text:
    Washingtonian Home of Chicago, Appellant, v. Gregory T. Van Meter and George F. Harding, Appellees.
    Gen. No. 40,084.

      Heard in the second division of this court for the first district at the April term, 1938.
    Opinion filed December 13, 1938.
    Edward H. S. Martin and John B. King, both of Chicago, for appellant.
    Arthur J. Murphy, of Chicago, for appellees.
   Mr. Justice Burke

delivered the opinion of the court.

This appeal is prosecuted by plaintiff from a decree of the circuit court of Cook county, entered January 26, 1938, sustaining defendants’ motion to dismiss the two count complaint. The first count, headed, “Separate Action in Chancery,” avers, in substance, that on September 22, 1921, defendant Van Meter executed and delivered to plaintiff his principal promissory note in the sum of $1,100, payable to the order of plaintiff 5 years after date, with interest at 6 per cent per annum, payable semiannually; that to secure payment thereof said defendant executed and delivered his deed mortgaging certain real estate in Cook county, which deed contained the following clause: “It is agreed by the mortgagor that all expenses and disbursements paid or incurred in behalf of complainant in connection with the foreclosure hereof whether by bill or cross-bill, or at law, or in chancery, including reasonable attorney’s and solicitor’s fees, . . . shall be paid by the mortgagor; and the like fees, expenses and disbursements incurred or paid by the mortgagee or its successors in any suit or proceeding wherein the mortgagee, or its successors, as such, or as holder of said notes, or any of them, may be a party either as complainant, cross-complainant, plaintiff or defendant shall also be paid by the mortgagor. All such fees, expenses and disbursements shall be an additional lien hereunder, and shall be included in any decree that may be rendered in such foreclosure proceeding, which proceeding, whether decree of sale shall have been entered or not, shall not be dismissed, nor a release hereof given, until all such fees, expenses and disbursements and the costs of suit, including attorney’s and solicitor’s fees have been paid. . . . And it is further mutually understood and agreed by and between the said parties hereto that the covenants and agreements herein contained or entered into shall apply to, and as far as the law allows, be binding upon, and be for the benefit of, the heirs, executors, administrators, successors and assigns of the said parties, respectively”; that thereafter said defendant, by written extension agreements, the last of which was consented to in writing by defendant Harding, extended the date of payment of the balance then due to September 22, 1935; that on the extension agreement of November 12,1934, between defendant Van Meter and plaintiff, and below their signatures, appear the words, “I hereby consent to the foregoing extension, but have no interest in the property. [Signed] George F. Harding”; that defendant Harding, for a valuable consideration, on September 22, 1921, and at various times thereafter, on dates to plaintiff unknown but well-known to defendants, to and including February 16, 1937, orally agreed with Van Meter that Harding would assume and agree to pay said principal note and all moneys secured to be paid by said mortgage deed, and caused to be paid to plaintiff on February 12, 1936, $100 by joint check of Harding and Van Meter, thereby reducing the • amount of principal at that time to $722.52; that Harding on November 8, 1933, in accordance with the mortgage deed, caused the building on said real estate to be insured in his name as owner, against loss or damage by fire, and a policy of insurance to be issued for 5 years from November 8, 1933, with mortgage clause providing that loss or damage, if any, should be payable to plaintiff, and caused the policy to be delivered to plaintiff; that on February 14, 1936, the balance not having been paid, plaintiff filed its complaint in the superior court of Cook county, at law, against defendants, seeking to recover judgment for the amount then due upon the principal note; that after a long and vexatious contest by defendants, Harding, on February 16,1937, paid the balance due on the note, with clerk’s costs and sheriff’s fees, a total of $801.96, and plaintiff canceled and surrendered the note to the attorney of record for Harding and caused the suit at law to be dismissed; that plaintiff was compelled to and did employ and retain attorneys to institute and prosecute the suit at law and at the conclusion thereof was compelled to and did pay as fees to the attorneys therein $350, a fair and reasonable fee for such services, and not in excess of the usual and customary fees charged by attorneys at law practicing in Cook county for similar services to those so performed by plaintiff’s said attorneys; that said Van Meter and Harding are liable to plaintiff for the payment of such money and the same is a lien upon said premises under the mortgage deed, with interest at 7 per cent per annum from date of payment of said attorney’s fees; that before instituting the suit at law plaintiff urged defendants to pay the balance due on the principal note and avoid liability for said court costs and attorney’s fees, and told them they would be liable therefor if the suit were instituted, and during the pendency of the suit at law urged defendants to cease their vexatious and dilatory defense and pay their obligations before the attorney’s fees increased further in amount; that before filing the instant complaint plaintiff urged defendants to pay plaintiff the amount paid by it for said attorney’s fees without further litigation, and thus save and avoid court costs and solicitors’ and attorneys’ fees in this suit; that defendants failed and refused to pay the $350 or any part thereof; that all said notes and coupons have been paid, canceled and surrendered; that plaintiff will be compelled to procure an abstract of title for use in this foreclosure proceeding and the expense thereof will be an additional lien under said mortgage; that plaintiff has been compelled to retain an attorney and solicitor for the purpose of instituting this proceeding and the proceedings joined therewith and has and will become obligated to its attorney and solicitor for payment of his fair and reasonable, usual and customary charges in conducting the same, and the indebtedness so incurred is and will be an additional lien upon the mortgaged premises under the mortgage deed, and plaintiff asks that the mortgage deed be decreed a first, valid and paramount lien on said property, and that the amounts found due plaintiff upon such accounting be decreed to be a lien against the premises; that defendants be required to pay the same and in default thereof that the property be sold. The second count, described as a “Separate Action at Law, ’ ’ realleges the averments above set out and prays judgment against defendants for $350, with interest. Defendants filed a motion to dismiss, asserting that plaintiff’s complaint is substantially insufficient in law and equity in that “ (1) Plaintiff has not in said complaint made or stated such a cause of action as entitles it in a court of equity to any recovery or relief from or against defendants. (2) It appears by the complaint, Paragraphs 6 and 9, that all notes and coupons mentioned in the mortgage deed referred to in said complaint and mentioned in any extension agreement set forth therein, have been paid, cancelled and surrendered before the filing of plaintiff’s complaint. (3) It appears by said mortgage deed that mortgagor is to be liable to mortgagee for attorneys’ and solicitors ’ fees only in connection with foreclosure of said mortgage. (4) It appears by the complaint that plaintiffs commenced a suit at law in Superior Court of Cook County against defendants, seeking judgment for $722.50, the amount alleged to be then due on the principal note, which proceedings by stipulation were subsequently dismissed Feb. 16,1937, said Van Meter having on that day paid the balance due, with clerk’s costs and sheriff’s fees, a total of $801.96, and thereupon said principal note was cancelled by plaintiff and delivered to defendants. (5) It appears by the complaint that no foreclosure proceedings were instituted and that said note and interest was fully paid, cancelled and surrendered before commencement of this action. (6) The payment, cancellation and surrender of said note extinguished the debt and discharged the entire lien of said mortgage deed, which had expended its force before filing of complaint herein and the premises covered thereby were discharged therefrom, all of which precludes plaintiff from foreclosure of said mortgage deed. (7) As appears by the complaint, no foreclosure was necessary or instituted to collect the balance due on said note and said mortgage deed contains no agreement to pay any attorney’s fee without foreclosure. (8) It appears by the complaint that neither of these defendants are indebted to plaintiff.” Defendant Van Meter also filed a counterclaim in which he set up that on February 16, 1937, the amount of principal due on the note was paid and that plaintiff then and there canceled and surrendered the note to the attorney for defendant Van Meter; that the debt secured by the mortgage having been paid in full and the note having been canceled and delivered to said defendant, the latter demanded a release of the mortgage, which plaintiff refused to give, and defendant prays that the mortgage be delivered up to him for cancellation, that plaintiff be ordered to execute and deliver to said defendant a release of the mortgage, and that the mortgage be extinguished and the premises discharged from the lien thereof. No action was taken on the counterclaim and the same is still pending.

The first proposition urged by plaintiff is that the note and mortgage are to be construed and considered together. The rule is well established that where different instruments are executed as evidence of one transaction they are to be read together. The second point presented is that in the previous suit at law in the superior court the provision in the mortgage for payment of attorney’s fees incurred in that suit could not have been enforced therein for the reason that such provision was not a part of the note and the fees were not incurred or paid until the suit was instituted. As authorities counsel cite Dearlove v. Edwards, 166 Ill. 619; Easter v. Boyd, 79 Ill. 325; Nickerson v. Babcock, 29 Ill. 497; Anderson v. Terhune, 206 Ill. App. 348; Pitzer v. McCune, 152 Ill. App. 144. An examination of the cases discloses that they support the contention advanced by plaintiff. Defendants do not call our attention to any cases to the contrary. While not raised by the parties, we invite attention to the provisions of section 39 of the Civil Practice Act [Ill. Rev. Stat. 1937, ch. 110, § 163; Jones Ill. Stats. Ann. 104.039] that, subject to rules, supplemental pleadings, setting up matters which have arisen after the original pleadings were filed, may be filed within a reasonable time by either party by leave of court and upon terms. Hence we are not called upon to decide as to whether under that section and with a factual situation similar to the instant case plaintiff would have a right to include a claim for attorneys’ fees in a supplemental complaint. In any event it would appear that such a move would be optional on plaintiff’s part.

Defendants urge, first, that the debt secured by the mortgage being the principal thing, and the mortgage being merely an incident thereto, when the debt "is discharged the provisions of the mortgage lose their force and the entire lien of the mortgage is discharged; and, second, that provisions for attorneys’ fees are to be strictly ■ construed and such fees cannot be recovered unless so provided by the note or the mortgage deed. On the latter proposition, plaintiff, while agreeing that provisions for attorneys’ fees are to be strictly construed, argues that the mortgage plainly provides for the payment of attorneys’ fees. Plaintiff insists that defendants’ liability to reimburse plaintiff for fees paid by it to its attorneys for their services in the former suit was created by contract. The mortgage provides that the mortgagor shall pay the fees, expenses and disbursements incurred or paid by the mortgagee, or its successors, in any suit or proceeding wherein the mortgagee, or its successors, as such, or as holder of said notes, or any of them, may be a party either as complainant, cross-complainant, plaintiff or defendant, and that such fees, etc., shall be an additional lien thereunder,1 ‘ and shall be included in any decree that may be rendered in such foreclosure proceeding, which proceeding, whether decree of sale shall have been entered or not, shall not be dismissed, nor release hereof given until all such fees, expenses and disbursements and the costs of suit, including attorney’s and solicitor’s fees, have been paid.” Defendants assert that the debt having been paid, the mortgage, its incident, was extinguished. It must be borne in mind, however, that before the debt was paid it had become necessary (according to the complaint) for plaintiff to institute and prosecute an action against defendants and thereby to incur attorneys’ fees. The fees thus incurred were paid after the termination of the law suit. In the cases of Huber v. Brown, 243 Ill. 274, and Macaulay v. Dorian, 317 Ill. 126, a provision such as the one in the case at bar was sustained as supporting a claim for fees incurred in a case other than the foreclosure case. The mortgage in •the case at bar binds the mortgagor to pay attorneys’ fees incurred or paid in a separate action and establishes a lien on the property to cover the same, and we see no reason why such lien cannot be enforced in a complaint to foreclose. Under the language of the mortgage a release of the lien may not be demanded until all the fees are paid. It would be unreasonable to insist that plaintiff could not assert his lien until the mortgagor demanded a release or brought a complaint seeking that relief. Indeed, the lien would be ineffective if it could not be enforced. At this juncture it is well to remember that upon default in the condition of the mortgage the mortgagee" has several remedies which he may pursue to enforce the payment of his debt. “He may sue the mortgagor in assumpsit for a judgment upon the personal obligation; he may sue in equity for the foreclosure of the mortgage; or he may recover the possession of the mortgaged property by an action of ejectment. These remedies are concurrent or successive, as the mortgagee may deem proper, and he may pursue any two or all three of the remedies simultaneously.” (Rohrer v. Deatherage, 336 Ill. 450, 455.) The mortgage establishes the right of the mortgagee to reasonable attorneys’ fees. The obligation to pay attorneys’ fees in the action at law had arisen and most of the services had been rendered at the time the note was paid, canceled and surrendered and the action dismissed. We are required to assume that the allegations of fact contained in the complaint are true. While the complaint shows that the note was paid, canceled and surrendered and the case dismissed, it does not appear therefrom that any other obligation was discharged. The separate obligation on the part of the mortgagor to pay reasonable attorneys ’ fees which had been incurred, and which were actually paid at the conclusion of the action at law, remained alive.

Defendants allude to various matters in connection with the previous action at law, but such matters do not appear in the record or abstract and therefore cannot be considered. Defendants argue that plaintiff has put them to unnecessary expense. However, in support of that contention they cite matters.that are not in the record. Whether the fees paid by plaintiff are reasonable, will be determined on a trial, and all pertinent and material matters may then be considered.

Defendants’ brief, under the heading, “Statement of the Case, ’ ’ recites that the complaint charges defendant Harding with a promise to pay without alleging facts which support the allegation, and that a purely fictitious and guessed-at promise from Harding to Van Meter to pay the note is set up in both complaints. The proposition is not discussed in the argument, and no authorities are cited by either side. The motion to dismiss does not specifically cover the point. Without having heard or read a discussion of the matter, we are of the opinion that there is an attempt to bind defendant Harding as surety. He did not sign the mortgage. His statement in the extension agreement of November 12, 1934, to the effect that he consents to the extension but that he has no interest in the property, does not impose an obligation on him to pay the debt of Van Meter. We do not believe that the allegations of the complaint set up a cause of action against defendant Harding.

For these reasons, the motion to dismiss, so far as defendant Van Meter is concerned, should have been overruled. While the motion is not as specific as it might be, we are satisfied that the complaint does not state a good cause of action as to Harding, and the motion to dismiss as to him was properly sustained.

The decree of the circuit court of Cook county dismissing the complaint is reversed as to defendant Van Meter and affirmed as to defendant Harding, and the cause is remanded with directions to the chancellor to overrule defendant Van Meter’s motion to dismiss and rule defendant Van Meter to answer, and for further proceedings in accordance with this opinion.

Decree reversed in part and affirmed in part, and cause remanded with directions.

Friend, P. J., and John J. Sullivan, J., concur.


source: Caselaw Access Project

author: Mr. Justice Burke

license: Public Domain

text:
    The Krone Die Casting Company, Appellee, v. Do-Ray Lamp Company, Inc., Appellant.
    Gen. No. 40,159.

      Heard in the second division of this court for the first district at the June term, 1938.
    Opinion filed December 13, 1938.
    Edward J. Rothman, of Chicago, for appellant; Max Chill, of Chicago, of counsel.
    Bennett & Colbach, of Chicago, for appellee.
   Mr. Justice Burke

delivered the opinion of the court.

On motion of plaintiff the court struck the third amended statement of defense and counterclaim and entered judgment against defendant for $177.05, and this appeal brings the record before us for review.

The amended statement of claim recites:

“That at the special instance and request of the defendant, the plaintiff manufactured, sold and delivered to the defendant items of merchandise in the total number of 10,895 at the agreed price of $.01% each; that the said items were manufactured by the plaintiff between the periods of March, 1937 and June, 1937, inclusive; that there is due and owing to the plaintiff from the defendant the sum of $177.05; that the defendant is indebted to the plaintiff in the further sum of $2.15 in the form of interest as provided by the Statutes of the State of Illinois.”

Plaintiff’s bill of particulars recites that

“The Chicago Accessories Brokerage Company on its purchase order No. 5025, dated February 22, 1937, and delivered to the plaintiff, was a purchase for 10,000 clamp castings at the enumerated price of 1%^ each; that the defendants, after receipt of the above order, notified plaintiff to bill the defendants for deliveries made under said order; that on or about the following dates deliveries of said item were made to the defendants and in the amounts set opposite each date, namely:

Date No. of Items Total Price
March 31,1937 1345 Clamps $21.86
April 5,1937 4000 Clamps 65.00
April 6,1937 4650 Clamps 75.56
June 5,1937 900 Clamps 14.63

“That the 895 additional clamps over and above the amounts specified in the order were the additional run made by the plaintiff, and were delivered to the defendants and billed as above described and never returned. ’ ’ The third amended statement of defense and counterclaim of defendant reads:

“Do-Bay Lamp Company, Inc., Defendant, by William J. Denning, its duly authorized agent, who has knowledge of the facts, in answer to the statement of Krone Die Casting Company, a corporation, says:

“1. That it is not indebted to the plaintiff in the sum of $177.05 and $2.15 as alleged in plaintiff’s amended Statement of Claim and bill of particulars, oils this defendant indebted to the plaintiff in any sum whatsoever.

“2. Defendant further states that the plaintiff sold, manufactured and delivered to the defendant the merchandise consisting of clamp castings mentioned in plaintiff’s Statement of Claim, which clamp castings were made from certain dies manufactured and designed by the plaintiff for the specific and particular purpose of casting said clamps, for which dies the defendant paid the plaintiff the amount agreed upon, namely, $160.00.

“3. Defendant alleges that it relied on the judgment of the plaintiff in all respects in the mauufacturing of said clamp castings.

“4. Defendant further states that it informed the plaintiff the specific and particular purpose for which said clamp castings were to he used, namely, ‘to hold the rim and lens of an automobile lamp together by means of a screw ’ and the plaintiff warranted both expressly and impliedly that the clamp castings ordered by the defendant would be fit for the specific and particular purpose for which they were to be used and intended as above set forth. Defendant further states that he informed the plaintiff that the clamp castings were not for active use by the defendant but were for the purpose of re-sale to jobbers and distributors throughout the country.

‘ ‘ 5. Defendant further states that contrary to said warranties, the clamp castings delivered by the plaintiff were ascertained to be unfit for the specific and particular purpose for which they were warranted, and were found" to be weak, defective, improperly and negligently manufactured in one or more of the following respects:

“a. The plaintiff used inferior ingredients in the mixing of the metals for the clamp castings, by reason of which said clamp castings were weak and defective.

“b. The plaintiff was negligent in the pouring of the metals in the dies by reason of which the clamp castings contained air bubbles and caused them to be weak and unfit for the purpose for which they were intended.

“c. The plaintiff was negligent in the manufacturing of the clamps in question in permitting them to be removed from the dies too soon before they were cooled, which caused them to be weak and defective.

“d. The plaintiff was negligent in manufacturing the clamps in question from dies which were inaccurate, imperfect, out of true and improperly and negligently manufactured by reason of which the clamps in question were weak, defective and useless for the purpose intended.

“e. The clamps manufactured by the plaintiff were not finished in a good and workmanlike manner.

“6. Defendant further states that by reason of one or more of the acts of the plaintiff enumerated in paragraph 5, the clamps in question were so defectively manufactured that they did not hold the rim and lenses in place, but broke as soon as they were put into use, causing the rims and lenses to fall out of the lamp and causing them to break and damage.

“7. The defendant further states that by reason of the above, it was forced to replace the broken rims, clamp castings and lamps to various jobbers and distributors and suffered damages far in excess of the purchase price of the clamps.

“8. Defendant alleges that as soon as it was informed by its jobbers and distributors of the situation concerning the clamps and started receiving returns of said clamps, it notified the plaintiff of the facts alleged herein.

“9. Defendant alleges that the plaintiff orally agreed with the defendant at the time of the notification referred to in Paragraph 8, that in view of the facts it would make good, pay and reimburse the defendant for all the damages and expenses incurred by the defendant, which the plaintiff has so far failed to do.

“Wherefore, this defendant states that it is not indebted to the plaintiff in any amount whatsoever, and asks that a judgment may be entered in this defendant’s favor, and that this defendant be dismissed with the costs most wrongfully sustained.

‘1 Third Amended Counterclaim.

“Do-Ray Lamp Company, Inc., a corporation, counter-plaintiff, claims of Krone Die Casting Company, a corporation, as follows:

“1. Counter-plaintiff alleges that at all times hereinafter mentioned, it was a corporation having its place of business in the City of Chicago, County of Cook and State of Illinois, and that it is and was engaged in the business of manufacturing auto accessories and more particularly automobile lamps and lenses and marketing the same through various distributors and jobbers throughout the country.

‘ ‘ 2. Counter-plaintiff further alleges that on, to-wit, in March,-1936, and at all times hereinafter mentioned, the counter-defendant, a corporation, held itself out to be in the special business of manufacturing dies and mailing casting’s therefrom.

“3. Counter-plaintiff alleges that the counter-defendant solicited the counter-plaintiff that it be given orders for clamps, and pursuant to said solicitation, counter-plaintiff fully informed and explained to the counter-defendant the specific and particular purpose for which said clamps were to be intended and used, namely, ‘to hold the rim and lens of an automobile lamp together by means of a screw,’ that the counter-defendant informed the counter-plaintiff that dies would have to be made from which the clamps would be cast, and then and there warranted unconditionally that the dies and any clamps ordered by the counter-plaintiff would be suitable and fit for the express and specific purpose for which they were intended to be used and would be finished in a good and workmanlike manner.

“4. The counter-plaintiff further alleges that fully relying* and depending upon the judgment and ability of the counter-defendant who held itself out to be specialists in the art of die manufacturing, ordered said dies and in due time paid for the same the agreed sum of $160.00, which dies were designed by the counter-defendant.

“5. The counter-plaintiff alleges that thereafter, due to the express and implied warranties of the counter-defendant, that any clamps ordered by the counter-plaintiff would be fit and suitable for the specific and particular purpose for which they were intended and would be finished in a good and workmanlike manner, ordered from the counter-defendant on or about March 31, April 5, April 6, June 5, 1937, and other times, clamp castings.

“6. Counter-plaintiff alleges that contrary to the express and implied warranties of the counter-defendant, as above set forth, it breached the said warranties in the following manner:

“ (a) The clamps were weak and defective.

“(b) They were not finished in a good and workmanlike manner.

“(c) They were not fit for the specific and particular purpose for which they were intended to be used.

“7. Counter-plaintiff alleges that contrary to the express and implied warranties of the counter-defendant, the clamp castings delivered by the counter-defendant were ascertained to be unfit for the specific and particular purpose for which they were intended, and were found to be weak, defective, improperly and negligently manufactured and made in one or more of the following respects:

“(a) The counter-defendant used inferior ingredients in the mixing of the metals for the clamp castings.

“(b) The counter-defendant was negligent in the pouring of the metals in the dies by reason of which the clamp castings contained air bubbles.

“(c) The counter-defendant was negligent in the manufacturing of the clamps in question in permitting them to be removed from the dies too soon before they were cooled.

“(d) The counter-defendant was negligent in manufacturing' the clamps in question from dies which were inaccurate, imperfect, out of true and improperly and negligently manufactured.

“8. Counter-plaintiff further states that by reason of one or more of the acts of the counter-defendant enumerated in Paragraph 7, the clamps in question were so defectively manufactured that they did not hold the rim and lenses together, but broke as soon as they were put into use, causing the rim and lenses to fall out of the lamp and causing them to break and damage.

“9. The counter-plaintiff further states that by reason of the above, it was forced to replace the broken rims, clamp castings and lamps to various jobbers and distributors and suffered damages far in excess of the purchase price of the clamps.

“10. Counter-plaintiff alleges that as soon as it was informed by its jobbers and distributors of the situation concerning the clamps and started receiving returns of said clamps, it notified the counter-defendant of the facts alleged herein.

“11. Counter-plaintiff alleges that the counter-defendant orally agreed with the defendant at the time of the notification referred to in Paragraph 10, that in view of the facts he would make good, pay and reimburse the counter-plaintiff for all the damages and expense incurred by the counter-plaintiff.

“12. Counter-plaintiff further alleges that it has demanded of the counter-defendant all damages sustained by the counter-plaintiff by reason of the unfit and defective clamp castings sold to it.

“13. That by reason of the premises, the counter-plaintiff has suffered damages in the following respects :

“ (a) The die manufactured by the counter-defendant for which counter-plaintiff paid the sum of $160.00 is useless and the purchase price should therefore be refunded.

“(b) It was required to and did replace lenses and lamps to numerous of its customers for which it should be reimbursed.

“(c) It has become liable for large divers sums of money for damages sustained by numerous of its customers by reason of breakage caused by the defective clamp castings for which it should be indemnified.

“(d) The g*ood will and good name of its business was impaired and injured and harmed for which it should be compensated.

“ (e) It has lost numerous of its customers and has thereby lost great profits for which it should be compensated.

“(f) It has lost the use and distribution of the automobile lamps with lenses, which were to be held in place by the said clamp castings, and has by said loss of distribution suffered great damage, for which it should be compensated.

“Wherefore, counter-plaintiff asks for judgment against the counter-defendant in the sum of $5,000 and costs of this action. ’ ’

Plaintiff moved to strike the third amended statement of defense and counterclaim “for the reason that the same does not state a defense or cause of action.” At the hearing defendant made an oral motion to strike the motion of plaintiff on the ground that it failed to set forth in what particular or particulars the statement of defense and counterclaim failed to set forth a defense or cause of action. The court denied defendant ’s motion to strike the motion made by plaintiff, and after argument sustained plaintiff’s motion and entered judgment accordingly.

In logical sequence the first proposition to consider is the contention that the motion on which the court acted in entering judgment was not adequate under Bule 101 of the municipal court of Chicago, which reads:

“Every application to the court in relation to a pleading, other than one made orally in open court at the time of a trial or other proceeding, shall be made by motion in writing signed by the party proposing it, or by his attorney, specifying particularly what is sought by the motion. . . . If it be made on the ground of insufficiency in law it shall specify in what particular or particulars the pleading is insufficient in law, and, if such insufficiency results from the omission of, or defect or defects in, some allegation or allegations of fact necessary to establish a good cause of action or defense, the absence of, or defect or defects in, such allegation or alleg'ations must be specifically pointed out, in order that the opposite party may be afforded an opportunity to make the pleading good by amendment or amendments, if the facts justify such amendment or amendments.” It is apparent that at best the motion would be the equivalent of a general demurrer. Plaintiff seeks to justify the practice followed by citing Rule 307, Revised Civil Practice Rules of the municipal court of Chicago:

“The rules of The Municipal Court of Chicago are to be liberally construed to the end that controversies may be speedily and finally determined according to the substantive rights of the parties and no complaint of a departure from any rule or rules during the proceedings in any action shall be effective when it clearly appears that notwithstanding such departure no injustice has resulted to the party complaining.” If defendant had argued the motion without calling attention to the fact that plaintiff’s motion did not comply with the rule it might be urged that defendant could not now complain. Defendant, having insisted on compliance with Rule 101, we are of the opinion that Rule 307 is not a valid answer to the point raised. The rule which requires that motions set up the grounds on which they are based is a good one. It informs attorneys of what they are expected to meet, prevents surprise, and facilitates the disposition of cases. Had the motion specified the grounds to be urged on the court, as required by the rule, defendant would have had the opportunity of conceding the points before argument, and of asking leave to file an amendment obviating the objections.

The second point urged is that the third amended statement of defense and counterclaim has alleged a good defense and a good counterclaim. The following are pertinent provisions of the Uniform Sales Act (secs. 49, 69 and 70, ch. 121%, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 121.53, 121.73, 121.74]):

“Sec. 49. In the absence of express or implied agreement of the parties, acceptance of the goods by the buyer shall not discharge the seller from liability in damages or other legal remedy for breach of any promise or warranty in the contract to sell or the sale. But, if, after acceptance of the goods, the buyer fail to give notice to the seller of the breach of any promise or warranty within a reasonable time after the buyer knows, or ought to know of such breach, the seller shall not be liable therefor.”

‘ ‘ Sec. 69. (1) Where there is a breach of warranty by the seller, the buyer may, at his election—

“ (a) Accept or keep the goods and set up against the seller, the breach of warranty by way of recoupment in diminution or extinction of the price.

“(b) Accept or keep the goods and maintain an action against the seller for damages for the breach of warranty.

“(c) Refuse to accept the goods, if the property therein has not passed, and maintain an action against the seller for damages for the breach of warranty.

“(d) Rescind the contract to sell or the sale and refuse to receive the goods, or if the gbods have already been received, return them or offer to return them to the seller and recover the price or any part thereof which has been paid.

(2) When the buyer has claimed and been granted a remedy in any one of these ways, no other remedy can thereafter be granted.

“ (3) Where the goods have been delivered to the buyer, he cannot rescind the sale if he knew of the breach of warranty when he accepted the goods, or if he fails to notify the seller within a reasonable time of the election to rescind, or if he fails to return or to offer to return the goods to the seller in substantially as good condition as they were in at the time the property was transferred to the buyer. But if deterioration or injury of the goods is due to the breach of warranty, such deterioration or injury shall not prevent the buyer from returning* or offering to return the goods to the seller and rescinding the sale.

(4) Where the buyer is entitled to rescind the sale and elects to do so, the buyer shall cease to be liable for the price upon returning* or offering* to return the goods. If the price or any part thereof has already been paid, the seller shall be liable to repay so much thereof as has been paid, concurrently with the return of the goods, or immediately after an offer to return the goods in exchange for repayment of the price.

“ (5) Where the buyer is entitled to rescind the sale and elects to do so, if the seller refuses to accept an offer of the buyer to return the goods, the buyer shall thereafter be deemed to hold the goods as bailee for the seller, but subject to a lien to secure the repayment of any portion of the price which has been paid, and with the remedies for the enforcement of such lien allowed to an unpaid seller by section 53.

“(6) The measure of damages for breach of warranty is the loss directly and naturally resulting, in the ordinary course of events, from a breach of warranty.

“ (7) In the case of breach of warranty of quality, such loss, in the absence of special circumstances showing proximate damage of a greater amount, is the difference between the value of the goods at the time of delivery to the buyer and the value they would have had if they had answered to the warranty. ’ ’

“Sec. 70. Nothing in this act shall affect the right of the buyer or the seller to recover interest or special damages in any case where by law interest or special damages may be recoverable, or to recover money paid where the consideration for the payment of it has failed.”

Defendant’s theory, as a defense, is that it is entitled to recoup for losses as to clamps not covered by the counterclaim, as against plaintiff’s claim for the sale and delivery of 10,895 clamps. The basis of the counterclaim is that plaintiff supplied a defective die for which the purchase price had been paid, and sold and delivered 60,000 defective clamps for which the purchase price had been fully paid. A reading of the statement of defense and counterclaim shows that it sets forth all the essential. elements contemplated by the-Uniform Sales Act. So far as the defense is concerned, the statement thereof comes within paragraph (a) of section 69 heretofore quoted. Defendant accepted the goods and set up the loss by way of recoupment in diminution or in extinction of the price. Passing to a consideration of the counterclaim, it will be noted that section 49 provides that the acceptance of the goods shall not discharge the seller from liability in damages or other legal remedy for the breach of any warranty, provided, after the acceptance the buyer gives notice to the seller of the breach of warranty within a reasonable time after the buyer knows or ought to know of such breach. The pleading shows the warranty, the breach thereof, the giving of notice, and the damages suffered. The chief criticism leveled at the pleading by plaintiff, and the one the trial court emphasized, is that the date of the notice is not averred. Paragraphs 10 and 11 recite, in substance, that as soon as defendant was informed by its jobbers and distributors of the situation concerning the clamps and started receiving returns of said clamps, it notified plaintiff of the facts alleged, and that plaintiff orally agreed with defendant at the time of the notification that plaintiff would make good and pay and reimburse defendant for all the damages and expenses incurred by defendant.

We have examined the authorities cited by defendant on the proposition that the mere statement that reasonable notice was given, without setting up the date thereof, is sufficient. The cases, in the main, do not discuss the subject of pleading. They dwell on the merits of the respective cases from the standpoint of substantive law. In the case of Elkus Co. v. Voeckel, 27 Ariz. 332, 233 Pac. 57, a general demurrer attacked a pleading which recited that reasonable notice had been given, and the court held that the pleading was not vulnerable to such a demurrer. That is in accordance with our view, as applied to the motions under consideration here. An objection that the pleading did not give the approximate date of the notice or notices should be specific. While it is true that the question whether notice was given within a reasonable time is one of fact to be determined by the jury, nevertheless, where all reasonable minds would reach the conclusion that the goods were retained an unreasonable length of time before any complaint was made, it then becomes a question of law for the court. Our view is that on proper motions a litigant who asserts that he gave notice within a reasonable time should state with a reasonable degree of certainty the approximate time when he learned of the breach or breaches and the approximate time thereafter when he gave the notice or notices. In view of the fact that plaintiff’s motion did not specify the points on which it relied the motion to strike defendant’s statement of defense and counterclaim should have been denied. Had plaintiff made the motion specific, in all likelihood defendant would have supplied the omission. That is indicated by the fact that when plaintiff’s motion to strike was sustained defendant asked leave to amend by supplying the omission, which leave the court declined to grant. In connection with this phase of the case plaintiff argues that another rule of the municipal court permitted the court to strike the statement of defense and counterclaim on the g’round that it shows no reasonable cause of action or defense. The record shows that the order and judgment were entered on motion of plaintiff and not on the court’s motion.

Plaintiff urges that under the Uniform Sales Act defendant, by asking for a recoupment, elected its remedy and that such election bars it from the remedy of seeking’ damages on account of a warranty. We have pointed out that the statement of defense seeks recoupment or diminution as to certain merchandise, and the statement of counterclaim seeks damages for a breach of warranty as to other shipments of merchandise. Normally, where goods are received and the buyer, who claims a breach, does not return them and his claim for damages is less than the amount of the seller’s bill, he will wait until the seller sues him and then set up his defense. Where the damages asserted are greater than the vendor’s bill, vendee usually sues or sets up the claimed damage in a counterclaim. Plaintiff also asserts that the true measure of damages in a case of this character is the difference between the value of the goods furnished and the value of the goods that should have been furnished in compliance with the warranty. That point clearly should have been raised in the motion to strike. As pointed out by defendant, it was not raised in the motion and it was not raised orally before the trial court, and is mentioned for the first time in this court. However, as the case is being-remanded, we invite attention to the following in 2 Sedgwick (8th Ed.) 479, sec. 766:

“Where an article is warranted fit for a particular purpose, the purchaser can recover the damages caused by an attempt to use it for that purpose. This sometimes gives a larger measure of recovery than would be allowed under the ordinary rule. Where the chattel sold has different values, according to the use for which it is intended, the value which measures the damage is that which the vendor represented it to have with reference to the purpose to which he knew it was to be applied by the vendee.” We are inclined to the view that the items of damage in paragraphs (d), (e) and (f) are too remote, and on a proper motion would be stricken. Defendant could likewise be required to be more specific as to the damage claimed.

For the reasons stated the judgment of the municipal court of Chicago is reversed and the cause is remanded for trial with directions that plaintiff’s motion to strike the third amended statement of defense and counterclaim be overruled.

Judgment reversed and cause remanded with directions.

Friend, P. J., and John J. Sullivan, J., concur.


author: Mr. Justice John J. Sullivan

text:
    City of Chicago, Appellee, v. Robert Dorband, Appellant.
    Gen. No. 39,977.

      Heard in the second division of this court for the first district at the February term, 1938.
    Opinion filed December 13, 1938.

      Arthur F. Gruenwald, of Chicago, for appellant.
    Barnet Hodes, Corporation Counsel, for appellee; L. Louis Karton, Assistant Corporation Counsel, of counsel.
   Mr. Justice John J. Sullivan

delivered the opinion of the court.

By this appeal defendant, Robert Dorband, seeks to reverse a judgment wherein he was found guilty of violating certain ordinances of the city of Chicago and fined $5.

Dorband was a taxicab driver employed by the New Cab Company, which operated its cabs from its place of business in the city of Evanston, Illinois. Louise O’Connell, who lived on Lunt avenue, Chicago, telephoned the office of said cab company requesting that a taxicab be sent to her home. When the taxicab arrived, upon entering same with her mother, she directed the driver thereof to take them to 30 North Michigan avenue, Chicago, wait for them and then drive them back to their home. She had used taxicabs of this company for similar trips on previous occasions but had not theretofore been driven by Dorband. When not engaged, the cab defendant drove was stationed at the New Cab Company’s cab station on the Evanston side of Howard avenue. Prior to being dispatched to drive Miss O’Connell and her mother, defendant had made several other trips on the same day in response to telephone calls from Chicago for taxicab service. It was stipulated that defendant had no license to operate a taxicab in the city of Chicag'o, that the taxicab which he drove did not have a Chicago license, that the owner of same did not have a certificate of inspection of its taximeter and that said taximeter registered a rate which was not in accordance with the Chicago ordinances. While defendant was waiting for his passengers at 30 North Michigan avenue, Chicago, to drive them home, he was arrested and charged with violation of secs. 2078, 2103 and 2107 of the Chicago Municipal Ordinances, which provide:

“2078. Licensing of public passenger vehicles.) No motor vehicle other than a licensed public passenger vehicle shall be operated along or upon the streets and public ways of the city for the carriage of passengers for hire indiscriminately accepting and discharging such persons as may offer themselves for transportation.

“Applications for public passenger vehicle licenses shall be made by the owner upon blanks furnished by the commissioner and such application shall contain the full name and address of the owner, the class of vehicle for which a license is desired, the length of time the vehicle has been in use, the number of persons it is capable of carrying1 and the horsepower thereof. No public passeng’er vehicle shall be licensed until it has been thoroughly and carefully inspected under the direction of the commissioner and examined and found to be in safe condition for the transportation of passengers, clean, of good appearance and well painted and varnished, and no taxicab shall be licensed until a certificate of inspection of its taximeter shall have been issued.

“When any - public passenger vehicle is licensed in accordance with the provisions hereof a card of such size and form as may be prescribed by the commissioner shall be delivered to the owner in addition to the license. Said card shall contain the public passenger vehicle license number of the vehicle, "together with the date of inspection of same and a statement to the effect that in case of any complaint the commissioner shall be notified and the license number of the vehicle shall be reported. Such card shall be signed by the commissioner and shall contain blank spaces upon which an entry shall be made of the date of every inspection of the vehicle. Such license card shall be of a distinctly different color each year and shall contain the name of the person, firm or corporation owning such vehicle, and for taxicabs, the serial license number assigned hereunder shall in each case be the same as that assigned to the vehicle for the previous year.

“Every taxicab, licensed under the provisions of this article, shall have the name of the owner thereof and the public passenger vehicle license number plainly painted in letters at least two inches in height in the center of the main panel of the rear door of said vehicle.

“2103. Testing of taximeters.) It shall be the duty of every person, firm or corporation owning, controlling or operating any taxicab, to deliver either the taxicab together with the taximeter, or the taximeter detached therefrom, to the commissioner upon demand for test; provided, however, any such person, firm or corporation may be present or represented at the time such test is made. Every taximeter shall be tested to determine the accuracy of its recording mechanism with respect to distance traveled either by running the taxicab to which it is attached over a course a standard mile in length or by a mechanical test. Both of the foregong tests may be made in the discretion of the commissioner.

“In order to determine whether any taximeter correctly registers waiting time, it shall be the duty of the commissioner to test such taximeter by comparing the time recorded as shown by the fare computed on the dial thereof with the standard time.

“When any test shows that a taximeter correctly records the charge or fare, measured by distance traveled, waiting time and extra passengers, it shall be sealed and a written certificate of the test shall be issued to the writer.

“2107. Rates of fare for taxicabs.) Any person, firm or corporation owning, controlling or operating any taxicab may charge, demand, collect or receive the following rates of compensation for the service of said taxicab:

“For the first one-third of a mile or fraction thereof for one person.............................15 cents

“For each additional two-thirds of a mile or fraction thereof for one person......................10 cents

“For each additional person of the age of twelve years or more for the whole trip..............5 cents

“For each three minutes of waiting time or fraction thereof...................................10 cents

‘ ‘ Such waiting time shall include the time beginning ten minutes after call time at the place to which the taxicab has been called, when it is not in motion, the time consumed by unavoidable delays at street intersections, bridges or elsewhere and the time consumed while standing at the direction of a passenger.

“Every passenger under twelve years of age when accompanied by an adult shall be carried without charge.

“No taxicab shall carry more than five passengers of the age of 12 years or more at the same time.

“Passengers shall be entitled to the conveyance of their ordinary hand baggage without charge. A fee of twenty-five cents may be charged for carrying a trunk, but no trunk shall be carried except inside of the taxicab.

“It shall be unlawful for any person, firm or corporation owning, controlling- or operating- any taxicab to charge, demand, collect or receive greater or less or different rates of compensation for taxicab service than those established or fixed by the foregoing schedule.”

In our opinion the primary purpose intended to be served by the foregoing sections of the Municipal Code of Chicago, in so far as they are applicable to taxicabs, was to prohibit the use of the streets and public ways of the city of Chicago as a place of business by any motor vehicle used as a taxicab for the carriage of passengers for hire, whether Chicago owned or owned elsewhere, unless such taxicab had its meter tested and sealed and was licensed in accordance with the provisions of said sections of the ordinances. The language contained in sec. 2078 “for the carriage of passengers for hire indiscriminately accepting and discharging such persons as may offer themselves for transportation” is not susceptible of the narrow construction that it was intended to apply only to taxicabs which pick up passengers who are on the streets or sidewalks of Chicago and offer themselves as passengers. We think that the language quoted, while somewhat inaptly phrased, reasonably construed, evidences an intention to include within its purview the indiscriminate acceptance of passengers for hire by taxicabs, whether such passengers request taxicab service over the telephone or by hailing a taxicab from a street or sidewalk or in any other manner.

The difficulty with the city’s position in its endeavor to sustain defendant’s conviction is not so much a matter of having’ a proper construction placed upon the ordinances before us but rather that the sections of the ordinances under which it prosecuted defendant are not applicable to drivers of taxicabs who are not also the owners thereof. Even a casual examination of the language contained in section 2078 clearly indicates that it was drawn to apply only to the owners of public passenger vehicles, including taxicabs. It requires the owner and not the chauffeur to apply for the license for the vehicle and it must be borne in mind that the license provided for in this section is for the vehicle and not for the driver of same. It is readily apparent that a driver of a taxicab, unless he is also the owner thereof, has no such control over such vehicle that he has it within his power to comply with the terms and conditions of this section of the ordinances of the city of Chicago. It is difficult to perceive how a driver of a taxicab can be successfully prosecuted for violating an ordinance, the terms and conditions of which it was never contemplated that he would or could comply with.

What has been said as to section 2078 is equally applicable to section 2103, which has to do with the testing of taximeters, the sealing of said meters and the written certification to the owners of taxicabs that the meters thereon “correctly record the charge and fare.” This section is merely supplemental to section 2078 inasmuch as that section provides that “no taxicabs shall be licensed until a certificate of inspection of its taximeter shall have issued.” Section 2103 is unquestionably directed solely against the owners of taxicabs since the drivers of same have no such control over the taxicabs or their taximeters as would render it possible for them to comply with its provisions and it being impossible for the driver of a taxicab to comply with the terms of this section and it never having been intended that he should, it can hardly be held that he is guilty of failing to comply with them.

Section 2107 sets forth the rates of compensation that may be charged for taxicab service, for waiting time and for carriage of extra passengers and provides that “it shall be unlawful for any person, firm or corporation owning, controlling* or operating* any taxicab to charge, demand, collect or receive greater or less or different rates of compensation for taxicab service than those established or fixed by the foregoing* schedule.” In our opinion this section is also directed solely. against the owners of taxicabs and the words “controlling” and “operating” are used therein synonymously with the word “owning,” since the fare charged, collected or received is determined by the taximeter, over which it has been heretofore shown the driver has no control. This section was undoubtedly levelled at the owners of taxicabs so that the responsibility would be squarely placed upon them of maintaining the taximeters on same in condition to record the proper “charge and fare.” But in any event the defendant in the instant case could not be found guilty of violating this section because there is no evidence in the record that he demanded, collected or received “an unlawful rate of compensation” for the taxicab service rendered by him and he could not be found guilty of charging an unlawful rate inasmuch as it was not he but the taximeter on his taxicab that recorded and fixed the charge. In fact, as heretofore shown, he was arrested before he collected any fare. We are impelled to hold that the sections of the ordinances of the city of Chicago under consideration, as presently drawn, are inapplicable to defendant as the driver of a taxicab, and that his conviction for the violation thereof cannot be sustained.

What we have already said disposes of the question of the defendant’s guilt. However, we are asked to clarify the matters involved in what has been termed the “indirect issue.” Under this issue it is claimed (1) that “licenses are required only for soliciting indiscriminately on the streets of Chicago, not elsewhere,” (2) that “the City of Chicago has no power to require a taximeter test and a Chicago taxicab license of the owner of a taxicab whose place of business is in the City of Evanston and who makes a contract there for taxicab service to be rendered in the City of Chicago,” and (3) that “the enforcement of the ordinances in issue, to facts as found here, is directly forbidden by the statutes of Illinois.”

The first claim has been sufficiently answered by our discussion heretofore of the language referred to in section 2078 and our construction of same.

The second claim questions the power of the city of Chicago to require by ordinance a taximeter test or a taxicab license of the owner of a taxicab whose place of business is in the city of Evanston and who makes a contract there for taxicab service to be rendered in the city of Chicago. The purported contract is predicated upon the dispatch of a taxicab by its owner in response to a request by telephone for same received at said owner’s place of business in Evanston from some person in Chicago. It is sufficient answer to this claim that the question of whether a Chicago telephone call for taxicab service having been received in the city of Evanston and a taxicab having- been dispatched in response thereto by its Evanston owner to render service in the city of Chicago, constitutes a contract made in Evanston, is immaterial and of no importance. Such a contract, even if valid and binding between the parties, could not render nugatory valid ordinances of the city of Chicago or frustrate their enforcement. Municipal ordinances are binding on all persons within the territorial jurisdiction of the city in and for which they are enacted and since, as has been shown, the foregoing ordinances are in effect in the city of Chicago regulating and licensing taxicabs, owners of such subject themselves to the provisions of said ordinances if they use their taxicabs for the transportation of passengers for hire within the limits of said city. It goes without saying that a contract of the nature indicated is invalid in its inception since its very purpose is illegal in that it contemplates the violation of valid ordinances of the city of Chicago.

The third claim advanced is that the enforcement by the city of Chicago of the sections of the ordinances in question against the owner of a taxicab who has procured his State automobile license and paid such license or tax as is required by the city of Evanston, is directly prohibited by the following sections of the statutes:

“No owner of a motor vehicle or motor bicycle who shall have obtained a certificate from the Secretary of State and paid the registration fee as hereinbefore provided, shall be required by any city, village, town or other municipal corporation within the State other than that within which said owner resides to pay any tax or license fee for the use of such motor vehicle . . .

“Nor shall such owner be required to display upon his motor vehicle or motor bicycle any other plate or tax or license number than that issued by the Secretary of State or by the city, village, town or other municipal corporation within the State wherein which said owner resides . . .” Ill. Rev. Stat. 1937, ch. 95½, secs. 32 and 32a [Jones Ill. Stats. Ann. 85.032].

“. . . And no firm or corporation shall be required to pay any such vehicle license tax in any municipality in this State except the one in which said firm or corporation maintains and conducts its principal place of business in this State.” Ill. Rev. Stat. 1937, ch. 24, sec. 671 [Jones Ill. Stats. Ann. 21.800].

The prohibitions contained in the foregoing sections of the statutes clearly apply only to the unrestricted use of the public streets and highways th.rough.out the State by any vehicle, the owner of which has secured the license required by the State and paid such tax as may be imposed by the city, village, town or other municipal corporation wherein said owner resides or in the case of a firm or corporation where it maintains and conducts its principal place of business. These statutes are not in conflict with section 42 of article V, of the Cities and Villages Act, which specifically authorizes municipalities to license, tax and regulate cabmen and others pursuing a like occupation for their use of the streets of a city as a place of business for private gain. The city of Chicago has the right to enact ordinances restricting the use of its streets as a place of business by taxicab owners and drivers unless they are properly licensed. Section 42, art. V of the Cities and Villages Act (ch. 24, par. 65.41, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 21.106]) provides:

‘ ‘ The city council . . . shall have power . . .

“To license, tax and regulate hackmen, draymen, omnibus drivers, carters, cabmen, porters, expressmen and all others pursuing like occupations and to prescribe their compensation.”

In People v. Thompson, 341 Ill. 166, the court held at pp. 168, 169:

“The Public Utilities act does not take from cities and villages the previously conferred power to regulate taxicabs. The taxicab business, as a general rule, does not include the operation of a conveyance or vehicle over specified routes, under a regular schedule as to time or between definite points, and hence, within the meaning of the Public Utilities act, a taxicab is not ordinarily a public utility. (Newcomb v. Yellow Cab Co. P. U. R. 1916-B, 983; Southern Illinois Light and Power Co. v. Norton, id. 987; Austin Bros. Transfer Co. v. Bloom, 316 Ill. 435.) The right to regulate includes the right to impose reasonable conditions and restrictions. (Westgate v. Adrian Township, 162 N. W. (Mich.) 422; McWethy v. Aurora Electric Light and Power Co. 202 Ill. 218.) The power to regulate the use of streets by vehicles includes the power to promote the general welfare and prevent accidents, and the reasonableness of police regulation is not necessarily what is best but what is fairly appropriate under all circumstances. (Weksler v. Collins, 317 Ill. 132; Sligh v. Kirkwood, 237 U. S. 52.) An ordinance will be presumed reasonable until the contrary is proved. (City of Chicago v. Washingtonian Home, 289 Ill. 206; People v. Village of Oak Park, 266 id. 365.)”

It is not contended by the city of Chicago that a taxicab, whose owner’s principal place of business is in Evanston, may not lawfully be driven over and through the streets of Chicago with passengers whose trip commenced in the city of Evanston or that such passengers may not be returned in said taxicab over the streets of Chicago to Evanston, but it is seriously urged that when the taxicab service is rendered wholly within the limits of Chicago or initiated therein, nonresident owners of such taxicabs may be required to pay the same license fee imposed on owners of taxicabs whose principal place of business is in the city of Chicago. We think this contention is sound.

While sections of the city ordinances under which the defendant driver of the taxicab in the instant case was prosecuted are inadequate for that purpose, they furnish an adequate and sufficient basis for the prosecution of owners of taxicabs who violate them. Just so long as only the drivers of unlicensed out-of-town taxicabs are prosecuted for failing to comply with the aforesaid sections of the ordinances, nonresident owners are afforded an effective shield to ply their trade with impunity upon the streets of Chicago. To cure the situation in so far as the drivers of out-of-town taxicabs, unlicensed by the city of Chicago, are concerned, valid ordinances may be drafted and enacted in precise and appropriate terms restricting the use of the streets of Chicago as a place of business to taxicab chauffeurs who are properly licensed, as well as to taxicabs which are likewise properly licensed.

Our attention is directed to the recent case of City of Chicago v. Kay, 282 Ill. App. 604, which it is urged sustains the first two contentions under the so-called “indirect issue. ’ ’ That case also involved an Evanston taxicab not properly licensed to operate on the streets of Chicago. A telephone call for a cab was made, as in this case, to the place of business in Evanston of the owner of the taxicab and the defendant therein was dispatched to pick up the passenger at her home on the far north side of Chicago and transport her to an address in Evanston. After picking up his passenger, the driver was arrested while still within the limits of the city of Chicago and charged with violating section 2078 of the Municipal Code of Chicago, heretofore set forth. The driver was found guilty and fined $5. We are in accord with the conclusion reached in the Kay case, where the conviction of the driver of the taxicab was reversed, but only in so far as said conclusion is based upon the inapplicability of the ordinance for the violation of which the defendant driver in that case was prosecuted and convicted. We are unable to agree with the reasoning of the court in other respects in support of its decision.

For the reasons hereinbefore stated, the judgment of the municipal court of Chicago is reversed.

Judgment reversed.

Friend, P. J., and Burice, J., concur.


author: Mr. Presiding Justice Friend

text:
    First District.
    Stanley D. Tilney, appellee, v. Village of LaGrange Park et al., appellants.
    Gen. No. 39,676.
    Heard in the second division of this court for the first district at the October term, 1937.
    Opinion filed October 18, 1938.
    Rehearing denied November 1, 1938.
    Stevens & Carrier, for appellants; George M. Stevens and George M. Stevens, Jr., of counsel. Weightstill Woods, for appellee.
   Mr. Presiding Justice Friend

delivered the opinion of the court.


text:
    Shell Petroleum Corporation, appellee, v. Nathan R. Feldman et al., appellants.
    Gen. No. 40,077.
    Heard in the second division of this court for the first district at the April term, 1938.
    Opinion filed October 18, 1938.
    William Feldman, for appellants. Ralph E. Brown, for appellee.
   Mr. Presiding Justice Friend

delivered the opinion of the court.


text:
    George S. Gragg, appellee, v. Primo Pasqualini, appellant.
    Gen. No. 40,114.
    Heard in the second division of this court for the first district at the June term, 1938.
    Opinion filed October 18, 1938.
    Beverly & Klaskin, for appellant; Samuel T. Klaskin, of counsel. Thompson, Chambers & Thompson and Charles C. Spencer, for appellee.
   Mr. Presiding Justice Friend

delivered the opinion of the court.


text:
    Clara Skolnik, appellant, v. Katherine Verran et al., defendants. Louis D. Glanz, appellee.
    Gen. No. 40,196.

      Heard in the second division of this court for the first district at the June term, 1938.
    Opinion filed October 18, 1938.
    Maurice H. Kamm and Julius J. Schwartz, for appellant. No appearance for appellee.
   Mr. Presiding Justice Friend

delivered the opinion of the court.


text:
    People of the State of Illinois, defendant in error, v. Nick Vergado, plaintiff in error.
    Gen. No. 40,231.
    Heard in the second division of this court for the first district at the June term, 1938.
    Opinion filed October 18, 1938.
    Cameron Latter, 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. Presiding Justice Friend

delivered the opinion of the court.


text:
    Fred Holy, appellee, v. Winifred Hitchcock, also known as Winnie Hitchcock, appellant.
    Gen. No. 39,988.
    Heard in the second division of this court for the first district at the February term, 1938.
    Opinion filed October 18, 1938.
    C. N. Leach, for appellant. J. Kendall S. Mitchell, for appellee.
   Mr. Justice John J. Sullivan

delivered the opinion of the court.


text:
    Mrs. William Fluegge, appellee, v. Des Plaines and Cook County Farmers Mutual Fire Insurance Company of Mt. Prospect, trading as Mutual County Fire Insurance Company of Mt. Prospect, appellant.
    Gen. No. 40,143.
    Heard in the second division of this court for the first district at the June term, 1938.
    Opinion filed October 18, 1938.
    Rehearing denied November 1, 1938.
    Walter W. and Edward W. Weiss, for appellant. Howard E. De Long, for appellee; E. C. Frank Meier, of counsel.
   Mr. Justice John J. Sullivan

delivered the opinion of the court.


author: Mr. Presiding Justice Hall

text:
    Harry Gold et al., appellees, v. Metropolitan Trust Company, appellant.
    Gen. No. 39,634.

      Heard in the third division of this court for the first district.
    Opinion filed October 26, 1938.
    Rehearing denied November 9, 1938.
    Rothbart, Peterson & Rosenfield, for appellant; Edward Rothbart and J. M. Rosenfield, of counsel. Cameron Latter, for appellees.
   Mr. Presiding Justice Hall

delivered the opinion of the court.


text:
    George F. Keller et al., appellees, v. Adam J. Ensinger et al., defendants. Marion Ensinger and Doris Travis Glen, appellants.
    Gen. No. 39,771.
    Heard in the third division of this court for the first district at the October term, 1937.
    Opinion filed October 26, 1938.
    Charles M. Haft, for appellants. Kriebel, Kewley & Hubbard and Albert E. Jenner, Jr., for certain appellees.
   Mr. Presiding Justice Hall

delivered the opinion of the court.


text:
    Harry Gold et al., appellants, v. Metropolitan Trust Company et al., appellees.
    Gen. No. 39,863.
    Heard in the third division of this court for the first district at the December term, 1937.
    Opinion filed October 26, 1938.
    Rehearing denied November 9, 1938.
    Millard C. Eiseman, for certain appellants; Louis I. Lewis, of counsel. Samuel Fumel, for certain other appellant; Abraham Miller, of counsel. Franklin Raber, for certain other appellant. Rothbart & Rosenfield, for certain appellee. Kelly & Cohler, for certain other appellee. Maurice A. Barancik, for certain other appellee.
   Mr. Presiding Justice Hall

delivered the opinion of the court.


text:
    Richard Wagner Jr., minor by Richard Wagner Sr., his father and next friend, appellee, v. Guy Macelli and William N. Erickson. Appeal of William N. Erickson, appellant.
    Gen. No. 39,975.
    Heard in the third division of this court for the first district at the February term, 1938:
    Opinion filed October 26, 1938.
    Andreen, Winstin & Mead, for appellant; Charles W. Mead and Gustav Andreen, Jr., of counsel. Norman Peters and Leo G. Hanna, for appellee.
   Mr. Presiding Justice Hall

delivered the opinion of the court.


text:
    Elizabeth Poznaniak, individually and as administratrix of estate of Maryanna Wnukowski, appellee, v. Stanislaw Weber and Max S. Weber, trading as Weber and Weber and Offices of Max S. Weber, appellants.
    Gen. No. 39,997.

      Heard in the third division of this court for the first district at the April term, 1938.
    Opinion filed October 26, 1938.
    Abraham W. Brussell, for appellants. Julius H. Selinger, for appellee.
   Mr. Presiding Justice Hall

delivered the opinion of the court.


text:
    Marguerite Lambert, appellee, v. William H. Spikings et al. Appeal of William H. Spikings, appellant.
    Gen. No. 40,023.
    Heard in the third division of this court for the first district at the April term, 1938.
    Opinion filed October 26, 1938.
    Rehearing denied November 9, 1938.
    Milton G. Manasse, for appellant. Cummings & Wyman, for appellee; Harold Engstrom, of counsel.
   Mr. Presiding Justice Hall

delivered the opinion of the court.


text:
    People of the State of Illinois, appellant, v. Emil J. Charbonneau, appellee.
    Gen. No. 40,078.
    Heard in the third division of this court for the first district at the April term, 1938.
    Opinion filed October 26, 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 Hall

delivered the opinion of the court.


author: Mr. Justice Hebel

text:
    Beulah Whitehouse, appellee, v. Fred Whitehouse, appellant.
    Gen. No. 40,005.
    Heard in the third division of this court for the first district at the April term, 1938.
    Opinion filed October 26, 1938.
    Rehearing denied November 9, 1938.
    Milton J. Sabath, for appellant. Rittenhouse & Marovitz, for appellee; Abraham L. Marovitz and Harold Marovitz, of counsel.
   Mr. Justice Hebel

delivered the opinion of the court.


text:
    Harry Vasels, appellant, v. Peoples Gas Light and Coke Company, appellee.
    Gen. No. 40,018.
    Heard in the third division of this court for the first district at the April term, 1938.
    Opinion filed October 26, 1938.
    Rehearing denied November 9, 1938.
    Irving G. Zazove, for appellant. Cooke, Sullivan & Ricks, for appellee; Oliver R. Barrett and Malcolm J. Gillis, of counsel.
   Mr. Justice Hebel

delivered the opinion of the court.


text:
    Rockford Steel Furniture Company and A. J. Strandquist, appellants, v. Philip Hoffberg et al., appellees.
    Gen. No. 40,043.
    Heard in the third division of this court for the first district at the April term, 1938.
    Opinion filed October 26, 1938.
    David H. Caplow, for appellants; Erwin M. Pearl, of counsel. Isaac B. Lipson and A. C. Lewis, for certain appellee.
   Mr. Justice Hebel

delivered the opinion of the court.


text:
    Department of Finance of the State of Illinois for the use of the People of the State of Illinois, appellee, v. Frank Waikasas, appellant.
    Gen. No. 40,075.
    Heard in the third division of this court for the first district at the April term, 1938.
    Opinion filed October 26, 1938.
    Rehearing denied November 9, 1938.
    Hermann P. Haase, for appellant. Otto Kerner, Attorney General, for appellee; Mortimer Porges and Philip J. Simon, Assistant Attorneys General, of counsel.
   Mr. Justice Hebel

delivered the opinion of the court.


text:
    Sigmund Klimczak, administrator of the estate of Robert Klimczak, appellant v. Druley-O’Brien Company and John Leuders, appellees.
    Gen. No. 40,086.
    Heard in the third division of this court for the first district at the April term, 1938.
    Opinion filed October 26, 1938.
    Rehearing denied November 9, 1938.
    James P. Byrnes, for appellant. Miller, Gorham, Wescott & Adams, for appellees; Edward R. Adams, Herbert C. De Young and Robert E. English, of counsel.
   Mr. Justice Hebel

delivered the opinion of the court.


author: Mr. Justice Denis E. Sullivan

text:
    In the matter of the estate of Loretta Stuart, a minor. Loretta Stuart and Loretta Stuart, guardian of the estate of Edward Stuart, minor, Anastasia Michalek, guardian of estate of Walter and Theresa Ziolkowski, minors, appellees, v. Walter A. Wade, administrator de bonis non of estate of Walter Ziolkowski, deceased, appellant.
    Gen. No. 39,685.
    Heard in the third division of this court for the first district at the October term, 1937.
    Opinion filed June 29, 1938.
    Rehearing opinion filed October 26, 1938.

      Walter A. Wade, pro se. Seymour M. Lewis and Leon M. Despres, for certain appellees. Payton J. Tuohy, for certain other appellee; Alexander J. Moody, of counsel.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.


text:
    People of the State of Illinois, ex rel. John S. Rusch, appellee, v. William Gilbert, appellants.
    Gen. No. 39,922.
    Heard in the third division of this court for the first district at the February term, 1938.
    Former opinion filed June 29, 1938.
    Rehearing opinion filed October 26, 1938.
    Louis Greenberg, for appellants. Ditchburne & Lounsbury, for appellee; Thomas J. Johnson, Jr., of counsel.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.


text:
    Carson Pirie Scott and Company, appellee, v. Checker Taxi Company and C. Gerrits, defendants. Appeal of Checker Taxi Company, appellant.
    Gen. No. 40,000.
    Heard in the third division of this court for the first district at the April term, 1938.
    Opinion filed October 26, 1938.
    Julius Jesmer, for appellant. Wendell H. Shanner, for appellee; Charles V. Laughlin, of counsel.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.


text:
    People of the State of Illinois, defendant in error, v. Robert Peele, plaintiff in error.
    Gen. No. 40,109.
    Heard in the third division of this court for the first district at the June term, 1938.
    Opinion filed October 26, 1938.
    George M. Crane and Thomas E. Kluczynski, 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 Denis E. Sullivan

delivered the opinion of the court.


text:
    Ben Mammina, trading as Ben’s Tri State Motor Express, appellee, v. Homeland Insurance Company of America, appellant.
    Gen. No. 40,135.
    Heard in the third division of this court for the first district at the June term, 1938.
    Opinion filed October 26, 1938.
    Rehearing denied November 9, 1938.
    I. W. Kaufman, for appellant. William Feldman and Abraham Feldman, for appellee.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court,


author: Mr. Presiding Justice McSurely

text:
    Le Roy Engles, appellee, v. Thomas A. Murray et al., defendants. Appeal of Kathryn McKay, appellant.
    Gen. No. 39,968.
    Heard in the first division of this court for the first district at the February, term, 1938.
    Opinion filed October 31, 1938.
    Rehearing denied November 14, 1938.
    Fisher & Fisher, for appellant; Samuel R. Hassen, of counsel. Morgan, Mc Farland & Stearns, for appellee; Lester T. Murray and Leonard Stearns, of counsel.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Marie A. Walsh and Nellie G. Walsh v. Edward R. Newmann et al. Samuel Maslon et al., appellees, v. Roy W. Alexander and Cornelia Alexander, appellants.
    Gen. No. 40,026.
    Heard in the first division of this court for the first district at the April term, 1938.
    Opinion filed October 31, 1938.
    James B. Cashin, for appellants; Thomas P. Harris and Edward B. Toles, of counsel.
    Mayer, Altheimer & Kabaker, for appellees; Alan J. Altheimer and Lester E. Slosburg, of counsel.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


author: Mr. Justice Matchett

text:
    Amelia P. Wise, appellant, v. George Packard, appellee.
    Gen. No. 39,862.
    Heard in the first division of this court for the first district at the December term, 1937.
    Opinion filed October 31, 1938.
    Fred I. Simon, for appellant. Russell J. Mc Caughey, for appellee.
   Mr. Justice Matchett

delivered the opinion of the court.


text:
    Samuel W. Fleisher et al., appellees, v. Pius P. Flick et al., appellants.
    Gen. No. 39,878.
    Heard in the first division of this court for the first district at the October term, 1937.
    Opinion filed October 31, 1938.
    J. S. Dudley and Benj. F. J. Odell, for appellants. C. Lysle Smith, for certain appellee; John Alden Powers, of counsel. McNab, Holmes & Long, for certain other appellees; F. Reed Dickerson, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.


text:
    United Newspaper Magazine Corporation, appellant, v. United Advertising Companies, Inc., appellee.
    Gen. No. 40,116.

      Heard in the first division of this court for the first district at the June term, 1938.
    Opinion filed October 31, 1938.
    Bayley, Webster, Gregory & Hunter, for appellant; Robert E. Covert and Thornton M. Pratt, of counsel. Chadwick & Johnson, for appellee; Rudolph L. Johnson and Cecil L. Cass, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.


text:
    People of the State of Illinois, petitioner, v. Edwin Boyer, respondent.
    Gen. No. 40,281.
    Heard in the first division of this court for the first district.
    Opinion filed October 31, 1938.
    Thomas J. Courtney, State’s Attorney, for petitioner; Edward E. Wilson and Amos P. Scruggs, Assistant State’s Attorneys, of counsel. No appearance for respondent,
   Mr. Justice Matchett

delivered the opinion of the court.


author: Mr. Justice O’Connor

text:
    Jesse A. Rothschild et al., appellees, v. Albert Sabath, appellant.
    Gen. No. 39,837.
    Heard in the first division of this court for the first district at the December term, 1937.
    Opinion filed October 31, 1938.
    Rehearing denied November 14, 1938.
    Charles Hudson and Emanuel Goldstrich, for appellant. Edgar J. Schoen and Aaron Taymor, for appellees; Theodore G. Remer, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Amich Securities Company, Inc., appellee, v. Melvin L. Emerich, appellant.
    Gen. No. 39,920.
    Heard in the first division of this court for the first district at the February term, 1938.
    Opinion filed October 31, 1938.
    Samuel A. & Leonard B. Ettelson, for appellant; Samuel A. Ettelson and Edward C. Higgins, of counsel. Chapman & Cutler, for appellee; Dayton Ogden, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Lenard Redwine, appellee, v. Charles B. Horrocks and A. Horrocks, appellants.
    Gen. No. 40,061.
    Heard in the first division of this court for the first district at the April term, 1938.
    Opinion filed October 31, 1938.
    Rathje, Hinckley, Barnard & Kulp, for appellants; Francis E. Hinckley and William E. Fisher, of counsel. Henry C. Ferguson, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    John P. Bauer, appellee, v. Nellie J. Parker, appellant.
    Gen. No. 40,173.
    Heard in the first division of this court for the first district at the June term, 1938.
    Opinion filed October 31, 1938.
    Arthur E. Frankenstein, for appellant. Litsinger, Healy, Reid & Bye, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    John P. Bauer, appellee, v. Francis J. Parker, appellant.
    Gen. No. 40,174.
    Heard in the first division of this court for the first district at the June term, 1938.
    Opinion filed October 31, 1938.
    Arthur E. Frankenstein, for appellant. Litsinger, Healy, Reid & Bye, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    City National Bank and Trust Company and Central Republic Trust Company, appellants, v. Walter S. Ross, appellee.
    Gen. No. 39,693.
    Heard in the second division of this court for the first district at the October term, 1937.
    Opinion filed November 17, 1938.
    Bell, Boyd & Marshall, for appellants; Thomas L. Marshall, David A. Watts and Victor M. Harding, Jr., of counsel. Sonnenschein, Berkson, Lautmann, Levinson & Morse, for appellee; Isaac E. Ferguson, Charles E. Zekas and Homer Kripke, of counsel.
   Mr. Presiding Justice Friend

delivered the opinion of the court.


text:
    City National Bank and Trust Company and Central Republic Trust Company, appellants, v. Daniel H. Burnham, appellee.
    Gen. No. 39,694.

      Heard in the second division of this court for the first district at the October term, 1937.
    Opinion filed November 17, 1938.
    Bell, Boyd & Marshall, for appellants; Thomas L. Marshall, David A. Watts and Victor M. Harding, Jr., of counsel. Sonnenschein, Berkson, Lautmann, Levinson & Morse, for appellee; Isaac E. Ferguson, Charles E. Zekas and Homer Kripke, of counsel.
   Mr. Presiding Justice Friend

delivered the opinion of the court.


text:
    Harry Healy, appellant, v. Utility Supply Company, appellee.
    Gen. No. 39,953.
    Heard in the second division of this court for the first district at the February term, 1938.
    Opinion filed November 17, 1938.
    Albert B. Fritzshall, for appellant. Delmar J. Hill, for appellee.
   Mr. Presiding Justice Friend

delivered the opinion of the court.


text:
    John Wildt, appellant, v. City of Chicago et al., appellees.
    Gen. No. 39,974.
    Heard in the second division of this court for the first district at the February term, 1938.
    Opinion filed November 17, 1938.
    James H. Turner and Lloyd T. Bailey, for appellant; Thomas C. Hollywood and Joseph W. Bailey, of counsel. Barnet Hodes, Corporation Counsel, for appellee; Alexander J. Resa and Adam E. Patterson, Assistant Corporation Counsel, of counsel. Frank L. Kriete, Warner H. Robinson and Arthur J. Donovan, for certain other appellees; John B. Guilliams, of counsel.
   Mr. Presiding Justice Friend

delivered the opinion of the court.


text:
    Herman Bauer, appellee, v. Joseph B. Ford, appellant.
    Gen. No. 40,017.
    Heard in the second division of this court for the first district at the April term, 1938.
    Opinion filed November 17, 1938.
    Charles T. Shanner, for appellant. No appearance for appellee.
   Mr. Presiding Justice Friend

delivered the opinion of the court.


text:
    Isidore Simon, appellant, v. Arthur D. Foyer, appellee.
    Gen. No. 39,562.

      Heard in the second division of this court for the first district at the June term, 1937. Order entered January 29, 1937,
    Opinion filed November 17, 1938.
    Harris F. Williams and Robert C. Baumgartner, for appellant. Arthur D. Foyer, pro se.

   Mr. Justice Burke

delivered the opinion of the court.


text:
    Esther W. Knorr, appellee, v. Great Atlantic and Pacific Tea Company and Owen W. Cook, appellants.
    Gen. No. 39,714.
    Heard in the second division of this court for the first district at the October term, 1937.
    Opinion filed November 17, 1938.
    Ashcraft & Ashcraft, for appellants; Russell F. Locke, of counsel. Francis J. Gariepy and Charles E. Mallon, for appellee.
   Mr. Justice Burke

delivered the opinion of the court.


text:
    Stanley Bafia, administrator of estate of Mary Tarnowski, deceased, appellee, v. Prudential Insurance Company of America, appellant.
    Gen. No. 39,734.
    Heard in the second division of this court for the first district at the October term, 1937.
    Opinion filed November 17, 1938.
    Hoyne, O’Connor & Rubinkam, for appellant; Nathaniel Rubinkam and William S. Allen, of counsel. J. Kentner Elliott, for appellee.
   Mr. Justice Burke

delivered the opinion of the court.


text:
    Edward Gaffney, appellant, v. Independent Order of Foresters, appellee.
    Gen. No. 40,228.
    Heard in the second division of this court for the first district at the June term, 1938.
    Opinion filed November 17, 1938.
    • S. R. Pulaski, for appellant; Patrick A. Barton, of counsel. Edgar A. Jonas and Frederick C. Jonas, for appellee; J. J. Cooke, of counsel.
   Mr. Justice Burke

delivered the opinion of the court.


text:
    Chicago Wood and Coal Company, appellant, v. City of Chicago, appellee.
    Gen. No. 39,247.
    Heard in the second division of this court for the first district at the December term, 1936.
    Opinion filed November 17, 1938.
    Louis Jaffe, for appellant; Howard F. Bishop, William H. Dillon, Eugene H. Dupee, George A. Mason, George A. Mason, Jr. and Aaron Soble, of counsel. Barnet Hodes, Corporation Counsel, for appellee; Joseph F. Grossman, First Assistant Corporation Counsel, Arthur A. Sullivan and J. Herzl Segal, Assistant Corporation Counsel, of counsel.
   Mr. Justice John J. Sullivan

delivered the opinion of the court.


text:
    Ruth Walker Sewell, appellee, v. Arthur Sewell, appellant.
    Gen. No. 40,048.
    Heard in the second division of this court for the first district at the April term, 1938.
    Opinion filed November 17, 1938.
    Teed, Kammermann & Johnson, for appellant; Hugh E. Johnson, of counsel. Alva L. Bates, for appellee.
   Mr. Justice John J. Sullivan

delivered the opinion of the court.


text:
    Realty Management Company, appellant, v. Louis Medow, appellee.
    Gen. No. 40,068.
    Heard in the second division of this court for the first district at the April term, 1938.
    Opinion filed November 17, 1938.
    William A. Murphy and Sonnenschein, Berkson, Lautmann, Levinson & Morse, for appellant; William A. Murphy and Jesse H. Brown, of counsel. William J. Popper and George Bieber, for appellee; William J. Popper, of counsel.
   Mr. Justice John J. Sullivan

delivered the opinion of the court.


text:
    Louis A. Smith, appellee, v. Roy Hefter, appellant.
    Gen. No. 40,170.
    Heard in the first division of this court for the first district at the June term, 1938.
    Opinion filed November 21, 1938.
    William T. Pridmore, for appellant. No appearance for appellee.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Chicago Title and Trust Company, appellee, v. A. Wortell, appellant. Harriet Henning et al., appellees.
    Gen. No. 40,153.
    Heard in the first division of this court for - the first district at the June term, 1938.
    Opinion filed November 21, 1938.
    Louis E. Levinson, for appellant; Samuel B. Barnett, of counsel. Gottlieb & Schwartz, for appellees; Claude A. Roth and Harry E. Smoot, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.


text:
    Anna R. Leslie, appellant, v. A. R. E. Wyant et al., appellees.
    Gen. No. 40,176.
    Heard in the first division of this court for the first district at the June term, 1938.
    Opinion filed November 21, 1938.
    Heber T. Dotson, for appellant. Raymond A. Kinzie, for appellees.
   Mr. Justice Matchett

delivered the opinion of the court.


text:
    Continental Casualty Company, appellant, v. Arthur H. Hein et al., appellees.
    Gen. No. 40,192.
    Heard in the first division of this court for the first district at the October term, 1937.
    Opinion filed November 21, 1938.
    Isidore Brown and George C. Bliss, for appellant; Sidney W. Mandel and Albert Langeluttig, of counsel. Daniel D. Kaufman, Donald J. Rizzio, Lavin & Ruvell, S. B. Rosenzweig, Jesse Marcus, Jack A. Cohon, Wolf & Love, Reiger & Reiger, Bernard Stenge, for certain appellees; G. A. Buresh, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.


text:
    Joseph Cohn, appellee, v. David Cohl and James Baker, appellants.
    Gen. No. 40,124.
    Heard in the first division of this court for the first district at the June term, 1938.
    Opinion filed November 21, 1938.
    Irving Breakstone, for appellants. No appearance for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Laura Hermann, appellant, v. Herbert Carl Johnson, appellee.
    Gen. No. 40,199.
    Heard in the first division of this court for the first district at the June term, 1938.
    Opinion filed November 21, 1938.
    Daniels & Sullivan, for appellant. Frank F. Tollkuehn, for appellee; Harold F. Tollkuehn, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    M. W. Goldstein, appellee, v. Aleck McAlonan et al., defendants. Appeal of Charles W. Irrgang and Edith Irrgang, appellants.
    Gen. No. 39,985.

      Heard in the third division of this court for the first district at the February term., 1938.
    Opinion filed November 30, 1938.
    Pritzker & Pritzker, for appellants; Richard Weinberger, of counsel. Samuel Z. Goldman and Benjamin B. Goldman, for appellee.
   Mr. Presiding Justice Hall

delivered the opinion of the court.


text:
    Meyer Rothschild et al., appellants, v. Edward G. Felsenthal et al., appellees.
    Gen. No. 40,049.
    Heard in the third division of this court for the first district at the April’ term, 1938.
    Opinion filed November 30, 1938.
    Rehearing denied December 16, 1938.
    Shulman, Shulman & Abrams, for appellants; Meyer Abrams, of counsel. Sonnenschein, Berkson, Lautmann, Levinson & Morse, for certain appellees; Herbert M. Lautmann, Ben Rothbaum and Isaac E. Ferguson, of counsel. Krinsky, Levitan & Glassner, for certain other appellees.
   Mr. Presiding Justice Hall

delivered the opinion of the court.


text:
    Hazel Johnson, appellee, v. L. H. S. Roblee, appellant.
    Gen. No. 40,063.
    Heard in the third division of this court for the first district at the February term, 1938.
    Opinion filed November 30, 1938.
    Chapman & Cutler, for appellant; Dayton Ogden, of counsel. Reuel H. Grunewald, for appellee; Clyde C. Fisher, of counsel.
   Mr. Presiding Justice Hall

delivered the opinion of the court.


text:
    People of the State of Illinois ex rel. John V. Farwell and Arthur L. Farwell, appellants, v. Edward J. Kelly et al., appellees.
    Gen. No. 40,088.
    Heard in the third division of this court for the first district at the October term, 1937.
    Opinion filed November 30, 1938.
    Aaron Soble, for appellants; Max Chill, of counsel. Barnet Hodes, Corporation Counsel, for appellees; Joseph F. Grossman, First Assistant Corporation Counsel, Arthur A. Sullivan and J. Herzl Segal, Assistant Corporation Counsel, of counsel.
   Mr. Presiding Justice Hall

delivered the opinion of the court.


text:
    Domestic Engineering Company, appellee, v. Institutional Publications, Inc. et al., appellants. Appeal of Western Newspaper Union, appellant.
    Gen. No. 40,056.

      Heard in the third division of this court for the first district at the April term, 1938.
    Opinion filed November 30, 1938.
    Rehearing denied December 16, 1938,
    Tenney, Harding, Sherman & Rogers and Barry & Crowley, for certain appellant; L. Daw Nichol, Jr., Jerome J. Crowley, William W. Miller and Arthur Holt, Jr., of counsel. Robertson, Crowe & Spence, for appellee; James C. Spence and Henry L. McIntyre, of counsel.
   Mr. Justice Hebel

delivered the opinion of the court.


text:
    Lloyd P. Banker, appellant, v. Packard Motor Car Company of Chicago, appellee.
    Gen. No. 40,138.
    Heard in the third division of this court for the first district at the June term, 1938.
    Opinion filed November 30, 1938.
    John A. Bloomingston, for appellant. Otto M. Hamer, for appellee; Chester D. Kern, of counsel.
   Mr. Justice Hebel

delivered the opinion of the court.


text:
    George W. Luck for use of Meta Bos, appellee, v. G. W. Luck, Inc., appellant.
    Gen. No. 40,152.
    Heard in the third division of this court for the first district at the June term, 1938.
    Opinion filed November 30, 1938.
    Geier, Stevens & Pellicore, for appellant; George C. Geier, of counsel. Hummer & Hummer, for appellee; John S. Hummer and Laurence R. Van Ness, of counsel.
   Mr. Justice Hebel

delivered the opinion of the court.


text:
    Mary Graziani and Enrico Gattone, appellants, v. City of Chicago, appellee.
    Gen. No. 40,183.
    Heard in the third division of this court for the first district at the April term, 1938.
    Opinion filed November 30, 1938.
    Irving Breakstone, for appellants; Howard F. Bishop, George A. Mason, Daniel S. Wentworth and Aaron Soble, of counsel. Barnet Hodes, Corporation Counsel, for appellee; Joseph F. Grossman, First Assistant Corporation Counsel, Arthur A. Sullivan and J. Herzl Segal, Assistant Corporation Counsel, of counsel.
   Mr. Justice Hebel

delivered the opinion of the court.


text:
    Lena Fingerhuth, appellee, v. William Maher et al., appellants.
    Gen. No. 40,225.

      Heard in the third division of this court for the first district at the June term, 1938.
    Opinion filed November 30, 1938.
    Rehearing denied December 16, 1938.
    James H. Burr, for certain appellant. Samuel A. Strauss, for appellee; Thomas J. Mullen, of counsel.
   Mr. Justice Hebel

delivered the opinion of the court.


text:
    Actino Laboratories, Inc., appellee, v. Shippers Dispatch, Inc., appellant.
    Gen. No. 40,028.
    Heard in the third division of this court for the first district at the April term,- 1938.
    Opinion filed November 30, 1938.
    Thomas A. McManigal, for appellant; Ernest L. Duck, of counsel. E. Sydney Feinstein, for appellee.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.


text:
    Rosa Schlogl, appellee, v. Saphronia R. Newton et al., defendants. Appeal of Charles Miller, appellant.
    Gen. No. 40,148.
    Heard in the third division of this court for the first district at the June term, 1938.
    Opinion filed November 30, 1938.
    Rehearing denied December 16, 1938.
    Maurice L. Blonsley, for appellant. Butz, von Ammon & Marx, for appellee; Frederic E. von Ammon and Earl D. Reese, of counsel.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.


text:
    Jules G. Eichenbaum et al., plaintiffs, v. State and Quincy Building Corporation et al., defendants. Continental Illinois National Bank and Trust Company of Chicago et al., appellees, v. Jules G. Eichenbaum et al., respondents. Appeal of Jules G. Eichenbaum, appellant.
    Gen. No. 40,193.
    Heard in the third division of this court for the first district at the April term, 1938.
    Opinion filed November 30, 1938.
    Rehearing denied December 16, 1938.
    Shulman, Shulman & Abrams, for appellant; Meyer Abrams, of counsel. Gardner, Carton & Douglas and Campbell, Clithero & Fischer, for appellees.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.


text:
    Martin H. Finneran, appellee, v. The City of Calumet City, appellant.
    Gen. No. 39,963.

      Heard in the second division of this court for the first district at the February term, 1938.
    Opinion filed December 13, 1938.
    Miller, Gorham, Westcott & Adams and John E. Pavlik, for appellant; Herbert C. De Young, of counsel. Markman, Donovan & Sullivan and Henry O. Nickel, for appellee.
   Mr. Presiding Justice Friend

delivered the opinion of the court.


text:
    Consoer, Townsend, and Quinlan, appellee, v. City of Calumet City, appellant.
    Gen. No. 39,964.
    Heard in the second diviison of this court for the first district at the February term, 1938.
    Opinion filed December 13, 1938.
    Miller, Gorham, Westcott & Adams and John E. Pavlik, for appellant; Herbert C. De Young, of counsel. Markman, Donovan & Sullivan and Henry O. Nickel, for appellee.
   Mr. Presiding Justice Friend

delivered the opinion of the court.