author: Mr. Justice Wolee

text:
    People of the State of Illinois ex rel. Edward J. Barrett, Auditor of Public Accounts of the State of Illinois, Plaintiff, v. Rockford Trust Company, Defendant. R. J. Kelley, Appellant, v. Charles H. Albers, Receiver of Rockford Trust Company, Appellee.
    Gen. No. 9,328.

      Opinion filed August 30, 1938.
    Hyer & Gill, of Rockford, for appellant.
    David Skalitzky, of Chicago, and Welsh & Welsh, of Rockford, for appellee.
   Mr. Justice Wolee

delivered the opinion of the court.

A. J. Kelley, the appellant, filed an intervening petition in the case of People of the State of Illinois v. Rockford Trust Company. The original petition was filed against the Rockford Trust Company, a banking corporation, for the liquidation of said bank. The record contains a copy of the petition filed by the auditor of public accounts and the decree rendered by the circuit court of Winnebago county upon the hearing of the case. Plaintiff alleges in his petition that on or about August 5, 1928, he sought to purchase from the Rockford Trust Company, g’ood first mortgages on real estate, but was told by the officers of the bank that good first mortgages were not available at that time and that he should take, and did take special assessment bonds until the first mortgages could be obtained; that he later went to the bank for the purpose of purchasing first mortgages and was again informed that they had no mortgages and was pursuaded to take other special assessment bonds with the understanding that when good first mortgages were available the special assessment bonds would be returned to the bank and exchanged for good first mortgages; that the appellant frequently made demands for the exchange of these securities but the bank always stated they did not have any mortgages available; that in 1932 appellant went to the officers of the bank and threatened to sue them and compel them to give him first mortgages in exchange for his assessment bonds, but the officers pursuaded him not to bring suit and promised that they would make the exchange as the appellant had demanded. The exchange was never made and the bank was placed in the hands of a receiver in March, 1936.

The appellant offered to return all of the bonds which he had received from the Rockford Trust Company and asked that he be given a claim against the bank. The prayer of the petition is as follows: “Wherefore, petitioner prays that his claim may be allowed against the Rockford Trust Company and Charles H. Albers, as receiver thereof, for payment in the due course of the administration of said receivership, in the sum of $5,000.00 with interest thereon of 6% from the date of the respective payments to the said Rockford Trust Company, less such amount as petitioner may have received by or on account of the ownership of said securities as set forth herein.”

The receiver filed his answer, admitting many of the allegations of the petition but denying others. The last part of the answer is as follows: “Charles H. Albers further answers petitioners and says that in the event any officer or officers, employee or employees, agent or agents of the Rockford Trust Company did have any such conversation or make the promises or enter into the agreements as set forth in the petition, that they or any one of them at such time or times had no power, right, or authority so to do and bind the Rockford Trust Company thereby, and denies that the petitioner is entitled to any relief whatever. ’ ’

A hearing was had before the court on the petition and answer. The evidence sustained the allegations of the petition but the claim was disallowed. It is from this order that the appeal is prosecuted to this court.

The appellee insists that the law applicable to this case is clearly stated in the cases of Knass v. Madison & Kedzie Bank, 354 Ill. 554; and People v. First State Bank & Trust Co., 364 Ill. 294. The appellant insists that these cases are not applicable because the record in the present case does not show that the Rockford Trust Company was a banking institution and carried on a banking business. In this the appellant is in error. On page three of the record we find that the petition filed by the auditor for the liquidation of this bank sets forth that the Rockford Trust Company was incorporated under the General Banking Act and granted authority to do a general banking business, to loan money on personal or real estate, and to accept and execute personal trusts. On page 19 of the record, which is part of the decree of the court, there is a finding that the Rockford Trust Company was so organized and on page 20 we find that the court decrees that from the date of the Rockford Trust Company’s organization until the second day of March, 1936, it conducted a general banking business and accepted and executed trusts in the city of Rockford, Illinois. The circuit court of Winnebago county has expressly decreed that the Rockford Trust Company is a general banking institution and carried on a general banking business.

The appellant in his petition asked that he be given leave to return to the bank the bonds which had been delivered to him and in lieu thereof he be granted a claim for the purchase price of the bonds less certain deductions. To do this, in effect, would be a guarantee of the Rockford Trust Company to the purchaser that they would repurchase from him at the face value, the bonds which the appellant had purchased. While the facts in the present case are not exactly the same as in Knass v. Madison & Kedzie Bank, supra, or People v. First State Bank, supra, the principal is identically the same. That is, that the purchaser of the securities is attempting to return them to the bank and compel the bank, or receiver, to pay him the purchase price therefor. Section 64, ch. 38, Smith-Hurd Ill. Ann. Stats. [Ill. Rev. Stat. 1937, ch. 38, § 64; Jones Ill. Stats. Ann. 10.53], provides as follows: “It shall not he lawful for any savings bank, individual or individuals doing banking business; banking* company, or incorporated bank receiving* saving’s deposit, or deposits of trust funds, to assume the payment of, or to become liable for, or to guarantee to pay the principal of, or interest on, any bonds, notes or other evidence of indebtedness of, for, or on account of any person or persons, company or incorporation; and in any assumption, liability or guarantee, whereby such deposits or trust funds could be jeopardized or impaired shall be null and void.”

It is insisted that the answer of the receiver in the present case does not clearly set forth the defense of ultra vires. The answer denies that the officers or agents could bind the Bockford Trust Company to the contract as alleged. This clearly presented the question of whether the contract was prohibited by the statute and is not the defense as commonly raised by plea of ultra vires.

It is our conclusion that the agreement in question is in effect a guarantee to repurchase the securities sold to the appellant, but is prohibited by statute, and the court properly found that the same could not be enforced. The decree of the circuit court of Winnebago county is hereby affirmed.

Decree affirmed


source: Caselaw Access Project

author: Mr. Presiding Justice McSurely

license: Public Domain

text:
    People of the State of Illinois ex rel. James Padula et al., Appellants, v. Edward J. Hughes, Secretary of State of the State of Illinois, Appellee.
    Gen. No. 40,131.

      Opinion filed October 10, 1938.
    Joseph J. Berzin, of Chicago, for appellants.
    Otto Kerner, Attorney General, and Daniel D. Carmell, Assistant Attorney General, for appellee.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.

This case presents the question whether a labor union may be incorporated under the Not-For-Profit Act of Illinois, as amended July 9,1937. Ill. Rev. Stat. 1937, ch. 32, par. 158, sec. 29 [Jones Ill. Stats. Ann. 32.251],

The plaintiffs filed with Edward J. Hughes, secretary of State, a petition for a corporate charter under the Not-For-Profit Act, stating that the name of the proposed corporation was the Allied Federation of Labor, the object of which was “to organize and maintain a labor organization, to aid and assist workers, to bargain collectively through representatives of their own choosing and to organize concerted action for collective bargaining for the protection of the working classes, and to deal with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment or conditions of work. ’ ’ The proper fee was tendered and demand made for the issuance of a certificate of incorporation. The secretary of State declined, giving as his reason that the Not-For-Profit Act, as amended by the recent general assembly, ‘1 did not provide for the organization of labor unions. ’ ’

Plaintiffs filed in the circuit court a petition requesting that the writ of mandamus be issued to compel the secretary of State to accept the application and to issue a certificate of incorporation; upon hearing in the circuit court this was denied and the petition for the writ was dismissed, the order of dismissal specifically finding that any organization whose central purpose is that of a labor union or labor organization may not be incorporated under the Not-For-Profit Act. Plaintiffs appeal from this order.

Prior to July 9, 1937, any corporation formed for any lawful purpose could be incorporated under the Not-For-Profit Act. That act provided that ‘ ‘ Societies, corporations and associations (not for pecuniary profit) may be formed. . . . ” But effective July 9, 1937, the legislature amended this act by inserting after the words “Societies . . . (not for pecuniary profit)” the words — “for civic, educational, patriotic, agricultural, horticultural, soil, crop, livestock and poultry improvement, electrification on a co-operative basis, ownership of residential property on a co-operative basis, pleasure, social, athletic, political, benevolent, charitable, eleemosynary, research, or other similar purposes and commercial, industrial or trade associations may be organized, without pecuniary profit to the members thereof, as hereinafter provided. ’ ’

The brief for the defendant says that the question of incorporation of labor unions had been a subject of much controversy and dispute, and manifestly the legislature intended by this amendment not to permit incorporation of societies, corporations and associations not for pecuniary profit other than those enumerated in the amendment of 1937. The argument is that the terms “labor union,” “trade union” and “labor organizations” have been terms consistently used whenever courts or legislatures desired to refer to labor unions, and that by omitting such terms in the instant amendment the legislature manifestly intended to exclude such organizations from the operation of the statute.

This brief itemizes a number of .instances in the statutes dealing with labor unions. Ill. Rev. Stat. 1937, ch. 48, par. 2b; ch. 38, par. 243; ch. 48, par. 223 (c) (2) ch. 73, sec. 842 (2) (c); and ch. 10, par. 27 [Jones Ill. Stats. Ann. 45.004, 37.191, 45.134, 66.905, 109.027]. In these various acts labor organizations are invariably described either as “labor organizations” or “labor unions.” The argument is persuasive that the legislature, if it had not intended to exclude labor organizations from the Not-For-Profit Act, would have named them specifically as it did other types of organizations named in the amendment.

In the reported decisions of the courts labor organizations are uniformly referred to by the names “trade union” and “labor union.” Clifford v. Hedrick, 159 Ill. App. 63; Beesley v. Chicago Journeymen Plumbers’ Ass’n, 44 Ill. App. 278, 285; Kemp v. Division No. 241, 255 Ill. 213, 220, 221, and a long list of similar cases.

When the legislature in 1937, by amendment, withdrew from the act the words, “any lawful purpose” and in their place stated the specific ldnds of societies which might organize under the act, it clearly demonstrated that the legislature meant that it was only for such organizations stated in the amendment that incorporation would be permitted.

Plaintiffs say that the words in the amendment permitting the organization of ‘ ‘ commercial, industrial or trade associations,” include labor unions, and especially the words, “industrial or trade associations.” These words have been defined in a number of cases as relating to manufacturers. Louisville & N. R. Co. v. Fulgham, 91 Ala. 555. In People v. Kelly, 255 N. Y. 396, the word ‘ ‘ trade ’ ’ is defined as ‘ ‘ commercial enterprises,” and “industries” as that branch of trade employing capital and labor. See also Carver Mercantile Co. v. Hulme, 7 Mont. 566; Chicago, R. I. & P. Ry. Co. v. State, 83 Okla. 161, 201 Pac. 260, 264; City of Rochester v. Rochester Girls’ Home, 194 N. Y. S. 236, 237; May v. Sloan, 101 U. S. 231, 237.

In general use the words, “trade associations” convey the meaning of an association of employers in the same trade. See “How to Deal with Organized Labor” by Feller & Hurwitz, page 127. In State v. Krech, 10 Wash. 166, the question was whether the word “trade” in a penal code forbidding the opening on Sunday of any shop for the purpose of “trade” applied to a barber shop. The court held that the plain interpretation of the word was that it applied to shops, stores, etc., used for the purpose “of trade in or sale of goods” and not to a barber shop. Roach & Co. v. Harding, 348 Ill. 454, cited by plaintiffs, is not helpful. That case involved the collection of taxes levied on certain companies associated in certain agreements relating to insurance.

We do not rest -our conclusion upon dictionary definitions, but by omitting from the list of permitted organizations the simple, understandable words “labor unions,” it seems to us to have been the manifest intention of the legislature to exclude them.

It is the duty of the secretary of State to determine whether a group of persons seeking to incorporate comes within the permission of the statute, and while the ultimate decision rests with the courts in the first instance he must exercise his discretion in the matter. People ex rel. Hughes v. Universal Service, 365 Ill. 542; People v. Rose, 188 Ill. 268, 275; People v. Chicago Gas Trust Co., 130 Ill. 268.

Plaintiffs argue that they are permitted to incorporate under the words in the act — “other similar purposes. ’ ’ Labor unions are not similar to any of the things named in the amendment to the Not-For-Profit Act. It is only necessary to read the amendment to demonstrate this.

The writ of mandamus was properly denied and the order of the circuit court is affirmed.

Affirmed.

Hatchett and O’Connor, JJ., concur.


author: Mr. Presiding Justice McSurelt

text:
    Charles H. Albers, Receiver of Phillip State Bank and Trust Company, Appellant, v. Continental Illinois Bank and Trust Company et al., Appellees.
    Gen. No. 40,214.

      Opinion filed October 10, 1938.
    Rehearing denied October 24, 1938.
    Markman, Donovan & Sullivan, of Chicago, for appellant; Charles E. Lot, of Chicago, of counsel.
    John O. Rees, of Chicago, for certain appellee; Philip A. Lozowick, of Chicago, of counsel.
    Arnd, Gavin & Hanley, of Chicago, for certain other appellee; Frederick Arnd, of counsel.
   Mr. Presiding Justice McSurelt

delivered the opinion of the court.

Plaintiff, receiver of the Phillip State Bank and Trust Company, brought suit seeking damages for the conversion of securities which the Phillip bank pledged in escrow with the Continental Illinois Bank and Trust Company to secure the deposit of public funds of the defendants Joseph L. Gill, clerk of the municipal court of Chicago, and the Ridge Avenue Park District, a municipal corporation, with the Phillip bank; on motion of defendants the complaint was dismissed and judgment entered for defendants. Plaintiff appeals.

The defendant Continental, the pledge holder, did not enter its appearance or file any pleadings. By agreement of the attorneys no default was taken against defendant Continental pending final determination of this cause.

June 21, 1932, the Phillip bank was closed and a receiver appointed. On or about July 21, 1932, the Continental bank sold the pledged securities and the proceeds of the sale were disbursed by paying Gill the amount of his deposit with the Phillip bank, $10,000, and also the Park District, $1,542.40, and the surplus was paid to the receiver of the Phillip bank.

Plaintiff’s theory is that the agreements for the deposit of the Phillip bank securities with the Continental bank were ultra vires, null and void (People v. Wiersema State Bank, 361 Ill. 75), which resulted in an unlawful preference in favor of Grill and the Park District and a fraud upon the other creditors of the Phillip bank; that the act of the Continental in selling the securities and paying the proceeds of the sale to Grill and the Park District was a conversion.

As a matter of history it might be said that when these agreements were made it was generally assumed to be lawful in Illinois for a bank to pledge its assets to secure deposit accounts, and custodians of public funds especially sought depositary banks wherein their funds might be deposited with safety. April 25, 1933, in the case of Sneeden v. City of Marion, 64 F. (2d) 721, the United States Circuit Court of Appeals held that such agreements were void, and this was affirmed by the Supreme Court of the United States on February 5, 1934, in 291 U. S. 262. Our own Supreme Court held to the same effect on June 14, 1935, in the Wiersema case, above cited.

Defendants say that the Phillip bank and the defendants, with reference to the agreement for the deposit of securities, were in pari delicto; that the receiver stands in the shoes of the Phillip bank and has no greater rights than it had, to which plaintiff properly replies that the rule of in pari delicto cannot be applied to a bank receiver, an administrative officer of the State with rights, powers and duties prescribed by section 11 of the Ulinois Banking Act. Ill. Rev. Stat. 1937, ch. 16½ [Jones Ill. Stats. Ann. 10.01 et seg.]. Plaintiff cites a number of supporting cases. German-American Finance Corp. v. Merchants & Manufacturers State Bank, 177 Minn. 529, 535; Camerer v. California Sav. & Commercial Bank, 4 Cal. (2d) 159, 170, 171, and the Sneeden and Wiersema cases,

The instant agreement had been fully executed, the securities sold and the proceeds distributed nearly five years before the instant suit was commenced. Defendants invoke the general rule that where an agreement is fully performed and executed the law will refuse to disturb the transaction and will leave the parties where it found them. Fletcher, Cyclopedia Corporations, vol. 7, sec. 3497, p. 652. It is not necessary for a decision in this case to pass upon this point, but in Gen. No. 40,215, 296 Ill. App. 596, we have followed Baldwin v. Chase Nat. Bank of N. Y., 16 F. Supp. 918, 922, which holds that the complete want of power to make the pledge in the first instance carried with it an incapacity to authorize a sale by anyone for the purpose of executing the transaction.

However this may be, clearly plaintiff’s cause of action is barred by the statute of limitations, which provides that such actions shall be commenced within five years next after the cause of action accrued. Ill. Rev. Stat. 1937, ch. 83, par. 16, sec. 15 [Jones Ill. Stats. Ann. 107.275]. The securities in question to secure the Park District deposit were deposited with the Continental bank October 5, 1931; the Gill agreement was June 15, 1931. The right of action to recover these securities accrued on the dates these securities were thus wrongfully deposited. The instant suit was commenced May 9, 1937, or after the statutory period of five years had expired.

Plaintiff says that no action accrued until after a receiver had been appointed and until the receiver made a demand for the return of the securities. Under the decisions the act of the Continental bank in receiving the securities for the purposes stated was wrongful from the beginning. It is elementary that where possession of property is wrongful an action to recover the same arises at once and no demand is necessary before bringing suit. Watkins v. Madison County Trust & Deposit Co., 24 F. (2d) 370; Katt v. Chapman, 248 Ill. App. 12, 16, 17; Knapp v. Greene, 29 N. Y. S. 350; Morrison’s Admr. v. Mullin, 34 Pa. 12. The statute of limitations is a complete bar to plaintiff’s action.

We are of the opinion that the trial court properly dismissed plaintiff’s complaint and the judgment is affirmed.

Affirmed.

Matchett and O’Connor, JJ., concur.


text:
    Charles H. Albers, Receiver of Devon Trust and Savings Bank, Appellant, v. Continental Illinois Bank and Trust Company and Forest Preserve District of Cook County, Appellees.
    Gen. No 40,215.

      Opinion filed October 10, 1938.
    Rehearing denied October 24, 1938.
    Markman, Donovan & Sullivan, of Chicago, for appellant; Charles E. Loy, of Chicago, of counsel.
    George A. Basta and Herbert C. Paschen, both of Chicago, for certain appellee; Herbert C. Paschen, of counsel.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.

This case is similar to Gen. No. 40,214, 296 Ill. App. 592, in which we have this day handed down an opinion. Many of the points made appear in both cases.

By this suit plaintiff sought damages for the alleged conversion of certain bonds or securities which the Devon Trust and Savings Bank had deposited with the Continental Illinois Bank and Trust Company as collateral security for the deposits of the Forest Preserve District of Cook County, Illinois, with the Devon bank; on motion by the Forest District the complaint was dismissed and plaintiff appeals.

In this as in the companion case, the Continental for convenience did not enter its appearance or file any pleadings, and by agreement no default was taken against it pending the final determination of the case.

Devon and Continental were both Illinois banking corporations and the Forest District a municipal corporation ; Devon was closed July 18, 1932, and the plaintiff receiver appointed; at that time the Forest District had on deposit in Devon $29,623.73; the Devon prior to its closing had pledged with the Continental securities to secure the deposit of the Forest District; on or about August 15, 1932, the Continental turned over to the Forest District $9,000 of the bonds theretofore deposited with it and sold the balance of the pledged securities and paid to the Forest District the amount of its deposit less $9,000 for the bonds, and the balance of the proceeds was credited to the Devon bank; subsequently, on June 15, 1937, plaintiff brought this suit.

Although it seems to have been conceded in the other suit (and we so held) that the agreement under which the securities were pledged to secure deposits was ultra vires and void, yet in the instant case defendant Forest District asserts to the contrary, citing certain cases holding that such agreements are in accord with public policy. See In re Bank of Spencerport, 255 N. Y. S. 482, and Zollman on Banks and Banking, Vol. 5, sec. 3271, p. 265. However, our own Supreme Court has decided that such contracts are void. People v. Wiersema State Bank, 361 Ill. 75. See also City of Marion v. Sneeden, 291 U. S. 262. This question may therefore be considered as settled in this State.

Defendant says that under section 8 of the Business Corporation Act plaintiff is prohibited from asserting that the agreement is ultra vires. It may be answered briefly by noting that this act does not apply to banking corporations. Ill. Rev. Stat. 1937, ch. 32, par. 157.3 [Jones Ill. Stats. Ann. 32.003].

We have already held in Gen. No. 40,214 that plaintiff, a receiver collecting assets for the benefit of creditors, cannot be held in pari delicto as to any wrongful acts of the bank and that the defense of pari delicto is unavailing against a receiver, although it may have been available against the bank itself. German-American Finance Corp. v. Merchants & Manufacturers State Bank, 177 Minn. 529, 535; Camerer v. California Sav. & Commercial Bank, 4 Cal. (2d) 159, 170, 171; and City of Fort Worth v. McCamey, 93 F. (2d) 964, 968. In the Wiersema case, above cited, it was held that the receiver had a right to recover the pledged assets made under a pledge which was ultra vires. See also Cox v. Dewey, 282 Ill. App. 551, 554, where it was said that creditors may invoke the aid of the courts to have a conveyance made for the purpose of hindering them declared inoperative and that the defense of in pari delicto cannot avail either of the guilty parties.

Defendant in this case, as in the companion case, notes that the securities were sold by the Continental bank, and the Forest District, for whose benefit they were pledged, was paid in full and the surplus turned over to the Devon bank. A large number of cases may be cited supporting the general proposition that where agreements, although ultra vires, have been fully executed and consummated, neither party can rescind and maintain an action against the other. Genslinger v. New Illinois Athletic Club of Chicago, 252 Ill. App. 298, 310, and a number of Illinois cases there cited.

Plaintiff argues for an exception to this general rule which prevails when a receiver of a closed bank is seeking to recover assets for the benefit of creditors. Apparently supporting this view is an expression in the opinion in the Wiersema case where in speaking of a contract like the instant one, wholly void and of no legal effect, the court said: “No performance by the parties can give it validity or become the foundation of any right of action upon it. Neither party is estopped by assenting to it or by acting upon it to show that it was prohibited.” 361 Ill. 75, 94. See also City of Fort Worth v. McCamey, supra, and Redfield Independent School Dist. No. 20 v. Schnetzer, 94 F. (2d) 257. In Baldwin v. Chase Nat. Bank of N. Y., 16 Fed. Supp. 918, 922, the secretary of war, acting for the government of the Philippine Islands, opened a deposit account in the Commercial National Bank of Washington; to secure this account the bank turned over to the Bureau of Insular Affairs of the War Department certain bonds; the Commercial bank closed, the securities were sold and the proceeds deposited with the Chase National Bank to the credit of the treasurer of the Philippine Islands; Baldwin, the receiver of the Commercial bank, sued the Chase bank for the recovery of this money; the Chase bank contended that the plaintiff could not recover because the transaction was completed. The court held to the contrary, saying, among other things: “The complete want of power to make the pledge carried with it an incapacity to authorize a sale by any one for the purpose of ‘ executing ’ the transaction. Nor could the act of the Secretary of War — an act which the bank was powerless to authorize — in attempting to execute the contract by selling the securities, create in him the authority be lacked. An abortive effort to make an agreement cannot transform the attempt into an accomplished fact.”

The rule that a contract once executed may not-be rescinded by either of the parties is based upon the rule of pari delicto. In such a case the law will aid neither party to recover anything. But this rule does not obtain where the attempt to recover is made by a receiver not in pari delicto. There is point in the suggestion by plaintiff’s counsel that if there were no such exception to the general rule encouragement would be lent to unscrupulous persons to make conveyances or transfers in defraud of creditors, and the appointment of receivers in ordinary bankruptcy cases would avail them nothing.

The agreement between the Devon and Continental banks was made April 15, 1932; the first securities were deposited with the Continental bank on that date and all of them on or prior to June 10, 1932, with the exception of $3,000 Forest Preserve District bonds, which were deposited June 16, 1932. This complaint was filed June 15; 1937, or more than five years after the deposit of all the securities save the last mentioned of $3,000 which was made one day less than five years prior to the bringing of the suit. As we have held in the companion case, the statute began to run from the day of the agreement; it being wrongful at the start, the right of action at once accrued and no subsequent demand or refusal was necessary. Watkins v. Madison County Trust & Deposit Co., 24 F. (2d) 370. It follows, therefore, that the claim, except as to the $3,000 item, was barred by the statute of limitations. In all other respects the judgment order was proper.

For the reason indicated the judgment is affirmed in part and reversed in part and the cause is remanded.

Affirmed in part, reversed in part and remanded.

Hatchett and O’Cohhor, JJ., concur.


author: Mr. Justice Matchett

text:
    Frank Starczewski et al., Appellants, v. John Toman, Sheriff of Cook County, et al., Appellees.
    Gen. No. 40,142.
    Opinion filed October 10, 1938.
    Rehearing denied October 24, 1938.
    Charles J. Trainor, of Chicago, for appellants.
    George B. and Abraham H. Cohen, of Chicago, and Todd So Browning, for appellees; George B. Cohen, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.

This is an appeal by plaintiffs from a summary judgment entered on motion of defendants dismissing plaintiff’s suit with costs. The facts appear from the pleadings and the affidavit of George B. Cohen, agent and attorney for certain defendants, setting’ up facts not denied. The complaint of plaintiffs, Frank and Franciszka Starezewski, was filed November 18, 1937. John Toman, sheriff of Cook County, was named defendant. The gist of the complaint was that the sheriff by virtue of an execution issued to him sold the homestead estate of plaintiffs in certain real estate. The demand was for the value of that estate to the amount of $1,000. The sheriff answered denying liability and upon his petition additional parties in interest were made defendants. These likewise answered and filed a counterclaim. Thereafter on February 10, 1938, on their motion the order dismissing plaintiffs’ suit was entered. At the same time the additional defendants were given leave to withdraw their counterclaim.

The facts appear to be as follows. Katarzena Matuszewski on September 15, 1931, recovered a judgment against plaintiffs in the circuit court of Cook county for the sum of $2,600.95. The judgment being unsatisfied on February 27, 1936, a pluries execution issued to Toman as sheriff, under which he levied on the premises owned by the judgment debtors. The lands of the plaintiffs on which the execution was levied consisted of three distinct and separate pieces or parcels. The first mentioned in the complaint was known as 11945 Indiana avenue, the second as 12238 Normal avenue and the third was a storage lot at the corner of 120th street and Calumet avenue, all in Chicago, Cook county, Illinois. The premises known as 11945 Indiana avenue were improved, and the plaintiffs, husband and wife, for more than five years had resided thereon, and by virtue of the statute had an estate of homestead. It is the claim of plaintiffs that because of the sale by the sheriff of this homestead he is obligated to pay to them the value thereof as fixed by the statute, namely, $1,000. On the other hand, defendants contend that the sheriff did not sell the homestead at all, that plaintiffs still own and occupy it, and that the sheriff has no money belonging to plaintiffs and plaintiffs no cause of action. It appears from the return of the sheriff on the execution which is attached to the affidavit for judgment, that on March 4, 1936, the sheriff levied on all the right, title and interest of defendants in these tracts and parcels of land; that parcel number one being a homestead he summoned three householders as commissioners to appraise the premises in accordance with the statute; that the commissioners appraised the premises and reported that in their opinion they were worth more than $1,000, and could not be divided without injury to the interests of the parties; that thereupon, on May 20, 1936, the sheriff served a copy of the report of the appraisers upon plaintiffs, together with a notice as required by the statute; that after the expiration of 60 days, namely, on May 20, 1936, the amount due on the execution not having been paid to him, the sheriff on August 18th, pursuant to advertisement, sold the property levied on for $1,600 to Ignatz Recki, as executor of the estate of Katarzena Matuszewski, he being the highest and best bidder therefor, subject, however, to defendants ’ right of homestead in parcel number 1; that he first offered the premises in separate tracts or lots, and receiving no bid offered any two or more of the tracts or lots less than the whole, and no bid having been made for said any two or more, the sheriff then offered the premises together, whereupon Recki, as executor, mailing the highest bid the premises were sold to him. The return shows that after deducting costs and expenses, the sheriff paid to attorney for the judgment creditors the balance of $1,531.75 and returned the execution satisfied to that amount and unsatisfied to the balance; that he thereupon issued a certificate of sale to the purchaser and recorded a duplicate of said certificate in the recorder’s office of Cook county. The certificate stated the purchaser would be entitled to a deed to the premises sold on November 19, 1937, unless the same should be redeemed as provided by law.

November 18, 1937, Joseph Blaszynski and Helen Blaszynski, his wife, recovered a judgment by confession against the Starczewskis. Helen Blaszynski is the daughter of plaintiffs. Under this judgment the Blaszynskis redeemed from the sale made to Ignatz Recki, as executor. A sheriff’s certificate of redemption was issued to them on the same day, and on that day they paid to the sheriff $1,720, the amount for which the premises were sold with interest. In the meantime, by order of the probate court, Ignatz Recki, as executor, had assigned the certificate of sale to the additional defendants, Mieczyslaw Matuszewski, Bruno Matuszewsld and Gertrude- Matuszewski Rogowski (they being the heirs at law of Katarzena Matuszewski), and they became the absolute owners of said certificate for a valuable consideration in order to close the estate of Katarzena Matuszewski.

Plaintiffs contend that on the undisputed facts the sheriff is liable to them for $1,000; they say his return on the execution and his statement in the certificate of sale are to the effect that he sold all the right, title and interest of the judgment debtor in the premises; they say the fact that these state that the sale was made subject to right of homestead of plaintiffs has no legal significance, and if they mean anything mean only that the premises sold included an estate of homestead which entitled plaintiffs to receive $1,000 out of the proceeds of the same.

The statute creating the estate of homestead is found in Ill. Rev. Stat. 1937, ch. 52, secs. 1-12, pp. 1636-37 [Jones Ill. Stats. Ann. 107.124-107.135]. The statute provides in cases where an execution issues against the debtor for the appointment of commissioners to set aside the homestead, and if in their opinion that cannot be done to appraise the value of the premises. If the appraisement shows the premises to have a value of more than $1,000 the statute directs the sheriff shall notify the debtor that unless he pays the surplus within 60 days the premises will be sold. If the surplus is not paid within that time section 12 provides the officer may advertise and sell the premises and out of the proceeds pay to the execution debtor the sum of $1,000.

The plaintiffs say the sheriff has no rig’ht or power to proceed otherwise than as directed by the statute, and cite Hartwell v. McDonald, 69 Ill. 293; Hartman v. Schultz, 101 Ill. 437, and Johnson v. Muntz, 364 Ill. 482, to this effect, and also cite Helm v. Kaddatz, 107 Ill. App. 413, and Roberson v. Tippie, 209 Ill. 38, which point out that the present (unlike former exemption statutes which created only a rig’ht of occupancy) now vest an estate of homestead in the debtor owner.

These contentions would be plausible if, as a matter of fact, the provisions of the statute as to the manner of proceeding in case of execution were mandatory. The courts, however, have held these provisions are not mandatory but only declaratory. Leupold v. Krause, 95 Ill. 440. There Krause obtained a judgment against Leupold and caused it to be levied upon certain land. The land was sold by the sheriff to Krause, who received a certificate and upon the expiration of the period of redemption a deed. The owners had made certain conveyances of the premises which Krause claimed to be fraudulent. He filed a bill to set the same aside on that ground, making the judgment debtor and the grantees parties thereto. The defense set up was that the conveyances were not fraudulent, and further, that the sale was void because the debtors occupied the premises as a homestead. The complainant secured a decree which upon appeal to the Supreme Court was reversed. The opinion by Mr. Justice Dickey reviews the cases, including Hartwell v. McDonald (in which there are some expressions seemingly inconsistent with the general rule), which the opinion states is reasonable and has become a rule of property. The opinion continues: “A careful examination of the language of the statute will show that it prohibits the sale of the homestead only to the extent of the $1,000 in value, and contains no prohibition of the sale of the surplus over and above that amount. It is the $1,000 in value of which the sale is forbidden, and not the surplus in premises occupied by the debtor. The provisions as to the manner in which an execution sale is to be made are simply directory and not prohibitory. It is not declared that a sale without setting off the homestead shall be null and void. Undoubtedly the debtor may insist upon the statute being complied with, and may in apt time no doubt apply to a court of equity to set aside the sale whenever a non-compliance with the statute has injuriously affected him. Manifestly this provision is principally for the benefit of the judgment creditor, for, upon a sale being made with the homestead set off, the purchaser becomes entitled to the possession of the portion sold immediately upon the execution of the sheriff’s deed, whereas, if a sale be made without regard to those provisions, the purchaser can obtain no title nor any right to possession until he obtains a decree in equity setting* off the debtor’s homestead, and he loses all rents and profits accruing prior to the entry of such decree. Although a sale under "execution, without regard being had to the provisions of the statute in question, may pass an equitable title to the surplus over and above the $1,000 in value, and entitle the holder of such title to maintain a bill in equity to have the debtor’s homestead set off, and to have commissioners appointed to make the division, and perhaps for other equitable relief, yet this bill seeks no such relief.” The decree was reversed. This case is adhered to and the Hartwell case distinguished in Krupp v. Brand, 200 Ill. 403.

The sum and substance of all the cases seems to be that the sale of a homestead worth less than $1,000 is absolutely null and void; that the directions of the statute as to procedure in other cases are directory and not mandatory; that while the sale of the premises subject to the homestead where the value of the same is more than $1,000 will not vest a legal title in the purchaser, it does give an equitable right which will be recognized in equity upon the payment to the owner of the value of the estate of homestead to the amount fixed by the statute.

Here, obviously, the redeeming creditors stand in the shoes of the purchaser at the first sale and take his right, title and interest and nothing more. Their rights and the rights of the plaintiffs can be adjusted only in a proceeding in equity. The purchaser could not maintain a suit at law in ejectment or forcible detainer against plaintiffs. Plaintiffs cannot maintain this suit at law against the sheriff, to recover a part of the proceeds of the sale. Plaintiffs have not been deprived of their homestead; they still occupy it and still have title to it. If we assume the sale was good it was made subject to their homestead rights. If the sale was void their rights have not been affected in any way. They cannot recover the price of their homestead and hold and occupy it at the same time. The law favors the holders of a homestead but not to the extent of requiring it to be paid for when it has not been taken. This appears from the cases already cited • and other cases to the same effect are Diets v. Hagler, 309 Ill. 381; Van Winkle v. Weston, 276 Ill. App. 66; Voss v. Rezgis, 343 Ill. 451. Johnson v. Muntz, 364 Ill. 482, was a proceeding in equity and is not inconsistent with the views herein expressed.

The judgment of the trial court is affirmed.

Affirmed.

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


text:
    People of the State of Illinois, Defendant in Error, v. Kent Tomlinson, Plaintiff in Error.
    Gen. No. 40,220.
    Opinion filed October 10, 1938.
    Bernard M. Finnegan, of Chicago, for plaintiff in error.
    Thomas J. Courtney, State’s Attorney, for defendant in error; Edward E. Wilson, John T. Gallagher,

      Melvin S. Rembe and Blair L. Varnes, Assistant State’s Attorneys, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.

Tomlinson, defendant in the trial court, on March 23, 1938, in response to a summons appeared in the municipal court of Chicago to answer an information which charged him with a violation of the traffic code of the city of Chicago. The case was continued from time to time and the record fails to disclose what disposition was finally made of it.

May 3, 1938, the court on its own motion found that defendant on April 7 prior thereto, was guilty of a direct contempt of court, and sentenced him to the county jail for a term of 10 days. He seeks by this writ to reverse that order.

So far as the record discloses no evidence was taken and facts upon which the finding was entered are recited in the order of the court, which is as follows:

“Defendant present in Open Court, Finding defendant guilty of contempt of Court in Branch No. 43, 1121 South State, Chicago, Illinois, because on April 7, 1938, while court was in open session in the trial of case No. 1558641, entitled People of the State of Illinois versus Kent Tomlinson, a case then pending and undetermined, said defendant did wilfully and knowingly while under oath to speak the truth gave false and undetermined testimony in a matter material to the issue in said cause in that said defendant when asked by the court whether he was driving the car at the time of said violation mentioned in said case defendant said he was not driving the car, well knowing at the time that said testimony was false and untrue; all of which conduct of said defendant did then and there tend to impede the proceeding and lessen the dignity of the court.”

The contempt of which defendant was found guilty was based upon conduct of the defendant in open court, and conduct which necessarily was in the actual presence of the judge of the court and of which the court had personal knowledge, as distinguished from a contempt that occurs at a place set apart for the use of a constituent part of the court of which the judge of the court would not necessarily have personal knowledge. In re Estate of Kelly, 365 Ill. 174.

The sum and substance of the finding is that Tomlinson gave false testimony in reply to a question of the court. Contempts of this kind have been considered by this court in People v. Stone, 181 Ill. App. 475, and People v. LaScola, 282 Ill. App. 328. These cases were also considered in People v. Berof, 290 Ill. App. 1. In the Stone case the finding in substance was that Stone had testified falsely to the effect that he had paid one Greenfield a certain sum of money at a certain time and place. The findings set forth in the order did not show that Stone made any admission of having given false testimony (which is also the case here), nor were any facts set up from which it would appear that the trial judge was in a position to know whether the testimony given was true or false. The opinion of this court by Mr. Justice Barnes stated:

“The substance of the testimony of Stone alleged to be false in the case on trial was that he had paid Greenfield a certain sum of money at a certain time and place. Presumably the court was not there nor in a position to know the actual fact. All it could know in the nature of things was that Stone gave one version of the matter under oath and Greenfield another. It might form a correct conclusion from the entire evidence as to which was telling the truth, but it would not know judicially which had falsified. If false swearing in the presence of the court constitutes direct contempt, then judicial knowledge of its falsity is, in our opinion, indispensable to the right of the court to exercise authority to commit therefor, and there is nothing in the record to disclose that the court knew or could know that the testimony was false.”

The judgment was reversed.

In the LaScola case the defendant was held guilty of a contempt of court in that he falsely testified in a case where one Rogulich was charged with having committed a robbery; that Rogulich was employed by him and was working for him in his store, and procured another witness to testify falsely that he (the witness) saw the accused at the store at the time of the robbery. The opinion of the court, by Justice O’Connor, said:

“We think it obvious that it was not within the personal knowledge of the court, as the order recites, that LaScola had testified falsely and that Grusich had been induced to give false testimony on the trial of the case against Rogulich at the solicitation of LaScola. The court was apprised of these matters by the testimony of LaScola and Grusich. This demonstrates that the contempt was not of such a character — a direct contempt — -as would warrant the court in summarily punishing LaScola.
“Moreover, we are further of opinion that while the court might have been satisfied that the testimony given by LaScola on the trial of the criminal case against Rogulich was false, yet the order discloses that the court had at least some doubt on the matter because LaScola was called, was sworn and testified, on the inquiry instituted by the court as above stated. ”

The opinion quotes from the opinion in the Stone case, and continues:

“In the instant case we think it apparent that the court did not know of its own knowledge that LaScola and Grusich had given false testimony in the criminal case because the court instituted a separate inquiry, called these two persons, had them sworn and examined, and from their testimony found LaScola guilty of contempt. And while the order finds — and the finding must be taken as true — that LaScola admitted he had given false testimony in the trial of the criminal case, yet it is clear that the court did not know, if such were the fact, that LaScola had suborned Grusich to testify falsely until Grusich was sworn and testified on the inquiry. When a court is said to know of its own knowledge that certain matters and things have taken place in open court before him, no testimony is required or permitted in a proceeding for direct contempt.”

The judgment was reversed.

These cases are applicable here and in conformity with the law as therein stated this judgment must be reversed.

Reversed.

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


author: Mr. Justice O’Connor

text:
    Maurice M. Kraft, Appellee, v. Garfield Park Community Hospital, Appellant.
    Gen. No. 39,784.

      Opinion filed October 10, 1938.
    Arthur A. Basse and Bippus, Bose; Burt & Pierce, both of Chicago, for appellant.
    David H. Kraft and David K. Tone, both of Chicago, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.

Plaintiff brought an action against defendant to recover the face value of four real estate bonds aggregating $1,700 and interest thereon. There was a trial, a finding and judgment in plaintiff’s favor for $1,835, and defendant appeals.

The record discloses that April 1, 1926, the Garfield Park Hospital, a corporation organized for profit, was operating a hospital in Chicago and on that day issued its bonds for $350,000 secured by a trust deed on the hospital. It continued to operate the hospital until some time in April, 1932, when a new corporation, not for profit, was organized, viz., the Garfield Park Community Hospital, a corporation, the defendant.

The purpose of this hospital was to take over and continue to operate the hospital. Shortly thereafter the real estate and other assets were conveyed by the old to the new corporation by proper deed of conveyance and bill of sale. May 1, 1932, the new hospital executed its real estate mortgage bonds aggregating $485,600, secured by a trust deed on the hospital, which was a junior lien. About $265,000 of the first issue of bonds was still due and unpaid. The bonds issued by the new corporation were delivered to the stockholders of the first corporation — dollar for dollar; bonds of the par value were delivered to each stockholder equal to the face value of his stock. Substantially the same parties continued to operate the hospital under the new corporation as under the old, and the business was conducted in the same manner. The new corporation paid interest on the first bond issue until October, 1933, and it continued to pay such interest but at a lower rate until about April, 1936. After that time no further payment was made to plaintiff and the principal of the first bond issue then became due. Upon the maturity of plaintiff’s bonds he brought suit directly against the new corporation on the theory that the new corporation was organized to continue the business of the old corporation and succeeded to all its assets, and that it assumed all debts of the old corporation. May 3, 1932, a few days after the new corporation was organized, the old corporation voluntarily dissolved. The necessary papers were filed with the Secretary of State, in which the president and secretary of the old corporation swore there were no debts or liabilities of the old corporation, and no assets.

The evidence is to the effect that the old corporation conducted the hospital as a charitable institution, receiving and treating patients whether they were able to pay or not, and this same method was continued by the new corporation except that it treated more charity patients.

Counsel for defendant in their brief say, “After the Garfield Park Community Hospital [the new hospital] took over the hospital more charity patients were admitted than before. The County Court of Cook county, by an order entered . . . found that for the year 1933 the land occupied by the hospital was the property of a beneficent and charitable organization, actually and exclusively used for charitable and beneficent purposes, and ordered that judgment be refused against said property” for non-payment of taxes. Apparently the purpose of organizing the new non-profit corporation in lieu of the old- corporation which was organized for profit, was to exempt the property from taxes on the ground that the hospital would be operated as a public charity. People v. Ravenswood Hospital, 238 Ill. 137.

Defendant contends that it did not assume the indebtedness evidenced by the first mortgage bond and therefore plaintiff could not maintain his suit against it; that the only reference to the first bond issue in the deed conveying the property to the new corporation was that the conveyance was made “subject to the general taxes for the year 1928 and subsequent years and to the lien of the trust deed securing the balance of approximately $265,000”; that in addition to conveying the real estate to the new corporation, the old corporation also transferred, by bill of sale to the new corporation, all personal property located in the hospital, including books of account, bills receivable, promissory notes and other evidences of an indebtedness; and that the only indebtedness assumed by the new hospital was the current accounts of the old hospital amounting to approximately $5,000. In support of this counsel referred to the resolution shown by the minutes of the old corporation of April 22, 1932, in which the president and secretary of the old corporation were authorized to execute a warranty deed conveying the premises to the new corporation and further authorized the delivery of the deed, in consideration of junior mortgage bonds of the new corporation amounting to $485,600, “and the assumption of the Garfield Park Community Hospital of current debts amounting to approximately $5,000.”

Counsel for plaintiff, in support of their contention that the new hospital corporation assumed the debts of the old corporation, including the $265,000 of the bond issue, pointed to section 5 of the By-Laws of the new corporation. That section is as follows: “Until the payment of all indebtedness proposed to be assumed and undertaken by this corporation and secured by a trust deed on property which it proposes to acquire, the trustee named in such trust deed shall have the right to elect or select a majority of such Board of Directors”; and counsel say, “The obligation of the ‘old’ hospital on its outstanding series of first mortgage bonds, is the only indebtedness to which said ‘ByLaw’ could have reasonably referred. Otherwise, the verb ‘secured’ (past tense) would not have been used in the ‘By-Law’ but the words ‘to be secured’ (denoting the future tense) would instead have been employed, since the series of junior bonds were not executed at the time the ‘By-Law’ was adopted (Abst. 34.) Also, the ‘Minutes’ show that the ‘Directors and Officers’ of the ‘old’ corporation continued to retain the same positions with defendant without the ‘intervening-,’ ‘outside’ selection by the Trustee vaguely designated in the ‘By-Law.’ ” In reply to this contention counsel for defendant say, “This section of the By-Latvs is not subject to such misconstruction. It clearly relates to the issuance of $485,600 principal amount of junior mortgage bonds to be secured by a trust deed conveying the premises in question to the Pioneer Trust and Savings Bank as trustee. The right to select a majority of the board of directors by the trustee was granted to the trustee in the trust deed securing the junior bond issue.”

We are unable to agree with the contention made by defendant. The By-Law provides, “Until the payment of all indebtedness proposed to be assumed and undertaken by this corporation” — the new corporation. Obviously the new corporation which was issuing the $485,600 bonds would not be assuming the payment of these bonds; that was its direct obligation. The word “assumed” in the By-Law clearly does not apply to the new bond issue, but refers to the old bond issue.

But plaintiff further contends that whether there was a direct assumption by the new corporation to pay the first bond issue, defendant is liable by operation of law. We think this contention must be sustained. The same persons who were interested in the old corporation, which was organized for profit, caused the new corporation to be organized not for profit. The old corporation had been operating a hospital for a number of years and owned the property, all of which was transferred to the new corporation. The same officers who operated the old hospital were the officers of and continued to operate the hospital. The new corporation might be said simply to have put on a new coat. Andres v. Morgan, 62 Ohio St. 236; Acorn Lumber Co. v. Friedlander Box Co., 240 Ill. App. 425; Chicago Smelting & Refining Corp. v. Sullivan, 246 Ill. App. 538 (same case, 252 Ill. App. 259). Certiorari was denied by the Supreme Court June 26, 1929, from the judgment entered in the last mentioned case. McCarthy v. Liberty Nat. Bank, 175 Pac. 940; Collinsville Nat. Bank v. Esau, 176 Pac. 514.

In the Sullivan case (246 Ill. App. 538) we said: “We are asked to hold that, where a corporation is organized to take over and continue the business of a firm and all of the firm’s assets are transferred to it in exchange for its stock, the debts and obligations of the partnership become the debts and obligations of the corporation without any express agreement to assume the liability. We recognize a conflict of decisions on this point. So far as we are informed it has never been directly decided by our Supreme Court. We are disposed to be in accord with the conclusion expressed in the opinion of another division of this court in Acorn Lumber Co. v. Friedlander Box Co., 240 Ill. App. 425, and to hold that, where the former partners are the only members of the corporation and the assets of the partnership have been transferred to the corporation for the continuance of the business in exchange for stock and without other consideration, and where, to use the apt words in the opinion in Andres v. Morgan, 62 Ohio St., 236, ‘the members of the partnership may be said to have simply put on a new coat, ’ the corporation thereby impliedly assumes the partnership debts and is prima facie liable therefor.”

In the McCarthy case (175 Pac. 940) the Supreme Court of Oklahoma held that where a State bank is reincorporated as a national bank under a new name, and the personnel, management and business remain the same, the' new bank is liable for usury charged and collected by the old bank. The court there said: “Nor can the bank escape liability because it changed its name from Tulsa State Bank to the Liberty National Bank, and abandoned its state charter and continued business under a federal.charter. The uncontradicted evidence is that it was composed of the same individuals, same officers, same management, and continuing the same business at the same place. The law seems to be well settled that, where a corporation is the mere incarnation of a prior corporation, the new corporation.must answer for all the obligations of the old.” And the same court held in the Esau case (176 Pac. 514) that where the officers of an existing corporation organize a new corporation, and the stock in the new corporation is exchanged for stock in the old without the payment of any other consideration therefor, and the officers of the old become the officers of the new corporation, which continues to transact business in the same place as the old, and the new acquires all the property and assets of the old corporation, that such transaction does not amount to a sale but a merger of the two corporations.

Under the undisputed facts as disclosed by the evidence, and under the law, we are of opinion that the new corporation is liable to the plaintiff in the instant case. We are further of opinion that the contention of defendant that “plaintiff did not plead its theory that the defendant corporation, in legal effect, was a mere continuation of the Garfield Park Hospital, Inc., obligor upon the bonds, and, therefore, was not entitled to recover upon that theory” cannot be sustained. Plaintiff alleged that the new corporation was organized to continue the business of the old corporation and to succeed to all the property and business and to assume all the outstanding debts and liabilities of the old corporation. We think this allegation was clearly sufficient to inform defendant of the nature of plaintiff’s claim and that defendant was in no way taken by surprise, and this is a sufficient pleading under the rules of pleading applicable to the municipal court of Chicago. Anderson v. Biesman & Carrick Co., 287 Ill. App. 507.

We are also of opinion that the action cannot be maintained on the theory asserted by plaintiff — that the sale or transfer of the personal property by the old to the new corporation falls within the provision of the Bulk Sales Act (pars. 78 to 80a, ch. 121½, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 121.01-121.04]), and that plaintiff can sue the new corporation. We think that plaintiff cannot, under the act, maintain a suit directly against defendant because section 4 of the Act which gave such right was not effective until July, 1933, which was more than a year after the transfer of the assets from the old to the new hospital, and was not solely remedial.

The judgment of the municipal court of Chicago is affirmed.

Judgment affirmed.

McStjrely, P. J., and Hatchett, J., concur.


author: Mr. Justice O’Cohhor

text:
    Lebow and Shell Corporation, Appellant, v. Albin Medella, Appellee.
    Gen. No. 40,041.
    McStjkely, P. J., dissenting.

      Opinion filed October 10, 1938.
    Rehearing denied October 24, 1938.
    Victor Scott, of Chicago, for appellant.
    Julius L. Kabaker, of Chicago, for appellee.
   Mr. Justice O’Cohhor

delivered the opinion of the court.

Plaintiff brought an action against defendant to recover the balance of $758 plus $75.80 attorney’s fees it claimed to be due on the purchase price of secondhand fixtures sold and installed by plaintiff for the use of defendant’s tenant in running a butcher shop. Defendant denied liability on the ground that the fixtures, as partially installed, could not be used; that defendant requested plaintiff to remove them, and upon its failure to do so defendant had them removed and stored in a warehouse for plaintiff. Defendant also claimed damages and the return of $200 he had paid on account. There was a jury trial finding the issues for defendant, assessing his damages at $200, and plaintiff appeals.

The record discloses that plaintiff was engaged in selling and installing secondhand fixtures for use in butcher shops; whether it also sold new fixtures does not clearly appear. A few days before February 2, 1937, defendant called at plaintiff’s place of business to purchase fixtures to be installed in a building belonging to defendant which he had rented to Frank Burch and wife to be used by them as a butcher shop. The evidence shows that two of plaintiff’s representatives with defendant and his tenant Burch selected each of the fixtures required by defendant. The fixtures were secondhand and were in plaintiff’s place of business at 1141 West Madison street, Chicago. The fixtures selected were, “1 used cereal counter and platters 1 dozen, 1 used 12x9 cooler & partition . . . 2 used counters ... 1 used White porcelain ice machine in running condition to maintain cold temperature (Baker); 2 used scales (Dayton); 1 used combination meat chopper and coffee mill — Steiner; 1 used Slicer — Globe—1 used Cash Register — National —-Ticket M; 1 used staffer and 2 used Blocks in good condition.”

Two witnesses for plaintiff testified that as each fixture was selected and agreed upon the price was given to defendant, and that afterward an itemization of the several articles with the prices, was given to defendant. The items totalled $1,170 and $113 for interest for 24 months, totalling $1,283; $200 was paid in cash and the balance, $1,083, payable in 24 consecutive instalments.

Defendant testified that he and his tenant Burch, together with two of plaintiff’s representatives, selected the several fixtures but that he was not given the cost of each, only the total. Burch was not called. February 2, 1937, a day or two after the articles were selected, a representative of plaintiff called on defendant at his place of business and a written document, designated as a contract by plaintiff, for the sale of the items was signed by both parties. It was agreed that the fixtures were not to be installed until about a month afterward, and this was done. Apparently plaintiff installed the fixtures by one of its contractors, although this does not clearly appear from the evidence. The ice machine, the price of which was $200, was not satisfactory. Plaintiff removed the machine and afterward supplied another, and the evidence is to the effect that the latter was not connected up, so that it could be used, because defendant thought he would purchase a new ice machine. Plaintiff then took this second machine away, and apparently the parties never reached an agreement as to the purchase and installation of a new machine. About two months thereafter, May 24, 1937, defendant wrote plaintiff a letter, which is in evidence, saying that he had written a letter to plaintiff April 26, canceling the contract and that he had then demanded the removal of the fixtures; that unless this was done defendant would remove the fixtures at plaintiff’s expense, etc. Defendant’s evidence is further to the effect that his tenant, Burch, paid rent for February and March and refused to pay further because the fixtures were not completely installed and therefore could not be used, and he vacated the premises about June 19; he lived in the rear of the shop. In June defendant found a new tenant who wanted to use the place for a butcher shop but who had his own fixtures, and defendant was obliged to remove the fixtures in question so the new tenant could install his own. June 19 defendant removed the fixtures and had them stored with the Mozart Motor Service and afterward sent plaintiff the storage company’s receipt.

There is other evidence in the record to the effect that plaintiff did not obtain a permit before the fixtures were installed, nor were they inspected after installation by the proper city official as required by the city ordinance. There is some testimony on behalf of plaintiff to the effect that the contractor who installed the fixtures was to see that the proper permits were obtained and the inspection made, but the contractor was not called. Apparently he was employed by plaintiff. What the contractor did, if anything, does not appear. Since there must be a new trial, this evidence can then be adduced. There is other evidence in the record that the ice machine was condemned by a city inspector. All of this can be gone into on a retrial of the case.

Counsel for plaintiff says that since the fixtures in question were secondhand and selected by the buyer, and since there was no claim of fraud on the part of the seller, the doctrine that the buyer beware applies; that the written contract negatived any expressed or implied warranty because it was expressly agreed in the contract that “all previous comm unications between the parties hereto, either verbal or written, relating to the subject matter of this order are hereby abrogated, and this order when in fact accepted by you as above provided shall constitute the sole agreement between the parties,” and further the parties “expressly waive any and all implied warranties except that the vendor has a valid title and full right to sell.”

We think it clear that the written document designated a contract was not considered by either side as embracing all the terms of the transaction. It contains no provision about the installation of the fixtures that we have been able to find and none has been pointed out, and yet the evidence shows plaintiff assumed the obligation of installing* the fixtures and we think it obvious it was the understanding of plaintiff that the fixtures when installed would be reasonably fit for the purpose for which they were purchased by defendant. And the evidence all shows that plaintiff intended this to be the fact. Every word of plaintiff’s evidence is to the effect that it was obligated to see that the fixtures when installed would be usable. In fact Mr. Shell, who was plaintiff’s principal representative in the matter, on April 15, 1937, wrote defendant, “We guarantee the ice machine to give you satisfaction. In the event the machine does not operate satisfactorily, we will allow you a full credit of $325.00 in exchange of a new machine or otherwise.”

Counsel for defendant, in reply to plaintiff’s proposition, in his brief says “The sale was not second hand goods selected by the buyer but goods that were, not yet manufactured and purchased by sample and with the understanding that they were to be used for the meat market.” This statement of counsel is, to say the least, surprising in view of the facts in the record. Defendant testified he selected the various fixtures at plaintiff’s place of business and all the evidence shows that they were secondhand. In fact this was admitted by counsel for defendant. When counsel for plaintiff was cross-examining defendant, counsel said, “You bought secondhand fixtures.” Mr. Kabaker (defendant’s counsel) “There is no question about it.” The goods were secondhand; they were not sold by sample and all the evidence shows they were selected at the time defendant was at plaintiff’s place of business on West Madison street.

Counsel for defendant also contend that the purported contract was a nullity because plaintiff violated a city ordinance and “is unenforceable because of its lack of mutuality.” We have heretofore discussed the claimed violation of the city ordinance. Plaintiff’s counsel says the purported contract states, “Please ship to Albin Medella as soon as convenient: In consideration whereof, I, or we, agree to pay:” etc., but that there is “no agreement on the part of the seller to do anything, not even to sell nor even to deliver.” There is no merit in this contention. The articles were delivered and installed, and, moreover, it was clearly the intention of both parties that this should be done. A contract includes not only what the parties said, but also what is necessarily to be implied from what they said. Thebest Laundry Co. v. Duffy, 293 Ill. App. 252; Grossman v. Schenker, 206 N. Y. 466; Craig v. Pellett, 209 Ill. App. 368 (Abst.); Lidgerwood Mfg. Co. v. Robinson & Son Const. Co., 183 Ill. App. 431; Ideal Heating Co. v. Kramer, 127 Iowa 137.

Plaintiff contends that the court erred in refusing to give three instructions submitted by it. These three are the only ones we are referred to, and obviously all the instructions must be before us before we can say whether the jury has been properly or improperly instructed.

For the reasons stated, and for the further reason that we think the finding of the jury is against the manifest weight of the evidence, the judgment of the municipal court of Chicago is reversed and the cause remanded.

Reversed and remanded.

' Hatchett, J., concurs.

McSurely, P. J., dissents.


text:
    Automatic Oil Heating Company, Appellee, v. Fred B. Lee and Cordelia Lee, Appellants.
    Gen. No. 40,136.

      Opinion filed October 10, 1938.
    B. G. Clahtoh, of Chicago, for appellants.
    Marshall & Marshall, of Chicago, for appellee; Maurice G. Shanberg and David C. Grossman, both of Chicago, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.

November 9, 1937, plaintiff, the payee of a promissory note made by defendants, caused judgment by confession to be entered against them for $684.47, which included $88.48 for attorney’s fees. November 29 defendants filed their verified petition to open up the judgment and for leave to defend. On the same day an order was entered continuing the matter to December 13; on the latter date another order appears in the record giving defendants leave to file an amended petition within 5 days; December 17 an amended petition was filed by them. The next that appears in the record is a second amended petition filed January 13, 1938, and on the same day an order was entered overruling defendants ’ motion and fixing their appeal bond at $1,000, to be filed within 30 days.

Counsel for both parties say that defendants’ petition, the amended petition and the second amended petition were stricken and that the court refused to permit them to file a fourth petition. We shall assume this to be the fact, although it is not borne out by the record. The praecipe calls for all orders' entered and the clerk certifies that the record is in accordance with the praecipe.

Since there is no question of lack of diligence on the part of defendants in moving to open up the judgment, the questions for decision are whether the second amended petition set up a meritorious defense, and whether the court abused his discretion in refusing to open up the judgment to permit defendants a hearing on the merits.

The substance of the allegations of the second amended petition is that on March 10,1937, at the time of the execution of the note, plaintiff and defendants entered into a conditional sales agreement whereby plaintiff was to sell and completely install in defendants’ apartment building a burner and equipment for heating the premises, to be ponnected with the heating-plant then in the building. Defendants were to pay $25 cash and the balance, $589.85, in monthly instalments, which was evidenced by the note in suit. By the terms of the contract plaintiff further agreed to “furnish free of charge reasonably prompt service for the inspection, adjustment and repair of the burner and to replace any defective parts, during- one year from the date of installation, provided the buyer uses fuel oil of the grade recommended by the Seller. . . .

“The burner which is to be installed is guaranteed by the Seller for the period of one year from date of installation against imperfections in material and workmanship, provided it is subjected to normal use and given the care necessary to a mechanical device of this kind, and that the burner is capable of supplying heat up to the normal heating capacity of the boiler or furnace in which it is installed, as determined by standard heating methods.” The title was to remain in plaintiff until all payments were made.

It is further alleged that before the execution of the contract plaintiff made a survey of defendants’ premises with the view of putting in an oil burner and equipment; that plaintiff recommended the oil burner which was later installed, stating' it would adequately heat the premises, and relying upon this defendants signed the conditional sales agreement; that the burner and equipment were installed and “after a thorough use ... of said equipment” it proved inadequate to furnish heat “up to the normal heating capacity of the boiler and furnace in which the said equipment was installed” as provided in the contract; that by reason of insufficient heat defendant lost a number of tenants; that upon ascertaining that the boiler and equipment were not sufficiently heating the premises, defendants notified plaintiff and demanded that it remedy the burner and equipment, which plaintiff orally promised to do “by supplying other equipment,” and stated that the other equipment would supply sufficient heat in accordance with the terms of the conditional sales contract, which we have above quoted, but that plaintiff failed and refused to remedy the defect; that later, September 23, 1937, defendants notified plaintiff that unless the matter was corrected by October 1, defendants would be compelled to dismantle the boiler and equipment and restore the old coal burner and equipment theretofore used for heating the building; that plaintiff did nothing toward improving the boiler or heating apparatus, and defendants thereupon dismantled and took out the boiler and equipment, restored the old heating plant and notified plaintiff that they held same subject to plaintiff’s orders, and that therefore the note was without consideration.

The law applicable to the situation before us has long been well established. The general rule is that on motion to open a judgment entered by confession and for leave to defend, the question of a meritorious defense is of much more importance than the question of the defendant’s diligence or lack of it. Mason v. McNamara, 57 Ill. 274; Elaborated Ready Roofing Co. v. Hunter, 262 Ill. App. 380. The motion is addressed to the sound legal discretion of the trial court, but if there is an abuse of such discretionary authority a court of review will interfere on appeal. The motion and supporting affidavit must show such abuse of discretion. “It. must also be made to appear therefrom that the party filing the motion has a meritorious defense to the entering of the judgment or some portion thereof, and the motion and affidavits in support thereof are construed most strongly against the party making the application.” McMurray v. Peabody Coal Co., 281 Ill. 218. “If the affidavits, when considered, would disclose a clear and equitable reason for opening the judgment and allowing appellants to plead, that it would be the duty of the court, in the exercise of such equitable powers, to so order (Knox v. Winsted Co. Bank, 57 Ill. 330), and, in the exercise of liberal discretion, pass upon the questions thus raised and presented.” Pearce v. Miller, 201 Ill. 188.

Applying the law to the facts in the instant case, we hold that while the verified petition in support of the motion might well have been more specific in stating the facts, yet we think it was sufficient. From the petition and the contract made a part of the petition it appears that defendants agreed to pay plaintiff about $600 for installing an oil burner and equipment to be connected with the heating plant then in defendants’ apartment building; that after the installation there was insufficient heat which caused a number of defendants ’ tenants to vacate; that plaintiff was notified of this and agreed to remedy the defect by installing some other equipment; this it failed to do, and defendants again notified plaintiff that unless the matter was attended to they would be compelled to remove the oil burner and equipment and connect up their old coal burning apparatus so that the building might be properly heated; that plaintiff failing to do anything, defendants dismantled and removed the oil burner and equipment and went back to the use of their former coal heating equipment. On this record we must assume these facts to be true, and if the judgment were allowed to stand defendants would be required to pay for the oil burner and equipment, which were of no value. Especially is this true when the provision of the conditional sales contract is kept in mind, which provided: “The burner which is to be installed is guaranteed by the Seller for the period of one year . . . and that the burner is capable of supplying heat up to the normal heating’ capacity of the boiler or furnace in which it is installed.” We think that by the provision, although somewhat ambiguous, plaintiff guaranteed that the oil burner and equipment would be capable of supplying heat up to the normal capacity of the burner or furnace then in the premises, and we think it obvious that as installed it did not furnish this quantity of heat.

Of course under the parol evidence rule no evidence would be admissible as to what was said or done in the negotiations leading up to the making of the contract, nor would parol evidence be admissible to vary the terms of the written contract, but only to explain any ambiguity.

For the reasons stated the order of the municipal court of Chicago is reversed and the matter remanded with directions to open up the judgment, the judgment to stand as security, and to permit defendants to interpose their defense.

jReversed and remanded with directions.

McSurely, P. J., and Matohett, J., concur.


author: Mr. Presiding Justice O’Connor

text:
    First District.
    John Terendy, appellee, v. Paulina Swierski et al., appellants.
    Gen. No. 39,931.
    Opinion filed June 13, 1938.
    Hoffman, Lunn & Hoffman, for appellants; William J. Lunn, Arthur Lewis Hoffman and Forbes E. Jordan, of counsel. Julius H. Selinger, for appellee.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.


text:
    Wilma E. Kinney, appellee, v. Philip C. Lindgren et al., appellants.
    Gen. No. 40,003.
    Opinion filed June 13, 1938.
    Rehearing denied June 27, 1938.
    Hershenson & Hershenson, for appellants. William Shapiro, for appellee.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.


text:
    Christine C. Brown, appellee, v. Neil Satterlee, appellant.
    Gen. No. 40,015.
    Opinion filed June 13, 1938.
    Bobb, Spoerri, Bourland & Harris, for appellant; William L. Bourland, of counsel. William Schiepan, for appellee.
   Mr. Justice Matchett

delivered the opinion of the court.


text:
    People of the State of Illinois, defendant in error, v. Leo Miller and Gordon Garbell, plaintiffs in error.
    Gen. No. 40,031.
    Opinion filed June 13, 1938.
    Rehearing denied June 29, 1938.
    Cameron Latter, for plaintiffs in error. Thomas J. Courtney, State’s Attorney, for defendant in error; Edward E. Wilson, John T. Gallagher, Melvin S. Rembe and Blair L. Varnes, Assistant State’s Attorneys, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.


text:
    People of the State of Illinois, appellant, v. Fred H. Smith, appellee.
    Gen. No. 40,098.
    Opinion filed June 13, 1938.
    Rehearing denied June 27, 1938.
    Thomas J. Courtney, State’s Attorney, for appellant; Edward E. Wilson and Amos P. Scruggs, Assistant State’s Attorneys, of counsel. No appearance for appellee.
   Mr. Justice Matchett

delivered the opinion of the court.


text:
    People of the State of Illinois, appellant, v. Fred H. Smith, appellee.
    Gen. No. 40,099.
    Opinion filed June 13, 1938.
    Thomas J. Courtney, State’s Attorney, for appellant; Edward E. Wilson and Amos P. Scruggs, Assistant State’s Attorneys, of counsel. No appearance for appellee.
   Mr. Justice Matchett

delivered the opinion of the court.


author: Mr. Presiding Justice Friend

text:
    Catherine Foley, appellant, v. Faye Matty, appellee.
    Gen. No. 39,717.
    Opinion filed June 21, 1938.
    V. Russell Donaghy, for appellant; David A. Schallman, of counsel. McKenna & Harris, for appellee; James J. McKenna and Burrell J. Cramer, of counsel.
   Mr. Presiding Justice Friend

delivered the opinion of the court.


author: Mr. Presiding Justice

text:
    A. J. Canfield Company, appellant, v. John Gleasner, appellee.
    Gen. No. 39,942.
    Opinion filed June 21, 1938.
    William T. Pridmore, for appellant. Ho appearance for appellee.
   Mr. Presiding Justice

Friend delivered the opinion of the court.


text:
    Tyko Martinkus and Lawrence A. Weiss, appellants, v. Anton Bartkus, appellee.
    Gen. Ho. 40,009.
    Opinion filed June 21, 1938.
    Harold O. Mulks, for appellants. Maurice L. Zaretsky and Charles P. Kal, for appellee.
   Mr. Presiding Justice

Friend delivered the opinion of the court.


text:
    Park Lane Hotel Company, appellee, v. C. H. Sullivan and Mrs. C. H. Sullivan, appellants.
    Gen. No. 40,047.
    Opinion filed June 21, 1938.
    A. Sears Jayne, for appellants. Bennett & Colbaeh, for appellee; Max C. Liss, of counsel.
   Mr. Presiding Justice

Friend delivered the opinion of the court.


text:
    People of the State of Illinois, defendant in error, v. Erich Frankowsky, plaintiff in error.
    Gen. No. 40,094.
    Opinion filed June 21, 1938.
    Rehearing denied July 7, 1938.
    Kennedy & Fischer, Malcolm MeKerchar, Gerald T. Wiley and Richard W. Proctor, for plaintiff in error; Theodore L. Thau, of counsel. Otto Kerner, Attorney General, for defendant in error; A. B. Dennis, Assistant Attorney General, Thomas J. Courtney, State’s Attorney, Edward E. Wilson, John T. Gallagher, Blair L. Varnes and Melvin S. Rembe, Assistant State’s Attorneys, of counsel.
   Mr. Presiding Justice

Friend delivered the opinion of the court.


author: Mr. Presiding Justice Eriend

text:
    People of the State of Illinois, appellant, v. Jacob Kapustiak, appellee.
    Gen. No. 40,100.
    Opinion filed June 21, 1938.
    Thomas J. Courtney, State's Attorney, for appellant; Edward E. Wilson and Amos P. Scruggs, Assistant State's Attorneys, of counsel. No appearance for appellee.
   Mr. Presiding Justice Eriend

delivered the opinion of the court.


author: Mr. Justice John J. Sullivan

text:
    Lucille Hirsch et al., appellees, v. Automatic Canteen Company of America, appellant.
    Gen. No. 39,545.
    Opinion filed June 21, 1938.
    Rehearing denied July 7, 1938.
    Miller, Gorham, Wescott & Adams, for appellant; Herbert O. De Young, Charles E. White and Robert E. English, of counsel. J. Edward Jones, for appellees.
   Mr. Justice John J. Sullivan

delivered the opinion of the court.


text:
    Edison Construction Company, appellee, v. Stanley Kurzeja and Victoria Kurzeja, appellants.
    Gen. No. 39,577.
    Opinion filed June 21, 1938.
    J. J. Klepak, for appellants; Elwyn E. Long, of counsel. Edward S. Schneider, for appellee.
   Mr. Justice John J. Sullivan

delivered the opinion of the court.


text:
    Pearl Taylor Willis, appellee, v. City of Chicago, appellant.
    Gen. No. 39,610.
    Opinion filed June 21, 1938.
    Barnet Hodes, Corporation Counsel, for appellant; Alexander J. Resa, Arthur Chittiek and Lionel J. Berc, Assistant Corporation Counsel, of counsel. Joseph King, for appellee; Arthur L. Margolis, of counsel.
   Mr. Justice John J. Sullivan

delivered the opinion of the court.


text:
    United States Fidelity and Guaranty Company, appellee, v. Martin Auto Parts Company, appellant.
    Gen. No. 39,645.
    Opinion filed June 21, 1938.
    Rehearing denied July 7, 1938.
    Leslie H. Whipp, for appellant. Slottow & Levitón, for appellee; Charles Levitón and Harold P. Shane, of counsel.
   Mr. Justice John J. Sullivan

delivered the opinion of the court.


text:
    People of the State of Illinois, appellant, v. Casimer Kemnetz, appellee.
    Gen. No. 40,104.
    Opinion filed June 21, 1938.
    Thomas J. Courtney, State’s Attorney, for appellant; Edward E. Wilson and Amos P. Scruggs, Assistant State’s Attorneys, of counsel. No appearance for appellee.
   Mr. Justice John J. Sullivan

delivered the opinion of the court.


author: Mr. Presiding Justice Hebei

text:
    People of the State of Illinois ex rel. John S. Rusch, appellee, v. Edna Sulli et al., appellants.
    Gen. No. 39,710.
    Opinion filed June 29, 1938.
    Rehearing denied July 12, 1938'.
    Thomas Marshall, for appellants. Thomas J. Courtney, State’s Attorney, for appellee; John E. Cashen, Jr., of counsel.
   Mr. Presiding Justice Hebei

delivered the opinion of the court.


text:
    Jose Castro, appellant, v. Edward Smuvawsky, appellee.
    Gen. No. 39,819.
    Opinion filed June 29, 1938.
    Hubbard, Baker & Rice, for appellant. No appearance for appellee.
   Mr. Presiding Justice Hebei

delivered the opinion of the court.


text:
    Edith May Ashburn, appellant, v. F. W. Woolworth Company, appellee.
    Gen. No. 39,857.

      Hall, J., dissenting.
    Opinion filed June 29, 1938.
    Charles C. Spencer, C. C. Ownbey and Arthur L. Balias, for appellant; Richard M. Spencer, of counsel. Kirkland, Fleming, Green, Martin & Ellis, for appellee; William H. Symmes, David Jaeker and John M. O'Connor, Jr., of counsel.
   Mr. Presiding Justice Hebei

delivered the opinion of the court.


author: Mr. Presiding Justice Hebel

text:
    Ruth H. Lewison, appellant, v. Robert Lewison, appellee.
    Gen. No. 39,865.
    Opinion filed June 29, 1938.
    Meyer S. Miller and Maurice L. Marcus, for appellant; Stephen J. Sullivan, of counsel. Joseph W. Sehulman, for appellee; Henry M. Seligman and Leonard J. Mandel, of counsel.
   Mr. Presiding Justice Hebel

delivered the opinion of the court.


text:
    Frank S. Ayres, executor of last will and testament of Harriet C. Lark, deceased, appellant, v. Harriet W. McKellar, appellee.
    Gen. No. 39,882.
    Opinion filed June 29, 1938.
    Rehearing denied July 12, 1938.
    Louis J. Victor and Ralph F. Stern, for appellant. Hutson, Traeger & Bolger, for appellee; John D. Bolger, of counsel.
   Mr. Presiding Justice Hebei

delivered the opinion of the court.


text:
    Marie Pietras, appellee, v. Jozef Moskal et al. Appeal of Jozef Moskal, appellant.
    Gen. No. 39,969.
    Opinion filed June 29, 1938.
    Rehearing denied July 12, 1938.
    Newell Meeartney, for appellant. Benjamin Jordan, for appellee.
   Mr. Presiding Justice Hebei

delivered the opinion of the court.


text:
    National Cash Register Company, appellee, v. Arthur H. Foerster, appellant.
    Gen. No. 39,993.
    Opinion filed June 29, 1938.
    Guy C. Guerine, for appellant. Victor Scott, for appellee.
   Mr. Presiding Justice Hebel

delivered the opinion of the court.


author: Mr. Justice Hall

text:
    Fred Kotek, appellee, v. Charles Kotek and Josephine Kotek, appellants.
    Gen. No. 39,084.
    Opinion filed June 29, 1938.
    Joseph J. Kroupa, for appellants. Otto A. Jaburek and James S. Wight, for appellee.
   Mr. Justice Hall

delivered the opinion of the court.


text:
    Elsie Sanders, appellant, v. Metropolitan Life Insurance Company, appellee.
    Gen. No. 39,856.
    Opinion filed June 29, 1938.
    Frank E. Gettleman and Julius S. Neale, for appellant; Clarence T. Morse, of counsel. Hoyne, O’Connor & Rubinkam, for appellee; Nathaniel Rubinkam and William S. Allen, of counsel.
   Mr. Justice Hall

delivered the opinion of the court.


text:
    Nathaniel Rubinkam, appellee, v. Glen Falls Indemnity Company, appellant.
    Gen. No. 39,868.
    Opinion filed June 29, 1938.
    Cassels, Potter & Bentley, for appellant; Ralph F. Potter, Leslie H. Vogel and Richard H. Merrick, of counsel. Arthur J. J. Welsh, for appellee; William S. Allen, of counsel.
   Mr. Justice Hall

delivered the opinion of the court.


text:
    Nellie Jones, appellee, v. City of Chicago, appellant.
    Gen. No. 39,915.
    Opinion filed June 29, 1938.
    Rehearing denied July 12, 1988.
    Barnet Hodes, Corporation Counsel, for appellant; Alexander J. Resa, Adam E. Patterson, Arthur Ohittiek and Lionel J. Berc, Assistant Corporation Counsel, of counsel. B. G. Clanton, for appellee.
   Mr. Justice Hall

delivered the opinion of the court.


text:
    Frederick H. Schnell, appellant, v. National Air Transport, appellee.
    Gen. No. 39,928.

      Opinion filed June 29, 1938.
    Philip Rosenthal, for appellant; Thomas S. MacKinlay, Arthur W. Klein, John O. Wilkinson and Joseph Harrow, of counsel. Cassels, Potter & Bentley, for appellee; Ralph F. Potter, Leslie H. Vogel and Richard H. Merrick, of counsel.
   Mr. Justice Hall

delivered the opinion of the court.


author: Mr. Justice Denis E. Sullivan

text:
    Keystone Garment Company, appellant, v. Northern Trust Company and Julia Gottman, appellees.
    Gen. No. 39,989.
    Opinion filed June 29, 1938.
    Rehearing denied July 12, 1938.
    Meyer A. Ginsburg, for appellant. Peabody, Westbrook, Watson & Stephenson and Malcolm MeKerchar, for certain appellee; Joseph McCormack, of counsel.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.


author: Mr. Presiding Justice MeSurely

text:
    C. V. Gawne, also known as Clara V. Gawne, appellant, v. H. A. Gundling, appellee.
    Gen. No. 40,042.
    Opinion filed June 30, 1938.
    Rehearing denied July 12, 1938.
    Charles J. Trainer, for appellant. Levisohn & Levisohn, for appellee.
   Mr. Presiding Justice MeSurely

delivered the opinion of the court.


text:
    Hodgson Foundry Company, appellee, v. Auto Radiator Manufacturing Company, appellant.
    Gen. No. 40,067.
    Opinion filed June 30, 1938.
    Rehearing denied July 12, 1938.
    A. S. Frankenstein, for appellant. James J. Shepro, for appellee; Sam F. Fink, of counsel.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Mae Mayer, appellee, v. Arthur S. Wickersham et al., appellants.
    Gen. No. 40,079.

      Opinion filed June 30, 1938.
    Wilbert V. Dunne, for certain appellant. Robert P. Ginsburg, for certain other appellant. Paul D. Buchheit, for appellee.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Joseph Yagodnik, appellant, v. H. Buchman, appellee.
    Gen. No. 40,091.
    Opinion filed June 30, 1938.
    Rehearing denied July 12, 1938.
    John H. Roser, for appellant. Morton S. Sehnad, for appellee.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    National Republic Company, appellant, v. W. A. Wieboldt et al., appellees.
    Gen. No. 39,062.
    Opinion filed June 30, 1938.
    Defrees, Buckingham, Jones & Hoffman, for appellant; Geo. T. Buckingham and William H. Winslow, Jr., of counsel. McNab, Holmes & Long and Albert Fink, for appellees; Albert Fink and Albert S. Long, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.


text:
    John Emerson, appellant, v. Guy A. Richardson et al., appellees.
    Gen. No. 40,040.
    Opinion filed June 30, 1938.
    Frank P. Kronenberg and Benjamin & Friedlander, for appellant; Frank P. Kronenberg, of counsel. Frank L. Kriete, C. C. Cunningham and Arthur J. Donovan, for appellees; John R. Guilliams, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.


text:
    Cleaners DeLuxe, appellant, v. William Juern et al., appellees.
    Gen. No. 40,064.

      Opinion filed June 30, 1938.
    Rehearing denied July 13, 1938.
    Otto C. Rentner, for appellant; Isadore J. Stagman, of counsel. Theodore A. Kolb, for appellee William Juern.
   Mr. Justice Matchett

delivered the opinion of the court.


text:
    Napolian DeVerville, minor, by his father and next friend, Napolian DeVerville, Sr., appellee, v. City of Chicago, appellant.
    Gen. No. 39,990.
    Opinion filed June 30, 1938.
    Barnet Hodes, Corporation Counsel, for appellant; Alexander J. Resa and L. Louis Karton, Assistant Corporation Counsel, of counsel. Philip Baim, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Frank F. Tracy, appellee, v. Ben Yost, defendant. Appeal of Select Operating Corporation and Wm. C. Quentmeyer, appellants.
    Gen. No. 40,024.
    Opinion filed June 30, 1938.
    Sinden & Hassell, for appellants; Clyde C. Fisher, of counsel. Henry A. Kalcheim, for appellee; Abraham Miller, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Charlotte Sabarnia, plaintiff, v. Mae Robinson, defendant. Burton I. Stolarsky, appellee, v. Frank W. Brown, appellant.
    Gen. No. 40,037.
    Opinion filed June 30, 1938.
    Burton I. Stolarsky, pro se. Frank W. Brown, pro se.

   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Isaac Freehling and Juliet S. Freehling, plaintiffs, v. Bankers Building, Inc. et al., defendants. Bankers Building, Inc. and Illinois National Bank and Trust Company of Rockford, appellants.
    Gen. Nos. 40,273, 40,276.
    Opinion filed July 6, 1938.

      Sonnenschein, Berkson, Lautmann, Levinson & Morse, for certain appellant; David Levinson and Bernard Baruch, of counsel. E. J. Blair, for certain other appellant; E. J. Blair, of counsel. Morris Blank, for appellees.
   Mr. Justice Matchett

delivered the opinion of the court.


author: Mr. Justice O 'Connor

text:
    Samuel Levins and Genco Inc., appellees, v. City of Chicago et al., appellants.
    Gen. No. 40,268.
    Opinion filed July 6, 1938.
    Rehearing denied July 19, 1938.
    Barnet Hodes, Corporation Counsel, for appellants; Martin H. Foss and Alphonse Cerza, Assistant Corporation Counsel, of counsel. Otto E. Weiner, for appellees; Sidney R. Zatz, of counsel.
   Mr. Justice O 'Connor

delivered the opinion of the court.


text:
    Chicago Title and Trust Company, appellee, v. Frank F. Hense et al. Appeal of Harold Lederer et al., appellants.
    Gen. No. 40,401.
    Opinion filed October 7, 1938.
    Rehearing denied October 24, 1938.
    Mills & Karlin, for appellants; Isaac M. Mills, Samuel Arthur Karlin and Robert A. Krant'z, of counsel. Woodward & Tottenhoff, for appellee; Joseph R. Tottenhoff, of counsel.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Bert C. Roach, receiver of First American National Bank and Trust Company of Berwyn, appellant, v. Rose Kouba et al., appellees.
    Gen. No. 39,615.
    Opinion filed October 10, 1938.
    John B. Bernard, for appellant. Harry E. Kopald, for appellee Edward Kvidera; Julius M. Lorenz, of counsel.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    John F. Corcoran, appellee, v. City of Chicago, appellant.
    Gen. No. 39,828.

      Opinion filed October 10, 1938.
    Rehearing denied October 24, 1938.
    Barnet Hodes, Corporation Counsel, for appellant; M. C. Zaeharias, Alexander J. Resa and Adam E. Patterson, Assistant Corporation Counsel, of counsel. Charles C. Spencer and Richard M. Spencer, for appellee.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    People of the State of Illinois, defendant in error, v. A1 Johnson and Max Johnson, plaintiffs in error.
    Gen. No. 40,055.
    Opinion filed October 10, 1938.
    Rehearing denied October 24, 1938.
    Wm. Scott Stewart, for plaintiffs in error. Thomas J. Courtney, State’s Attorney, for defendant in error; Edward E. Wilson, John T. Gallagher, Melvin S. Rembe, Blair L. Varnes and Richard B. Austin, Assistant State’s Attorneys, of counsel.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    People of the State of Illinois, defendant in error, v. Elmer Spencer, plaintiff in error.
    Gen. No. 40,328.
    Opinion filed October 10, 1938.
    Ray E. Lane, for plaintiff in error. Otto Kerner, Attorney General, for defendant in error; A. B. Dennis, Assistant Attorney General, Thomas J. Courtney, State’s Attorney, Edward E. Wilson, John T. Gallagher, Blair L. Varnes and Melvin Starkel Rembe, Assistant State’s Attorneys, of counsel.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    David H. Lentz and Robert J. Joutras, appellees, v. Miller Rubber Products Company, appellant. Woodlawn Service Company, appellant.
    Gen. No. 39,500.
    Opinion filed October 10, 1938.
    Rehearing denied October 24, 1938.
    E. C. Leslie and Russell, Murphy, Curran & Pearson, for appellants; Walter Wm. Pearson and W. H. Meyer, of counsel. Lederer, Livingston, Kahn, Adler & Adsit, for appellees; Archie H. Siegel, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.


author: Mr. Justice Matehett

text:
    In the matter of the estate of Chester Corbin, deceased. Augustine Corbin, appellee, v. David H. Kraft, administrator of estate of Chester Corbin, deceased, appellant.
    Gen. No. 39,935.

      Opinion filed October 10, 1938.
    Rehearing denied October 24, 1968.
    Schofield & Wood, for appellant. Edward A. Dreis and Eugene C. O’Reilly, for appellee.
   Mr. Justice Matehett

delivered the opinion of the court.


text:
    Fannie Friend, appellant, v. Hotel Del Prado Company, appellee.
    Gen. No. 40,054.
    Opinion filed October 10, 1938.
    Frank J. Jacobson and John B. King, for appellant. Louis B. Simon, for appellee.
   Mr. Justice Matchett

delivered the opinion of the court.