using an acetylene torch, the automobile caught fire and was destroyed; that both defendants have refused to compensate plaintiff for the loss of her car and hence this suit was brought.

It is the contention of the plaintiff that the status of Lawrence H. Burns, to whom the car was first delivered, was that of bailee for hire or one of mutual benefit and that where bailment for mutual benefit is created and established the bailee is chargeable with the duty of exercising ordinary care over the article entrusted to him; that where the loss and destruction of the automobile was proved by bailor plaintiff and admitted by bailee Burns, a presumption of negligence against the said bailee was thereupon created and the bailee must overcome said presumption by offering evidence to show that he was not negligent.

It is the contention of the defendant Burns that the plaintiff having knowledge that they were to deliver the car to Johmsy for services, exempted Burns from liability to plaintiff.

It is agreed by both sides that the car was in the possession of Johmsy as bailee for hire for mutual benefit and that the fire which destroyed the automobile was caused by the acetylene torches used by the defendant Johmsy while repairing the car.

There was some evidence introduced to show that it was customary in mating certain repairs on automobiles to use acetylene torches. The use of acetylene torches on automobiles, it would seem to us, would require care and caution because of the close proximity with the usual grease, oil and gasoline contained in the average automobile, in order to avoid just what happened in the instant case, its destruction by fire.

Where an automobile is destroyed under circumstances such as are herein set forth, a presumption of negligence on the part of the bailee is created and the bailee must overcome such presumption by sufficient and adequate evidence to show that he was not guilty of any negligence.

The law is that where a bailor makes out a prima facie case of negligence as against a bailee, by showing that the goods bailed had not been returned upon demand, such prima facie case is not overcome by a showing to the effect that the goods had been burned or otherwise destroyed. But, before such prima facie case can be said to have been overcome, the bailee must produce such evidence as will establish the fact that the loss was occasioned without his fault.

In the case of Clemenson v. Whitney, 238 Ill. App. 308, at page 312, the court in citing from the case of Miles v. International Hotel Co., 289 Ill. 320, said: ‘ ‘ The weight of modern authority holds the rule to be that where the bailor has shown that the goods were received in good condition by the bailee and were not returned to the bailor on demand the bailor has made out a case of prima facie negligence against the bailee, and the bailee must show that the loss or damage was caused without his fault. (Cumins v. Wood, 44 Ill. 416; Schaefer v. Washington Safety Deposit Co., 281 Ill. 43.) ” Schaefer v. Washington Safety Deposit Co., 281 Ill. 43, was an action which was brought to recover an amount of money which was lost after the same had been placed in a safety deposit box of the safety deposit company. The court in its opinion, said: “The undisputed evidence was that the box was in the exclusive control of the defendant arid that the plaintiff could not obtain access to it except by signing a slip at the office and giving her key to the person in charge of the vaults. Under such conditions we see no reason to depart from the ordinary rule that where a bailee receives property and fails to return it the presumption arises that the loss was due to his negligence, and the law imposes on him the burden of showing that he exercised the degree of care required by the nature of the bailment.”

In the instant case the defendants offered no evidence which would excuse them from the application of this rule. Upon the trial defendants attempted to show that the automobile was insured by a fire insurance company and that the plaintiff had been compensated by the insurance company for the damages sustained by the burning of the automobile and that, consequently, plaintiff was not entitled to recover in this cause of action. The court sustained objections to questions and answers offered for the purpose of proving that the automobile had been insured. In this we think the court was correct.

In the case of Byalos v. Matheson, 243 Ill. App. 60, which is a case similar to the instant case, the court at page 63, said: “We think it is the law where an automobile is placed in a garage and is stolen, through the negligence of the defendant so that he is liable, the fact that the owner of the car has it insured and has been paid his insurance, is no bar to an action by the owner against the garage keeper. Allen & Arnink Auto Renting Co. v. United Traction Co., 91 Misc. 531, 154 N. Y. S. 934. And we are further of the opinion that any evidence on the question of insurance of the car in question was inadmissible. Plaintiff having been paid the amount of his loss by the insurance company, any recovery he might have against the defendant would belong to the insurance company, although it was not named in the action, the insurance company being subrogated as a matter of law to plaintiff’s right. Under section 18 of our Practice Act (Cahill’s St. Ch. 110, Par. 18) as amended by the Act of 1915, which was in effect at the time this suit was brought, under the facts in this case, an action might be brought in the name of the owner of the automobile or in the name of the insurance company for it would be entitled to any recovery that might be had. Fifth Avenue Library Society v. Cavanaugh, 186 Ill. App. 123; Surface v. Chicago, M. & St. P. Ry. Co., 191 Ill. App. 261. If plaintiff were paid the judgment in this case, the insurance company might maintain an action of assumpsit against him. Wilson v. Turner, 164 Ill. 398; Leigh v. American Brake-Beam Co., 205 Ill. 147; Board of Highway Com’rs v. City of Bloomington, 253 Ill. 164. The rights as between the plaintiff and the insurance company are not involved in this case and they are immaterial so far as the defendant is concerned.”

We think the trial court properly excluded the evidence with relation to the payment of any insurance to the plaintiff. We are further of the opinion that the automobile having been delivered to the defendants as bailees, and said automobile having been destroyed and not returned, that the destruction of said automobile was caused as the result of the negligence of the said bailees, no sufficient evidence having been submitted to overcome that presumption.

For the reasons herein stated the judgment of the municipal court is affirmed.

Judgment affirmed.

Hebel, P. J., and Hall, J., concur.


author: Me. Justice Denis E. Sullivan

text:
    In re Estate of Ignatius M. Bransfield, Deceased. The Northern Trust Company, Executor Under the Last Will and Testament of Ignatius M. Bransfield, Deceased, Appellant, v. Annette Bransfield de Ronchi, Appellee.
    Gen. No. 39,409.

      Opinion filed October 20, 1937.
    Rehearing denied November 2, 1937.
    George E. Billett and Thomas G. McBride, both of Chicago, for appellant.
    Eugene Vincent Clarke, of Chicago, for appellee.
   Me. Justice Denis E. Sullivan

delivered the opinion of the court.

This appeal is taken from an order entered in the •circuit court of Cook county denying the motion of the Northern Trust Company, executor of the last will and testament of Ignatius M. Bransfield, deceased, to strike the motion, and affidavit in support thereof, of Annette Bransfield de Ronchi to vacate an order dismissing for want of prosecution her appeal from the probate court of Cook county and to reinstate said appeal.

The abstract shows that on January 24, 1935, Annette Bransfield de Ronchi filed the transcript of said appeal from the probate court to the circuit court; that the Northern Trust Company, executor, filed its appearance to said appeal on February 8, 1935; that on October 18,1935, the circuit court entered an order dismissing said appeal for want of prosecution; that on December 3, 1936, the motion and supporting affidavit of Annette Bransfield de Ronchi were filed in the circuit court to reinstate said appeal; that on December 7, 1936, The Northern Trust Company, executor, filed its special appearance and its motion to strike said motion to reinstate; that on December 8,1936, the circuit court entered an order denying the motion to strike, vacating and reversing the order of dismissal for want of prosecution theretofore entered and reinstated the appeal; and from that order the present appeal is taken.

It is the contention of the Northern Trust Company, executor, that the order of dismissal for want of prosecution was a final order which could not be vacated, altered or amended by the trial court after the expiration of 30 or at most 60 days, the trial court having then lost jurisdiction; that said motion and affidavit for reinstatement are not in the nature of a petition or motion to correct errors of fact coram nobis, under sec. 72 of the Civil Practice Act, Ill. Rev. Stat. 1937, ch. 110, § 196; Jones Ill. Stats. Ann. 104.072, and rule 54 of the circuit court of Cook county.

It further appears from the record that this cause came before the circuit court on an appeal from the probate court and that the clerk of the court made a mistake and placed it upon Judge Trade’s calendar.

Buie 22 of the circuit court provides: ‘ ‘ Sec. 1. Each Judge, from time to time, shall cause to be prepared a trial calendar of causes assigned to him which have been noticed for trial in the manner hereinafter stated; and no cause shall appear on the trial calendar of any Judge which has not been so noticed for trial.

“Sec. 2. At any time after a cause is at issue either party may serve upon the other a notice to the effect that he desires the cause placed upon the trial calendar of the Judge to whom the cause stands assigned. Such notice, with proof or acknowledgment of service, shall be filed with the minute clerk of the Judge, or during the Summer Becess with the Clerk of the Court, within five days after its service. In other respects such notice shall be governed by the provisions of Buie 17 so far as applicable.”

In the case of Jacobson v. Ashkinaze, 337 Ill. 141, the court said: “The purpose of the writ coram nobis at common law, and of the statutory motion substituted for it in this State, is to bring before the court rendering the judgment matters of fact not appearing of record, which, if known at the time the judgment was rendered, would have prevented its rendition. . . .

“Beach did not withdraw his appearance as the attorney for the plaintiff in error either by his client’s consent or the court’s permission. Elliott had no authority to represent the plaintiff in error and the latter had no notice or knowledge of the substitution. To charge the plaintiff in error with notice, actual or constructive, of the ex parte trial, notice, either to Beach the attorney or to the plaintiff in error himself, of the motion to vacate the order of October 11, 1920, striking the cause from the docket and to reinstate the cause, was necessary. No such notice was given to either of them. The notice to Elliott of that motion was of no avail because he did not represent the plaintiff in error. These matters of fact did not appear of record and were unknown to the court at the time it reinstated the cause on its docket. Obviously, if these facts had been known the court would not have rendered judgment against a party who had no notice of the reinstatement of the cause and was not chargeable with such notice.”

In the case of Josten Mfg. Co. v. Harry E. Keeler, 284 Ill. App. 646 (Abst.) this court said: “For the reason that no notice was given to defendant, which fact if known to the court would have prevented the entry of the judgment, we are of the opinion that the order of the municipal court vacating the default and giving the defendant leave to be heard upon the merits of the case, should be and hereby is affirmed.”

In the instant case the court had no knowledge that the cause had wrongfully been placed on the trial calendar. Had the court known that fact he would not and could not have legally dismissed the suit.

On the question of the lack of jurisdiction of the court, the appellant in the trial court participated in the hearing without making any objection, but made motions to continue the cause, thereby showing that it submitted the matter to the jurisdiction of the court. And further, there is nothing in the record to show that they raised any point in the trial court as to the court’s actions.

Other points are raised but we do not think they are of controlling importance and therefore nothing could be gained by discussing them at great length.

No notice of any kind had been served upon the appellee or his counsel and as a matter of fact the record shows that prior to the cause having been dismissed, counsel for the Northern Trust Company had died so that no one represented either party at the time the cause erroneously appeared on the trial call, when the court without being advised of the facts dismissed the said cause for want of prosecution without cause.

For the reasons herein given the order of the circuit court is hereby affirmed.

Order affirmed.

Hebel,.P. J., and Hall, J., concur.


text:
    Edna Crowley, Appellee, v. Charles Bugg, Appellant.
    Gen. No. 39,419.

      Opinion filed October 20, 1937.
    Robertson, Crowe and Spence, of Chicago, for appellant ; Burt A. Crowe, of Chicago, of counsel.
    -Merle E. Finch, of Chicago, for appellee.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.

This is an appeal from a judgment entered in the superior court in favor of the plaintiff Edna Crowley for the sum of $1,250 as damages because of injuries which she received while in the theatre of the defendant Charles Bugg. The cause was tried before a judge and jury.

No question is raised as to the pleadings.

Plaintiff’s complaint charges that the defendant Charles Bugg owned and operated a moving picture theatre on North Damen Avenue, Chicago; that plaintiff purchased a ticket, entered the theatre and started down the aisle to find a seat; that the defendant carelessly, negligently and improperly failed to provide reasonably adequate lighting facilities along the aisles of the theatre where plaintiff was compelled to walk in order to find a vacant seat; that the defendant carelessly, negligently and improperly failed to provide an usher or attendant to assist the plaintiff to find a vacant seat and failed to keep the aisles free and clear of children and obstructions; that on the day of the accident, while the plaintiff was walking in said aisle' and while in the exercise of ordinary care for her own safety, the plaintiff fell over a child standing or playing or otherwise obstructing said aisle in said theatre and as a result thereof the plaintiff sustained injuries.

Defendant’s answer admitted the ownership and control of the theatre and admitted that plaintiff had purchased a ticket and went into the theatre but denied each and every allegation of the complaint.

The evidence shows that on March 13, 1935, the plaintiff, who was a school teacher, purchased a ticket and entered the theatre of the defendant; that she had attended the theatre before, but on the date aforesaid, she started to walk down the aisle and when about five feet from the doorway she stumbled and fell over a child, who was in the aisle; that she could not see the child because of the darkened condition of the aisle; that there were no lights on the floor of the theatre and that the picture was going on; that in falling over the child the upper part of her head hit the upper part of a chair; that her lip was cut, which required three sutures; that her eyes were swollen and were black and blue and that she had X-rays taken and her teeth were injured; that she received bills from the doctors and for the X-rays which amounted to $198; that if she had worked she would have earned $330, for three weeks and a half; that it is difficult for her to breathe through her nostril in cold weather and that the sewed lip bothers her somewhat in her speech.

William A. Boost, a witness for plaintiff, testified that on the afternoon of the accident he was in the theatre about three rows from the door and was watching the-picture; that there was a child in the aisle and all of a sudden he saw somebody fall; that he couldn’t make out what it was, but he lifted the plaintiff up and gave her a handkerchief to stop the bleeding about her face; that while he was in the theatre he noticed a child in the aisle; that suddenly he did not see the child any more, that it had disappeared; that when he came back after the accident the child had gone; that he did not notice any ushers in the theatre, but at times he had seen ushers there at' matinees; that he did not notice any other people going up or down the aisle at the time.

Clarence Wagner, manager of the theatre, testified that while pictures are being shown there are trough indirect lights around the theatre which throw a light across, the entire ceiling and indirectly to the floor; that standing on one side of the theatre a person can see to the other side of the theatre while the picture is going on, can see clearly from any place in the house.

Charles Schneider, the doorman of the theatre, testified that on the day of the accident the theatre was giving away dishes to patrons; that plaintiff looked at the dishes and passed into the theatre; that the trough lights were all lighted at the time and that standing at any one of the four walls of the theatre one could clearly see across the theatre when a picture was on; that plaintiff came out of the theatre with Mr. Boost and stated that she had had an accident, having stumbled over a child who was standing or running in the aisle.

In the briefs filed in this court neither counsel has included a short paragraph giving an outline of the case. This omission is in violation of rule 7 of this court.

Defendant contends that plaintiff failed to prove that the accident and injury were caused by any negligence on the part of defendant.

In the case of Gibbons v. Balaban & Katz Corp., 242 Ill. App. 524, which was a case somewhat similar to the instant case, the court said at page 529: “We think that under the facts disclosed it was defendant’s duty to its patrons to sufficiently light the aisle and stairway during the exhibition of a picture. It appears that during exhibitions they, with defendant’s consent, entered or left the theatre at will by way of said aisle and stairway and by other aisles, etc. In 38 Cyc. pp. 268, 269, it is said: 1 The owner of a place of entertainment is charged with an affirmative positive obligation to know that the premises are safe for the public use, and to furnish adequate appliances for the prevention of injuries which might be anticipated from the nature of the performance. . . . He is required to use care and diligence to put and keep the premises and appliances in a reasonably safe condition for persons attending; and if he fails to perform his duty in this respect so that the premises or appliances are in fact unsafe, he may be held liable for personal injuries occasioned thereby. . . . Reasonable care is held to be the measure of duty, and the undertaking of the proprietor is held not to call for an application of the same strict rule of responsibility as in the case of common carriers. He is not an insurer. ’ These rules have been held applicable as to the lighting of aisles, stairways, etc., of theatres (see note in 22 A. L. R. p. 670 et seq.). . . . And in the instant case we think that the question whether the stairway and steps were insufficiently lighted as charged, and whether defendant was negligent in failing to have them sufficiently lighted at the- time of plaintiff’s fall, were questions for the jury under the conflicting evidence to determine.”

It is next contended by the defendant that the plaintiff was guilty of contributory negligence. In the case of Gibbons v. Balaban & Katz Corp., 242 Ill. App. 524, in citing the case of Andre v. Mertens, 88 N. J. L. 626, it was held that the injured plaintiff could not be held guilty of contributory negligence as a matter of law, but that the question as to whether she was or not was for the jury to determine. We think in the instant case that under all the evidence, whether plaintiff was guilty of contributory negligence, was for the jury to determine.

It is next contended that the so-called negligence of the defendant was not the proximate cause of the injury; that the injury was caused by an independent agency, namely, the child in the aisle over which the plaintiff fell. It is not necessary that an act of negligence to be the proximate cause of an injury, need be the sole or exclusive proximate cause, but it must be a proximate cause, either alone or concurrently with some other cause.

In the case of Casey v. City of Chicago, 189 Ill. App. 188, where a child, while playing in the street, was killed by a cake of ice falling from a wagon because the wagon ran into a hole in the street, it was held that the negligence of the driver of the wagon would not excuse the negligence of the city in permitting the holes to be in the street if such negligence of the city was the proximate cause of the accident and that “an act of negligence to be the proximate cause of an injury, it need not be the sole or exclusive proximate cause, but it must be a proximate cause, either alone or concurrently with some other.”

In the instant case it is our opinion that even though a child in the aisle of a darkened theatre caused the plaintiff to fall and be injured, that does not excuse the defendant from the duty imposed upon him to keep and maintain the aisles of his theatre in a reasonably safe condition for the use of patrons and would not preclude plaintiff from recovering damages for the injuries which she sustained. Stone v. Donk Bros. Coal & Coke Co., 199 Ill. App. 64.

It is next contended that plaintiff’s attorney was guilty of having made improper and prejudicial remarks to the jury. We have examined the remarks and, inasmuch as the court sustained the objection of counsel and instructed the jury to disregard such remarks, we do not believe the rights of the defendant were prejudiced thereby.

Plaintiff entered the theatre of the defendant which was poorly lighted, there were no ushers present and in seeking a place to sit she passed down the aisle and through no fault of her own she fell and was injured through the negligence of the defendant. Plaintiff was seriously injured and we do not think the amount of damages fixed by the jury was excessive.

For the reasons herein given the judgment of the superior court is affirmed.

Judgment affirmed.

Hebel, P. J., and Hall, J., concur.