text:
    Bird-Sykes Company, Defendant in Error, v. James F. McNamara, Plaintiff in Error.
    Gen. No. 33,155.

      Opinion filed April 1, 1929.
    Rehearing denied April 13, 1929.
    A. L. Schaf, for plaintiff in error.
    Alex Markels, for defendant in error; Seymour Lewis, of counsel.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

By this writ of error defendant seeks to reverse a judgment of $1,650 rendered against him on February 16, 1928.

On December 20,1927, plaintiff brought an action of replevin against defendant to recover one Paige automobile, the value of which was stated to be $1,650. Defendant was served, but the automobile was not taken by the plaintiff under the writ, his return showing that he was unable to find it. The writ was returnable January 2, 1928. The first order entered in the proceeding was on January 10, 1928, when an order was entered giving leave to plaintiff to file a statement of claim in trover instanter and it was further ordered that defendant file an affidavit of merits within ten days. Plaintiff filed its statement of claim in trover on that date, wherein it sets up that on June 10, 1927, defendant purchased from plaintiff a Paige automobile, that he paid part of the purchase price and executed notes secured by chattel mortgage for the balance; that default was made in the payment of one of the notes and that plaintiff elected under the terms of the chattel mortgage to declare the balance due; that plaintiff • demanded a return of the automobile from defendant, which he maliciously refused to do, but on the contrary converted the same to his own use with the intent to cheat and defraud.

The record discloses that on February 16, 1928, on motion of plaintiff, defendant was ruled to appear instanter; that he failed to do so and was defaulted for want of appearance. The following appears in the order: “The court finds the defendant, J. F. McNamara, guilty in trover, maliciously converting property described in plaintiff’s statement of claim; plaintiff’s damages Sixteen Hundred Fifty and 00/100 Dollars ($1650.00).” Then follows the entry of judgment on the finding and awarding of execution. Afterwards a capias was issued and the defendant was taken into custody and he filed his petition in the county court under the Insolvent Debtors’ Act and asked that he be discharged. The county court heard the matter and remanded defendant to the custody of the bailiff and defendant has sued out a writ of error in this court in that case [post, p. 273], and on motion this court entered an order consolidating the causes for hearing on one set of abstracts and briefs. The abstracts and briefs have been filed in the municipal court case. No abstracts or briefs have been filed in the county court matter.

On May 29 defendant, by leave of court, filed a. motion to vacate the judgment rendered by the municipal court, and in support of it filed his affidavit, and plaintiff was ruled to answer it within ten days. Plaintiff filed its verified answer and the matter came on for hearing, and on June 15, 1928, an order was entered overruling defendant’s motion. From this order he prayed and was allowed an appeal to this court. Apparently the appeal was abandoned and this writ of error was sued out by him to reverse the judgment. Defendant, in his affidavit in support of his motion to vacate the judgment, set up that the suit when instituted by plaintiff was one of replevin, in which plaintiff alleged in its statement of claim that it was entitled to the possession of the automobile in question, and that defendant had wrongfully taken and detained the same; that suit was instituted December 20, 1928, and that no further proceedings were had in the cause until January 10, when an order was entered without notice to defendant granting leave to plaintiff to file its statement of claim in trover; that on February 16 an order was entered ruling the defendant to appear instanter and defaulting him for want of an appearance, and judgment was entered against defendant; that February 28 a writ of execution was issued and on March 24 a capias was also issued and that defendant was taken under the capias; that “no notice was ever served upon or received by him of the intention of said plaintiff to apply for the filing of the statement of claim in trover . . . nor was any notice ever served upon or received by him,-of the entry of the said judgment”; that plaintiff on February 16, 1928, filed in the cause a notice which was to the effect that defendant was notified that on January 10, 1928, plaintiff had filed its statement of claim in trover and that the cause was set for trial on February 16; that an affidavit of service was attached to this notice wherein the attorney for plaintiff swears that he mailed a copy of it to defendant, care of North American Life Insurance Co., 36 South State Street, Chicago; that the affidavit was subscribed and sworn to on February 13; that the notice was not received by defendant; that no copy of the notice was in the files of the cause and that defendant first learned that such notice was said to have been mailed when the matter came on for hearing in the county court. It was further alleged that afterwards plaintiff made a motion for leave to restore the notice, which was allowed; that by reason of the change in the cause of action from replevin to trover without his knowledge, defendant was prevented from interposing any defense to the trover action; that if he had had such notice he would have interposed as a defense that he did not have possession of the automobile when the demand was made upon him “because the same had been stolen from him as far as defendant has any knowledge, and defendant has never recovered possession thereof”; that plaintiff still had in its possession the uncanceled notes evidencing the balance of the purchase price of 'the automobile; that by reason of the foregoing, defendant “was made subject to being arrested under a capias,” and that the court was without jurisdiction to enter the judgment under the trover statement of claim.

Plaintiff filed its answer to the petition wherein it set up that January 10 was the first day after the return of the writ when the cause was on the trial call; that at that time plaintiff appeared, as did a certain counsel who claimed to represent defendant, and that since it appeared from the return of the bailiff that the automobile had not been taken on the writ, plaintiff asked leave of court to file its statement of claim in trover, which was granted, and ydfich claim was on that day filed and a rule entered on the defendant to answer it as above set forth; that this was done in the presence of counsel representing defendant at the time; that the trial judge called attention of counsel who appeared on behalf of defendant that no written appearance had been filed by defendant and directed that this be done, and thereupon the cause was continued until February 10; that on the latter date counsel for plaintiff appeared together with his witnesses ready for trial; thereupon another judge, on whose call the cause then appeared, called attention to the fact that no written appearance of the defendant had been entered and inquired of counsel for plaintiff whether a notice had been served upon defendant that a statement of claim in trover had been filed; “that the attorney for the plaintiff informed the court that no such notice had been served at said time”; the trial judge then refused to hear the evidence and continued the case until February 16, instructing counsel for plaintiff to mail a notice to defendant advising him that the statement of claim in trover had been filed as per order of the court and that the cause would be tried on February 16; that on February 13 such notice was mailed to defendant; that on February 16 counsel for plaintiff again appeared before the municipal court, no one appearing for the defendant; that the original notice that had been mailed to defendant was shown to the judge; that afterwards, upon inspection of the files by counsel on two occasions, the notice was in the files; that after-wards defendant was arrested under the capias and proceedings instituted in the county court by defendant, and on such hearing the files and proceedings of . the municipal court were offered in evidence, and that the notice above mentioned was not then in the .files; that thereupon counsel for plaintiff obtained leave of the municipal court to supply the lost notice; that defendant had no defense to the matter set up in the claim for trover; that he was guilty of converting the automobile and that “said automobile was never stolen from said defendant as is set forth upon information and belief in defendant’s petition.”

The trial judge certifies that he heard no evidence on the hearing of the motion; so it is apparent that he heard the matter of defendant’s affidavit in support of his motion and plaintiff’s sworn answer thereto.

The manner of hearing defendant’s motion to vacate the petition by the municipal court was according to the established practice. Domitski v. American Linseed Co., 221 Ill. 161; People v. Crooks, 326 Ill. 266. In the Domitski case it was held that where a motion is made to vacate a judgment entered at a prior term, for errors of fact, it is the proper practice to hear the motion upon affidavits and counter-affidavits. It is there said (p. 166): “It is also contended that the court erred in hearing the motion upon affidavits. It has always been the practice in this State to hear proceedings of this kind upon affidavits and counter-affidavits.” The defendant in his affidavit in support of his motion swears in substance that had he been notified that the case had been changed from replevin to trover he would have interposed as a defense that he did not have the automobile at the time the demand was made upon him for it, “because the same had been stolen from him as far' as defendant has any knowledge, and defendant- has never recovered possession thereof”; and further,, that the plaintiff still had in its possession defendant’s notes evidencing the balance of the purchase price. Plaintiff in its sworn answer to this petition makes affidavit to the effect that defendant had no defense, to' the trover action because he was guilty of converting the automobile and that it was not stolen from Mm, “as is set forth upon information and belief in defendant’s petition.”

Under these allegations the trial judge might well have believed that the automobile had not been stolen from the defendant, in which case of course the alleged defense would have been unavailing. In tMs connection the court might also have had in mind the fact that although defendant was served with process in the replevin suit by the bailiff of the mumcipal court on December 22,1927, which writ was returnable as stated in the writ on January 2, 1928, yet the defendant paid no attention to the matter, as he says he did not appear in court nor have anyone appear in his behalf. TMs action of defendant is not the course usually pursued by one whose reason for not surrendering the automobile was that it had been stolen from him before the writ was served. Assuming that the trial judge took these views, we tMnk the order entered by him refusing to vacate the judgment was the only one that could logically be entered. Furthermore, we are of the opinion that the contentions of defendant in this court cannot be sustained. The argument that rule 34 of the municipal court requires that a notice should have been given to him that plaintiff proposed to ask leave to file a statement of claim in trover, is unsound. That rule provides for the serving of notice on opposing counsel under certain circumstances and contains the following : “Where a party is in default for want of appearance, no notice shall be required, except upon the order of the court.” The defendant having failed to file his appearance was in default for want of appearance and therefore the rule did not apply and no notice was required. Cramer v. Illinois Commercial Men’s Ass’n, 260 Ill. 516.

The defendant contends that the filing of the statement of claim in trover on January 10 constituted a change in the cause of action; that the cause of action stated in plaintiff’s statement of claim was that the defendant had wrongfully retained possession of the automobile, while in the trover action it was charged that he had maliciously converted the automobile to his own use. In support of this the cases of Dahlin v. Maytag Co., 238 Ill. App. 85; Gilbert v. American Trust & Savings Bank, 118 Ill. App. 678, are cited. We think neither of these cases is in point. The Dahlin case was an action in assumpsit to recover damages for breach of contract; the praecipe and summons laid the damages in the sum of $5,000, and a declaration was filed where ad damnum was $2,500. Afterwards the ad damnum was raised to $5,000 by leave of court, without notice, and defendant immediately defaulted. The case was heard ex parte and the evidence indicated that the damages were more than $4,400, for which amount judgment was entered. The court held that the evidence did not sustain damages to the extent of more than $3,000. It also held that it was error to increase the ad damnum without notice to the defendant. The court in its opinion cited the Gilbert case, supra. In that case the defendant took judgment by default on a note for $2,500. Subsequently an amended declaration was filed so as to include two other notes and the ad damnum increased to $15,000. No notice of this change was given the defendant, and it was held that this was error.

The statute provides that in a replevin suit, where the property is not taken on a writ, plaintiff may declare in trover. (Cahill’s St. ch. 119, fí 18.) The defendant is presumed to know the law. He is presumed to know that when he had not entered his appearance the rule of the municipal court did not require that notice be given him. He, having been summoned, is presumed in law to be constantly in court, and is under the further presumption charged with notice that the plaintiff by leave of court may make any amendment necessary to proceed with his cause of action. Niehoff v. People, 171 Ill. 243. But he paid no attention to the proceeding until several months afterwards, when he was arrested under the capias, as was the fact in the case of Jacobson v. Ashkinaze, 249 Ill. App. 479. Under the law, when the automobile was not taken on the writ of replevin, suit was substantially at an end. Plaintiff could recover nothing in that case unless it declared in trover, as the statute gave it the right to do. The defendant is presumed to know this, and having paid no attention to the matter he cannot now be heard to complain. He certainly is guilty of such negligence that no court would be warranted in vacating the judgment rendered against him. On such a motion as the defendant made it is always a prerequisite of the granting of the motion that the defendant be free from negligence. (Jacobson case, supra.) Such is not the case here.

The Niehoff case was an action in assumpsit. Summons was served and the declaration filed contained only the common counts. Afterwards leave was given plaintiff to amend all papers and to file an additional count in debt, and this was done without notice to defendants. Some of the defendants were later defaulted. The common counts were afterwards withdrawn. Subsequently an amended declaration which amounted to an additional count was filed. The court said (p. 247): “It is contended that where an amended declaration setting up a different cause of action is filed after service of summons, and no appearance by one of the defendants, no judgment can be entered upon such declaration without a new summons or notice.” The court then refers to sections 23 and 25 of the Practice Act, Cahill’s St. eh. 110, jfí[ 23, 25, and continuing says (pp. 247, 248): “By the service of summons the plaintiff in error had notice of the pendency of the cause of action against him, and it was his duty to take notice of the law, which he is presumed to know, and under this presumption he is compelled to take notice of the fact that by leave of court the plaintiff might make any amendment necessary to sustain the cause of action for which his suit was intended to be brought. A defendant is compelled to know and take notice of the fact that the cause in which he is summoned to appear at a particular term of court may be continued from term to term, and under the law he must be in court, and no special notice is required of such continuances, or of any order made at a subsequent term to which the cause may be continued. In the absence of rules of court to that effect, no special notice is required of any amendment of any part of the record of the current term, as the presumption of law is that by reason of the service of summons the defendant is constantly present in court, and therefore has notice of all that takes place. . . . Neither is it necessary, in the absence of rules of court to that effect, for the defendant to have notice of every amendment. By the service of summons he is brought into court, where it is his duty to be and appear until the case is disposed of, and he is entitled to no further service or notice under the practice in this State. If an amendment is made during the current term and before the final judgment, it is his duty to take notice of the same without any additional notice or summons.”

We are further of the opinion that the contentions of defendant, that his motion to vacate the judgment should have been allowed because it appears from his affidavit in support of the motion that plaintiff still had in its possession the uncanceled notes of the defendant for the full amount of its claim, and that this allegation is not denied by plaintiff in its answer, cannot be sustained. Plaintiff had a right to maintain replevin although it still held the notes. Barchard v. Kohn, 157 Ill. 579. It is there held that the holder of a chattel mortgage after default has three remedies and that he may pursue, one, two or all of them concurrently — an action at law on the notes, an action to recover the mortgaged property (viz., replevin) and foreclose the mortgage. Of course there can he hut one satisfaction.

The judgment of the municipal court of Chicago is affirmed.

Affirmed.

McSurely and MATqHETT, JJ., concur.


source: Caselaw Access Project

author: Mr. Presiding Justice O’Connor

license: Public Domain

text:
    In re Petition of James F. McNamara, Plaintiff in Error, v. Bird-Sykes Company, Defendant in Error.
    Gen. No. 33,178.
    Opinion filed April 1, 1929.
    A. L. Schaf, for plaintiff in error.
    Alex Markels, for defendant in error; Seymour Lewis, of counsel.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

James F. McNamara filed his petition in the county court under the Insolvent Debtors’ Act, seeking to be released from the custody of the bailiff of the municipal court of Chicago who had taken him on a capias ad satisfaciendum issued on a judgment rendered in that court in an action of trover in favor of the Bird-Sykes Company, a corporation, and against the petitioner. The matter was heard and the court found that malice was the gist of the action, the petition was dismissed, the petitioner remanded to the custody of the bailiff and this writ of error followed.

The record of the proceedings of the municipal court case was introduced in evidence, from which it appears that plaintiff alleged in its statement of claim that McNamara “wrongfully, maliciously, tortiously and fraudulently converted the said property (an automobile) to his own use with the intent to cheat and defraud the plaintiff.” The defendant did not appear in that.action. He was defaulted. [Ante, p. 262.] The judgment order contains the following: “The court finds the defendant, J. F. McNamara, guilty in trover, maliciously converting property described in plaintiff’s statement of claim.” If malice was the gist of the trover action, plaintiff was not entitled to be released from custody, so the question before us for decision is: Does the record of the case in the municipal court disclose that malice was the gist of the action? This must be determined from the municipal court record. Jernberg v. Mix, 199 Ill. 254. As a general proposition malice is not the gist of an action in trover. Jernberg v. Mix, supra. But there is nothing to prevent malice being the gist of an action of trover if it is properly pleaded. Seney v. Knight, 292 Ill. 206. The Seneg case was a proceeding in the county court under the Insolvent Debtors’ Act similar to the one before us. The petitioner there was taken under a capias issued in a trover action in the municipal court. The court held malice was the gist of the action and that therefore the petitioner was not entitled to his discharge. The court there said (p. 208): “Appellee’s statement of claim charged the conversion to have been maliciously and fraudulently done, and appellants denied the charge. The issue thus formed was' decided adversely to appellants and it is now res judicata. The county court properly held that malice was the gist of the action in the municipal court.” On page 209 it is further said: “It is true that this proceeding is similar to the common law action of trover, but, regardless of its technical name, there is nothing to prevent malice being the gist of this action if it is properly pleaded.”

We are unable to distinguish that case from the one before us.

The judgment of the county court is affirmed.

Affirmed.

McSurelt and Hatchett, JJ., concur.


text:
    Hyman Silverman, Appellee, v. City Engineering and Construction Company et al. Walter H. Eckert, Appellant.
    Gen. No. 33,204.

      Opinion filed April 1, 1929.
    Loucks, Eckert & Peterson, for appellant; Tom Leeming, of counsel.
    Hyman Soboroff, for appellee.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

On December 8, 1923, complainant filed his bill to restrain the defendant, Eckert, from attempting to satisfy a judgment entered against complainant and another in the circuit court of Cook county, and praying that that judgment be applied towards the satisfaction of a judgment rendered in the municipal court of Chicago. After a hearing a decree was entered substantially as prayed for and the defendant, Eckert, prosecuted this appeal.

The facts about which there is substantially no dispute are that in May, 1916, the Lawndale Sash & Door Company brought an action of attachment against the City Engineering and Construction Company in the municipal court of Chicago and gave its bond with the complainant, Silverman, as surety. On the trial in the municipal court the attachment was dissolved but judgment was entered in favor of the plaintiff and against the defendant for $2,667.23. Plaintiff there made an endeavor to collect the judgment but was unable to do so. About April, 1921, the Engineering Company-brought an action in the circuit court on the attachment bond against the Lawndale Sash & Door Company and Silverman and had judgment for $1,136, and on the same day the judgment was assigned to defendant, Eckert, in payment of attorney’s fees for services rendered by him in the attachment suit. About two and one-half years afterwards execution was issued on the latter judgment and a few days thereafter Silverman filed his bill for injunction in the instant case. It further appeared that on December 6,1923, the Lawndale Sash & Door Company assigned its judgment rendered in the attachment case in the municipal court to Silver-man. The prayer of the bill was that Eckert’s judgment be set off against the judgment then held by Silverman. There is further evidence in the record tending to show that the Engineering Company was insolvent and had ceased to do business.

Defendant Eckert contends that it was improper to set off his judgment against that of complainant because his judgment was assigned to him in payment of services rendered as attorney in the attachment suit. In support of this sections 58, 59 and 60, ch. 77, Cahill’s Statutes, Brent v. Brent, 24 Ill. App. 448, and Bogar v. Walker, 89 Ill. App. 457, are cited. The sections of "the statute cited provide (sec. 58): “Executions between the same parties may be set off, one against another, if required by either party, as prescribed in the following section.” (Sec. 59): “"When one of the executions is delivered to an officer to be executed, the debtor therein may deliver his execution to the same officer, whether the second execution is directed to the same or to any other officer; and the officer shall apply it, as far as it will extend, to the satisfaction of the first execution, and the balance due on the larger execution may be collected and paid in the same manner as if there had been no set-off.” (Sec. 60): “Such set-off shall not be allowed in the following cases: . . . Fifth — Nor shall it be allowed as to so much of the first execution as is due to the attorney in that suit for his fees and disbursements therein.”

In Brent v. Brent, supra, there was an attempt to set off judgment between the same parties under the above provisions of the statute. It appeared that one of the judgments had been assigned to the attorneys in the case in payment of their services rendered in that case and it was held that the judgment could not be set off as to the attorneys’ fees. In that case the court said (p. 451): “The legislature was creating a new remedy in favor of creditors to enable them to collect their judgment by way of set-off, in a summary way. The legislature no doubt considered the fact that an attorney’s claim for fees and disbursements rendered in the very judgment that the judgment creditor would be allowed to appropriate was, as a rule, as meritorious, and in many cases more so, than the claim of the judgment creditor, who had no lien on the judgment which by the law being enacted he would be allowed, from a certain point not clearly defined by the statute. It was therefore thought just and proper, no doubt, to protect the attorney and not allow his fees to be intercepted in that way. In this case the judgment was procured through the skill and hard labor of Davidson and Norcross (plaintiff’s attorneys) which, without that or the equally hard services of some other attorney, would probably never have been recovered, and the appellee’s (plaintiff’s) right thereto never established, and the attorney’s fee as admitted was reasonably worth the entire amount.

“Would it be just and equitable to allow appellant to appropriate it to the payment of his judgment against appellee!

“And it is insisted that by virtue of the statute the attorney could not secure himself by purchasing it from his client; that by virtue of the statute all appellant’s existing judgments against appellee became a lien on it from the very moment it was rendered, they having been previously recovered.

“If this be so, which we are not called on to decide, then the attorney’s claim would be hopeless if his client was poor and he had to depend on the judgment he should procure for his fees and disbursements. This would have a tendency to prevent the poor from procuring legal assistance.” And the court there held that the judgment obtained by the defendant against his judgment creditor could not be set off against the latter to the extent of plaintiff’s attorneys’ fees. The effect of this holding is that plaintiff’s attorneys who obtained the judgment are not to be deprived of their fees by the defendant later obtaining a judgment against their client and setting it off against the first judgment. But we think that case is not in point here, for in the instant case the fees of the attorneys for the plaintiff in the first judgment are not involved; it is the fees of the defendant’s attorneys in that case, and we think it was not intended by the legislature that the fees of the attorneys on both sides of the case should be protected against the set-off mentioned in the statute. In the instant case the defendant, Eckert, is in effect contending that the set-off ought not to be allowed because the amount of the circuit court judgment represents the fees he earned as attorney in defending the attachment suit. We think it clear that the statute does not warrant such construction. Moreover, the suit in the circuit court on the attachment bond, in which judgment was rendered for $1,136 against Silverman as security, was for attorney’s fees rendered by counsel in dissolving the attachment. He could not be allowed his attorney’s fees in the action on the bond in defending the principal suit. Damron v. Sweetzer, Caldwell & Co., 16 Ill. App. 339; Charley Os-Ko-Mon v. New York Star Co., 211 Ill. App. 264. Furthermore, the issue raised on the dissolution of the attachment was but an adjunct of the municipal court case. It was not the “suit” within the meaning of the fifth paragraph of section 60 above quoted.

A further contention is made that the proof was insufficient to show the insolvency of the Engineering Company; but the evidence shows that that company was organized to engage in the construction of build-' ings and that subsequent to the rendition of the judgment in the municipal court against it, it had not engaged in business, had no office, that those who had been its officers were in other lines of business; and the testimony of attorney Eckert, who represented it in the municipal court case, indicates strongly that it was insolvent. Nor do we think the cause was barred by laches, as contended by the defendant, although the evidence shows that the judgment rendered in the circuit court on the attachment bond was an ex parte judgment. We think it would be highly inequitable to permit Eckert to satisfy his judgment against Silverman when the latter would be unable to secure satisfaction of his judgment, which is much larger, against the City Engineering and Construction Company.

The decree of the circuit court of Cook County is affirmed.

Affirmed.

McSubely and Hatchett, JJ., concur.


author: Mr. Justice McSurely

text:
    Harold W. Anderson, v. F. O. Frederickson et al. Appeal by William L. Wallen & Sons, Appellants, v. Louis J. Pelck, Receiver, Appellee.
    Gen. No. 33,198.

      Opinion filed April 1, 1929.
    Rehearing denied April 13, 1929.
    Samuel Wodika, for appellants.
    Wm. Sherman Carson, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.

This is an appeal by William. L. Wallen & Sons, a copartnership, from an order entered in a foreclosure proceeding that they pay over to the receiver the amount of $1,469.34, being rent collected by them from the premises prior to the appointment of the receiver.

The bill, filed August 23, 1928, sought to foreclose a junior mortgage executed by F. 0. Frederickson and his wife, dated August 10, 1926; receiver was appointed August 24, 1928; the receiver filed a petition September 4, claiming that Wallen & Sons had certain funds in their hands representing rents theretofore collected from the premises. Wallen & Sons filed their answer in which they represented that they were duly licensed real estate agents in Chicago; that on December 15,1926, they negotiated on behalf of the Frederick-sons a certain lease on the premises sought to be foreclosed for a period of ten years and four months at a term rental of over $114,000 ; that the commission to which they were entitled, according to the Cook County Beal Estate Board, for negotiating such lease was $1,953.59; that, as agents, they had collected the sum of $1,469.34 in rentals and had applied this against the commission due them from the Fredericksons, leaving a balance due of $484.25.

Counsel for Wallen & Sons correctly stated the general rule that the mortgagors are entitled to rents pending a foreclosure proceeding, but the receiver urges that this rule does not prevail where the rentals are specifically pledged and assigned by the trust deed as security and calls attention to the provision of the trust deed providing that the rents of the premises “shall be, and hereby are, assigned to the legal owner and holder of said note, as a part of the security therefor.” Especially does he emphasize the provision that:

“All net rentals on hand from said building in amounts of $500 or more shall be from time to time applied on account of the note secured hereby, notwithstanding the expressed maturity of the instalments thereof. Monthly statements and balances of rentals shall be delivered to the legal owner and holder of said note, who shall receive the same for the purposes aforesaid.”

The receiver says that under these provisions Wallen & Sons were merely agents to collect the rents which were trust funds for the benefit of the holder of the note and that they could not be used to satisfy any claim the agents might have against the mortgagors, Frederickson and wife.

Undoubtedly under the provisions of this trust deed a receiver would be entitled upon his appointment to take possession of the premises and collect the rents thereafter accruing and to apply the same for the bene-fit of the holder of the note; but that is quite a different situation from where the receiver, as here, seeks to appropriate the rents which had accrued and been paid prior to his appointment. The only possible claim the receiver could make to these would be under the provision above quoted to the effect that the “net rentals” of $500 or more shall be from time to time applied on account of the note and that monthly statements and balances of rentals should be delivered to the legal owner and holder of said note.

Clearly “net rentals” mean the amount of rentals left after all necessary expenses, such as taxes and repairs, have been deducted, and we can see no reason in justice why the agent handling the property should not deduct his commissions as necessary expenses. The work of the agent is not only directly for the benefit of the owner of the property but also inures to the benefit of the mortgagee in preserving the property and keeping it rented.

Furthermore, the record fails to show any demand made by the holder of the note for such rentals or the monthly statements and balances referred to in the provision under consideration. The arrangement permitting Wallen & Sons to deduct their commissions from the rentals was acquiesced in by the mortgagors, Frederiekson and wife, for nearly two years, and at no time during this period did the mortgagee make any demand for the rents under this provision of the trust deed. We must therefore conclude that the mortgagee acquiesced in this arrangement. In Jones on Mortgages, sec. 976, p. 359, it is said:

“Assignment of rents to the mortgagee which give him control of the premises, are not looked on with favor by the courts; and even when the mortgage expressly covers the land, ‘together with rents, issues and profits,’ the language will be construed as referring only to rents and profits accruing after entry by the mortgagee, in the absence of specific language, pledging the rents accrued before default while mortgagor is in possession. Even where the rents are expressly pledged, the mortgagee cannot stand by after default, and permit the mortgagor and the tenant to divide the crop according to the lease and then claim a lien on the rents.”

Citing Taylor v. Osman, 239 Ill. App. 569, where it was held, in substance, that as long as the mortgagor is allowed to remain in possession he is entitled to receive the rents and profits even if they are pledged to secure the mortgage debt; that the mortgagee is not entitled to the rents until he takes actual possession or possession is taken in his behalf by a receiver; that the mortgage does not create a lien on the rents and profits to the same extent as it creates a lien on the land, but only gives the mortgagee the right to take steps to obtain the rents and profits, but until such steps are taken the mortgagor is entitled to them. In Jones on Mortgages, sec. 670 (5th Ed.), the rule is thus stated:

“So long as the mortgagor is allowed to remain in possession he is entitled to receive profits of the mortgaged estate. His contract is to pay interest, not rent. Although the mortgagee may have the right to take possession, upon a breach of the condition, if he does not exercise that right, he cannot claim the profits. Upon a bill in equity to obtain foreclosure and sale, he may in proper cases apply for the appointment of a receiver to take for his benefit the earnings of the property. He is then confined to the rents and profits accruing during the pendency of the suit. . . . Even if the rents and profits are expressly pledged for the security of the mortgage debt, with the right in the mortgagee to take possession upon default, the mortgagee is not entitled to the rents and profits until he takes actual possession, or until possession is taken in his behalf by a receiver.”

Decisions also tending to support this rule are Cross v. Will County Nat. Bank, 177 Ill. 33; Moore v. Titman, 44 Ill. 367; Mississippi Valley & W. Ry. Co. v. United States Exp. Co., 81 Ill. 534; see also Sullivan v. Rosson, 223 N. Y. 217.

Wallen & Sons were the agents for the Fredericksons and until the mortgagee took steps under the trust deed to obtain the rents, they were answerable for them only to their principals, the mortgagors.

The order appealed from was erroneously entered and is reversed.

Beversed.

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


text:
    David T. Alexander, Appellee, v. Charles H. Stern and Faye Stern, Appellants.
    Gen. No. 33,219.
    Opinion filed April 1, 1929.
    Rehearing denied and opinion modified April 13, 1929.
    Lee D. Mathias and Clyde L. Todd, for appellants.
    No appearance for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.

By this appeal defendants seek the reversal of a judgment against them for $300 entered upon trial by the court in an action in assumpsit for attorney’s fees.

Plaintiff asserts that he rendered services in connection with the trial in Grand Rapids, Michigan, of an action in which Faye Stern, one of the defendants here, was the plaintiff, against the Whitcomb Hotel Company, in which she sought to recover damages for personal injuries sustained.

The defendants claim that plaintiff cannot recover because his services were gratuitous. The defendants are brother and sister, and the wife of plaintiff is their sister. The families were formerly on good terms with each other, and upon this relationship and intimacy defendants base their claim that the services were gratuitous. Whether this defense was established depends upon the credibility of the witnesses.

Plaintiff testified that he was an attorney, practicing in Chicago for 20 years; that he had a conversation in his office with Charles Stern regarding the case pending at Grand Rapids; that he had a number of conversations with Charles and it was agreed that plaintiff should accompany the defendants to Grand Rapids and participate in the trial; that while defendants and plaintiff were on the train and in Grand Rapids the matter was again discussed. Defendants’ Chicago attorney of record in the Michigan suit was Lee Mathias, who had employed a local attorney in Grand Rapids, a Mr. Cleland. Plaintiff testified that in the conversation with defendants they informed him that Mathias could not attend the trial, as he was ill, and that they did not know the local counsel, Mr. Cleland, and wished plaintiff to represent them in the trial; that plaintiff then said that it must be distinctly understood that he was to be paid for his services, and that Charles Stern, in the presence of his sister Faye, said: “You need not worry about what you will get paid. You will get paid. ... We don’t know who the local counsel is and haven’t much confidence in him. You go ahead and do the best you can, David, and you will get your money.” Plaintiff replied that he was not content to get promises every time he did any work for Charles Stern or the family, and Charles answered that he “would see to it that I got my money and was paid immediately, or shortly after the case was heard or tried.” Plaintiff then asked Faye Stern if she understood this, and she replied, “Anything Charlie says is all right with me.”

The substance of this conversation was denied by both defendants. They admitted numerous conversations with plaintiff about the case, but said that he was merely to testify for them as a witness and that they promised if he would do this they would pay his hotel and railroad expenses.

Plaintiff testified that at the trial he was introduced as an associate counsel with Mr. Cleland and on motion was admitted to take part in the proceedings; that he participated in the selection of the jury, examining three-fourths of them, and was present throughout the trial; that he examined witnesses and cross-examined every witness for the defense; that Cleland did not cross-examine a single witness; that the trial lasted two and a half days, and he was present every minute of the time; that he made the closing argument to the jury, speaking over an hour and a half; that he spent practically one day with Cleland in his office in preparation. He testified very positively that he did not testify as a witness in the cause.

There is no substantial denial of plaintiff’s testimony that he participated in the Michigan trial. Defendants testified that he testified as a witness and addressed the-jury for a short time,

The trial court accepted plaintiff’s version of the matter, being moved thereto not only by the probabilities of the respective stories and by the appearance of the parties while testifying, but also by the substantial testimony that plaintiff took a major part in the trial of the Michigan case. It is reasonable to conclude that such services would be rendered only in anticipation of compensation. We cannot say that the conclusion of the trial court in this respect is manifestly against the weight of the evidence.

The trial is criticized in that the plaintiff called upon one of the municipal court judges of Chicago to testify as an expert witness as to the value of plaintiff’s services. We cannot too strongly condemn the practice, if it is the practice, of calling upon judges to testify as to the value of solicitors’ services. If the record showed that the finding of the trial judge in this respect was based upon the testimony of the municipal court judge, we would not hesitate to set the judgment aside. However, there was competent and proper evidence by an attorney as to the reasonable value of the services. Furthermore, plaintiff sought to recover $450, but the court allowed him $300, and as defendants do not question this amount, the impropriety of calling upon the municipal court judge to testify as a witness will not compel a reversal.

Defendants say that it was error to admit expert testimony of Chicago attorneys as to the value of plaintiff’s services for the reason that such services were rendered in Michigan and therefore the witnesses were not qualified to testify as to such services, citing Wilson v. Hart, 129 Ill. App. 329, and Crane v. Roselle, 157 Ill. App. 595. These cases are not controlling. In the first case the services were rendered in Arizona by the plaintiff lawyer, a resident of Detroit, Michigan. The second case involved the fees to be allowed by the court in a chancery proceeding and the decision was based largely on the conclusion that the fees claimed covered an unreasonable amount of time occupied by the solicitors upon the motion to dissolve the injunction. In the instant case all the parties were residents of Chicago, the plaintiff was a practicing attorney here, and the contract of employment and for compensation was made in Chicago. We must therefore assume that the parties contemplated that the rate of compensation would be the usual rate paid for such services in Chicago.

We see no sufficient grounds for reversal, and the judgment is affirmed.

Affirmed.

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


author: Mr. Justice Matchett

text:
    Blue Island First Securities Company et al., Appellees, v. Charles W. Irrgang et al., Defendants. On Appeal of Francis J. Sullivan, Appellant.
    Gen. No. 33,194.

      Opinion filed April 1, 1929.
    Henry P. Heizer, for appellant.
    Deneen, Healy & Lee, for appellees; Robert J. Nordhold, for defendant George W. Prassas. Roy Massena, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.

The Blue Island First Securities Company filed a bill to foreclose a trust deed given to secure a note for $11,000 made by Charles W. Irrgang and Peter Befakes. After filing, the bill was amended, the amendment averring that in order to prevent the foreclosure of a first mortgage given to secure an indebtedness of $33,000 complainant had paid three instalments of interest in the sum of $990 each as the same matured. The bill made unknown owners defendants.

George W. Prassas entered his appearance and answered, averring that he was the owner of three notes dated April 17, 1926, two for the sum of $3,675 each and one for $3,650, all of which were secured under a junior trust deed by which the premises were conveyed to the Chicago Title & Trust Company. Afterwards a supplemental bill was filed which suggested the death of one of the defendants and averred that the premises had been conveyed to appellant, Francis J. Sullivan, who, with the heirs at law of the said deceased, were made defendants.

The cause was put at issue and referred to a master in chancery to take the testimony and report his conclusions of law and fact. The master reported finding the execution and delivery of the various notes and trust deeds as hereinbefore set forth and the payment by complainant of the interest on the first mortgage indebtedness and stated the account between complainant and the defendants Irrgang and Befakes. He also found that Prassas was the owner of the indebtedness secured by a junior trust deed and stated the account between him and the makers of the notes' held by him. The master recommended an allowance to Prassas of $325 as reasonable solicitor’s fees. He further found that on June 15, 1926, the premises were conveyed by quitclaim deed to defendant Francis J. Sullivan, who had entered into possession and remained in possession up to that time; that one William Williams was in actual possession as a tenant of Sullivan and that he had no other right, title or interest except as a tenant of Sullivan. The report recommended a decree according to its findings. Objections were filed to this report which were overruled by the master. The cause was heard by the chancellor upon exceptions to the master’s report and a decree was entered according to its recommendations, these exceptions having been overruled.

It is contended in behalf of the holder of the equity that the court erred in that it included in the amount found due the sums paid by complainant upon the first mortgage indebtedness, first, because it is said there was no evidence introduced tending to establish the fact that there was a first mortgage on the premises, and, secondly, because the provisions of the trust deed foreclosed contained no covenants by the grantors to pay interest on a prior incumbrance and add the same to the indebtedness secured by the trust deed.

The evidence tending to show the existence of a prior incumbrance is not contradicted. The solicitor for complainant testified without objection to the existence of a first mortgage for $33,000 and that payment by complainant of the interest on this mortgage was necessary in order to prevent a foreclosure of the mortgage. He also testified positively to the payment at different times of interest notes as they matured, and receipts were offered and received in evidence showing these payments and an assignment of an interest to the ■' amount of the payment in the first mortgage note and trust deed was also received in evidence. The trust deed owned by complainant is in evidence and states upon its face that it is a junior mortgage. We hold this evidence was prima facie sufficient to show the existence of the first mortgage and that these payments were made and were necessary. As to the contention that there is no clause in the trust deed giving complainant the authority to pay items falling due on the first mortgage, we think, assuming there is no clause in the mortgage giving such authority (as defendant contends) that on general equitable principles complainant would be subrogated to the rights of the holder of the indebtedness which it paid.

It is urged by the defendant that there could be no subrogation because complainant paid only a part of the debt, and it is said that in order that the principle of subrogation should be applied it was necessary for complainant to pay the entire first mortgage. 37 Cyc. 408, 465; Loeb v. Fleming, 15 Ill. App. 503; Black on Mortgages, sec. 313, and Sheldon on Subrogation, secs. 14, 70 and 127 are cited. The facts in evidence here, however, show a conventional subrogation by agreement between complainant and the holder of the first mortgage. In such case, a person making a partial payment may be subrogated. 2 Jones on Mortgages sec. 1132; 9 A. L. B. 1607; 37 Cyc. 465; Loeb v. Fleming, supra; Smith v. Dinsmoor, 119 Ill. 656. Moreover, Sullivan as holder of the equity has no standing to make objection. 2 Jones on Mortgages, sec. 1132; Fisher v. Columbia Building & Loan Ass’n, 59 Mo. App. 430.

It is also urged that the decree must be reversed because of the failure to make Williams a party defendant. The report of the master found that “said premises are now in the actual possession of William Williams as a tenant of said Sullivan, and he has no other right, title or interest except as a tenant of said Sullivan, ’ ’ and the decree makes the same finding. Sullivan took title by deed delivered June 15,1926, and. he testified that the lease to Williams would expire in the latter part of 1929. Sullivan filed an answer in which he did not aver the omission of any necessary party, and it is a general rule that unless such an objection is taken by demurrer, plea or answer it will receive little favor front a court of appellate jurisdiction. Pease v. Chicago Crayon Co., 235 Ill. 391; State Nat. Bank of Springfield v. United States Life Ins. Co., 238 Ill. 148; Martin v. Heymann, 251 Ill. App. 89. There is, of course, no doubt that as a general rule a tenant in possession is a necessary party to a bill praying the foreclosure of a trust deed. Gale v. Carter, 154 Ill. App. 478. In that case, however, the question was definitely raised in the trial court. When the question has not been raised in the trial court, the rule seems to be that this court will not reverse unless the situation disclosed by the record shows an absolute necessity for the reason that no effective decree can be made. Gulick v. Hamilton, 287 Ill. 367. That necessity does not appear upon this record.

It is also contended that the court erred in allowing defendant Prassas $325 for his solicitor’s fees. The trust deed in question contains a provision in and by which the grantor agrees that in case of foreclosure all expenses and disbursements paid or incurred, including reasonable solicitor’s fees, etc., shall be paid by the grantor, and further that “like expenses and disbursements occasioned by any suit or proceeding, wherein the party of the second part, or the holder or holders of any of the indebtedness secured thereby, shall be made a party thereto by reason of this deed, shall be paid by the party of the first part.” The trust deed was offered in evidence, but it was not made a part of the answer, and an examination of the answer discloses no averment of any claim whatsoever for solicitor’s fees nor is there any reference in the answer to this provision of the deed which authorizes the allowance of solicitor’s fees. This court has held in Crowe v. Kennedy, 127 Ill. App. 189, followed in Burns v. Turnes, 207 Ill. App. 181, that in such case solicitor’s fees may not be recovered. In the latter case, Soles v. Sheppard, 99 Ill. 616; Schaeppi v. Glade, 195 Ill. 62, and Gillespie v. Greene County Savings & Loan Ass’n, 95 Ill. App. 543, are cited. Shaffner v. Appleman, 170 Ill. 281, and Town v. Alexander, 185 Ill. 254, are cases holding that under certain circumstances (such as do not here appear) solicitor’s fees 'may properly be allowed to the holder of a junior incumbrance. The writer of this opinion thinks the allowance of solicitor’s fees to defendant Prassas was inadvertently made and that the decree should be modified by striking out this item. A majority of the court, however, are of the opinion that the decree should be affirmed without modification for the following reasons:

The record discloses that when proof was offered before the master on this question, counsel for defendant Sullivan said: “It is stipulated that if any fee is properly allowable to the defendant Prassas for his solicitor’s fee in this proceeding, the sum of $325 is a fair, customary and the usual amount allowed for services such as have been rendered by him here. It is, however, objected to on the ground that no solicitor’s fee is allowable in a case in which a defendant proves up a second mortgage. ’ ’ From the foregoing quotation it is clear that the objection made by counsel was that under the decision of the Supreme Court no solicitor’s fees could properly be allowed to a junior mortgagee in a foreclosure proceeding foreclosing a prior mortgage, as was the holding in Soles v. Sheppard, supra, where the provisions of the trust deed are not the same in substance as those involved in the case at bar. But in this court counsel for Sullivan for the first time takes the position that the fees were not properly allowed because there was no claim made for them in Prassas’ answer. The provision of the trust deed, which is above quoted, authorized the allowance of solicitor’s fees to Prassas in case he was made a party to any suit by reason of being the holder of any indebtedness secured by the trust deed. The master found that it was necessary for Prassas to retain the solicitor to protect his interest and that $325 was a reasonable fee for the services rendered. Counsel for the defendant Sullivan filed an objection to this as follows:

“That said Master has found that the defendant, George W. Prassas, is entitled to recover the sum of $325 for solicitor’s fees in this proceeding, and that the same is a lien on the real estate described in the bill of complaint.”

Counsel on the hearing before the master, having made the specific objection that no solicitor’s fee was allowable, “in a case in which a defendant proves up a second mortgage” and the master having properly overruled this objection, when the provision of the trust deed in question is considered, counsel ought not now be permitted to shift his position which was that the solicitor’s fees should not have been allowed because there was no express claim for the fee made in the answer. If this objection had been pointed out when the objection was made, a proper amendment to the answer could have been made and the objection obviated. A majority of the court are therefore of the opinion that in view of the record the decree ought not to be disturbed on this account.

The decree is affirmed.

Affirmed.

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


text:
    Elizabeth Jane Genslinger, Executrix of the last will and testament of Charles Henry Genslinger, Deceased, Appellee, v. New Illinois Athletic Club of Chicago, Appellant.
    Gen. No. 33,257.

      Opinion filed April 1, 1929.
    Rehearing denied April 13, 1929.
    Sims, Welch, Godman & Stransky, for appellant; Franklin J. Stransky, of counsel.
    Hume & Kennedy and Cutting, Moore & Sidley, for appellee; Charles S. Cutting and Frank L. Hume, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.

This is an appeal by the defendant from a judgment in the sum of $194,000 entered upon the verdict of a jury in favor of the plaintiff and against the defendant in an action in trover after motions for a new trial and in arrest of judgment had been overruled.

The cause comes to this court by transfer from the Supreme Court, to which defendant appealed upon the theory that certain constitutional questions were involved. Genslinger v. New Illinois Athletic Club, 332 Ill. 316. The Supreme Court held that it was without jurisdiction to hear and decide the cause, and the same was transferred pursuant to statute. The controversy between these parties had its origin in events which transpired about 25 years ago, and in one of its earlier phases was considered by this court in New Illinois Athletic Club v. Genslinger, 211 Ill. App. 220. The situation can perhaps be best described by a narration of the events as they occurred.

The defendant club is a social organization incorporated under the laws of Illinois on November 11, 1904, as a corporation not for pecuniary profit. Charles H. Genslinger was the first secretary of the club and prominently identified with its organization and promotion: On December 3, 1904, the board of directors, of the club passed a resolution providing in substance that, in consideration for his services rendered and to be rendered, he should receive 1,000 certificates of membership when the membership of the club reached 5,000, the first transfer of the membership from him to be exempt from the usual transfer fee. The resolution also provided that in addition he should be paid a commission of 6 per cent upon other new memberships up to 8,000 members. Genslinger held a life membership in the club which he retained until his death.

Controversy arose between Genslinger and the club concerning his compensation. He resigned as secretary. Afterwards he sued in the municipal court demanding damages on account of the breach of his contract of employment by the club to the amount of $200,000. The club filed a bill in equity against Gens-linger for an accounting on August 10, 1913. The bill set up the pendency of the suit in the municipal court and prayed that its further prosecution might, be enjoined. The bill set up that the suit in the municipal court was by Genslinger on his contract with the club, the terms of which were averred in the bill. Genslinger answered, admitting some of the allegations of the bill but denying material terms of the contract as averred. Replication was filed by the club on March 12, 1914. On May 5, 1916, more than three years after the filing of the original bill, the complainant filed, in lieu of its original bill, an amended and' re-engrossed bill of complaint, in which for the first time it alleged that the contract of employment between the club and Gens-linger had been canceled by mutual agreement on July 28, 1905. This amended bill also averred the existence of the suit in the municipal court and prayed that its further prosecution might be enjoined and an accounting had between the club and the defendant. Genslinger answered the bill again denying the terms of the contract as alleged and denying the cancellation of the resolution of the board of directors on July 28, 1905, as alleged. Eeplication was filed on July 1,1916, and an order was thereafter entered that the answer to the amended bill should stand as a cross-bill; that the bill of complaint should stand as the answer of complainant to the cross-bill, and that the answer should be regarded as denying all of the allegations of the cross-bill inconsistent with the bill of complaint.

The cause was referred to a master, who reported finding the facts and the law in favor of the club and against Genslinger, and later on July 14, 1917, the court, overruling exceptions of Genslinger, entered a decree finding the equities in favor of the club; that the terms of the contract were as averred by the club in its amended bill; that the resolution of the board of directors had been canceled by mutual agreement by way of compromise; that Genslinger was not entitled to further compensation other than that which had already been paid, and that his cross-bill should be dismissed for want of equity.

Genslinger appealed to this court. New Illinois Athletic Club v. Genslinger, 211 Ill. App. 220. This court, according to its usual practice in such cases, weighed the evidence and concluded that the averment of the amended bill to the effect that the original contract between the club and Genslinger had been canceled by mutual consent on July 28, 1905, was not sustained by the evidence. Ás a careful reading of the opinion will disclose, that conclusion was not based, as contended, solely upon a question of veracity between Genslinger and William Hale Thompson, who was prominently identified with the club, as defendant asserts. Concerning this conflict in the evidence, the former opinion of this court states:

“There is a direct contradiction in the evidence as to whether the defendant ever signed the cancellation agreement. He insisted that he did not; his testimony is supported by that of other witnesses and it finds strong corroboration in the circumstances of the case. It does not appear that any person saw defendant sign the cancellation agreement. Thompson says that the resolution was handed to him by the defendant with the cancellation agreement indorsed thereon. The agreement purports to be by mutual consent. It is signed by Genslinger only, and notwithstanding the fact that it relieved and, according to Thompson, was intended to relieve the complainant of large responsibility, no record was made of it by Thompson, or by any other officer of the club, and, as stated, its very existence seems to have been unknown until the master had taken much evidence in the case. Under such circumstances we find it difficult to believe that defendant is committing perjury when he says he did not sign the cancellation agreement in question.”

This court reversed the decree of the circuit court of Cook county and remanded the cause with directions to dismiss the bill of complaint for want of equity and to enter a decree in favor of the cross-complainant for the sum of $23,683.52 and directed that the club should forthwith issue and deliver, to Genslinger 1,000 fully paid-up and transferable certificates of membership in the club, these certificates to be transferable only to elected members of the club and to be exempt from payment of a transfer fee upon the first transfer. The defendant applied to the Supreme Court for a writ of certiorari, which was denied.

The club thereafter paid the $23,683.52 and delivered to Genslinger 1,000 certificates of membership in writing, numbered consecutively from 7301 to 8300. Each certificate stated that it was issued in accordance with a decree of the circuit court entered on November 12, 1918, and further stated:

“This is to Certify That Charles H. Genslinger Is a Member of the
NEW ILLINOIS ATHLETIC CLUB
of Chicago
in full and regular standing at the date hereof. The membership hereby represented is subject to dues and to all by-laws, rules and regulations.
“This membership is transferable on the books of the Corporation upon assignment and surrender of this Certificate in accordance with the provisions of the Constitution.”

The certificates were signed by the president of the club and the seal and signature of the secretary were attached. Twenty-seven of these certificates have been transferred to other parties and are not involved in this litigation. The blank assignment and blank power of attorney to transfer the same on the books of the club “according to provisions set forth in the by-laws of the club” appeared on the back of each certificate. On November 12,1918, these certificates were delivered by the club to Genslinger, and he retained possession of the same up to and including the date of his death, which occurred on September 15, 1920. At the twelfth annual meeting of the club, November 26, 1918, a motion was made for the adoption of a resolution reciting the decree of the circuit court, including the judgment against the club of $23,683.52, and providing that an assessment of $10 should be levied on each and every resident and nonresident certificate of membership in the club .which had theretofore been issued and not canceled. The resolution further provided that certificates of membership might be canceled and terminated by the board of governors for failure to pay the assessment. On the same day, by an amendment to section 16 of article 3 of the constitution, it was provided :

“Each resident member and each owner of record of each outstanding and uncanceled resident certificate of membership in this Club, shall pay annual dues of $80 upon each certificate of membership, owned by him, as shown by the records of this Club.”

Section 17 was amended so as to provide that each nonresident and owner of a nonresident .membership certificate "should pay annual dues of $30 on each nonresident membership certificate standing of record in his name. By an amendment to section 17-a, it was further provided that both resident and nonresident certificates of membership might be canceled and annulled by the board of governors for failure to pay any instalment of annual dues thereon or to pay any special assessment or assessments levied thereon, provided such default should have been posted 30 days after the same became due. Section 18 of article 3 was amended so as to provide that no person should own or have an interest in more than one membership certificate at one time, except in case of a resident member desiring to become a life member or a nonresident member desiring to become a life or resident member. To this provision by amendment the following words were added:

“And except Charles H. Gunslinger, to whom the court has ordered one thousand certificates of membership be issued.”

Genslinger took the position that this ..assessment against his certificates was illegal and refused to pay the same. On June 24, 1919, the board of governors passed a resolution which recited that Genslinger was indebted to the club for special assessments on membership certificates owned by him in the sum of $10,000 and the further sum of $1,000, war tax thereon; that he was indebted to the club in the sum of $53,333.33 for dues on said membership certificates and the further sum of $5,333.33, war tax on these dues; that his name had been posted as delinquent on the bulletin board of the club on March 6, 1919, in accordance with the bylaws ; that his default had been posted for more than 30 days' after the indebtedness became due, and it was therefore resolved that all of the membership certificates, namely, Nos. 7301 to 8300 inclusive, were forfeited and canceled on June 24, 1919. Prior to this forfeiture, on December 10, 1918, the attorneys for Genslinger notified the club that as to these certificates the assessment had not been validly made for the reason that the certificates were not delivered to Gens-linger until November 25,1918, and that as to the certificates, notice of the meeting of the members of the club held on November 26, 1918, was not mailed to Genslinger as the holder of these certificates ten days before, the date of the meeting; that the amendments alleged to have been.made to the by-laws of the club at the meeting of the members on November 26, 1918, were not validly passed as to these certificates and were not applicable to the certificates for the reason that the certificates were not delivered until November 25, 1918, and as to these certificates the proposed amendments were not posted in the clubhouse and' mailed to Genslinger as the holder of the same; further, that the club had no power to levy such assessments and fix such dues, and that these assessments and dues, even if valid, did not apply to the certificates of membership in question.

To this notice the club replied that the certificates showed that they were subject to dues; that the records of the club showed the delivery of the certificates on November 14,1918, in accordance with the by-laws, and that notices of the proposed amendments were mailed to all members of the club including Genslinger more than five days before November 26, 1918.

As already recited, Genslinger thereafter, on September 15, 1920, died. Plaintiff here, Elizabeth Jane Genslinger, his widow, was duly appointed executrix of his last will and testament. On September 24, 1921, she brought this suit in trover to recover damages for the alleged wrongful cancellation and forfeiture of 973 certificates. She filed a declaration in 14 counts setting out in detail the alleged wrongful acts of the defendant. The defendant filed pleas which averred that the action of the executrix was not commenced within one year from the death of Genslinger and that the cause of action did not survive his death. The pleas set out'in full section 19 of chapter 83 of the statute of limitations (Cahill’s St. ch. 83, 20) and section 123 of chapter 3 of the statute of administration (Cahill’s St. ch. 3, If 125). The executrix demurred to these pleas; her demurrers were overruled and she elected to stand on her demurrers. Judgment was entered against her and she perfected an appeal to this court.

The opinion of the court is reported in Genslinger v. New Illinois Athletic Club, 229 Ill. App. 428. The opinion of the court, contrary to the contentions of the club, held that the action was not barred by section 19 of the statute of limitations, and that it survived the death of Genslinger. In its opinion this court said:

• “We are of the opinion that the amended declaration alleges facts which constitute a conversion; and in our judgment the certificates of membership may be said to be personal property within the meaning of the clause of section 123 providing for the survival of actions to recover damages for the ‘conversion of personal property. ’ ”

Authorities were reviewed at length, and Barclay v. Smith, 107 Ill. 349, upon which the club now relies, was distinguished. Upon that appeal also the club questioned the sufficiency of the declaration. The opinion of this court points out that the declaration was not demurred to — hence all intendments were in favor of the pleader, and that the declaration could not be said to fail wholly and absolutely to state a cause of action and that it was not fatally defective. We said:

“Furthermore, we are of the opinion that the objection to the declaration is without merit. The objection is urged for the first time on this appeal, and, therefore, the declaration is not to be tested as if on demurrer, as counsel for appellee assume, but as if after verdict; and when so considered, the rule that the pleadings are construed most strongly against the pleader is reversed. . . . The declaration alleges that at the ammal meeting of the club, by resolution, the assessment in controversy was levied against each certificate (the resolution is set out); that at the said annual meeting the amendments in controversy to the by-laws were adopted levying certain annual dues on each certificate. (The amendments are set out.) The declaration further alleges that at the time of the annual meeting, ‘and from that time up to and including the time of the cancellation and forfeiture hereinafter mentioned, all of the by-laws of’ the club were the following: (The by-laws are then set out in full.) The declaration again avers that said alleged amendments to the bylaws were made at the annual meeting of the club, and at no other meeting. These allegations are sufficient to negative any presumption that the amendments to the by-laws were adopted by the directors of the club. If we give the averments of the declaration a liberal construction, and a fair and reasonable intendment, it cannot be presumed that the directors adopted additional by-laws which justified the cancellation and forfeiture of the certificates.”

The judgment of the trial court was reversed and the cause remanded for further proceedings consistent with the opinion. In the opinion transferring this cause to this court, the Supreme Court stated that section 19 of the statute of limitations had no application; that while actions in tort did not survive at common law, by 3 Edw. Ill, ch. 7, it was enacted that actions of trespass for injuries to personal property should survive and that executors might recover damages for such injuries; that this act became the law of this state under the statute adopting the common law and certain statutes- of the British parliament. The court further stated: “We express no opinion whether the certificates in question were or were not personal property.”

This review of the history of this litigation, together with a careful perusal of the briefs filed in behalf of the club, discloses that as to most of the questions raised the same are no longer open to discussion between the parties in this court. This situation is frankly recognized in the reply brief of the club filed in the Supreme Court, which states:

“We state frankly to the court that we are not desirous of voluntarily going to the Appellate court on this appeal, which involves the correctness of the judgment of the Appellate court in the prior appeal in the instant case. We have the greatest respect for the judges of the Appellate courts. Nevertheless, we earnestly feel that justice requires that this appeal be taken to a court which has the authority to pass on the vital constitutional questions we have here presented and at the same time to pass on questions other than constitutional. It would be strange indeed if on this appeal we would again be compelled to go to the Appellate court and ask the Appellate court to determine vital and controlling propositions which it has already passed upon and determined contrary to our contentions. It would be strange indeed also if we were to be compelled to go to that court and be faced with a certainty that as to the questions involved in the former appeal we were absolutely bound, and then possibly be compelled to resort to the uncertain remedy of certiorari to bring the second judgment of the Appellate court, as well as the first judgment of the Appellate court in the instant case, before this court for review.”

These supposed constitutional questions raised by the club’s contention that the former judgments of this court have deprived it of its property without due process of law; that section 19 of chapter 83 of the Revised Statutes, as construed in our former opinion, is unconstitutional, null and void, — are of course settled contrary to these contentions by the judgment of the Supreme Court finding that no constitutional question is in fact presented in the case. The further contentions that the nature of these certificates is such that they are without pecuniary value and that an action in trover cannot be predicated thereon; that these certificates were not assignable and were not personal property within the meaning of the statute; that the same are not goods and chattels of such kind and character as to be proper subject matter of an action in trover; that the alleged contract with Genslinger, by which it was agreed to transfer 1,000 fully paid-up certificates of membership in the club to him, was unlawful and ultra vires because it was beyond the power of the board of directors to make, — all these questions, argued with much ability and numerous citations of authority, have been passed upon by this court in litigation between these same parties, and we are, for obvious reasons, absolutely concluded by our former judgments. This court held that these 973 certificates were personal property and that an action for the conversion thereof could be maintained. We are bound by out former decisions, but if we were not so bound, and the question were yet open, we would, both on reason and authority, announce the same rule of law. To the authorities cited might well be added the opinion of Chief Justice Taft in Chicago Board of Trade v. Johnson, 264 U. S. 1.

Moreover, even if the defense of ultra vires could be considered as available on this record, it could not prevail for the reason that the contract with reference to the delivery of these certificates of membership was executed and performed prior to the beginning of this suit. Kadish v. Garden City Equitable L. & B. Ass’n, 151 Ill. 531; McNulta v. Corn Belt Bank, 164 Ill. 427; National Home Building & Loan Ass’n v. Home Sav. Bank, 181 Ill. 35; Wood v. Supreme Ruling of Fraternal Mystic Circle, 212 Ill. 532; Standard Brewery v. Creedon, 283 Ill. 474.

The only questions therefore which are now open for our consideration are those' based on alleged errors said to have taken place on the trial. It cannot be successfully contended that the evidence (much of which was presented by stipulation) fails to sustain the material averments of the declaration, and obviously the alleged errors argued which question the sufficiency of the declaration cannot now be successfully urged in this court.

It is argued that the court erred in refusing to give instructions offered by defendant on its theory of the case. These instructions are not specifically pointed out in the argument, and an examination discloses that the assignments of error relating thereto involve the determination of these same questions which have already been decided by this court.

It is urged that the trial court erred in admitting evidence over the objection of defendant. The court admitted in evidence the financial balance sheet of the defendant elnb for the year beginning October 31,1917, and ending October 31, 1918, which showed total assets of $1,305,012.17. The evidence was offered on the theory that the sum was material as tending to show the value of the club memberships. Defendant says that the value of the memberships of social clubs is not determined by the value of property belonging to the club, but rather by social and business standings of the members and similar circumstances. However this may be, we think the value of the property was certainly not wholly immaterial upon the issue as to the value of the memberships, and that it was proper to submit this evidence to the jury for such consideration and weight as the jury might give it.

It is next contended that the court erred in permitting the opinion of this court in 211 111. App. 220, to be read to the jury. The opinion was, however, made a part of the stipulation of facts, and defendant’s counsel also read to the jury such portions of this opinion as he supposed would sustain his contentions. At the time of doing so, he suggested that opposing counsel might in their turn do the same. We quote from the additional abstract of record:

“In argument of Mr. Stransky on behalf of defendant.
“When Mr. Stransky was discussing the Appellate Court opinion in New Illinois Athletic Club of Chicago v. Genslinger, 211 Ill. App. 220 to 233, the following occurred:
“Mr. Stransky: Your Honor, this opinion in this case is made a part of" this stipulation of facts, and I have a right to read it to the jury because it is a fact— because it is in the stipulation as a fact.
“The Court: Wasn’t it read in the stipulation?
“Mr. Hume: We are not objecting to your reading it. We can read it if he does.
“Mr. Stransky: Sure, you can read it.”

Defendant is hardly in a position to complain on this point.

It is urged that the court erred in admitting in evidence the minutes of the first meeting of the board of directors of the defendant club. It was contended by the defendant that at the time of making the contract with Genslinger a by-law of the club provided: “No person shall own or have any interest in more than one certificate at any one time.”

In order to meet that contention, after having laid the proper foundation plaintiff offered in evidence a copy of the by-laws (photostatic copies of which appear in the record as Exhibit No. 4). Defendant says that the exhibit was in an altered and mutilated condition and therefore should not have been admitted. The alterations, however, were wholly immaterial. The issue of ultra vires, on which this evidence was supposed to be material, had already been adjudicated, as we have indicated.

It is urged that the court erred in giving instruction No. 11, at the request of the plaintiff. That instruction is as follows:

“The jury is instructed, as a matter of law, that the defendant, New Illinois Athletic Club, had no right to levy an assessment and dues against the nine hundred seventy-three (973) certificates of membership issued by it to Charles H. Genslinger during his ownership thereof, without the consent of said Genslinger, and if you believe from the evidence that an assessment and dues were levied against said certificates by said defendant, while such certificates remained in the possession and ownership of said Genslinger, and that because such assessment and dues were not paid by said Genslinger, the 973 certificates owned by him were declared forfeited and canceled by the defendant, and. were of value, then you should find the defendant guilty, and assess the plaintiff’s damages at such sum as you believe from the evidence was a fair value, if any, of said 973 certificates, at the time they were declared forfeited and canceled by the defendant.”

This instruction seems to be in harmony with the law applicable as stated in former opinions of this court.

It is also urged that the court erred in making unwarranted remarks in the presence'of the jury. This contention, we think, may be answered by a statement of the Supreme Court in Birmingham Fire Ins. Co. v. Pulver, 126 Ill. 329.

“But every unguarded expression of the judge in stating reasons to counsel for his rulings, cannot be treated as a ground for granting a new trial. To do so would ■ be to greatly embarrass the administration of justice.”

It is urged that the damages allowed are excessive. It is apparent, that the parties agree that the jury found the value of the memberships at the time of the conversion to be $200 each. The stipulation of facts shows that resident memberships at the time of the forfeiture sold for about that amount. The stipulation also shows the net assets of the club at that time were $889,279.71, and the number of members 3,008. This would indicate a property value of $260 per membership. The certificates of Genslinger in one respect were of greater value than other resident certificates, in that according to the contract and the decree, the assignee would not be required to pay a transfer fee of $75, which was required when other certificates were transferred. The conversion of plaintiff’s property took place June 24,1919. The measure of damages in trover is the value of the property at the time of the conversion with legal interest from that date. Sturges v. Keith, 57 Ill. 451; McLean County Coal Co. v. Long, 81 Ill. 359; Janeway v. Burton, 201 Ill. 78. Apparently the jury made no allowance for interest, to which it would seem plaintiff is entitled. The judgment therefore clearly is not excessive.

The personnel of the majority of this court has changed since the filing of the opinion in New Illinois Athletic Club v. Genslinger, 211 Ill. App. 220. There are statements in the brief for defendant from which an inference might be drawn that the learned judge who wrote that opinion was hostile to one of the witnesses in the case. A slight examination of public records easily available discloses that the statements have no basis in fact and must be attributed to a lively imagination. While it is true, as defendant’s brief suggests, that what is technically known as a change of venue may not be taken by a litigant in this court, lawyers well know that a litigant may by motion suggest — although not compel — the transfer of his cause for any good reason. No such suggestion was made by the able counsel who represented defendant in this court at that time. The inference is that no fact existed upon which the motion could have been based.

For the reasons already indicated the judgment is affirmed.

Affirmed.

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


author: Mr. Justice Jett

text:
    Philip T. Lambert, Appellant, v. City Trust and Savings Bank of Kankakee, Illinois, Appellee.
    Gen. No. 7,942.

      Opinion filed March 30, 1929.
    E. A. Marcotte and John H. Beckers, for appellant.
    A. L. Granger and C. M. Granger, for appellee.
   Mr. Justice Jett

delivered the opinion of the court.

This is an action instituted by Philip T. Lambert, appellant, in the circuit court of Kankakee county, against City Trust and Savings Bank of Kankakee, Illinois, appellee, for a breach of covenant.

The declaration avers that on April 14, 1916, Théophile Dorion, being the owner of certain described premises (the description being set forth in the lease), leased the same to Alfred E. Marcotte and Philip T. Lambert, said lease to run from the 1st day of May, 1917, to the 29th day of April, 1927, at a'rental for the ten years of $15,600, the first five years to be at $125 per month, and the second five years of the term at $135 per month; that to said lease was added an ad: dendum in the words and figures as follows: “Addenda, made and forming part of this lease, which lease is dated April 14, 1916, and made between Theophile Dorion, party of the first part, and Alfred E. Marcotte and Philip T. Lambert, parties of the second part.

“It is hereby understood and agreed between lessor and lessees, that if any alterations, repairs or changes, to herein described building are wanted by lessees, lessor shall, within sixty days from date of request begin same, and complete within a reasonable time, as wanted by lessees, and said lessees shall therefor reimburse lessor by paying a reasonable yearly interest, same not to exceed six per cent on the cost of same, and to be adjusted by increasing monthly rental correspondingly from date of completion of same to end of term of this lease.” Which said addendum was signed and sealed by said parties.

It is further averred that on January 23, 1922, Alfred E. Marcotte assigned his interest in said lease to Philip T. Lambert, appellant, and on the same day Prances A. Dorion, as executrix of the will of said Theophile Dorion, who had prior thereto become deceased, consented in writing to the assignment; that on the death of Theophile Dorion, the lessor, appellee, said City Trust and Savings Bank, became the owner of said premises, for the purpose of collecting the rents and for the sale- thereof; that on May 16, 1923, appellant prepared plans for certain alterations to said building, which provided for (1) extensive excavations and alterations in the basement; (2) the putting in of a new front to the building; (3) moving the stairway on the main floor; (4) installation of steam heating plant, to heat basement as well as remainder of the building; (5) the tearing down of partitions on second floor and repairing plaster. Appellee having failed to make said alterations, this suit was brought by appellant to recover damages therefor, basing his action on alleged breach of covenant to make repairs.

To the declaration a demurrer was filed, which was by the court sustained. Appellant elected to abide by his declaration, and judgment was rendered on the demurrer. To reverse said judgment this appeal is prosecuted. A number of reasons are assigned and argued for reversal of the judgment.

It is first insisted by appellee that the declaration was defective because not verified as required by section 18 of the Practice Act, Cahill’s St. ch. 110, If 18. Section 18 of the Practice Act of 1907 specifically requires the assignee of any chose in action, not negotiable,- to allege his ownership thereof by pleading under oath. It is the contention of the appellant that section 15 of chapter 80, Revised Statutes, Cahill’s St. ch. 80, ff 15, applies, giving assignee the same remedy as lessee, wherefore no oath is required.

We are of the opinion that under said section 15 of the Landlord and Tenant Statute, Cahill’s St. ch. 80, If 15, the covenant to make repairs, if otherwise sufficient, was a covenant running with the land and that it was not necessary for the declaration to be verified.

Furthermore, even though it should be held that the Practice Act, requiring a verification, was applicable to the declaration, a demurrer would not raise the question, for it must be raised by a motion to strike for want of verification; the verification is no part of the declaration, and the demurrer simply went to the declaration.

It is next insisted by the appellee that the addendum did not constitute, in law, a covenant; it is said by appellee that the addendum, though referring to the lease, shows on its face that it was a separate document and separately executed. The addendum refers to the lease; it says “addenda, made and forming part of this lease.” There was but one lease and that was the lease to which the addendum was attached. It bears the same date as the lease, namely April 14,1916.

In discussing a somewhat kindred question in Crandall v. Sorg, 198 Ill. 48, the court at page 58, among other things, said: “The contract and lease were executed as part of the same transaction,. related to the same subject matter, and, though written at different times, are to be construed together as though they constituted but one writing. This proposition is elementary, and has been too frequently declared by this court to make necessary the citation of authorities.”

We are of the opinion that the addendum and lease, when construed together, constitute a covenant running with the land. It is also urged that the alleged covenant was personal and not binding on appellee, and that the declaration does not show such performance by the appellee as the covenant called for. The answer to this contention is that this was a covenant running with the land.

Appellee next urges that there was no consideration for the addendum. The addendum, as well as the lease, is under seal; they did therefore import a consideration. Adams v. Peabody Coal Co., 230 Ill. 469-473.

Furthermore, the addenda provides for the payment of additional rent, at the rate not to exceed 6 per cent on the cost of the contemplated repairs or improvement, which is a sufficient consideration.

It is next contended by appellee that the covenant did not run with the land for the alleged reason that the subject matter was not in esse. This contention is without merit for the reason that the subject matter would be the building and premises, covered by the lease. Appellee raises the question that the alleged covenant is void for uncertainty.

This raises the real question in the case. If the covenant is sufficiently certain and clear in its terms, then the declaration states a cause of action; if it is not, it does not state a cause of action. The contention of appellee, in relation to the question of the covenant being uncertain, finds support in the case of Joliet Bottling Co. v. Joliet Citizens’ Brewing Co., 254 Ill. 215. In said case the question before the court arose upon an executory contract, by which the bottling company agreed to bottle the beer of said brewing company and to pay the price so long as said brewing company should continue to furnish said bottling company beer of satisfactory quality in such quantities as the trade should demand, and to market the same as the product of said brewing company. In a suit on the contract, by the Joliet Bottling Company against the Joliet Citizens ’ Brewing Company, at page 218, the court among other things said: “The question presented for decision is whether the contract between appellant and appellee was valid and binding and capable of being enforced. Appellee’s contention is that it is void for want of mutuality; that the period of its duration is not fixed but is indefinite, and it was therefore terminable at the will of either of the parties. An examination of the contract satisfies us that these positions are well taken. By the contract appellee agreed to deliver beer to the appellant in sufficient quantities to supply appellant’s demand, and not to bottle or cause to be bottled, or to furnish to any other person, firm or corporation, beer for bottling so long as appellant was bottling appellee’s beer. Appellee further agreed to furnish appellant, during the first three months of its operation, such advertising novelties, not to exceed the value of $500, as the trade might demand or warrant, and thereafter, if the trade warranted, to furnish other advertising novelties as might be agreed upon.

“The only thing the contract bound appellant to do was to pay the price agreed upon and bottle the beer of appellee and to market the same as the product of appellee so long as it furnished beer satisfactory in quality and in such quantities as the trade demanded. Ño mention is made of any period of time the agreement should continue in force. No maximum or minimum quantity is stipulated in the agreement, but the quantity to be delivered is such as shall be sufficient to supply appellant’s demand. Under this provision appellant might demand a quantity so small as to make it impracticable for appellee to manufacture it, or it might demand such large quantities as to be wholly beyond the capacity of appellee. The quality of the beer was to be satisfactory to appellant. Under this provision of the agreement, appellant had the option of refusing to accept beer from appellee, at its pleasure, upon the ground that it was not satisfactory. . . . It cannot be doubted, we think, that the contract was unilateral and void for want of mutuality under repeated decisions of this and other courts. (Vogel v. Pekoc, 157 Ill. 339; Higbie v. Rust, 211 Ill. 333.) . . .

“Furthermore, no time being fixed during which the agreement should continue in force, it was terminable at the will of either party. Davis v. Fidelity Ins. Co., 208 Ill. 375; Orr v. Ward, 73 Ill. 318.”

It is urged by appellee that said alleged contract is unilateral for the reason that it provides that if any alterations, repairs or changes to the building are wanted by lessees, lessor shall, within 60 days from date of request, begin same, and complete within a reasonable time, as wanted by lessees, and said lessees shall therefor reimburse lessor by paying a reasonable yearly interest, same not to exceed 6 per cent on the cost of same, thereby leaving it entirely optional with the lessees as to whether or not they will require any repairs or alterations, a condition, the extent of which is left solely to the wishes or desires of the lessees.

Olson v. Whiffen, 175 Ill. App. 182, was a suit to recover damages for a breach of an oral contract to enter into a written contract, and it was there insisted that the contemplated contract was unilateral. In the decision of the case at page 184, the court said: ‘ ‘ The contract which the declaration says it had been agreed should be put in writing, and remain in force five years, fixed certain prices at which defendants should sell the articles named to plaintiff, but it contained no provision binding plaintiff to take any goods whatever from the defendants. He could order them if he wished or could entirely fail to order any. If the proposed contract had been signed, defendants could not compel plaintiff to buy a single article from them. To make a valid, executory contract, there must be at least two parties capable of contracting and both must be bound thereby The promise of each party must be concurrent and obligatory on both at the same time to render the promise of either binding. ... It cannot be doubted, we think, that the contemplated contract was unilateral and void for want of mutuality under the repeated decisions of the court of this and other states.” Vogel v. Pekoc, 157 Ill. 339; Higbie v. Rust, 211 Ill. 333; Joliet Bottling Co. v. Joliet Citizens’ Brewing Co., 164 Ill. App. 490; 254 Ill. 215.

Furthermore, it will be observed that the addendum discloses that whereas said lease is to run for a term of ten years there is no time fixed in which said lessees are to elect as to whether or not they will require any alterations or repairs to be made. So far as said addendum is concerned, appellees could have waited until the last year of the term, and then could have requested any sort of repairs or alterations to be made which they might desire or wish.

The averment of the declaration discloses that six years of said term had elapsed before said alterations ai}d repairs were required, and the extent of the same would indicate that some considerable length of time would be required for their completion, so that only a minor portion of said term would be in existence by the time, appellee would be required to pay additional rental, of not to.exceed 6 per cent per annum of the costs of said alteration.

We conclude, therefore, that the covenant, while ex-ecutory, is too uncertain in its terms on which to base a right of action, and that the court did not err in sustaining the demurrer.

The judgment of the circuit court of Kankakee county will therefore he affirmed.

Judgment affirmed.