text:
    August Salduskas, Appellee, v. J. Robin, Appellant.
    Gen. No. 32,703.

      Opinion filed October 11, 1928.
    Herman P. Haase, for appellant.
    Thomas O’Neill and John T. Zuris, for appellee.
   Mr. Justice Barnes

delivered the opinion of the court.

This is a fourth-class case. Plaintiff’s statement of claim reads as follows:

“Plaintiff alleges that there is due and owing to him the sum of one hundred dollars as earnest money on a contract for the sale of certain real estate; that defendant gave plaintiff his check for the said sum of one hundred dollars, but that said check was returned by the bank on account of not sufficient funds, which check plaintiff is prepared to exhibit on the trial of this cause; to the damage of the plaintiff in the sum of one hundred dollars, wherefore he brings this suit.”

The sole error relied upon for reversal is the insufficiency of the statement of claim to support the judgment.

Section 40 of the Muncipal Court Act, Cahill’s St. ch. 37, ¶ 428, provides that the statement filed in a fourth-class case of contract “shall consist of a statement of the account or of the nature of the demand.”

While we agree with the contention that there is not an averment of sufficient facts in the statement in question upon which to predicate a legal cause of action or from which the precise nature of the demand can even be inferred, yet, as defendant went to trial upon said statement and took no steps, as far as the record discloses, to procure a more definite one, he evidently understood the nature of the demand and will be precluded after trial from contending that he did not. The question is not to be decided under our Practice Act, Cahill’s St. ch. 110, or the rules of common-law pleading.

While there has not been entire uniformity in the decisions bearing upon this question, their recent trend seems to be that where, as here, it does not appear that a party, defendant in an action of the fourth class of the municipal court has been deprived of any right with respect to the pleadings required under its rules in such a case, and the defendant sees fit to go to trial without objection to the sufficiency of the statement of the demand, he will be presumed to understand its nature and will not be permitted after trial to question its sufficiency for the first time, unless it clearly appears from the proceedings that he was so misled thereby as not to be able to present a legal defense he might have to the actual claim sought to be prosecuted against him. (Enberg v. City of Chicago, 271 Ill. 404; Lyons v. Kanter, 285 Ill. 336; Shar v. Robinson, 298 Ill. 181; Bruner v. Grand Trunk Western Ry. Co., 319 Ill. 421).

But nothing of that kind appears in this case. There is no bill of exceptions and the order of judgment recites that the cause came on in the regular course of trial before the court without a jury; that the parties were present, and that the court heard evidence and arguments of counsel. It must be presumed from the record, therefore, that defendant fully understood the nature of the demand he was called upon to meet, and went to trial prepared to meet it.

The judgment is affirmed.

!Affirmed.

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


source: Caselaw Access Project

author: Mr. Justice Barnes

license: Public Domain

text:
    Baird & Warner, Inc., Appellant, v. Julius Roble et al., Appellees.
    Gen. No. 32,725.
    Opinion filed October 11, 1928.
    McNab, Holmes & Long, for appellant.
    Harry O. and Magnus B. Rosenberg, for appellees; Magnus B. Rosenberg and Charles O. Parker, of counsel.
   Mr. Justice Barnes

delivered the opinion of the court.

This appeal is from an order vacating and setting aside a judgment against defendants upon a motion in the nature of a writ of error coram nobis under section 89 of the Practice Act, Cahill’s St. ch. 110, ¶ 89.

Defendants had appeared on July 21, 1925, by their attorney, one Legg, and filed a plea to the declaration, supported by an affidavit of meritorious defense. The cause came on for trial at the September term, 1927, and defendants not appearing in person or by counsel, a jury was impaneled ex parte and the judgment in question was entered on its verdict.

The grounds of the motion to vacate the judgment, as supported by affidavits, were that Legg at and just prior to the time of the trial was suffering from “a certain nervous disease complicated with mental disorders known to physicians as neuropsychosis,” by reason whereof his mental faculties became impaired and his mind unsound and he was wholly irresponsible and mentally incapacitated and unable to realize the status of the case or to follow its progress on the trial call, by reason whereof he failed to attend the trial and present the defense, and that defendants were unaware of his said condition or of the entry of the judgment until served at a subsequent term of court with an execution issued on said judgment.

Issue was taken and oral testimony heard on these alleged facts.

Without analyzing the evidence heard, it is sufficient to say that it supports the grounds upon which the motion is based. It is not contended that Legg was actually insane, but, as the evidence shows, that his mental incapacity had become such at the time of the trial as to render him incapable of comprehending his legal duties and the necessity of caring for defendants’ interests.

But we deem it unnecessary to draw a distinction between such a condition of mind and insanity, for we regard it as such a disability as brings the case within the recognized scope of said section 89, Cahill’s St. ch. 110, ¶ 89 (Pisa v. Rezek, 206 Ill. 344; Consolidated Coal Co. of St. Louis v. Oeltjen, 189 Ill. 85; Dyke v. Petty, 198 Ill. App. 414), and may be classified as an excusable state of fact without negligence on the part of either defendants or their attorney. Negligence could not be chargeable to the former without knowledge of his state of mind, nor to the latter while in that state of mind.

The court had a right to assume, and naturally would, that the failure of defendants to appear, either in person or by their attorney of record, and present their alleged meritorious defense, was due either to neglect or abandonment of the case. Neither was the fact. Such assumption would naturally include the presumption that the attorney was mentally capable of comprehending the situation and his duty in the premises, and so would notify defendants of the approaching trial. Surely had the contrary appeared to the court and the fact of defendants’ ignorance thereof it would and should have prevented the court from entering judgment. That defendants did not appear to defend was clearly attributable to an excusable mistake. They had the right to expect that their attorney would attend to the case and notify them when it was reached for trial. His mental condition defeated that expectation and their intention to appear and defend. They were ignorant of it and so was the court. We think it cannot be doubted, therefore, that the court proceeded upon such a mistake as constitutes error in fact, and one that comes within the purview of such proceeding.

It is not a case where the attorney was merely ill or failed through negligence to notify defendants of his condition or of the approaching trial. The essential facts are that defendants were not chargeable with knowledge, directly or through the attorney authorized to act for them, of the fact that the cause was reached for trial, and that the court naturally assumed in the regular course of procedure that they were. We deem it an excusable mistake without negligence.

It has been frequently said that the error in fact which may be assigned under section 89, Cahill’s St. ch. 110, ¶ 89, must be some fact unknown to the court at the time the judgment was rendered, as well as one which would have “precluded” the rendition of the judgment. (Chapman v. North American Life Ins. Co., 292 Ill. 179; Marabia v. Mary Thompson Hospital of Chicago for Women and Children, 309 Ill. 147; Loew v. Krauspe, 320 Ill. 244.) Appellant construes the word “precluded” as so used to mean lack of jurisdiction. That it is not given such exclusive meaning is manifest from numerous cases where mere misprision of the clerk, which does not deprive the court of jurisdiction, has been held such error in fact as comes within the scope of such a motion. (Domitski v. American Linseed Co., 117 Ill. App. 292, affirmed in 221 Ill. 161; Cramer v. Illinois Commercial Men’s Ass’n, 260 Ill. 516; Pickett’s Heirs v. Legerwood, 7 Pet. (U. S.) 144, 147; Butterick Pub. Co. v. Goldfarb, 242 Ill. App. 228; Madden v. City of Chicago, 283 Ill. 165; Smyth v. Fargo, 307 Ill. 300.)

We think the order appealed from was properly entered..

Affirmed.

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


author: Mr. Justice Scanlan

text:
    West Madison State Bank, Appellee, v. Joseph A. Mudd, Appellant.
    Gen. No. 32,373.

      Opinion filed October 11, 1928.
    Bradley, Williams, Harper & Farrell, for appellant.
    William H. Dellenback, for appellee.
   Mr. Justice Scanlan

delivered the opinion of the court.

In an action of assumpsit, in the superior court of Cook county, West Madison State Bank, a corporation, plaintiff, sued Joseph A. Mudd, defendant. The case was tried before the court without a jury, the issues were found for the plaintiff and its damages assessed in the sum of $2,520. Judgment was entered on the finding and this appeal followed.

The present case and the case of West Madison State Bank v. Joseph A. Mudd and B. H. Lancaster, post, p. 636, were tried together in the lower court, and it has been suggested that the two cases be considered together in this court. The claim of the plaintiff in both cases is based upon the same form of guaranty. The plaintiff and the maker of all of the notes involved in both cases are the same, and a thorough understanding of each case can best be reached by a consideration of the facts in both cases. In West Madison State Bank v. Joseph A. Mudd and B. H. Lancaster, post, p. 636, we have made a somewhat extensive statement of the facts bearing upon all the transactions between the plaintiff and the Chicago Motor Sales Company, and to avoid repetition we refer to the opinion in that case and make the same, so far as it is applicable to the instant case, a part of this opinion.

The declaration in the present case alleges that the Chicago Motor Sales Company, on November 1, 1923, executed its promissory note for $2,500, payable to the order of the plaintiff, which note was renewed February 29, 1924, July 1, 1924, and November 5, 1924; that the Chicago Motor Sales Company, on January 23, 1924, executed its promissory note for the sum of $1,500, which note was renewed April 26, 1924, and July 28, 1924; that neither of said notes or renewals were paid when due and that the Chicago Motor Sales Company, on November 5, 1924, executed its promissory note, payable to the order of the plaintiff, for $4,000, which note was renewed from time to time and became due and payable 30 days after July 3, 1925, with interest at 7 per cent; that on December 22, 1924, the defendant made and executed a written instrument guaranteeing the payment of said sums of money and said promissory note if the said Chicago Motor Sales Company should not pay the same, which instrument reads as follows:

“West Madison State Bank, 4011 W. Madison St. Chicago, Illinois.
“For value received, the undersigned and each of the undersigned, hereby become a party to, adopt, agree to, accept, guarantee and assume all the terms, conditions contained in the note or notes signed by the Chicago Motor Sales Company, by Frank X. Mudd, Jr., and Ray Lancaster and by them endorsed up to $5,000.00.
“We hereby guarantee the payment of said note at maturity and consent without notice of any kind to any and all extensions of time made by the holder of said note or notes.
(Signed) Jos. A. Mudd.”

The declaration further alleges that payments have been made on the note for $4,000 and that there is now due on the same a balance of $2,281.58 and interest from date; that defendant has failed to pay the same, etc.

The guaranty which is the basis of plaintiff’s claim in the instant case was signed December 22, 1924. So far as concerns the present suit, the only note of the sales company in existence on that date was the one of November 5, 1924, for $4,000. This note bore the indorsement of Frank X. Mudd, Jr., and Ray Lancaster. Adhering to- our ruling in the case of West Madison State Bank v. Joseph A. Mudd and B. H. Lancaster, post, p. 636, we hold that the contract of guaranty in the instant case guaranteed only the payment of that note “and all extensions of time made by the holder of said note.” The note of November 5,1924, matured February 3, 1925, at which time the bank canceled it and surrendered it to the sales company. On February 4,1925, the sales company executed a new note for $4,000, payable to the bank and maturing May 4, 1925. This note also bore the indorsements of Frank X. Mudd II, and Bay Lancaster. On May 4, 1925, the bank canceled this note and surrendered it to the sales company and on the same date the sales company signed a new note for $4,000, payable to the bank and maturing July 3,1925. This note also bore the indorsements of Frank X. Mudd II, and Baymond Lancaster. On July 8, 1925, the sales company paid $100 on this last note and on July 9, 1925, it signed a new note for $3,900, dated July 3, 1925, payable to the bank and maturing August 3, 1925. This new note was signed ‘ ‘ Chicago Motor Sales Co., Frank X. Mudd II, Pres., Baym. Lancaster, Sec. & Tres.” This note was not indorsed by Mudd nor Lancaster. The note of May 4, 1925, was canceled on July 9, 1925, but, according to the testimony of the plaintiff, was held by the bank until it could secure the indorsements of Mudd and Lancaster to the note of July 3, 1925. Although Mudd and Lancaster, as officers of the sales company, signed the note for $3,900 when the same was executed, the bank did not require Mudd nor Lancaster, as individuals, to indorse the same, and it never secured their indorsements to that note. Thereafter the sales company made a number of payments, aggregating $1,618.42, on this note.

The defendant contends that under all the facts it must be held, at least as to the defendant, the guarantor, that the note of November 5, 1924, for $4,000, was paid. The giving of a new note is prima facie payment of the original debt. (Trego v. Estate of Cunningham, 267 Ill. 367, 375.) Of course, this presumption may be rebutted.

The plaintiff is a bank and familiar with transactions involving negotiable instruments and guaranties, and this is a circumstance that must be considered, together with all the evidence bearing upon the question, in determining the present contention. The sales company had a checking account with the plaintiff and in its dealings with the sales company it was the practice of the bank, when a note of that company matured, to receive from the company a check drawn upon that account for the amount due on the note. On all occasions, save one, when notes matured they were canceled and delivered back to the sales company. The exception happened on July 9, 1925, when the note of May 4,1925, was canceled by the bank but not returned to the sales company. While the record does not show the state of the checking account of the sales company when each note of that company fell due, there is evidence that on several occasions when its notes matured it had an amount to its credit sufficiently large to meet its checks. Sometimes a so-called renewal note was not executed for several days after the prior note had been canceled and surrendered to the sales company. The original notes upon which the claim of the plaintiff in the present suit is based were the one of October 24, 1923, for $1,500, and the one of November 1, 1923, for $2,500, yet the principal witness for the bank testified that when the note of November 1, 1923, for $2,500 fell due on February 27, 1924, it was actually paid on that date and was so marked. Thereupon the trial court called the attention of the counsel and the witness to the fact that there was a difference between a renewal of a note and a payment of a note, and thereafter the witness appears to have carefully avoided the use of the term “paid” in his evidence. This witness also admitted that the note falling due March 10, 1924, was marked paid by the bank. If the bank on July 3,1925, considered the note of November 5, 1924, unpaid, and the guaranty of the defendant still in force as to the same, we cannot understand why it accepted the note for $3,900 on July 9, 1925, without requiring the indorsements of Mudd and Lancaster. After a careful consideration of the many facts and circumstances in the record bearing upon the instant contention, we have reached the conclusion that as to the defendant, the guarantor, the note of November 5, 1924, must be considered as paid.

The defendant contends that the instrument upon which the plaintiff seeks to bind the defendant guaranteed the payment of the note of November 5,1924, only, and gave the bank the right to make extensions of time in the payment of said note. So far as concerns the instant case there was but this one note in existence at the time of the making of the guaranty, and when the words in the instrument in relation to the extensions of time are construed strictly, as they must be in the case of a guarantor, they mean that the bank had the right to make extensions of time in the payment of that note. It would be reading into the instrument something that is not there to hold that the defendant guaranteed the payment of the alleged “renewal” notes shown in the record. Certainly, as to the defendant, the guarantor, the alleged “renewals” are not the extensions of time for the payment of the note of November 5,1924, contemplated by the guaranty. ‘ ‘ The verb' to extend implies far less in this connection than the verb to reneio, found in other cases. In fact it has nothing of the same strength and significance. To extend is to draw forth or stretch; to prolong; to protract; to continue. To renew signifies to make over; to make anew; to give new life to; to restore; to recreate; to rebuild.” (Orton v. Noonan, 27 Wis. 272, 282-3.) “The word ‘renewed’ may properly be used to express an agreement on the part of the maker of a note, but is quite out of place as expressing an agreement on the part of the payee extending the time of payment.” (Brenneke v. Smallman, 2 Cal. App. 306, 310; 83 Pac. 302, 304.) Bouvier thus defines the term “renewal”: “A change of something old for something new; as, the renewal of a note.” The law is well settled that the undertaking of a guarantor is to be strictly construed and that his liability is not to be extended by construction. We are of the opinion that the present contention of the defendant is a meritorious one.

The guaranty provided that the note or notes of the sales company should be indorsed by Frank X. Mudd, Jr., and Bay Lancaster, and the note of July 3, 1925, upon which this suit is brought, was not indorsed by them or either of them, and the defendant contends that, regardless of the other contentions raised by him, if the plaintiff desired to hold the defendant under the guaranty it was incumbent upon it, when it accepted the note of July 3, 1925, to have the same indorsed by Mudd and Lancaster; that the indorsement of this note by Mudd and Lancaster would have made them co-guarantors with the defendant, and that the failure of the bank to secure such indorsements materially affected the rights of the defendant in the matter of the payment of the note; that the indorsement of the note by Mudd and Lancaster was a condition precedent to the fixing of any liability of the guarantor, and the defendant strenuously argues that, regardless of all the other questions presented, the failure of the defendant to perform this essential condition of the contract of guaranty raises an absolute defense to the plaintiff’s claim. The plaintiff makes but a feeble answer to this contention, and we are satisfied that the position of the defendant is a meritorious one.

After a careful consideration of the questions involved in the present appeal, we have reached the conclusion that the guaranty in the present case does not, as a matter of law, guarantee the payment of the note sued upon in the declaration of the plaintiff.

The judgment of the superior court of Cook county is reversed.

Reversed.

Gridley, P. J., and Barnes, J., concur.


author: Mr. Presiding Justice Shurtleff

text:
    Lois Sinnock, Administratrix of the Estate of Benjamin F. Trimble, Deceased, et al., Appellees, v. Spurgeon Marney et al., Appellants.
    Gen. No. 8,199.

      Opinion filed May 2, 1928.
    Roy D. Johnson, for appellants.
    Wilson & Schmiedeskamp, for appellees.
   Mr. Presiding Justice Shurtleff

delivered the opinion of the court.

This suit involves the power of a court of record to amend its judgment or decree after the term, nunc pro tunc, as to a clerical matter, from matters appearing of record in the judgment or decree.

Henry Weber died in the county of Adams, in this State, having executed three instruments purporting to be last wills and testaments. The testator died leaving certain funds and money deposited in a bank at Quincy and other certain moneys deposited in the State Soldiers’ Home at Quincy. By a purported will and testament, executed on May 11,1917, the deceased bequeathed one of said funds and by another purported will and testament, executed August 5, 1922, the testator bequeathed the other of said funds. The two instruments were not in conflict. Upon May 2, 1923, the testator executed a third instrument as his last will and testament, purporting to bequeath all of his funds and property to appellants. This last will and testament, having been presented to the county court of Adams county and proven, appellees filed their bill in equity in the Adams county circuit court, charging incompetency on the part of said testator and undue influence on the part of appellants, and prayed that said will under date of May 2, 1923, be set aside and be decreed not to be the last will and testament of Henry Weber, deceased. There were answers on the, part of appellants and replications, and an issue of fact was made up and the cause tried before a jury. There was a verdict and decree under date of January 9,1925, finding that the said instrument presented was not.the last will and testament of Henry Weber, deceased, but that the same was void, and by decree the said instrument and its probate was canceled.

For the purpose of establishing the interest of the contestants, the court heard proofs as to the validity of the two wills executed upon May 11, 1917, and August 5, 1922, respectively, and by the decree all of the facts are established necessary to the validity of said instruments, together with the contents thereof. In the bill of complaint, answers, the issue of fact made up and the proofs, the pretended will of May 2, 1923, made in behalf of appellants, was identified and .described with sufficient clearness to distinguish it from the two former wills, and to show its substance and its date as executed, May 2, 1923. The decree in its recitals finds that the will contested was dated May 2, 1923, and further finds that the former wills of date May 11,1917, and August 5,1922, were legal and binding wills; nevertheless, the decree, in the ordering clause, states, “doth order, adjudge and decree that said instrument in writing of date the 2nd day of May, 1917, purporting to be the last will and testament of said Henry Weber, deceased, and the probate of said will in the County Court of Adams County and the proceedings thereunder be and the same are hereby set aside and declared null and void. ’ ’ There was no will presented under date of May 2, 1917, and no will of Henry Weber had ever been probated in the Adams county court except the said will of May 2, 1923. The cause was appealed to this court where the decree of the lower court was affirmed. (Trimble v. Marney, 242 Ill. App. 656, the abstract of the case, shows a reversal being a typographical error.) A petition for certiorari to the Supreme Court was denied.

Appellees in this proceeding, after the remandment of the cause from this court, on the appeal, presented their petition to the circuit court of Adams county asking to amend the said decree of January 9, 1925, nunc pro tunc, to show that the instrument and pretended will set aside and declared void in said proceeding was dated “May 2nd, 1923,” in place of “May 2nd, 1917,” as written in the decree. Appellants appeared, answered the petition and proofs were heard. The court granted the prayer of the petition, caused the decree of January 9, 1925, to be amended nunc pro tunc, as of that date, and ordered and decreed that the purported will of May 2nd, 1923, and the probate of said will in the county court of Adams county and the proceedings thereunder be set aside and declared null and void. From this order amending said decree appellants have appealed and the record is before this court for review.

Appellants ’ contention against this order is that the petition is in the nature of a bill for review to correct errors appearing upon the face of the record, and that such proceeding will not lie after an affirmance of the decree upon appeal. It is contended that the court was without jurisdiction to make the order after the adjournment of the term, and that appellees were guilty of laches, not having moved for the relief until two and one-half years after the entry of the decree. We do not agree with any of these contentions. There is no error appearing upon the face of the record such as may be contemplated in and requiring a bill to review. The whole record shows plainly and succinctly that the order and decree of the court on January 5, 1925, was that the purported will of May 2, 1923, was set aside and declared void, but that by a clerical error of the solicitor or clerk or both, the order was entered reciting the date of the will as May 2, 1917.

Section two of chapter seven of the Revised Statutes, Cahill’s St. ch. 7, ¶ 2, provides:

“After judgment rendered in any cause, any defects or imperfections in matter of form, contained in the record, pleadings, process, entries, returns or other proceedings in such cause, may be rectified and amended by the court in affirmance of the judgment, so that such judgment shall not be reversed or annulled ; and any variance "in the record from any process, pleading or proceeding had in such cause, shall be reformed and amended according to such original process, pleading or proceeding.”

Section six of said chapter seven, Cahill’s St. ch. 7, ¶ 6, also provides:

“Judgment shall not be arrested or stayed after verdict, nor shall any judgment upon verdict or finding by the court, or upon confession nil dicit or non sum informatus, or upon any writ of inquiry of damages, be reversed, impaired, or in any way affected, by reason of any of the following imperfections, omissions, defects, matters or things in the process, pleadings, proceedings or records, namely: * * *
“Tenth — For any mistake in the name of any party or person, or in any sum of money, or in the description of any property, or in reciting or stating any day, month or year, when the correct name, time, month or description shall have been once rightly alleged in any of the pleadings or proceedings. * * "*
“Fourteenth — For any other default or negligence of any officer of the court, or of the parties or their counselors or attorneys, by which neither party shall have been prejudiced.”

Under this, the widest latitude is granted to courts to amend their records and cause them to speak the truth in all clerical matters and in matters of substance where there is some memorial before the court from which the amendment may be made, “by which neither party shall be prejudiced.”

In a case very similar to the case at bar, Hunter v. Empire State Surety Co., 191 Ill. App. 634, which was in replevin to recover the possession of an automobile, judgment was rendered in favor of the defendant. From this judgment an appeal was taken to the Appellate Court where the judgment was affirmed. After the affirmance by the Appellate Court the defendant in the replevin suit brought suit on the bond, wherein objection was made to the insufficiency of the judgment which was merely an abbreviated minute by the clerk. Whereupon an order was entered in the replevin suit by a judge other than the one who rendered the judgment, directing that the judgment rendered in the replevin suit be recorded, in full form, nunc pro tunc, as of the date it was rendered, after which it was offered in evidence in the suit on the bond and judgment was entered for the plaintiff. This judgment was affirmed by the Appellate Court, the court holding that the record of the judgment as entered nunc pro tunc was admissible in evidence in the suit on the replevin bond. The court held: by an order entered nunc pro tunc, cause the record to show in proper, technical form the judgment that was, in fact, rendered by the court. Gebbie v. Mooney, 121 Ill. 255; Chicago, M. & St. P. Ry. Co. v. Walsh, 150 Ill. 607; Metzger v. Morley, 197 Ill. 208. In the case last cited, the court quotes with approval the following from Freeman on Judgments, sec. 61: ‘The entry of a judgment nunc pro tunc is always proper when a judgment has been ordered by the court but the clerk has failed or neglected to copy it into the record. ’ The only qualification of this rule is that the subsequent order must be based upon ‘some note or memorandum from the records or quasi records of the court, or by the judge’s minutes, or some entry in some book required to be kept by law, or in the papers on file in the cause.’ Wesley Hospital v. Strong, 233 Ill. 153.”

“The entry that was made on the docket of the Municipal Court on April 7, 1909, was a memorandum of that character. It was not a judgment.' The judgment was a fact, however, from the moment it was pronounced by the court, and the memorandum made at that time, while it was neither itself the judgment nor a formal record of the judgment, was a sufficient minute of the proceedings to enable the clerk to enter the judgment of record in proper form. It has been repeatedly held that where such a memorandum or minute is made by the clerk or the judge upon some official book, document or paper at the time a judgment is pronounced, the court may at any time thereafter,

In Wiehe v. Eberhart, 220 Ill. App. 480, 484, it is held: “The maxim id certum est quod certum reddi potest applies here. This maxim ‘will sustain a decree in equity which refers to certain and accessible data for determining what is otherwise uncertain on the face of the decree.’ 5 Eneye. PL & Pr. 1067. In the following cases this maxim has been applied to make certain some vagueness in a decree: McGee v. Smith, 16 N. J. Eq. 462; Jones v. Belt, 2 Grill (Md.) 106; Barger v. Buckland, 28 Gratt. (Va.) 850; Shepard v. Kelly, 2 Fla. 634.

“ ‘* * * Where the entry of a judgment or decree is so defective or obscure as not to clearly express the exact determination of the court, reference may be had to the pleadings and other proceedings, and, if with these the obscurity is dispelled and the intention of the court made apparent, the judgment or decree will be given effect according to such intention. See Freeman on Judgments, sec. 45; Black on Judgments, secs. 118, 123; Fowler v. Doyle, 16 Iowa 535.’ Redhead, Norton, Lathrop & Co, v. Baker, 86 Iowa 251.

“Our own Supreme Court supplied an omission in a decree by the application of this legal principle in Morrison v. Smith, 130 Ill. 304. Other like cases are Thain v. Rudisill, 126 Ind. 272; State v. White, 40 Fla. 297, 24 So. 160. The master’s report is as much a part of the record as is the bill, answer, replication or decree. Payne v. Stuebe, 212 Ill. App. 593; Barnes v. Earle, 275 Ill. 381. As was done in these cases, so we may look to the entire record in the instant case to make clear the intention of the chancellor. This was manifestly to follow the findings of the master as to the respective obligations of the parties. In view of the uncontroverted facts in the record, it would be manifestly unconscionable to set aside the decree merely because it contains an illy-expressed intention.”

In McCasland v. Allen, 60 Ill. App. 285, 289, it is held: “It is true that the decree finds that the sum of $15,013.16 is for the amount due on the notes, and for the amounts paid for ‘taxes and insurance and interest on said sums,’ but it is also true that the decree is based upon the master’s report, which is copied into the decree and made a part thereof, and that the master’s report finds expressly that the sum of $15,013.16 is for the amount due on the note and for taxes. The parts of the decree must be harmonized, if that can be done, and this leads to a rejection of the word ‘insurance,’ as having been used inadvertently in the preparation of the decree.”

In People v. Artesian Stone & Lime Works Co., 150 Ill. App. 192, it is held:

“Appellee contends that this decree was improperly admitted in evidence and cannot now be considered: first, because of the failure to offer in evidence the pleadings on which it was based; second, because, in the decretal part, the property is described as being in range 12 instead of in range 13. The property, however, is not only correctly described in the findings of the court, but moreover it is shown that no piece of land would fully answer the complete description contained in the decretal part. The mistake is evidently purely clerical and may, under the circumstances, be disregarded. ’ ’

The certificate of evidence in a chancery case is a part of the record and of the decree. (Crow v. Harrison, 248 Ill. 462, 466; Railway Passenger and Freight Conductors Mut. Aid & Benefit Ass’n v. Leonard, 166 Ill. 154; Bennett v. Bradford, 132 Ill. 269.)

The answer of appellants in the will contest case in which the will of May 2, 1923, was fully set out, admits the execution of said will and avers that it was the last will and testament of Henry Weber, deceased, and in the clecree it is set out: “The court having heretofore directed an issue of law to be made up whether the instrument in writing of date the second day of May, A. D. 1923, set out in the bill of complaint, purporting to be the last will and testament of Henry Weber was the last will and testament of said Henry Weber or not, and a jury, * * * having been duly called, selected and sworn to try the said issue; * * * and having found by their verdict that the said instrument in writing was not the last will and testament of said Henry Weber,” etc. The decree further recites: “And the court being advised by the verdict of said jury and the evidence heard in open court doth find that the allegations of said bill have been substantially proven and doth order, adjudge and decree that said instrument in writing of date the 2nd day of May, A. D. 1917, purporting to be the last will and testament of said Henry Weber, deceased, and the probate of said will in the County Court of Adams County and the proceedings thereunder be and the, same are hereby set aside and declared null and void.” Nothing could be plainer than that the court intended and did declare the will of May 2, 1923, null and void and this is shown by the entire record, and it is apparent that the figures “1917” instead of “1923” are a mere clerical error which the court had ample authority, if necessary, to correct. Where the decree is not the judgment the court intended to pronounce, it cannot he said to have been a judicial error as distinguished from a clerical mistake: (Harris v. Schilling, 108 Ill. App. 116, 119; Horner v. Horner, 37 Ill. App. 199; Marine Bank Co. v. Mallers, 58 Ill. App. 232; Davenport v. Kirkland, 156 Ill. 169, 174.)

In Davenport v. Kirkland, supra, it is held:

“The first contention made on behalf of the appellant is, that the court had no power, after the term at which the decree was entered had elapsed, to amend the decree'by correcting the name of one of the parties therein mentioned. The rule applicable to amendments or alterations of decrees in chancery after the lapse of the term is substantially the same as that prevailing in cases of judgments at law, and is confined to mere clerical errors or matters of form, or to matters which are quite of course. (Lilly v. Shaw, 59 Ill. 72; Hurd v. Goodrich, id. 450.) But this rule, as applied both to judgments at law and to decrees in chancery, does not deprive courts of the power, at a subsequent term, to correct matters of mere form in their judgments, or misprisions of their clerks, or the right to correct any mere clerical errors, so as to conform the record to the truth. In short, any amendments permissible under the Statute of Amendments and Jeofails may be proper at a subsequent term, and even after a writ of error has been brought. (Cook v. Wood, 24 Ill. 295; Coughran v. Gutcheus, 18 id. 390.) In Cooley v. Scarlett, 38 111. 316, it was held that where a circuit judge had inadvertently signed a decree containing erroneous recitals of the proof, he might correct it at a subsequent term, on his becoming satisfied that an error in that respect had been committed. And in Palmer v. Harris, 100 Ill. 276, the court, at a subsequent term, amended the decree, on motion of the complainant, so as to reduce the sum ordered to be paid to him, and such amendment was held to be proper.”

Appellants invoke the doctrine of laches. We find no rule of limitation upon courts preventing them from correcting their records at any time, in a proper case, so long as the rights of third parties have not intervened. (Church v. English, 81 Ill. 442, 443; People v. Holmes, 312 Ill. 284, 286.)

Finding no error in the record, the decree of the circuit court of Adams county is affirmed.

Affirmed.


author: Mr. Presiding Justice Holdom

text:
    The People of the State of Illinois ex rel. George H. Campion, Petitioner and Appellee, v. Association Western Union Employees et al., Defendants and Appellants.
    Gen. No. 32,326.
    Opinion filed November 7, 1928.
    Rehearing denied November 23, 1928.

      Eastman, White, Hawxhurst & Lind, for appellants; Homer C. Dawson, of counsel.
    John M. Lowery, for appellee; Frank Johnston, Jr., of counsel.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

On August 11,1926, the relator, George H. Campion, filed his petition for a writ of mandamus against “Association Western Union Employees,” and its officers as above entitled. The petition set forth that the Association Western Union Employees is a voluntary, unincorporated association transacting business in the United States, Cuba and parts of Canada, with headquarters at 166 West Jackson Boulevard, Chicago; that the executive and governmental powers of the association are vested in its board of directors, composed of its general president and eight vice presidents, and that the. association was organized at the city of Chicago during the month of July, 1918, setting forth the material provisions of its constitution, which it is unnecessary here to repeat.

The petition further avers that relator in the month of April, 1925, was duly elected a vice president of said Association Western Union Employees, for the “Lake Division” of said association, to serve for a term of two years, and that the vice presidents of said association, by virtue of their office under the constitution, were members of the board of directors of said as sociation, and that the vice presidents so elected are the supreme governing authority within their respective divisions; that said vice presidents are paid a salary for their services by the association; that the salary fixed by the association was fixed by the St. Louis General Assembly in 1925, at $325 per month for all those vice presidents devoting all of their time to said association’s business, and.that relator, as such vice president, devoted all of his time to the business and affairs of said association; that relator served the association continuously as a vice president and member of the board of directors from the month of September, 1919, when he was first and unanimously elected to said offices; that said relator served the association from the time of his election in April, 1925, up to and including July 27, 1925, when his services were terminated in manner as follows:

That the president of said association, Joseph P. Hayes, exercising the power vested in him under Article X, section 4, issued a call to the members of said board of directors to meet in special session at general headquarters, 166 West Jackson Boulevard, Chicago, on July 23,1925; that at the meeting so called the said board of directors, on July 27,1925, by a vote of 5 to 2 (one director being absent), in disregard of the procedure prescribed by said constitution of the association and Robert’s Rules of Order to which said association legislated to subscribe to and follow as its guide in all parliamentary procedure, did unlawfully, maliciously and wrongfully vote to and did expel the relator as vice president, as a member of the board of directors, and as a member of said Association Western Union Employees. For many reasons set forth by relator in his petition he averred that said action expelling him as aforesaid was irregular and not in accord with the directions of the constitution of the association.

Relator prays that a writ of mandamus issue, directed to the respondents, in the title of this proceeding above named, and that they be ordered and directed to restore relator to the full rights, privileges and prerogatives enjoyed by him at the time of his expulsion from the offices held by him and his membership in said association, and that full compensation be awarded to him for the time lapsed from the time of said expulsion up to and including the date of the filing of his petition.

To this petition a general and special demurrer was filed by respondents September 25, 1926. As a special cause of demurrer it was alleged that “the petition on its face shows that petitioner is guilty of laches.” The general and special demurrer to the said petition was on February 21, 1927, sustained, and leave given relator to file an amended petition, which was filed by relator on February 28, 1927.

The amended petition set forth substantially, with some slight additions, the averments of the original petition. To the amended petition on March 7, 1927, respondents interposed a general and special demurrer, in which inter alia is set forth as a special cause of demurrer that “the petition on its face shows that petitioner is guilty of laches.” On a hearing of the demurrer the court overruled the same, the order so doing being entered of record on April 7, 1927. It appears that in said order the respondents were ruled to answer the amended petition by ten o’clock April 12, 1927, at which time the court, set the cause for hearing against the protest of respondents’ counsel.

On April 12,1927, the court called the case for trial, and the court, refusing to heed the request of respondents for a postponement of the hearing, held that the respondents were in default by having failed to plead or answer on April 12,1927. Whereupon the respondents continued to protest against a hearing on that day, and that proving of no avail, they stood by their general and special demurrer to the amended petition. Thereupon the court proceeded to trial and awarded the writ of mandamus against the respondents as prayed for in the amended petition, ordering that the relator be restored to his offices and membership. The court heard testimony regarding relator’s claim for salary, extra compensation and interest from the date of his expulsion from office, and entered a finding that there is due to the relator from respondent association the sum of $7,302.66, and entered a judgment thereon for that sum, from which order and judgment respondents bring the cause by appeal to this court for review.

In the conclusion to which we have arrived in this ease it becomes unnecessary to discuss any assignment of error saving only that which brings before us the contention that relator is guilty of such laches that he is not entitled to maintain this action for mandamus to restore him to his former position with the respondent association, or to recover any compensation from the time of his expulsion from his offices, employment and membership.

The petition and the amended petition both show upon their face, by proper averments, that relator was expelled from the respondent association on July 27, 1925, and that this suit for mandamus was commenced by relator and his original petition filed on August 11, 1926, a period of time of 14 days more than one year from relator’s expulsion. In this class of action the law for cogent reasons will not tolerate laches, and it has been held in similar cases, where the writ of mandamus has been applied for to restore a relator to his office, that delays of six, nine and ten months constitute laches inhibiting relief by mandamus. Naught appears from any averment in either of the two petitions which would operate to excuse the relator from proceeding with reasonable promptness to assert his rights to the offices from which he may have been improperly removed.

As the petitions, both original and amended, of relator show upon their face that relator was chargeable with laches, both the petition and the amended petition were vulnerable to the demurrers filed to them respectively, in both of which as a special cause of demurrer the rule against laches was invoked.

In Schultheis v. City of Chicago, 240 Ill. 167, the relator was denied relief solely upon the ground of laches, the court in its opinion stating, inter alia:

“It is asserted with great vigor that laches cannot be relied upon as a defense in any suit at law, and it is said, to quote the language of counsel, ‘laches is a defense which may be interposed in a court of equity only. ’ ”

To this the court said:

“This is a mistake. Cases are common in this court in which laches has been regarded as affording a defense in proceedings in quo warranto and in proceedings in certiorari, both of which are at law. Clark v. City of Chicago, 233 Ill. 113; City of Chicago v. Condell, 224 id. 595; People v. Hanker, 197 id. 409; Trustees of Schools v. School Directors, 88 id. 100; People v. Schnepp, 179 id. 305.
“In the case cited from the 233d we held that a member of the Chicago police force claiming to have been wrongfully removed would be barred by laches from his right to have the record of the civil service commissioners reviewed by certiorari if he delayed more than six months in beginning his suit unless the delay was satisfactorily explained by the petition for the writ. We are satisfied that we should adhere to the Kenneally case.”

In Clark v. City of Chicago, supra, six months was held to constitute laches barring a recovery.

In People ex rel. Holty v. City of Chicago, 148 Ill. App. 96, a delay in filing the petition of nine months and twenty days from the time of dismissal from office was held to be such laches as to bar a right of restoration to the position sought to be regained, and we there said:

“Such a defay has frequently been held to be such laches, in cases where it has been attempted, as here, to restore a discharged policeman to his former position and emoluments, as to be an effective and insuperable bar to relief.”

Continuing this court said: “As relator failed to state in his petition any fact tending to excuse the delay in filing his petition under the decisions cited, the doctrine of laches, invokable by way of demurrer, is a complete bar to relief.”

In People ex rel. King v. City of Chicago, 147 Ill. App. 591, this court said:

“To entitle relator to an award of the writ of mandamus it was incumbent upon him to state in his petition every necessary and essential fact, which prima facie at least showed that he was entitled to the writ. ’ * * *
“While the above reasons are all sufficient for denying relator the writ prayed, still there is another insuperable obstacle in his path to success, and that is the laches imputable to relator for a delay exceeding ten months between the time of his dismissal and the filing of his petition for a writ of mandamus.”

For the reason above set forth the judgment of the superior court is reversed with directions to that court to sustain the demurrer of respondents to the amended petition for mandamus, and to dismiss the same.

Judgment reversed with directions.

Wilson and Ryner, JJ., concur.


text:
    H. J. Krupp, Trading as H. J. Krupp & Company, Appellee, v. National Fur Dressing & Dyeing Company, Appellant.
    Gen. No. 32,781.

      Opinion filed November 7, 1928.
    Moses, Kennedy, Stein & Bachrach, for appellant; Hirsch E. Soble, of counsel .
    Peden, Kahn & Murphy, for appellee; David Silbert and K. B. Czarnecki, of counsel.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

This action involves 777 raw minie skins which the plaintiff delivered to defendant for dressing and dyeing at an agreed price of 45 cents per skin for such work. Said skins were delivered to defendant May 25, 1927. In the receipt for the skins they were valued at $25 each. Plaintiff’s suit was to recover the value of said skins, as so agreed, totaling the sum of $19,425. Plaintiff demanded of defendant that sum, which defendant refused to pay. ¿

It appears that after the delivery by plaintiff of said mink skins, they were stolen from defendant. Defendant filed a set-off for work and labor rendered in dressing and dyeing said skins at an agreed rate of 45 cents a skin of the total amount of $349.65, and defendant claims the sum of $10.24 for express charges incurred and paid by defendant.

Plaintiff avers in his statement of claim that there was an express agreement that defendant keep the said mink skins insured to their full value against loss or damage by fire, burglary, holdup or robbery according to the standard form of policy for the benefit of the owner of said skins delivered to the defendant until the same were returned to the plaintiff.

In the statement of claim there is the following averment: “Plaintiff further alleges that he sues to recover on an account stated entered into by and between the plaintiff and the defendant at Chicago, Illinois, on ■the 25th day of May, 1927, the sum of $19,425, being the value of 777 raw mink skins delivered to the defendant to be dressed and dyed at a stipulated price of $25 each, at which price the defendant accepted said skins to be returned to the plaintiff after having been dressed and dyed and within a reasonable time.”

There was a trial before court and jury on issues joined on the claim and the set-off, and there was a verdict in favor of plaintiff and against the defendant for the amount of the plaintiff’s claim, less the set-off, of $19,075.35. On this verdict there was a judgment after the overruling of motions for a new trial and in arrest of judgment.

After the verdict the present attorneys came into the case (although they took no part in the actual trial of the case in the municipal court). From the foregoing judgment defendant has prayed and perfected this appeal.

The errors assigned upon the record and argued in this court are as follows:

1. The court erred in overruling defendant’s motion for a directed verdict at the close of all the evidence.

2: The court erred in refusing to permit defendant’s counsel to cross-examine the plaintiff with regard to the purchase price of the skins in controversy.

3. The court erred in overruling defendant’s motion for a new trial, and in denying defendant’s motion to vacate and set aside the order overruling defendant’s motion for a new trial and to allow said motion for new trial, and in entering judgment on the verdict.

4. The verdict and judgment are contrary to law.

It was stipulated on the trial that the skins, after they had been dressed, were put on an automobile truck of defendant' to be delivered to plaintiff, and while in course of carriage the robbery occurred, and the skins were stolen and have never been found.

The real nub of this controversy is whether, as claimed by plaintiff, the skins were received by defendant under its special bailment agreement stating the value of the skins so received, or, as claimed by defendant, that it was an ordinary transaction of bailment where defendant was only bound to use ordinary care, and that if the skins were lost or destroyed without its fault the loss falls on- the plaintiff owner, and that the skins having been lost without its fault the loss falls upon the owner plaintiff.

The court did not err in denying defendant’s motion for an instructed verdict at the close of all the proofs, as at that time the motion did not present a question of law for the court in the then condition of the evidence but one of fact for the jury.

The facts in this case are easily distinguishable from Bear v. Young, 247 Ill. App. 625. In the Bear case there was no contract, as in the case at bar, between the parties. In the Bear case the robbery of the goods from the defendant was without his negligence, and consequently in the absence of a contract controlling defendant’s liability, the burden of showing that the goods were lost as a result of the negligence of defendant was upon plaintiff, and lacking such proof, liability was not under the law of bailment saddled upon the defendant. In the case at bar there is a contract, the legal construction of which governs the rights of the parties. . .

The rights of the parties are governed in accord with the legal import and effect of the following writings, the first of which was sent by the plaintiff to defendant, and is in the following words:

These goods remain the property of H. J. Krupp & Co. until a regular invoice is issued. The goods are at your risk for loss by fire or theft. Goods returned must be intact in original bundles.”

The defendant in acknowledging the receipt of the foregoing wrote as follows:

“National Fur Dressing & Dyeing Co. 1402-04-06-08 North Halsted St.
Chicago
May 25th, 1927
H. J. Krupp & Co.,
115 S. Dearborn St.,
Chicago, Illinois.
Gentlemen":
We herewith acknowledge with thanks the receipt of the following skins on
Lot No. Quantity Kind of Skins Work Our Mark
4 777 Mink to be dressed HK on head
These skins are stamped with your mark.
We do not guarantee this mark to be visible after dressing and/or dyeing.
This order is accepted only upon the conditions printed on the reverse side of this letter, to which we call your Special Attention.
Respectfully submitted,
National Fur Dressing & Dyeing Co.
By B. V.”

The conditions referred to in the foregoing were printed on the reverse side thereof and are in substance that:

"The undersigned will return the merchandise upon the performance of the work in good, workman-like manner.
“All claims with respect to this merchandise must be made in writing to the undersigned within five days after the delivery of the merchandise to the owner.”

Then follows a clause regarding arbitration, which is not in controversy in this case.

Succeeding the arbitration clause is the following:

“The undersigned will keep insured to full value against loss or damage by fire, burglary, hold-up or robbery, according to the standard form of policy, for the benefit of the owner, the merchandise hereby delivered until returned to the owner.
“No conditions, terms or representations will be binding other than those contained herein. * * *
National Fur Dressing & Dyeing Co. ’ ’

The two documents last quoted created a special bailment between the parties which fixed their rights and obligations, and we hold as a matter of law that the bailment was special and so made by the contract between the parties evidenced as above set out.

There is no difficulty regarding the solution of the facts which determine the rights of the parties. They are controlled by the writings between them: The skins were delivered by plaintiff to defendant to be dressed and dyed, and when so treated to be returned to the plaintiff. This defendant recognized by dressing and dyeing them and putting them on an autotruck in charge of its servants to be returned to the plaintiff at his place of business, and there is no dispute about what happened, for the parties upon the trial stipulated regarding the same in the following words :

“It is hereby stipulated and agreed, by and between the parties hereto, by their respective counsel, that on June 4,1927, the 777 skins alleged to have been shipped from the plaintiff to the defendant for dressing were in the possession of the defendant company by its agents, being redelivered to the plaintiff’s in its, the defendant’s, truck, and while so being delivered the said truck was held up by armed men, unknown to either the defendant or the plaintiff and by said armed men, the said skins taken by said armed men, that the said skins were never returned to the plaintiff, nor was the value therefor paid to the plaintiff by the defendant. ’ ’

Under the agreement of bailment it'was stipulated that defendant should keep the goods insured to the full value against loss or damage by fire, burglary, holdup or robbery for the benefit of plaintiff until the goods were returned to the owner, viz., the plaintiff. It furthermore appears from the evidence that the goods were so insured, and defendant realizing its obligation applied to plaintiff for information regarding said goods, so that it might make proofs of loss under the policy. This information plaintiff furnished, and it would seem from the evidence that proofs were made in accord with such information by defendant.

Defendant by paragraph 8 (stricken) of its affidavit of defense deposed “that defendant within a reasonable time after the loss of said skins notified the plaintiff herein to furnish and deliver to the defendant and to the said Globe & Rutgers Insurance Company any and all information necessary regarding the cost and value of said skins and that the defendant thereafter in accordance with the provisions of said policy of insurance did on or about the 15th day of July, 1927, in writing file with the said Globe & Butgers Insurance Company proof of loss and * * * for compensation for the full value of said minie skins, in accordance with the information furnished to this defendant by the plaintiff herein.” In paragraph 9 of its said affidavit (not stricken) it deposes that “This defendant further alleges that it has in all respects complied with the provisions of the insurance policy * *

Whether the amount due defendant under the insurance was paid by the insurance company does not appear, but it does appear that the proofs “were made by the defendant. For aught that appears to the contrary, defendant collected and retained the insurance money. If it did, it did so probably relying upon the effectiveness of its defense to defeat plaintiff’s claim.

The president of defendant testified that the theft occurred on Saturday afternoon, June 4,1927. “I saw Mr. Krupp on the following Tuesday morning. We carried insurance on the merchandise and the insurance company sent over their adjuster to see what the loss consisted of and the value of the loss and I went with the insurance adjuster. I told Mr. Krupp the furs were stolen.”

The defendant lays much stress in argument on what it contends regarding insurance, that it was an agreement to procure a policy of insurance in accordance with the requirements thereof, and does not constitute an agreement of insurance. We think the defendant put its own construction on that, part of the agreement by admitting that it procured insurance. The refinement of counsel’s distinctions reminds one of the unsolved problem “twixt tweedle dum and tweedle dee.” We are content to abide by the construction which defendant placed upon its contract with plaintiff in this regard.

Touching the liability of defendant in this special bailment agreement between the parties and the extent of its liability thereunder and the controlling principles defining the rights of the parties, an interesting case is Sun Printing & Publishing Ass’n v. Moore, 183 U. S. 642, in an opinion by the late Chief Justice White, in which it is said:

“It is elementary that, generally speaking, the hirer in a simple contract of bailment is not responsible for the failure to return the thing hired, when it has been lost or destroyed without his fault. Such is the universal principle. This rule was tersely stated by Mr. Justice Bradley in Clark v. United States, 95 U. S. 539, 24 L. Ed. 518, where it was said (p. 542, L. Ed. p. 519):
“ ‘A bailee for hire is only responsible for ordinary diligence and liable for ordinary negligence in the care of the property bailed. This is not only the common law, but the general law on the subject. * * * ’
“But it is equally true that where by a contract of bailment the hirer has, either expressly or by fair implication, assumed the absolute obligation to return, even although the thing hired has been lost or destroyed without his fault, the contract embracing such liability is controlling, and must be enforced according to its terms.”

The contract between' the parties to this suit is equally as controlling as was the contract held to be in the case supra. Another supporting authority is Sturm v. Boker, 150 U. S. 312, in which, inter alia, it was held that “ * * * a bailment or compensation to be received therefor being a sufficient consideration for such an undertaking.”

In Dermott v. Jones, 2 Wall. (U. S.) 1, it is said that:

“It is a well settled rule of law, that if a party by his contract charge himself with an obligation possible •to be performed, he must make it good, unless its performance is rendered impossible by the act of God, the law, or the other party. Unforeseen difficulties, however great, will not excuse him. ’ ’

The question of the value of the mink skins was before the jury in testimony regarding such value at the time of the loss, such testimony of value being given by the witnesses for both parties, and the court in its charge to the jury directed their attention to such value. It is true that the court limited cross-examination of the plaintiff’s president regarding value. However, counsel made no offer or statement as to what he desired to prove regarding such values, so that we doubt if the point is reserved for our review. Be that as it may, the contract of the parties agreed upon the value, and we think that that contract, in the absence of fraud, was binding upon the parties in the trial of the case, and furthermore there is very little discrepancy in the testimony of the contending parties regarding such value.

Complaint is made of the court’s refusal to give six instructions to the jury proffered by defendant. The court instructed the jury orally as it" had a right to do under the Municipal Court Act, Cahill’s St. ch. 37, ¶ 389 et seq., and an examination of all the instructions demonstrates that the material portions of the proffered instructions which the court refused were covered by the court’s oral instructions to the jury.

Paragraph 8 of defendant’s affidavit of defense was on motion stricken by the court. Whether such order was erroneous, the fact remains that every material matter set up therein was covered by defendant’s evidence in the case, so that it suffered no prejudice by reason of such action of the trial court and its order in such regard is not sufficient error to warrant this court in reversing the case.

The court did not err in overruling defendant’s motion for a new trial and in arrest of judgment and in entering judgment on the verdict. Neither did the court err in overruling defendant’s motion to vacate and set aside the order overruling defendant’s motion for a new trial and to allow said motion for new trial, and in entering judgment on the verdict. This motion was made by new counsel being injected into the case at that time. The case had been disposed of and in the exercise of a sound judicial discretion the court justly refused to grant what was in effect a motion for a rehearing on matters already disposed of.

It appears to us from a careful examination of the record and all that has been said in regard to the errors assigned, that the judgment under well-settled principles of law does justice between the parties. Therefore the judgment of the municipal court of Chicago is affirmed.

Affirmed.

Wilson and Ryner, JJ., concur.


text:
    Chicago Title & Trust Company, Trustee, Appellee, v. Ferne E. Wallace et al., Appellants, and Morton L. Roberts and William E. Schmidt, Administrator of the Estate of Doretta Horton, Deceased, Appellees.
    Gen. No. 32,851.

      Opinion filed November 7, 1928.
    Guy H. Powell and Thomas J. Finnegan, for appellants ; Thomas J. Finnegan, of counsel.
    Sherman C. Spitzer, Norbert B. Tyrell and Le Boy W. Crawford, for appellee Chicago Title & Trust Company.
    Rose & Symmes, for appellees Morton L. Roberts and William E. Schmidt.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

The complainant, the Chicago Title & Trust Company, filed its bill as trustee in a certain trust deed made by the defendants Feme E. Wallace and Charles LaVerne Wallace, conveying a one-third interest in certain real estate in Chicago, to secure their promissory note, dated October 28, 1925, for $3,500, with interest at 7 per cent per annum, payable to their own order one year after date, and by them indorsed,' and also two interest notes evidencing the semiannual interest on the principal note, alleging that said loan was made for the accommodation of the defendant, John E. Edmunds; that there is due upon said note of $3,500, $2,000 of principal; that said note was the property of Doretta Horton, deceased, and that the defendant William E. Schmidt was the administrator of the estate of Doretta Horton under letters issued by the probate court of Cook county, and that at the time of the death of Doretta Horton she was the owner of said note, and since her death the defendant Schmidt, as administrator, is the owner thereof.

The bill further alleges that on February 8, 1926, the defendants Feme E. Wallace, Charles LaVerne Wallace and John E. Edmunds demanded of complainant, as trustee, that it execute and deliver its release deed, releasing said trust deed, and that at about the same time the administrator of Doretta Horton, deceased, notified complainant, as trustee, of such claim, and demanded that complainant should not execute and deliver such a release deed; that by reason of such demands complainant as such trustee was justified in filing its bill praying for the aid and direction of the court in respect of such demands.

The decree adjudged that the trust deed of complainant, set out in the bill, was a good, valid and subsisting lien on the real estate conveyed by it in favor of .the defendant Schmidt, as administrator of the estate of Doretta Horton, deceased, as security for the payment of the principal sum of $2,000 at 7 per cent from October 28, 1925, together with costs and charges accrued and to accrue under the terms of the trust deed, and it was further ordered that complainant Chicago Title & Trust Company, as such trustee, do not and should not execute and deliver its deed releasing said trust deed and the lien thereof until and unless the said indebtedness secured thereby shall be fully paid and discharged.

The defendants, appellants here, Feme E. Wallace, Charles LaVerne Wallace and John E. Edmunds, assign errors on the record, and argue for reversal in the following words:

“We contend that the findings in the decree are not sustained by the evidence as the record does not establish that the defendant, John E. Edmunds, was indebted to Doretta Horton or to her estate and/or that to secure said indebtedness there was delivered to Miss Horton, or to anyone in her behalf, the notes and trust deed of the Wallaces, which the court found to be a lien on the real estate described in said trust deed, in favor of the administrator of the Horton estate. So we will urge here that the court erred in so finding and in decreeing that the complainant should not execute its release of said trust deed and the lien thereon until and unless the amount so found to be owing, shall have been paid. ’ ’

It is not contended that the chancellor did not have judicial power to decree the relief asked by the complainant trustee. We will therefore hold that the power of the court to grant the relief which it did to complainant is not a contention in this court.

This appeal is from the decree, and while defendant appellants by their fifth assignment of error seek to have this court review an order denying their motion to vacate the decree involved in this appeal, that question is not before us for review because there is naught in the record which brings before us any motion to vacate the decree.

It is argued that the testimony does not establish that Edmunds was indebted to Doretta Horton. This contention was grounded on the testimony of Edmunds to the effect that in any settlement negotiations with Roberts it was the “Dr. Juel” claim and not the “Cantrell-Horton” claim, which was intended to be secured by the Wallace trust deed, and that Dr, Juel was subsequently paid. Notwithstanding he admitted that $2,000 was given him by Cantrell to invest, he testified that the $2,000 had been repaid and bonds purchased with it taken up and canceled. It seems that the chancellor brought out on cross-examination of Mr. Edmunds that he was merely making convenient surmises, and the chancellor said in passing upon a motion to strike Edmund’s testimony from the record, “You don’t need to strike it out. There is no testimony of payment. He gave his conclusion, and later on testified he knew nothing about it.”

We have thoroughly scanned the testimony of Edmunds and weighed its probative force, and we find no reason justifying this court from disagreeing with the chancellor in the conclusion to which he arrived, as to the effect and weight of Edmund’s testimony.

Morton L. Roberts, who was the attorney for Doretta Horton in her lifetime, and who had charge of the transaction in dispute as her attorney, testified in regard to the transaction on the trial as a witness for complainant. His testimony was to the effect that Edmunds caused the Wallaces’ trust deed to be made to secure the “Cantrell-Horton” claim of $2,000 and the $1,500 represented the purchase price of stock. This testimony of Roberts stands uncontradicted. It was admitted that $1,500 was paid upon the $3,500 note, leaving a balance of $2,000 due thereon, for which amount the decree awards a lien upon the trust deed, and the decree directed the complainant trustee not to execute and deliver its release of the trust deed until the indebtedness aforesaid was paid and discharged in full.

The evidence of Roberts sustains the contention of the administrator that the notes and trust deed in question were executed by the Wallaces at the request of John E. Edmunds for an indebtedness owing to Doretta Horton in a settlement made between Doretta Horton and John E. Edmunds on or about October 23, 1925. The testimony of Roberts, we think, sustains such contention. While Roberts’ professional relationship to Doretta Horton was proper to be considered in weighing his testimony, yet there is no evidence seriously disputing his testimony. We think the decree is conclusive on this issue.

It is contended that there was no delivery of the notes or the trust deed to Doretta Horton or to any one in her behalf, or to any other person for her. However, it is not denied that Charles LaVerne Wallace recorded the trust deed in the office of the recorder of Cook county, and that such recording was tantamount to a delivery to the trustee and made operative the trust deed. The appellants constructively admit that the trust deed was. sufficiently delivered from the fact that the Wallaces and Mr. Edmunds are seeking to have the trust deed released. If in fact there had been no delivery of the trust deed, the defendants, appellants here, would be seeking another remedy to remove the trust deed as a cloud upon their title. As a matter of law it was not essential to the purposes of any lien under a trust deed that the note therein described should have been delivered to Doretta Horton, or to any one else for her. The note was simply evidence of the indebtedness. The indebtedness itself might be proved by competent testimony, without the introduction of the note in evidence, and while no action at law could be maintained upon the note without delivery, yet in equity, as found by the decree, the lien and the amount unpaid attached to the property conveyed in the trust deed to complainant as trustee, to secure the same.

In Blake v. Ogden, 223 Ill. 204, it was held that possession by the grantee of a recorded deed raises the presumption of delivery which can only be overcome by clear and convincing evidence to the contrary. Blankenship v. Hall, 233 Ill. 116; Creighton v. Roe, 218 Ill. 619.

The defendants, appellants here, in their reply brief attempt to distinguish this case from Creighton v. Boe, supra, on the theory that the deed in the Creighton case was a warranty deed and not a trust deed, as in the case before us. In legal effect there is no difference between a warranty deed and a trust deed so far as delivery is concerned. A trust deed is a warranty deed with a condition of defeasance on payment of the debt secured by the trust deed.

The decree in the record is amply supported by the probative force of the evidence, and consequently the decree of the circuit court is affirmed.

Affirmed.

Wilson, J., concurs; Taylor, J., not participating.


author: Mr. Justice Wilson

text:
    J. W. Sykes and George F. Ort, Complainants and Plaintiffs in Error, v. Harrison Parker et al., Trustees of a Trust at Common Law, Defendants and Defendants in Error, impleading John Coe et al., Successors in Trust, Defendants and Defendants in Error.
    Gen. No. 32,502.

      Opinion filed November 7, 1928.
    Justus Chancellor and George F. Ort, for plaintiffs in error.
    Edward C. Kesler and Frank E. Dingle, for defendants in error; Seymour Stedman, of counsel.
   Mr. Justice Wilson

delivered the opinion of the court.

The complainants, J. W. Sykes and George F. Ort, filed their bill of complaint in the superior court, charging that on or about the 17th day of February, 1921, Harrison Parker, John Coe and Viggo E. Bird, being the trustees of a certain common-law trust, designated as “Co-Operators of America,” otherwise known as “Co-Operative Society of America,” entered into a certain agreement or arrangement with them by which they were to perform certain legal and promotional duties; charging further that no specific amount was agreed upon for the services but that the rate of employment be at approximately the same amount they had been paid for services rendered the same parties prior to February 17, 1921; charging further that by this agreement the trustees were not to become individually liable, but that whatever was done was to be an express charge and lien against the property of the trust.

It appears that prior to the filing of this bill, certain of the trustees had been removed and the then trustees, Harrison Parker, Seymour Stedman and George H. Wilkins, were made parties defendant to the bill, as trustees, together with Leonard Morton & Company, a Delaware corporation and Leonard Morton & Company, an Illinois corporation. To this bill the defendants filed a general denial. The cause was heard before a chancellor of the superior court and a decree was entered in said cause, finding that the complainants had failed to prove an express contract on an account as charged in the bill of complaint and decreeing that the complainants ’ bill of complaint should be dismissed for want of equity.

On motion of complainants leave was given them to file an amended bill not inconsistent with the findings and rulings of the court and the order granting this leave to file an amended bill contained a proviso that the amended bill should not be based upon the theory of liability on the part of the defendants upon any express contract or account stated. Plaintiffs thereupon filed their amended bill and made as additional parties defendant, John Coe and Edward C. Kesler. Subsequently, a second amended bill was filed, upon which this present action is based, to which the defendants filed their answers denying the allegations of the bill and the cause coming on to be heard again before another and different chancellor of the superior court, a final decree was entered, after a hearing on the second amended bill and answers thereto, finding that the complainants had failed to prove the allegations of their last amended bill and that the same should be dismissed for want of equity. To review this decree this writ of error has been sued out.

From the facts it appears that on February 20, 1919, a certain common-law trust was made and executed, creating the Co-Operative Society of America, and the trustees under this trust were Harrison Parker, John Coe and N. A. Hawkenson. Under this trust money was obtained by the sale of beneficial interests. It appears that certain difficulties were encountered by the organizers in and about the sale of these beneficial interests or certificates by reason of the Blue Sky laws in various states and as a result, apparently, of this difficulty, on November 4, 1920, a certain debenture trust agreement was prepared under the direction and supervision of the complainants as contained in their bill of complaint, for the purpose of avoiding the requirements and restrictions of the Blue Sky laws in the states in which it was sought to sell the beneficial interests. Later it appears that another trust was created under the name of the Co-Operators of America, known as the Co-Operative Society of America. This was in February, 1921, and the trustees named in said trust agreement were Harrison Parker, John Coe and Viggo E. Bird. This appears to have been an effort to convey the property of the original trust by virtue of a clause therein contained to a new trust for the purpose of evading the Blue Sky laws of the various states where the beneficial certificates were being sold and apparently to avoid obligations and liabilities incurred by the original trust.

It appears further from the evidence that, as a result of their efforts in the preparation of the Co-Operative Trust of February 17, 1921, and the Debenture Trust of 1920, and services incident thereto, the complainants were paid the sum of $25,000 by Parker.

The services alleged to have been performed by the complainants, for which compensation is sought in the present proceeding, consist of directing account entries ; acquiring the output of the Southern California peach packers, the Michigan tomato canners, the Wisconsin pea canners, the Wisconsin milk canners and the organization of the General Products Trust and the preparation of contracts to co-ordinate them with a certain distributors’ trust; to also see to it that the jobbers throughout the country were interested in taking the surplus output of these various enterprises, complainants also undertook to obtain control of a certain insurance company, a bank and an office building in the city of Chicago; defended law suits and attended hearings on applications for permits to operate in adjoining states; directed sales manager; advised the trustees and prepared date for suits against various parties in order to recoup losses caused by the bankruptcy of the trust; defended actions brought by attorney generals in different states against the trust and organizing subsidiary trusts and co-ordinated them by trade agreements with the parent trust.

The Articles of Trust, dated February 17, 1921, under which complainants seek to recover, named Harrison Parker, Viggo E. Bird and John Coe, or their successors, as trustees, and provided, among other things, section 46, as follows:

“All acts to be done by the Trustees, including the alienation or encumbering of real estate, may be performed by said Trustees, namely, Harrison Parker, Viggo E. Bird and John Coe, or their successors in any 'decree removed, who are hereby made Trustees when duly nominated and confirmed as herein elsewhere provided. All parol contracts when in writing or partly in writing may be signed by any two of said Trustees. Any verbal contract made in the ordinary course of the trust business by any one of said Trustees shall be good and sufficient to bind the trust estate.”

Section 48, provides:

“The trustees are authorized to employ all necessary or proper agents, servants, brokers, attorneys, employees and counsel to carry into effect the purpose of the trust herein created. * * * To contract for and on behalf of said trust estate; to bind the same and its property to the performance of such contracts. * # * ) ?

Seetion'49, provides:

< t The Trustees shall in their own names as Trustees of said estate, doing business as The Co-Operators of America, bring any suit or action which in their judgment shall be necessary or proper to protect this estate or to enforce any contract made for the benefit thereof, and to defend in their discretion any suit or action against this estate or against the Trustees thereof. * * * The said Trustees are expressly authorized to bring or defend such suit in their discretion or to compromise or settle any suit, claim or controversy in which said estate is interested. * * *”

It is not contended, nor is there any evidence as to the fact, that there was any written agreement between the complainants and the trustees of the defendant trust, nor is it contended that there was any agreement on behalf of the common-law trust, defendant herein, with the complainants, other than the verbal agreement with Parker, one of the then trustees. In fact the evidence is clear that the only agreement or contract that complainants had, if any, with the defendant trust was by reason of a verbal employment by Parker and no amount was fixed or agreed upon; no writing of any kind entered into. It is contended by complainants that the trustee Parker,' under the Articles of Trust, had express power to make the verbal contract with complainants and that the contract so made was acquiesced in by reason of the conduct of the other trustees. Section 46 of said Articles of Trust provides that any verbal contract made in the ordinary course of the trust business can be made by one trustee but, after an examination of the evidence on behalf of the complainant as to the amount and character of the work claimed to have been done, we are inclined to the view that the services were not only not ordinary services, but were of an exceedingly extraordinary character.

Section 48 of said Articles of Trust contains the provision that the trustees (plural) are authorized to employ all necessary or proper agents, servants, brokers, attorneys and counsel to carry into effect the purpose of the trust and to contract for and on behalf of said trust estate.

The original trust agreement of February 20, 1919, provided that the assets and business of the trust should be in charge of three trustees and gave them collectively full control and management of the estate. Section 48 of the Articles of Trust, already referred to, in our opinion required the collective action of the trustees in such matters as are alleged to have been performed by the complainants. There was no meeting of the trustees or any express approval by them collectively in regard to the employment of the complainants, Sykes and Ort.

The creation of such a trust necessarily involved the rights of the beneficiaries thereunder and trustees, accepting the obligation as such, are required to exercise that right with strict conformity to the trust agreement and with the utmost regard to the beneficiaries of said trust agreement. Nor can a trust be bound because it has certain benefits of, or by reason of, any contract or agreement upon a question of implied liability. The character and extent of the work claimed to have been done by complainants would indicate that they were men of experience, one of whom was a lawyer and familiar with this rule. If they had exercised the slightest care they would have required a written agreement from the ..trustees passed at a regular and proper meeting, for the purpose of so entering into such an agreement or contract. A case very similar to -that at bar is the case of Austin v. Parker, 317 Ill. 348. This action involves the same trust agreement and the same trust property and the court in its opinion says:

“In this case it does not appear by the bill or the evidence offered that either Parker, or he and his co-trustees, Hawkensoliand Coe, stipulated with Austin that the trust estate should be bound. Both Parker and Coe testified there was no meeting of the trustees or act ratifying or authorizing the negotiations with Austin and that the trustees, made no contract with Austin. The contract between Parker and Austin was that Austin was to be president of the new insurance corporation when taken over. There was no contract by which either Parker, the trustees or the estate agreed to pay Austin any sum of money for his services. The only ground, therefore, upon which Austin could recover anything from anybody for his services is that there was an implied promise to pay him a reasonable fee. The circuit and Appellate Courts held the estate liable on quantum meruit under an implied liability arising because the estate got the benefit of his contract. The evidence does not show an express ratification of this contract by the trustees. There was no agreement sufficient to charge the estate before the work was done. The most that could be said of the contract was that it was a charge against Parker or the trustees personally or individually.”

In the case at bar it is attempted to show by the agreement with Parker that he undertook to bind the property of the trust, but in the view we take of this instrument and the protection which the courts have accorded beneficiaries, we do not feel that this would, in any way, affect the rule that the actual, positive participation of all the trustees would be required in order to create an agreement sufficient to charge the estate with the value of the services.

The Supreme Court of this State in the case of Dingman v. Boyle, 285 Ill. 144, in its opinion says:

“Where there are several co-trustees, they all form, as it were, one collective trustee, therefore they must perform their duties in their joint capacity, even in making a purchase. In law there is no such person as' an acting trustee apart from his co-trustees. All who accept the office are acting trustees.”

In the view we take of this proceeding, it is not necessary to consider the charge of the defendants that the complainants are in court with unclean hands. The cause appears to have been twice heard and by two different chancellors, both of whom had an opportunity of seeing and hearing the witnesses and weighing their testimony and both of whom have found adversely to the complainants as to the evidence. In this opinion we have not considered it necessary to weigh that evidence because of the fact that, from our conclusions of the law, based upon the interpretation of the facts by the complainants, we are of the opinion that no such contract has been proven as is sufficient to bind the trust estate.

For the reasons stated in this opinion the decree of the superior court is affirmed.

Decree affirmed.

Holdom, P. J., and Taylor, J., concur.


text:
    The People of the State of Illinois ex rel. Daniel N. Eisendrath, Petitioner and Appellee, v. James C. Denvir et al., Respondents and Appellants.
    Gen. No. 32,707.

      Opinion filed November 7, 1928.
    Robert E. Crowe, State’s Attorney, and George A. Miller, Assistant State’s Attorneys, for appellants; Henry A. Berger, of counsel.
    R. E. Blackwood, for appellee.
   Mr. Justice Wilson

delivered the opinion of the court.

The People of' the State of Illinois ex rel. Daniel N. Eisendrath filed a certain petition for a writ of mandatiras, praying that the defendants, James C. Denvir, Erwin J. Hasten and George T. Moxley, civil service commissioners of Cook county, be directed that a certain register, showing the result of a civil service examination be prepared and filed as required by law. The petition in effect charges that the said Eisendrath is a citizen and taxpayer of the city of Chicago, county of Cook and State of Illinois, and that there was in full force and effect in said county an act, Cahill’s St. ch. 34, If 66(10) et seq., entitled, “An Act to amend an Act entitled ‘An Act to revise the law in relation to the election of county commissioners in Cook county’ that part of said act relates to the civil service of Cook county and the method of selecting its employees thereunder ; that the president of the county board, by virtue of said act, should appoint three persons as civil service commissioners; that said commission should make rules to carry out the purposes of the act and for examinations, appointments and removals in accordance with the provisions of the act. It charges that applicants should be subjected to examination, which would be public and competitive with specified limitations as to residence, age, health, etc.; charges that it was the duty of the commissioners from the returns or reports of the examiners, or from the examinations made by the commission, to prepare a register for each grade or class of positions in the classified service of Cook county, whose general average standing upon examination was not less than the minimum fixed by the rules of the commission, and that such persons Shall take rank upon such register as candidates in their relative excellence as determined by the examination.

It charges that the defendants were the civil service commissioners of Cook county and, in accordance with the law, held an examination for the position of urologist, which was a duly classified position and that an examination was held May 12,1927, and that the papers were marked but that no register was prepared; charges that petitioner submitted to said examination, but that no register was prepared and that the reason therefor was that one of the examiners bore a certain enmity to the petitioner Eisendrath and discovered after the examination that the markings of your petitioner Eisendrath would result in his name being placed third on such register; charges that all the necessary acts to establish such register were performed excepting the posting of the same and that this refusal to post said register was illegal and without authority under the law; charges that if said register had been prepared and filed, the name of the petitioner would have appeared upon said eligible list as eligible for the appointment to the position of urologist for' a term of six years; charges that petitioner Eisendrath has requested that said register be prepared as required by law, but that the commissioners refused and still refuse so to do; prays that a writ of mandamus be directed to said defendants to prepare said register according to the law made and provided in such cases.

To this petition a general demurrer was filed and overruled and respondents elected to stand by their demurrer and judgment was duly entered for petitioners, from which judgment this appeal is perfected.

It is urged as ground for reversal that the petition was insufficient to warrant the issuance of the writ; that the civil service commission has complete control of examinations and only the excuse of bad faith can be reviewed; that the petition must show a clear legal right to the writ; that the petition fails to allege that there was in existence a position known as that of urologist.

Mandamus is a common-law proceeding and matters contained in the same which are superficial, irrelevant and evidentiary should be stricken from the petition on a motion to strike. No such motion was made in this ease but, instead, a demurrer was filed and, for that reason, it becomes necessary to consider whether or not there were sufficient facts charged in the petition • upon which the order authorizing the issuance of the writ could be predicated.

The question involved is not a question of discretion, but is ministerial in its nature in that the preparing and filing of the register after the examination was purely a matter of form and computation and the actual filing was purely ministerial for the purpose of carrying out the intent of the legislative enactment.

The petition in effect charges that the examination was held; that the petitioner took the examination; that he was third on the list; that the commissioners have illegally failed and refused to file the result of the examination by the register provided, and we believe that there were sufficient facts charged in this record to justify the issuance of the writ.

In regard to the position of respondents that it does not appear that there was any legal existence of the position of urologist, it is sufficient to say that the petition charges that the position of urologist was a classified position under the heading, “Attending Staff, County Hospital, Class A, Rank 2, Grade 1 to 1 N Inc.”; charges further that an examination for that position was held and we naturally assume that the respondents were not holding an examination for a position which was not included under the classification of. county positions over which the commission had control by examination.

The demurrer admits these facts and, in the absence of an allegation by counsel, to the contrary we take it that the fact that there .was such a position is sufficiently well pleaded.

For the reasons stated in this opinion the judgment of the trial court is affirmed.

Judgment affirmed.

Holdom, P. J., and Taylor, J., concur.