text:
    F. C. Cody, Trading as F. C. Cody Company, Appellee, v. Adelyne Schwill et al., Appellants.
    Gen. No. 40,681.
    Opinion filed October 25, 1939.
    Rehearing denied November 9, 1939.
    Hubbard, Baker & Bice, of Chicago, for appellants.
    Samuel M. Kane, of Chicago, for appellee.
   Mr. Justice Hebel

delivered the opinion of the court.

This is an appeal by the defendants from a judgment for $425 entered by the court for the plaintiff. The action by the plaintiff was to recover $575 alleged to be due the plaintiff for the furnishing of certain labor and material. The cause was submitted.to the court, and upon a hearing of the evidence the court allowed the defendants $150 on their counterclaim, which was filed in the action.

The defendants, Adelyne Sehwill, and her now deceased husband, Julius Sehwill, entered into a contract on July 19, 1937, with A. N. Rebori, an architect, for the construction of a $50,000 house at Barrington, Illinois, the architect to prepare the plans and specifications and perform all the duties of an architect as by the contract provided.

The general contractor for the construction of this home was R. E. Herlihy Construction Company, Inc., who let the contract to the plaintiff for the labor and material for sheet metal work, tile roofing, tar and gravel roofing, quarry tile, to be done according to the plans and specifications prepared by A.' N. Rebori.

On August 17, 1937, the plaintiff entered into a contract with R. E. Herlihy Construction Company, Inc., the general contractor. By the terms of the contract he agreed to furnish the labor and material and other items before stated which were required to be performed by the terms of his contract according to the plans and specifications prepared by A. N. Rebori, architect, for $1,695. According to the evidence in the record he performed certain work and received on account of the contract $1,260, and on February 4, 1938, there was due him the sum of $575.

It is contended by the defendants herein that the plaintiff should have presented an architect’s certificate, as provided for by the contract of R. E. Herlihy Construction Company, Inc., which was not presented to or received by the defendants as provided by the Herlihy contract.

The defendants, Adelyne Sehwill, individually, and Adelyne Sehwill as executrix of the estate of Julius, deceased, pursuant to rule of court, filed an amended answer and counterclaim admitting the contract and that the sum paid to the plaintiff was $1,260, and further in her answer stated: “that plaintiff’s work was rejected by the architect as well as by the defendant, of which rejection plaintiff was notified. That the contract provides that the decision of the architect in such case is final unless plaintiff within time specified demands arbitration. That arbitration or a demand therefor in such case is a condition precedent to the bringing of any action. That the time within which arbitration under the contract expired prior to the bringing of this suit. Wherefore, the decision of the architect as aforesaid is final.”

In support of the defendants’ counterclaim it is alleged :

“Defendant says by way of counter-claim that the plaintiff in performing and attempting to perform the work required of him under the contract, performed the same in such an unskillful, unworkmanlike and improper manner, using improper materials and applying the same in an unskillful and unworkmanlike manner and not in accordance with the plans or specifications of the contract. That by reason thereof the defendant was required to and did remove the materials so supplied by the plaintiff and was required to and did expend in that behalf and in having the work and materials done properly and in compliance with the plans and specifications, a sum in excess of $1,000 which sum she claims as a counter-claim against plaintiff, together with a further sum of $5,000 as damages suffered by defendant by reason of work and materials furnished by plaintiff and wrought into the structure which defects cannot be remedied or repaired except at great cost and expense as aforesaid.”

It was upon the issues which were presented to the court upon the trial of the matter that the judgment appealed from was entered.

This is an action by the plaintiff against the defendants based upon a contract to perform certain work, entered into by the plaintiff with B. E. Herlihy Construction Co. the general contractor for the construction of the residence at Barrington, Illinois. This contract is as follows:

“R. E. Herlihy Construction Co.

144 W. 47th Street

Chicago, Illinois

“Gentlemen:

“Re: Residence for Mrs. J. Schwill, Barrington, Illinois.

“We propose to furnish labor and material for Sheet Metal Work, Tile Roofing, Tar and Gravel Roofing and Quarry Tile, according to plans and specifications prepared by A. N. Rebori, Architect, for the sum of Sixteen Hundred Fifty and 00/100 Dollars ($1650.00).

“The above price is quoted with the understanding that we will furnish you with a Twenty year guarantee for Flat roof.

“If fire door from kitchen porch to garage is wanted add the sum of Forty Five and' 00/100 dollars ($45.00).”

Subsequently, during the progress of the work on the residence of the defendants, a further agreement ivas entered into, which is as follows:

“Mr. A. N. Rebori

29th Floor Tribune Tower

Chicago, Illinois

“Re: Schwill Residence

Barrington, Illinois

Job # 410

“Change on rear sleeping porch tile roofing, sheet metal gutters, flashings ^according to details for the sum of $115.00 (One Hundred Fifteen and No/100).

“Change on Kitchen Porch Tile Roofing, sheet metal gutters, flashings, etc. similar to above — Add the sum of $25.00.

“F. C. Cody Company

F. C. Cody Co.

By Per Bertha O’Brien (Signed)

“The above extra work (in the total amount of $140.00, One Hundred Forty and no/100 Dollars) is to be paid for by the Owner and deducted from the Architect’s Fee.

“Signed Andrew N. Bebori.”

The defense to this action is based upon two points. First, that the plaintiff failed to produce a certificate of the architect in compliance with the contract entered into with the B. E. Herlihy Construction Co. We might note at this time that the contract of the plaintiff is not subject to the terms and conditions of a building contract such as was entered into by the B. E. Herlihy Company and the defendants. Second, the defendants’ answer states that the plaintiff as a subcontractor undertook to perform the work in question for the sum of $1,835 and, as a counterclaim the defendants contend that the work and materials furnished were not in accordance with the plans and specifications; that by reason of the plaintiff’s failure to perform the work in a skilful and workmanlike manner and because of the use of improper materials, the defendants were required to remove the materials so supplied by the plaintiff and to expend in having the work and materials done properly and in compliance with the plans and specifications, a sum in excess of $1,000, which sum the defendants claim as a counterclaim against the plaintiff, together with the further sum of $5,000, damage suffered by the defendants by reason of the work and materials furnished by the plaintiff in the construction, which defects cannot be remedied or repaired except at great cost and expense.

The trial was heard by the court, and after.hearing the evidence in behalf of the plaintiff and the defendants, the court found:

“1. That the B. E. Herlihy Construction Co., Inc., a corporation, be and is hereby dismissed as a party defendant on motion of plaintiff.

“2. That the issues in this cause are found in favor of the plaintiff, F. C- Cody, doing business as F, C, Cody Company, on the Complaint and Answer and Amended Answer, and against Adelyne Sehwill, individually, and against Adelyne Sehwill as Executrix of the Estate of Julius Sehwill, deceased.

“3. That the issues are found in favor of the defendants, Adelyne Sehwill, individually, and Adelyne Sehwill as Executrix of the Estate of Julius Sehwill, deceased, on the counter-claim of said defendants in the amount of One Hundred Fifty Dollars ($150.00), which said amount of One Hundred Fifty Dollars ($150.00) shall be in diminution of plaintiff’s claim which is in the amount of Five Hundred Seventy-five Dollars ($575.00).” Accordingly the court entered judgment on said findings in favor of F. C. Cody, doing business as F. C. Cody Company, and against Adelyne Sehwill individually and as executrix of the estate of Julius Sehwill, deceased, in the amount of $425. It is from this judgment that the appeal is here in this court.

The plaintiff’s statement of claim, January 30,1938, made out to A. N. Rebori is as follows:

“Mrs. Julius Sehwill Residence...........$1650.00

Contract................................ 1650.00

Paid October, 1937.............$700.00

Paid November, 1937........... 560.00

Extra: Charge for fireproofing door with steel.................. 45.00

Charge for changing tile roofing as per orders of Mrs. Sehwill

Labor and Material.............. 140.00

$1835.00

Paid to date..................... 1260.00

Balance...................$ 575.00”

The question in this action is whether the amount allowed by the court and judgment entered for the plaintiff was proper. As we have already stated, the defendants rely upon the Herlihy Construction Co. contract, and contend that it was necessary that an architect’s certificate should be presented by this plaintiff in order that recovery might be had. It is to be noted from the statement of claim that during the progress of the work the plaintiff received the sum of $1,260 on account, and that the R. E. Herlihy Construction Co., a corporation, was released from its contract with Adelyne Schwill and Julius Schwill her husband, who undertook independent completion of the work; that from said contract the plaintiff dealt with Adelyne Schwill and Julius Schwill as the original contractor. The evidence upon this question bears out the claim of the plaintiff that the R. E. Herlihy Construction Co. was released from further compliance with the conditions and provisions of the contract between this company, as general contractor, and the defendants.

As to whether the plaintiff was required to comply with the terms and conditions of the R. E. Herlihy Construction Co. contract, from the evidence it appears that the brick work and the work required to be finished by the R. E. Herlihy Construction Co. was released and from the evidence of Andrew N. Rebori, the general contractor R. E. Herlihy Construction Co. did not finish the job. It further appears from his evidence that no other general contractor was hired and the work proceeded under the supervision of the architect until it was completed. Mr. C. W. Thomas-son, the architect’s representative, spent some time on the job personally under the architect’s supervision, so that the question is whether, assuming it was necessary to furnish an architect’s certificate, the plaintiff was prevented from furnishing this architect’s certificate by the act of the defendants in releasing the general contractor from his further compliance with the contract between this general contractor and the defendants for the construction of the residence.

This question, in a measure, has been passed upon by this court in Kleinschnittger v. Dorsey, 152 Ill. App. 598, wherein it was held that any act of the owner under a building contract, which makes the architect’s certificate a condition precedent to payment, which prevents the contractor from obtaining such a certificate, or any act of the owner showing that he has waived such a provision, will release the contractor from the duty of procuring such certificate. We said in that case:

“While the architect insists that the contract was not performed, yet we think the court was warranted in finding that this contention was only an afterthought of both the architect and the owner, and that the owner, Dorsey, by his said conduct is estopped to now insist on said provisions. After Dorsey’s letter of innumerable complaints to the architect, • dated September 8, 1905, more than a year after he had dealt directly with Kleinschnittger, the business of the architect was seemingly directed mainly to making complaints by almost weekly letters to the contractor, continuing for more than two months after Dorsey had taken possession of the building and was living in it. Any act of the owner under such a building contract which prevents the contractor from obtaining such certificate, or any conduct of the owner showing that he had waived such a provision, will release the contractor from the duty of procuring such certificate. Haunroth v. Peters, 50 Ill. App. 366; Foster v. McKeown, 192 Ill. 339; Vermont Street M. E. Church v. Brose, 104 Ill. 207; Fowler v. Deakman, 84 Ill. 132.” The court further said:

“In regard to the provisions for arbitration it will be seen by Article XII that there is probably not a single item for which a decree is entered in this case that was required to be settled by arbitration.” And in Connelly v. Wallin, 181 Ill. App. 212, this court held: In an action for a balance alleged to be due on a building contract, it is a question of fact or of mixed law and fact for the court without a jury whether the provision of the contract requiring a certificate from certain architects as a condition precedent to obtaining final payment was waived where defendant did not employ the architects mentioned in the contract to superintend the work and was often on the premises himself and suggested changes and made payments without requiring certificates. We said in that case:

‘1 Counsel for defendant contends that the judgment should be reversed because of the failure of plaintiffs to produce an architect’s certificate as a condition precedent to their right to obtain the final payment under the contract. Under the facts as disclosed by this record, we think the contention is without merit. ‘Any act of the owner under such a building contract which prevents the contractor from obtaining such certificate, or any conduct of the owner showing that he had waived such a provision, will release the contractor from the duty of procuring such certificate. ’ Kleinschnittger v. Dorsey, 152 Ill. App. 598, 602; Haunroth v. Peters, 50 Ill. App. 366; Vermont Street M. E. Church v. Brose, 104 Ill. 206; Foster v. McKeown, 192 Ill. 339; Evans v. Howell, 211 Ill. 85, 93.” And we further said :

“This is so where, ‘prior to the completion of the work, the builder discharged the architect subject to whose approval the work was to have been performed, or where the builder fails to employ an architect or engineer to supervise or approve the work.’ ” (Citing-cases.)

In this case it appears from the evidence that the general contractor of construction was released and further discharged from complying with the terms of the contract, so that the plaintiff was in no position to obtain an architect’s certificate, and the plaintiff urges that the defendants, in their contention that the plaintiff should have had an architect’s certificate, have misconstrued and misstated the facts. Our attention is called to the provision chiefly relied upon in defendant’s brief. The quotations are preceded by: “The contract in the instant case provided. ’ ’ Said provision was not in plaintiff’s contract, but was in the contract entered into between the defendants and B. E. Herlihy Construction Company. The plaintiff was not a party to this contract and is not bound by its provisions, and furthermore, the B. E. Herlihy Construction Company was released from its contract before the plaintiff finished his work. Therefore, how could the plaintiff be held to a contract that had been abandoned?

This seems to be well stated, for the only written agreement entered into between the plaintiff and the B. E. Herlihy Construction Company was that of August 17, 1937, wherein the plaintiff agreed to perform the work according to the plans and specifications of A. N. Bebori, the architect.

As we have already stated, it appears from plaintiff’s statement of claim that during* the progress of the plaintiff’s work the B. E. Herlihy Construction Company, was released from its contract with Adelyne Sehwill and Julius Sehwill, and from the facts as we have them before us, by the act of the defendants in releasing the general contractor from further performance of the agreements and conditions contained in the contract entered into by this corporation and the defendants, the plaintiff was really prevented from furnishing the architect’s certificate for the work completed, and which is now demanded by the defendants.As we have stated, there is no provision in the plaintiff’s contract that would compel him to comply with the provisions of the B. E. Herlihy Construction Co. contract and we believe under the circumstances that the court did not err in not requiring that before the plaintiff could recover it was necessary to furnish an architect’s certificate for the final completion of the work. The question really in controversy before, the court is the question presented to the court by the counterclaim of the defendants. It might be said in passing that the question arising upon this counterclaim is a controverted question of fact, and it appears from the suggestion by the plaintiff in his brief that the record clearly shows the plaintiff inspected the work when it was finished on February 4, 1938, in the presence of Mrs. Schwill and Mr. Thomasson, the representative of the architect; that nothing was said as to anything being wrong, and Mr. Thomasson, as a witness, testified that he, the plaintiff, was told to come to the office the next day, to make out his final statement, and Thomasson told him it would be a couple of weeks before it goes through; that there were a few -things to be corrected.

The defendants’ criticism of the work was as to the following:

‘ ‘ 1. The alleged failure to run flashing and counter-flashing across the parapet wall and the failure to imbed membrane waterproofing into one portion of the brick work, which they claimed resulted in a leakage into the house; that they spent $240.00' to remedy same.

“2. That they are entitled to a credit of $115.00, because a part of the tile work on one of the roofs was not done by plaintiff, but by another contractor; the credit is claimed for unused tile and labor which plaintiff did not perform.

1‘3. The sheet metal work (gutters and downspouts) was' not proper in certain places, the chief complaint being one of appearance; that they replaced all of same, discarding plaintiff’s material, at a cost of $325.00.

“4. That plaintiff guaranteed his work against leakage for a period of years.”

Plaintiff’s reply to one is:

“1. That they (plaintiff and his men) put in all flashing and counter-flashing, and that what Mr. Blizek, who was hired by defendants, did as to this, was not necessary; that they applied membrane waterproofing throughout except in one corner; that the reason they did not apply the membrane in the one place was because the brick was already in, and they assumed it was applied by the mason contractor, on whom the duty rested; and that if they had been notified to put it in before the bricks went in they would have been glad to do so, and even after, if there had been a complaint. F. C. Cody, Jr., testified the membrane cost only one and one-half cents per foot. Mr. Rebori, defendants’ own architect, testified it would entail only twenty, or thirty or forty dollars to correct the condition; that the membrane is a paper material. The trial court (after referring to the comments introduced by the parties) allowed $40.00 instead of the $240.00 claimed by the defendants.” As to the second complaint:

“2. That the only unused and unlaid portion of the tile recovered by plaintiff, that was still good, was worth $36.00; that the corresponding credit for labor was $22.80,.making a total of $58.80, which is what the trial court allowed as to this, instead of the $115.00 claimed by defendants.” As to the third complaint:

“3. Plaintiff and all of his men claimed that the sheet metal work was completed in a good and workmanlike manner, and according to plans and specifications except where changes were asked; that nothing was the matter with it when they left the job; that as to the condition shown, i. e., the downspout being put in diagonally, that was because of the drain, and could not be done any other way except that there be a change in the plumbing. The trial court (in passing upon this question) said whatever defects there were in the guttering did not amount ‘to a great lot;’ that the main part of the guttering was good; that plaintiff could and would have fixed any defects if only asked; that it was ‘purely without reason’ to tear down all of the guttering and discard the material because a few places were ‘a little uncouth’; that $51.20 was ample to take care of whatever was necessary (instead of the $325.00 claimed by defendants).” The court made allowance of a total credit to the defendants on their counterclaim in the amount we have already stated, being $150.

Now these questions which were passed upon by the trial court were controverted questions of fact. From the record before us there is evidence tending to support the court’s views upon the amount allowed, and we cannot agree with the contention of the defendants that the finding of the court is against the manifest weight of the evidence. The plaintiff by his contract was obliged to do the roofing (flat) work of certain portions of the roof according to plans and specifications of the architect. This portion of the work he sublet to one Mahood, and from what we can determine from the record, there has been no real claim for damage by reason of the work done by this contractor Mahood.

There has been a controversy as to the several questions. However, the court passed upon these, and there is evidence which would justify the conclusion of the court. For the reasons indicated in the opinion, judgment is affirmed.

Judgment affirmed.

Denis E. Sullivan, P. J., and Burke, J., concur.


source: Caselaw Access Project

author: Mr. Justice Hebel

license: Public Domain

text:
    Anna Boysen, Appellant, v. Rudolph Boysen, Appellee.
    Gen. No. 40,692.
    Opinion filed October 25, 1939.
    Harry X. Cole, of Chicago, for appellant.
    No appearance for appellee.
   Mr. Justice Hebel

delivered the opinion of the court.

This is an appeal by the plaintiff from a decree dismissing the plaintiff’s bill of complaint. On October 31, 1938, the plaintiff filed her verified complaint for annulment of her marriage to the defendant, alleging that on April 4, A. D. 1938, and for a long time prior thereto and ever since, continuously and now, the parties hereto have been and are citizens and residents of Cook county, Illinois, and during all of that time had no intention of changing their citizenship or place of residence; that on April 4, 1938, through the connivance and fraud of the defendant she" was tricked into representing to the clerk of the circuit court of Lake county, Indiana, that she was a legal resident of the county of.Lake, for the purpose of obtaining a marriage license; that on April 18, A. D. 1938, through the connivance and fraud of the defendant she was further tricked into becoming a party with the defendant to a pretended ceremony of marriage in the city of Crown Point, Indiana; that the marriage was never consummated; that thereafter, on October 6, 1938, having come to believe and then believing that on account of the fact that the license was obtained by the defendant for the purpose of violating the statutory law of this State, and for other fraud and connivance against her by the defendant at and before the time, their said ceremony of marriage at Crown Point, Indiana, on April 18, 1938, was and is void, she ordered the defendant from her home and has not lived with him since.

On November 4, 1938, the defendant, appeared by counsel and filed his answer to the complaint. A hearing was had on the complaint and answer, and at the conclusion of the hearing the court dismissed the plaintiff’s bill for want of equity. From the evidence of the plaintiff it appears that the plaintiff had lived in Cook county, Illinois 53 years immediately prior to the filing of her bill of complaint. The plaintiff stated that acting upon the instructions of the defendant, on April 4,1938, when she and the defendant had obtained the license to marry in Lake county, Indiana, she had given her residence as Hammond, Indiana. The witness testified that - she had never been a resident of Lake county, Indiana; the defendant had always lived in Chicago.

Upon examination by the court, the plaintiff stated she wanted to be married here in Chicago by a minister and have her friends and children here. However, the defendant suggested that they be married in Crown Point, Indiana. The defendant had, in the meantime, driven to Crown Point and made arrangements to have the marriage take place there on a certain date. On April 18, 1938, the defendant came to her house to take her to Crown Point to be married; she did not know why the defendant selected Crown Point. When the plaintiff allowed the defendant to drive her to Crown Point for their marriage, she did not know that she “was doing anything that just wasn’t one hundred per cent right.” The plaintiff stated further that she had read the newspapers and knew that she had to go through certain treatments here. She had “been doctoring for years with a nervous disorder,” and knew she was perfectly all right, and she knew that he had been to see his doctor before, too. When she signed a statement that she was a resident of Indiana, she knew she was lying. “It is the sorriest thing I ever did.” The defendant did not say he lived in Indiana; he told her to say that; he said he lived in Chicago. The defendant told her to say she lived in Indiana, that it was the only way they could get married. The plaintiff had known the defendant for 40 years, ever since she was a little girl. The defendant was 57 years old.

Raymond Brockmeyer, a son of the plaintiff, stated that on April 18,1938, his mother lived in Cook county, Illinois, and at all times prior to that date had been a resident of Cook county, Illinois. On April 18, 1938, the defendant had been a resident of Chicago, Cook county, Illinois, and prior to that date. Ella Hartley, related by marriage to the plaintiff, stated that both the parties were, and on April 18, 1938, had been residents of Chicago, Illinois, and were not residents of Indiana.

It is contended by the plaintiff in this action that the conduct of the defendant towards the plaintiff was fraudulent and vitiated the contract of marriage between the parties; that when the plaintiff, having learned the full extent and consequences- of the fraud and imposture of the defendant towards her, filed her complaint to annul the marriage on October 31, 1938, and points to par. 19, ck. 89 of the Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 78.21], entitled “Marriages” as follows:

“19. Prohibited marriages void if contracted in another state.] § 1. Be it enacted by the People of the State of Illinois, represented in the General Assembly: That if any person residing and intending to continue to reside in this state and who is disabled or prohibited from contracting marriage under the laws of this state shall go into another state or country and there contract a marriage prohibited and declared void by the laws of this state, such marriage shall be null and void for all purposes in this state with the same effect as though such prohibited marriage had been entered into in this state.” The plaintiff then calls the court’s attention to par. 6 of the same statute [Jones Ill. Stats. Ann. 78.06], which provides:

“All persons about to be joined in marriage must first obtain a license therefor, from the County Clerk of the County in which such marriage is to take place, anything ... to the contrary notwithstanding, which license must show:

“1. Their legal and full names, and places of residence.

“2. Their ages.” And then the statute provides: “Application for a marriage license must be made at least three ■ days and not more than thirty days, before the license shall be issued, upon a form which the County Clerk shall furnish without charge. ’ ’ Paragraph 6a of the statute [Jones Ill. Stats. Ann. 78.06(1)] provides when the county clerk is authorized to issue a marriage license as follows:

‘ ‘ Examination for venereal disease.] § 6a. All persons desiring to marry shall within fifteen (15) days prior to the issuance of a license to marry, be examined by any duly licensed physician as to the existence or non-existence in such person of any venereal disease, and it shall be unlawful for the county clerk of any court to issue a license to marry to any person who fails to present for filing with such county clerk a certificate setting forth that such person is free from venereal diseases. ...” And it is upon the provisions of the statute we have quoted that the plaintiff contends the marriage between her and the defendant is void, and being citizens of this State they violated the provisions of the statute by going to Indiana and having the marriage services performed in that State.

The defendant in this case has failed to file his appearance in this court so we should consider the questions which are involved as suggested by the plaintiff, who contends that the rule of par delictum will not be applied, however, to prevent relief in suit to annul and set aside a void marriage, and further suggests that the defendant had made arrangements to have the marriage take place in Crown Point, Indiana; that he had driven there twice and made arrangements to have the ceremony take place at a certain date, and the plaintiff has called our attention to the provision of the statute under section 6a, eh. 89, relating to marriage, which is as follows:

“Examination for venereal disease.] § 6a. All persons desiring to marry shall within fifteen (15) days prior to the issuance of a license to marry, be examined by any duly licensed physician as to the existence or non-existence in such person of any venereal disease, and it shall be unlawful for the county clerk of any court to issue a license to marry to any person who fails to present for filing with such county clerk a certificate setting forth that such person is free from venereal diseases ...” and relies upon par. 19, sec. 1 of ch. 89 of the statute, which provides:

“19. Prohibited marriages void if contracted in another state.] § 1. Be it enacted by the People of the State of Illinois, represented in the General Assembly: That if any person residing and intending to continue to reside in this state and who is disabled or prokibited from contracting marriage under the laws of this state shall go into another state or country and there contract a marriage prohibited and declared void by the laws of this state, such marriage shall be null and void for all purposes in this state with the same effect as though such prohibited marriage had been entered into in this state. ’ ’

The fact is clear that the plaintiff as well as the defendant was a resident of the State of Illinois, and the plaintiff contends that the marriage is void by reason of the section of the statute quoted above. In support of plaintiff’s contention the suggestion is made that the phrase in par. 19, sec. 1 of ch. 89, “disabled or prohibited from contracting marriage under the laws of this state” under the terms of this statute must be construed to extend to one, who as in this case, went over to the State of Indiana to avoid physical examination for venereal disease. This statute makes the violation a misdemeanor. As this statute is made to govern the citizens of Illinois, when such a citizen goes to Indiana and violates its provisions, it is claimed that he violates this statute constructively when he returns to this State and lives in the marital relation.

The parties to this action returned to Chicago, and it is further stated that when the plaintiff learned of the doubtful validity of the marriage she promptly denounced it and ceased to live with the defendant.

There is no evidence in the record other than that of the plaintiff, and it is contended that when the defendant told the plaintiff, in relation to the proposed ceremony in Indiana, “It’s the only way we can get married and you have to say it,” meaning that she was obliged to state that she was a resident of the State of Indiana, he misled her.

From the plaintiff’s brief it is evident that she relies largely upon the statute relating to examination for venereal disease.

In the case of People v. Ham, 206 Ill. App. 543, which was presented on appeal to this court, it was held that marriage without the parents’ consent, where one or both of the parties are under age, is not void but is voidable at the option of the party under disability. We there said, in part:

“In Illinois, ‘the general rule is that unless the statute expressly declares a marriage contracted without the necessary consent of the parents, or other requirements of the statute, to be a nullity, such statutes will be construed to be directory, only, in this respect, so that the marriage will be held valid although disobedience of the statute may entail penalties on the licensing or officiating authorities. ’ Reifschneider v. Reifschneider, 241 Ill. 92; Campbell v. Beck, 50 Ill. 171; Olsen v. People, 219 Ill. 40, and 26 Cyc. 835.

“Neither the statutes of Illinois nor Missouri declare that marriages under a certain age without the parents’ consent are void. The provisions fixing the age of consent, requiring the consent of the parents and imposing penalties on the clerk for issuing a license and on officers for celebrating a marriage in violation of the provisions of the statute, are only directory and not prohibitive. Reifschneider v. Reifschneider, supra; State v. Bittick, 103 Mo. 183; Bishop on Marriage & Divorce, secs. 423-449 and 551-556. The marriag’e of the relator and Ethel Ham must be held to be a valid marriage until declared void by some direct proceeding. ’ ’

This court in passing upon the question involved in that case said as to a marriage contracted in a foreign State which does not comply with the requirements of the statute of this State, where the marriag’e is not declared null and void, that, by this particular statute, the direction of the clerk to issue a license is directory only and not prohibitive. This applies to the facts as we find them in the record in this case, for the venereal disease act does not declare that a marriage celebrated without complying with that statute shall be null and void.

A provision of the statute relating to marriage and the existence or nonexistence in such person of any venereal disease is that it shall be unlawful for the county clerk of any court to issue a license to marry to any person who fails to present for filing a certificate such as is required by the act, and is the only prohibitive clause in the act. However, the plaintiff contends that the superior court had jurisdiction to annul and should have annulled the marriage as prayed for in plaintiff’s complaint and that the court erred in dismissing the bill for want of equity.

From a consideration of the facts and the law as presented to this court, we are of the opinion that the court was fully justified and did not err in entering the order appealed from.

Order affirmed.

Denis E. Sullivan, P. J., and Burke, J., concur.


text:
    People of the State of Illinois v. Cody Trust Co., Charles H. Albers, Receiver, Appellee. Appeal of A. J. Swanson and W. J. Glover, Jr., Intervening Petitioners.
    Gen. No. 40,706.

      Opinion filed October 25, 1939.
    Jarecki & Brautigam, of Chicago, Crumpaoker & Friedrich and Jay E. Darlington, all of Hammond, Ind., for appellants.
    George A. Novak, of Chicago, for appellee Charles H. Albers.
    Depress, Buckingham, Jones & Hoffman, for appellee State Mut. Life Assur. Go.; Vincent O’Brien and John Baker, both of Chicago, of counsel.
   Mr. Justice Hebel

delivered the opinion of the court.

The appellants, A. J. Swanson and W. J. Glover, Jr., as interveners in the above action, filed a petition by-leave of court.

From the averments of the intervening petition it appears that the respondent receiver came into possession of the fund of $9,228.49 after extended litigation between himself, the petitioners Swanson and Glover, and Geraldine S. Roberts; that Geraldine S. Roberts was obligated on $7,000 second mortgage notes owned by and in possession of the receiver. This litigation was commenced in the United States District Court for the Northern District of Illinois, by way of a bill of interpleader, instituted by the Metropolitan Life Insurance Company. Said company deposited with the clerk of the United States District Court the sum of $12,253.37, proceeds of the life insurance policy of Thomas T. Roberts, now deceased, of which Geraldine S. Roberts was the beneficiary, after Albers on the one hand and the petitioners here on the other hand, had each demanded these funds from the Insurance Company. Albers’ demand was a garnishment action, based upon the judgment by confession entered in the circuit court of Cook county, the petitioners’ demand being, as assignees of Geraldine S. Roberts, beneficiary of the policy issued by the Metropolitan Life Insurance Company. At the conclusion of the trial on the issues, the judge of the United States District Court entered a decree, which, among other things, ordered the clerk of the District Court to pay to Charles H. Albers, as receiver of the Cody Trust Company, the sum of $8,772.68, with interest at the rate of 5 per cent from the date thereof, and next to pay to A. J. Swanson the sum of $1,600 with interest at the rate of 5 per cent; the balance remaining in the hands of the clerk of the court from the $12,253.37 deposited, was ordered to be paid to W. J. Glover, Jr., as trustee for Marguerite Swanson.

From this decree the petitioners in this cause appealed to the United States Circuit Court of Appeals, where the decree was affirmed. A petition for certiorari to the United States Supreme Court was denied. Thereupon the sum of $8,772.62 with interest and costs was computed by the court at $9,228.49, which sum the clerk of the court was ordered to pay to Albers, the receiver, and it was paid.

The petition of Swanson and Glover in the instant case further avers that action was taken by them in the United States Circuit Court of Appeals, but does not contain the opinion of that court. The motion of the receiver to dismiss the petition supplies this deficiency, to which motion there was attached a memorandum of opinion entered in the United States Circuit Court of Appeals for the Seventh Circuit from which it will appear that Mrs. Roberts, as well as the petitioners, Swanson and Glover, presented a motion for leave to file a motion seeking authority to proceed with their bill of review in the District Court, and by such bill of review, Mrs. Roberts, as well as Swanson and Glover, sought to litigate the validity, under the Illinois law, of the judgment upon which Albers ’ claim was based in the District Court. The question which the petitioners are seeking to litigate here is whether the judgment by confession against Geraldine S. Roberts, as alleged by them, was void because based upon a void power of attorney. Such right was denied them by the court in the instant case, and the motion of the receiver to dismiss was sustained by the court. It is from that order that this appeal is now pending in this court.

The intervening petitioners insist that the judgment is void for lack of jurisdiction over Mrs. Roberts ’ person. The warrant upon which this confession of judgment was entered is as follows:

“The undersigned hereby appoints Arthur B. Cody or any attorney of any court of record to be his true' and lawful attorney irrevocably for him, and in his name to appear in such court in term time or vacation after this note becomes due, whether by election as aforesaid, upon giving ten (10) days’ notice of such default and election, or by regular maturity of this note, waiving service of process and confessing judgment in favor of the legal holder hereof for the amount due hereon, with costs and reasonable attorneys’ fees; and also to file a cognovit therefor with an agreement therein that execution may issue forthwith, and that no writ of error shall be prosecuted upon judgment entered by virtue hereof, nor any bill in equity filed to interfere with the operation of said judgment, and to release all errors that may intervene in entering up said judgment or issuing execution thereon, hereby ratifying and confirming all that said attorney may lawfully do by virtue hereof.

“(Signed) Thomas T. Eoberts

“(Signed) Geraldine S. Eoberts.”

The argument offered by the respondent in this action is that the United States District Court, as a court of equity, had unquestioned jurisdiction of the subject matter, and of the parties here involved, as well as the additional party, namely: Geraldine S. Eoberts, against whom judgment by confession was obtained by this respondent. In that case the court was called upon, and did determine which of the claimants was equitably entitled to the fund here involved, and by its decree awarded it to Albers, the receiver, and the only ground suggested in the petition by the petitioners is that the petitioners could have defeated the claim of Albers by asserting a defense which they failed to raise until too late. There is no question but that this defense could have been presented in the District Court proceeding, if properly raised, and the only excuse given for failing to raise it is that the petitioners had Indiana lawyers as counsel who did not know of this possible defense, “and could not by the exercise of reasonable diligence discover same until they were preparing their brief in the Circuit Court of Appeals. ’ ’ This is a mere conclusion. It is not alleged that there was any concealment or fraud practiced by the receiver,— it is not alleged that the notes containing the warrant of attorney, were not on file in the circuit court of Cook county, and available to inspection by counsel, nor why the alleged defense could not just as well have been seen on preparing the case for trial in the lower court as when writing brief on appeal.

The action in the District Court of the United States for the Northern District of Illinois is based upon an action by the Metropolitan Life Insurance Company, a corporation, which was engaged in the life insurance business. The plaintiff in the interpleader action issued this policy to one Thomas T. Roberts, naming Geraldine S. Roberts, wife of the insured, as beneficiary. It appears from the pleadings filed by the plaintiff that Geraldine S. Roberts, A. J. Swanson, W. J. Glover, Jr. and Charles H. Albers, as receiver of Cody Trust Company, a corporation, have all made demands and conflicting claims against the Insurance Company, for the payment of the amount due upon the death of the insured, $12,253.37, and it is for that reason that the Metropolitan Life Insurance Company instituted this bill of interpleader, and for the purpose of interpleading said claims and of depositing the amount of the proceeds of the insurance policy in the sum of $12,253.37 with the clerk of the District Court and abide by the judgment of the District Court. After the respondents were joined in this action, a decree was entered in the District Court, which among other things ordered the clerk of the District Court to pay Charles H. Albers, as receiver of Cody Trust Company, the amount we have heretofore stated, being $8,772.68, with interest at the rate of 5 per cent from the date thereof, and next, to pay to A. J. Swanson the sum of $1,600 with interest at the rate of 5 per cent. The balance remaining in the hands of the clerk so deposited, was ordered to be paid to W. J. Glover, Jr. as trustee for Marguerite Swanson.

Upon the trial to which we have just referred, the intervening petitioners in this action stated their defense and, as we have already indicated, they did not allege the defense that the judgment by confession was void for the reason that it was entered after the death of Thomas T. Roberts. They proceeded with the trial of the case in the District Court of the United States and a decree was entered, the court finding that upon this judgment, Charles H,- Albers, as receiver, was entitled to the amount fixed by the court, and that the question was raised after an appeal was taken by these intervening petitioners to the Circuit Court of Appeals of the United States. Upon their motion seeking-authority in that court to proceed with a bill of review in the District Court, the court said:

“ ‘The question of the validity of Albers’ judgment under Illinois Law is raised for the first time in this court. Appellants, in their brief, admit “we did not discover it until we were writing this brief.” The point was not raised or considered by the court below, neither is it assigned as error, and, in fact, such a contention was not advanced in any manner or form. Under the rule often reiterated, the point is not open to review here. ’ ”

A petition for certiorari was denied by the Supreme Court of the United States.

In discussing the subject under consideration, our attention has been called to the case of Godschalck v. Weber, 247 Ill. 269, by Charles H. Albers, the receiver, wherein the court passed upon a bill in equity to restrain execution of a writ of possession in a foreclosure proceeding. There had previously been a bill in chancery seeking to establish that the title holder merely held title in trust for the complainant. The bill in that matter was dismissed, and the court said in part:

‘ ‘ The doctrine of res judicata extends not only to the questions which were actually decided in the former case, but to the whole controversy, — to all matters properly involved which might have been raised and determined, and to all grounds of recovery or defense which the parties mig*ht have presented, whether they did so or not. The rule is so stated in numerous decisions, and the doctrine applicable to this case is thus stated in Henderson v. Henderson, 3 Hare, 115: ‘In trying this question I believe I state the rule of the court correctly, that where a given matter becomes the subject matter of litigation in and of adjudication by a court of competent jurisdiction, the court requires the parties to bring forward their whole case, and will not, except under special circumstances, permit the same parties to open the same subject of litigation in respect to a matter which might have been brought forward as a part of the subject in contest, but which was not brought forward only because they have, from negligence, inadvertence, or even accident, omitted a part of their cause. The plea of res judicata applies not only to the point upon which the court was required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising a reasonable diligence, might have brought forward in time. ’ The principle ‘ extends not only to questions of fact and law which were decided in the former suit, but also to the grounds of recovery or defense which might have been but were not presented. ’ (Town of Beloit v. Morgan, 7 Wall. 619.) The language of these decisions has been quoted as announcing the true doctrine in Litch v. Clinch, 136 Ill. 410, and Harmon v. Auditor of Public Accounts, 123 id. 122. In the latter case it is said, on page 133: ‘Nor is such former judgment or decree conclusive only as to questions actually and formally litigated. It is conclusive as to all questions within the issue, whether formally litigated or not.’ ”

And then again in the case of Webb v. Gilbert, 357 Ill. 340, the court said: “When there has been a final judgment or decree neither party thereto should again be permitted to re-litigate by undertaking to change his position in the case and to force his adversary again to defend against the same matters and matters collateral thereto as were properly involved or might have been brought forth in the prior litigation, nor should the time of the court be taken in considering and deciding issues between the same parties involving the same subject matter where there has already been one final decision, which is still in full force and effect. Property rights and civil liberty cannot be properly safeguarded if parties are to be permitted, after final judgment and decree, to again litigate the same matters. Final decrees and judgments must be permanent in their character in order to give to the citizen a sense of security. The trial court did not err in determining that the decree in the case of Webb v. Hill, supra, was conclusive as to all the rights, interests and estates then existing in the complainant to the premises in question.” See Bailey v. Bailey, 115 Ill. 551.

A rather interesting case has been cited entitled People v. Wade, 351 Ill. 484, which was a case of scire facias on a bail bond, and judgment, a writ of error to the Appellate Court, and there affirmed, then certiorari denied in the State and United States Supreme Court, and then a motion to vacate the judgment, which was denied and a direct appeal to the Supreme Court on the constitutional ground that the statute was void. The court said in its opinion:

‘ ‘ The doctrine of res judicata applies to this writ of error. That plea applies not only to the point upon which the court was required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising a reasonable diligence, might have brought forward in time. The principle extends not only to questions of fact and law which were decided in the former suit, but also to the grounds of recovery or defense which might have been but were not presented, including not only constitutional grounds but all other grounds of defense. Godschalck v. Weber, 247 Ill. 269.”

Upon the question of res judicata, the failure of the respondents in the interpleader case to bring’ to the attention of the court all matters of defense, whether of law or fact — and where a final judgment or decree has been entered, neither of the parties to the action should be permitted to relitigate by undertaking to change his position in the case and to force his adversary to again defend as to the same matters and upon the grounds collateral thereto. The petitioners in the instant case, however, in order to evade such rule, have suggested to this court that the judgment was absolutely void, and because it was confessed against Mrs. Roberts on a joint warrant of herself and her husband, after her husband’s death, such judgment is open to collateral attack, and cite authorities in support of their position. Therefore, we will consider the promissory note with the warrant of attorney, which are contained in a single instrument. It is proper that the court consider all its provisions in construing any portion of it. As we have already set forth the warrant of attorney herein, it is necessary that we consider a further provision to determine whether the note in question is a joint and several one, also to consider the confession clause, together with that portion of the note which provides that:

“Every person now or at any time liable, whether primarily or secondarily, for the payment of the indebtedness hereby evidenced, for such person and for the heirs, legal representatives, successors and assigns of such person, expressly waives presentment for payment, notice of dishonor, protest, notice of protest and diligence in collection, and assents that the time of said payment may be extended, as in the Trust Deed, securing this note provided or otherwise, without in any wise modifying, altering, releasing, affecting or limiting his, her or its liability on the lien of said Trust Deed.”

The Supreme Court in the case of Farmers Exchange Bank of Elvaston v. Sollars, 353 Ill. 224, considers the questions of legal character. The majority opinion of the court is:

“Although it was held in Mayer v. Pick, 192 Ill. 561, and Keen v. Bump, 286 Ill. 11, that the mere fact the promissory note portion of an instrument is joint and several would not affect the character of the warrant or power of attorney if the latter were, in fact, joint, it does not necessarily follow that the provisions of the note may not be considered in determining whether the warrant is, in fact, joint or joint and several. Where, as here, the undertakings of the signers are all contained in a single instrument, it is proper to consider all of its provisions in construing any portion of it. The promissory note features of the instruments in this case are by their terms joint and several. The second paragraph of the instruments contains the warrant of attorney and provides that ‘the makers and all endorsers hereof severally waive presentment for payment, notice of nonpayment, protest and notice of protest of this note, ’ etc. Without interruption, and in the same sentence, the instruments continue by providing that ‘ authority is hereby irrevocably given to any attorney of any court of record to appear for the undersigned’ and to confess judgment against the ‘undersigned.’ In Webster’s New International Dictionary (1927) the words ‘the undersigned’ are defined to mean: ‘the person whose name is signed or the persons whose names are signed at the end of the document ; the subscriber or subscribers.’ The word ‘undersigned, ’ as used in the instruments in question, may be interpreted as referring to the acts of the two parties severally as well as jointly, and in view of the other language of the instruments definitely indicating the intention and purpose of the signers to act and be bound severally as well as jointly, we think a fair construction of the instruments leads to the conclusion that the warrants or powers of attorney were intended to be joint and several.”

So that what was said by the Supreme Court in that opinion applies to what is contained in the promissory note here, and in considering this note we can reach but one conclusion, and that is that the note is a joint and several one, for the reason that the paragraph of the note above quoted in part uses this language: “Every person now or at any time liable,” and again this language : “for such person and for the heirs, legal representatives, successors and assigns of such person,” and finally the note provides: “without in any wise modifying, altering, releasing, affecting or limiting his, her or its liability on the lien of said trust deed.” This is apparent from the facts as they appear in this case. The court having reached this conclusion it was the duty of the intervening petitioners, who are now in this court, to have appeared in the District Court of the United States and offered their defense, or such defense as they believed necessary. Having failed to do so they are bound by the judgment of the District Court when it entered its decree.

The court in dismissing the petition filed by the intervening petitioners, A. J. Swanson and W. J. G-lover, Jr., did not err under the facts and circumstances stated in this opinion. The order is therefore affirmed.

Order affirmed.

Denis E. Sttltjvan, P. J. and Burice, J., concur.


author: Mr. Presiding Justice Denis E. Sullivan

text:
    Almar Forming Machine Company, Appellee, v. F. and W. Metal Forming Machinery Company et al., Appellants.
    Gen. No. 40,926.

      Opinion filed October 26, 1939.
    Campbell, Clithero & Fischer, of Chicago, for appellants.
    Louis S. Cohn, of Chicago, for appellee.
   Mr. Presiding Justice Denis E. Sullivan

delivered the opinion of the court.

This is an interlocutory appeal from an order granting an injunction ex parte on a hill of complaint for specific performance of a contract for the sale and distribution of certain machinery, and also praying for an accounting for profits which the defendants are alleged to have made through violations of such contract.

The bill of complaint was filed on June 15, 1939 and defendant’s answer thereto was filed on June 23, 1939. On June 23,1939, a motion was made by plaintiff for a temporary injunction as prayed for in the complaint. When the parties appeared before the trial judge he announced that the cause could not be heard until September, 1939. Thereafter, without notice to defendants, plaintiff went before a master in chancery without an order of reference as to the issuance of an injunction, and the master indorsed on the complaint a recommendation for the issuance of a temporary injunction upon filing a $5,000 bond. Some time thereafter without serving notice to the defendants or their attorneys of record, plaintiff’s attorney again appeared before the trial judge and obtained the entry of the injunctional order, from which this interlocutory appeal is prosecuted.

The injunctional order stated that due notice of the motion had been served, and thereafter on motion of defendants’ attorneys the chancellor corrected his injunctional order by entering another order stating* that this language relating to notice was “inadvertently used and should not have been contained therein,” striking all recitals of the injunctional order with reference tó notice, presence of opposing counsel and arguments, and substituting* therefor a paragraph reciting* that the complaint had been submitted to one of the masters in chancery in the court, without notice to the defendants or their counsel, the defendants not being* represented before the master, and the injunctional order was entered without notice to the defendants or their counsel and in their absence, solely on the recommendation of the master that a temporary injunction issue upon the filing* of complainant’s bond.

From the complaint and the exhibits attached thereto, it appears that plaintiff claims he entered into a contract with defendants, who were the sole licensees under United States letters patent, for the sale and distribution of certain machines; that said defendants did, contrary to the terms and provisions of said contract make direct sales of the machines known as “method of and machine for bending sheet metal” and “edge bending machine” to dealers.

It further appears from said complaint that the contract provided that plaintiff should have the sole and exclusive right of sale and distribution of machines for three years from the date of said contract, namely, May 12, 1937; that it was the essence of said contract that the minimum number of machines to be sold during the year was 25 of one kind and 300 of another kind, there being two different machines described in the contract. It further is claimed by plaintiff that plaintiff should be given credit for the machines which had been'sold prior to the date the contract was executed.

Plaintiff’s argument is in part directed to the merits of the case. We are not concerned with such controversy at this time as the only thing now considered is the issuance of the temporary injunction.

The order for injunction further states that it was issued on the recommendation of a master. The plaintiff took the complaint before the master and without notice to any of the interested parties, although the appearance of the defendants had been entered. Prior thereto a general order -of reference had been entered by the court, but it referred to the master in chancery the entire issues made by the pleadings and not the application for a temporary injunction. The action of the master was ex parte. The rules of court provide as to how a master shall conduct hearings after notice to parties not in default. The court adopted the recommendation of the master and incorporated it in his order of Jnne 29, 1939, as a basis for modifying the order entered June 23, 1939, granting a temporary injunction. Said language reads as follows :

“And it appearing to the Court that said complaint has this day been submitted by the plaintiff to Julius H. Miner, one of the Masters in Chancery of this Court without notice to the defendants or either of them or their counsel of such appearance before said Master, neither of said defendants being represented before said Master, and said Master having endorsed on said complaint in writing that he had examined the complaint and recommends that a temporary injunction issue as in the complaint prayed . . . .”

As before stated an injunction was issued without notice. There is no prayer in the bill asking for an injunction without notice and in addition to that such action is in violation of the statute. Chapter 69, par. 3, sec. 3, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 109.351] on Injunctions, reads as follows:

“No court, judge or master shall grant an injunction without previous notice of the time and place of the application having been given to the defendants to be affected thereby, or such of them as can conveniently be served, unless it shall appear, from the complaint or affidavit accompanying the same, that the rights of the plaintiff will be unduly prejudiced if the injunction is not issued immediately or without such notice. ’ ’

In the case of Thulin v. National Ice & Fuel Corp., 293 Ill. App. 155, which is a case similar to the one before us for consideration, this court had occasion to call attention to the fact that the injunction was issued in direct violation of the statute. Such is also true in the instant case.

We know of no power or authority whereby a master in chancery is permitted to make recommendations for a temporary injunction, unless the same has been referred to him by the court for that purpose. Preston v. Hodgen, 50 Ill. 56. The master possesses no power to either add to or extract from the meaning of the words of the bill of complaint anything which the court itself could not discern. The master’s recommendations, based on an ex parte hearing without evidence adds nothing* to the bill nor can his conclusions or recommendations, merely based on reading the bill, be used as the sole basis for the issuance of an injunction such as the one under discussion in this case. If, however, the bill justifies the issuance of an injunction on its face, without notice, a different situation may arise, but in the instant case such a condition does not exist. In addition to what has been said, one need but to read next to the last paragraph of the injunctional order to determine that the injunction cannot stand.

The court’s order of June 23, 1939, contained the following:

“It Is Further Ordered that the defendant, F. & W. Metal Forming Machinery Co., a corporation, be and it is hereby ordered and directed to manufacture the machines designated in the exhibit attached to the sworn bill of complaint and designated as ‘method of and machine for bending sheet metal’ and ‘edge bending machine, ’ in sufficient quantities to furnish the needs of the plaintiff for the sale and distribution thereof in quantities not less than the provisions contained in the contract between the respective parties.” This amendatory provision, by its terms, puts the court in the position of determining how many machines should be furnished by defendants or at least to decide as to how many machines are sufficient to comply with the contract. In addition to that it is an uncertain preliminary mandatory order relative to matters, the status of which would be changed from day to day.

The primary purpose of issuing an injunction in any case is to maintain a status which exists and to cause no change until a hearing can be had, but it is not usually permissible as a preliminary injunction to issue what is known as a mandatory injunction which changes the status. In addition to this such multitudinous and detailed activities of individuals are not supervised and directed by a court of equity and the order directing that this be done should not have been entered.

Many other points are raised, but it is not necessary that they be passed upon at this time. Suffice it to say that the preliminary injunction should not have been issued and the court committed error in so doing.

For the reasons herein given the judgment order granting said injunction is reversed.

Judgment reversed.

Hebel and Burke, J J., concur.


author: Justice Friend.

text:
    First District.
    Hillside Fluor Spar Mines, Appellee, v. Hartford Accident and Indemnity Company, Appellant.
    Gen. No. 39,752.
    opinion filed June 28, 1939;
    rehearing denied July 11, 1939.
    Wilson & Mcllvaine, for appellant; J. F. Dammann and Sidney EL. Jackson of counsel; To well & Langdon, for appellee.
   Opinion by

Justice Friend.

“Hot to be published in full.’’


text:
    Mary Gorman and Joseph Morper, Appellees, v. W. Piszynski, Trading as Lincoln Baking Company, and M. Sewinski, Appellants.
    Gen. No. 40,479.

      opinion filed June 28, 1939;
    rehearing denied July 11, 1939.
    Delmar J. Hill and Cedric C. Herrmann, for appellants; Henry Mitgang, for appellees; Joseph G. Robinson, of counsel.
   Opinion by

Justice Friend.

“Not to be published in full.”


author: Justice Scanlan.

text:
    Paragon Press, Appellee, v. Wilson and Company, Inc., Appellant.
    Gen. No. 38,837.
    opinion filed June 28, 1939;
    rehearing denied July 11, 1939.
    Brown, Gembick, Ware & Freeman, for appellant; Paul Ware and Marshal Wiedel, of counsel; Joseph P. Savage, for appellee; Chas. H. Kinnane and W. F. McLaughlin, of counsel.
   Opinion by

Justice Scanlan.

“Not to be published in full.”


text:
    Benjamin G. Kilpatrick, Appellee, v. Elmer G. Olson et al., Appellees. Thomas J. McMahon, Receiver for the use and benefit of Charles L. McNamara, Receiver’s Attorney, Appellant, v. Benjamin G. Kilpatrick et al., Appellees.
    Gen. No. 40,212.
    opinion filed June 28, 1939.
    Edward O. Guilmez, for appellant; Kirkland, Fleming, Green, Martin & Ellis and Samuel A. & Leonard B. Ettelson, for appellee Benjamin G. Kilpatrick; J. B. Cleaver, Wm. H. Van Oosterhout and Wayne P. Swonk, of counsel.
   Opinion by

Justice Scanlan.

"Not to be published in full.”


author: Justice McSurely.

text:
    Joseph Rogacki, Appellee, v. Baird and Warner, Inc., et al., Defendants. Baird & Warner, Inc., Appellant.
    Gen. No. 40,541.

      Heard in first division, first district, at December term, 1938;
    opinion filed June 30, 1939.
    George C. Bliss, for appellant; David Alswang and Melbourne A. Oliapp, for appellee; David Alswang, of counsel.
   Opinion by

Justice McSurely.

“Not to be published in full. ’ ’


text:
    Jacob Glick, Appellant, v. Nathan F. Wallach and Leo Wallach, Appellees.
    Gen. No. 40,562.
    opinion filed June 30, 1939.
    Warden & Becker, for appellant; Benjamin M. Becker, of counsel; Pritzker & Pritzker, for appellees; Nicholas J. Pritzker and Stanford Clinton, of counsel.
   Opinion by

Justice McSurely.

“Not to be published in full.”


author: Justice O’Connor;

text:
    Corrie H. Stribling, Appellee, v. Thomas L. Grace et al. John F. Kent, Appellant.
    Gen. No. 40,544.

      opinion filed June 30, 1939;
    rehearing denied and supplemental opinion filed October 3, 1939.
    Mulealiy, Murphy & Walsh, for appellant; Michael F. Mulcahy, Maurice G. Walsh, Edwin D. Lawlor and Ashley Greene, of counsel; Alfred Roy Hulbert and Raymond E. Ehrlich, for appellee.
   Opinion by

Justice O’Connor;

supplemental opinion by Presiding Justice Matchett. “Not to be published in full.”


author: Presiding Justice Matchett.

text:
    Louis J. Borowsky, Appellant, v. Werner A. Wieboldt et al., Appellees.
    Gen. No. 40,502.
    opinion filed October 3, 1939.
    Harold A. Fein, for appellant; Edward S. Altersohn, of counsel; Harry J. Guyon ánd Eli B. Herren, for certain appellee; Downs,'MeGoorty & Howe, for certain other appellee.
   Opinion by

Presiding Justice Matchett.

“Not to be published in full.”


text:
    Kathleen E. Moseley, Appellee, v. Alexander Moseley, Appellee. J. Kent Green, Appellant.
    Gen. No. 40,526.
    opinion filed October 3, 1939.
    J. Kent Greene, pro se; Clarence W. Shaver, Newell McCartney and James B. Hood, for appellees; Louis E. Levinson, of counsel.
   Opinion by

Presiding Justice Matchett.

“Not to be published, in full.’ ’


text:
    Raymond E. Korzeniewski and Susan F. Klarkowski, Appellants, v. Harry J. Korzeniewski et al., Defendants. Harry J. Korzeniewski and Irene J. Kadow, Individually and as Surviving Trustees Under Last Will and Testament of Joseph Korzeniewski, Deceased, and Z. H. Kadow, Appellees. Bernard J. Korzeniewski and Arthur L. Korzeniewski, Coappellants.
    Gen. No. 40,537.

      opinion filed October 3, 1939.
    Poppenhusen, Johnston, Thompson & Raymond and Jareeki & Brautigam, for appellants; Frederick Mayer and George A. Brautigam, of counsel; Wolf & Love and Harry M. Biedka, for appellees; Stephen Love and Harry M. Biedka, of counsel.
   Opinion by

Presiding Justice Matchett.

‘ ‘Not to be published in full.”


author: Presiding Justice Hatchett.

text:
    Abram L. Myers, Individually and as Trustee of The Estate of Albert M. Docter, Deceased, Appellant, v. Frannie S. Docter et al., Appellees.
    Gen. No. 40,557.
    opinion filed October 3, 1939.
    Harry J. Myerson, for appellant; Weightstill Woods, of counsel; Wilhaxtz & Hirseh, for appellees; J. S. Greenberg, Julian H. Levi and Otto A. Bek, of counsel.
   Opinion by

Presiding Justice Hatchett.

‘‘-Not to be published in full.”


text:
    Montgomery Ward and Company, Inc., Appellant, v. Robert G. Tarr. Boston Dental X-Ray Laboratory, Appellee.
    Gen. No. 40,569.

      opinion filed October 3, 1939.
    J. I. Sperling, for appellant; no appearance for appellee.
   Opinion by

Presiding Justice Matchett.

“Hot to be published in full.”


text:
    Beatrice Kraus, Appellant, v. Samuel Kraus, Appellee.
    Gen. No. 40,577.
    opinion filed October 3, 1939;
    McGinnis & Mc-Ginnis, for appellant; Edward J. McGinnis, of counsel; Bobb, Spoerri, Bourland & Harris, for appellee; William L. Bourland, William A. Me-Swain and Thomas J. Barnett, of counsel.
   Opinion by

Presiding Justice Matchett.

“Hot to be published in full.”


text:
    Theresa Freedman, Appellee, v. Mary Corbett Hunt and George F. Hunt, Appellees. Hartford Accident and Indemnity Company and Chicago Title and Trust Company, as Administrator of Estate of May Corbett Hunt, Deceased, Appellants.
    Gen. No. 40,596.

      opinion filed October 3, 1939.
    Arthur E. Walsh, for certain appellant; Alfred F. Beck, for certain other appellant; Nathan Schwartz, for appellee Theresa Freedman; Bernard Allen Fried, of counsel.
   Opinion by

Presiding Justice Matchett.

‘ ‘Not to be published in full.”


text:
    Jules J. Reingold, Appellant, v. Lloyd F. Peterson et al., Appellees.
    Gen. No. 40,605.
    opinion filed October 3, 1939;
    rehearing denied October 18, 1939.
    Nathan Schwartz and Bernard Allen Fried, for appellant; Robert H. Olson, for appellees.
   Opinion by

Presiding Justice Matchett.

‘‘Not to be published in full.”


text:
    E. W. Wenstrand, Trustee, Appellee, v. Fred A. Rathje, Trustee, Appellant, and Cordelia L. Ingersoll, Individually and as Executrix of Last Will and Testament of Stephen A. Ingersoll, Deceased, Appellee.
    Gen. No. 40,571.

      opinion filed October 3, 1939.
    Bathje & Connor, for appellant; Maurice L. Davis and Oliver B. Opsahl, of counsel; Vernon B. Loueks, for appellee.
   Opinion by

Justice McSurely.

“Not to be published in full. ’ ’


text:
    Brenda Holter, Appellee, v. Forrest W. Holter, Appellant.
    Gen. No. 40,579.
    opinion filed October 3, 1939.
    H. M. Phipps, for appellant; no appearance for appellee.
   Opinion by

Justice McSurely.

“Not to be published in full.’ ’


text:
    B. Moskovitz, Appellant, v. Chester Arthur Wood et al., Appellees.
    Gen. No. 40,613.

      opinion filed October 3, 1939;
    rehearing denied October 18, 1939.
    Maurice L. Davis, for appellant; A. F. W. Siebel and Arthur F. Siebel, for appellees.
   Opinion by

Justice McSurely.

“Not to be published in full. ’ ’


text:
    Maywood Farms Company, Appellant, v. Milk Wagon Drivers Union of Chicago, Local 753, et al., Appellees.
    Gen. No. 40,296.
    opinion filed October 16, 1939;
    supplemental opinion filed October 27, 1939;
    Sloan, Levings & Short, for appellant; William H. Sloan, of counsel; David A. Biskind and Abraham W. Brussell, for appellees.
   Opinion by

Justice McSurely.

‘ ‘Not to be published in full.”


author: Justice O'Connor.

text:
    Hendrickson Motor Truck Company et al., Appellees, v. International Association of Machinists et al., Appellants.
    Gen. No. 40,642.
    Opinion filed October 16, 1939.
    Abraham W. Brussell and Daniel D. Carmell, for appellants; Branklin J. Stransky and Seymour M. Lewis, for appellees.
   Opinion by

Justice O'Connor.

“Not to be published in full.”


text:
    Donald F. Moore, Appellant, v. Margaret E. Kelly, Appellee.
    Gen. No. 40,672.
    opinion filed October 23, 1939.
    "Win. A. Ounnea, for

    appellant; Richard P. Garrett, of counsel; Maurice J. Walsh, for appellee.
   Opinion by

Presiding Justice Matchett.

“Not to be published in full.”


text:
    Thomas N. Papadopulos, Appellant, v. Anna C. O’Connell, as Administratrix of Estate of William L. O’Connell, Deceased, et al., Defendants Below, Charles H. Albers, Appellee.
    Gen. No. 40,693.
    opinion filed October 23, 1939.
    Davis P. Buzane and Edward H. S. Martin, for appellant; Norman C. Barry, for appellee; Arnold F. Berger, of counsel.
   Opinion by

Presiding Justice Matchett.

“Not to be published in full.”


text:
    George B. Mulloy, Appellant, v. Consoer, Older and Quinlan, Inc., Appellee.
    Gen. No. 40,651.
    opinion filed October 23, 1939.
    William A. Cunnea, for appellant; Richard P. Garrett, of counsel; Theodore A. Kolb, for appellee.
   Opinion by

Justice McSurely.

‘ ‘Not to be published in full.”


text:
    Goldie Richards, Appellee, v. Mohawk Country Club, Appellant.
    Gen. No. 40,665.
    opinion filed October 23, 1939.
    George O. Bliss and Abraham Lepine, for appellant; Donald J. Seeley, for appellee.
   Opinion by

Justice McSurely.

‘‘Not to be published in full.”


author: Justice O’Connor.

text:
    Andrew Bednarczyk, Appellee, v. Rozalia Kudla et al., Defendants. Matilda Yoelin, Administratrix, Appellant.
    Gen. No. 40,646.
    opinion filed October 23, 1939;
    rehearing denied November 6, 1939.
    Estelle M. Wells, for appellant; William M. Zipperman, for appellee; Maurice L. Lewis and Irving S. Alirams, of counsel.
   Opinion by

Justice O’Connor.

‘‘Not to be published, in full.”


author: Presiding Justice Denis E. Sullivan.

text:
    Louis M. Quitman, Successor Trustee, Plaintiff, v. Jeremiah W. Dowd et al., Defendants. Sara M. Dewey et al., Appellants, v. Charles E. Bartley et al., Appellees.
    Gen. No. 40,556.
    opinion filed October 25, 1939.
    Peabody, Westbrook, Watson & Stephenson, for appellant Sara M. Dewey; Morris Blank, for appellant Sarah Mincer; Walter W. Baker, for appellant Harry Flynn; Kirkland, Fleming, Green, Martin & Ellis, for appellee George E. Bartley; Bartlett S. Marimon and Charles M. Bush, of counsel; Sarsfield Collins, for appellee Louis M. Quitman.
   Opinion by

Presiding Justice Denis E. Sullivan.

‘ ‘Not to be published in full.”


text:
    City of Chicago, Appellee, v. Western Shade Cloth Company, Appellant.
    Gen. No. 40,585.
    opinion filed October 25, 1939;
    rehearing denied November 9, 1939.
    Tatge & Tatge and Bobert F. Kolb, for appellant; Barnet Ho des, Corporation .Counsel, for appellee; Alexander J. Besa and L. Louis Karton, Assistant Corporation Counsel, of counsel.
   Opinion by

Presiding Justice Denis E. Sullivan.

‘ ‘Not to be published in full.”


text:
    Katherine Greybar, Appellee, v. Metropolitan Life Insurance Company, Appellant.
    Gen. No. 40,599.
    opinion filed October 25, 1939;
    rehearing denied November 9, 1939.
    Hoyne, O’Connor & Rubinkam, for appellant; Nathaniel Rubinkam and James O. Rich, of counsel; Weinstein, Murray & Weinstein, for appellee; Meyer H. Weinstein and Irving H. Weinstein, of counsel.
   Opinion by

Presiding Justice Denis E. Sullivan.

“Not to be published in full.”


text:
    Clara Siegel and Vera Carrose, Trustee, Plaintiffs. Clara Siegel, Appellee, v. Mercantile Trust and Savings Bank of Chicago and Benjamin B. Morris, Defendants. Benjamin B. Morris, Appellant.
    Gen. No. 40,612.
    opinion filed October 25, 1939.
    Benjamin B. Morris, pro se; David I. Spark, of counsel; Charles J. Trainor, for certain appellee; Gann, Secord, Stead & McIntosh, for certain other appellee; Loy N. McIntosh and Bert Thayer, of counsel.
   Opinion by

Presiding Justice Denis E. Sullivan.

“Not to be published in full.”


text:
    H. W. Twiehaus, Trustee, Appellee, v. 5625 Winthrop Building Corporation, et al., Appellees. Appeal of Henry B. Ryan Company, et al., Appellants.
    Gen. No. 40,634.
    opinion filed October 25, 1939;
    rehearing denied November 9, 1939.
    Coneannon, Dillon, Bostelman & Snook and Maurice L. Davis, for appellants; Maurice L. Davis, of counsel; Pritzker & Pritzker, for appellee H. W. Twiehaus; Richard Weinberger, of counsel; Shulman, Shulman & Abrams, for appellee Thelma Karlin; Meyer Abrams, of counsel.
   Opinion by

Presiding Justice Denis E. Sullivan.

“Not to be published in full.”


author: Opinion by Justice Burke.

text:
    Draper and Kramer, Inc., Appellant, v. Joseph Barnett and Essie Barnett, Appellees.
    Gen. No. 40,266.

      opinion filed October 25, 1939;
    rehearing denied November 9, 1939.
    Sonnensehein, Berkson, Lautmann, Levinson & Morse, for appellant; Herbert M. Lautmann and Jesse H. Brown, of counsel; Rosenthal, Hamill, Eldridge & King, for appellees; Willard L. King and Newell A. Clapp, of counsel.
   Opinion by

Justice Burke.

“Not to be published in full. ’ ’


author: Justice Burke.

text:
    Russell F. Locke, Appellant, v. Hyman Feinberg and Elmer Fisher, Appellees.
    Gen. No. 40,761.
    opinion filed October 25, 1939.
    Albert W. Froehde, for appellant; A. S. and E. W. Froehlieh, for appellees.
   Opinion by

Justice Burke.

“Not to be published in full.”


author: Justice Hebel.

text:
    Henry A. Miller, Appellee, v. Bartlett State Bank, Appellant.
    Gen. No. 40,604.
    opinion filed October 25, 1939;
    rehearing denied November 9, 1939.
    Sehaehner & Siegan, for appellant; Joseph M. Sehaehner and Harold A. Siegan, of counsel; Gariepy & Gariepy, for appellee; Fred A. Gariepy, William Jacobs and Victor P. Frank, of counsel.
   Opinion by

Justice Hebel.

“Not to be published in full.’ ’


text:
    Boyne Platt et al., Appellants, v. Joe Fischer et al., Defendants. Union Bank of Chicago and Harry R. Spellbrink, as Receiver of the Union Bank of Chicago, Appellees.
    Gen. No. 40,629.

      opinion filed October 25, 1939.
    Theodore A. Kolb, for appellants; Schuyler & Hennessy, for appellees; Jay Stough, of counsel.
   Opinion by

Justice Hebel.

“Not to be published in full.’’


text:
    Marie Giangrosso, Appellee, v. Metropolitan Life Insurance Company, Appellant.
    Gen. No. 40,650.
    opinion filed October 25, 1939.
    Hoyne, O’Connor & Rubinkam, fo-r appellant; Nathaniel Rubinkam and James C. Rich, of counsel; Milton H. Weiss and Edward W. Weiss, for appellee.
   Opinion by

Justice Hebel.

“Not to be published in full.’’


text:
    Isabelle Leal, Appellee, v. Metropolitan Life Insurance Company, Appellant.
    Gen. No. 40,660.

      opinion filed October 25, 1939.
    Hoyne, O’Connor & Rubinkam, for appellant; Nathaniel Rubinkam and Ira W. Hurley, of counsel; Raymond F. Hayes and John F. Shea, for appellee.
   Opinion by

Justice Hebel.

‘ ‘Not to be published in full.”


author: Justice Wolfe.

text:
    Second District.
    Edith Frye, Appellee, v. Illinois Power and Light Corporation, Appellant.
    Gen. No. 9,362.
    opinion filed January 26, 1939;
    opinion slightly modified and rehearing denied August 1, 1939.
    E. Bentley Hamilton, for appellant; Cassidy & Knoblock and John E. Chrlson, for appellee; John E. Cassidy and John E. Carlson, of counsel.
   Opinion by

Justice Wolfe.

‘‘Not to be published in full. ’ ’


author: Presiding Justice Dove.

text:
    The Prudential Insurance Company of America, Appellant, v. Jasper St. Angel et al., Appellees. F. Sidney Mariner, Appellee.
    Gen. No. 9,407.
    opinion filed August 3, 1939.
    Higgins & Minow, Early, Carpenter & Early, for appellant; Harold P. Minow, Joseph M. Minow and W. E. Carpenter, of counsel; Harry B. North and Large & Reno, for appellee F. Sidney Mariner.
   Opinion by

Presiding Justice Dove.

“Not to be published in full.’’


text:
    Paul Henneberry, Appellant, v. Henry E. Byers et al., Appellees.
    Gen. No. 9,424.

      opinion filed August 3, 1939.
    Young, Pares & Peterson, for appellant; Thomas J. Young, of counsel; March & Rossiter, for appellees; Benjamin F. March and Lyle H. Rossiter, of counsel.
   Opinion by

Presiding Justice Dove.

“Not to be published in full.’ ’


text:
    Frank Seger, Appellant, v. John Pollard et al., Appellees.
    Gen. No. 9,436.
    opinion filed August 3, 1939;
    rehearing denied October 3, 1939.
    Jacob Cantlin and Samuel Rubin, for appellant; A. M. Blodgett, for appellees.
   Opinion by

Presiding Justice Dove.

“Not to be published in full.”


author: Justice Huffman.

text:
    Russell Wayne Green and W. J. Bennett, Appellants, v. Paul Sartwell and Leon Sartwell, Appellees.
    Gen. No. 9,400.

      opinion filed August 3, 1939.
    A. M. Blodgett, for appellants; B. M. Eaton, for appellees.
   Opinion by

Justice Huffman.

“Not to be published in full.”


text:
    Claudia V. Underwood, Appellant, v. Charles F. Coates, Appellee.
    Gen. No. 9,406.
    opinion filed August 3, 1939.
    O’Harra, O’Harra & Roeth and Scofield & Bell, for appellant; Hunter, Kavanagh & McLaughlin, for appellee.
   Opinion by

Justice Huffman.

“Not to be published in full.”


text:
    A. M. Everhart, Appellee, v. Town of Milford. The Great Atlantic and Pacific Tea Company, Appellee, v. Town of Milford (S. O. Wright et al., Appellants).
    Gen. No. 9,412.

      opinion filed August 3, 1939.
    Milo J. Fleming, for appellants; George W. Loveless, for appellees.
   Opinion by

Justice Huffman.

‘‘Not to be published in full.”


text:
    William W. Blomberg, Appellant, v. Donald McDermaid, Appellee.
    Gen. No. 9,438.
    opinion filed August 3, 1939.
    B. Jay Knight, J. E. Goembel and Frederick H. Haye, for appellant; Frank E. Maynard, for appellee.
   Opinion by

Justice Huffman.

‘‘Not to be published in full.”


text:
    Cecil Conn, Administrator of Estate of Ronald Conn, Deceased, Appellant, v. Cooperative Trading Company and Joseph A. Grum, Appellees.
    Gen. No. 9,451.

      opinion filed August 3, 1939.
    J. A. Miller, for appellant; Henry D. Pisher, of counsel; Bunyard & Behanna, for appellees; Eugene M. Bunyard and Fred B. Meyer, of counsel.
   Opinion by

Justice Huffman.

“Not to be published in full.”


text:
    Otto Pohl, Administrator of Estate of Evelyn Pohl, Deceased, Appellant, v. Adam Fazzi, Appellee.
    Gen. No. 9,454.
    opinion filed August 3, 1939.
    Walker F. Hull, B. Jay Knight and John E. Goembel, for appellant; Frank E. Maynard, for appellee.
   Opinion by

Justice Huffman.

“Not to be published in full.”


text:
    General Motors Acceptance Corporation, Appellant, v. Herman Goldstein, Appellee.
    Gen. No. 9,421.
    opinion filed August 3, 1939.
    Eagle & Sweeney and Taylor, Miller, Busch & Boyden, for appellant; Edward L. Eagle, Francis X. Busch, Cassius M. Doty and Stephen A. Mitchell, of counsel; Huber & Reidy, for appellee; Ben. T. Reidy, Isador I. Katz and Albert Huber, of counsel.
   Opinion by

Justice Wolfe.

“Not to be published in full.”


author: Justice. Wolfe.

text:
    E. P. Kastien, Appellee, v. Northwestern Steel and Wire Company, Appellant.
    Gen. No. 9,430.
    opinion filed August 3, 1939;
    rehearing denied August 21, 1939.
    Sheldon & Brown, for appellant; William P. Buchanan, for appellee; Max J. Lipkin, of counsel.
   Opinion by

Justice. Wolfe.

“Not to be published in full.”


text:
    G. J. Jaffe et al., Appellants, v. Auto Mechanics Local No. 1,049 et al., Appellees.
    Gen. No. 9,435.
    opinion filed August 3, 1939;
    rehearing denied October 3, 1939.
    Eva L. Minor, for appellants; Daniel D. Carmell for appellees.
   Opinion by

Justice Wolfe.

“Not to be published in full.”


text:
    Norvella M. LeMay, Appellee, v. Jacob F. Mayer and Martha E. Mayer, Appellants.
    Gen. No. 9,439.
    opinion filed August 3, 1939.
    Ryan & Hood, for appellants; Smith & Menzimer, for appellee.
   Opinion by

Justice Wolfe.

“Not to be published in full.”


text:
    Roberta Spangler, Appellee, v. L. A. Blackburn and L. C. Blackburn, Trading as G. W. Blackburn and Company, Appellants.
    Gen. No. 9,446.
    opinion filed August 3, 1939.
    Steely, Steely, Graham & Dysert and Malo & Bell, for appellants; H. M. Steely, Jr., Wallace J. Bell and Stephen C. Malo, of counsel; Roscoe C. South, for appellee; Melnerney, Epstein & Arvey, of counsel.
   Opinion by

Justice Wolfe.

“Not to be published in full.”


text:
    Robert W. Petterson, Appellant, v. R. J. Cannell, Appellee.
    Gen. No. 9,396.
    opinion filed August 18, 1939.
    Miller & Thomas, for appellant; L. O. Miller, of counsel; Frank E. Maynard, for appellee.
   Opinion by

Justice Huffman.

“Not to be published in full.”


text:
    R. W. Schmook et al., Appellees, v. Charles Fane et al., Appellants.
    Gen. No. 9,370.
    opinion filed August 18, 1939.
    Wendt & Greenquist, for appellants; Joseph M. Jacobs, of counsel; Edward S. Foltz, Jr., for appellees.
   Opinion by

Justice Wolfe.

‘‘Not to be published, in full.”


text:
    The People of the State of Illinois ex rel. Oscar Nelson, Plaintiff, v. Farmers and Merchants State Bank of Leland, Illinois, Defendant. In re Intervening Petition of Clarence Newton and Clyde Newton, Appellees, v. Leslie Hanson, Receiver of the Farmers and Merchants State Bank of Leland, Illinois, Appellant.
    Gen. No. 9,458.

      opinion filed August 18, 1939.
    George V. B. Weeks, for appellant; H. R. Langer and Hibbs & Pool, for appellees.
   Opinion by

Justice Wolfe.

“Not to be published in full.”


text:
    Robert Thomas, Minor, By Harry Thomas, His Father and Next Friend, Appellant, v. Peter Siegman, Appellee.
    Gen. No. 9,347.
    opinion filed August 25, 1939.
    George S. McGaugliey and Clarence L. Brown, for appellant; Gerald C. Snyder, for appellee.
   Opinion by

Presiding Justice Dove.

“Not to be published in full.”


text:
    Idell Lanes, Appellee, v. Walter Duffy, Appellant.
    Gen. No. 9,443.

      opinion filed August 25, 1939.
    Sears & Drolet, for appellant; Barnabas F. Sears, Kenneth D. Thomas and Leon L. Drolet, of counsel; Robert J. Wing, Arthur L. Buklin and Jerome Nelson, for appellee.
   Opinion by

Presiding Justice Dove.

“Not to be published in full.”


text:
    Charles DeLeuw and Company, Appellee, v. City of Dixon, Appellant.
    Gen. No. 9,351.
    opinion filed September 19, 1939.
    Gerald Jones and Clyde Smith, for appellant; Dixon, Devine, Bracken & Dixon and Mason & Mason, for appellee; George A. Mason, of counsel.
   Opinion by

Justice Huffman.

“Not to be published in full.”


text:
    Carter H. Harrison, Jr., Successor Receiver, Appellant, v. Lida N. Safford et al., Appellees.
    Gen. No. 9,441.
    opinion filed September 19, 1939.
    C. H. Linseott, for appellant; Leonard Lundin, of counsel; Madden & Laden, for appellees.
   Opinion by

Justice Huffman.

“Not to be published in full.”


author: Justice Huefman.

text:
    Frank W. Gibson, Administrator of Estate of Matilda Hansen, Deceased, Appellant, v. A. P. Shearburn, Appellee.
    Gen. No. 9,448.

      opinion filed September 19, 1939.
    MeCalmont, Ramsay & Bull, for appellant; Karl Tost, of counsel; Claude Brown and J. L. Spaulding, for appellee.
   Opinion by

Justice Huefman.

“Not to be published in full.”


text:
    Mabel Thurow, Appellant, v. Clarence Thurow, Appellee.
    Gen. No. 9,343.
    opinion filed October 11, 1939.
    O. H. Dixon, for appellant; Alsehuler, Putnam & Johnson, for appellee; Glenn T. Johnson and Clarence J. Ruddy, of counsel.
   Opinion by

Presiding Justice Dove.

“Not to be published in full.”


text:
    Frank H. Grove, Appellant, v. W. W. Grant, Deceased (Sarah B. Grant, Executrix), et al., Appellees.
    Gen. No. 9,411.

      opinion filed October 11, 1939.
    John M. Stager, for appellant; Jacob Cantlin and Samuel Rubin, for appellee Sarah B. Grant.
   Opinion by

Presiding Justice Dove.

“Not to be published in full.”


text:
    Ed Simpson, Appellant, v. Whittaker Farmers Grain Company, et al., Appellees.
    Gen. No. 9,440.
    opinion filed October 11, 1939.
    Y. A. Parish, for appellant; DeSelm & Schneider, for appellees.
   Opinion by

Presiding Justice Dove.

“Not to be published in full.”


text:
    Hazel Krum, Administratrix of Estate of John Robert Krum, Deceased, Appellant, v. Miles Rogers, Appellee.
    Gen. No. 9,456.

      opinion filed October 11, 1939.
    A. M. Hamilton, B. Jay Knight and J. E. Goembel, for appellant; Frederick H. Haye, of counsel; Martin v. Peterman and Bobert L. Bracken, for appellee.
   Opinion by

Presiding Justice Dove.

“Not to be published in full.”


author: Presiding Justice Riess.

text:
    Third District.
    Taylorville Savings, Loan and Building Association, Appellant, v. W. B. McBride et al., Appellees.
    Gen. No. 9,175.
    opinion filed April 24, 1939;
    rehearing denied October 3, 1939.
    J. E. Hogan and Harold Broverman, for appellant; Hershey & Bliss and Daniel H. Dailey, for appellees.
   Opinion by

Presiding Justice Riess.

“Not to be published in full. ’ ’


author: Presiding Justice Stone.

text:
    Fourth District.
    Louis Moroni, Appellant, v. Charles H. Albers, Appellee.
    opinion filed October 13, 1939;
    rehearing denied October 24, 1939; J. E. Carr and D. F. Moore, for appellant; Ferrell & Hay and Charles E. Feirieh, for appellee.
   Opinion by

Presiding Justice Stone.

“Not to be published in full.”