text:
    W. F. Hall Printing Company, Appellant, v. Wells Warehouse & Forwarding Company and Cromwell Jones, Appellees.
    Gen. No. 30,640.
    1. Replevin — burden of proof as to property right of plaintiff. The burden of proof is upon the plaintiff in replevin proceedings to show a general or special property in the property sought to be replevined.
    2. Frauds, statute of — invoice as sufficient memorandum of sale of personalty valued in excess of $500, under GahilVs St. ch. 121a, 1f 7. An invoice covering merchandise of a value greater than $500, which does not purport to be a contract, does not state that there are any parties to a contract, nor where or when deliveries are to be made, which states figures from which a price might be guessed but states that all prices are subject to change without notice, and. which says, “Terms, cash,” but fails to state when or how payment is to be made, is not a sufficient memoranda to take the transaction out of the statute of frauds, Cahill’s St. ch. 121a, If 7.
    3. Frauds, statute op — delivery of invoice of goods purchased by oral contract as symbolical delivery exempting transaction from operation of GahilVs St. ch. 121a, f[7. Where an agreement for the purchase and sale of merchandise of a value greater than $500 whereof the seller held warehouse receipts was wholly verbal, the delivery by the seller to the buyer of an invoice of such goods was not a symbolical delivery of the property sufficient to take the transaction out of the statute of frauds, Cahill’s St. ch. 121a, jf 7.
    4. Replevin — oral purchase of personalty exceeding $500 in value followed by receipt of invoice therefor as establishing property right therein, where payment neither made nor waived. In view of Cahill’s St. ch. 121a, If 7, a purchaser of merchandise of a value greater than $500 whereof the seller holds warehouse receipts, acquires no property interest in such merchandise sufficient to support an action of replevin where there was no payment therefor nor waiver thereof, and the transaction was evidenced only by an invoice which failed to state the essential elements of the agreement orally made between the parties.
    5. Appeal and error — waiver of right to object to joinder of additional party by failure to object to intervention and by filing replication to his plea. Where in the course of replevin proceedings brought by the purchaser of merchandise to secure possession thereof from the warehouse company holding the same as bailee for the seller, who was the real party in interest, an order was made, without objection, making the seller a party defendant, after which issue was joined upon the replication of the plaintiff to the plea which, such seller was permitted to file setting up his claim to the property, the plaintiff was thereafter estopped to assert that the court was without jurisdiction to permit the intervention of the seller as defendant in the action.
    Appeal by plaintiff from the Superior Court of Cook county; the Hon. Jesse Holdom, Judge, presiding. Heard in the first division of this court for the first district at the October term, 1925.
    Affirmed.
    Opinion filed June 14, 1926.
    Rehearing denied June 29, 1926.
    Gann, Secord & Stead and Peaks & Bunch, for appellant; Lor N. McIntosh, Mack C. Wylie, F. Harold Bennett and Alexander J. Resa, of counsel.
    Winston, Strawn & Shaw, for Cromwell Jones, appellee; Edward W. Everett and George T. Evans, of counsel.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.

The plaintiff, W. F. Hall Printing Company, a corporation, filed two suits in replevin against the Wells Warehouse and Forwarding Company, a corporation, for the purpose of securing possession of certain rolls of tympan paper, the value of which was alleged to be $8,000. The paper in question was stored with the defendant, Wells Warehouse and Forwarding Company, by Cromwell Jones, and he held non-negotiable warehouse receipts indicating his ownership of the same. Acting under the writs, the sheriff , took the paper and delivered it to the plaintiff.

Plaintiff having filed declarations in the usual form, alleging that it was entitled lawfully to the possession of the paper and that the Warehouse unjustly detained the same, etc., defendant Wells Warehouse and Forwarding Company filed a plea disclaiming any right or title in and to the goods and chattels, stating that it held the same upon warehouse receipts issued and delivered to Cromwell Jones.

The suits in question were on July 17,1924, by order of court consolidated upon petition of Cromwell Jones, and an order was entered by the court permitting him to become a party defendant. He filed certain pleas, to which plaintiff filed a replication and the consolidated causes were submitted to a. jury.

At the close of plaintiff’s evidence the court, upon motion of defendant, Cromwell Jones, instructed the jury to find the issues in favor of defendants and to find that at the times of the issuance of the writs the defendants, Cromwell Jones and Wells Warehouse & Forwarding Company, were entitled to the possession of the property described in the writs. The jury having returned a verdict as directed, the court overruled motions to set aside the verdict and for a new trial and directed that a writ of retorno habendo issue, having overruled the motion of the plaintiff in arrest of the issuance of that writ. From the judgment thus entered the plaintiff prosecutes this appeal.

Disregarding for the present a point made by plaintiff which will be later discussed, namely, the right of Cromwell Jones to intervene and to be made a party defendant to the cause, the controlling question in the case is whether, on the uncontradicted evidence submitted to the jury, the court erred in directing a verdict for the defendants.

There was submitted evidence tending to show the following facts: The plaintiff, W. F. Hall Printing Company, was at the time in question located at 466 West Superior Street, Chicago, where it transacted a general printing business. The place of business of the defendant Warehouse Company was about two blocks south, at 419 West Erie Street. Edward J. Wells was at the time in question president of the Wells Warehouse and Forwarding Company, ft. M. Eastman was president, Edwin M. Colvin, vice-president, Charles Cliff, assistant treasurer, and Calvert S. Eastman, purchasing agent of the plaintiff Printing Company.

Cromwell Jones was, by the terms of a written contract which gave him an exclusive agency, the representative in territory west of Buffalo and Pittsburgh of the Domestic Mills Paper Company, a manufacturer of tympan paper, such as plaintiff was accustomed to use in its business. Under the terms of this agreement Cromwell Jones purchased the paper in question from the Domestic Mills Paper Company and resold it to his customers. R. M. Eastman, president of the plaintiff company, had given a written guaranty of the account of Cromwell Jones with the Domestic Mills Paper Company.

At the time of the transactions out of which these suits grew, one H. L. Sampson, a special representative of the Domestic Mills Paper Company, was in Chicago and was present at a conference held on July 15, 1924, at the Drake Hotel to adjust a claim which had been made by the plaintiff that Jones had been charging too high a price under the circumstances for the tympan paper.

The plaintiff was, the evidence indicates, the best customer for the paper which Mr. Jones had, and it was usual for plaintiff to indicate in advance to Mr. Jones and through him to the Domestic Mills Paper Company, the size and kind of paper which was desired by it for use in connection with its business.

The evidence for plaintiff tends to show that after some wrangling at this conference, Mr. Colvin said to Mr. Jones: “This wrangle has nothing to do with our meeting. What are you going to charge us for that paper in the warehouse?” Finally Mr. Jones said: “How is 10%? It was generally understood we were talking about tympan paper in the warehouse. Tympan paper is bought by the pound or roll by the the hundred. 10% to the unsophisticated mind means cents per pound. At this conversation we were all talking in the language of the trade.”

The evidence for plaintiff further indicates that after some talk back and forth, either Mr. R. M. Eastman or Mr. Colvin said: “The price is all right, we will take it”; that Mr. Jones said: “Is this to be a cash transaction?” to which Mr. Eastman replied, “Yes”; that thereafter Mr. Jones or Mr. Eastman said that plaintiff would give Jones a check for the stock in the warehouse and Jones would in turn pay off his obligation to the Domestic Mills Paper Company; that 'Colvin reminded Mr. Eastman that he was on Cromwell Jones’ guaranty at the Domestic Mills, and that he had better have Jones’ check certified, to which Jones replied that his check “was as good as ours without certification.”

The testimony for the plaintiff also tended to show that in this conversation Jones inquired, “Well, will this be a cash transaction?” to which Mr. Eastman said, “Yes, this will be a cash transaction. I will tell you how we will handle it, Grom. The Hall Printing Company will make out a check to you and you in turn will make out a check to the Domestic Mills. You go down to the State Bank of Chicago and clear the transaction”; that Mr. Colvin said, “Bob, you know you are guarantor on that account and I think you ought to have Jones’ check certified,” to which R. M. Eastman replied, “I think it would be best, Crom; let us get it disposed of; get it out of the way, and clean it up. Let us have the check certified and that will dispose of it”; and that Jones said, “Well, if you feel that way about it, all right, Bob, we will get my check certified and we can clean it up that way, go to the bank and clean it up that way,” and further Jones said, “I will go back to the office and I will make out an invoice of all the stuff that is over there that was made up for you. I will make it up as soon as I can and try to bring it over in the afternoon.”

The evidence for the plaintiff further tended to show that after the paper which plaintiff was accustomed to buy had been manufactured, it was shipped to Chicago to the order of Jones and stored in the warehouse of the defendant Warehouse Company; that the plaintiff did not have room in its building to store this paper, and that its custom was as it needed its paper for use in its business to call by telephone the office of the Warehouse Company and direct the delivery of the paper to its place of business, specifying the number of rolls and size needed, and in accordance with such directions these rolls would be delivered at the place of business of the plaintiff by trucks belonging to the Warehouse Company, which had placed thereon the words, “Cromwell Jones Tympan Paper.” The requisition for the paper would be mailed to the Warehouse Company by the plaintiff.

After the conference of July 15, 1924, Jones went to the office of the plaintiff, where he met Cliff, and said: “Charley, here is a bill of the tympan paper I sold you this morning. When can I get my money?” He thereupon delivered to Cliff the paper which appears in the record as plaintiff’s Exhibit 3 and describes itself as invoice No. 738. The material parts of this document were as follows:

“Cromwell 'Jones
“Domestic Mills 31020
“Tympan Papers
“413-419 West Erie Street Telephone Superior 9033
“Invoice No. 738
“Salesman
“Order No.
“Sold to W. F. Hall Ptg. Ho.
“466 W. Superior St.
“All prices subject to change without notice.
“Via In Wells Warehouse Terms: ’Cash
*.v. ^ T? TP
(Stamp)
“Date Rec’d 7-16 & 17
“Receipt No. 19547-83-84-85
“Price O. K. 19586-89-90-87-88
“Extension O. K. Cle.
“Entered Job No.
“Entered Stores KOJ
“Charge
“Account No. Amount
“Rotary Material
“Rolls Nos. and weights other side.
H.
* * * M

Mr. Cliff then said to Jones: “Crom, I wall tell you. I will turn this bill over to Leonard, who is a clerk in the purchasing department, and have him check it up, the weights and extensions, and I will get it back in the morning and tell Leonard to rush it through. You come over about 11:00 o ’clock tomorrow morning. Come over about ten or eleven, and we will close the transaction. You will get your money and Sampson will be there. I will make out a Hall Printing Company check on the State Bank of Chicago, and we will clean it up.” Defendant Cromwell Jones replied: “All right, Charley, I will be over.”

On the morning of July 16, 1924, the plaintiff called the Wells Warehouse & Forwarding Company by telephone and requested that 10 rolls of the tympan paper described in the invoice be delivered to plaintiff on that afternoon at its place of business. It does not appear, however, that the delivery was made by the direction of Jones, but it was delivered in the usual way by trucks belonging to the Wells Warehouse & Forwarding Company, bearing the inscription, “Cromwell Jones Tympan Paper.”

Thereafter defendant again called up the warehouse and asked that additional rolls of this paper be sent over, but was informed by the party who talked on the ’phone that the Warehouse Company had received instructions from Jones to make no more delivery of the paper to plaintiff.

Jones did not call at the office of plaintiff on July 16, 1924; he did not go with Cliff and Sampson to the State Bank of Chicago to have checks certified and exchanged, and on July 17 Cliff called Jones by telephone at the office of the Wells Warehouse & Forwarding Company, which was the business office of Jones, and asked him if he was coming over, to which Jones replied, “No, I am not coming over, Charley. I consulted my lawyer and I am not going over there to get the check, and I am not going to let you have the paper, either.” To Mr. Cliff’s question of “Why?” Jones replied, “I have seen my attorney and I am not going to let you have the paper, and I am not coming over for the money.”

Plaintiff thereafter made a demand in writing upon the Warehouse Company for the balance of the paper described in the invoice and tendered $75 in currency to pay storage charges. The demand and tender were refused, whereupon writs of replevin were sued out and the papers seized and delivered to plaintiff and used by it.

It, is conceded by the plaintiff that the burden of proof was upon it, and that it was necessary for it to show a general or special property in the paper replevied, and that it was necessary for plaintiff to recover, if at all, upon the strength of its own title or right of possession. Pease v. Ditto, 189 Ill. 456; Kee & Chapell Dairy Co. v. Pennsylvania Co., 291 Ill. 248.

The controlling question on the merits is whether the plaintiff has shown such right or interest in the property as that a jury might reasonably say that it was entitled to the possession of the paper.

The defendant contends that as the plaintiff bases its right to possession and its title upon an alleged-verbal contract, the value of the goods being $8,000 or more, the contract, even though it is conceded to have been made, is not enforceable under the provisions of the statute of frauds, enacted as a part of the Uniform Sales Act by an Act approved June 29, 1915. Section 4 [Cahill’s St. ch. 121a, [[7] of that Act provides :

“A contract to sell or a sale of any goods or choses in action of the value of five hundred dollars or upwards shall not be enforceable by action unless the buyer shall accept part of the goods or choses in action so contracted to be sold or sold, and actually receive the same, or give something in earnest to bind the contract, or in part payment, or unless some note or memorandum in writing of the contract or sale be signed by the party to be charged or his agent in that behalf.”

On the contrary, plaintiff contends that the controlling fact is that “Mr. Jones voluntarily sold the paper to appellant and as evidence thereof delivered to appellant Plaintiff’s Exhibit 3, which was an invoice of the paper in the warehouse, and waived cash payment by saying, ‘When do I get my money?’ He was bound by the legal effect of the delivery of said invoice, regardless of what the opinion of any of the witnesses to this lawsuit may have been, as to whether or not it probably amounted to an actual sale and delivery of property * * * delivery of the invoice, Plaintiff’s Exhibit 3, voluntarily by Cromwell Jones to appellant, waived any right to have the actual cash paid at that time. Jones had the right before delivering said invoice to require of appellant that the cash be paid to him.”

While this section of the statute of frauds [Cahill’s St. ch. 121a, [f 7] has been the law of this State for only a short time, and the decisions of our courts construing it are not numerous, there is a wealth of authority in other States, and some decisions in this State, to the effect that the writing which is sufficient to satisfy the provisions of this section must contain every essential term of the contract which it is sought to enforce.

There was no payment in whole or in part, nor waiver of it, and we do not think that anything could be clearer than that the invoice delivered by Jones to plaintiff was not such memorandum as is required by the statute, since it varies in material respects from the terms of the oral contract which the plaintiff attempted to prove (F. Kieser & Son Co., Inc. v. Hallock, 201 App. Div. 186, 194 N. Y. S. 737), and it would be wholly impossible to prove the contract therefrom without oral evidence as to the essential terms of it. Western Metals Co. v. Hartman Ingot Metal Co., 303 Ill. 479. In the last case our Supreme Court said:

“It is unquestionably the law that the memorandum upon which it is sought to charge a party to a contract must state the contract with such certainty that its essentials can be known from the signed writing, or by some reference contained in the signed writing to some other writing, without recourse to parol proof to supply the essential elements of the contract or to supply the connecting links between the signed writing and some other writing or writings.”

In Corpus Juris, vol. 33, p. 811, it is said:

“Standing alone an invoice is not regarded as evidence of title. It is neither a bill of sale nor evidence of a sale; it does not transfer the title; it is as appropriate to a bailment as to a sale.”

To the same effect is Cyc., vol. 23, p. 351. See also the cases there cited.

As was said in Dows v. National Exch. Bank of Milwaukee, 91 U. S. 630, “An invoice is not a bill of sale, nor is it evidence of a sale. It is a mere detailed statement of the nature, quantity and cost or price of the things invoiced, and it is as appropriate to a bailment as it is to a sale. * * * Hence, standing alone it is never regarded as evidence of title.”

Even a slight examination of the document discloses that it does not purport to be such a memorandum as is required by the statute. It does not purport to be a contract; it does not state that there are any parties to a contract; while it gives figures from which the price might be guessed, it states that all prices are subject to change without notice; it does not state when or where delivery shall be made; it intimates, “terms — cash,” bnt of when or how and under what circumstances the cash is to be paid, it says nothing. We are driven to the conclusion that no sufficient writing has been disclosed. Nor was there delivery in whole or part within the meaning of the statute. Illinois Meat Co. v. American Malt & Grain Co., 229 Ill. App. 311; Chicago Metal Refining Co. v. Jerome Trading Co., 218 Ill. App. 333.

The plaintiff contends that the delivery of this invoice amounted to a symbolical delivery of the property to plaintiff; but, what we have already said, indicates the futility of that contention. In that connection plaintiff cites Michigan Cent. R. Co. v. Phillips, 60 Ill. 190, where as between a vendor and an innocent third party who purchased in good faith, it was said that a transfer of certain wines by an unindorsed bill of lading was as effective to transfer the possession as in other cases would be the delivery of the keys to a warehouse in which the goods were stored. It is certainly not necessary to point out the distinction between a bill of lading and an invoice, or the many other important facts which distinguish that case from this one. We conclude, as a matter of law, that the plaintiff failed to show any title or right to the possession of the goods replevied, and it therefore could not recover in the suit.

But the plaintiff contends that the court erred in permitting Cromwell Jones, the real party in interest, to intervene and become a defendant in the suit, and points out that intervention, in a suit at law was not permitted by the common law, and that there is no provision in the statutes of Illinois providing for such a procedure. This point, in so far as the record shows, was not raised by the plaintiff until the cause had been put at issue and the evidence was about to be taken. The plaintiff then objected to the attorneys for defendant Cromwell Jones taking any part in the trial or cross-examining the witnesses, and the trial court, stating that the objection came too late, overruled it.

There was no motion by plaintiff to strike the appearance of the defendant Jones, nor did the plaintiff ask leave to withdraw its own replication to the pleas of defendant Jones in order that a motion to strike these might be made.

In the briefs of the parties and upon oral argument, interesting questions were raised as to the right of a court of law to permit intervention by a real party in interest in a replevin suit where the party having possession and only a nominal interest was made the only defendant.

What the law might be upon a different record from that which appears here, it is not necessary for us to decide, although in the case of Wincon v. Egan, 237 Ill. App. 635, this court seems to have committed itself to the proposition that such right of intervention exists. In that case, speaking through Mr. Presiding Justice McSurely, we said:

“ Jamontas could properly intervene and claim title to the property. He should have been made a party to the present replevin suit, as he had title to the property by virtue of the sale. The fact that'plaintiff did not make him a party can not deprive him of his right to assert his claim. Any person may intervene whose interest in the property will in any way be affected by the decision in the replevin suit. 34 Cyc. 1426.”

Further reference to the opinion discloses that the records in the consolidated cases which were there considered had been lost and that the court was therefore at some disadvantage in the consideration of the case.

The able argument of counsel for the plaintiff seems to concede that, under the record as it here appears, the question can not be raised except upon the theory that the trial court was wholly without jurisdiction. It is not denied that there was jurisdiction of the subject matter, but the point seems to be that the petition for an order permitting Cromwell Jones to become a defendant was insufficient to confer jurisdiction upon the court.

The petition, however, has not been preserved by any bill of exceptions, and is therefore not visible to the judicial eye. There is no question that the court had jurisdiction of the property, jurisdiction of the plaintiff and jurisdiction of the defendant Warehouse Company.

Without objection, so far as the record shows, an order was entered making Cromwell Jones also a defendant, and without objection he was permitted to file pleas setting up his rights in the property of which the court already had jurisdiction. To these pleas the plaintiff filed a replication. An issue was thus made concerning this property. We think that having proceeded thus far without objection, plaintiff was thereafter, and now is, estopped, to assert that the proceedings are void, and we hold that the court was not without jurisdiction or the power to exercise it. Moreover, plaintiff having neither title nor any right to possession, is without just cause to complain.

The judgment of the trial court is affirmed.

Affirpied.

Johnston and McSurely, JJ., concur.


source: Caselaw Access Project

author: Mr. Presiding Justice Matchett

license: Public Domain

text:
    The Celotex Company, Appellee, v. Francis Koblitz, Appellant.
    Gen. No. 30,791.
    1. Former adjudication — when judgment res adjudioata in subsequent action. In an action of forcible entry and detainer a judgment rendered in a prior action between the same parties is not res adjudicate ordinarily unless it be made to appear that the issues involved were the same.
    2. Former adjudication — prerequisites to estoppel by verdict. Estoppel by verdict is applicable wherever the prior litigation was between the same parties, where the question to be decided was the same, and where the point decided was necessary to a decision of the case.
    3. Former AssmucATim-rfinding in action of forcible detainer as to nature of defendants tenancy as precluding relitigation, of issue in subsequent .action between same parties. Where an action of forcible detainer was brought upon the theory that the defendant was a tenant from month' to month, rendering the tenancy subject to termination on 60 days’ notice, the defendant was estopped to contend, that he held possession under an alleged written lease, where in a former action of forcible detainer between the same parties, brought upon the theory that the defendant was a trespasser, the defendant claimed a right to possession under the same lease, and the finding in such former action was adverse to the defendant as to his right to possession under such lease, although the ultimate issue in the case was decided in his favor, upon the ground that he was holding under a valid verbal lease from month to month.
    4. Former adjudication — mutuality of estoppel by finding of court in action of forcible detainer as to character of defendant's tenancy. Where in an action of forcible detainer brought upon the theory that the defendant was a trespasser removable without notice, the finding of the court was adverse to defendant' in respect of his contention that he held possession by virtue of a valid written lease, the parties to such action were mutually estopped by such finding to contend, in a subsequent action between them, that defendant’s tenancy was under such written lease, although the ultimate issue in the former action was decided adversely to plaintiff, upon the ground that the defendant held the premises under a valid verbal lease from month to month.
    6. Former adjudication — mutuality of estoppel by verdick as dependent upon right of appeal from decision by either party. An estoppel by verdict is not necessarily rendered inoperative for want of mutuality because the decision rendered was not subject to reversal on appeal by either party.
    6. Appeal and error — right of successful defendant in action of forcible detainer, to appeal from judgment where court finds adversely to his contention as to nature of his tenancy. Under Ca-hill’s St. eh. 57, If 19, authorizing an appeal to be taken by “any party * * * aggrieved by the verdict of the jury or decision of the court” in an action of forcible detainer, a defendant in such an action is not precluded from taking an appeal from a judgment in his favor, where the finding of the court rejects his contention that he holds possession of the premises by virtue of a valid written lease, and the judgment in his favor is based upon the further finding that he holds by virtue of a valid oral lease from month to month, as against plaintiff’s contention that defendant is a trespasser.
    Appeal by defendant from the Municipal Court of Chicago; the Hon. George B. Holmes, Judge, presiding. Heard in the first division of this court for the first district at the October term, 1925.
    Affirmed.
    Opinion filed June 14, 1926.
    Walter T. Quigley and Kirkland, Patterson & Fleming, for appellant; Weymouth Kirkland, Walter T. Quigley and William H. Symmes, of counsel.
    Alpen, Latham & Young, for appellee; Charles Martin, of counsel.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.

Upon trial by the court of an action for forcible detainer brought by the plaintiff, appellee, there was a finding in favor of plaintiff and judgment thereon, which the defendant by this appeal seeks to reverse.

Upon the trial the plaintiff offered in evidence a writing served upon the defendant on February 27, 1925, notifying defendant that plaintiff had elected to terminate defendant’s tenancy and right to-possession of the premises in controversy on April 30, 1925, and demanding that defendant vacate and surrender possession of the premises by midnight of that day.

The theory of the plaintiff apparently was that defendant was in possession under a tenancy from month to month and that a 60-day notice was necessary in order to terminate the tenancy.

The defendant sought to defend upon the theory that he was in possession of the premises by virtue of a written lease from plaintiff to defendant, and the court, upon a stipulation of facts, held that by reason of a former adjudication in the trial of an action of the same character between the parties for possession of the premises, the defendant was estopped from claiming under the lease.

It appears from the stipulation that plaintiff brought a prior action in forcible detainer against the defendant to secure the possession of these same premises on December 3, 1924; that upon that trial there was a finding of not guilty and judgment thereon for defendant, after motions of plaintiff to vacate and set aside the finding had been overruled.

Upon the former trial the court found according to the stipulation, “that the written document, dated October 15,1924, purporting to be a lease of the premises described in the complaint from plaintiff to defendant was not delivered as and did not become effective as a lease, and that there is and was no written lease between plaintiff and defendant for said premises, but that the defendant was and is in possession of the premises under a tenancy from month to month, and the plaintiff not having served any notice to terminate the tenancy was not entitled to recover possession in this suit.”

The trial court was of the opinion that the character of the defendant’s tenancy, having been litigated in the former proceeding, must be regarded as res adjudicaba in this litigation, which is between the same parties for the same premises and in which the defendant attempts to interpose a defense based upon the lease on which it relied in the former proceeding.

That in an action of forcible detainer a judgment rendered in a prior suit between the same parties is not res adjudicaba ordinarily unless it be made to appear that the issues involved were the same, is settled by numerous authorities, some of which are cited by the defendant. Campbell & Oakman v. McFarland, 86 Ill. App. 467; Roby v. Calumet & Chicago Canal & Dock Co., 211 Ill. 173; Carson v. Crigler, 9 Ill. App. 83, and Barkman v. Barkman, 107 Ill. App. 332.

It is apparent, however, that the defendant has failed to distinguish between estoppel by judgment and estoppel by verdict. .This distinction is pointed out in Hanna v. Read, 102 Ill. 596, which is the leading case in our State upon this subject. The Supreme Court there said:

“Where the former adjudication is relied on as an answer and bar to the whole- cause of action, or, in other words, where it is claimed to be an answer to all the questions involved in the subsequent action, then it must appear, as claimed by defendants in error, that the cause of action and thing sought to be recovered are the same in both suits. The former adjudication in cases of this class is technically known as an estoppel by judgment, and the judgment itself is commonly characterized as a bar to the action; but where some specific fact or question has been adjudicated and determined in a former suit, and the same fact or question is again put in issue in a subsequent suit between the same parties, its determination in the former suit, if properly presented and relied on, will be held conclusive upon the parties in the latter suit, without regard to whether the cause of action is the same in both suits or not. This species of estoppel is known to the law as an estoppel by verdict, and is equally available to a plaintiff in support of his action, when the circumstances warrant it, as when offered by a defendant as matter of defence.”

That decision has since been consistently followed by the highest court of this State, and while, ordinarily, the question of what the issues were may be determined from the pleadings, in cases such as forcible detainer where the pleadings are general, it has also been held that parol evidence is admissible to show what the precise questions involved and decided were. Wright v. Griffey, 147 Ill. 496; Leopold v. City of Chicago, 150 Ill. 568.

We deem it unnecessary to review the decisions at length. The doctrine as set forth in Hanna v. Bead, supra, has been followed in Merrifield v. Canal Com’rs, 212 Ill. 465; In re Estate of Stahl, 227 Ill. 529; and in Mahannah v. Mahannah, 292 Ill. 133, a case which on principle we think cannot be distinguished from the one which we are now reviewing. See also Standard Brewery v. Creedon, 283 Ill. 474, and Western Book & Stationery Co. v. Jevne, 179 Ill. 71.

We think these cases establish affirmatively the doctrine that estoppel by verdict is applicable wherever the prior litigation was between the same parties, where the question to be decided was the same, and where the point decided was necessary to a decision of the case.

The stipulation of facts and the evidence in this case show that upon the former trial the parties were identical and the premises involved in the controversy were identical; that in that case plaintiff sued for possession upon the theory that defendant was a trespasser and not entitled to notice prior to the beginning of the suit; that the defendant, against this contention, claimed the right to the possession of these premises under the same lease which is here offered in his behalf; that the court held that the lease in question had never been delivered and that defendant had acquired no rights under it; but the court further held that defendant was in possession of the premises under a verbal agreement for a tenancy from month to month, and was therefore entitled to a 60-day notice which, since plaintiff had failed to give, it could not maintain its suit. In other words, the defendant secured a favorable finding and judgment on the ultimate issue in the case, although the finding of the court was against his contention as to the validity of his supposed lease.

The defendant now conténds that he is not estopped by the finding of the court in that suit as to the character of his tenancy, because he says that an estoppel must be mutual.

The answer to that contention is that the estoppel here is mutual; that just as defendant is bound by the decision of the court upon that issue in the former litigation, so the plaintiff is bound by it. If, for instance, the plaintiff should bring a suit upon the lease, claiming damages on account of a violation of some of its terms, could it be contended successfully that plaintiff was not estopped by the former adjudication? We do not think so, and if plaintiff is estopped, then defendant is likewise estopped.

But the defendant further says that in the prior suit, since the ultimate issue was found in his favor, he could not appeal from the judgment there rendered, while the plaintiff could have done so, and for that reason the estoppel is not mutual. Defendant does not cite any authority holding that an estoppel by verdict is not mutual unless the decision rendered was subject to reversal upon appeal by both parties. The right of appeal is purely statutory, and if the statute is not broad enough in that respect, it would seem to be a matter for the legislature rather than for the courts.

However, the case cited by defendant — Union Drainage Dist. No. 3 of Towns of Bowdre and Arcola v. Ullrich, 273 Ill. 165 — does not sustain his contention that defendant could not have appealed from the former judgment. Nor is the contention sustained by Gray v. Jones, 178 Ill. 169, which is followed in Union Drainage Dist. No. 3 of Towns of Bowdre and Arcola v. Ullrich, supra. That was a special proceeding where a plaintiff upon his own petition had obtained the precise relief, and all the relief, which he had asked for in the trial court, and the court held that under such circumstances he was estopped from prosecuting an appeal from the judgment. The case is easily distinguishable from the instant one.

Section 18 of the Forcible Detainer Act [Cahill’s St. ch. 57, [[ 19] provides:

“If any party shall feel aggrieved by the verdict of the jury or decision of the court, upon any trial had under this Act, such party may have an appeal, to be taken to the same courts, in the same manner and tried in the same way as appeals are taken and tried in other cases. ’ ’

We do not think that there is anything in this statute which, properly construed, would indicate that defendant was precluded in the former case from taking an appeal if he so desired.

The plaintiff made a motion in this court to strike the bill of exceptions, which was denied, and that motion is again argued at length. While the question involved in that motion has not been definitely passed on by a decision of the Supreme Court, in our ruling thereon we followed the usual practice of this court in such cases. In the absence of higher authority, we are disposed to adhere thereto.

For the reasons indicated the judgment is affirmed.

Affirmed.

Johnston and McSurely, JJ., concur.


text:
    Lizzie Plotnitsky, Appellant, v. Max Plotnitsky et al., Appellees.
    Gen. No. 30,879.
    Husband and wife — propriety of permitting amendment of HU for separate maintenance to supply omitted allegation as to residence of defendant. A bill for separate maintenance, defective because of its failure to allege that the defendant is a resident pf the county wherein the suit is filed, may be amended before final decree so as to aver that jurisdictional fact, where the facts alleged by the bill do not affirmatively show that the court is without jurisdiction.
    Appeal by plaintiff from the Circuit Court of Cook county; the Hon. John R. Caverly, Judge, presiding. Heard in the first division of this court for the first district at the March term, 1926.
    Reversed and remanded.
    Opinion filed June 14, 1926.
    Maxwell N. Andalman and Sampson Andalman, for appellant.
    Pines & Newman, for appellee; Alvin E. Stein, of counsel.
   Mr. Presiding Justice Matchett

delivered the opin-. ion of the court.

This is an appeal by the complainant in a bill for separate maintenance from a decree which discharged the defendant from a rule to show cause for the nonpayment of alimony and dismissed her bill for want of equity.

The bill was filed originally on May 29, 1925, and alleged that complainant for many years prior thereto had been an actual bona fide resident of Chicago, Cook county, Illinois; that she was married to the defendant, Max Plotnitsky, on December 15, 1919; that she had been a dutiful wife, etc.; that no children were born of the marriage; that since November, 1924, her said husband had refused to support the complainant, although living in the same flat at No. 3143 W. 19th Street, in the said city, county and State; that prior to May 1, 1925, defendant continued to reside in said flat and then ceased to live with complainant, or supply her with the necessities of life or a place to live; that in truth and in fact the defendant had deserted and abandoned the complainant without any cause and that such desertion had taken place through no fault of complainant and through the fault of the defendant, Max Plotnitsky.

On August 21, 1925, the court entered an order allowing complainant to amend the bill upon its face, and it was thereupon amended so as to state “and the defendant hereinafter named, Max Plotnitsky, now lives and resides in the City of Chicago, County and State aforesaid.” Defendant was thereupon ruled to plead, answer or demur to the bill within five days.

On August 22, 1925, an order for alimony and solicitor’s fees was entered, and on October 5 a rule to show cause for noncompliance with the order was entered.

In response to this rule the defendant answered that “because complainant did not, in the original bill, allege him, the defendant, to be a resident of Cook County, Illinois, this court did not and could not thereafter acquire jurisdiction of the cause, and, therefore, defendant was not obligated to obey the court’s order to pay alimony.”

Upon the hearing of this matter the chancellor entered a decree providing:

“It is further ordered that the bill of complaint as amended on its face, be, and it hereby is dismissed without prejudice, for want of jurisdiction on the part of this court to entertain it and consequently the rule entered upon the defendant, Max Plotnitsky, to show cause why he should not be punished for contempt of court, be, and it hereby is discharged.”

The precise question arising on the record therefore is whether a bill for separate maintenance, brought by a wife who resides in the county where the suit is brought but who fails in her bill to aver that the defendant husband is a resident of the county in which the suit is filed, may be amended before final decree so as to aver that jurisdictional fact.

That such an allegation as to the defendant’s residence is jurisdictional was held by this court in Briney v. Briney, 223 Ill. App. 119, following Becklenberg v. Becklenberg, 232 Ill. 120.

In support of the decree, the defendant cites a number of cases following the general rule that where a proceeding is so defective as to be wholly void, an amendment may not be made, as for example, in a suit by attachment where no affidavit has been filed as required by statute, Booth v. Rees, 26 Ill. 45; or in case of a similar failure to file an affidavit in beginning an action of forcible entry and detainer, Stolberg v. Ohnmacht, 50 Ill. 442; or of a failure to file any affidavit as required in proceedings for the levy of a tax, Illinois Southern R. Co. v. People, 215 Ill. 123; or in certain actions in the nature of special proceedings under specific statutes as in adoption cases, Bartholow v. Davies, 276 Ill. 505; Keal v. Rhydderck, 317 Ill. 231; or in certain election contests, Sugar City v. Board of Com’rs Crowley Co., 57 Colo. 432; or in a suit for divorce where the complainant failed to allege a Jurisdictional fact with reference to her residence within the State and an attempt was made to set the decree aside more than a year after it had been entered, Holton v. Holton, 64 Ore. 290, 129 Pac. 532. All these cases are, we think, easily distinguishable.

It is of course elementary that the right of a wife to proceed by a bill of equity against her husband for separate maintenance was unknown to the common law and that the authority for such a procedure must be found in the statute. Such authority in this State is conferred by an act in relation to married women, approved May 17, 1877, and in force July 1, 1877, as amended by the laws of 1891. This act is in two sections, the first of which, in substance, provides that married women who, without their fault, live separate and apart from their husbands may have their remedy in equity in their own names respectively “against their said husbands in the circuit court of the county where the husband resides, for a reasonable support and maintenance, while they so Eve or have so lived separate and apart.” See chapter 68 of vol. 4, pp. 4120-31 of Callaghan’s Illinois Statutes Annotated.

The second section provides that proceedings under the act “shall he instituted in the county where the husband resides, and process may be served in any county in the State,” but in case the husband shall abandon the wife without fault on her part and remove to another county in the State then suit may be brought by the wife either in the county where they resided at the time of the abandonment or in the county where the husband resides at the time of the commencement of the suit.

There is no doubt that under the provisions of this statute, as the same have been considered, Briney v. Briney, supra, the averment as to the residence of the husband is a jurisdictional fact.

The defendant calls our attention to a fact (upon which he very much relies), namely, that in other statutes, such as the Attachment Act, Mechanic’s Liens, etc., there are specific provisions in the statute showing that the pleadings may be amended, while there is no such provision in this statute, and from this omission he asks the court to infer that amendments are not to be allowed.

We are not able to draw this inference: The statute in the first section thereof specifically provides that the remedy is “in equity,” and it has been held by this court in Reifschneider v. Reifschneider, 144 Ill. App. 119, which was affirmed in 241 Ill. 92, and in MacKenzie v. MacKenzie, 141 Ill. App. 126, affirmed in 238 Ill. 616, that the provisions of the statute as to proceedings in chancery are applicable to suits for separate maintenance as to matters not specifically covered by the statute. Section 37 of that act [Cahill’s St. ch. 22, 37; Smith-Hurd. Ill. Rev. St. 1925, chap. 22, p. 233] specifically provides that the court may permit parties to amend their bills on such terms as the court may deem proper. That such is the usual practice in chancery it is unnecessary to cite authorities.

In Home Ins. Co. of New York v. Nobles, 63 Fed. 641, where complainant in a hill for an injunction failed to aver the amount of damages was large enough to give the court jurisdiction under the statute, it was held that the bill would not be dismissed for that reason, because it did not affirmatively appear that the court was without jurisdiction.

In Mix v. Mix, 1 Johns. Ch. (N. Y.) 204, the complainant filed a bill for divorce charging adultery. Under the New York statutes it was necessary to aver that the adultery was committed in the State of New York, and the bill did not so aver. However, Chancellor Kent said that while strictly the bill should be dismissed, nevertheless, since the objection did not .go to the merits, he would give leave to amend.

In Dulso v. Dulso, 170 App. Div. 67, 156 N. Y. Supp. 90, complainant in a separate maintenance suit failed to state a statutory jurisdictional fact, namely, that the marriage took place within the State of New York. The defendant having moved to dismiss, the complainant asked leave to amend, which was denied, the trial court saying, “I have not the power to do anything in a case of which I have not jurisdiction.” Upon appeal, the Supreme Court of New York said that the trial court had misconceived the purpose of amendment, which was not to create a cause of action, but by proper allegation to show that a cause of action of which the court had jurisdiction really existed. Mix v. Mix, supra, and Henneke v. Schmidt, 121 App. Div. 516, 106 N. Y. Supp. 138, with many other New York cases, are cited as sustaining the decision of the court, and we do not think that these cases can be distinguished from the one presented by this record.

The proceeding here was not void; it did not affirmatively appear that there was no cause of action. The defect in the bill was simply in a failure to aver a material jurisdictional fact required by the statute. Had the bill affirmatively stated facts showing that the court where the bill was filed could not acquire jurisdiction, a different question would be presented.

The court erred in dismissing the complainant’s bill, and the decree will be reversed and the cause remanded for proceedings consistent with this opinion.

Reversed and remanded.

Johnston and McSurely, JJ., concur.


author: Mr. Justice Johnston

text:
    William E. Williams, Appellee, v. The Western Union Telegraph Company, Appellant.
    Gen. No. 30,602.

      Damages — measure of damages for erroneous transmission of telegraphic offer where acceptance and performance followed under mutual mistake of fact due to such error. Where the author of a report upon a patented article telegraphed an offer to a prospective purchaser of such report to furnish it a copy thereof for $500, but through the negligence of the telegraph company the price asked was quoted at $53 and the offer was accepted at the erroneous quotation, after which the report was mailed by the author in ignorance of the mistake, and it did not appear that the author, after discovery of the error, either demanded a return of the report or took any steps to prevent its use by the customer, such author was entitled to only nominal damages from the telegraph company, in the absence of proof as to when the customer, by giving publicity to the report, rendered it valueless to the author.
    Appeal by defendant from the Municipal Court of Chicago; the Hon. Albert B. George, Judge, presiding. Heard in the first division of this court for the first district at the October term, 1925.
    Reversed and remanded.
    Opinion filed June 14, 1926.
    Rehearing denied July 2, 1926.
    West & Eckhart, for appellant; Francis B. Stark and Joseph L. Egan, of connsel.

      Harper E. Osborn, for appellee.
   Mr. Justice Johnston

delivered the opinion of the court.

This is an action in assumpsit brought by William E. Williams, the plaintiff, against The Western Union Telegraph Company, the defendant, to recover damages for an alleged breach of contract by the defendant for erroneously transmitting a telegram sent by the plaintiff to the Precision Chain Corporation.

The case was tried before the court without a jury. The court found against the defendant, assessed the plaintiff’s damages at the sum of $447, and entered judgment on the finding. From the judgment the defendant has prosecuted this appeal. o

The statement of claim of the plaintiff is based on the theory that after the report “had been delivered” to the Precision Chain Corporation, the Precision Chain Corporation “appropriated” the report and “made public” the report, and refused “to pay the plaintiff the difference between $53 and $500”; that the “plaintiff was unable to collect the same from said Precision Chain Corporation”; and “that by reason of the carelessness and negligence on the part of the defendant, through its agents, servants and employees in that behalf, plaintiff has suffered a loss of four hundred and forty-seven dollars ($447).” In reaching its finding in the amount of $447, which is the difference between the $500 and the $53, the court proceeded on the theory on which the statement of claim is based.

The plaintiff was a consulting engineer of over 45 years experience, and was an expert in patent matters. His chief occupation consisted in making reports as to the commercial value of industries founded on patents and mechanical devices. He had prepared an extensive report on the “Precision Chain” and of the machinery for the manufacture of the chain and the relative value of the chain as a silent drive chain in the automobile industry. A number of firms had been negotiating for a copy of the report. The original report had been given by the plaintiff to a client of the plaintiff before any negotiations for the report had been entered into between the plaintiff and the Precision Chain Corporation. The original report was given to the client for the information of the client only, and the client did not make the report public. The negotiations between the plaintiff and.the Pre- . cisión Chain Corporation were begun by the Precision Chain Corporation sending a telegram to the plaintiff asking for the report.

In answer to that telegram the plaintiff on July 26, 1924, sent the Precision Chain Corporation the following telegram, which was the telegram that was erroneously transmitted by the defendant: “Upon receipt of telegram from you saying you will send me check for five hundred dollars for part expense of report I will put report in special delivery Twentieth Century mail Sunday Answer my residence Seven Eleven Linden Avenue Wilmette Illinois.”

The error which the defendant made was that it changed the $500 in the original telegram to $53 in the telegram as transmitted to the Precision Chain Corporation. When the Precision Chain Corporation received the erroneous telegram it apparently assumed that the plaintiff was offering to sell his report for $53. The Precision Chain Corporation thereupon on July 28, 1924, sent the plaintiff the following telegram: “Tour telegram not received until this morning Will send your check today, Mail report positively Twentieth Century today Wire.”

Immediately on receiving this telegram the plaintiff under a mistake of fact sent the report to the Precision Chain Corporation. On July 30, 1924, the plaintiff received a letter from the Precision Chain . Corporation inclosing a check to the plaintiff for $53. The plaintiff at once telegraphed and wrote the Precision Chain Corporation that an error had been made in the amount of the check, and returned the check in the letter, but did not ask for the return of the report. In reply to the plaintiff’s telegram and letter the Precision Chain Corporation on July 31, 1923, wrote the plaintiff the following letter:

“On Monday morning, July 28th, we received a telegram dated July 26th and signed by you, as follows: ‘Upon receipt of telegram from you saying you will send me check for $53.00 part expenses of report I will put report in special delivery 20th Century mail Sunday Answer my residence 711 Linden Ave Wilmette Illinois.’ You will note the figure quoted is $53.00. This represented about what we thought your report would be worth to us. The original telegram is in our possession. We received the report, ond also your telegram calling for $500.00, you assuming that the telegram had specified that amount. We also received this morning your letter of July 30th in explanation. Yesterday, July 30th, we received what the Western Union calls a duplicate of your telegram of July 26th, but in this the amount is $500, whereas the original called for $53.00. The error apparently lies with the Western Union. We feel sure that you know we are, and have been, proceeding in entire good faith. Through no fault of ours an error has been made. We have the report, and our check for $53.00 which you returned. We should not have been willing to consider paying $500.00. We do not ■estimate the final value of your report at the sum of $53.00, but that is its present value to us. We shall be glad to receive your further comments.”

After the letter was received by the plaintiff, as far as the record shows, nothing was done further in the matter either by the plaintiff or by the Precision Chain Corporation. It does not appear from the record that after the plaintiff received this letter of July 31, 1924, from the Precision Chain Corporation he ever directed the Precision Chain Corporation to return the report to him or notified the Precision Chain Corporation that he would not permit that corporation to use the report.

Assuming, for the sake of argument, that the plaintiff may recover damages from the defendant for the value of the report if it was unlawfully appropriated and published by the Precision Chain Corporation, it is evident that the plaintiff must show that the report was unlawfully appropriated and published by the Precision Chain Corporation. If the Precision Chain Corporation unlawfully published the report, such publication would have' been an appropriation of the report. But has the plaintiff shown that the Precision Chain Corporation unlawfully published the report? In this view of the case the first question that arises on the evidence is when and how did the Precision Chain Corporation appropriate the report and make it public. The only evidence in this respect is the testimony of the plaintiff that the Precision Chain Corporation made the report public, “used it in exploiting their business,” and that “they are using it today.” There is no evidence, however, that we can find, as to when the report was made public by the Precision Chain Corporation, or that the plaintiff ever made a demand on the Precision Chain Corporation to return the report. The evidence does not show that when the plaintiff sent the telegram to the Precision Chain Corporation informing it of the mistake, and wrote the letter to the company returning the check for $53 to it, the plaintiff notified the company, either in the telegram or in the letter, to return the report to him. After the plaintiff sent the telegram and returned the $53 to the Precision Chain Corporation, the Precision Chain Corporation wrote the letter of July 31, 1924, to the plaintiff stating that the company had the report. It is obvious that if the report was made public by the Precision Chain Corporation before the plaintiff received its letter of July 31, 1924, a materially different question would be presented jfrom the question which would arise if the Precision Chain Corporation had made the report public after the plaintiff had received that letter. It will be observed that after stating that the Precision Chain Corporation has “the report” the letter concludes: “We shall be glad to receive your further comments.” The record does not show that the plaintiff made any “further comments” or gave any directions in regard to the report. Apparently the plaintiff permitted the Precision Chain Corporation to keep the report notwithstanding the fact that the plaintiff had the opportunity to make a demand on the Precision Chain Corporation to return the report to him. It is true that the plaintiff testified: “As they [the Precision Chain Corporation] are the parties in interest, in exploiting and raising money, they have my report and are publishing it right along, and there would be no chance for me to sell what the investors might easily get for nothing.” In other words, it is the contention of the plaintiff that the negligence of the defendant made it possible for the Precision Chain Corporation to appropriate and to publish the report, and that the publication of the report by the Precision Chain Corporation rendered the report valueless. These contentions presuppose that the evidence establishes the fact that the plaintiff was powerless to prevent the Precision Chain Corporation from appropriating and publishing the report, and that the publication of the report by the Precision Chain Corporation was not made because of any failure on the part of the plaintiff to assert his legal rights to reclaim the report. But since the evidence does not show that the Precision Chain Corporation published the report before the plaintiff had an opportunity to prevent its publication, or before the plaintiff had an opportunity to forbid its publication, or that the publication of the report was made after a demand by the plaintiff that the report should be returned to him, the plaintiff is not in a position to make such contentions. Apparently as far as the record shows, the plaintiff acquiesced in the use which the Precision Chain Corporation made of the report.

Whether the plaintiff can be charged with having neglected to demand the return of the report in time to prevent its publication by the Precision Chain Corporation, or with having made it possible by his acquiescence or inaction for the Precision Chain Corporation to publish the report, cannot be determined in the absence of evidence fixing the time when the Precision Chain Corporation actually published the report. The evidence does not show that the Precision Chain Corporation published the report without giving the plaintiff an opportunity to direct the Precision Chain Corporation to return the report to the plaintiff. On the contrary, the letter of the Precision Chain Corporation of July 31, 1924, invited the plaintiff to indicate what his attitude might be in the circumstances. If at that time the Precision Chain Corporation had not published the report, the plaintiff should have demanded that the report be returned to him. If the Precision Chain 'Corporation had refused to comply with such a demand, then a different question might be presented.

The plaintiff testified that after the delivery of the report to the Precision Chain Corporation, the report “had no further value” to him; that he “could find no other market for it.” This testimony alone is wholly insufficient to show that the value of the report was destroyed. It would have to be shown further that the Precision 'Chain Corporation had made the report public. The mere delivery of the report to the Precision Chain Corporation, without publication of the report by the Precision Chain Corporation, obviously would not destroy the value of the report. If the report had not been published by the Precision Chain Corporation after its delivery to the corporation, the value of the report would have been unimpaired, and the report could have been returned to the plaintiff if the plaintiff had so demanded. That the mere delivery of the report to the Precision Chain Corporation, without publication by it of the report, did not render the report valueless, is shown by the testimony of the plaintiff, in which he stated that the original report had been given to a client of his for the client’s own information, and that the client did not make the report public.

We are of the opinion that on the present record the plaintiff is not entitled to recover for the value of the report; that the only damages that he is entitled to recover are practically nominal damages, namely, the cost of the telegram which was erroneously transmitted by the defendant, the cost of the telegram notifying the Precision Chain Corporation of the mistake made by the defendant, and the postage on his letter.

Counsel for the defendant have argued the question of damages on the theory that the negligence of the defendant was not the proximate cause of the plaintiff’s damages, if any, but that the act of the Precision Chain Corporation in making the report public was the proximate cause of any damages the plaintiff may have sustained, and, furthermore, that the plaintiff cannot recover damages on the basis of the market value of the report because such damages are too speculative and conjectural. Counsel for the plaintiff contends that the measure of damages is the difference between the amount specified in the correct telegram, namely, $500, and the amount in the telegram erroneously transmitted, namely, $53.

In the view that we have taken of the case it will not be necessary to consider any of these contentions.

For the reasons stated the judgment of the trial court is reversed and the cause remanded.

Reversed and remanded.

Hatchett, P. J., and HcSurely, J., concur.


text:
    Peter J. Sobieski, Guardian of the Estate of Walter Sobieski, a Minor, Appellee, v. City of Chicago, Appellant.
    Gen. No. 30,613.
    1. Pleading — order granting leave to amend as effecting amendment. An order granting leave to amend a pleading does not constitute an amendment thereof, and until the amendment is in fact made the pleading will remain as if no leave to amend had been granted.
    2. Pleading — treatment by. parties of petition for mandamus as amended pursuant to leave as warranting order based upon amendment as proposed but not in fact made. Where following the making of an order granting leave to amend a petition for mandamus the parties treated the proposed amendment as having been made, although it was not in fact made, the court may base its order upon the petition on the assumption that the petition has been amended as proposed.
    3. Appeal and error — order granting leave to amend as part of common-law record. An order of the court granting leave to amend a petition for mandamus is a part of the common-law record of the proceedings for purposes of review.
    4. Appeal and error — proposed amendments to pleading recited in order granting leave to amend as part of common-law record. Where proposed amendments to a petition for mandamus are recited in the order granting leave to make them, such amendments thereby become part of the common-law record of the proceedings for purposes of review.
    5. Appeal and error — sufficiency of record to permit affirmance of mandamus order based upon proposed amendment of petition authorised but not in fact made. Where following the making of an order granting leave to amend a petition for mandamus the parties treated the petition as having been so amended, although the amendments were not in fact made, the reviewing court is not precluded from affirming an order for mandamus based upon the petition as proposed to be amended on the theory that the amendments are not before the court because not included in the bill of exceptions, since the order granting leave, reciting the proposed amendments, is a part of the common-law record.
    6. MAndamus- — general demurrer as including attach) upon petition for failure to show right of petitioner to sue in representative capacity. The objection that a petition for mandamus is defective in that the petitioner, although suing as guardian, does not allege his appointment by any court or make profert of his letters of guardianship, cannot be raised by general demurrer.
    7. Mandamus — propriety of dAreattng writ to pay judgment to city and named officers thereof. A writ of mandamus directing payment of a judgment is not erroneous because directed, not only to the defendant city, but also to certain named officers thereof, on the theory that it is capable of a 'construction as directing such officers to pay the judgment out of their own pockets.
    Appeal by defendant from the Circuit Court of Cook county; the Hon. Putt,tp L. Suulivan, Judge, presiding. Heard in the first division of this court for the first district at the October term, 1925.
    Affirmed.
    Opinion filed June 14, 1926.
    Rehearing denied July 2, 1926.
    Francis X. Busch, Corporation Counsel, and John J. Kelly, City Attorney, for appellant; Daniel V. Gallery, Assistant Corporation Counsel, and Earl B. Dickerson, Assistant City Attorney, of counsel.
    Morse Ives, H. H. Patterson and C. C. Bodenstab, for appellee.
   Mr. Justice Johnston

delivered the opinion of the court.

This is an appeal by the City of Chicago, the respondent, from an order in a mandamus proceeding-directing the respondent to pay a judgment in the sum of $10,000 with interest, recovered against the respondent by Peter J. Sobieski, the petitioner, in an action in which the petitioner sued as “father and next friend” of Walter Sobieski.

On June 26,1925, the respondent filed a general and special demurrer to the petition. On July 2, 1925, the court entered an order sustaining the demurrer, giving the petitioner leave “kv file an amended petition,” and ordering the respondent “to plead, answer or demur to the petitioner’s amended petition.”

On July 3, 1925, on motion of the petitioner, it was ordered that the petitioner have leave to amend his petition as follows:

“1. By striking out all of Paragraph 4 of said petition and inserting in lieu thereof the following: ‘Tour petitioner further alleges that an January 25th, 1925. said City Council of Chicago passed its annual appropriation ordinance and made an appropriation of $500,000.00 for the payment of principal and costs of judgments against the City of Chicago; that said annual appropriation Ordinance was afterwards amended on March 11th, 1925; that the said fund is known and designated by the Comptroller of the City of 'Chicago as 22-V; that upwards of $75,000.00 of said fund is now in the Treasury of the City of Chicago.’

“2. By inserting at the end of Line 8 of Paragraph 7 after the word ‘failed’ the following: ‘To include this judgment in the Annual Appropriation Ordinance passed by the City Council of Chicago, on January 25, 1925, and amended by the City Council on March 11, 1925.’ ”

The order of July 3, 1925, further directed the respondent to plead, answer or demur to the petitioner’s amended petition. On July 7, 1925, assuming that the proposed amendments had been inserted in the original petition, the respondent filed a general and special demurrer. On July 10, 1925, the court overruled this demurrer. The order overruling the demurrer contained the following recital: “This cause coming on to be heard upon the respondent’s demurrer to the petition of the petitioner as amended and after arguments of counsel and due deliberation by the court said demurrer is overruled.”

It is conceded that the petitioner never actually amended the petition. The facts are, however, that the respondent treated the petition as having been amended and on that assumption filed a second demurrer which differed from the demurrer to the original petition. These facts in our opinion are important and should be given decided emphasis. The record shows that the second demurrer was materially different from the demurrer to the original petition, in that the second demurrer omitted a ground of demurrer which was contained in the demurrer to the original petition, and which ground of demurrer rendered the proposed amendments to the original petition necessary. In other words, the second demurrer was drawn on the assumption that the proposed amendments actually had been made to the original petition. That this conclusion is correct will appear from an inspection of the ground of demurrer which was contained in the demurrer to the original petition and which ground of demurrer was omitted from the second demurrer. The ground of demurrer in question is as follows: “Said petition does not state facts to show that money now held by the defendant is not otherwise appropriated, nor does it set up or name any specific fund or funds from which judgment mentioned in said petition may be paid.”

The principal assignment of error on which the respondent asks for a reversal of the order allowing the writ of mandamus is that since the order is based on an amended petition, when in fact there was no amended petition, the order is void. The respondent contends that the original petition cannot be considered as having been amended; that the leave to amend did not constitute an amendment.

It is true that the general rule is well established that leave to amend a pleading does not constitute an amendment, and that until the amendment is in fact made, the pleading will remain as if no leave to amend it had been given. Ogden v. Town of Lake View, 121 Ill. 422, 424, 425; Wisconsin Gent. R. Co. v. Wieczorek, 151 Ill. 579, 583; Condon v. Schoenfeld, 214 Ill. 226, 231; Northern Trust Co. v. Sanford, 308 Ill. 381, 392; People v. Cleveland, C., C., & St. L. R. Co., 314 Ill. 455, 457. That question, however, is not the real one that is presented on the record in the case at bar. The question in the case at bar is not whether the order granting leave to amend the petition constituted an amendment of the petition. The exact question is whether the fact that all of the parties treated the proposed amendments actually as having been made, justified the trial court in entering the order issuing the writ of mandamus on the theory that the petition had been amended as proposed. In our opinion this question should be answered in the affirmative on the authority of Hinchliffe v. Wenig Teaming Co., 274 Ill. 417, 425; and Bildhauer v. Slovenska Narodna Podporna Jednota, 234 Ill. App. 350, 355, which hold that where the parties treat a proposed amendment as having been made, it may be considered by the court as having been made. It has been similarly held in principle in other jurisdictions. Johnston v. Farmers’ Fire Ins. Co., 106 Mich. 96, 99; Horne v. Meakin, 115 Mass. 326, 330; Kretser v. Cary, 52 Wis. 374, 378.

Counsel for the respondent place great reliance on the case of Wisconsin Cent. R. Co. v. Wieczorek, supra, as supporting their contention that the proposed amendments can not be treated by the parties as having been made. In the case of Hinchliffe v. Wenig Teaming Co., supra, the court distinguished the case of Wisconsin Cent. R. Co. v. Wieczorek, supra, on the ground that in the latter case there was “nothing to show” that the parties proceeded as if the amendments actually had been made. The reasons for the general rule that leave to amend does not constitute an amendment are stated in the case of Wisconsin Cent. R. Co. v. Wieczorek, supra, as follows (p. 584):

“The judgment of courts of review must always be formed upon the record, and from that alone. If they should assume to cure mistakes or omissions of the parties or counsel in the court below, by supplying matters omitted, inadvertently or otherwise, from the record, they might in like manner change the record in other respects, to the detriment of parties litigant. To do so would introduce the greatest uncertainty and confusion, be the exercise of a power with which they are not vested, and destroy the security and certainty which should inhere in judicial proceedings. ’ ’

These reasons do not apply to the case at bar. The record in the case at bar contains the proposed amendments. The respondent had full knowledge of the proposed amendments and drafted the second demurrer with the proposed amendments in mind and actually as if they had been made part of the original petition. The court below did not change the record to the detriment of the parties, nor is this court changing the record to the detriment of the parties. The court below adopted the record made by the parties themselves, and that is what this court is doing. The court below did not attempt to cure the mistake or omission of the parties and this court is not attempting to cure such mistake or omission. The parties themselves cured the mistake or omission by treating as done what the court below gave leave to be done. Neither party has been injured in any respect whatever, and neither party is in a position to complain of any injury. The security and certainty which should inhere in judicial proceedings is not destroyed, for the record has been made secure and certain by the act of the parties themselves.

Counsel for the respondent contend that “this court cannot look at the order for the proposed amendment and cannot know how appellee proposed to amend”; that “what the amendment was to be appears only in the order recited in the clerk’s record”; that the “proposed amendments must be set forth in a bill of exceptions”; that “the clerk’s record can do no more than show that leave was given, if indeed it can show that.” No authorities are cited by counsel for the respondent in support of their contentions. From our examination of the decisions we are of the opinion that since the proposed amendments were made part of the order which granted leave to amend the petition, the proposed amendments are part of the record proper and may be inspected and considered by this court even though they may not be incorporated in a bill of exceptions. There is some confusion in the authorities on the general proposition as to what part of the proceedings may be shown by the record proper, and what part should be preserved in a bill of exceptions. Some of the authorities tend to broaden the function of the record proper and to permit it to contain as large a part of the proceedings as possible. The tendency of other authorities is to restrict the function of the record proper and to enlarge the scope of the bill of exceptions. In view of the lack of harmony of the decisions, it is difficult in some instances to determine just what part of the proceedings may be recited in the record proper, and what part should be incorporated in the bill of exceptions. In the case at bar, however, we do not consider the question in controversy a doubtful one. Although we have been unable to find a decision by the Supreme Court directly in point, we think that the conclusion we have reached is readily deducible from well established general principles. The rule is firmly settled that pleadings and “interlocutory judgments” are part of the record proper. Grand Pacific Hotel Co. v. Pinkerton, 217 Ill. 61, 77; Baldwin v. McClelland, 152 Ill. 42, 52; Van Cott v. Sprague, 5 Ill. App. 99, 101. In our system of practice the term “interlocutory judgment” is synonomons with the term “order.” In the case of People v. Circuit Court of Cook County, 169 Ill. 201, the court said (p. 215): “An ‘order’ is interlocutory and made on motion or petition. An ‘order’ has been defined to be ‘any direction of a court other than a judgment or decree made in a cause. ’ ” In Bouvier’s Law Dictionary (vol. II, p. 28) an interlocutory judgment is defined to be a judgment “given in the middle of a cause upon some plea, or proceeding, or default which is only intermediate and does not finally determine or complete the suit.” The order granting leave to file the proposed amendments being an interlocutory judgment is part of the record proper. Unless the record proper contained an order allowing the proposed amendments, no amendments could have been filed. Davis v. Lang, 153 Ill. 175, 180; Deutsch-Romisch Katholischer Central Verein v. Lartz, 192 Ill. 485, 488; Gilbert v. Houck Piano Co., 159 Ill. App. 347, 348. We recognize, of course, the rule that the facts and circumstances surrounding the order would have to be preserved in a bill of exceptions before they could be reviewed. It is not necessary, however, to incorporate the order in a bill of exceptions, as the order itself is part of the record proper. Clerks of courts are directed by statute to “keep and preserve complete records of all the proceedings and determinations” of their courts, Cahill’s St. ch. 25, ¶ 13, and to “enter of record all judgments, decrees and orders of their respective courts, before the final * * * terms thereof, or as soon thereafter as practicable.” (Cahill’s St. ch. 25, ¶ 14.)

It has been expressly held that it is essential for the record proper to show an order striking a pleading from the files; that where the record proper shows no order on a motion to strike a pleading from the files, the ruling on the motion will not be reviewed, although recited in the bill of exceptions. Gaston v. Marengo Imp. Co., 139 Ala. 465, 467; Powell v. Henry, 96 Ala. 412, 414, 415.

In the case of Powell v. Henry, supra, the court said (p. 414): “A motion to strike from the files a demurrer is itself a part of the pleadings in the cause, constitutes a part of the record proper of the primary court, and must be brought here as a part of the transcript of that record, and not as a mere statement of the presiding judge embodied in a bill of exceptions. * * * Indeed this alleged ruling itself could only be shown by the record.” The order in the case at bar relates to the pleadings, actually contains the proposed amendments, and grants leave to the petitioner to file only those amendments. The proposed amendments, being part of the order, are necessarily part of the record proper.

Counsel for the respondent further maintain that since the petition shows that the petitioner is suing in a representative capacity, as guardian, and since the petition does not allege that he was appointed guardian by any court, and does not make proferí of letters of guardianship, the petition is fatally defective on general demurrer.

We have not been referred to any decision of the Supreme Court of Illinois on the precise question; but counsel for the respondent have cited an Appellate Court decision — Foster v. Adler, 84 Ill. App. 654— which supports their contention.

We do not think that the case of Adler v. Foster, supra, should be followed, as in our opinion it is opposed to the weight of authority, which is to the effect that an objection to a defect such as is shown in the petition in the case at bar cannot be raised by a general demurrer, but only by a special demurrer (6 Encyc. Pl. and Pr. 323; Radabaugh v. Silvers, 135 Ind. 606; Campbell v. Baldwin, 6 Blackf. [Ind.] 364, 365; Fulton Fire Ins. Co. v. Baldwin, 37 N. Y. 648, 649; Secor v. Pendleton, 47 Hun. [N. Y.] 281, 283), or by a special plea. Liska v. Chicago Rys. Co., 318 Ill. 570, 578. In the case at bar the objection was not raised by the special demurrer nor by a special plea.

Counsel for the respondent further contend that the order issuing the writ of mandamus is erroneous because it not only directs the City of Chicago to pay the judgment, but also directs “William E. Dever, Mayor of said City, Martin J. O’Brien, Comptroller of said City, and John A. Cervenka, City Treasurer of said City,” to pay the judgment, and that “the writ is so worded that it could easily be construed as directing the individuals to pay the judgment out of their own pockets.”

We do not think that the writ reasonably can be so construed.

For the reasons stated the order of the trial court is affirmed.

Affirmed.,

Matchett, P. J., and Me Surely, J., concur.