text:
    Clarence Hall, administrator of the will of James Hall, deceased, appellee, v. Evening American Publishing Company, appellant.
    Gen. No. 34,390.
    Heard in the third division of this court for the first district at the June term, 1930.
    Opinion filed January 28, 1931.
    Rehearing denied February 9, 1931.
    Keehn, Woods, Weisl & Keeley, for appellant. McKenna & Harris and Francis Gariepy, for appellee; James J. McKenna, Abraham W. Brussell and Francis Gariepy, of counsel.
   Mr. Presiding Justice Wilson

delivered the opinion of the court.


source: Caselaw Access Project

author: Mr. Presiding Justice Wilson

license: Public Domain

text:
    Hubbard & Company, appellee, v. Burge Ice Machine Company, appellant.
    Gen. No. 34,427.
    Heard in the third division of this court for the first district at the June term, 1930.
    Opinion filed January 28, 1931.
    Rehearing denied February 9, 1931.
    Alden, Latham & Young, for appellant; Charles Martin, of counsel. Loueks, Eckert & Peterson, for appellee; Victor Keller and W. IT. Bardwell, of counsel.
   Mr. Presiding Justice Wilson

delivered the opinion of the court.


text:
    Marion C. Horning, appellee, v. Fruehauf Trailer Company, appellant.
    Gen. No. 34,442.
    Heard in the third division of this court for • the first district at the June term, 1930.
    Opinion filed January 28, 1931.
    Edwin Hamilton, for appellant. Mort D. & Frank Goldberg, for appellee; Mort D. Goldberg, of counsel.
   Mr. Presiding Justice Wilson

delivered the opinion of the court.


author: Mr. Justice Friend

text:
    Catherine Laffey, defendant in error, v. United Brotherhood of Carpenters and Joiners of America, plaintiff in error.
    Gen. No. 33,981.
    Heard in the third division of this court for the first district at the February term, 1930,
    Opinion filed January 28, 1931.

      John D. Farrell, for plaintiff in error. Charles B. Collins, for defendant in error; Harold G. Ward, of counsel.
   Mr. Justice Friend

delivered the opinion of the court.


text:
    Charles W. Helsel et al., plaintiffs in error, v. M. L. Rau, defendant in error.
    Gen. No. 33,985.
    Heard in the third division of this court for the first district at the December term, 1929.
    Opinion filed January 28, 1931.
    Shanner & Shanner, for certain plaintiff in error; Wendell H. - Shanner, of counsel. Eastman, White, Hawxhurst & Lind, for certain other plaintiff in error; Homer C. Dawson, of counsel. William O. DeSouchet, for defendant in error.
   Mr. Justice Friend

delivered the opinion of the court.


text:
    The People of the State of Illinois, defendant in error, v. Benton Baker, plaintiff in error.
    Gen. No. 34,042.
    Heard in the third division of this court for the first district at the February term, 1930.
    Opinion filed January 28, 1931.
    Bernstein & Gordon, for plaintiff in error; John E. Foster, of counsel. John A. Swanson, State’s Attorney, for defendant in error; Edward E. Wilson and John Holman, Assistant State’s Attorneys, of counsel.
   Mr. Justice Friend

delivered the opinion of the court.


text:
    E. H. Ashdown and G. R. Williams, trading as Ashdown Williams & Company, appellees, v. Marek Kraus, appellant.
    Gen. No. 34,063.
    Heard in the third division of this court for the first district at the February term, 1930.
    Opinion filed January 28, 1931.
    Rehearing denied February 9, 1931.
    Isidore Brown, for appellant; Charles E. Loy and A. Abraham Ziedman, of counsel. McElroy, Ehrhardt & Quigley, for appellees; Charles F. McElroy, of counsel.
   Mr. Justice Friend

delivered the opinion of the court.


text:
    Elias Fischheimer, appellant, v. Wilhelmina Mathies Goehring, appellee.
    Gen. No. 34,072.
    Heard in the third division of this court for the first district at the February term, 1930.
    Opinion filed January 28, 1931.
    Harry Bierma, for appellant. Cohen & Berke, for appellee,
   Mr. Justice Friend

delivered the opinion of the court,


author: Mr. Justice Hebei

text:
    Martin Marcisz, appellee, v. Antonio Vitale, appellant.
    Gen. No. 34,004.
    Heard in the third division of this court for the first district at the December term, 1929.
    Opinion filed January 28, 1931.
    Cassels, Potter & Bentley, for appellant; Ralph P. Potter, Claud D. Raber and E. Douglas Schwantes, of counsel. No appearance for appellee.
   Mr. Justice Hebei

delivered the opinion of the court.


text:
    J. K. Harris, trading as J. K. Harris & Company, appellant, v. Logan Square Theatre Company and Albert Sabath, appellees.
    Gen. No. 34,015.
    Heard in the third division of this court for the first district at the December term, 1929.
    Opinion filed January 28, 1931.
    Harold L. Feigenholtz, for appellant. Charles Hudson, for appellee.
   Mr. Justice Hebei

delivered the opinion of the court.


text:
    The People of the State of Illinois, defendant in error, v. Marie Fusco, plaintiff in error.
    Gen. No. 34,037.
    Heard in the third division of this court for the first district at the February term, 1930.
    Opinion filed January 28, 1931.
    Emmet F. Byrne, for plaintiff in error; Clyde C. Fisher, of counsel. John A. Swanson, State’s Attorney, for defendant in error; Edward
    E. Wilson and John Holman, Assistant State’s Attorneys, of counsel.
   Mr. Justice Hebei

delivered the opinion of the court.


text:
    Oscar Johnson, appellee, v. Silvester Caminiti, appellant.
    Gen. No. 34,069.
    Heard in the third division of this court' for the first district at the February term, 1930.
    Opinion filed January 28, 1931.
    Cairoli Gigliotti, for appellant. Henry M. Hagan, for appellee; Alexander Paterson, of counsel.
   Mr. Justice Hebei

delivered the opinion of the court.


text:
    George J. Williams, appellee, v. J. Lewis Stettauer, appellant.
    Gen. No. 34,093.
    Heard in the third division of this court for the first district at the February term, 1930.
    Opinion filed January 28, 1931.
    Rehearing denied February 9, 1931.

      Schuyler, Weiufeld & Parker, for appellant; Howard D. Moses and Carl J. Appell, of counsel. Warren Pease, Hubert D. Crocker and Holland P. Pla Havhan, for appellee.
   Mr. Justice Hebei

delivered the opinion of the court.


text:
    Jacob A. Levinson, appellee, v. Mid City Securities Corporation, appellant.
    Gen. No. 34,126.
    Heard in the third division of this court for the first district at the February term, 1930.
    Opinion filed January 28, 1931.
    Rehearing denied February 9, 1931.
    Philip H. Treacy, for appellant. Albert J. Goldberg, for appellee; William Levine, of counsel.
   Mr. Justice Hebei

delivered the opinion of the court.


text:
    George Plachas et al., appellees, v. Frank Prokupimas et al. Julia A. Swort and Joseph Swort, appellants.
    Gen. No. 34,863.
    Heard in the third division of this court for the first district.
    Opinion filed January 28, 1931.
    Hewton R. Gilmore, for appellants. Edwin D. Lawlor, for appellees; Edwin Walsh, of counsel.
   Mr. Justice Hebei

delivered the opinion of the court.


author: Mr. Justice McSurely

text:
    The University of Chicago, appellee, v. Charles Andrews et al., defendants, on appeal of George Pilafas, appellant.
    Gen. No. 34,884.
    Heard in the first division of this court for the first district.
    Opinion filed February 2, 1931.
    Mclnerney & Power and Rosenberg,'Corlett & Toomin, for appellant; Aaron L. Stein, of counsel. Winston, Strawn & Shaw, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.


author: Mr. Presiding Justice Matehett

text:
    E. H. Brown, trading as E. H. Brown Advertising Agency and as Radio Advertising System, appellee, v. Benjamin D. Ritholz, trading as Ritz Optical Company, appellant.
    Gen. No. 34,666.
    Heard in the first division of this court for the first district at the October term, 1930.
    Opinion filed March 2, 1931.
    Nathanson, Bloch & Sitron, for appellant; Harold J. Sitron and Walter J. Bloch, of counsel. Casper Hathan, for appellee.
   Mr. Presiding Justice Matehett

delivered the opinion of the court.


author: Mr. Presiding Justice Matchett

text:
    H. J. Gottschalk, appellee, v. Tillie Rice and Adelbert Rice, appellants.
    Gen. No. 34,678.
    Heard in the first division of this court for the first district at the October term, 1930.
    Opinion filed March 2, 1931.
    Erwin E. Cowen and Joseph C. Cowen, for appellants; Edward MeTiernan, of counsel. Deneen, Healy & Lee, for appellee; Thomas C. McConnell, of counsel.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.


text:
    Minnie C. Butts, appellee, v. C. A. Erickson, appellant.
    Gen. No. 34,696.
    Heard in the first division of this court for the first district at the October term, 1930.
    Opinion filed March 2, 1931.
    Cohen & Berke, for appellant. Isidore Vise, for appellee; Menz I. Rosenbaum, of counsel.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.


text:
    Marcella Guth, appellee, v. J. V. Hohman, appellant.
    Gen. No. 34,705.
    Heard in the first division of this court for the first district at the December term, 1930.
    Opinion filed March 2, 1931.
    Murphy O. Tate, for appellant; Leo M. Tarpey, of counsel. Pretzel & Pretzel, for appellee; Carl G. Pretzel, of counsel.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.


text:
    Minneapolis-Honeywell Regulator Company, appellant, v. F. A. Cavallo, appellee.
    Gen. No. 34,714.
    Heard in the first division of this court for the first district at the October term, 1930.
    Opinion filed March 2, 1931.
    Vose & Vose, for appellant; John D. Clancy, of counsel. Israel Dordek, for appellee.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.


text:
    The People of the State of Illinois, appellee, v. Stanley Adams, appellant.
    Gen. No. 34,748.
    Heard in the first division of this court for the first district at the October term, 1930.
    Opinion filed March 2, 1931.
    Samuel L. Golan, for appellant. John A. Swanson, State’s Attorney, for appellee; Henry T. Chace, Jr., Edward E. Wilson and Otho S. Fasig, Assistant State’s Attorneys, of counsel.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.


text:
    Levit & Rovner Company, defendant in error, v. Morris Chalfin, plaintiff in error.
    Gen. No. 34,761.
    Heard in the first division of this court for the first district at the December term, 1930.
    Opinion filed March 2, 1931.
    Rehearing denied March 16, 1931.
    Maxwell N. Andalman, for plaintiff in error. Lederer, Livingston, Kahn & Adler, for defendant in error.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.


text:
    Philip Birnbaum, appellant, v. Hugo Gerschafske, appellee.
    Gen. No. 34,807.
    Heard in the first division of this court for the first district at the December term, 1930.
    Opinion filed March 2, 1931.
    Leo G. Hana, for appellant; Prank J. Jacobson, of counsel. Nichols, Jewett & Dahlin, for appellee; Eugene F. Jewett, of counsel.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.


text:
    Pennsylvania Tank Line, appellee, v. Larkin F. Jordan et al., defendants. Joseph H. McCabe, appellant.
    Gen. No. 34,851.
    Heard in the first division of this court for the first district at the June term, 1929.
    Opinion filed March 2, 1931.
    Rehearing denied March 16, 1931.
    Frank H. Repetto, for appellant. Miller, Gorham & Wales, for appellee.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.


author: Mr: Presiding Justice Matchett

text:
    Pennsylvania Tank Line, appellee, v. Larkin F. Jordan et al., defendants. Joseph H. McCabe, appellant.
    Gen. No. 34,852.
    Heard in the first division of this court for the first district at the June term, 1929.
    Opinion filed March 2, 1931.
    Rehearing denied March 16, 1931.
    Frank H. Repetto, for appellant. Miller, Gorham & Wales, for appellee.
   Mr: Presiding Justice Matchett

delivered the opinion of the court.


text:
    Pennsylvania Tank Line, appellee, v. Larkin F. Jordan et al., defendants. Joseph H. McCabe, appellant.
    Gen. No. 34,853.
    Heard in the first division of this court for the first district at the June term, 1929.
    Opinion filed March 2, 1931.
    Rehearing denied March 16, 1931.
    Frank H. Repetto, for appellant. Miller, Gorham & Wales, for appellee.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.


text:
    Pennsylvania Tank Line, appellee, v. Larkin F. Jordan et al., defendants. Joseph H. McCabe, appellant.
    Gen. No. 34,854.
    Heard in the first division of this court for the first district at the June term, 1929.
    Opinion filed March 2, 1931.
    Rehearing denied March 16, 1931.
    Frank H. Repetto, for appellant. Miller, Gorham & Wales, for appellee.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.


text:
    The People of the State of Illinois ex rel. Frank McGuire, trading as Lorraine Gardens Dancing School, appellee, v. William Hale Thompson, Mayor of the City of Chicago et al., appellants.
    Gen. No. 34,087.
    Heard in the first division of this court for the first district at the February term, 1930.
    Opinion filed March 2, 1931.
    Samuel A. Ettelson, Corporation Counsel, for appellants; James N. Kearns, William V. Daly and Roy S. Gaskill, Assistant Corporation Counsel, of counsel. No appearance for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Walter E. Maze, administrator of the estate of Virginia R. Maze, deceased, appellant, v. Arthur T. McIntosh, trading as Arthur T. McIntosh & Company, appellee.
    Gen. No. 34,405.
    Heard in the first division of this court for the first district at the June term, 1930.
    Opinion filed March 2, 1931.
    Kent J. Owens and Walter M. Fowler, for appellant. .Edwin H. Cassels, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Hall’s, Inc. et al., appellees, v. Samuel Katz, appellant.
    Gen. No. 34,600.
    Heard in the first division of this court for the first district at the October term, 1930.
    Opinion filed March 2, 1931,
    Rehearing denied March 16, 1931.

      Winston, Strawn & Shaw, for appellant; Harold Beaeom and Arthur D. Welton, Jr., of counsel. Geo. M. Burditt, for appellees.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Lawrence E. Johnson, appellant, v. Illinois Central Railroad Company, appellee.
    Gen. No. 34,609.
    Heard in the first division of this court for the first district at the October term, 1930.
    Opinion filed March 2, 1931.
    Alfred Roy Hulbert, for appellant. Fred H. Montgomery, for appellee; Edward C. Craig and Vernon W. Foster, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Rosie Edwards, appellee, v. Commonwealth Burial Association, appellant.
    Gen. No. 34,681.
    Heard in the first division of this court for the first district at the October term, 1930.
    Opinion filed March 2, 1931.
    Harris B. Gaines and Fleetwood M. McCoy, for appellant; Harris B. Gaines, of counsel. Buckner & Pope, for appellee; Otis M. Buckner, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    R. Bernard Kurzon, appellee, v. Sol Rubin, appellant.
    Gen. No. 34,708.
    Heard in the first division of this court for the first district at the October term, 1930.
    O’Connor, J., dissents.
    Opinion filed March 2, 1931.
    Rehearing denied March 16, 1931.
    Henry L. Burman, for appellant. No appearance for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Sissa Goransson et al., appellants, v. Cecelia Pfandler and George Pfandler, appellees.
    Gen. No. 34,717.
    Heard in the first division of this court for the first district at the October term, 1930.
    Opinion filed March 2, 1931.
    Rehearing denied March 16, 1931.
    Anderson & Anderson, for appellants; G. Bernhard Anderson and James B. Poynton, of counsel. Kahn, Gettleman & Kahn, for appellees; Roy S. Gaskill, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.


author: Mr. Justice MeSurely

text:
    David Selic, defendant in error, v. B. Friedman and Morris Brostoff, plaintiffs in error.
    Gen. No. 34,754.
    Heard in the first division of this court for the first district at the October term, 1930.
    Opinion filed March 2, 1931.
    George L. Lewis, for plaintiffs in error; Clyde C. Fisher, of counsel. Holland & Shuchter, for defendant in error.
   Mr. Justice MeSurely

delivered the opinion of the court.


text:
    Robert H. Good, defendant in error, v. A. R. Rapp, plaintiff in error.
    Gen. No. 34,766.
    Heard in the first division of this court for the first district at the December term, 1930.
    Opinion filed March 2, 1931.
    Hoyne, O’Connor & Rubinkam, for plaintiff in error. Dennis J. O’Toole, for defendant in error.
   Mr. Justice MeSurely

delivered the opinion of the court.


text:
    John Ruiko, appellee, v. Ignatius Ivan et al., trading as Ivan and Fryer Brothers, on appeal of Ignatius Ivan and John Fryer, appellants.
    Gen. No. 34,821.
    Heard in the first division of this court for the first district at the December term, 1930.
    Opinion filed March 2, 1931.
    Rehearing denied March 16, 1931.
    Leo V. Boeder and A. L. Thomas, for appellants. Alfred O’Connor and Meyer Goldberg, for appellee.
   Mr. Justice MeSurely

delivered the opinion of the court.


text:
    Albert Goldman, appellant, v. A. B. Hashman, appellee.
    Gen. No. 34,830.
    Heard in the first division of this court for the first district at the December term, 1930.
    Opinion filed March 2, 1931.
    Rehearing denied March 16, 1931.
    Harry Z. and Bernard Perel, for appellant; Sydney R. Drebin, of counsel. Frank J. Tyrrell and Jacob Kosbie, for appellee.
   Mr. Justice MeSurely

delivered the opinion of the court.


author: Mr. Justice O’Connor

text:
    Bernard W. Snow, as bailiff of the municipal court of Chicago for the use of Fred Hayek, appellee, v. Lloyd L. Warfield and United States Fidelity & Guarantee Company, on appeal of United States Fidelity & Guaranty Company, appellant.
    Gen. No. 34,663.
    Heard in the first division of this court for the first district at the October term, 1930.
    Opinion filed March 2, 1931.

      Eugene P. Kealy, for appellant. William H. A. Bust and Ernest 0.' Beniff, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    John MacKenzie, appellee, v. Justin T. McCarthy, appellant.
    Gen. No. 34,693.
    Heard in the first division of this court for the district at the October term, 1930.
    Opinion filed March 2, 1931.
    John D. Pope, for appellant. John MacKenzie, pro se; Lee Cohn, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Smith Engineering Works, appellee, v. T. Frank Quilty and Francis J. Sullivan, appellants.
    Gen. No. 34,702.
    Heard in the first division of this court for the first district at the October term, 1930.
    Opinion filed March 2, 1931.
    Arthur Manning, for appellants. Deneen, Healy & Lee, for appellee; Thomas C. McConnell, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    General Acceptance Company, defendant in error, v. J. B. Gillum, plaintiff in error.
    Gen. No. 34,756.
    Heard in the first division of this court for the first district at . the December term, 1930.
    Opinion filed March 2, 1931.
    Edward Byrnhard Zahn, for plaintiff in error. Harry J. Bosenzweig, for defendant in error; Clyde C. Fisher, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Harry Samsky, trading as Acorn Express & Van Company, defendant in error, v. Fort Dearborn Automobile Insurance Company, plaintiff in error.
    Gen. No. 34,779.
    Heard in the first division of this court for the first district at the December term, 1930.
    Opinion filed March 2, 1931.
    Murphy O. Tate, for plaintiff in error; Leo M. Tarpey, of counsel. Harry S. Greenstein, for defendant in error.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    In re Estate of Inman E. Vandry, deceased. Clara Fisher, appellant, v. Bonnie M. Vandry et al., appellees.
    Gen. No. 34,783.

      Heard in the first division of this court for the first district at the April term, 1930.
    Opinion filed March 2, 1931.
    Church, Haft, Robertson & Crowe, for appellant. Cochrane & George, for certain appellee. Inman E. Vandry, Jr., by Frederick A. Brown, his guardian ad litem.

   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    The People of the State of Illinois, defendant in error, v. Peter Delnero, plaintiff in error.
    Gen. No. 34,816.
    Heard in the first division of this court for the first district at the December term, 1930.
    Opinion filed March 2, 1931.
    Daniel A. Wolf and Bernard F. Cummings, for plaintiff in error; Geo. F. Ort, of counsel. John A. Swanson, State’s Attorney, for defendant in error; Edward E. Wilson and Grenville Beardsley, Assistant State’s Attorneys, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Available Truck Company, plaintiff in error, v. Eureka Motor Service Company, defendant in error.
    Gen. No. 34,354.
    Heard in the third division of this court for the first district at the June term, 1930.
    Opinion filed March 11, 1931.
    Barrett, Barrett & Wermuth, for plaintiff in error. Edward J. Green, for defendant in error.
   Mr. Presiding Justice Wilson

delivered the opinion of the court.


text:
    Helen B. Smith, plaintiff-appellee, v. W. E. McCarron Corporation, defendant-appellant.
    Gen. No. 34,466.
    Heard in the third division of this court for the first district at the June term, 1930.
    Opinion filed March 11, 1931.
    Rehearing denied March 25, 1931.
    Short, Rothbart, Willner & Lewis, for appellant; Wharton, Plummer, of counsel. Daniel F. Murphy, for appellee; Louis P. Miller, of counsel.
   Mr. Presiding Justice Wilson

delivered the opinion of the court.


text:
    Richard G. Keizer, defendant in error, v. Riverside Building Corporation, plaintiff in error.
    Gen. No. 34,473.
    Heard in the third division of this court for the first district at the October term, 1930.
    Opinion filed March 11, 1931.
    Weightstill Woods, for plaintiff in error. Tenney, Harding, Sherman & Rogers, for defendant in error; S. Ashley Guthrie, of counsel.
   Mr. Presiding Justice Wilson

delivered the opinion of the court.


text:
    Richard G. Keizer, defendant in error, v. Riverside Building Corporation, plaintiff in error.
    Gen. No. 34,474.
    Heard in the third division of this court for the first district at the October term, 1930.
    Opinion filed March 11, 1931.
    Weightstill Woods, for plaintiff in error. Tenney, Harding, Sherman & Rogers, for defendant in error; S. Ashley Guthrie, of counsel.
   Mr. Presiding Justice Wilson

delivered the opinion of the court.


text:
    Marcellus Hamilton, appellee, v. Theola Hamilton, appellant.
    Gen. No. 34,487.
    Heard in the third division of this court for the first district at the October term, 1930.
    Opinion filed March 11, 1931.
    William C. Smith, for appellant. Patterson & Lilly, for appellee.
   Mr. Presiding Justice Wilson

delivered the opinion of the court.


text:
    John G. Seeger et al., appellants, v. Charles E. Gruenberg et al., appellees.
    Gen. No. 34,526.
    Heard in the- third division of this court for the first district at the October term, 1930.
    Opinion filed March 11, 1931.
    Maximilian J. St. George, for appellants. Walter S. Holden, for appellees.
   Mr. Presiding Justice Wilson

delivered the opinion of the court.


text:
    Louise Butler, appellee, v. John R. Thompson Company, appellant.
    Gen. No. 34,129.
    Heard in the third division of this court for the first district at the February term, 1930.
    Opinion filed March 11, 1931.
    John A. Bloomingston, for appellant. Irving Breakstone and C. Helmer Johnson, for appellee.
   Mr. Justice Friend

delivered the opinion of the court.


text:
    Max M. Grossman, appellant, v. Transportation Bank of Chicago, appellee.
    Gen. No. 34,159.
    Heard in the third division of this court for the first district at the February term, 1930.
    Opinion filed March 11, 1931.
    Samuel Grossman, for appellant. Channing L. Sentz, for appellee.
   Mr. Justice Friend

delivered the opinion of the court.


text:
    Frank P. Lanahan, appellee, v. Loraine Green, appellant.
    Gen. No. 34,172.
    Heard in the third division of this court for the first district at the April term", 1930.
    Opinion filed March 11, 1931.
    Wendell E. Green and Henry C. Ferguson, for appellant. No appearance for appellee.
   Mr. Justice Friend

delivered the opinion of the court.


text:
    Julius D’Orio, trading as Advertoshare Company, appellant, v. Nick Catalano, appellee.
    Gen. No. 34,342.
    Heard in the third division of this court for the first district at the June term, 1930.
    Opinion filed March 11, 1931.
    Maximilian J. St. George, for appellant. No appearance for appellee.
   Mr. Justice Friend

delivered the opinion of the court.


text:
    Carl E. Person, appellee, v. City State Investment Company, appellant.
    Gen. No. 34,367.
    Heard in the third division of this court for the first district at the June term, 1930.
    Opinion filed March 11, 1931.
    E. Sydney Feinstein, for appellant. Alexander Koehn, for appellee.
   Mr. Justice Friend

delivered the opinion of the court.


text:
    In re Estate of Sadie E. Furlong, appellee, v. The Foreman Trust & Savings Bank, appellant.
    Gen. No. 34,376.
    Heard in the third division of this court for the first district at the June term, 1930.
    Opinion filed March 11, 1931.
    James G. Sheridan, for appellant. Henry A. Gano, for appellee.
   Mr. Justice Friend

delivered the opinion of the court.


text:
    Samuel Dorf and Edward Wolfson, trading as Dorf Printing Company, appellant, v. J. M. Brody and Frank Raffle, trading as Brody & Raffle Company, appellee.
    Gen. No. 34,387.
    Heard in the third division of this court for the first district at the June term, 1930.
    Opinion filed March 11, 1931.
    Goebel & Schatz, for appellant. Maurice Tates Cohen, for appellee.
   Mr. Justice Friend

delivered the opinion of the court.


text:
    Herman P. Scher, plaintiff in error, v. Fred Becklenberg, defendant in error.
    Gen. No. 34,494.
    Heard in the third division of this court for the first district at the October term, 1930.
    Opinion filed March 11, 1931.
    Cohon & Goldstein, for plaintiff in error; Maurice S. Palles, of counsel. Cloyes & Klingler, for defendant in error; Glenn G. Paxton, of counsel.
   Mr. Justice Friend

delivered the opinion of the court.


text:
    George T. Hagstrom, appellee, v. Harry Gross, appellant.
    Gen. No. 34,135.
    Heard in the third division of this court for the first district at the February term, 1930.
    Opinion filed March 11, 1931.
    Rehearing denied March 25, 1931.
    Louis Greenberg and George M. Tearney, for appellant. No appearance for appellee.
   Mr. Justice Hebei

delivered the opinion of the court.


text:
    Ethel Hill, appellee, v. Lincoln Burial Association, appellant.
    Gen. No. 34,147.
    Heard in the third division of this court for the first district at the February term, 1930.
    Opinion filed March 11, 1931.
    Lewis E. Johnson, for appellant. E. P. Blakemore, for appellee.
   Mr. Justice Hebei

delivered the opinion of the court.


text:
    Millard State Bank, appellee, v. Andrew Dolejs, appellant.
    Gen. No. 34,169.
    Heard in the third division of this court for the first district at the February term, 1930.
    Opinion filed March 11, 1931.
    Sumner C. Palmer, for appellant. William A. Raiehart, for appellee; John P. Klein, of counsel.
   Mr. Justice Hebei

delivered the opinion of the court.


text:
    In re Petition of Samuel W. Maltz for lease under the Insolvent Debtor’s Act. Samuel W. Maltz, plaintiff in error, v. Charles W. Findlay and Elizabeth P. Findlay, defendants in error.
    Gen. No. 34,320.
    Opinion filed March 11, 1931.
    Rosenberg, Braude & Zimmerman, for plaintiff in error, Thomas J. Finnegan, for defendants in error.
   Mr. Justice Hebei

delivered the opinion of the court.


text:
    Emil Burgh and Emma Burgh, appellees, v. H. O. Stone & Company, appellants.
    Gen. No. 34,373.
    Heard in the third division of this court for the first district at the June term, 1930.
    Opinion filed March 11, 1931.
    Leslie A. Needham and Alvin Glenn Hubbard, for appellants. Kamfner & Halligan, for appellees; Arthur J. Goldberg, of counsel
   Mr. Justice Hebei

delivered the opinion of the court.


text:
    J. L. Francis, appellee, v. Marshall Field & Company, appellant.
    Gen. No. 34,393.
    Heard in the third division of this court for the first district at the June term, 1930.
    Opinion filed March 11, 1931.
    Frank P. Leffingwell and Benson Landon, for appellant. Murphy 0. Tate, for appellee.
   Mr. Justice Hebei

delivered the opinion of the court.


text:
    F. S. Hendricks, trading as F. S. Hendricks & Company, appellee, v. Sam Orner, appellant.
    Gen. No. 34,421.
    Heard in the third division of this court for the first district at the June term, 1930.
    Opinion filed March 11, 1931.
    Morris A. Mills, for appellant. Heth, Lister & Collins, for appellee.
   Mr. Justice Hebei

delivered the opinion of the court.


text:
    Tony Tallarico, appellee, v. Newark Fire Insurance Company, appellant.
    Gen. No. 34,430.

      Opinion filed March 11, 1931.
    Rehearing denied March 25, 1931.
    Hicks & Folonie, for appellant. Livingston & Kaufman, for appellee.
   Mr. Justice Hebei

delivered the opinion of the court.


text:
    Josephine N. Schroeder and William L. Schroeder, appellees, v. Maryland Casualty Company, appellant.
    Gen. No. 34,412.
    Heard in the third division of this court for the first district at the June term, 1930.
    Opinion filed March 13, 1931.
    Harry Z. and Bernard Perel, for appellant; Sydney R. Drebin, of counsel. Frederick A. Gariepy, for appellees.
   Mr. Presiding Justice Wilson

delivered the opinion of the court.


text:
    Minnie C. Butts, appellee, v. C. A. Erickson, appellant.
    Gen. No. 34,697.
    Heard in the first division of this court for the first district at the October term, 1930.
    Opinion filed March 23, 1931.
    Cohen & Berke, for appellant. Isidore Vise, for appellee; Menz I. Rosenbaum, of counsel.
   Mr. Presiding Justice Matehett

delivered the opinion of the court.


text:
    M. A. Brinker, appellee, v. Loretta M. Pace et al., appellants.
    Gen. No. 34,741.
    Opinion filed March 23, 1931.
    Vincent P. Pace, pro se, and for other appellants; D. Ryan Twomey, of counsel. No appearance for appellee.
   Mr. Presiding Justice Matehett

delivered the opinion of the court.


text:
    The Fair, appellee, v. Louis G. Garber and Mrs. Louis G. Garber, his wife, appellants.
    Gen. No. 34,827.
    Heard in the first division of this court for the first district at the December term, 1930.
    Opinion filed March 23, 1931.
    Myer N. Rosengard, for appellants; Irving L. Block, of counsel. Smith & Holy, for appellee.
   Mr. Presiding Justice Matehett

delivered' the opinion of the court.


text:
    Minnie C. Butts, appellee, v. C. A. Erickson and Central Contracting Company, appellants.
    Gen. No. 34,898.
    Heard in the first division of this court for the first district at the February term, 1931.
    Opinion filed March 23, 1931.
    Cohen & Berke, for appellants; Mayer Goldberg, of counsel. Isidore Vise, for appellee; Menz I. Rosenbaum, of counsel.
   Mr. Presiding Justice Matehett

delivered the opinion of the court.


text:
    Mildred R. Borre, appellee, v. Anthony J. Borre, appellant.
    Gen. No. 34,960.
    Heard in the first division of this court for the first district at the February term, 1931.
    Opinion filed March 23, 1931.
    P. J. O’Shea, for appellant. Myron E. Wiseh, for appellee; Sidney R. Tarkofli, of counsel.
   Mr. Presiding Justice Matehett

delivered the opinion of the court.


text:
    Carrie M. Wright, appellee, v. Charles O. Wright, appellant.
    Gen. No. 35,013.
    Heard in the first division of this court for the first district at the February term, 1931.
    Opinion filed March 23, 1931.
    Barratt O’Hara and Ronald 0. Oldham, for appellant. Arthur Goldblatt, for appellee.
   Mr. Presiding Justice Matehett

delivered the opinion of the court.


text:
    Ignatz Szopinski, appellee, v. Helen Klasnja, appellant.
    Gen. No. 34,726.
    Heard in the first division of this court for the first district at the October term, 1930.
    Opinion filed March 23, 1931.
    Thomas A. Green, for appellant; Roy C. Merrick, of counsel. Alden, Latham & Young, for appellee; Wm. L. Quinlan, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    The People of the State of Illinois, defendant in error, v. George McGinnis, plaintiff in error.
    Gen. No. 34,862.
    Heard in the first division of this court for the first district at the February term, 1931.
    Opinion filed March 23, 1931.

      John. B. Fruchtl, for plaintiff in error. John A. Swanson, for defendant in error.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    The People of the State of Illinois, defendant in error, v. Edward Semmler, plaintiff in error.
    Gen. No. 34,875.
    Heard in the first division of this court for the first district at the February term, 1931.
    Opinion filed March 23, 1931.
    Rehearing denied April 6, 1931.
    Cohen & Berke, for plaintiff in error; Benjamin E.' Cohen and Mayer Goldberg, of counsel. John A. Swanson, State’s Attorney, for defendant in error; Henry T. Chace, Jr., Edward E. Wilson and Otho S. Fasig, Assistant State’s Attorneys, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Louis Scully, appellee, v. Albert J. Schorsch et al., appellants.
    Gen. No. 34,963.
    Heard in the first division of this court for the first district at the February term, 1931.
    Opinion filed March 23, 1931.
    Theodore Johnson, for appellants. George E. McGrath, Jr., and Coburn, Kearney & Coburn, for appellee; Marshall V. Kearney, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    W. C. Handley, defendant in error, v. Elizabeth Siegl, plaintiff in error.
    Gen. No. 34,865.
    Heard in the first division of this court for the first district at the February term, 1931.
    Opinion filed March 23, 1931.
    William A. Rogan, for plaintiff in error; William C. Burns and R. Hamlin Petty, of counsel. John B. King and Forest A. King, for defendant in error.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Valeria Glowacki and Dr. Michael Lewinski, appellees, v. Union Bank of Chicago, appellant.
    Gen. No. 34,880.
    Heard in the first division of this court for the first district at the February term, 1931.
    Opinion filed March 23, 1931.
    Rehearing denied April 6, 1931.

      Kirkland, Fleming, Green & Martin, for appellant;. Robert N. Golding and Edward 0. Caldwell, of counsel. Arthur J. Goldberg, for appellees.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Waterloo Register Company, appellee, v. Wonder Heating & Ventilating Systems, Inc., appellant.
    Gen. No. 34,927.
    Heard in the first division of this court for the first district at the February term, 1931.
    Opinion filed March 23, 1931.
    Frank W. Steel, for appellant. No Appearance for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    John C. Carpenter and Chicago Title & Trust Company, as trustee, v. Eleanor C. Hall. North Town State Bank, receiver, appellee, v. L. Albert Stewart, appellant.
    Gen. No. 34,943.
    Heard in the first division of this court for the first district at the February term, 1931.
    Opinion filed March 23, 1931.
    Rehearing denied April 16, 1931.
    Francis A. Harper, for appellant. 'Warren Pease, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.


author: Mr. Justice Boggs

text:
    Second District.
    James McPherson, appellee, v. Rockford Public Service Company et al., appellants.
    Gen. No. 8,248.
    Heard in this court at the October term, 1930.
    Opinion filed February 4, 1931.
    Hall & Dusher, for certain appellant. Knight, Swenson & Penny, for certain other appellant. Hyer & Gill, for appellee.
   Mr. Justice Boggs

delivered the opinion of the court.


text:
    The People of the State of Illinois, defendant in error, v. George Henry, plaintiff in error.
    Gen. No. 8,243.
    Heard in this court at the October term, 1930.
    Opinion filed February 17, 1931.
    James L. McNamara, for plaintiff in error. Benjamin S. Bell, State’s Attorney, for defendant in error; Dan H. MeNeal, of counsel.
   Mr. Justice Boggs

delivered the opinion of the court.


text:
    Bert B. Tucker, appellee, v. Brady-Waxenberg Company, appellant.
    Gen. No. 8,304.
    Heard in this court at the October term, 1930.
    Opinion filed February 17, 1931.
    Murphy O. Tate, for appellant; Leo M. Tarpey, of counsel. James F. Murphy, for appellee.
   Mr. Justice Boggs

delivered the opinion of the court.


author: Mr. Justice Jones

text:
    Freeman Coleman, by his father and next friend, Earl Coleman, appellee, v. Rockford Public Service Company, appellant.
    Gen. No. 8,247.
    Heard in this court at the October term, 1930.
    Opinion filed March 5, 1931.
    Hall & Dusher, for appellant. North, Linscott, Gibboney & North and J. G. Fillmore, for appellee.
   Mr. Justice Jones

delivered the opinion of the court.


author: Mr. Presiding Justice Jett

text:
    Harry H. Baldwin for the use of Charles F. Ward, appellee, v. William W. Hixson and Stella G. Hall, appellants.
    Gen. No. 8,290.
    Heard in this court at the October term, 1930.
    Opinion filed March 17, 1931.
    North, Linscott, Gibboney & North, for appellants. Hall & Dusher, for appellee.
   Mr. Presiding Justice Jett

delivered the opinion of the court.


text:
    Fred Ehrenhart, appellee, v. Fred McGuire, appellant.
    Gen. No. 8,226.
    Heard in this court at the May term, 1930.
    Opinion filed March 17, 1931.
    Hunt & Pierson, for appellant. R. D. Robinson, for appellee.
   Mr. Justice Boggs

delivered the opinion of the court.


text:
    John P. McConnell, appellant, v. Harry O. Chambers et al., appellees.
    Gen. No. 8,305.
    Heard in this court at the October term, 1930.
    Opinion filed March 25, 1931.
    Hunt & Pierson, for appellant. R. C. Rice, for appellees.
   Mr. Presiding Justice Jett

delivered the opinion of the court.


text:
    The People of the State of Illinois, defendant in error, v. John Narowetz, Jr., plaintiff in error.
    Gen. No. 8,307.
    Heard in this court at the October term, 1930.
    Opinion filed March 25, 1931.
    Nichols, Jewett & Dahlin, for plaintiff in error. Vincent S. Lumley, for defendant in error.
   Mr. Justice Boggs

delivered the opinion of the court.


text:
    C. R. Downing, appellee, v. Rockford Cab and Driveyourself Company, appellant.
    Gen. No. 8,336.
    Heard in this court at the February term, 1931.
    Opinion filed March 25, 1931.
    Gus S. Brown, for appellant. Large & Reno, for appellee.
   Mr. Justice Boggs

delivered the opinion of the court.


text:
    Minnie A. McMullen, appellant, v. Sam Fotna, appellee.
    Gen. No. 8,253.
    Heard in this court at the October term, 1930.
    Opinion filed March 25, 1931.
    Arthur A. Lowry, for appellant. Adsit, Thompson & Herr, for appellee.
   Mr. Justice Jones

delivered the opinion of the court.


text:
    J. B. Whitehead, appellee, v. William Anderson and H. O. Swanson, appellants.
    Gen. No. 8,263.
    Heard in this court at the October term, 1930.
    Opinion filed March 25, 1931.
    Large & Reno and W. J. Berry, for appellants. Welsh & Welsh, for appellee.
   Mr. Justice Jones

delivered the opinion of the court.


author: Mr. Presiding Justice Shurtleff

text:
    Third District.
    Henry H. Rockwell et al., appellees, v. Federal Life Insurance Company, appellant.
    Gen. No. 8,450.
    Heard in this court at the October term, 1930.
    Opinion filed January 26, 1931.

      Jones, Melntire & Jones, for appellant. Alfred A. Johnson, for appellees.
   Mr. Presiding Justice Shurtleff

delivered the opinion of the court.


text:
    Walker-Broderick, Inc., plaintiff in error, v. Annie Berkson and Saretta B. Cohen, defendants in error.
    Gen. No. 8,454.
    Heard in this court at the October term, 1930.
    Opinion filed January 26, 1931.
    Hrion, Drueker, Reiehmann & Boutell and L. 0. Williams, for plaintiff in error; L. O. Williams, of counsel. George J. Smith and Herrick & Herrick, for defendants in error.
   Mr. Presiding Justice Shurtleff

delivered the opinion of the court.


text:
    Mamie C. Haworth, appellee, v. Okaw Provident Relief Association, appellant.
    Gen. No. 8,456.
    Heard in this court at the October term, 1930.
    Opinion filed January 26, 1931.
    Geo. B. Rhoads, for appellant. Ward & Pugh, for appellee.
   Mr. Presiding Justice Shurtleff

delivered the opinion of the court.


text:
    Robert Marion, a minor, by Emma Marion, his next friend, appellee, v. Allith Prouty Company, appellant.
    Gen. No. 8,471.
    Heard in this court at the October term, 1930.
    Opinion filed January 26, 1931.
    Reariek & Meeks, for appellant. Hutton & 'Clark and Graham & Dysert, for appellee.
   Mr. Presiding Justice Shurtleff

delivered the opinion of the court.


text:
    Corbett Jewelry Company, appellee, v. Benjamin E. Patton, appellant.
    Gen. No. 8,478.
    Heard in this court at the October term, 1930.
    Opinion filed January 26, 1931.
    Earl S. Hodges, for appellant. G. G. Ginnaven, for appellee.
   Mr. Presiding Justice Shurtleff

delivered the opinion of the court.


author: Mr. Justice Eldredge

text:
    G. L. Garrett, administrator of the estate of Lulu E. Garrett, deceased, appellant, v. Pennsylvania Railroad Company, appellee.
    Gen. No. 8,452.

      Heard in this court at the October term, 1930.
    Opinion filed January 26, 1931.
    Raymond G. Real, for appellant. Fordyee, Holliday & White, Craig & Craig and E. C. Hartman, for appellee.
   Mr. Justice Eldredge

delivered the opinion of the court.


text:
    Arlene Rugel, appellee, v. Steve Kuznik, appellant.
    Gen. No. 8,458.
    Heard in this court at the October term, 1930.
    Opinion filed January 26, 1931.
    L. M. Harlan and Jesse Peebles, for appellant. Snell & Seyfrit, for appellee.
   Mr. Justice Eldredge

delivered the opinion of the court.


text:
    Alma Williams, administratrix of the estate of Calvin Williams, deceased, appellee, v. Schulze Baking Company, appellant.
    Gen. No. 8,470.
    Heard in this court at the October term, 1930.
    Opinion filed January 26, 1931.
    Hoff & Hoff, for appellant. Joseph A. Londrigan and James E. Londrigan, for appellee.
   Mr. Justice Eldredge

delivered the opinion of the court.


author: Mr. Justice "Eldredge

text:
    Clarence F. Spence, a minor, by Frank R. Spence, his father and next friend, appellee, v. George C. Moser, appellant.
    Gen. No. 8,473.
    Heard in this court at the October term, 1930.
    Opinion filed January 26, 1931.
    Oscar J. Putting, for appellant. Doyle, Sampson & Giffin, for appellee; C. Terry Lindner and A. F. Newkirk, of counsel.
   Mr. Justice "Eldredge

delivered the opinion of the court.


text:
    Charles H. Werner, appellant, v. Henry Fraase and Edward Fraase, appellees.
    Gen. No. 8,489.
    Heard in this court at the October term, 1930.
    Opinion filed January 26, 1931.
    Stevens & Herndon, for appellant; Benj. S. DeBoiee, of counsel. Carey E. Barnes, for appellees.
   Mr. Justice Eldredge

delivered the opinion of the court.


author: Mr. Justice Niehaus

text:
    Lola B. Swetman, plaintiff in error, v. Mary H. Arnold, defendant in error.
    Gen. No. 8,448.
    Heard in this court at the October term, 1930.
    Opinion filed January 26, 1931.
    S. H. Cummins, for plaintiff in error. A. M. Fitzgerald and H. C. Moore, for defendant in error.
   Mr. Justice Niehaus

delivered the opinion of the court.


text:
    Mt. Pulaski Auto Company, Inc., appellant, v. Cordia Starr, appellee.
    Gen. No. 8,487.
    Heard in this court at the October term, 1930.
    Opinion filed January 26, 1931.
    George J. Smith and Harold F. Trapp, for appellant. B. A. Tyler, for appellee.
   Mr. Justice Niehaus

delivered the opinion of the court.


author: Mr. Presiding Justice Barry

text:
    Fourth District.
    Clyde Spencer et al., appellees, v. Alton Railway Company, appellant.
    Heard in this court at the October term, 1930.
    Opinion filed January 19, 1931.
    Williamson, Burroughs & Simpson and James L. Reed, for appellant. Virgil M. Jacoby, for appellees.
   Mr. Presiding Justice Barry

delivered the opinion of the court.


text:
    George S. Reinhardt et al., appellants, v. Community High School District No. 68 in St. Clair County, Illinois, appellee.
    Heard in this court at the October term, 1930.
    Opinion filed January 19, 1931.
    P. K. Johnson, for appellants. F. E. Merrills, for appellee.
   Mr. Presiding Justice Barry

delivered the opinion of the court.


author: Mr, Justice Fulton

text:
    Kelly Brothers Lumber Company, appellee, v. Christiana Oehler, appellant.
    Heard in this court at the October term, 1930.
    Opinion filed January 19, 1931.
    M. J. O’Shea and C. S. Miller, for appellant. Asa J. Wilbourn, for appellee.
   Mr, Justice Fulton

delivered the opinion of the court.


author: Mr. Justice Pulton

text:
    W. S. Lawrence, appellee, v. James M. Tully, appellant.
    Heard in this court at the June term, 1930.
    Opinion filed January 19, 1931.
    Smith & .Smith, for appellant. Virgil W. Mills, for appellee.
   Mr. Justice Pulton

delivered the opinion of the court.


author: Mr. Justice Wolfe

text:
    City of East St. Louis, appellee, v. East St. Louis Railway Company, appellant.
    Heard in this court at the October term, 1930.
    Opinion filed January 19, 1931.
    Parmer & Klingel, for appellant. Maurice V. Joyce, for appellee.
   Mr. Justice Wolfe

delivered the opinion of the court.


text:
    W. B. Kirkham, appellee, v. Olive Branch Mineral Products Company, appellant.
    Heard in this court at the October term, 1930.
    Opinion filed January 19, 1931.
    C. S. Miller, for appellant. D. B. Beid, for appellee.
   Mr. Justice Wolfe

delivered the opinion of the court.


text:
    Leo F. Wagner, appellee, v. Louis W. Buecher, appellant.
    Heard in this court at the October term, 1930.
    Opinion filed January 19, 1931.
    Kramer, Kramer & Campbell and B. E. Costello, for appellant. Preston K. Johnson, for appellee.
   Mr. Justice Wolfe

delivered the opinion of the court.


author: Me. Justice McSukbly

text:
    Lillian F. Carelin, Appellant, v. John E. Traeger, Appellee.
    Gen. No. 34,949.
    Opinion filed March 23, 1931.
    Gsossbebg, Lyou & Brill, for appellant.
    No appearance for appellee.
   Me. Justice McSukbly

delivered the opinion of the court.

By this appeal plaintiff seeks the reversal of a judgment which dismissed her replevin suit for failure to file a declaration within the time provided by statute. Defendant does not appear in this court.

Plaintiff filed her affidavit for replevin August 7, 1930. The replevin writ was directed to the coroner of Cook county, the property being then held by the defendant, John E. Traeger, sheriff of Cook county. The record does not show any service of process upon the defendant or any return by the coroner of this writ. Indorsed on the back of the writ is a receipt of the goods from the sheriff signed by plaintiff by her attorneys. Defendant entered his appearance on September 5,1930, and subsequently filed pleas. There was no rule upon the plaintiff to file her declaration. November 8, 1930, on motion of defendant’s attorney leave was given to withdraw the pleas and on like motion plaintiff’s suit was dismissed for failure to file a declaration within the statutory time.

Plaintiff in this court makes the point that the order must be reversed for the reason that, there being no service on defendant and no return of the writ and no rule having been obtained on plaintiff to file a declaration, defendant was not entitled to have the suit dismissed for failure to file a declaration. We are of the opinion that this point must be sustained under the authority of Waidner v. Pauly, 141 Ill. 442, where the court said:

“Section 17 of the Practice Act provides, that ‘if no declaration shall be filed ten days before the second term of court, the defendant shall be entitled to a judgment as in case of a non-suit.’ We decided in Herring v. Quimby et al., 31 Ill. 153, that the term of court contemplated by the statute is that at which the defendant is served. Before the defendant is brought into court he cannot be required to plead to the action, and no useful purpose could be served by apprising the defendant of the plaintiff’s ground of action when he could not be required to plead. The rights of the parties should be reciprocal. As a general rule of practice, a party in court cannot force his adversary to act until he is himself in a condition to be forced to proceed. Hooper et al. v. Smith, 19 Ill. 53; Smith v. Wilson, 26 id. 188; Lehman v. Freeman, 86 id. 208. ...

“If the defendant in this case had desired a speedy trial, he undoubtedly might have entered his appearance and taken rule upon the plaintiff to file his declaration. He would then have been subject to the orders of the court. As long as the defendant is not disturbed by the service of process, and placed in a position where he may be proceeded against, he can have no just cause of complaint of the failure of the plaintiff to prepare for trial. We think that the correct construction of the statute was given in Herring v. Quimby, supra.

If defendant desired a speedy trial he could have filed his appearance and then asked for a rule upon the plaintiff to file a declaration. This was not done.

Section 17 of the Replevin Act, Cahill’s St. ch. 119, if 17, provides that declarations in replevin may be filed in like manner as other declarations. Section 32 of the Practice Act, Cahill’s St. ch. 110, if 32, provides for the filing of declarations within 10 days before the term at which the summons is made returnable, and if it is not filed 10 days before the second term of the court the defendant shall be entitled to a judgment, provided that in replevin suits plaintiff may be required to file his declaration at the first term. This indicates that the proper practice, where the defendant who has not been served with summons desires a speedy trial, is for him to obtain a rule on the plaintiff to file a declaration.

We hold that the judgment dismissing the case for want of a declaration was improperly entered, and the judgment is therefore reversed and the cause remanded.

Reversed and remanded.

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


author: Mr. Justice McSurely Matchett, P. J., and O’Cohhor, J.,

text:
    Chester Nelson, Appellee, v. Evanston Railway Company, Appellant.
    Gen. No. 34,988.
    Opinion filed March 23, 1931.
    McCulloch & McCulloch, for appellant; Grover C. McLaren and Louis C. Murtaugh, of counsel.
    Earl J. Walker, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.

Plaintiff brought suit to recover damages for personal injuries against the Evanston Railway Company (hereafter called defendant) and the City of Evanston and had a verdict against them jointly for $1,500. While, a motion for new trial was pending the City of Evanston paid the plaintiff $500, receiving a covenant not to sue and it was dismissed. Plaintiff remitted $500 from the verdict and judgment was entered against the Railway Company, the remaining defendant, for $1,000, from which it appeals.

The accident happened about 8:30 o’clock in the evening of January 2, 1929', at the intersection of Central Street and Ashland Avenue in Evanston. Der fendant operates street cars on a double track on Central Street, which runs east and west. Plaintiff was approaching Central Street from the south on the west side of Ashland Avenue and was struck by an eastbound street car at the southwest corner of the intersection. Plaintiff’s theory was that the City of Evanston had negligently built a piece of sidewalk north extending across the parkway to the curb on Central Street on such a decline that it was unsafe for pedestrians and that the Railway Company negligently operated its car both as to speed and in not stopping in time to avoid a collision with the plaintiff. Defendant asserts it was guilty of no negligence and that plaintiff’s injury resulted from his own negligence.

On the night in question the streets and walks were covered with ice and there was about half an inch of snow covering the ice. A street car had been derailed near the west end of the line on Central Street, blocking traffic and causing delay, so that the cars were about 20 minutes behind schedule. The car involved in the accident started eastward more than 20 minutes late, followed by the other cars. It picked up passengers for a time and when it had a full load the conductor, noticing other cars behind, directed the motorman to skip stops so as to divide the waiting passengers. The motorman, complying with this direction, passed the street west of Ashland and as he approached Ashland he noticed a woman waiting for the car and sounded the gong to indicate that his car would not stop. He also noticed the plaintiff running on the west side of Ashland approaching Central Street.

Plaintiff was a student at Northwestern University. He had been calling on a friend, Miss Kathryn Kean, who lived on Ashland about half a block south of Central. Another couple was in the party. The four young people concluded that they would go to a picture show and for this purpose walked northward on the west side of Ashland, intending to take an eastbound street car on Central. There was a vacant lot at the southwest corner of the street intersection. When the party had passed the last house on the block and was about 80 feet south of Central, they saw the eastbound car at the next corner west; when it was about the middle of the block plaintiff left the party and, as he said, “trotted” towards Central in order to have the car stop at Ashland. Between the sidewalk on Central Street and the south curb of the street is a space of about 7 feet which is constructed on a decline towards the street of about 10 inches. The distance from the north edge of this decline to the south rail of the eastbound tracks is 12 feet. Plaintiff testified that, • not observing this slope, he continued running, but because of his momentum and the slippery condition of the street and the decline could not stop and ran into the street car at its forward southeast corner and was thrown back against the curb, breaking his leg.

Plaintiff testified that when he reached the decline he was sliding so fast that, if he had fallen, he would have slid clear under the street car, but that he kept to his feet but was still sliding when he struck the car; that he noticed the street car coming all the way from the street to the west and he knew it was approaching Ashland going fast. He testified that he had frequently visited his friend, Miss Kean, at her home on Ashland Avenue and had boarded the street car at this point about 18 times and was familiar with the surroundings. He had walked across this particular piece of sidewalk at least nine times. At this time he did not pay any particular attention to the sidewalk or decline. In answer to the question as to whether he was going so fast that he could not stop, plaintiff replied that, when he hit the decline he felt reasonably sure that he could stop any moment; that when he started to slide he braced his feet and tried to stop but could obtain no footing on the smooth ice.

The motorman testified that it was icy all around and very slippery; that he was traveling about 15 miles an hour. A witness named Bokelkamp, who was following the street car in his automobile, gave his opinion that the street car was going about 30 miles an hour, although the defendant’s engineer testified that the street car was geared to go 25 or 27 miles an hour at the highest speed on a level track under the best conditions after a long start. Bokelkamp says that before the accident happened he did not pay any attention to the car speeds; that he himself was traveling at a safe rate of speed; that when he saw the plaintiff start to slide down the decline the street car was just 1 ‘getting to the lady standing there”; that she was standing where the rear steps customarily stop; this would be less than a car length west of the crosswalk and the length of the car is 30 feet.

Plaintiff argues that it was negligence on the part of the motorman in failing to stop the car after he saw that plaintiff was sliding down the decline towards the tracks. If plaintiff lost control of himself and started to slide down when the car was only 30 feet west of the crosswalk and going at the rate of 30 miles or even at 15 miles an hour, in order to have avoided colliding with plaintiff it would have been necessary for the motorman to stop the car almost instantly, which was not possible. Plaintiff testified that when he got to the curb or 12 feet from the street car track, the street car was two or three car-lengths away. "Even at this distance it would have been almost if not quite impossible to stop before the collision with plaintiff. The witnesses testified that the interval of time between the plaintiff reaching the decline and striking the car was momentary. It follows from these and other circumstances that the motorman could not have foreseen any perillo the plaintiff until he reached the decline or very near to it, and that from that time until plaintiff struck the street car the motorman could not have stopped the car in time to avoid the accident. Negligence in the operation of the car was not proven.

We are also of the opinion that plaintiff was guilty of contributory negligence. Knowing that the ground was slippery, he moved rapidly to catch the car without considering the slippery walk or decline, and when he. struck the decline he was unable to stop on its slippery surface and ran into the car. The car was in plain view of plaintiff and he knew it was coming fast, but his momentum was so great that it carried him down the decline 7 feet and over a 5-inch curb and a further distance of 12 feet which inclined upward to the car line. The conclusion is inevitable that it was plaintiff’s own carelessness in going fast on a slippery street, where the conditions were such that in the exercise of due care he should have known that he was likely to lose control of himself as he approached the track of the oncoming street car.

Cases involving somewhat similar circumstances are Rack v. Chicago City Ry. Co., 173 Ill. 289; Morgan v. New York Cent. R. Co., 327 Ill. 339; Lovenguth v. City of Bloomington, 71 Ill. 238; Cole v. City of East St. Louis, 158 Ill. App. 494; Welch v. Chicago City Ry. Co., 208 Ill. App. 161; Van Meter v. Chicago Rys. Co., 240 Ill. App. 371. In our opinion all reasonable minds would agree that the conduct of plaintiff under the circumstances was negligence resulting in the accident. The judgment will, therefore, be reversed with a finding of fact.

Beversed with a finding of fact.

Matchett, P. J., and O’Cohhor, J.,

concur.

Finding of fact: We find that the accident in question with resulting injuries to plaintiff was caused by his own negligent conduct directly contributing thereto.


text:
    Brennan Construction Company, Plaintiff in Error, v. Henry A. Blair et al., Trading as Chicago Surface Lines, Defendants in Error.
    Gen. No. 34,501.

      Opinion filed March 23, 1931.
    John A. Bloomingston, for plaintiff in error.
    Brown, Fox & Blumberg, for defendants in error; Frank L. Kribte, Charles LeBoy Brown and Charles L. Mahony, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.

Plaintiff brought an action against the defendants to recover $4,350, which amount it claimed it had been ordered to pay as compensation under the Workmen’s Compensation Act, to the dependents of one of its employees, who had been killed through the claimed negligence of defendants’ servants. A general demurrer was filed to the declaration which was in two counts; the demurrer was sustained, the suit dismissed at plaintiff’s costs and it appeals.

Plaintiff’s right to recover is based on the provisions of section 29 of the Workmen’s Compensation Act, Cahill’s 1929 Statutes, ch. 48, If 229, page 1295. The question for decision is, Did the declaration state a cause of action? The substance of the allegations of the declaration is that on June 2,1927, plaintiff was a corporation employing men and the defendants were corporations operating street cars in Chicago; that plaintiff, its employees and the defendants were all under the Workmen’s Compensation Act; that plaintiff was engaged in construction work and that Louis Priori, one of its employees, on the day in question was engaged in digging a trench in the street near 15th and Halsted Streets, Chicago; that there was a wheelbarrow standing in the street near the trench and defendants’ street car tracks; that one of defendants’ street cars struck the wheelbarrow and threw it with great force against Priori, injuring him so severely that he died the same day; that Priori was at all times in the exercise of due care for his own safety and that the defendants, in the operation of the street car, were negligent in failing to observe that the car would come in contact with the wheelbarrow; that Priori left as his surviving dependents his widow and three children aged 8, 13 and 15 years respectively, who were deprived of Priori’s support and were therefore entitled to compensation under the Workmen’s Compensation Act; that Priori’s injuries arose out of and in the course of his employment, while he was engaged in his work for the plaintiff company; that immediately after Priori’s death his dependents notified plaintiff and made a claim against plaintiff under the Compensation Act, and that afterwards, on or about August 24, 1927, an order was entered ordering plaintiff to pay to Priori’s dependents $4,350 in weekly instalments of $18; that Priori’s death resulted through no fault of the plaintiff and through the sole negligence of the defendant street car companies.

Counsel for plaintiff in his briefs says that the learned trial judge sustained the demurrer to plaintiff’s declaration on the sole ground that there was no allegation in the declaration that an administrator or executor had been appointed for Priori’s estate.

Section 29" of the Workmen’s Compensation Act, Cahill’s St. ch. 48, If 229, so far as it is pertinent here, provides that “Where an injury or death for which compensation is payable by the employer under this Act, was not proximately caused by the negligence of the employer or his employees, and was caused under circumstances creating a legal liability for damages in some person other than the employer to pay damages, . . . then the right of the employee or personal representative to recover against such other person shall be subrogated to his employer and such-employer may bring legal proceedings against such other person to recover the damages sustained in an amount not exceeding the aggregate amount of compensation payable under this Act, by reason of the injury or death of such employee.”

And the position of the defendants is that since plaintiff’s right of action depends upon the provisions of section 29 above quoted, and since there was no allegation in the declaration that a personal representative of Priori’s estate had been appointed, then the declaration did not state a cause of action; that the cause of action to which plaintiff would be subrogated was the cause of action, if any, that was in the personal representative of the deceased, and there being no personal representative there was no canse of action to which plaintiff could be subrogated. We think this contention cannot be sustained. The Compensation Act provides that where compensation is payable under the Act, “No common law or statutory right to recover damages for injury or death sustained by any employee while engaged in the line of his duty” shall be available to any employee or the legal representative of his estate to recover damages. (Cahill’s St. ch. 48, ¶ 206.) Under this section there was no common law or statutory right of action that could be maintained by Priori’s representative. That right which is given by the Injuries Act is abolished. Moreover, section 7 of the Compensation Act, Cahill’s St. ch. 48, ¶ 207, fixes the amounts to be paid, and paragraph (g) of that section provides that compensation which is to be paid for injury which results in death “shall be paid to the persons who form the basis for determining the amount of compensation.”

There are other provisions of the Act which provide for a hearing before the Industrial Board. The Act creates the right to compensation and points out the procedure to be followed, and this does not include any action in any court. The right of a personal representative to recover for the wrongful death as provided in the Injuries Act being abolished where compensation is payable under the Compensation Act, there is no necessity for the appointment of a personal representative of the deceased. There is nothing for such a representative to do in case one were appointed, and it. is elementary that the law never requires the doing of a useless act. In the instant case, plaintiff having been required to pay compensation for the death of Priori, is subrogated to all the rights which Priori or his estate might'have had against the defendants.

The defendants further contend (1) that Priori was not an “employee” within the meaning of the Compensation Act; (2) that there are no facts alleging that Priori’s fatal injury arose out of his employment; (3) that the declaration fails to allege that compensation was payable because there is no allegation that Priori’s death resulted from or was caused by his injury; (4) that there was no allegation that the amount of compensation had been fixed and determined; (5) that plaintiff’s claim having been brought under a claim of subrogation by operation of law, there must be a compliance with section 18 of the Practice Act, which requires that plaintiff must set forth on oath that he is the bona fide subrogee and how and when he became such; (6) that there is no allegation that Priori’s injury was not proximately caused by the negligence of some employee of plaintiff; (7) that there was no allegation that defendants committed any actionable ■ tort" operating as the proximate cause of Priori’s injury.

We think none of these contentions can be sustained. Although the allegations of the declaration are not as specific in some instances as they might have been, yet we think on general demurrer they sufficiently state a cause of action. Any lack of the allegations being specific might have been cured by amendment had the specific objection been urged. And plaintiff’s contention that the court sustained the demurrer for the sole reason that there was no allegation of the appointment of a personal representative of Priori, is not controverted in defendants’ brief.

The term “employee” is defined in the Act to mean “Every person in the service of another under any contract of hire, express or implied, oral or written.” And the Act further provides that in case of injury or death, compensation is payable only where the injury or death arose out of, or in the course of, the employment.

In the instant case the declaration alleges, in substance, that Priori was working for the plaintiff in digging a trench in the street when he was fatally injured. We think this sufficiently alleges that Priori was an employee of plaintiff and that fatal injury arose out of, and in the course of, his employment. And we think it also appears from the declaration that Priori’s death resulted from his injury. It is alleged that a street car struck the wheelbarrow throwing it with great force against Priori, by means of which he was so injured that he died on the same day. We think it also appears that the amount of compensation was fixed and determined because it is alleged that an order was entered directing plaintiff to pay $4,350 in weekly instalments and that thereafter it proceeded to pay these instalments to Priori’s dependents.

We think section 18 of the Practice Act is not applicable to the instant case. C. J. DeWit & Co. v. Central Lime & Cement Co., 250 Ill. App. 161. The Workmen’s Compensation Act expressly provides that under the facts alleged plaintiff is entitled to maintain an action against the defendants for negligently causing the death of Priori, as a result of which plaintiff was required to pay compensation to Priori’s dependents. There was no necessity for plaintiff to set forth on oath that it was the bona fide subrogee as provided in section 18; that section does not apply to compensation cases. It has been held that the right of an employee who is injured through the fault of a third person is “transferred” to the employer who has paid the employee compensation, rather than that the employer is subrogated to such right. Friebel v. Chicago City Ry. Co., 280 Ill. 76.

For the reasons stated the judgment of the superior court of Cook county is reversed and the cause is remanded with directions to overrule the demurrer.

Reversed and remanded with directions.

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


author: Mr. Justice O’CourroR

text:
    Konstanty Skrodzki, Appellee, v. Sherman State Bank, Appellant.
    Gen. No, 34,684.
    Opinion filed March 23, 1931.
    Rehearing denied April 6, 1931.

      Joseph F. Elward, for appellant.
    James Percival Pio, for appellee.
   Mr. Justice O’CourroR

delivered the opinion of the court.

Plaintiff brought an action against the defendant to recover damages claimed to have been sustained by him by reason of the fraud and deceit of the defendant in selling to plaintiff gold mortgage bonds of the face value of $800, fraudulently representing to plaintiff that payment of the bonds was secured by a first mortgage on real estate when, as a matter of fact, the mortgage securing the payment of the bonds was a second lien on real estate, and that the bonds were practically worthless. There was a trial before a judge and a jury, and a verdict and judgment in plaintiff’s favor for $1,006.84, being the full amount of his claim, and the defendant appeals.

The case went to trial on the second count of the amended declaration. The substance of this count is that on July 25, 1921, the Polonia Soap Company, an Illinois corporation, executed its trust deed conveying certain real estate in Cook county to secure the payment of an issue of $250,000 of bonds which, by their terms, purported to be a first lien on the property; that the defendant bank, intending to defraud plaintiff, fraudulently represented that the bonds were secured by a first mortgage and offered to sell some of the bonds to plaintiff; that on July 15, 1922, plaintiff purchased bonds of the face value of $600 and on August 10, 1922, other of the bonds of the face value of $200; that the representation made by the defendant, that the payment of the bonds was secured by a first mortgage on the real estate, was knowingly false, and that the defendant, at the time of the sale, knew the bonds were secured by a junior mortgage on the property.

To the declaration defendant filed a plea of the general issue and a plea of the statute of limitations of five years, to which plea plaintiff filed a replication averring’ that the defendant fraudulently concealed from the plaintiff the fraud which constituted plaintiff’s cause of action until within less than five years before the commencement of the suit and the filing of the second amended count. The replication then set up that defendant fraudulently concealed the fact from plaintiff that the payment of the bonds was secured by a second mortgage, but, on the contrary, falsely represented that they were secured by a first mortgage on real estate in Cook county. It further set up that on January 25 and July 25 of each year, as the semiannual interest became due on the bonds, the defendant, well knowing that the payment of the bonds was not secured by a first mortgage, paid or caused to be paid, the semiannual interest until July 25, 1925, at about which time the plaintiff learned that the payment of the bonds was secured by a second mortgage. The defendant’s demurrer to the replication was overruled and it then filed a rejoinder denying any fraudulent concealment of plaintiff’s alleged cause of action and denying that it represented to plaintiff that the payment of the bonds was secured by a first mortgage.

The evidence tends to show that July 25, 1921, the Polonia Soap Company, a corporation, made a $250,000 issue of bonds secured by a mortgage on real estate in Cook county. The bonds on their face stated that they were secured by a first mortgage on buildings, machinery and equipment located in Chicago. These bonds were not first mortgage bonds but were secured by a junior mortgage, there being a first mortgage of $28,000 against the property. In July, 1921, Bruno Kowalewski was president of the soap company and also president of the defendant bank, which was incorporated in 1921. In July and August, 1922, plaintiff, who had theretofore done business with Kowalevski while he was running a private bank, had a savings account with the defendant bank, and he approached a clerk of the bank in the cashier’s cage and inquired about the purchase of some bonds. The clerk or teller told plaintiff of the soap company bonds and stated that they were secured by a first mortgage and were as good as gold. Thereupon plaintiff drew the money out of his savings account and paid face value for the bonds, receiving a receipt from the bank for the money he had paid. Afterwards, as the semiannual interest came due on the bonds, plaintiff went to the bank with them, presented them to some officer or employee of the bank and received payment until about 1925, when it was discovered that the bonds were secured by a second mortgage on the property. There was a foreclosure suit of the first mortgage, to which plaintiff here was a defendant and proved up his bonds before the master, and on the sale of the property received his proportionate share of the proceeds, which was about $13.

The defendant contends that under the statute of this State it was not authorized to buy and sell bonds such as the ones in suit, and that even if it be held to have sold the bonds in the instant case to plaintiff, its action in doing so was ultra vires and void. We think the contention cannot be sustained because there is no evidence in the record as to how the bonds came to the bank. Obviously, banks are authorized to loan money and to accept bonds as collateral security, and if the bonds in question became the property of the bank through such a transaction, obviously it had the right to sell them. We think the burden was on the bank to show, if it could, that the sale was unauthorized. This it failed to do.

The defendant further contends that plaintiff’s cause of action was barred by the statute of limitations of five years. We think this contention must he sustained and the defendant’s motion, at the close of all the evidence for a directed verdict in its favor, should have been allowed because all of the evidence is to the effect that the defendant did not, within the meaning of the law, fraudulently conceal from plaintiff his cause of action. Keithley v. Mutual Life Ins. Co., 271 Ill. 584. The only evidence in the instant case as to the alleged fraudulent concealment by the defendant is that in the perpetration of the fraud when the bonds were sold to plaintiff the defendant said that the bonds were secured by a first mortgage and the fact that it paid interest coupons semiannually to the plaintiff as they became due. These facts do not constitute a fraudulent concealment of plaintiff’s cause of action within the meaning of the statute. Keithley v. Mutual Life Ins. Co., supra.

Both parties assume that the statute of limitations of five years would bar the action, but plaintiff contends that the statute did not commence to run until he discovered the fraud and that he brought his suit within five years thereafter. In support of plaintiff’s contention he relies on section 22 of the statute of limitations, Cahill’s St. ch. 83, f 23, which provides that “If a person liable to an action fraudulently conceals the cause of such action from the knowledge of the person entitled thereto, the action may be commenced at any time within five years after the person entitled to bring the same discovers that he has such cause of action, and not afterwards.” In passing on this section the Supreme Court in the Keithley case said (p. 592): “that mere silence of the defendant is not sufficient. The appellant’s contention is that the Statute of Limitations has no application to causes of action arising out of fraudulent representations made by the defendant until the discovery of the fraud by the plaintiff, even though the defendant has made no effort to conceal the fraud other than the representations by which it was originally accomplished. . . .

“The language of the statute is positive in its requirement that all civil actions not otherwise provided for (among which this is included) shall be commenced within five years after the cause of action accrued. There is no exception of causes of action originating in fraud. ’ ’ The court then discusses a number of authorities decided in this State before and after the enactment of section 22, and continuing said (pp. 594r-5): ‘ ‘ The doctrine announced in these decisions is, that the fraudulent concealment of a cause of action which will prevent the running of the Statute of Limitations must be some affirmative act or representation intended to prevent the discovery of the cause of action, which does actually prevent such discovery; that a replication setting up such fraudulent concealment must set out “the facts, constituting the concealment; that the fraudulent misrepresentations which form the basis of the cause of action do not constitute a fraudulent concealment in the absence of allegations of acts or representations tending fraudulently to conceal the cause of action.” The court then discusses the case of Bailey v. Glover (21 Wall. 342), and a number of other authorities.

The Keithley case was an action of fraud and deceit, the basis of which was that the defendant insurance company sold to plaintiff for a valuable consideration a policy of insurance, by the terms of which the defendant agreed to distribute and pay to plaintiff, at the end of 20 years, certain sums of money determinable on the amount of the surplus of the insurance company at the end of the 20-year period, etc., and that the defendant agreed to pay the plaintiff at the end of the period $6,000, and it was contended that the representations were fraudulent and that the fraud was concealed by the acceptance of the insurance company from plaintiff of the annual premiums, and that this acceptance prevented the statute from running. In passing on this question the court said (p. 599): “The appellant suggests that each annual acceptance of the premium by the appellee was a continuance of the initial fraud. The case of Schoolfield v. Prudential Saving Life Ins. Society, 158 Ky. 687, answers this contention. That case was an action for fraudulent representations as to what the value of the plaintiff’s policy would be at its maturity. In regard to the contention just referred to, the court said: ‘We do not think the payment of the annual premiums had the effect of suspending the running of the statute as long as they were paid or until the company refused to perform the written contract as it was represented by the agent. It was the representations of the agent, and not the payment or receipt of the premiums, that, constituted the fraud complained of. The premiums paid were those that the contract provided for, and the agent did not attempt to make any representations concerning them, except to say that if they were paid as stipulated in the written contract the insured would receive certain benefits in excess of those provided for in the written contract.’ ” See also Ramsey v. Child, Hulswit & Co., 198 Mich. 658. In the instant case we are of the opinion that under the rule of law as announced in the Keithley case, the payment of the semiannual interest to plaintiff by the bank did not toll the running of the statute.

There is another reason why the judgment cannot stand, and that is, that the judgment is excessive. Plaintiff recovered the full face value of the bonds, although the only charge of fraud in the declaration was that the defendant fraudulently represented that the issue of $250,000 bonds was secured by a first mortgage on the real estate when, as a matter of fact, there was a $28,000 mortgage which was a first lien on the property. It is not charged in the declaration that the defendant fraudulently represented that the property on which the mortgage was given was ample to secure the payment of the bonds, but, as stated, the only charge is that the mortgage securing the $250,000 bond issue was a first lien on the property. And the only evidence of the value of the property covered by the mortgage is that it was purchased shortly before the issuance of the bonds in question for $48,000, on which there was a payment of $20,000, leaving a balance due, secured by a first mortgage, of $28,000.

Under these facts it was obvious that plaintiff was not defrauded the .full amount of his claim by reason of the charge in the declaration.

The judgment of the circuit court of Cook county is reversed and the cause is remanded for further proceedings not inconsistent with the views herein expressed.

jReversed and remanded.

Matchett, P. J., and McSitrely, J., concur.


text:
    Percy Wilson, Appellant, v. Howard L. Bodamer et al., Appellees.
    Gen. No. 34,918.

      Opinion filed March 23, 1931.
    Foreacan, Bluford, Krinsley & Schultz and William J. Ryan, for appellant; Owen Rall, of counsel.
    Harry D. Irwin, for appellees; John M. Byrne, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.

Plaintiff brought suit against the defendants to recover $5,639.55 claimed to be due on account of instalments and interest under the terms of a written contract entered into between plaintiff and defendants for the sale and purchase of three lots located in Cook county, Illinois. After defendants had filed a number of affidavits of merits and set-offs, which had been successively stricken on motion of plaintiff, and each time the defendants had been given leave to file an amended affidavit of merits and set-off, defendants moved the court for leave to withdraw their affidavit of merits and set-off last filed by them, the motion was allowed and thereupon defendants moved to strike plaintiff’s statement of claim on the ground that it was insufficient as a matter of law upon which to predicate liability. The motion- was allowed, the statement of claim was stricken, the suit dismissed at plaintiff’s costs, and this appeal followed.

The only question for decision is whether the written contract entered into between plaintiff and defendants for the sale and purchase of the real estate was a valid and binding obligation, plaintiff contending that it is valid and binding and defendants contending to the contrary, claiming that the contract “is void for want of mutuality,” for the reason as stated by their counsel, that “the contract upon its face showed that it was made on behalf of certain undisclosed principal or principals who did not appear as a party to the contract.”

The document which plaintiff contends is a valid and binding contract, and which is the basis of plaintiff’s suit, by its terms is between “Percy Wilson, as Trustee under Trust Agreement dated March 1, 1927, hereinafter called the Vendor, and Howard L. Bodamer, Walter T. Holm and Wilbert A. G-nadt, 2215 Estes Avenue, Chicago, Illinois, hereinafter called the Purchaser.” It then provides that if the purchasers shall first make the payments mentioned, etc., the vend- or Will convey the three lots in fee simple by a good and sufficient warranty deed and the purchasers covenanted and agreed to pay the vendor $46,550' in a manner specified. The deed was to be delivered by the vendor when 60 per cent of the purchase price had been paid. The document is signed, “Percy Wilson Trustee as aforesaid” and by the three purchasers.

Plaintiff’s contention, as set up in the statement of claim, and which is admitted by the defendants’ motion to strike, is that there were certain instalments due and unpaid, and it is conceded by both parties that defendants had not paid 60 per cent of the purchase price, and therefore the time for the delivery of the deed had not arrived.

One of the contentions made by defendants is that “the test of the mutuality of said contract was whether the defendants would be able to compel specific performance of it in equity and obtain a good and sufficient deed to said real estate”; and that this could not be done unless the defendants first obtained “affirmative equitable relief . . . against said undisclosed principals having such equitable interest; that said contract being under seal, said undisclosed principals could hot sue or be sued thereon; that, therefore, said contract was null and void. ” We think this argument is unsound. It is not essential to the validity of a contract for the sale of real estate that the grantor should have title at the time the contract is made. It is sufficient if, when the specific time arrives he is able to tender and does tender a deed as required by his contract. White v. Bates, 234 Ill. 276. And it has been held that, although a contract is under seal, suit may be brought upon it by a third person for whose benefit it is made. Webster v. Fleming, 178 Ill. 140.

The main contention of the defendants is that the contract in question shows that it was made by “Percy Wilson not as his own contract but in behalf of certain undisclosed principals subject to certain undisclosed powders and limitations of which the appellees have no knowledge. ’ ’

We think it would serve no useful purpose to analyze or discuss the numerous authorities of courts from several jurisdictions as to whether the words “as Trustee” following the name of the individual, binds him as trustee — the trust estate — or binds him individually. But we are clearly of opinion that the contract in the instant case is valid and binding. Wahl v. Schmidt, 307 Ill. 331; Austin v. Parker, 317 Ill. 348; Schumann-Heink v. Folsom, 328 Ill. 321. In the Wahl case, 307 Ill. 331, real and personal property were devised to three trustees. Part of the property of the estate was a building which the trustees leased to a tenant. A water tank had been constructed on the building, which, on account of faulty construction, fell through the roof of the building, killing one of the tenant’s employees, and it was sought to charge the estate with liability on account of the improper construction of the water tank. The court held the estate was not liable and on page 336 said: “In a court of law a trustee having the legal title to real estate, together with the right of. possession, is regarded as the owner of the property, having all the rights and subject to all the liabilities of ownership. (1 Perry on Trusts, sec. 321.) The duties of the trustee as owner make him personally liable for torts committed by him or by the agents or servants in his employ. ... A trustee is not liable in his representative capacity for an injury caused by his negligence in the management of the property held in trust. (Citing 22 R. I. 245.) . . . It was stated in that case that the law will not allow trust property to be impaired or dissipated through the negligence or improvidence of trustees.” And continuing, the court said, p. 339': “A trustee cannot create a lien on the trust estate in favor of a creditor, or charge the trust estate even by his contract, without express authority given by the instrument creating the trust. (Johnson v. Leman, 131 Ill. 609.) ...” Page 341: “An action against a trustee in his representative capacity is unknown to a court of law, for the law takes no cognizance of the trust relation or the trust estate. The trust estate can make no contract and commit no tort. If the trustee binds himself for the benefit of the trust estate the contract is his personal contract though he describes himself as trustee. He is liable to an action at law for its breach, and a personal judgment is the only judgment which can be rendered against him.”

In the Austin case, 317 Ill. 345, Austin recovered a money decree against “Harrison Parker, Seymour Stedman and George IT. Wilkins, as trustees of the Co-Operative Society of America, (a common law trust) ” and it was held that a trustee could not create a lien on the trust estate in favor of a creditor or charge the trust estate by his contract without express authority in the instrument creating the trust. The court said, pp. 353-4: “A trustee cannot create a lien on the trust estate in favor of a creditor, or charge the trust estate, even by his contract, without express authority by the instrument creating the trust. Property of the trust estate cannot be used to reimburse the trustee for expenses or losses incurred unless he has used good faith and common prudence. . . . The fact that a trustee is indemnified by the estate in this manner does not in anywise create a direct liability on the part of the trust estate for the benefit of third persons dealing with the trustee. The remedy of third persons is, in general, a remedy against the trustee, only. ... If the trustee binds himself for the benefit of the estate the contract is his 'personal contract though he describes himself as trustee. He is liable in an action at law, and a bill in equity will not lie against the trust estate in such a case, for the right of action is one not against the estate bnt against the trustee personally. ... In the absence of language in a contract by which the parties specifically agree that the third party shall look to the trust estate alone for his compensation, the word ‘trustees’ is but descriptio personae.”

In the Folsom case, 328 Ill. 321, the court said, p. 326: “It may be stated as a general proposition that anyone competent to contract may make such disposition of the legal title to his property as he pleases, may annex such conditions and limitations to its enjoyment as he chooses, and may vest it in trustees for the purpose of carrying out his intention. He has the same power to create trusts as he has to alienate the legal title to his property. ’ ’ And continuing, the court said, pp. 328-29: “The declaration of trust involved in this case created a business trust and not a partnership. This being true, the trustees had no authority to bind the cestuis que trust, because a trustee is not an agent. When a trustee contracts he does so for himself. He has no principal. The contract is the personal undertaking of the trustee, and if he wants to protect himself from individual liability on the contract he must stipulate that he is not to be personally responsible and that the other party is to look solely to the trust estate.”

Applying the law as announced in these cases, we hold that “Percy Wilson, as Trustee,” is not an agent; he has no principal, and the contract is his personal undertaking. The contract in question is a valid and binding obligation and the court erred in striking plaintiff’s statement of claim.

The judgment of the municipal court of Chicago is reversed and the cause is remanded for further proceedings not inconsistent with the views herein expressed.

Reversed, and remanded.

Matchett, P. J., and McSttrely, J., concur.