text:
    F. J. Lewis Manufacturing Company, Appellee, v. The Pennsylvania Railroad Company, Appellant.
    Gen. No. 34,233.

      Heard in the first division of this court for the first district at the April term, 1930.
    Opinion filed June 30, 1930.
    Loesch, Scofield, Loesch & Richards, for appellant; Edward M. Burke, of counsel.
    Barrett, Barrett & Wermuth, for appellee.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.

This is an appeal by defendant from a judgment in the sum of $266.21 entered upon the finding of the court. The declaration of plaintiff consisted of the common counts only. The action is based on the collection by defendant of a check to which the name of plaintiff was forged. Defendant filed a plea of the general issue with notice of special defenses: (1) that the negligence on the part of plaintiff precluded recovery; and (2) that the period of time between the date of the forgery and the discovery of the same by plaintiff was sufficient to prevent a recovery;

There is no controversy as to any material facts. In September, 1925, plaintiff maintained in its business a department called the “Liquids Despatch Line.” This department had its own bank account at the Standard Trust & Savings Bank in Chicago, and this account was separate and apart from other accounts of plaintiff. F. J. Lewis and W. H. Lewis had authority to sign checks on the account of the Liquids Despatch Line without any counter-signatures. Mr. Curda and Mr. J. R. O’Connor had authority to sign such checks jointly.

Up to August, 1922, F. J. Lewis was president of the plaintiff company, and thereafter he was chairman of its board of directors. Plaintiff employed one Shilling, whose usual duties were to keep the records of tank cars used in plaintiff’s business.

On October 1, 1925, Shilling bought from one Flohr, á ticket agent of defendant railroad company in Chicago, four railroad tickets. The reservations were made by Shilling in the name of plaintiff company. Flohr had known Shilling for three or four years prior to this transaction, and he took in payment of these tickets and reservations the check of plaintiff to the order of defendant drawn upon the account of the Liquids Despatch Line in the Standard Trust & Savings Bank. The check appears in the record as Exhibit 1. Upon its face it is as follows:

“Liquids Despatch Like
We furnish tank cars for transportation of all kinds of liquids
Paid Chicago, 9/26/25 No. 11912
10-3-25 Pay To Order of
2.-26 Pennsylvania Railroad Co. $218.96
Exactly Two Hundred Eighteen Dollars Ninety-six Cents
Liquids Despatch Line
Countersigned by W. H. Lewis
J. R. O’Connor Agent
Standard Trust & Savings Bank
2.26 ’ Chicago ’ ’

In the upper left-hand corner of the face of the check appears the printed statement: “Payee in indorsing this check acknowledges payment in full of the following accounts: No. 10125 — $218.96.” In the lower left-hand corner is the printed statement: “Void if detached. " On the back of the check appears the indorsement by a stamp: “For deposit only to the credit of the Pennsylvania Railroad Company, C. R. Mersch, Agent” and the further indorsement: “Paid through Chicago Clearing House, October 3, 1925, to the First National Bank of Chicago.”

On the same date, October 3, 1925, the Standard Trust & Savings Bank deducted the amount of the check from the account of the Liquids Despatch Line at that bank, and at the end of the month rendered to plaintiff a statement showing such payment on account of the check. The signature of W. H. Lewis upon this check was a forgery.

When, according to its custom, in October, 1925, the Standard Trust & Savings Bank rendered a statement of its account to plaintiff, Mr. O’Connor and Mr. Binchey were bookkeepers for plaintiff. By the system then in operation, after the canceled checks were returned from the bank they were handed to Mr. Binchey, who would check the same against the bank statements and would then compare the deposits as shown on the statements with his records. After checking the canceled checks and the bank statements against his records and the check register, and finally after deducting the amount of outstanding checks, he would balance the bank statements with his bank account on the books.

Plaintiff did not discover this particular forgery until May, 1927, and on June 22,1927, for the first time demanded that defendant pay to it the amount of the check, which defendant refused to do.

These four railroad tickets were never delivered to plaintiff company nor used by it. Plohr, the agent of defendant, had taken the checks of the Liquids Despatch Line before in payment of tickets sold to Shilling for plaintiff,. and no person other than Shilling ever bought tickets from defendant railroad company for plaintiff before that time.

The court refused to allow questions as to whether Shilling held any property of plaintiff in his own name and as to whether prior to this time he, Shilling, had forged other checks of the Liquids Depatch Line. Defendant, upon objection by plaintiff, stated that he proposed to show by the witness that beginning in 1919 and up to 1927, Shilling forged checks totaling in the “vicinity” of $70,000, and that it was not discovered by the F. J. Lewis Manufacturing Company over that period of eight years. Evidence as to whether W. H. Lewis in 1925 ever looked at the bank statement as returned, as to whether Binchey in 1925 or thereafter made any report about the returned checks being forged, and as to when plaintiff first discovered that its checks were being forged by Shilling, was all excluded upon the theory that the negligence of plaintiff was wholly immaterial.

At the close of the evidence propositions of law and of fact were submitted. At the request of plaintiff the court held as law:

“That where a person or corporation obtains money of another, which it is inequitable or unjust for it to retain, the person entitled to it may maintain an action for money had and received for its recovery, and it is not necessary that there should be an express promise to pay, as the law implies a promise.

“That where a person or corporation receives a sum of money by means of a forged check to which one of the required signatures for the maker was forged, and retains the proceeds thereof, the maker can in an action in assumpsit for money had and received, recover such sum of money from the person or corporation so receiving and retaining the proceeds of said forged check. ’ ’

The court further held that the maker’s negligence in not sooner discovering the forgery was no defense to the action; that a person or corporation called upon to act upon the faith of the written instrument must ascertain its genuineness at its peril. The court refused to find as a fact, as requested by defendant, that the defendant was not negligent.

It is the contention of defendant that it is the law in this State that in the absence of fraud a purported maker of a check on which the signature of the maker was forged, who pays the same when it is presented, cannot recover the amount thereof from the payee in the check; that this proposition of law is applicable to the facts of this case, and that the court erred in holding to the contrary. Defendant relies on the case of Price v. Neal, 3 Burr. 1354; 96 Eng. Reprint 221.

That case held in substance that plaintiff Price could not recover money that he had paid by mistake upon two bills drawn against him which were forged, he thinking that the bills were true and genuine. Lord Mansfield held that it was incumbent upon the plaintiff to be satisfied “that the bill drawn upon him was in the drawer’s hand, before he accepted or paid it”; but that it was not incumbent upon defendant, who in good faith had presented the bills for payment, to inquire into that.

The rule of law announced in that case seems to have been generally followed by the courts of this country. Cooke v. United States, 91 U. S. 389, 23 L. Ed. 237; United States Bank v. Bank of Georgia, 10 Wheat. (U. S.) 333, 6 L. Ed. 334; 23 U. S. 333; Ellis & Morton v. Ohio Life Ins. & Trust Co., 4 Ohio St. 628. That rule is also generally accepted by the textwriters. 8 Corpus Juris, pp. 606-608, sec. 844; 3 Ruling Case Law, p. 1294, sec. 527. While, there is some authority to the contrary, it is generally held that this rule states the law applicable in States which have adopted the Negotiable Instruments Act, Cahill’s St. ch. 98, ¶ 21 et seq. That act was adopted by the State of Illinois in 1907, and as stated in National City Bank of Chicago v. National Bank of Republic, 300 Ill. 103:

“The law was enacted for the purpose of furnishing in itself a certain guide for the determination of all questions covered thereby relating to commercial paper, and, so far as it speaks without ambiguity as to any such question, reference to case law as it existed prior to the enactment is more likely to be misleading than beneficial.”

Section 23 of that act (see Cahill’s St. ch. 98, ¶ 43; Smith-Hurd’s Ill. Rev. Stat. 1929, chap. 98, p. 1953) provides:

“Where a signature is forged or made without authority, it is wholly inoperative, and no right to retain the instrument or to give a discharge thereof, or to enforce payment thereof against- any party thereto, can be acquired through or under such signature, unless the party against whom it is sought to enforce such right is precluded from setting up the forgery or want of authority.”

Section 62 of that act (see Cahill’s St. ch. 98, ¶ 82; Smith-Hurd’s Ill. Rev. Stat. 1929, chap. 98, p. 1957) provides:

“The acceptor by accepting the instrument engages that he will pay it according to the tenor of his acceptance, and admits:

(1) The existence of the drawer, the genuineness of his signature, and his capacity and authority to draw the instrument; and

(2) The existence of the payee and his then capacity to indorse.”

The weight of authority seems to be that by the enactment of section 62 it was the intention to adopt the doctrine of Price v. Neal, and that said section is applicable to payment or acceptance by the drawee of a forged bill or check. (See Brannan’s Negotiable Instruments Law, Ann., 4th ed., 1926, pp. 555-576.) Of the numerous cases so holding, attention may be called to First Nat. Bank v. Brule Nat. Bank, 41 S. Dak. 87; 161 N. W. 616, where the court, upon a rehearing, modified its opinion to the contrary in the same case as reported in 38 S. Dak. 396. That there is authority against this construction will appear from an examination of South Boston Trust Co. v. Levin, 249 Mass. 45, 143 N. E. 816; in which, however, on common-law principles the doctrine of Price v. Neal was approved. Without citing section 62, the Supreme Court of Illinois seems to have applied the rule of Price v. Neal in First State Bank & Trust Co. v. First Nat. Bank, 314 Ill. 269, affirming 234 Ill. App. 39.

The author of Brannan’s Negotiable Instruments Law, Ann., in the preface to the 4th edition, states:

“The position of a bank paying a forged or altered check or bill, or an overdraft, is not clearly and satisfactorily covered by sec. 62. In the case of forgery of the drawer’s signature, recent cases have shown an increased uniformity in following Price v. Neal, but the law as to raised checks and overdrafts still remains uncertain.”

Plaintiff cites and relies on Williamsburgh Trust Co. v. Tum Suden, 105 N. Y. S. 335, where Suden, who negotiated certain checks, to which the names of the purported drawer had been forged, and put them into circulation with his unqualified indorsement, was held to have facilitated the forgery, and the drawee bank which sued allowed to recover, the court holding that the case presented “an interesting exception to the case of Price v. Neal.” That case, however, has been severely criticized as based upon a fallacy (Brannan’s Negotiable Instruments Law, 4th ed., p. 556; 56 American Law Register (N. S.) now U. of P. Law Review, 122; 17 Harvard Law Review 581 to 583), and apparently it has not met with the approval of the highest court of the State of New York. Title Guarantee & Trust Co. v. Haven, 214 N. Y. 468, 108 N. E. 819.

We hold that the law as announced in Price v. Neal is the law of this State.

Plaintiff argues, however, that this rule is not applicable to tie facts which here appear, because, in the first place, as it is said, plaintiff did not itself pay the check, and because, in the second place, defendant was guilty of negligence in the matter.

There is an apparent distinction between the cases cited and the instant case in this respect, and although a wealth of authority has been cited by each of the parties to this controversy, our attention has not been called to any case which is not distinguishable in this respect. We are, however, not inclined to think that the distinction is material or that plaintiff is in a position to urge the point. In the first place, as defendant points out, if plaintiff has not paid the check it seems to have no basis whatsoever for its suit. If it has not paid the check it has not been damaged because defendant has not obtained plaintiff’s money. The theory upon which plaintiff sues appears to be that it has in fact paid the check through the bank and that defendant has received the money which in equity and good conscience belongs to plaintiff. It certainly cannot maintain its suit upon entirely inconsistent theories, urging on the one hand that it has not paid the check and on the other that it has paid it and should be reimbursed for the amount paid. If it has ratified the payment of the check by the bank, it is certainly in no better position than the bank would be. Indeed, it would not seem unreasonable to hold that by its retention of the check it has at least acquiesced in, if not approved, the payment thereof by the bank.

Moreover, the uncontradicted evidence tends to show that plaintiff received the check and still holds it, having neither returned nor offered to return it either to the drawee bank or to defendant. The public interest would seem to require that the good faith holders of negotiable instruments should not be subjected to hazards such as would be put upon them by the rule for which plaintiff contends.

That plaintiff was grossly negligent clearly appears from the evidence which was admitted, and the court excluded evidence which tended to show greater negligence. As against the bank, by virtue of the act approved June 27, 1921 (see Cahill’s St. ch. 16a, ¶ 24; Smith-Hurd’s Ill. Rev. Stat. 1929, chap. 16½, sec. 24, p. 209), plaintiff was precluded from maintaining a suit, and independently of that statute, its negligent conduct was such as to preclude its recovery in any suit which it might have brought against the bank. Osborn v. Corn Exchange Nat. Bank, 218 Ill. App. 28; Kaszab v. Greenebaum Sons Bank & Trust Co., 252 Ill. App. 107; 24 Columbia Law Review, pp. 469-479.

If plaintiff could not recover against the drawee bank, much less can it recover against defendant, a holder in good faith for value.

The rulings of the trial court upon propositions of law indicate that in the opinion of the trial court such negligence was wholly immaterial, and in support of that contention plaintiff cites Wizard Oil Co. v. United States Express Co., 265 Ill. 156; Gustin-Bacon Mfg. Co. v. First Nat. Bank, 306 Ill. 179, and Independent Oil Men’s Ass’n v. Fort Dearborn Nat. Bank, 311 Ill. 278. These cases are not controlling.

In the first place, these cases do not purport to construe the Negotiable Instruments Act, and in the second place, they are all distinguishable by the fact that in those eases the name of the payee, not that of the drawer, was forged. For that reason the defendants in those cases became liable to the true owners for the conversion of the checks, and defendants being so liable it of course followed that the true owners might waive the tort and sue in assumpsit as for money had and received, and that therefore the negligence of the owners of the checks would be immaterial, as those cases hold.

As to the contention of plaintiff that defendant here was negligent, we have read the record carefully but fail to find therein any facts from which such negligence can be inferred. It has been suggested in this connection that an inference of negligence might be drawn from the language on the check to the effect that the payee in indorsing the same acknowledged payment in full of account No. 10125. There is no proof in the record showing what this account covered. Whatever the account number may have referred to, it seems to have aroused no suspicion on the part of plaintiff nor of the bank which paid the check. The number was, of course, on the check when it was paid by the drawee bank and when the check was returned by that bank to plaintiff. As defendant points out, if negligence is to be attributed to it because of failure to investigate and discover that the check was a forgery or to ascertain the meaning of “account No. 10125,” much greater must have been the negligence attributable to plaintiff and to the bank in this respect. The evidence as to account No. 10125 was in the possession of plaintiff, but it was not produced.

In a suit like this, for money had and received, the appeal is to the conscience of the court. The rule announced in Price v. Neal is undoubtedly an exception to the general rule that money paid under a mistake of fact can be recovered. In cases to which that exception is applicable, it would seem reasonable to hold that the negligence of a plaintiff, as well as the negligence of a defendant, is material. In such an action as already stated, a plaintiff may recover from a defendant only that which in equity and good conscience a defendant ought not to retain as against the plaintiff. In such a case the question of the negligence of plaintiff is important and material. The court therefore erred in holding that plaintiff could maintain an action for money had and received and that plaintiff’s negligence was no defense to the action. The equities of this case are all with the defendant.

The court also erred in excluding the evidence tending to show that plaintiff was further negligent. However, we hold that upon the uncontradicted evidence plaintiff cannot recover, and the judgment of the trial court is therefore reversed with a finding of facts and judgment here in favor of defendant.

Reversed with finding of facts and judgment here for defendant.

O’Connor and McSurely, JJ., concur.

Finding of facts: We find as facts in this case that defendant, Pennsylvania Railroad Company, took the check of plaintiff in the usual course of business and for value; that it was not negligent in said transaction; that on the uncontradicted evidence plaintiff is guilty of negligence which precludes recovery, and that on the undisputed facts plaintiff cannot maintain an action against defendant for money had and received; that judgment should be entered in this court in favor of defendant and against plaintiff for costs.


source: Caselaw Access Project

author: Mr. Justice McSurely

license: Public Domain

text:
    Meyer Goldstein, Complainant, v. Morris Weisberg et al., Defendants. Sam Gordon and Edward Reiff, Cross Complainants and Appellants, v. Morris Weisberg et al., Cross Defendants and Appellees.
    Gen. No. 34,215.

      Heard in the first division of this court for the first district at the April term, 1930.
    Opinion filed June 30, 1930.
    Maxfield Weisbrod and Alexander J. Reiff, for appellants; Maxfield Weisbrod, of counsel.
    Sherman C. Spitzer and Norbert B. Tyrrell, for appellees.
   Mr. Justice McSurely

delivered the opinion of the court.

Sam Gordon and Edward Reiff (hereafter called cross complainants) appeal from an order dismissing their cross-bill seeking a mechanic’s lien on the premises which were the subject-matter of foreclosure proceedings in the case of Goodman v. Weisberg et al.

Was the lien claim of cross complainants barred by the foreclosure'?

April 4, 1926, cross complainants made a contract for decorating with the owners of the premises for $1,944, which work was completed June 21, 1926.

June 24, 1926, Samuel Goodman filed his bill against Weisberg et al. to foreclose the trust deed. At this time no claim for mechanic’s lien had been filed by cross complainants and they were not in possession of the premises, so that any claim they had was a secret lien. The foreclosure bill made “unknown owners" parties defendants claiming some interest in the premises as lienors, etc., and due publication was made for such unknown owners. (Subsequently on October 26, 1926, Meyer Goldstein filed his bill against Morris Weisberg and others to foreclose a trust deed. This proceeding does not affect the question before us, so that hereinafter in referring to foreclosure proceedings we are referring to the case of Goodman v. Weisberg except as otherwise indicated.)

August 10, 1926, cross complainants filed their claim for lien in the office of the clerk of the circuit court.

August 21, 1926, the “unknown owners” were defaulted and the foreclosure bill was taken as confessed as to such defendants.

September 14, 1926, final decree in the foreclosure proceedings was entered which recited that defendants and all persons claiming under them were forever barred from any right, claim or interest in and to the premises.

November 10, 1926, the premises were sold, pursuant to the decree, to Samuel Goodman.

November 15,. 1926, the report of the master as to the sale was filed and confirmed.

July 19, 1927, cross complainants were given leave to file their cross-bill instcmter in Goldstein v. Weisberg et ad., and a rule was entered on all the parties to answer the same within thirty days.

February 15, 1928, there being no redemption, the master in chancery delivered his deed of the premises to Belle Finkelstein, assignee of the purchaser, Samuel Goodman, which deed was duly filed on the same day. By subsequent mesne conveyances Chicago Title & Trust Company, as trustee, acquired title June 1, 1928.

October 9, 1929, cross complainants filed an amendment to their cross-bill, Goldstein v. Weisberg et al., making Chicago Title & Trust Company, as trustee, and other defendants parties defendant thereto.

November 20, 1929, the appearance of the Chicago Title & Trust Company, as trustee, was entered in the Goldstein case, and December 5, 1929, its answer was filed to the cross-bill.

December 16, 1929, cross complainants filed exceptions to the answer of the Chicago Title & Trust Company, trustee. January 15, 1930, upon hearing of the exceptions, they were overruled and the cross-bill as amended was dismissed for want of equity.

In their cross-bill cross complainants after reciting the prior proceedings represented that they were in the general painting and decorating contracting business in the City of Chicago; that they made a contract to decorate the premises in question on April 4, 1926, which work was completed June 21, 1926; that there was due for this work $1,944, for which cross complainants claimed a lien on the premises; that August 10, 1926, they filed their claim for lien in the circuit court. They prayed that the defendants be decreed to pay the amount of the lien and that they be allowed a lien against the premises for the amount thus due and in default of payment that the premises be sold and that all persons thereafter claiming any right be barred.

The answer of the Chicago Title & Trust Company, trustee, recited the foreclosure proceedings in the Goodman case, the decree and sale; that redemption was not made and that a deed had issued, and set forth the mesne subsequent transfers resulting in title in the Chicago Title & Trust Company, trustee; that the cross complainants were parties to the Goodman foreclosure proceedings under the name and designation of “unknown owners,” and that by reason of those proceedings their rights are forever barred and foreclosed ; that they were not entitled to any relief prayed for in the cross-bill and asked that it be dismissed. The exceptions filed by cross complainants thereto averred in substance that the answer was insufficient as containing matters not pertinent or relevant to any of the issues in the cause.

Cross complainants first argue here that, having complied with the provisions of the mechanic’s lien law, they are therefore entitled to maintain their lien against the premises. It may be conceded that they have complied with the provisions of the lien law, but even such a lien may be barred. The real question is whether their claim for lien has been barred by the foreclosure proceedings.

The point is presented that, as the proceedings to foreclose and to enforce their lien were pending concurrently, there can be no bona fide purchaser at the foreclosure sale. The question of a bona fide purchaser does not arise on this record. If the claim for lién is barred by the foreclosure decree, sale and deed, those claiming subsequently by title derived through said foreclosure proceedings are not affected by the fact the cross complainants might have had a lien if it had not been thus barred.

If cross complainants were properly made defendants in the Goodman foreclosure proceedings under the designation of “unknown owners,” their lien claim is barred thereby. Section 7 of the Chancery Act, Cahill’s St. ch. 22, ¶ 7, provides that in suits in chancery involving lands “if there be persons interested in the same, whose names are unknown, it shall be lawful to make such persons parties to such suits or proceedings, by the name and description of unknown owners,” and that when proper publication has been made the court is authorized “to hear and determine the suit, as though all parties had been sued by their proper names.” Section 43 reads:

“All decrees, orders, judgments and proceedings, made or had with respect to unknown persons, shall have the same effect, and be as binding and conclusive upon them as though such suit or proceeding had been instituted against them by their proper names.”

Cross complainants may have had a claim for lien but such lien under the mechanic’s lien law attached as of the date of their contract or April 4, 1926. As they were not in possession of the premises and had filed no claim for lien at the time the foreclosure bill was filed, they properly came under the designation of “unknown owners.” When a person is properly made a party to a suit as “unknown owner” and service obtained upon him as required by statute, the decree is just as binding as if he were made a party by his real name and duly served. Busby v. Maus, 294 Ill. 401; Walker v. Ogden, 192 Ill. 314. By section 19 of the Chancery Act, Cahill’s St. ch. 22, ¶ 19, it is provided that such persons may open the proceedings within three years after the rendering of the decree. Cross complainants, however, are not moving under this statute.

Cross complainants seem to argue that, because they had four months within which to file their claim for lien, nothing could happen in the meanwhile to affect their rights. This is an erroneous assumption. A secret lien is in constant peril. The filing of the Goodman bill to foreclose was, in effect, notice to cross complainants that any lien claim may be barred by the proceeding. They did nothing in the matter and permitted the foreclosure to proceed to a default against them, a decree and a sale, and asserted no rights in the proceeding until nearly nine months after the decree was entered and none against the instant holder of the title until well on to two years after the sale had ripened into a deed.

If cross complainants acquired their rights subsequent to the filing of the Goodman foreclosure bill, they acquired such rights pendente lite and are bound by the foreclosure proceedings. Section 1 of the Chancery Act in regard to lis pendens, Cahill’s St. ch. 22, ¶ 57, provides that every suit in equity shall from the time of the filing of the bill “be constructive notice to every person subsequently acquiring an interest in or a lien on the property affected thereby, and every such person and every person acquiring an interest or lien as aforesaid, not in possession of said property and whose interest or lien is not shown of record at the time of filing such bill of complaint . . . shall, for the purposes of this Act, be deemed a subsequent purchaser and shall be bound by the proceedings to the same extent and in the same manner as if he were a party thereto.”

It follows, therefore, that cross complainants’ rights are barred, even upon the assumption that they acquired an interest pendente lite, for their claim for lien was not filed until some months after the foreclosure bill had been filed. In the recent case of Moore v. Zelic, 338 Ill. 583, in an opinion sustaining the validity of this statute, it was said that the doctrine of lis pendens “is based on questions of public policy and convenience as necessary to the administration of justice, in order that decisions in pending suits may be binding and of full effect and that an end be had to litigation."

Whether we consider cross complainants as having a secret lien when the Goodman bill to foreclose was filed, or as having an interest which attached pendente lite, in either view the cross-bill was properly dismissed and the decree is affirmed.

Affirmed.

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


text:
    Charles H. Eagle, Appellant, v. Andrew Hoffman, Appellee.
    Gen. No. 34,312.

      Heard in the first, division of this court for the first district at the April term, 1930.
    Opinion filed June 30, 1930.
    Rehearing denied July 11, 1930.
    John H. Roser, for appellant.
    David H. Caplow, for appellee; Albert G. Rosenbaum, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

Plaintiff brought suit claiming that there was due him $602.91 for a balance due on a drawing account and expense money which according to the terms of a written agreement of employment defendant should have paid plaintiff. The trial court was of the opinion that the-statement of claim did not state a good cause of action and struck the same. Plaintiff, choosing to abide by his statement, appeals from the judgment that he take nothing.

Defendant is engaged in the business of selling builders hardware for buildings and plaintiff was employed to estimate and figure on hardware for such buildings. The pertinent portions of the contract of employment dated January 17, 1929, are as follows:

“Commissions to be fifty per cent of profits on all Finishing Hardware sold by you (plaintiff) after the overhead charge of twenty-five per cent has been added to the cost of the goods.”

Credit Department of defendant to approve all orders submitted by plaintiff. Plaintiff was not responsible for any losses thus approved except that: “When losses do occur by failure of customer paying his account, the commission on that account will be lost to you.”

Defendant was to take care of collections, but in case of dispute it would be the duty of plaintiff “to go out and adjust the matter.”

The particular provisions in controversy are as follows:

“Commission will be paid in full every six months on all jobs that have been fully paid up, in the meantime you will have a drawing account which should not exceed the commission earned.

“The drawing account agreed upon to be ($35.00) Thirty-Five Dollars per week, and Five Dollars per week expense.”

The position of defendant, which view seems to have been adopted by the trial court, was that it was necessary for the plaintiff to show in his statement of claim the amount of commissions earned and that failure to make such an allegation was fatal. We do not agree with this construction. Similar provisions have been construed as an agreement to advance a definite amount whether or not any commissions were earned. Nelson v. American Business Bureau, 241 Ill. App. 432. Drawing account in such a contract means “payments made in anticipation of expected commissions.” Arbaugh v. Shockney, 34 Ind. App. 268. But such payments are not to exceed the commissions earned. Felsenthal Bros. & Co. v. Gradwohl, 217 Ill. App. 170, is to the same effect.

Plaintiff in his statement of claim alleged that it was among his duties to call upon architects, contractors, engineers and other people engaged in the business of erecting buildings; that he was experienced in this kind of work as he had been in the same line for nearly 40 years and was competent and familiar with all the details required for furnishing buildings with hardware according to plans and specifications; that he had a wide and varied acquaintance among such builders; that in accordance with the contract he diligently figured on many buildings according to plans and specifications and called upon contractors and others interested in buildings in order to secure contracts and orders and did secure various contracts and orders for defendant; that during all this time he was diligently advertising and promoting the business of defendant. Plaintiff alleged that defendant violated his contract in that he failed to pay the drawing account provided for in the contract at a certain time specified in his statement of claim and for a time suspended the payment of the drawing account entirely. Said statement also alleged that defendant failed to pay the full amount of plaintiff’s expense account as set forth in detail in said statement.

It would be unconscionable to suspend payment of plaintiff’s drawing account while he was faithfully performing his obligations to the defendant when, as far as the record shows to the contrary, there might be ample commissions accruing to plaintiff within the immediate future. This was the view taken of a similar provision in Levay v. Goldwasser, 133 N. Y. S. 456, 457.

The provision in the contract that “when losses do occur by failure of customer paying his account, the commission on that account will be lost to you,” is consistent with the construction that plaintiff was entitled to a drawing account regardless of commissions; otherwise this provision would deprive plaintiff of a drawing account and also his commissions through the fault of defendant’s credit department in approving a customer whose credit was bad.

The statement further contained the allegation that defendant was indebted to plaintiff for expense money. This certainly stated a cause of action.

We hold that the motion to strike should have been denied and the judgment is reversed and the cause remanded.

Reversed arid remanded.

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


author: Mr. Justice O’Connor

text:
    The People of the State of Illinois, Defendant in Error, v. R. R. Huggins, Plaintiff in Error.
    Gen. No. 34,205.

      Heard in the first division of this court for the first district at the June term, 1930.
    Opinion filed June 30, 1930.
    Crowe, Gormar & Savage, for plaintiff in error; Burrell J. Cramer, of counsel.
    John A. Swarson, State’s Attorney, for defendant in error; Edw. E. Wilson, John Holman and Grenville Beardsley, Assistant State’s Attorneys, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.

By this writ of error the defendant, R. R. Huggins, seeks to reverse the judgment of the criminal court of Cook county by which he was adjudged to be guilty of contempt of court, imposing a fine of $25 and sentencing him to a term of 60 days in the county jail of Cook county.

The record discloses that on July 18 the State’s Attorney of Cook county filed an information against the defendant Huggins asking that a rule be entered against him requiring him to show cause why he should not be held in contempt of court. The defendant filed his verified answer to the order ruling him to show cause. The matter came on for hearing on July 24, 1929, and the court stated he had read the defendant’s answer and that he was of the opinion that the answer did not purge the defendant of the contempt charged against him in the information. Thereupon, it was agreed by both parties that the court might hear the evidence of all the facts in the case and the complaining witness, D. G-. Perrin, took the stand and testified at length. At the close of his testimony on that day the cause was continued until September, but the hearing was not resumed until October 19, when the case was again continued to November 9, when defendant, by leave of court, filed an amended answer to the information. The court permitted a verified amended answer to be filed without prejudice to what had theretofore taken place, and the court expressly stated that in reaching a decision he would consider the oral testimony given by the complaining witness, Perrin. Afterwards, on November 16, the judgment finding the defendant to be in contempt and imposing the sentence as above stated was entered.

The record discloses that the complaining witness, Perrin, had been employed by the Baltimore and Ohio Railroad company for about 11 years as a yard brakeman. At the time in question, June and July, 1929, he was working in the vicinity of Wolf Lake, doing yard switching. About June 15, 1929, he was summoned for jury service in the criminal court of Cook county and was assigned for service before Hon. Marcus Kavanagh, then holding court in the criminal court of Cook county. He began his jury service about July 1, and finished the term for which he was summoned about July 12. At the time the complaining witness was summoned for jury service he was working an 8-hour shift in the daytime, which of course would interfere with his service as a juror, and shortly after he was summoned for jury service he reported the fact to one of his superiors and requested that his period of work be shifted from the daytime to another which began in the nighttime and ended early in the morning. Under the rules under which the complaining witness was working, he had a right to demand of the railroad company that the time he was to work be shifted from day to the nighttime and the shift was accordingly made. Shortly after complaining witness began his jury service, he testified, it became apparent that he could not work the full 8 hours required during the night period, because if he did so he could not report for the jury service at the opening of court, so he quit his work an hour or so before his shift was up.

From his testimony it further appears that he reported the fact that he could not work the 8 hours during the nighttime and report in time as a juror, and that he was permitted to leave on one or two occasions before the completion of his 8 hours’ work. The evidence further shows that when the fact that the complaining witness was leaving before his service was completed came to the attention of Huggins, the defendant, complaint was made of this fact, and the complaining witness was notified that he could not leave his work before he had completed the number of hours required of him; that Huggins advised complaining-witness of this fact and told him that if he desired he could be given earlier night shifts where he would work the full time and yet appear in court at the proper hour if he desired to do so. And the complaining witness further testified that he told Huggins he would consider the matter and that afterwards he never communicated to anyone whether he would accept the earlier shift, but it appears that he continued to work on the shift designated by himself as above stated. Complaining witness also testified that when complaint was made about his leaving his work before it was time to do so, he stated that the railroad company could place him on the “layoff list”,until he was through with jury service. He stated, “they should have placed me on the layoff list, should have allowed me a layoff.” On cross-examination he testified that at the time he was notified to appear for jury service he did not ask for a layoff, and a consideration of his entire testimony discloses the fact that at no time did he ask that he be laid off during his jury service. The most that can be said is that he testified to the fact that the railroad company should lay him off without his request.

The record further discloses that a day or so after Perrin had completed his jury service on July 12, he was called.before the defendant and there was a hearing of the complaint made against him, and on July 15 Huggins wrote a letter to complaining witness dismissing him from the service of the railroad company. The letter stated, “You are hereby dismissed from the service of this company for leaving your tour of duty without permission before the expiration of your 8 hours and for insubordination which was developed during investigation in my office on July 13th and I respectfully request that you turn back your company property.” Two days later Perrin complained to the State’s Attorney and the next day the information was filed; the charge being, as stated in the information, that the discharge of Perrin “was highly prejudicial to the-proper administration of the criminal law” in the court presided over by'"Judge Kavanagh.

■ In Ms amended answer Huggins denies that he had done anything tending to obstruct the administration of justice, and that he did not intend to act in contempt of- the court or to do anything disrespectful. The answer further set up the facts with reference to Perrin’s request for a change of the hours he was to work on account of his jury service, and that under the rules the transfer was required to be made as requested, and further that Perrin did not request to be laid off during the time he was serving as a juror and that if he had done so, his request would have been granted. Further facts are set up in the answer substantially as testified to by the complaining witness and hereinbefore set forth as to the nature of the complaint, and that Perrin might have had an earlier night shift which would have permitted him to work for the railroad company as well as to serve as a juror if he desired to do so. The answer further alleged that the defendant was not authorized to discharge Perrin; that this could be done only by another employee occupying a superior position in the railroad company’s employ.

The complaining witness gave testimony to the further effect that one of the reasons he wanted a night shift while he was serving as a juror was that the railroad was short of men, and the court, in summing up the case, stated: “He (Perrin) says that the railroad company was very hard up for men, and he was trying to please the railroad company as well as do his duty as a juror.” The court further stated that he was of the opinion that Perrin would not have been discharged except for the fact that he was serving on the jury and further, “that they wanted to discharge him anyway, because he is sort of a ‘switch yard lawyer, ’ and they used this opportunity to discharge him because he was on jury service.”

Of course it is the duty of every good citizen to serve on a jury and we think it would be contemptuous conduct on the part of a person’s employer to discharge him because he was performing his duty as a citizen in the courts, as a juror.

The court found as a fact that Perrin’s jury service was highly satisfactory, and counsel for the defendant contends that in view of this finding, and the fact that Perrin was not discharged until after his term of service had expired, show that no contempt of court could have been committed. But we think this argument is unsound. Sinclair v. United States, 279 U. S. 749.

Upon a careful consideration of all the evidence in the record, we are clearly of the opinion that the judgment of the court finding the defendant, Huggins, guilty of contempt is against the manifest weight of the evidence. From complaining witness Perrin’s testimony it clearly appears that while he was performing his service as a juror he desired to continue working for the railroad company, and it was at his own request that he was assigned to work for the railroad company during a night shift. He did not request nor did he want to be laid off. He had a right, under the rules under which he was employed, to demand to be changed to the night shift at his request, and obviously • he could not demand a night shift and then arbitrarily work only a part of that period. "When he was told by Huggins that he could have an early night shift he said he would take the matter under advisement and admits that he never made any answer to Huggins or anyone else.

The judgment of the criminal court of Cook county is against the manifest weight of the evidence and it is reversed.

Reversed.

Matchett, P. J., and McSurely, J., concur.


text:
    Harry Aidner, Appellee, v. Morris Cobin, also known as Morris Cabin et al., Appellants.
    Gen. No. 34,288.
    Matchett, P. J., dissenting.
    Heard in the first division of this court for the first district at the April term, 1930.
    Opinion filed June 30, 1930.
    William Jaffe, for appellants.
    G. A. Buresh and Rudolph Shapira, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.

On January 20,1930, plaintiff had judgment by confession entered against the defendants on a promissory note. Seven days thereafter the defendants filed their verified petition and moved the court to vacate the judgment and give them leave to defend the case on its merits. The motion was overruled and the defendants prosecute this appeal.

The record discloses that the note on which the judgment was confessed is for $400, dated October 7, 1929, due three months after date. It is made by the defendants and is payable to the order of Sam Stern, who indorsed the note and apparently delivered it to the plaintiff, Aidner. The petition on which the motion to vacate the judgment was predicated set up that after the note by its terms became due, Sam Stern, the payee, made several demands on the defendants for payment, and afterwards turned over the note to the plaintiff for the sole purpose of cutting off defendants’ defenses, and that plaintiff was not a bona fide holder in due course.

It is further alleged in the petition that on October 8, 1929, defendant Morris Cabin, the principal maker of the note, bought a grocery store, including the stock of goods, leasehold interest and good will, from Sam Stern, the payee of the note, the purchase price being $1,500; that Cabin paid $1,100 cash and executed the $400 note in suit for the balance of the purchase price; that the fair, reasonable value of the fixtures and groceries was $500, and that Cabin paid $1,000 for the leasehold covering the premises in question and the good will of the business; that the lease, which had approximately three years to run, was assigned by Sam Stern to Cabin and the assignment consented to by the owner of the premises; that while negotiations were pending between Stern and Cabin for the purchase and sale of the grocery business, the City of Chicago brought proceedings against Stern to prevent him from conducting the grocery store because the block of the street in which the store was located was zoned for residences and apartments only, and under the ordinances of the City of Chicago a grocery business could not be conducted in the premises in question; that Stern knew of these facts but did not disclose them to Cabin; that on account of the zoning ordinance prohibiting the use of the premises for business purposes, the good will and the leasehold were worthless; and the petition concluded that on account of the. foregoing facts the note in question was without consideration.

As the record stands before us, the allegations of . the petition are admitted to be true, and it therefore being admitted that it was contrary to the ordinance of the City of Chicago to conduct the grocery store in the premises in question, it would be a fraud on the defendants to require them to pay the note in suit when the owner of the premises knew that suits had been brought against him prior to the alleged sale to oust him and to prevent the conducting of a grocery store in the premises. Courts ought not to allow themselves to be vehicles of fraud in any circumstances. According to the petition, the stock of groceries and the fixtures in the premises were not worth more than $500 and it is specifically alleged that the defendants paid $1,000 for the good will and leasehold interest and that $1,100 was paid in cash; so that plaintiff has been paid twice as much as his stock and fixtures are worth. In these circumstances we think the court should have opened up the judgment and heard the case on its merits.

The order for the municipal court of Chicago is reversed and the cause remanded for further proceedings in accordance with the views herein expressed.

Reversed and remanded.

Matchett, P. J., dissents.

McSurely, J., concurs.


author: Mr. Presiding Justice Scanlan

text:
    Edward I. Cohn (Complainant), Appellant, v. William J. Martin et al., Defendants. Edward I. Cohn (Cross Defendant), Appellant, ads. Chicago Trust Company (Cross Complainant), Appellee.
    Gen. No. 34,361.
    Heard in the second division of this court for the first district at the June term, 1930.
    Opinion filed June 30, 1930.
    Joseph Rosenberg, for appellant; Milton M. Hermann, of counsel.
    Defress, Buckingham, Jones & Hoffman, for appellee; Vincent O’Brien and John M. Baker, of counsel.
   Mr. Presiding Justice Scanlan

delivered the opinion of the court.

This is an appeal from an interlocutory order extending a receivership to protect the interests of the cross-complainant (appellee), a first mortgagee. Cross-defendant, Edward I. Cohn (appellant), on January 10, 1930, filed his verified bill of complaint for the foreclosure of a junior trust deed, and alleged that he was the owner and holder of all the notes secured by said trust deed. The bill prayed for the appointment of a receiver, and the Straus National Bank and Trust Company of Chicago was appointed receiver on January 21, 1930. On February 28, 1930, on motion of Chicago Trust Company, cross-complainant (appellee), the following order was entered:

“This matter coming on to be heard upon the motion of Chicago Trust Company, individually and as Trustee, for leave to become a party defendant to the above entitled cause, to file instanter its answer and cross-bill of complaint, etc.

It appearing to the Court that due notice hereof has been given to all parties of record:

It Is Ordered that leave be, and it hereby is, given said Chicago Trust Company, individually and as Trustee under trust deed recorded in the Recorder’s Office of Cook County, Illinois as Document No. 10036337, to become party defendant to the above entitled cause and to file instanter its answer to the bill of complaint herein.

It Is Further Ordered that leave be, and it hereby is, given said Chicago Trust Company, individually and as such Trustee, to file instanter its cross-bill of complaint and that process issue pursuant to the prayer thereof.

It Is Further Ordered that the complainant and the defendants, A. Gr. Denison and Groldye Denison and Louis Grrollman, plead, answer, demur or except to said cross-bill of complaint within 20 days.

It Is Further Ordered that the order entered herein appointing Straus National Bank and Trust Company receiver be and it hereby is, extended to protect the interests of the said cross-complainant.”

Edward I. Cohn, cross-defendant, has appealed from that order.

The appellant contends that “the order for the extension of a receivership is, in legal contemplation and effect, equivalent to an original appointment, and that all the necessary requirements, statutory and otherwise, which are prescribed in the making of an original appointment, must be fulfilled,” and that “therefore, an order for the extension of a receivership must provide for cross-complainant’s bond or must show good cause why such bond should be waived,” and that “no provision was made in the extension order for the giving of a bond by cross-complainant, nor did the order recite that the Court was of the opinion, after notice and full hearing, that bond should be waived, nor did it assign any reasons whatsoever for such a waiver,” and that, therefore, that part of the order of February 28, 1930, extending the receivership should be reversed. The only statutory provision that bears upon the present contention, and the one upon which appellant must necessarily rely, is Sec. 1, Par. 55, Ch. 22, Cahill’s Ill. Rev. Stat. (1929), which reads as follows:

“That before any receiver shall be appointed.the party making the application shall give bond to the adverse party in such penalty as the court or judge may order and with security to be approved by the court or judge, conditioned to pay all damages including reasonable attorneys’ fees sustained by reason of the appointment and acts of such receiver, in case the appointment of such receiver is revoked or set aside; provided, that bond need not be required, when for good cause shown, and upon notice and full hearing, the court is of opinion that a receiver ought to be appointed without such bond."

Chicago Trust Company, cross-complainant (appellee) contends that “an order ‘extending’ a receivership to protect the interests of another encumbrancer is not the ‘appointment’ of a receiver within the provisions of the statute requiring the filing of a bond.” It seems clear to us that the contention of the appellant is not supported by the express language of the statute. The statute provides for the giving of a bond only on the “appointment” of a receiver, and it specifies only one person who is required to give a bond, namely, the applicant for the receiver. The appellee did not apply for the appointment of a receiver, nor does the order appoint a receiver, nor does it extend the receivership to additional property, nor does it in any way affect the “appointment” of the receiver that had already been made. The question as to whether or not a chancellor might exact an additional bond from a party asking that the receivership be extended to additional property, is not before us for determination. The only Illinois case cited by the appellant in support of his contention is Chicago Title & Trust Co. v. Bickley, 255 Ill. App. 45, but we do not regard it as an authority in support of appellant’s contention. In that case, a junior mortgagee filed a bill to foreclose and had one Johnson appointed receiver. Later, a prior mortgagee filed a separate bill and procured an order in his own proceeding that the receivership of Johnson in the former case be extended to the prior mortgagee’s case, and that the said Johnson “as receiver , in this case of said premises, is ordered to file in this cause a bond as such receiver, in the usual form, in the penal sum of $10,000, with surety to be approved by this court.” The order further provided that the complainant “shall not be required to give the bond provided by the statute.” We find from the briefs filed in that case that the appellant contended that “the extension to a new suit of a receivership pending under an appointment in a prior suit is in effect the same as appointing a new recéiver . . . and is in all other respects the same as the appointment of a new recéiver,” and this contention was not challenged or questioned in any way by the appellee. In view of the position of the parties, in that regard, the Appellate Court treated the cause as an appeal from an interlocutory order appointing a receiver. This is apparent from the first sentence in the opinion. However, the situation in Chicago Title & Trust Co. v. Bickley, was not the same as is presented in the present proceeding. In that case the senior mortgagee saw fit to start separate proceedings and the receivership order entered therein upon its motion expressly designated Johnson “as receiver in this case of said premises.” Moreover, the order required Johnson to file a bond as receiver “in this cause,” although he had already filed a bond in the other proceeding and exactly the same property was involved in both cases.

In our judgment, the cross-complainant (appellee) was not required by the statute to furnish a bond upon the entry of the order extending the receivership and the interlocutory order of the Superior Court of Cook County, of February 28, 1930, is affirmed.

Affirmed.

Gridley and Barnes, JJ., concur.


author: Mr. Justice Barnes

text:
    Andrew Skala, Appellee, v. Tom Lehon, Appellant.
    Gen. No. 34,134.

      Heard in the second division of this court for the first district at the February term, 1930.
    Opinion filed June 30, 1930.

      Miller, Gorham & Wales, for appellant; Edward R. Adams and C. R. Larrabee, of counsel.
    Finn & Miller, for appellee.
   Mr. Justice Barnes

delivered the opinion of the court.

This is an appeal from a judgment for $6,500 entered on a verdict for plaintiff in an action for personal injuries resulting from a collision between two automobiles at a short distance west of the west curb of Kedzie Avenue in 45th Street, plaintiff’s car having come from the north and defendant’s from the south.

When begun'the suit named George Briner only as defendant, the driver of appellant’s automobile and his servant but not referred to as such. Later, on leave given, appellant and the Lehon Company were added as defendants. The first count of the declaration charged them jointly with possession and control of the automobile and negligently propelling, .operating and maintaining it. The sixth count charged as negligence a violation of the statute as to turning at the intersection of a public highway. The intervening numbered counts were subsequently eliminated by amendment.

Each defendant appeared and filed his plea of general issue. The Lehon Company filed also a special plea denying operation or ownership of the automobile. There was no specific allegation of ownership in any of the counts, and no question of variance arises.

Over two years after the accident the ease went to trial. At its close the Lehon Company was dismissed out of the case on motion of the court, and Briner on motion of plaintiff. By leave of court plaintiff then filed an amended declaration in two counts only. The first differed from the first original count only in confining its allegations to appellant, and in stating that his propelling, operating and maintaining said automobile was by Ms servant and agent, George Briner, wMle acting witMn the scope of his authority. The second count also alleged such agency and relationship and charged the same negligence as the original sixth count.

To the declaration thus amended defendant Lehon’s plea of general issue was permitted to stand and he filed a special plea denying Briner was Ms servant, and a plea of the two years’ statute of limitation. Issue was joined on the first two pleas, and a demurrer was filed to the last and sustained. Both at the close of plaintiff’s evidence and at the close of all the evidence Lehon’s motion for a directed verdict was denied.

Claiming error in sustaining said demurrer it is urged that as thus amended the declaration stated a new and different cause of action. We cannot concur in that contention.

No doubt had the issues been submitted to the jury as to all defendants a verdict could, on the same proof, have been rendered against appellant alone and hence would necessarily rest upon the alleged cause of action. For “in an action of tort under a declaration charging two or more defendants with jointly injuring a plaintiff there may be a verdict and recovery against one, only, of the defendants, the rule in this regard being different in actions of tort from what it is in actions upon contract.” (Linguist v. Hodges, 248 Ill. 491, 495.) In such a case the charge as to the other defendants would be disregarded as surplusage (id.) and the cause of action would stand as if against the one alone. In other words the cause of action is the same whether the tortious act is charged against one or more.

Nor is it changed when one alone is charged with the negligence, whether directly or through his authorized servant or agent. It is a well established rule in comm on-law pleading that every act may and should be alleged according to its legal effect (Gould’s Pl. Ch. 3, sec. 161; Livermore v. Herschell, 3 Pick. 20 Mass. 33; Bank of the Metropolis v. Guttschlick, 14 Pet. (39 U. S.) 19; Santo v. Maynard, 57 Conn. 157, 160; Sudworth v. Morton, 137 Mich. 575) and that to show liability it is necessary to plead only ultimate facts. The ultimate fact here pleaded is that of negligently operating the automobile. As said in Klugman v. Sanitary Laundry Co., 141 Ill. App. 422, referring to Chitty on Pleading: “This may be alleged either by alleging that the defendant, by his servant, committed the act, or, without noticing the servant, by alleging that the defendant committed the act.” For under the well known rule of respondeat superior the master is liable to answer for the conduct of his servant when the latter is acting within the scope of his employment. It is based upon the maxim, qui facit per alium facit per se. Pleading the legal effect of the act of the servant for which his principal is liable it has long been held sufficient in both actions ex delicto and ex contractu to allege the commission of the act by the principal. An early case frequently referred to in support of the doctrine is Brucker v. Fromont, 6 Term Rep. 658, 659, where it was held that an allegation that the defendant had negligently driven his cart against plaintiff’s horse was supported by evidence that defendant’s servant drove the cart. In Bennett v. Judson, 21 N. Y. 238, it was said: “The same rule of law which imputes to the principal the fraud of the agent and makes him answerable for the consequences, justifies the allegation in pleading that the principal himself committed the wrong.” The same rule was recognized in Thompson v. Lillegaard, 154 Minn. 142, 191 N. W. 405; Conner v. Sullivan, 84 Colo. 572, 272 Pac. 623, and also in Gathemann v. City of Chicago, 263 Ill. 292.

It logically follows, therefore, that a declaration charging only one with the commission of a tortious act through his agent or servant, acting within the scope of his employment, states no different cause of action from one making no reference to such relationship, and no different from one charging him and others jointly with the same tortious act.

While eminent authorities may be cited in support of a different view, and have been followed by this court in other cases (McHale v. McQuigg, 236 Ill. App. 295; Van Meter v. Gurney, 240 Ill. App. 165; Leber v. Lindenberg, 244 Ill. App. 104; Maly v. Iandola, 249 Ill. App. 501), we think the greater weight and better reasoning support the conclusion above stated.

It was held in Barran v. Adanick, 251 Ill. App. 481, that a master and servant may be joined in an action in which damages are claimed on account of the negligence of the servant, the master being liable on the doctrine of respondent superior. Numerous authorities in other jurisdictions, State and federal, are there reviewed and support that conclusion. Reference was there made to the conflict of authorities on the subject and that the question had not been directly passed upon by our Supreme Court. Application for certiorari in that case, however, was denied. If, as we think, the great weight of authority and better reasoning support the court’s conclusion, we need not discuss the distinctions upon which a different theory rests. Suffice it to say if, as held in cases there and here cited, the master and servant may be held liable when sued jointly for the servant’s negligence when the latter is acting in the line of his authority, and the master or servant may be held separately liable, whether their relationship be alleged or not, and a verdict and judgment will stand against one or more alleged joint tort-feasors it is difficult to see upon what reasonable theory a cause of action in which three joint tort-feasors, with no allegation of relationship, are charged with negligently operating an automobile, is changed by charging the tortious act against only one of them through the agency of one of the others. We are not dealing here with evidence or a question of variance but with the identity of the cause of action. Its elements being the same, whether the declaration charges one or more with possession, operation and control of the automobile, or the master and servant jointly, or the master alone with or without mention of the relationship of servant or agent, we think the demurrer was properly sustained.

It is also urged that the evidence showed plaintiff was guilty of contributory negligence and that the verdict was against the manifest weight of the evidence. Both the question of negligence and the question of contributory negligence were fairly presented to the jury and as to neither can we say their finding was manifestly against the weight of the evidence. From a review of it we think it sufficiently tended to show that as defendant was approaching the intersection from the south, at a high rate of speed, behind a south bound street car which obscured plaintiff’s sight of his automobile, he turned his car to the left from behind the street car northwest and close to the southwest corner of the intersection and thus into plaintiff’s line of movement as he came into the intersection, where, under the circumstances, he had the right of way, and so suddenly and unexpectedly as to create an emergent situation for plaintiff’s exercise of judgment, with respect to which, whether erroneous or not, defendant was in no position to complain. As said in Wesley City Coal Co. v. Healer, 84 Ill. 126: “It has long been settled, that a party having given another reasonable cause for alarm cannot complain that the person so alarmed has not exercised cool presence of mind, and thereby find protection from responsibility from damages resulting from the alarm.” In Chicago & Alton R. Co. v. Becker, 76 Ill. 25, it was also said: “In such a case, it would be against the common judgment of mankind to hold the injured party either morally or legally responsible for contributory negligence.” It appears that when plaintiff was thus suddenly confronted with defendant’s car crossing to the left side of Kedzie Avenue and across his path, to avoid injury he turned his car southwestward into 45th Street and the collision took place near its center. We deem it unnecessary to consider whether he erred in judgment in view of the fact that he had to act in a sudden emergency, and his act is not to be viewed in the light of after events but judged under all the circumstances by the standard of what a prudent person would have been likely to do under the same circumstances. (Barnes v. Danville Street Ry. Co., 235 Ill. 566, 571.)

In his argument appellant seeks to demonstrate the impossibility, according to the law of physics, of the occurrence taking place in the manner testified to by appellee’s witnesses. We shall not attempt to follow the line of reasoning. It involves accepting as absolutely accurate the testimony of certain witnesses as to speed, distances and relative positions, none of which in the excitement of such an occasion is likely to be definitely noted or retained in memory, and as to none of which the jury is required to agree in reaching a verdict as to liability. (Nelson v. Fehd, 203 Ill. 120, 125.) Accidents of this sort happen so instantaneously and unexpectedly as to render the observation and statement of all necessary facts and circumstances for the application of the law of physics too uncertain from which to draw reliable conclusions.

We think the evidence unquestionably sustains the charge of negligence and is not such that we can say plaintiff was guilty of contributory negligence.

The judgment is affirmed.

Affirmed.

Scanlan, P. J., and Gridley, J., concur.


author: Mr. Justice Gridley

text:
    Jennie Feldman et al., Executors and Trustees under the Will of Morris Feldman, Deceased, et al., Appellants, v. Effie Glenn, Appellee.
    Gen. No. 34,168.
    Heard in the second division of this court for the first district at the February term, 1930.
    Opinion filed June 30, 1930.
    Abraham Feldman, for appellants.
    No appearance for appellee.
   Mr. Justice Gridley

delivered the opinion of the court.

On June 10, 1929, plaintiffs caused a judgment by confession for $100 (including $20 attorney’s fees) to be entered against defendant in the municipal court on a so-called “contract” or judgment note for $80, payable to plaintiffs in instalments of $5. The note bears the genuine signature of defendant and the purported date thereof is January 5, 1929. Plaintiffs claimed that none of the instalments had been paid. On June 15, on defendant’s motion, the court ordered that the judgment be opened and that he be given leave to defend. Subsequently, within apt time, he filed an affidavit of merits (hereinafter mentioned). On October 10 the cause was called for trial and, defendant not appearing, the court adjudged that the judgment, as confessed against Mm on June 10, stand confirmed. Within 30 days, on October 22, defendant appeared and moved that the confirmatory judgment of October 10 be vacated, and the cause was set for hearing on the merits, which was had before the court without a jury on October 30 and subsequent days. Finally, on November 22, 1929, after evidence had been introduced by both parties, the court found the issues against plaintiffs and adjudged that the confessed judgment of June 10 be set aside, that plaintiff take nothing by their suit and that defendant recover his costs, etc. From this judgment plaintiffs have appealed. Defendant has not filed any brief in this court.

In defendant’s affidavit of merits he alleged in substance that when the judgment of June 10 was confessed he was not indebted to plaintiffs in any sum or upon any unpaid note; that he never delivered any note to plaintiffs bearing date January 5, 1929; that on or about February 28, 1928, he did deliver to plaintiffs his note for $80, payable in instalments, which note was fully paid before December 18, 1928, but plaintiffs did not return the same to him; that the note sued upon is said former note with a new date of “Jan. 5, 1929” written therein above his signature; that he made no purchases of merchandise from plaintiffs for which he has not paid; and that the note sued upon is not Ms note.

On the trial defendant and several witnesses for him testified, and their testimony tended strongly to support his said defense. No useful purpose will be served in outlining this testimony, nor the counter testimony of one of the plaintiffs and one of their, employees. Suffice it to say that, after carefully considering all of the evidence we think that the finding and judgment of the court were fully warranted.

Plaintiffs’ counsel contends that, inasmuch as the court on October 10, 1929, and because of defendant’s failure to appear, ordered that the judgment (as confessed on June 10) stand confirmed, the court was without jurisdiction, even within 30 days after October 10, to order a hearing upon the merits, and that the judgment appealed from is void and should be reversed,—leaving the judgment as confessed standing in full force. We cannot agree with the contention. Counsel relies upon the decision in the case of People v. Wells, 255 Ill. 450, 454, as supporting his contention. As we read that decision it is not here applicable.

Accordingly, the judgment of the municipal court of November 22, 1929, is affirmed.

Affirmed.

Scanlan, P. J., and Barnes, J., concur.


author: Mr. Presiding Justice Holdom

text:
    Michael Levy and Louis Benjamin, Appellees, v. Benjamin H. Rosen, Appellant. Appeal of Benjamin H. Rosen from Interlocutory Order Directing Said Defendant to Execute Release of Mortgage.
    Gen. No. 34,357.

      Heard in the second division of this court for the first district at the April term, 1930.
    Opinion filed July 2, 1930.
    Sonnenschein, Berkson, Lautmann & Levinson, for appellant; Ben Rothbaum, of counsel.
    Isidore Brown and Maurice L. Zaretsky, for appellees.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

This is an appeal from a so-called interlocutory mandatory injunction order entered on a preliminary motion heard on the face of the bill and amendment thereto which charged inter alia that on April 3, 1930, complainants were two of three mortgagees under a mortgage on certain real estate located in the State of Florida, and pray that defendant Rosen, the third mortgagee, be compelled to join with them in executing release deeds to portions of the said mortgaged real estate. In the bill of complaint as amended, complainants prayed for the following relief: That defendant Rosen be ordered, etc., by an injunction order, to execute and deliver release deeds to E. A. Simpson and wife, releasing certain of the mortgaged real estate therein specifically described, and that said Rosen be directed, required and compelled by the decree of the court to perform the aforementioned contracts specifically, and for other relief.

On April 23, 1930, the motion of complainants for a temporary mandatory injunction came on for hearing upon the verified bill of complaint and amendment thereto, and all the parties being represented by counsel, the court, after hearing arguments of counsel, entered the following order, which provided: The court finds that complainants are entitled to the ternporary relief as prayed for in their verified bill of complaint and the amendment filed thereto. Therefore complainants’ application for said preliminary injunction is granted on their giving bond with surety, etc. The injunction also provides that defendant Rosen be ordered and decreed, etc. to sign, execute and deliver a proper release deed, which release deeds should be in the words and figures set out in the order; that said release deeds be executed and delivered within five days from the entry of the order, in compliance and in accordance with a certain agreement entered into on the 30th day of March, 1929, between E. A. Simpson and wife as parties of the first part, and Michael Levy, Louis Benjamin and Benjamin H. Rosen as parties of the second part. It was further ordered that Benjamin Rosen appear before a proper officer and execute and acknowledge such release deed with complainants, and that said release deed, after being duly executed, be delivered to complainants for the purpose of permitting complainants to specifically perform the agreement with Simpson.' The record further shows. that the bond ordered to be given to make the injunction effective was given and approved by the chancellor on the date of the entry of the order.

The cause is now before the court on the plea of release of errors interposed by complainants and filed herein on May 6, 1930, to which defendant Rosen on May 10, 1930, interposed a general demurrer. Upon the face of the plea of release of errors it is conceded that defendant Rosen executed the release deed . in compliance with the so-called mandatory interlocutory decree and in accord with its terms, and accepted his share of the moneys deposited. That plea and the demurrer thereto presents to this court for determination—1st. The integrity of the so-called interlocutory mandatory decree. 2nd. If the interlocutory decree was improvidently issued did defendant waive his rights by accepting the benefits.

"What was done by the defendant Rosen was not voluntary, but under the force of the mandatory injunction, and what he did in obedience to that mandatory order did not operate as a release of errors. The principle is well stated in Chaney v. Baker, 302 Ill. 481, as follows:

“Any act relied upon as a release of errors must be voluntary in the sense that the party is not required by the decree to do the act, and the voluntary payment, performance or satisfaction of a judgment, order or decree which confers no benefit cannot operate as a release of errors.”

The controlling difficulty in this case rests in the fact that on a motion for an interlocutory injunction the court entered the order appealed from, which is a final order reached without any hearing on the merits, and grants the complainants all the relief which they pray for in their bill as amended. The order before us for review is not interlocutory. It is the final adjudication of all the rights claimed by complainants in their bill as amended. In other words, on a preliminary hearing for an interlocutory injunction the order found in the record, and before us on the appeal of the defendant Rosen, was entered. It is a final and not an interlocutory order. An interlocutory-order is usually granted to preserve the status quo, but the order in this appeal did not do that, but changed the status quo. The entry of such order was clearly erroneous. A case in point on this question is Dobrinsky v. Boylan, 222 Ill. App. 494, in which the court said:

“In the abstract of the decision of this Court in Paxton v. Fabry, 200 Ill. App. 104, is language implying that such a preliminary mandatory injunction may be granted in a clear ease. That abstract is not fully borne out by the language of the opinion, which reversed a preliminary mandatory injunction. But our attention was not then called to certain decisions in this State. In Wangelin v. Goe, 50 Ill. 459, which related to a preliminary mandatory injunction, it was said that an injunction is a preventive remedy and cannot be framed to command a party to undo what he has done and that such an injunction should not be awarded after the act is done; that, if the injury is already done, the writ can have no operation, and that the preliminary mandatory injunction issued in that case was wrongfully sued out. In Lake Shore & M. S. Ry. Co. v. Taylor, 134 Ill. 603, a similar case, the court said: ‘Since the wrong which appellee sought to avoid by the injunction had been done before her bill was filed, and she knew it, the preliminary injunction was improvidently granted.’ In Hunt v. Sain, 181 Ill. 372, the court, on p. 378, said that while jurisdiction in equity by way of mandatory injunction is rarely exercised, it is nevertheless too firmly established to admit a doubt; but that ‘a mandatory injunction, commanding the plaintiff (meaning, we assume, the defendant) to do some positive act, will not be ordered except upon final hearing, and then only to execute the judgment or decree of the court. ’ ”

In Utterback v. Estill, 224 Ill. App. 151, it is said:

“If the injunction as issued had merely restrained the appellants from interfering with the possession of the appellee no complaint could be made against it, but the injunction went farther than this. It was in fact a mandatory injunction, ordering the appellants to do certain affirmative acts. It has been held by this court and by the Supreme Court that a mandatory injunction will not be issued until a final hearing. In the case of Dobrinsky v. Boylan, 222 Ill. App. 494, we held that this was the rule. (Citing cases.) ”

And in Quinn v. The Fountain Inn, 218 Ill. App. 260, it was held:

“An interlocutory injunction does not- anticipate or depend upon the ultimate conclusion to be reached upon the rights involved in the litigation. It only shows that a sufficient case has been made out to authorize or require the court to preserve the property or rights in issue in statu quo until a final hearing upon the merits.”

In McDougall Co. v. Woods, 247 Ill. App. 170, this court announced the doctrine applicable hére in the following words:

“The primary purpose of the statute is to permit a review of the exercise of the discretion lodged in the chancellor, with the purpose of determining whether the interlocutory order probably was necessary to maintain the status quo and preserve the equitable rights of the parties.”

And in People v. Standidge, 333 Ill. 361, the court said:

“An interlocutory injunction is merely provisional in its nature and does not conclude a right. It usually stands as a binding restraint until rescinded by the further action of the court. Its object is to preserve the subject in controversy, but it is not decisive of the cause upon the merits. The court merely recognizes the fact that, without expressing a final opinion, a sufficient showing has been made to warrant the preservation of the property or the rights in issue in statu quo until a hearing may be had upon the merits of the cause.”

The order before us for review is a finality conclusive of the rights of all the parties. It does not preserve the status quo. It grants all the relief prayed by complainants in their bill and amendment thereto.

For the errors above pointed out the demurrer of the defendant Eosen to the plea of release of errors by complainants is sustained, and the mandatory injunction order before us on this review is reversed.

Reversed.

Hebel and Wilson, JJ., concur.


text:
    The People of the State of Illinois ex rel. Robert E. Crowe, State’s Attorney of Cook County, Illinois, Appellee, v. Emma Ludwig, Appellant.
    Gen. No. 34,285.
    Heard in the first division of this court for the first district at the April term, 1930.
    Opinion filed July 7, 1930.
    Adolph Marks, for appellant.
    John A. Swanson, State’s Attorney, for appellee; Edgar B. Elder, Assistant State’s Attorney, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.

The only defendant named in the bill of complaint as amended was Emma Ludwig, alias Vic Shaw. After the master took the evidence and made up his report recommending a decree as prayed for in the bill, a decree was entered overruling exceptions to the master’s report and enjoining the defendant from maintaining or permitting the use of the premises known as 2904 Prairie Avenue, Chicago, for the purpose of lewdness, assignation or prostitution, and she was perpetually enjoined from using or permitting the use of the building for such purposes, the premises were ordered closed for one year and the sheriff ordered to sell all fixtures and movable property in accordance with section 5 of the Abatement Act in the Criminal Code, Cahill’s 1929 St. ch. 38, ¶¶ 148-158.

The defendant contends that her exceptions to the master’s report should have been sustained for the reason that it was error to admit in evidence, over her objection, statements and conversation made by investigators, police officers and the inmates of the premises out of the hearing of defendant. We think there is no merit in this contention. People v. Arcega, 49 Cal. App. 239; State v. Toombs, 79 Iowa 741; State v. Littman & Weinfeld, 86 N. J. L. 453; People v. Claffy, 95 N. Y. Misc. 400. These authorities all hold that statements of inmates of houses of prostitution are admissible as tending to show the defendant’s knowledge of the disorderly character of the place.

The defendant further contends that she and several of the inmates were arrested and charges made against them in the municipal court involving the same charges that are made in the bill in the instant case, and that upon a full hearing in the municipal court the defendant and all of the defendants in the municipal court proceedings were discharged and that the judgments entered in those cases are res adjudicata of the questions involved here. The proceeding involved in the instant case is civil, while those in the municipal court were criminal in character. It has been repeatedly held in cases similar to the one before us that the finding of not guilty of the criminal charge is not res adjudicaia where the proceeding is brought to abate the nuisance. Murphy v. United States, 272 U. S. 630; Stone v. United States, 167 U. S. 178; State v. Roach, 83 Kan. 606.

A further point is made that the notice required by section 2 of the Abatement Act in the Criminal Code, Cahill’s St. ch. 38, ¶ 149, was not given the defendant; but we have heretofore held that in a proceeding brought under the Abatement Act no notice is required to be given to the owner of the premises when the owner is maintaining and conducting the nuisance in the premises. People ex rel. Crowe v. Kohn, 243 Ill. App. 31.

A further point is made that there was no evidence in the record tending to show that the premises were used as a house of prostitution. We have considered all the evidence in the record and are clearly of the opinion that there was ample evidence to warrant the finding of the master and the chancellor.

It is finally contended that the court erred in admitting evidence of acts occurring after the filing of the bill. No authority is cited by either side on this proposition, but even if we assumed that the evidence complained of should have been excluded, an examination of the record discloses the fact that there was sufficient evidence of acts occurring before the filing of the bill to warrant the decree.

The decree of the circuit court of Coolc county is affirmed.

Affirmed.

Matchett, P. J., and McSurely, J., concur.