text:
    Vera Cornwell, Appellee, v. Leiter Building Stores, Inc., Appellant.
    Gen. No. 34,618.
    Heard in the first division of this court for the first district at the October term, 1930.
    Opinion filed December 22, 1930.

      Joseph H. Hinshaw, for appellant.
    Charles C. Spencer, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.

Plaintiff brought an action on the case to recover damages for personal injuries consisting of burns caused by a hair curling machine while she was having a permanent wave in a hairdressing parlor which the declaration alleged was owned, controlled and operated by defendant. Upon trial she had a verdict for $1,500 and from the judgment thereon defendant appeals.

Defendant pleaded the general issue and also that it did not own, control and operate the hairdressing establishment, and that it did not invite plaintiff into said establishment and was not employed by her to dress her hair.

Defendant asserts that the beauty parlor where plaintiff was injured was not controlled and operated by it but by the Schreiber Beauty Parlors, Inc. Defendant occupies a large building, a half block on State Street and running from Van Burén to Congress Streets in Chicago. It grants licenses to a considerable number of merchants to operate small shops or departments in the store. One of these licensees was the Schreiber Beauty Parlors, Inc., carrying on the business of hairdressing and the like. The license is written and provides that the licensor (defendant here) would furnish advertisements for which the licensee was to pay a certain sum. Such advertisement was to be handled by an advertising department maintained by the licensor and all advertisements were subject to the approval of the licensor. The licensor was to furnish janitor and telephone service. The licensor was entitled to receive a sum equal to 12% per cent of the gross income of the licensee. The licensor reserved the right to direct the general policy of the business carried on by the licensee, including the character of the merchandise, sales policy, advertising and sales, and the licensee agreed to conform to all policies from time to time prescribed by the licensor. The licensee agreed that the licensor should not be liable for any damages sustained by any person due to the negligence of the licensee. The licensee also agreed to observe such rules and regulations as the licensor may prescribe for the carrying on of the business.

Plaintiff testified that she had never heard of the Schreiber Beauty Parlors until a few days before the trial; that she saw advertisements in the Chicago Daily News advertising various items of merchandise which could be purchased at the store of defendant; that in this advertisement was a line advertising hair cutting and also these words:

“Letter’s policy of giving you just a little more for your money than you expected ... of serving you just a little better than you anticipated, has earned the valued patronage of countless friends. Think of what this means and'how you benefit by making Letter’s your established shopping place.
H. Flateau, Pres.”

Induced by these advertisements, plaintiff visited defendant’s store the first time in May, 1928. The name over the entrance doors to the store is “Leiter Building Stores.” She saw in the store the advertisement framed which had appeared in the Daily News; also an advertisement that a permanent wave could be had for the special price of $7.50. At this time she received her first permanent wave at this place and subsequently went back to the same beauty parlor and had other work done.

February 18, 1929, desiring to have another permanent wave, plaintiff looked in the telephone directory under the name of Leiter Building Stores and telephoned to the number given and made an appointment for that afternoon. While receiving the permanent wave, which involves the application of heat, she was burned on the head. That the operation was negligently performed, injuring plaintiff, is-not in dispute.

The court properly instructed the jury that, if defendant by its actions and conduct held itself out and represented to the public and to the plaintiff that it was the proprietor of and operated the beauty parlor in question and that plaintiff believed that defendant was, in fact, conducting said beauty parlor and had no notice or knowledge that it was being conducted by any other person than defendant, then defendant would be responsible to plaintiff for the conduct of the persons who gave the permanent wave to her at the time she was injured. While defendant in its brief says that the giving of this instruction was error, no cases are cited to support this assertion. A similar instruction has been approved in Fields, Inc. v. Evans (Ohio App.), 172 N. E. 702, opinion handed down in November, 1929. The facts there were almost identical with the facts in the instant case. There, the plaintiff was burned while receiving a permanent wave in a beauty parlor which she alleged was operated by the defendant, Fields, Inc. There were advertisements such as in the case before us, but Fields, Inc., attempted to show that one Edgar Higgins was the owner and operator of the shop. The opinion holds that:

“Where a corporation holds itself out as the owner or proprietor of such a beauty shop, located within its own store building, and apparently a part of its store, and a person comes to such store, goes in, and therefrom enters the beauty shop for the purpose of obtaining service, without knowledge that a third person is the owner and proprietor and has control of the beauty shop, but relying and having a right to rely wholly upon the holding out of such person or corporation, such corporation so holding itself out is liable for the actionable negligence of the operator in the beauty shop in giving treatments.”

Another case involving a person having her head burned while having her hair dressed is Augusta Friedman’s Shop, Inc. v. Yeates, 216 Ala. 434. There it was held that defendant having held itself out to the public as the owner or proprietor of the beauty shop could not escape liability by asserting that the particular shop was owned and operated by another, the opinion saying that the jury could well infer from the evidence that plaintiff believed the beauty shop was operated by defendant and relied upon this fact in having her hair dressed. In Hannon v. Siegel-Cooper Co., 167 N. Y. 244, where the plaintiff was injured by a negligent operation on her teeth and defendant asserted that the dental business was conducted by a Mr. Hayes individually, it was held that, where one contracts with the ostensible owner, he has a right to rely upon the presumption that the defendant would employ only skilful workmen to perform the services. The same principle was approved in Morris & Co. v. Malone, 200 Ill. 132, where it was sought to introduce evidence tending to show that Morris & Company was acting as the agent of the Fairbank Canning Company at the time of the accident. Such evidence was excluded on the ground that it had not been disclosed to • the injured person that Morris & Company was acting as agent for any one and that so far as known by the public and the workmen employed the work was performed by Morris & Company, and that it was liable to the same extent as if it were a principal.

Defendant claims errors in the rulings of the court upon the admission of evidence and in permitting leading questions. The particulars presented are not of controlling importance. While leading questions were sometimes permitted and some of the rulings as to the admissibility of evidence might be questioned, no reversible error was committed in this respect.

It is especially argued that it was reversible error to admit Bule 13 among the rules referred to in the license without admitting the rest of the rules and regulations. A witness for the defendant had testified that defendant had nothing to do with the hiring, discharging or directing of employees of the Schreiber Beauty Parlors, but there were general' rules of the store to which the employees must conform and that it was not true that there were to be no employees of the Schreiber Beauty Parlors except those employed in the employment office maintained by the defendant. On cross-examination the witness was shown Buie 13 and asked whether or not this was one of the rules and regulations in force. Upon answering in the affirmative, plaintiff’s counsel introduced this rule, which provides in substance that all employees in the licensee’s department should be hired and discharged by the licensee “only through an employment office maintained in the building under the direction of the licensor, and all matters pertaining to the discipline of such employees shall be handled through such employment office . . . and only such help shall be employed in the licensee’s department as shall be satisfactory both to the licensee and the licensor.” Plaintiff was entitled to introduce this as tending to contradict the evidence of defendant’s witness. Subsequently, defendant offered the other rules and regulations, which the court excluded on the ground that no proper foundation had been laid. This ruling may have been technically correct; in any event, the rules and regulations were not conclusive upon plaintiff and the error, if any, in the ruling, was not of sufficient importance to compel a reversal. We have examined the excluded rules which were marked for identification and are in the record. They are 31 in number, regulating the manner in which the licensees shall conduct their business. They contain nothing of decisive importance to the issue made, although they rather tend to support the theory of plaintiff, namely, that the businesses of the licensees were under the control of the defendant.

It is next claimed that the verdict is excessive, but the brief presents very little, if anything, in support of this claim." Plaintiff testified that she was a waitress in Henrici ’s in Chicago, receiving a salary of $8 a week and board and averaging $7 a day in tips; that she was unable to work on account of her injuries from February 18 to June 22. Figuring roughly, this would aggregate a loss in income of about $800. Her bill for medical services was $156. She was burned in three places on her head, which the doctor described as third degree burns which extended through every layer of the skin. A physician testified that one of the burns was badly infected when he first saw her, about a week after she received the injuries. Plaintiff testified that for some three weeks she had to sleep sitting up in a chair because one side of her head was scorched so badly. We are unable to say that the amount of the verdict, $1,500, is excessive.

The jury could properly find that the defendant was liable for the injuries received by plaintiff, and as there were no reversible errors on the trial the judgment is affirmed.

Affirmed.

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


source: Caselaw Access Project

author: Mr. Justice McSurely

license: Public Domain

text:
    Joseph Sleichert and Jozefa Sleichert, Appellees, v. Joseph C. Turek, Appellant.
    Gen. No. 34,751.
    Heard in the .first division of this court for the first district at the October term, 1930.
    Opinion filed December 22, 1930.
    Frame H. Novak, for appellant.

      Edward J. Bohac, for appellees.
   Mr. Justice McSurely

delivered the opinion of the court.

Defendant appeals from a decree entered pursuant to complainants’ bill enjoining him from prosecuting a suit at law against complainants on a note for $3,500 made by them.

Bill, answer and replication were filed and the cause referred to a master in chancery who heard the evidence and returned the same with his conclusions. Exceptions to the report were overruled and a decree entered following the recommendations of the master. The decree recites the salient facts.

January 19, 1926, complainants, owning certain real estate, executed their trust deed to the Cicero Trust & Savings Bank conveying the premises to secure the payment of their note for $3,500, payable to the order of themselves and by them indorsed, due five years after date, with interest at 6 per cent per annum. (This note was later bought by the defendant and is the subject matter of the decree enjoining him from suing at law to collect it.) Complainants sold the premises to Stefan Sadlon and wife subject to this trust deed. As part of the purchase price Sadlon and wife gave their note for the sum of $3,300, payable to the order of themselves and by them indorsed and delivered, due 18 months after date, with interest at 7 per cent per annum, secured by a trust deed on the premises. Thereafter complainants sold to the defendant this second mortgage note and delivered it with the trust deed. Defendant later foreclosed this second mortgage and bid in the premises for $2,100, and received a master’s certificate of sale. Thereafter defendant purchased from the Cicero Trust & Savings Bank the $3,500 first mortgage note executed by complainants. Default was made by Sadlon and wife in the payment of interest on the first mortgage note and defendant commenced an action at law on this note against the complainants. Thereupon complainants tendered to defendant the amount due on the note with interest and costs and demanded of defendant the delivery of the principal note and trust deed securing the same uncanceled, which defendant refused to surrender. Complainants then filed this bill and deposited the sum of $4,200 with the clerk of the circuit court and a temporary order was entered enjoining the defendant from prosecuting his action at law.

The decree found that said sum of $4,200 so deposited represented the amount due on the principal note of $3,500 with interest; that, when complainants sold the premises to Sadlon and wife the purchasers were given credit in the sum of $3,500, the amount of the note in question, on account of the purchase price of the premises, whereby said Sadlon and wife became and were obligated to pay said principal sum of $3,500 with interest; that by reason of the default of said Sadlon and wife as to said principal note and interest, it became the obligation of complainants, as makers of the note, to pay the same and upon payment complainants were entitled to receive all the security given for said debt. It was therefore ordered that defendant surrender uncanceled the said note with unpaid interest notes, together with the trust deed, to the clerk of the court, who should thereupon pay to defendant the amount due thereon, and it was ordered that defendant be perpetually enjoined from in any manner prosecuting his suit at law against complainants and he was enjoined from in any manner impairing or discharging the $3,500 note or releasing the same.

When complainants sold the property to Sadlon and wife the Sadlons become the principal debtors and the complainants sureties and the mortgaged property became the primary fund for the payment of the debt. In Fish v. Glover, 154 Ill. 86, it was held under similar circumstances that, where the mortgagors had conveyed the property and desired to foreclose the mortgage, if they were not then holders of the note and mortgage, they should, as sureties of the grantee, have paid the debt to the holder of the note and mortgage and they would then have been subrogated to the holders’ rights in the security, the opinion saying: “It is upon the payment of the debt by the surety, that he becomes entitled to be subrogated to the rights of the creditor. When a surety pays off the debt, equity transfers to him all the securities held by the creditor, but the creditor cannot be deprived of his security until the debt, for which it is pledged, is extinguished. . . . The surety can pay the debt the moment it becomes due, which is doing no more than he agreed to do, and immediately resort to the principal for reimbursement. . . . Where the owner of land sells it subject to mortgage executed by himself, the land in equity becomes the primary fund for the payment of the debt, and the vendor occupies the position of surety, and, upon payment of the mortgage debt, is entitled to be subrogated to the rights of the creditor the same as any other surety.”

This rule was followed in Howard v. Burns, 279 Ill. 256, where it was held, as between the mortgagor and his grantee, the mortgagor stood in the relation of a surety and “Had a right to pay notes for which he was personally liable as they came due, and the property became a primary fund for the payment of the debt, so that Shaw (the mortgagor) was entitled to be subrogated to the rights of the creditor . . . and he would have a right to foreclose the trust deed for his own benefit.” Citing many cases. See also Jones on Mortgages, vol. 2, sec. 1121; Pomeroy on Equity Jurisprudence, vol. 3, 4th ed., sec. 1205, p. 2874; Cornstock v. Hitt, 37 Ill. 542; Fowler v. Fay, 62 Ill. 375; Flagg v. Geltmacher, 98 Ill. 293.

This is a reasonable rule of equity. In the instant case, it appearing that defendant has assigned the master’s certificate which he received upon the foreclosure of his second mortgage and having received full value therefor, if he were permitted to maintain his action at law on the first mortgage note and obtain a judgment against the complainants and should he proceed to cancel the note and disregard the lien of the first mortgage, the assignee of the certificate would acquire the premises merely for the amount he had paid to defendant and the complainants would be deprived of the right to look to the premises as the primary fund out of which their debt might be paid.

Rogers v. Meyers, 68 Ill. 92, cited by defendant, is not controlling. In that case the mortgagor, who sought to have the holder of the note enjoined from prosecuting a suit at law upon a note made by him, made no offer or tender of payment but asked that the prosecution be perpetually enjoined. Complainant in that case also made allegations of fraud which, it was held, were not proven. Defendant also cites Knoblauch v. Fogelsong, 38 Minn. 459, but that case is readily distinguished on the facts. There, the mortgagors in first and second mortgages sold both to the same holder and, while recognizing the doctrine of subrogation, it was held that it would not be equitable under the circumstances to permit the mortgagors to be subrogated to the rights of the holder under the first mortgage who also held the second, unless the mortgagors paid both mortgages; the opinion saying that to grant subrogation on any other terms would compel the holder of the second mortgage, in order to protect it, to pay off the first mortgage to the very party who was legally bound to pay the second.' That case is not applicable here. The instant decree followed the well established practice ¿nd was proper.

Defendant complains of the order of the court striking his cross-bill from the files. The record shows that on March 19, 1929, the cause upon bill, answer and replication was referred to a master in chancery and thereafter hearings were had until May 17, 1929, when proofs were declared closed. On January 3, 1930, or nearly seven months after the proofs had been closed, defendant without leave of court filed his cross-bill, setting up substantially the same facts as he had set forth in his original answer and praying for an accounting. Subsequently, on January 20, the court struck the cross-bill from the files. It has been the long established practice that a defendant desiring to file a cross-bill must act with due diligence and file the same without unreasonable delay with a view of having it heard with the original bill. A denial of a motion to file a cross-bill after the proofs before the master are closed under the circumstances was no abuse of the discretion of the chancellor. Kelsey v. Clausen, 257 Ill. 402; Drew v. Drew, 271 Ill. 239; Howison v. Ruprecht, 121 Ill. App. 5.

We find no error in the record and the decree is affirmed.

Affirmed.

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


author: Mr. Justice O’Connor

text:
    Joseph D. Ryan, Defendant in Error, v. Chicago, Milwaukee, St. Paul & Pacific Railroad Company, Plaintiff in Error.
    Gen. No. 34,344.

      Heard in the first division of this court for the first district at the June term, 1930.
    Opinion filed December 22, 1930.
    M. L. Bluhm, C. L. Taylor and W. L. Hunter, for plaintiff in error; O. S. Jefferson, of counsel.
    Edmund M. Sinnott and Joseph D. Ryan, Pro Se, for defendant in error.
   Mr. Justice O’Connor

delivered the opinion of the court.

By this writ of error the defendant seeks to reverse a judgment of $2,500 in favor of plaintiff.

The record discloses that on April 5, 1929, Clifford Lawrence Dow, who was in the employ of the defendant Railroad Company as conductor of one of its trains, was killed and it was claimed by Julia Dow, his widow, that the railroad company was liable for wrongfully causing the death of her husband. On April 16, 1929, a friend took her to the office of plaintiff, a practicing lawyer in Chicago, and Ryan was retained to represent her. At that time Julia Dow signed a written document whereby she employed Ryan as her attorney to prosecute any suit or claim for damages she might have against the railroad company on account of her husband having been fatally injured while working for the railroad company, and in consideration of the services to be rendered by Ryan she agreed to pay him 33^ per cent of any amount she received. Ryan also signed the agreement, whereby he agreed to make no charge unless there wás a recovery and to make no settlement without the consent of Mrs. Dow. Written near the bottom of the document and made a part of it was the following: ‘In the event of settlement without trial, I agree to accept 25 per cent of amount recovered. Joseph D. Ryan.”

After the execution of this agreement Ryan began to investigate the facts in relation to Mrs. Dow’s claim, and on April 27, he served notice on the railroad company of his claim for attorney’s lien under the statute. In the meantime he had procured the appointment of Mrs. Dow as administratrix of the estate of her deceased husband, and after her appointment she wrote on the document of April 16 after her name the word “administratrix.” It further appears that shortly after April 16, Mrs. Dow took up with the railroad company direct the matter of the settlement of her claim and reached an agreement whereby the railroad company was to pay her $10,000 in full of all claims. She signed a release which stated that in consideration of the $10,000 she released the railroad company from all claims and demands. This is signed by Mrs. Dow as administratrix and by herself individually and bears date April 26, 1929. On the back of the document is a check of defendant, payable to Julia Dow, administratrix, for $10,000, dated April 29; the evidence shows the check was delivered to Mrs. Dow on April 29 but was not deposited in the bank until May 11 following.

The evidence further shows that on April 26, Mrs. Dow telephoned Ryan’s office and advised him she was settling her claim. Eyan was ont of the city but upon his return April 27, he took the matter up with another attorney who was then representing Mrs. Dow, and advised him of the contract he had with Mrs. Dow. It is agreed that the railroad company knew of Eyan’s claim for attorney’s fees on April 27,1929. Eyan filed his petition in the case asking for a lien; the matter was heard before the court and the judgment entered in Eyan’s favor for $2,500, being 25 per cent of the $10,000; as stated, the railroad company prosecutes this writ of error.

Defendant contends that the judgment is wrong and should be reversed because it made its settlement with Mrs. Dow on April 26, which was before it received notice from Eyan that he had been retained in the case as attorney for Mrs. Dow. There is evidence to the effect that the defendant had reached an agreement with Mrs. Dow on April 26, and that it had not been notified of Byan’s claim until the next day; but there is also evidence to the effect that the settlement was not consummated until April 29 when defendant gave its check to Mrs. Dow.

We think we would not be warranted in disturbing the finding of the court in favor of Eyan, as we are not authorized to do so unless we are of the opinion that the finding of the trial judge is against the manifest weight of the evidence. This we are unable to say.

Defendant further contends that the contract entered into between Eyan and Mrs. Dow was not binding for the reason that Mrs. Dow individually had no right to enter into such contract because the right of action was in the personal representative of the estate of her deceased husband, and that although Mrs. Dow, after her appointment as administratrix, signed the contract as administratrix, as above stated, yet she had no right, as administratrix, to settle the claim without authority from the probate court. In support of this contention chief reliance is placed by counsel for the defendant on the case of Mercer v. Chicago City Ry. Co., 174 Ill. App. 234, cited and discussed by counsel for defendant in their opening brief, but no reference is made to it by counsel for Byan in their brief, who cite and chiefly rely upon Washington v. Louisville & N. Ry. Co., 136 Ill. 49; American Car S Foundry Co. v. Anderson, 211 Fed. 301; and Mattoon Gas Light & Coke Co. v. Dolan, 105 Ill. App. 1. No reference to these cases is made by counsel for defendant in their reply brief.

In the Mercer case, suit was brought by an administratrix of the deceased against the Street Bailway Company for wrongfully causing the death of the deceased and there was a judgment in plaintiff’s favor, which the Street Bailway Company afterwards settled with the plaintiff. The plaintiff’s attorney then filed a petition setting up his employment, etc., and claiming a lien against the fund in plaintiff’s hands in accordance with the statute, pursuant to a notice he had given. The court there pointed out the provision of the attorney’s lien and said (p. 237): “That the defendant from whom the fund is recovered may be required to account to the attorney if his rights are ignored after notice thereof was held in Standidge v. Chicago Railways Co., 254 Ill. 524. But-the question here involved was not raised'or discussed in that case. The lien here sought is against the plaintiff, who sued as administrator.” The court then discusses the provisions of the Attorney’s Lien Act, Cahill’s St. ch. 13, 13, and said the administrator had no such authority over funds in his hands as would enable him to charge such funds or property by his contracts; that if such contracts were made they merely created a liability against him individually and not as administrator. The court then said (p. 238): “Since, therefore, neither the cause of action for which the suit was brought, nor the money recovered, belonged to Mercer personally, but to Mercer as administrator, and since Mercer, as such administrator, had no power to charge any funds or property in his hands as administrator with the payment of attorneys’ fees, it follows that Mercer’s contract with Case (the attorney) imposed no liability upon Mercer, as administrator, and therefore no hen attached to the money paid in settlement of the suit as against such administrator.”

In the Washington case (136 Ill. 49), suit was brought by the administratrix to recover damages for the benefit of the widow and next of kin for wrongfully causing the death of her intestate. Judgment was entered in her favor for $200 in accordance with an agreement filed properly entitled in the cause and signed by plaintiff as administratrix and by herself in her individual capacity. It was contended on behalf of the administratrix that she had no power to make a binding agreement for the settlement of the case; that before she could be authorized to make such a settlement she must secure an order from the probate court. In passing on this question the court said (p. 56): “We are of opinion that the statute referred to can have no application in cases of this sort. The recovery, here, was for the benefit, exclusively, of the widow and next of kin of the deceased person. The section of the statute referred to, requires the administrator to secure an order of the probate court authorizing him to settle or compound claims due the estateand it is manifest, we think, that the claim here sought to be recovered was not a claim due the estate, within the meaning of this section. It is impossible that the estate should have derived any benefit whatever by a recovery in this case. True it is that the administrator would be required to account to the widow and heir, but in no legal or proper sense to the estate of the decedent.

“This precise question was before this court in the case of Henchey, admx. v. City of Chicago, 41 Ill. 136, and the construction there given to the statute, authorizing recoveries in cases of this sort, has for very nearly a quarter of a century been accepted as the law. In that case a stipulation was filed in the absence of the plaintiff or her attorney, and the judgment of the court rendered thereon. It was sought, subsequently, to set aside that judgment upon the same grounds here insisted upon. In that case, after disposing of the other grounds upon which it was alleged the judgment should have been set aside, we said: ‘Neither can we agree with appellant’s counsel in the position that the plaintiff had no power to make the stipulation by which the suit was dismissed. The statute vested in her, as administratrix, the right of action, and the legal title to whatever damages were recoverable. This, of necessity, gave her the legal right to control the prosecution and disposition of the suit. Whether the children, who, with herself, were interested in the distribution of whatever damages might have been recovered, can call her to account for any error of judgment she may have committed in malting the settlement, is to be decided when they make the attempt.’ ” And the court held that the agreement made by the administratrix was binding.

In the Dolan case (105 Ill. App. 1), it was held that the administratrix, who was the sole beneficiary of the suit, had authority to settle a claim for damages on account of the death of the administratrix’ intestate. In that case the administratrix recovered a judgment of $1,000 for the wrongful death of her intestate, and on appeal this court said (p. 3): “Appellant (defendant) offered in evidence an instrument of writing, proved to have been executed by the widow, by which she acknowledged the receipt of $200, paid her by the appellant, in consideration of which she thereby released appellant from the cause of action incident upon her husband’s death.” The court held this agreement was binding and reversed the judgment.

In the instant case the administratrix, Mrs. Dow, is sole surviving beneficiary of the deceased and under the law as announced in the Washington and Dolan cases, supra, we hold that the contract entered into between Mrs. Dow individually, and as administratrix, with Byan, was binding and valid.

The defendant further contends that the notice served by Byan on it, claiming an attorney’s lien, did not correctly disclose his interest, and therefore was not in compliance with the statute. The argument is that the contract entered into between Byan and Mrs. Dow provided that Byan was to receive 33% per cent of any amount she received from defendant, for the services which were to be rendered by him, except that if the settlement was made without suit Byan was to receive but 25 per cent, while the notice served upon defendant by Byan stated that under his contract with Mrs. Dow he was to receive a sum equal to one-third of any amount recovered. There is no contention but that Byan acted in perfect good faith when he served the notice on the defendant stating he was to receive one-third of any amount recovered, and in these circumstances the variance, if any, being in favor of the defendant, the lien ought not to be held invalid.

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

Affirmed.

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


text:
    Mrs. Thelma K. Moskovitz, Jr., a Minor, by Bessie Kantor, her Next Friend, Plaintiff in Error, v. Kerman Stores Company, Defendant in Error.
    Gen. No. 34,495.
    Heard in the first division of this court for the first district at the October term, 1930.
    Opinion filed December 22, 1930.
    Rehearing denied January 5, 1931.
    Koven & Perlman, for plaintiff in error; Henry Perlman, of counsel.
    Heth, Lister & Collins, for defendant in error.
   Mr. Justice O’Connor

delivered the opinion of the court.

Plaintiff, a minor, brought suit by her next friend against the defendant to recover $989.40, claiming that she had purchased dresses and other wearing apparel for herself, for which she agreed to pay $4,016.90, from the defendant who conducted a retail store in Chicago; that she made payments on account aggregating $1,-497.85 and that but $508.45 worth of the apparel had been delivered to her; that on account of her minority she elected to rescind the contract and brought suit to recover the excess sum paid to the defendant. There was a trial before the court without a jury and a finding and judgment in defendant’s favor and plaintiff appeals.

The record discloses that plaintiff was not quite 17 years old and was to be married within a short time; that she and her mother went to defendant’s store for the purpose of purchasing her trousseau and that purchases were there made aggregating more than $4,000. At that time $180 was paid on account, but it appears that none of the apparel was to be delivered until paid for. Shortly thereafter other payments were made until they aggregated $1,497.85, and the evidence-further shows that the defendant delivered to the plaintiff goods of the value of but $508.45. The foregoing is established by the undisputed evidence and there is no contention to the contrary, but the controversy on the trial and in this court seems to be whether the goods were sold to plaintiff’s father and the money actually paid was the father’s money, as defendant contends, or whether the sale was to plaintiff and the money given to her by her father, as plaintiff contends. Plaintiff’s position is that prior to her marriage her father told her that he would give her $4,000 to be used by her for the purpose of paying for her trousseau or that it might be spent as she saw fit.

The evidence is undisputed that the money paid was money furnished by the father, and a great deal of argument in the defendant’s brief is to the effect that this fact being established, plaintiff could not recover. We think this contention is unsound. If the father had agreed to give his daughter $4,000 to be used by her as stated, and if the defendant sold the trousseau to the daughter, the fact that the father actually advanced the money to the daughter or paid it direct to the defendant would not make it his contract; but the contract would be the daughter’s, and she being a minor might, under the law, repudiate the contract and recover back the amount of money she had paid in excess of the goods delivered to her.

In the instant case we think the evidence shows that the contract was made by the daughter with the defendant company and not with her father. He was not at the store when the purchase was made; she went with her mother, and the evidence shows that the defendant charged the goods to the plaintiff and not to her father. Defendant also gave credit on the account to the daughter. The father was not brought into the case until some time after the contract was made, and then his important part was to furnish the money which the evidence showed he had agreed to give his daughter. Since we are of the opinion that the finding is against the manifest weight of the evidence, and since there was no jury trial, the judgment will be reversed with a finding of fact and judgment will be entered in favor of the plaintiff.

The judgment of the municipal court of Chicago is reversed with a finding of fact, and judgment is entered in this court in favor of plaintiff and against the defendant for $989.40.

Judgment reversed with a finding of fact and judgment in thi's court.

Hatchett, P. J., and HcSurely, J., concur.

Finding of fact: We find as a fact that the contract for the purchase and sale of the trousseau was made between plaintiff, a minor, and the defendant.


text:
    The People of the State of Illinois, Defendant in Error, v. Frederick Spies, Plaintiff in Error.
    Gen. No. 34,537.
    Heard in the first division of this court for the first district at the October term, 1930.
    Opinion filed December 22, 1930.
    Rehearing denied January 5, 1931.
    Jay J. McCarthy and Eugene McCaffrey, for plaintiff in error.
    John A. Swanson, State’s Attorney, for defendant in error; Henry T. Chace, Jr., Edw. E. Wilson and Otho S. Fasig, Assistant State’s Attorneys, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.

On June 16, 1930, an information was filed charging that the defendant, Frederick Spies, stole one dress of the value of $14.60 from the Davis Company. The defendant was taken into custody on that day and the cause was set for trial four days later, June 20. The matter then came on for hearing and the defendant entered a plea of guilty to the information. The court heard the evidence as to the aggravation and mitigation of the offense, found the defendant guilty of larceny and fixed the value of the property at $14.60 on the .defendant’s plea of guilty. He was sentenced to confinement in the county jail for one year.

On July 7 following, counsel representing the defendant appeared before the chief justice of the municipal court and asked leave to file a motion to vacate the judgment. Leave to file the motion was allowed and after hearing the motion was denied.

The record of the judgment entered by the municipal court shows that on June 20 the defendant was arraigned and “says that he is guilty in manner and form' as charged in said information, and the court having fully explained to said defendant the consequences of entering such plea, and the said defendant still persisting in pleading guilty as aforesaid, it is' ordered that said plea be and the same hereby is received and recorded.”

The contention of defendant was that the record above quoted was not warranted by the entries made on the “half sheet. ’’ And the motion was that the record be corrected to speak the truth. The entry of the “half sheet” is as follows: “Defendant arraigned, warned and still persisting, plea, guilty.” We think the court properly denied the motion of the defendant because the record as written up by the clerk followed the minutes of the order on the “half sheet.” The minute of the order shows that the defendant was arraigned, warned of the consequences of his plea of guilty and that he still persisted in pleading guilty and" the plea was therefore entered of record.

This case is not at all similar to the case of People v. Fulimon, 308 Ill. 235, where a similar motion was made. There the half sheet contained the following minute: “Leave to Bessie Moteke to file information. Court takes jurisdiction of defendant in court on information filed. Defendant waives jury trial. Defendant arraigned. Plea, guilty. Judgment.on plea defendant guilty.” It is obvious that the minute made by the' clerk in that case is entirely different from the minute in the record before us. In the Fulimon case there was no minute made by the clerk that the defendant was warned or persisted in his plea of guilty.

The judgment of the municipal court of Chicago is affirmed.

Affirmed.

Hatchett, P. J., and HcSurely, J., concur.


author: Mr. Presiding Justice Matchett

text:
    Truly Warner Company, Inc., Appellee, v. Royal Indemnity Company, Appellant.
    Gen. No. 34,238.

      Heard in the first division of this court for the first district at the April term, 1930.
    Opinion filed January 26, 1931.
    Musgrave, Oppenheim & Price, for appellant.
    Follansbee, Shorey & Schupp, for appellee; Clyde E. Shorey and Fred Barth, of counsel.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.

This suit is in sequence from Truly Warner Co., Inc. v. Kaufman Hats, Inc., 248 Ill. App. 632. In that case Kaufman Hats, Inc., appealed from a judgment in favor of Truly Warner Co., entered in the municipal court of Chicago in an action of forcible detainer to secure possession of certain premises in Chicago, the property of the trustees of the estate of Levi Z. Leiter. In perfecting that appeal the Boyal Indemnity Co., defendant here, signed the bond upon which plaintiff’s suit is based. The suit is brought by Truly Warner Co., Inc., against the Boyal Indemnity Co. alone.

Plaintiff filed a declaration to which defendant filed certain additional pleas. To these pleas a demurrer of plaintiff was sustained, defendant electing to stand by its default was entered, and damages were assessed by a jury. At the conclusion of the evidence the court peremptorily instructed the jury to find for plaintiff debt in the sum of $25,000 and damages to the same amount, and judgment in the usual form in actions of debt was entered on the verdict of the jury. That judgment defendant by this appeal seeks to reverse.

The declaration averred the beginning of the suit in forcible detainer, the entry of judgment therein in favor of plaintiff, the appeal to this court by Kaufman Hats, Inc., and the execution of the bond under seal on May 28,1926, by the Boyal Indemnity Co., and showed that the bond was in the form required by the statute. The condition of the bond was stated to be: “. . . if said Kaufman Hats, Inc., a corporation, shall duly prosecute its said appeal with effect, and moreover pay all rent now due or that may become due before the final determination of this suit, and also all damages and loss which the plaintiff has sustained, or may sustain by reason of the withholding of the premises in controversy and by reason of any injury done or to be done thereto during said withholding until the restitution of the possession thereof to the plaintiff, together with all costs accrued or that may accrue in case said judgment is affirmed or said appeal dismissed, then the above obligation to be void, otherwise to remain in full force and effect.”

The declaration further averred the stay of the writ of restitution by virtue of this appeal bond and that Kaufman Hats, Inc., “withheld possession of the said premises from the 1st day of May, 1926, to the 1st day of January, 1928”; that the judgment, was affirmed by the Appellate Court, and that “said Kaufman Hats, Inc., became and was obligated to pay to the plaintiff the rent in said writing obligatory mentioned for the premises in said complaint in the said forcible detainer proceeding mentioned, for the time said premises were withheld from the plaintiff, which rent amounted to $25,000 and still remains unpaid; whereby an action has accrued to the plaintiff to demand of the defendant, Boyal Indemnity Company, a corporation, the sum of $25,000 above demanded,” etc.

Attached to the declaration was an affidavit of plaintiff’s claim which stated that the nature of its demand was for rent which became due, and interest thereon, under the provisions of the bond set up in the declaration; that the judgment in the forcible detainer action was affirmed by the Appellate Court February 27, 1928, and that Kaufman Hats, Inc., withheld possession of the premises described in the forcible detainer proceeding from May 1, 1926, to December 31, 1927; that Kaufman Hats, Inc., had failed to pay rent for the premises for the 20 months during which it withheld possession of the said premises, and that the reasonable rental value of the premises was $25,000. for 20 months, being at the rate of $1,250 a month; that plaintiff was entitled to the possession of the premises mentioned under a lease whereby it was required to pay and did pay to the lessor as rent therefor the sum of $1,250 a month on the first day of each and every month of said term of 20 months from May 1, 1926, to December 31, 1927, making a total sum of $25,000 paid as rent during said term of 20 months, which said sum was due plaintiff from the Royal Indemnity Company.

A special demurrer of defendant to the declaration was overruled and defendant filed certain pleas which asserted that the suit in forcible detainer was based upon a certain lease made to plaintiff by the trustees of the Leiter estate, demising the premises to plaintiff for a term of five years, beginning May 1,1926; that at the time' that suit was instituted Kaufman Hats, Inc., was in possession of the premises under a lease to Benjamin H. Kaufman from the trustees of the Leiter estate, demising the premises for a term of five years beginning May 1,1921, and ending April 30, 1926; that no contract or covenant, express or implied, other than the bond in the declaration mentioned, was ever made or "existed between plaintiff and. the Kaufman Hats, Inc., and that plaintiff was therefore not entitled to' recover from Kaufman Hats, Inc., any rent for the time, the possession of the premises was withheld. • ,

The pleas alleged that the plaintiff was a corporation organized for profit under the laws of the State of New Jersey and was not a banking, insurance, building and loan or surety company; that plaintiff’s claim for the possession of the premises mentioned was based upon a lease, etc.; that plaintiff, on October 19, 1925, and for a long time prior thereto had been engaged in the State of Illinois in the business of selling merchandise at retail and had not procured at any time prior thereto from the secretary of state of Illinois a certificate of authority to transact business or maintain an office in this State; that it had not filed a copy of its charter, duly authenticated, and had not filed any statement with the secretary of state in compliance, or attempted compliance, with the provisions of subsection 2 of section 81 of the General Corporation Act of Illinois, Cahill’s St. ch. 32, If 81, subsec. (2); that thereafter and until June 19, 1926, plaintiff continued to engage in the business of selling merchandise in the State without procuring from the secretary of state of Illinois a certificate of authority to transact business or maintain an office in this State and without filing a copy of its charter duly authenticated, without filing any statement with the secretary of state in compliance or attempted compliance with the statute, and that therefore plaintiff was not entitled to recover from Kaufman Hats, Inc., any rent for the time the possession of the premises was withheld from plaintiff.

Other similar pleas further averred that the action of forcible detainer was not a suit at law or in equity within the meaning of section .94 of the General Corporation Act, Cahill’s St. ch. 32, ff 94, whereby Kaufman Hats, Inc., was precluded from setting up as a defense in that suit the failure of plaintiff to secure a certificate of authority, to file a copy of its charter and to file any statement as required by subsection 2 of section 81 of the General Corporation Act, Cahill’s St. ch. 32, If 81, subsec. (2).

Defendant also filed pleas of nil debit and non damnificatus.

A demurrer to all these pleas was sustained, and defendant elected to abide by its pleas. Its default for want of plea and affidavit of merits was entered, and damages were assessed as heretofore stated, evidence being received as to the rental value of the premises.

Defendant contends that the first, second, third and fourth additional pleas, which set up in effect that no rent was recoverable, presented a meritorious defense and that the court erred in sustaining the demurrer thereto; that under the declaration the amount of plaintiff’s recovery was determined by the rent reserved in the lease from the Leiter trustees, under which Kaufman Hats, Inc., was holding over; that the court therefore erred in receiving evidence as to the rental value of the premises in May, 1926; that there was no evidence before the jury as to the amount of rent provided in the lease under which Kaufman Hats, Inc., was holding over, and therefore there was no evidence upon which a verdict assessing damages could be based, and that the instruction to assess the damages at $25,000 was erroneous, there being no competent or relevant evidence to support it.

We will permit defendant to state its position in its own words. It says, “The principal contention of defendant is that plaintiff is basing its claim upon the non-payment of rent instead of basing it upon damages for the detention of the property.” It says that the declaration alleges that the breach of the bond was nonpayment of the rent; that the special demurrer of defendant raised the point that no rent was recoverable ; and that when the same point was set up by the pleas, plaintiff failed to meet these contentions either by amending’ its declaration or by filing a second count based upon the breach of the third condition of the bond, namely, the failure of Kaufman Hats, Inc., to pay the damage and loss which plaintiff sustained by reason of the withholding of the premises. Such amendment, defendant says, would have disposed of the contention now made, and it is clear, defendant asserts, “that the plaintiff is endeavoring not only to collect the $25,000 provided for by the bond, but also to establish that such indebtedness is for rent due from Kaufman Hats, Inc., to plaintiff.” Defendant further says that to establish in this case that $25,000 is due from Kaufman Hats, Inc., to plaintiff as rent, also establishes that the relationship of landlord and tenant existed between the plaintiff and Kaufman Hats, Inc., and will make that question res adjudicata in any other litigation that now exists or may hereafter exist between plaintiff and Kaufman Hats, Inc. It is stated as a fact by defendant, and admitted by plaintiff, that a suit is pending between plaintiff and Kaufman Hats, Inc., whereby plaintiff claims the right to recover a penalty for holding over provided by section 2 of the Landlord and Tenant Act, Cahill’s St. ch. 80, If 2. Defendant therefore says that what might otherwise appear to be a mere technicality becomes in fact a question of great importance and requests that the question raised be considered without the natural bias which might arise from the fact that defendant should be considered as endeavoring to escape a just obligation “by the unwarranted interposition of trivial defenses.”

It is the theory of defendant that the assignment of a breach of the bond, in that Kaufman Hats, Inc., failed to pay rent to plaintiff, is not sustained by any competent evidence; that rent presupposes an agreement recognizing the relationship of landlord and tenant, and that in the absence of that relationship, defendant might be liable for damages for wrongful deprivation of plaintiff of the use of the premises, but that damages for such deprivation could only be recovered upon an assignment under that clause of the bond which provides that the obligors should hold plaintiff harmless from all other damages, etc.

Defendant contends that this conclusion is compelled by a consideration of the history of the law of the subject, and that this consideration is necessary if all the words and phrases of the statute are to be given some meaning, as the well-established rule of construction requires. People v. Flynn, 265 Ill. 414.

The legal history concerning bonds given in forcible entry and detainer proceedings would seem to be as follows :

Under the Forcible Detainer Act of 1845, original jurisdiction in this class of cases was given exclusively to the courts of justices of the peace with the right of appeal to the circuit court, such appeal to be perfected by filing a bond which should be “conditioned for the payment of all rents becoming due, if any, from the commencement of the suit until the final determination thereof.” See Session Laws of 1845, p. 246; Bevised Stats, of 1845, chap. 43, sec. 6. The act on Justices and Constables, chap. 59, sec. 59, Bevised Stats, of 1845, required that the condition of an ordinary appeal bond should be: <

“If the said A. B. shall prosecute his appeal with effect, and shall pay whatever judgment may be rendered by the court upon dismissal or trial of said appeal, then the above obligation to be void, etc.”

It seems that up to the passage of the Bevised Statutes of 1874, there was no specific provision in either the Forcible Detainer Act or the Practice Act which covered the bond required on appeal from the circuit court to the Supreme Court in forcible detainer cases, but section 47 of chapter 83 of the Bevised Stats, of 1845 provided that the bonds should be in a reasonable sum and should be conditioned “for the payment of the judgment, costs, interest and damages in case the judgment should be affirmed and also for the due prosecution of said appeal.” In 1865 an amendment to this law was enacted (see Session Laws of 1865, p. 3), which provided:

“Appeals shall be allowed to the Supreme Court from all decrees, judgments and orders of inferior courts from which writs of error might be lawfully prosecuted; and, in granting appeals, inferior courts, shall direct the condition of appeal bonds with reference to the character of the decree, judgment or order appealed from.”

On April 10, 1872, an act was passed revising the law with reference to forcible detainer (see Public Laws of Ill., 1871, p. 458). Under the law justices of the peace retained original jurisdiction, but by section 15 of the act a complete change was made as to the appeal bond. That statute provided, substantially as the present statute provides, that “if the defendant appeals, the condition of the bond shall be that he will prosecute such appeal with effect and pay all rent then due and that may become due before the final termination of the suit, and all damages and loss which the plaintiff may sustain by reason of the withholding of the possession of the premises and by reason of any injury done thereto during such withholding, together with all costs, etc.” At the same time section 16 was added, which provided:

“The bond shall be in sufficient amount to secure such rent, damages and costs; and the court in which the appeal may be pending may require a new bond in a larger amount, and upon any continuance may require another bond to be given to secure the same.”

While these changes were made with reference to the bond to be given in case of an appeal from a justice of the peace to the circuit court, no corresponding change seems to have been made in regard to appeals which might be taken from the circuit court to the Supreme Court. With the law in this condition, in the general revision of 1874, an entirely new act on forcible entry and detainer was passed and former acts inconsistent therewith were repealed. This act appears in chapter 57, Revised Stats. 1874. Thereby original jurisdiction in cases of forcible entry and detainer was conferred on courts of record, as well as upon justices of the peace, and in section 19 of this act appears the identical language now found in the Forcible Detainer Act, Cahill’s St. ch. -57, ff 20. Section 20 of chap. 57 is, it would seem, in substance a combination of secs. 15 and 16 of the act of 1872, and defendant insists that the changes made by the acts of 1872 and 1874 in the requirement of the bond to be given are significant. His contention is that in order to give a meaning to all the language of the section, it must be held that the word “rent” as used in the section, applies to sums which are payable by contract where the relation of landlord and tenant exists and the rent is fixed by an agreement, and that the words “damages and loss by reason of the withholding” refer to cases where rent, as properly defined, is not applicable; that the latter clause is therefore applicable to cases where the former landlord is endeavoring to recover a rental value in excess of the rent provided in the lease and is also applicable to all other cases where the relation of landlord and tenant did not exist. In support of his contention as to the meaning to be given to the word “rent,” defendant refers to the phrase “rent then due or that may become due,” and says that rent already due could, of course, only have accrued under a lease and that the same kind of obligation is referred to by “rent that may become due”; that the phrases “then due” and “that may become due” are both adjective phrases qualifying the same word, “rent.” It is also said that it is quite clear that the legislature particularly had in mind in the use of the word “rent” a case where the tenancy was terminated during its term by reason of a breach and a forcible entry and detainer suit was thereupon brought for repossession before the expiration of the term.

In support of this theory defendant cites cases holding rent is payable only when the relationship of landlord and tenant exists either by express agreement or by implication, such as Hadley v. Morrison, 39 Ill. 392; Fender v. Rogers, 97 Ill. App. 280, and Walsh & Co. v. Taylor, 142 Ill. App. 46, and it also cites cases holding that a landlord may at his election treat the tenant holding over as a trespasser or as a tenant, such as Goldsborough v. Gable, 140 Ill. 269, and urges the proposition that the election by the landlord to proceed by forcible detainer necessarily refutes any claim for implied tenancy, as stated in 2 Taylor Landlord and Tenant, 9th ed., sec. 636, note 3; Hadley v. Morrison, supra; Weber v. Powers, 213 Ill. 370, and Stillo v. Pellettieri, 173 Ill. App. 104. These cases, however, all involve facts where the question as to the relationship of the parties was directly in issue. In the present case and in all cases where suits are brought upon bonds given in forcible entry and detainer proceedings, the question of the relationship of the parties, except as obligor and obligee of the bond, is simply a collateral matter.

Defendant relies on Shunick v. Thompson, 25 Ill. App. 619. That was a suit brought on a bond given pursuant to section 19 of the Forcible Entry and Detainer Act. The breaches assigned were withholding the premises, etc., for which were claimed damages (1) for use and occupation, (2) rent, (3) costs, (4) attorney’s fees and expenses in the suit. A demurrer of defendant to the fourth breach was sustained. As to the other breaches, the demurrer was overruled. There was a plea of non est factum, and the cause was tried. Verdict and judgment were for plaintiff. Defendant urged that the court erred in sustaining demurrers to the pleas, which it was argued should have been carried back to the declaration. The court said this could not he done under the plea of non est factum, citing Mix v. The People, 86 Ill. 312, and Culver v. Third National Bank, 64 Ill. 528, and further:

“The condition of the bond here in question is, to pay all damages and loss which the plaintiff may sustain by reason of the withholding of the premises in controversy. The first breach is a good-assignment of breach thereon. That breach is not to recover rent or compensation for use and occupation of the premises, but loss and damage sustained by reason of the withholding of the premises; and such loss and damage is alleged to be the value of the use and occupation of the premises during the pendency of the appeal. In Gilliam v. Coon, 10 Ill. App. 43, a case where the parties were not landlord and tenant, this court held that where one wilfully withholds the possession of lands from the owner who is entitled thereto, he incurs a liability for at least their reasonable rental value for the time it is so withheld.”

The court in that case relied also on Higgins v. Parker, 48 Ill. 445, saying:

“The case is an authority to show, if any be needed, that ‘use and occupation’ and ‘the value of the use and occupation’ are not synonymous terms, as seems to be contended by appellants. Appellee was wrongfillly kept put of the possession of the premises during the pendency of the appeal, and no good reason is perceived why the value of the use and occupation of the reasonable rental value during such pendency is not the correct measure of damages.
“The covenant of the condition is, to pay all damages and loss sustained by reason of the withholding; and that which he was deprived of was the use and occupation of the land, and clearly that .which would compensate him and make him whole is the value of that of which he is deprived.”

In Gilliam v. Coon, 10 Ill. App. 43, the plaintiff sued on a bond given on appeal from a judgment in forcible entry and detainer, assigning as breaches nonpayment of costs, nonpayment of rent and damages for withholding the premises. There was a plea of non est factum with stipulation that evidence of any proper defense might be given. The only affirmative defense presented was by way of offset, and there was a verdict for $11.20, in favor of defendant, and judgment against plaintiff for one cent damages and for costs. The court said it was error to exclude evidence as to the rental value of the farm; that the relation of landlord and tenant did not exist between the parties to that suit at all, and for the error in excluding the evidence the judgment was reversed and the cause remanded.

Both plaintiff and defendant cite Pierson v. Lawyer, 225 Ill. App. 400. There the plaintiff sued on a bond given on appeal from a judgment in forcible entry and detainer, and the appeal bond omitted the statutory provision as to “all rent then due or that may become due before the final determination of the suit.” The court said that while it was not good as a statutory bond, it was good as a common law obligation. The evidence showed that while the appeal was pending a large, part of the premises was withheld from the plaintiff and that the plaintiff lost the use and occupation. No allowance for back rent was made, and the court stated, citing Rehm v. Halverson, 197 Ill. 378, that the value and use of the premises during the time the same were withheld was the measure of damages.

Defendant also cites Higgins v. Parker, 48 Ill. 445. There plaintiff sued on a bond given, the condition of which was not to pay rents but to pay the value of the use and occupation of the premises. It was contended that this made the bond void, but the Supreme Court held to the contrary. At that time the statute, authorized the trial court to direct the condition of appeal bonds in this class of cases.- It was also contended that while plaintiff sued for use and occupation, the declaration did not aver that defendants had such use, but the court said that if the action had been for use and occupation, the argument might be valid but that in an action of debt on a bond it was wholly inapplicable.

In Rehm v. Halverson, 197 Ill. 378, which defendant cites, the condition of the bond was that the defendant should pay all rent due and to become due and all damages, etc. The plaintiff had judgment, and it was contended on appeal that proof of use and occupation and of the value of such use and occupation did not establish such damages as were contemplated by the bond. The court said that it was proper to show the value of the use of the premises during the period in which the premises were withheld. The bond sued on was given in an appeal from the judgment of a justice of the peace. The court in that opinion cited with approval Shunick v. Thompson, 25 Ill. 619. It does not appear whether the contractual relationship of landlord and tenant existed, and this fact, as in other cases, seems to have been regarded as immaterial.

In Central Investment Co. v. Melick, 267 Ill. 564, the plaintiff brought suit against the defendant to recover rent during the time that defendant was in possession of the premises after a judgment in forcible entry and detainer had been obtained. There was a provision in the lease to the effect that the lessor should have the right of re-entry after the lessee’s default, without forfeiting the lease or the right of the lessor thereunder. The court held that such a provision was valid but stated, quoting from Grommes v. St. Paul Trust Co., 147 Ill. 634, that it might not be strictly accurate, to call the money to be paid after the re-entry rent, or to treat the lease as in force after a re-entry, but that the parties had a right to fix the amount of the rent to accrue according to the terms of the lease as the amount of damages to be paid by the tenant in case of a breach of his covenants. The court further quoted:

“ ‘It can make but little practical difference whether the sum agreed, to be paid be called rent or damages. It may be regarded as damages for the purposes of this suit. Hall v. Gould, 13 N. Y. 127; Underhill v. Collins, 132 id. 269.’ ”

In the exhaustive briefs which have been submitted almost every case in the Supreme and Appellate Courts of Illinois involving the construction of a bond given in a forcible entry and detainer suit seems to have been cited. It is significant that in only one of these, namely, Pitt v. Swearingen, 76 Ill. 250, was final judgment given against the plaintiff obligee.

In Gilmore v. Lewinsohn, 189 Ill. App. 546, it was held that statutes providing for such bonds should be liberally construed. In Tomlin v. Green, 39 Ill. 225, the court said that conditions additional to those prescribed by statute were void. All of the cases cited hold that defendant is estopped to deny the recitals of the bond. Heilbrunn v. Ellsworth, 190 Ill. App. 388. In Moses v. Royal Indemnity Co., 276 Ill. 177, a case upon which plaintiff relies, a bond which did not comply with the statutory requirements was held good as a common law obligation.

Plaintiff, however, relies particularly upon Rucker v. Wheeler, 39 Ill. 436. That case was decided in 1866 when section 6 of the then Forcible Detainer Act was in force. That section provided that the bond in such case should be conditioned “for the payment of all rents becoming due, if any,” etc., and such was the stated condition of the bond upon which the plaintiff sued. The declaration assigned breach for the nonpayment of rent. There was judgment for costs, but rent was disallowed on the theory that under the facts defendant was liable only for use and occupation.

The Supreme Court, however, said:

“The bond on the appeal properly covered accruing rents, and the obligors are liable, on the non-performance of its condition. Judgment therefore should have been given for the value of those rents.”

Plaintiff here contends that this case is controlling and that it illustrates a well settled rule of law to the effect that when a right is given by statute, it is always proper to follow the statute both in the declaration and in the proof. Defendant, however, points out that this case has never since been cited in a forcible entry and detainer suit; that there was no attempt made in the opinion to distinguish between “damages for withholding” and “rents”; that the decision was made under the act of 1861 and that the statute at that time did not, as at present it does, carefully distinguish between rent and damages.

In McGowan v. London & Lancashire Indemnity Co., 237 Ill. App. 561, the third division of this court squarely holds that the question of relationship of landlord and tenant cannot be raised by a defendant to a suit on a bond of this character. In that case the plaintiff lessor had judgment in forcible detainer, from which the defendant tenant prayed an appeal, which was allowed. Defendant tenant filed an appeal bond as provided by statute, but she did not perfect her appeal in the Appellate Court. Plaintiff made a motion to dismiss the appeal and for statutory damages, which was allowed. Suit was brought by plaintiff upon the appeal bond and upon trial she procured a judgment for $1,896. Defendant surety admitted a liability of $550 but contended that the damages included in the judgment consisted of $525 claimed by the plaintiff under the condition of the bond providing for payment of “rent until the final determination of the suit,” $700 claimed by the plaintiff under the condition of the bond providing for payment óf “all damages and loss which plaintiff has sustained or may sustain, by reason of the withholding of the premises in controversy,” etc. The opinion of the court considers each of these items and states the contention of the defendant to be that the plaintiff might not recover anything as rent under the condition of the bond during the period after August 5, 1921, “because the relation of landlord and tenant was never in effect between the parties to the lease after that time.” The court said:

“The fallacy of this contention is demonstrated by the simple fact that this bond was not even entered into by the defendant as surety for Mrs. Bock until August 9, 1921, four days after the plaintiff had procured her judgment for possession. If defendant’s contention as to this item were to prevail, its covenant in the bond to ‘pay all rent now due or that may become due before the final determination of this suit, ’ if Mrs. Bock failed to prosecute her appeal with effect, would be meaningless.”

In Trinity M. E. Church v. Marie M. E. Church, 192 Ill. App. 222, this court held (contrary to the contention of the defendant who was sued on a bond given on appeal from a forcible entry and detainer judgment):

“The point as to the power of plaintiff, a religious corporation, to recover rents from real estate cannot be made in this suit upon the bond. McCarthy v. Chimney Construction Co., 219 Ill. 616.”

It would unduly extend this opinion to discuss further and in detail all the cases that have been cited by the parties. It is perhaps correct to say that the precise question which defendant here argues has not been squarely decided in any case where it was squarely raised and exhaustively argued. The history of the legislation in this State already recited indicates, we think, the intention of the legislature to grant a full and complete remedy to persons whose premises are wrongfully withheld and to preclude the possibility of the defeat of their rights by the interposition of purely technical defenses. In ordinary language there would be no distinction between the use of the word “rent” and the payment to an owner for the use and occupation of his premises. The history of our legislation discloses no intention to adopt or continue the distinctions which arose under feudal tenures, meaningless under our different social organization. Strictly speaking, according to technical rules a judgment in forcible entry and detainer in favor of the plaintiff would end the relationship of landlord and tenant, yet the statute provides for a bond obligating the payment of rent to become due. In view of the fact that the statute must be liberally construed and in view of the fact that any other construction would render a provision of the' statute meaningless, and in conformity to (we think) the better authority, we must hold that the word “rent” as used in this statute includes not alone the amount fixed by the agreement between the landlord and tenant for the use of land but also to the amount reasonably due for the use and occupation of premises.

Defendant also asserts that plaintiff cannot maintain this suit because it was a foreign corporation and had been doing business in this State contrary to the provisions of sections 80 and 94 of the Corporation Act, Cahill’s St. ch. 32, Iflf 80 and 94. It cites United Lead, Co. v. Reedy Elevator Mfg. Co., 222 Ill. 199; Ryerson & Son v. Shaw, 277 Ill. 524; Automotive Material Co. v. American Metal Products Corp., 327 Ill. 367; Guest Piano Co. v. Ricker, 274 Ill. 448; Calumet, etc., Dock Co. v. Conkling, 273 Ill. 318, and other similar cases, and in this connection defendant has printed as an appendix to its brief an excerpt from an opinion of this court in Truly Warner Co., Inc. v. Kaufman Hats, Inc., 248 Ill. App. 632. The excerpt covers only one phase of this question, which was rather thoroughly discussed in that opinion. So far as this particular case is concerned, that water has gone over the dam. On the authority of McCarthy v. Alphons Custodis Chimney Construction Co., 219 Ill. 616, we hold that question cannot be raised in this collateral proceeding because upon the clearest principles defendant is estopped.

For the reasons indicated the judgment of the trial court is affirmed.

Affirmed.

McSurely and O’Connor, JJ., concur.