author: Mr. Justice Matchett

text:
    Benedict S. Wise, Appellee, v. H. M. Byllesby and Company et al., Appellants.
    Gen. No. 38,699.
    Opinion filed April 20, 1936.

      Cummins, Hagbnah & Flynn, of Chicago, for appellants; Jambs F. Burns and Francis E. Donnelly, of Chicago, of counsel.
    Rosenthal, Hamill & Wormser, of Chicago, for appellee ; Willard L. King and George W. Gale, both of Chicago, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.

On August 5, 1935, Wise filed a petition against H. M. Byllesby & Co. and certain of its officers, praying a writ of mandamus to compel them to permit petitioner and his duly authorized agents and attorneys to examine at reasonable and appropriate times the books, records, etc., of the corporation. The petition was based on section 45 of the Business Corporation Act (Ill. State Bar Stats. 1935, ch. 32, fl 45, p. 857). It was averred in the petition that for at least six months prior to July 13,1935, and continuously since that date, petitioner ivas a stockholder of defendant corporation; that during that time he was the owner of 475 shares of Class' “A” and 25 shares of Class “B” stock therein; that defendant corporation was organized under the laws of the State of Delaware but for many years had been authorized to do business in Illinois; that its principal office and place of business was in the city of Chicago, and that the minutes of the meetings of its board of directors and other records were kept at 231 South LaSalle street, Chicago, and were in the control of some of the defendants; that July 13,1935, pursuant to section 45, petitioner demanded the right to examine the books, records, etc. The demand, a copy of which is set up in the petition, was in writing and stated the purposes of the examination to be “to determine the true value of the company’s capital stock; its prospective ability to pay its secured debt due in July, 1935, its ability to pay any. other matured or maturing debts or obligations; the dealings between the corporation, its officers and directors, and subsidiary affiliated and controlled corporation, their officers and directors; and whether there are any liabilities to the corporation by the officers and directors thereof, or by others, in connection with its affairs.” The notice further stated that in default of such opportunity to examine, an application would be made to a court for relief.

The petition also averred that petitioner’s duly authorized agents appeared at the principal office of defendant company at 231 South LaSalle street on August 1, 1935, during regular business hours and demanded the privilege of making such examination, which was refused; that he now wishes to examine' the books and records for the purposes above set forth.

August 17th defendants filed a demurrer to the petition which on August 26th the court struck from the files and entered an order, giving defendants 20 days to plead. September 15th defendants filed a motion to dismiss the petition for insufficiency on the ground that section 45 was not applicable to foreign corporations, such as defendant company. This motion was denied September 23rd and September 28th defendants filed their answer, in which they admitted certain facts alleged in the petition but upon information and belief denied that the notice served was in accordance with and pursuant to section 45 of the Business Corporation Act, Ill. State Bar Stats. 1935, ch. 32, if 45. They admitted that the representatives of plaintiff went to the office of defendant corporation on August 1, 1935, and demanded the right to examine the books and records, as alleged, and that their demand was refused, but denied that the refusal was wrongful and contrary to the provisions of section 45; averred that they have no knowledge upon which to form a belief, as to allegations made as to the alleged purposes for which petitioner desired to have the examination made; but denied the allegation that the corporation or its officers and agents knew the purposes of the examination desired, or that the purposes were proper, as required by law. As a further defense they averred that section 45 was not applicable to Byllesby & Co. because it is a foreign corporation organized and existing under the laws of the State of Delaware. As a further defense, the answer avers that during all the time in which petitioner has been a stockholder, defendant company has issued full and complete reports from time to time to all of its stockholders, and that copies of these reports have at all times been mailed and have been available to petitioner; that said reports have correctly stated the true condition of the business and affairs of defendant company, and that at no time have defendants been requested by petitioner to furnish him any information regarding the affairs of the defendant corporation prior to the time of the filing of the request for inspection which is made the basis of the action.

The petition and the answer to it were duly verified.

October 2, 1935, petitioner moved to strike the answer as insufficient in law for the reason that it contained no averment of any fact or facts constituting a defense to the action, and that the answer did not deny any material facts alleged in the petition. This motion was overruled. The evidence was heard and on the day of the hearing, October 3rd, the court entered its judgment, granting the writ as prayed. The order finds the facts as stated in the petition with reference to the ownership of stock in the corporation by petitioner ; that the corporation Was organized under the laws of Delaware but has been duly qualified and authorized to do business in the State of Illinois; that its principal place of business is in Chicago and the records are kept at 231 South LaSalle street; that the persons defendants are officers of the defendant company; that demand was made on July 13, 1935, by petitioner in accordance with and pursuant to section 45 of the Business Corporation Act; that the authorized agents of petitioner went to the principal office of the corporation at 231 South LaSalle street on August 1, 1935, during the regular business hours and demanded of persons in charge the right to examine the books and records of accounts, etc.; that the demand was refused; that petitioner desired and now desires to examine such records, etc., in order “to determine (1) the true value of said corporation’s capital stock; (2) its prospective ability to pay its secured debt due in July, 1935, whether said debt has been paid, and if unpaid the conditions thereof and of the collateral securing the same, and the agreements relating thereto; (3) its ability to pay any other matured or maturing debts or obligations; (4) the dealings between said corporation, its officers and directors and subsidiary, affiliated and controlled corporations, their officers and directors; and (5) whether there are any liabilities due to the corporation from the officers and directors thereof, or from others in connection with its affairs ; and that said corporation and its officers and agents in control of its said books and records of account, minutes, and record of shareholders knew that such were the purposes of the examination sought by the petitioner; that each of said purposes was and is a proper purpose.” It was therefore adjudged that the writ issue, and from this judgment defendants prosecute this appeal.

It is urged as reason for reversal that the trial court erroneously ruled that section 45 of the Business Corporation Act gave petitioner an absolute right to examine the books and records of the corporation regardless of his purpose or the effect thereof on the corporation or other stockholders, and Miller v. Spanogle, 275 Ill. App. 335, is cited. There was an extended colloquy between court and counsel, in which the trial judge explained his reasons for granting the prayer of the petition. We do not understand that the court proceeded upon the theory that the right of examination was absolute or that section 45 had not changed the law as heretofore announced in cases of which Venner v. Chicago City Ry. Co., 246 Ill. 170; Furst v. W. T. Rawleigh Medical Co., 282 Ill. 366, are illustrative.

The averments of the petition conform to the requirements of the statute concerning the necessary qualifications of a stockholder entitled to make a demand and sue and the purpose for which such examination is desired. At the trial petitioner appeared as a witness and gave evidence tending to support these averments. He was cross-examined at length, but the cross-examination did not disclose unworthy motives. Although perhaps he was not required so to do, petitioner assumed the burden of proof and established a prima facie case, which was not contradicted. It is true, we think, that under the statute the right of examination is not absolute but qualified and limited to the class of stockholders, whose interests are such as described in the statute and who desire an examination for a purpose which is not improper. Miller v. Spanogle, 275 Ill. App. 335, is not, as we understand it, to the contrary.

Defendants next contend that the judgment of the trial court was erroneous because entered on the theory that the proceeding was purely statutory and therefore gave the court no discretion. We do not so understand the record; however, the discretion to be exercised in such cases is always a judicial discretion which is never arbitrary and may not be used in disregard of uncontradicted evidence. Petitioner argues that once a proper purpose is established, “it may well be doubted whether any discretion remains in the trial court as to whether or not a writ of mandamus should issue,” and cites Furst v. W. T. Rawleigh Medical Co., 282 Ill. 366, which was not decided under the Business Corporation statute. It is not necessary to so hold in order to sustain this judgment. Defendants cite. Stone v. Kellogg, 165 Ill. 192, to the effect that a writ of mandamus will not issue as a matter of course to enforce a mere naked right or gratify idle curiosity, but petitioner must show some specific interest at stake rendering inspection necessary or some beneficial purpose for which the examination is desired. Assuming that the court there stated the rule applicable under the present statute, we think the evidence submitted is sufficient to establish compliance with the rule, in that it shows more than a mere naked legal right, sets up a specific interest, and establishes an absence of idle curiosity or other unworthy motive, making inspection proper and necessary. Indeed, the facts disclosed by the evidence prove much more than enough to establish a merely formal case. These show that petitioner began the purchase of stock in the defendant company as early as the year 1929; that he paid about'$10,000 for the shares of stock which he holds; that for several years last past he has received no dividends on his investment ; that he had made previous inquiries at the New York office of defendant without result, although he saw the manager of that office personally; that he is a lawyer of standing and experience who has knowledge about the workings of corporations and knows stockholders’ rights. In 22 A. L. R., p. 43 (b) the annotator points out that the courts are not agreed as to whether a stockholder is entitled as a matter of course to a writ of mandamus to enforce his statutory or constitutional right of inspection; that in some States the right is asserted to exist whenever the stockholder brings himself within the provisions of the enactment; that in other jurisdictions, such provisions are held not to affect the rule of practice that mandamus is a discretionary writ, “which will not be issued except for just cause and a proper purpose”; that “it would seem that the trend of the later decisions support the latter rule.” Under either rule, we hold petitioner here was entitled to his writ.

It is urged that the judgment is subject to criticism, in that it awards the writ without limitation as to time and irrespective of whether petitioner continues to be a stockholder. The court, however, retained jurisdiction, and these are mere matters of detail concerning which, in case of disagreement, the parties may apply to the court for a modification. Indeed, the record shows that the court expressly informed counsel that such application might be made. The record shows:

“The Court: You can come in on that and seek to have the order modified or limit the examination, if you suggest he is going beyond the reasonable limits. ’ ’

Of course, if at any time petitioner ceases to be a stockholder, his right to examination so far as he is personally concerned would cease to exist. What the right of a purchaser pendente lite might be it is not necessary to decide.

Finally, defendant contends that the statute is not applicable to defendant corporation because it is a foreign corporation, and urges that the order be reversed for that reason. If we assume this contention to be correct, it would not necessarily require a reversal, since the right of inspection exists at common law, giving to petitioner rights apparently identical with those now conferred by section 45 of the statute. Thus in Miller v. Spanogle, 275 Ill. App. 335, the court said:

“At common law every stockholder of a corporation has a right by reason of his interest therein to inspect and examine its books and papers if he asserts the right at a reasonable time and place and for proper purposes, Fletcher Cyc. Corp. (1st Ed.) sec. 2810; 14 C. J. 853, sec. 1300, and it is this right which the Act of 1933 preserves and declares.”

In the annotation to 22 A. L. R. 25, which is cited by defendants, the annotator says:

“Stockholders, as owners of the corporation, for a proper purpose, are entitled to reliable information as to its condition and affairs and the manner of conducting its business, and, to secure such information, they are entitled, at common law, to inspect the books and records of the corporation containing such information, and usually this right will be enforced in behalf of a stockholder by mandamus, the inspection to be had at proper and reasonable times, considering the business and convenience of the corporation.”

Petitioner, therefore, is entitled to his writ irrespective of the statute, under the common law. However, we do not agree with the contention of defendants that section 45 is not applicable to a foreign corporation licensed in Illinois. Defendants rely on section 2 of the Business Corporation Act (Ill. State Bar Stats. 1935, ch. 32, 2), which defines the word “corporation” thus:

“ ‘Corporation’ or ‘domestic corporation’ means a corporation subject to the provisions of this Act, except a foreign corporation.”

Section 45 of that act provides:

“Bach corporation shall keep correct and complete books and records of account,” etc., and provides for the right of the shareholder to inspect for a proper purpose. Section 103, Ill. State Bar Stats. 1935, ch. 32, 1i 103, provides that a foreign corporation, which has received a certificate of authority, shall, until revocation or withdrawal of the certificate, “enjoy the same, but no greater, rights and privileges as a domestic corporation organized for the purposes set forth in the application pursuant to which such certificate of authority is issued; and, except as in this Act otherwise provided, shall be subject to the same duties, restrictions, penalties and liabilities now or hereafter imposed upon a domestic corporation of like character.” Defendants say that by virtue of the definition of the word “corporation” in section 2, which is just as much a part of the law as section 45, it must be held that the application of section 45 extends to any corporation subject to the provisions of the Business Corporation Act, ‘ ‘ except a foreign corporation. ’ ’ In other words, the contention is that the mere omission of the word “foreign” in section 45 exempts the foreign corporation from compliance as provided in section 103. A comparison of section 45 of the Business Corporation Act with sections 37 and 38 of the General Corporation Act of 1919 and section 103 of the present act with section 84 of the act of 1919, shows that the sections are practically identical except that in section 45 of the Business Corporation Act the words, “for any proper purpose,” have been inserted. These sections of the Act of 1919 were construed together in People v. American Discount Co., 332 Ill. 18, and the Supreme Court held in that case that the provisions for the examination of corporate records applied to a foreign corporation. In adopting and using the language of sections 37 and 38 of the former act in writing section 45 of the present act, the legislature necessarily, we think, adopted the construction which had at that time been placed thereon by the Supreme Court of the State. Moreover, we think the construction of section 45 for which defendants contend disregards entirely the use of the word “each” as the same appears in section 45, and the phrase, “each corporation, ’ ’ when considered in connection with sections 2 and 103, must be held to include foreign as well as domestic corporations. Defendants cite Chicago Law Review, vol. 1, p. 384, in which Professor Ballantine criticizes this section of the act because of its failure to provide a proper method for inspection of books and records of a foreign corporation. We are not called upon to decide what an ideal section of the statute would have contained, but rather to construe the law as it was written for the purpose of ascertaining the intention of the legislature.

We entertain no doubt that it was the legislative intent to subject the class of corporations to which defendant company belongs, to the provisions of this section.

For the reasons above stated, the judgment is affirmed.

Affirmed.

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


source: Caselaw Access Project

license: Public Domain

text:
    In re Petition of Jacob Rosenberg, Insolvent Debtor, Appellee, v. Herman L. C. Ott, Appellant.
    Gen. No. 38,720.

      Opinion filed April 20, 1936.
    Rehearing denied May 4, 1936.
    Gilbert Nelson, of Chicago, for appellant; Ernest C. Reniff, of Chicago, of counsel.
    Bernard J. Brown, of Chicago, for appellee.
   Mr. Justice Matchett

delivered the opinion of the court.

Rosenberg was arrested on a capias ad satisfaciendum issued by the clerk of the superior court of Cook county on a judgment rendered in favor of Ott and later filed his petition in the county court, praying for release under the provisions of the Insolvent Debtors Act, Ill. State Bar Stats. 1935, ch. 72, p. 1808. He filed his schedule as required by the act. The court heard evidence, found that malice was not the gist of the action brought in the superior court by Ott against Rosenberg, petitioner, and discharged him from custody. Ott, judgment creditor and respondent, prosecutes this appeal.

The question for determination is whether on the record malice was the gist of the action brought by Ott against Rosenberg in the superior court.

The declaration in that case was in two counts. The first charged general negligence by Rosenberg on May 2, 1930, as owner and driver of an automobile by which Ott was injured at or near the intersection of Augusta street and Sacramento boulevard, public highways, in Chicago. It is admitted that this count does not charge malice. The second count alleged that at the same time and place Rosenberg “wilfully, wantonly and maliciously drove a certain automobile to and against plaintiff, throwing him with great force "and violence to and against divers fixtures of said automobile and to and upon the ground and pavement there,” by which plaintiff Ott was very severely injured. To this declaration Rosenberg filed a plea of not guilty, with special pleas denying ownership or operation. The cause was submitted for trial to a jury, and at the same time the court, at the request of plaintiff Ott, submitted to the jury the following interrogatory :

“Were the acts of the defendant, Jacob Rosenberg, wilful, wanton and malicious, as charged in the second count of the plaintiff’s declaration, as of the plaintiff, Herman L. C. Ott’s declaration?” The jury returned a verdict of guilty, assessed Ott’s damages at the sum of $3,500 and answer the interrogatory in the affirmative.

The county court, over the objection of respondent, received in evidence the instructions given by the superior court in the trial there conducted. These instructions told the jury that if it believed from the evidence any witness had knowingly and wilfully testified falsely as to material matters, it was at liberty to disregard the testimony of such witness, except so far as it was corroborated. The other instructions informed the jury as to the law on the assessment of damages in case it should find from a preponderance of the evidence that defendant was guilty. There was no instruction on the question of malice.

The county court, also over the objection of respondent, permitted petitioner to give testimony in his own behalf as to the occurrence in which respondent was injured. There was no inquiry as to whether this evidence was given on the trial in the superior court or was ever presented to the jury.

The law applicable in cases of this kind has been stated in many cases by the Supreme Court and by this court. Section 2 of the Insolvent Debtors Act, Ill. State Bar Stats. 1935, ch. 72, If 5, provides:

“When any person is arrested or imprisoned upon any process issued for the purpose of holding such person to bail upon any indebtedness, or in any civil action when malice is not the gist of the action, . . . such person may be released from such arrest or imprisonment upon complying with the provisions of this Act.”

The numerous cases, which have been decided construing this section of the act, are all to the effect that the burden of proof is upon the petitioning debtor to show that the judgment upon which the execution was issued is of such character that malice is not the- gist of the action. If the debtor affirmatively shows that malice is not the gist of the action, he should be discharged; if he does not establish that proposition, he should be held. Of the many cases which might be cited, Jernberg v. Mix, 199 Ill. 254, and the recent case of In re Blacklidge, 359 Ill. 482, will be sufficient.

The cases also hold that this question is to be determined largely from the record of the judgment upon which the process issues and the allegations of the pleadings in the case in which the judgment was entered. If there is no count in the declaration of which malice is the gist, the debtor should be discharged. If there are several counts, some of which set up a cause of action, of which malice is the gist and others of which it is not, extraneous evidence may be received by the court in order to determine under which count the verdict was rendered. If it was rendered under the count or counts averring malice, the debtor will be held; if, under the count or counts which do not aver malice and of which malice is not the gist, the debtor will be discharged. A few of the many cases which might be cited are Jernberg v. Mix, 199 Ill. 254; Such v. Alex, 350 Ill. 167; In re Blacklidge, 359 Ill. 482; In re Greenberg v. Connor, 189 Ill. App. 419; Fetz v. People, 239 Ill. App. 250; Scanlon v. Whalen, 249 Ill. App. 19.

In the first place, it is clear, we think, that the court erred in receiving the evidence submitted in behalf of petitioner as to the occurrence upon which the suit in the superior court was based. We do not understand that in cases such as this a new trial is to be awarded on the merits. The sole question at issue is, What determination was reached upon the trial of the case? There might be circumstances where evidence could properly be received upon the hearing of a petition as to what evidence was in fact given at the trial, but we know of no case which holds that evidence as to the occurrence should be received, irrespective of whether it was in fact presented to the jury that tried the case.

The question here therefore seems to be narrowed down to the point of whether the second count of this declaration states a cause of action, of which malice is the gist. A careful comparison of it with the first count would seem to demand an affirmative answer. The first count avers negligence on the part of defendant and the use of due care and diligence for his own safety on the part of plaintiff. The second count does not allege negligence of defendant in any manner whatever, and it does not aver due care upon the part of plaintiff, nor can it be successfully contended that the words “wilfully, wantonly and maliciously” are mere epithets without any context to support them. The count goes on to say that this conduct was in connection with defendant’s driving an automobile; that it was driven against plaintiff; that it threw him with great force and violence against divers fixtures of the automobile and to and upon the ground. While the formal allegation of vi et armis does not appear, the facts averred would, in our opinion, after a verdict, sustain a judgment as for an assault, and an assault may be committed by driving an automobile against another person (Land v. Bachman, 223 Ill. App. 473; Fetz v. People, 239 Ill. App. 250) and the driver of an automobile may be guilty of an assault with a deadly weapon (People v. Benson, 321 Ill. 605). Indeed, there seems no good reason why a person who, by driving an automobile, inflicts injury may not be held guilty of an assault as well as if he made use of any other instrumentality. Neither is the answer to the interrogatory without weight in this connection, as petitioner contends. It is of course true that if the second count does not state a cause of action, of which malice is the gist, it cannot be aided by an affirmative answer to an interrogatory such as was given; but the answer to the interrogatory does show affirmatively that the jury returned its verdict under the second count, and for that reason is important. Petitioner relies very much on Scanlon v. Whalen, 249 Ill. App. 19, but the absence of any answer to an interrogatory or special finding by the jury in that case was pointed out in the opinion, and in the later case of In re Petition of Gaida, 270 Ill. App. 247, this court held that where the jury had given an affirmative answer to the interroga^ tory, “Was the defendant, Frank J. G-aida, guilty of reckless, wilful and wanton driving at the time of the accident to plaintiff’s intestate!”; this amounted to a finding that defendant was guilty of legal malice. We there said:

“The special finding was applicable only to the second and third counts of the declaration. Without the special finding, the second and third counts and the general verdict of guilty would not necessarily or affirmatively prove that malice was the gist of the action. Levy v. Schikowski, 239 Ill. App. 447. But with the special verdict in the record before us, the question of whether malice was the' gist of the action in the circuit court was adjudicated (Jernberg v. Mix, 199 Ill. 254) and was not the subject of further inquiry in the county court.” That case cannot be distinguished from this one.

The judgment of the county court is therefore reversed and the cause remanded with directions to remand petitioner to the custody of the sheriff of Cook county.

Reversed and remanded with directions.

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


author: Mr. Justice O’Connor Hatchett, J.,

text:
    The People of the State of Illinois, Defendant in Error, v. J. Levirt Kelly, Plaintiff in Error.
    Gen. No. 38,493.

      Opinion filed April 20, 1936.
    Joseph E. Clayton, Jr., and Howard David G-eter, both of Chicago, for plaintiff in error; Joseph E. Clayton, Jr., of counsel.
    Thomas J. Courtney, State’s Attorney, for defendant in error; Edward E. Wilson, John T. Gallagher and Richard H. Devine, Assistant State’s Attorneys, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.

By this writ of error defendant, J. Levirt Kelly, seeks to reverse a judgment for $300 entered on the verdict of a jury finding him guilty of violating the statute to regulate the business of giving bail in criminal and quasi-criminal cases, and providing for the licensing of persons, firms or corporations engaged in that business, and providing certain penalties. Laws of 1931, page 437; ch. 38, p. 1244, Ill. State Bar Stats. 1935.

The record discloses that on January 23, 1934, an information was filed by leave of court charging that defendant, on November 21, 1933, “Did then and there unlawfully and intentionally accept a fee of seventy-five dollars for obtaining a bondman, to-wit, Henry Henderson to execute as surety a recognizance for one Frank W. Henry in a criminal case then pending in the Municipal court of Chicago. In violation of Sec. 627 F. ch. 38, Smith-Hurd Revised Statutes, 1933.” Afterward, on November 27, 1934, there was a jury trial; defendant was found guilty and a fine of $300 imposed.

The evidence is to the effect that on November 21, 1933, Frank W. Henry was charged in a proceeding pending in the municipal court of Chicago with a criminal offense. He had been locked up in jail on the charge and desired to make bond so that he could be liberated. Thereupon W. T. Brown, who was interested in securing Henry’s release, communicated with defendant, J. Levirt Kelly, for the purpose of securing bail; after some negotiations between the parties defendant induced Henry Henderson to sign Frank W. Henry’s bond as surety; for obtaining the bond defendant was paid $75 and Henry was released.

The State’s attorney contends that since the “bill of exceptions contains no motion for a new trial, the reviewing court will not consider the question of the sufficiency of the evidence,” citing People v. Majczek, 360 Ill. 261. That case arose before the enactment of the Civil Practice Act and before paragraph 839 (1) of chapter 38, Ill. State Bar Stats. 1935, was enacted. By section 74 of the Civil Practice Act, “All distinctions between the common law record, the bill of exceptions and the certificate of evidence, for the purpose of determining what is properly before the reviewing court, are hereby abolished.” And paragraph 839 (1) of chapter 38 provides: “Except as otherwise provided in this Act, proceedings for the review of criminal cases and for the examination of sureties on any bond, shall be the same as in civil cases.” Some of the provisions of the Civil Practice Act are applicable to criminal proceedings. McCaskill’s Illinois Civil Practice Act Annotated, p. 250. In the instant case the motion for a new trial appears in the judgment order and this is sufficient.

Defendant contends that the judgment should be reversed because the statute violates the State and Federal Constitutions. Such contentions are waived by appealing directly to this court. Hill v. Jeffery Co., 292 Ill. 490; City of Edwardsville v. Central Union Telephone Co., 309 Ill. 482.

Defendant further contends that the court erred in denying his petition for a change of venue, which petition charged the judge with prejudice. In Chicago, B. & Q. R. Co. v. Perkins, 125 Ill. 127, where it was contended the trial court erred in denying a change of venue, the Supreme Court said (p. 129): “It is quite apparent that the object of the statute allowing a change of venue on account of the prejudice of the judge, was to secure a trial before a judge who was unprejudiced. . . . The statute must receive a reasonable construction; one that will promote the ends of justice; one which will carry out the end intended,— that is, a party should not be compelled to submit to a trial before a prejudiced tribunal.” The rule there stated has been consistently followed. Gregory Printing Co. v. DeVoney, 257 Ill. 399; People v. Gerold, 265 Ill. 448.

In the DeVoney case it was also said that where one change of venue has been granted the court might properly deny any further petitions for a change of venue. On this question the court said (p. 401): “We held in that case [American Car Co. v. Hill, 226 Ill. 227] that one change of venue having already been granted, the court properly refused another.”

In the Gerold case (265 Ill. 448) the court said (p. 451): “Under the statute as to change of venue in civil cases, which is practically identical with the statute here invoked, this court has several times held that the party applying for a change of venue for prejudice of the judge obtained all the relief to which he was entitled when another judge — one who had no interest in the proceeding — was called in to try the case. . . . Counsel concede that this is the rule laid down in civil cases, but insist that the statute should be differently construed as to criminal cases. We see no reason why any such distinction should be made in construing the same words in the criminal and civil statutes. The purpose in both cases is to secure a trial before a judge who is unprejudiced. . . . Change of venue statutes should receive a reasonable construction — one that will promote the ends of justice and carry out the purpose of the statute. Chicago, Burlington & Quincy Railroad Co. v. Perkins, 125 Ill. 127.” In the instant case, the change of venue was sought on the ground of the prejudice of the judge of the municipal court before whom the matter was pending, and of 14 other judges of that court. We do not pass on the question of whether the petition was bad because it named more than two judges, as was held in People v. Dunn, 226 Ill. App. 437. (See also sec. 26, ch. 146, Illinois State Bar Stats. 1935.)

Let us look into the record to see whether defendant was seeking to have a trial of the case before a judge who was not prejudiced against him, or whether he was seeking to avoid a trial of the case at all events.

The record discloses that on January 23, 1934, an order was entered by Judge 0 ’Connell of the municipal court of Chicago, giving leave to file the information against defendant; by the order the cause was transferred to the chief justice for reassignment and it was set for trial on January 30, 1934. January 29th Chief Justice Sonsteby entered an order setting the cause for trial on January 30th in room 1128 of the city hall. On January 30th the matter came on before Judge Hartigan, an order was entered postponing the trial to February 15th, on which date the matter came before Judge Helander, who entered an order setting the case for trial on March 8th, on which date another order was entered by Judge Helander as follows: “Transferred to Chief Justice for reassignment on account of plea — change of venue.” On the same day the chief justice entered an order setting the case for trial on March 23rd in room 1114 of the city hall, and on March 23rd the chief justice entered another order setting the case for trial at 2:00 p. m. April 6th. April 6th an order was entered by Judge Gutknecht transferring the case to the chief justice for reassignment, and on April 9th the chief justice entered an order setting the case for trial on April 12th in Branch 39. On April 12th Judge Brooks entered an order denying defendant’s motion to quash the information, and the order further provides: “Transferred to Judge G. E. Gorman instanter. Transfer to Chief Justice for reassignment.” We next find in the record a capias dated July 1, 1934, commanding the bailiff to take the defendant “if to be found anywhere in the State of Illinois, and safely keep him so that the bailiff may have his body before the Municipal court instanter.” July 2nd an order was entered by the chief justice setting the case for trial on July 6th in Branch 41, and on July 6th the matter came on before Judge Gorman. The defendant failed to appear and an order was entered forfeiting his bond, and it was further ordered that an execution issue commanding the defendant to show cause why the forfeiture should not be made absolute. July 16th an order was entered by Judge Kasper which recites that both parties appeared, when the matter was again postponed and set for trial on the next day, July 17th. July 17th Judge Elliott entered the motion of defendant to vacate the bond forfeiture and the matter was set for July 24th; July 24th Judge Elliott entered an order, “Transferred to Chief Justice for Re-assignment to Judge Gorman,” and it was further ordered the cause be set for trial on July 31st. On July 30th the Chief Justice entered an order setting the case for trial on July 31st in Branch 40. July 31st Judge Gorman entered an order sustaining defendant’s motion to set aside the bond forfeiture and the cause was transferred to the Chief Justice for reassignment.

We next find in the record an order entered by the chief justice on September 15th, when the case was set for trial on September 18th in Branch 39. September 18th an order was entered by Judge O’Connell trans-, ferring the case to the chief justice for “re-assignment to Room 917, September 25.” September 25th the Chief Justice entered an order setting the case for trial on October 10th in Branch 39. We next find an order entered by Judge Padden October 11th, which states that defendant failed to appear, his bond was declared forfeited and it was ordered that a capias issue returnable forthwith. On the same day we find in the record a capias in accordance with the order just mentioned, and the bailiff’s return shows he executed the writ by arresting defendant on November 16, 1934, by bringing his body before the municipal court.

November 16th Judge Padden entered an order postponing the cause and setting it for trial on November 20th. November 20th Judge Padden entered another order upon motion of defendant, and the trial was postponed and set for hearing on November 27th. Under date of November 27th there appears in the record a notice and a petition for change of venue. The notice is dated November 20th and served on the State’s attorney, and states that on November 27th defendant will appear before Judge Padden and present his petition for a change of venue.

November 27th the petition for change of venue was filed. It was verified by defendant on November 20th before a notary public. In the petition defendant swears that he fears and believes he will not receive a fair and impartial trial before Judge Padden because the judge is prejudiced against him and that because of “said prejudice your petitioner fears that he cannot and will not receive a fair and impartial trial before the following Judges of the Municipal court:” Pad-den, Sonsteby, Hasten, Hayes, Kasper, MeGarry, Schiller, Edleman, Green, Borrelli, Bonelli, Lyle, Smith, McCarthy and Holland, because he believes these judges are prejudiced against him. The petition then contains the following: “Your petitioner further states that this petition is made at the first opportunity since the knowledge of the prejudice of said Judge Frank M. Padden came to this affiant, at which time your petitioner has been able to appear before his Honor, Judge Frank M. Padden.”

On the same day, November 27th, defendant filed an affidavit in support of his petition, in which he swears that he fears and believes he will not receive a fair and impartial trial before Judge Padden and the other judges named in his petition. On the same day defendant’s attorney filed an affidavit in support of the petition in which he swears that he represents the defendant of record and that he believes that Judge Pad-den, before whom the case is pending, and the other judges named in the petition, are prejudiced against defendant and therefore defendant cannot have a fair and impartial trial.

November 27th an order was entered by Judge Pad-den which recites that all parties were present and defendant moved the court for a change of venue. The motion was overruled, the cause heard, the jury returned its verdict finding defendant guilty as charged, and defendant entered his motion for a new trial, which was set for November 30th. November 30th judgment was entered on the verdict and the court imposed a fine of $300.

There are other orders and documents filed which we think it unnecessary to refer to here.

The record discloses that on November 27, 1934, when the defendant presented his petition to Judge Padden for a change of venue, the State’s attorney objected. The court thereupon stated that according to the record, “There has already been a change of venue granted in this case. ” •

Counsel' for defendant contended that the change of venue was granted in another case pending against the defendant, but the court said, “This is the same old case. There’s been a change of venue.” The motion was then overruled and the case tried.

From the record and proceedings had in the case,' which we have above noted, it is obvious that defendant was trifling with the judges of the municipal court and with the enforcement of the law. Such tactics as were pursued in this case are nothing short of scandalous, and defendant’s petition for a change of venue was mere subterfuge in an endeavor to avoid a trial. Defendant was not trying to secure an impartial judge before whom the case might be heard but, on the contrary, he was endeavoring to prevent a trial before any judge.

The record discloses that one change of venue had been allowed and this was all defendant was entitled to. Gregory Printing Co. v. DeVoney, 257 Ill. 399; sec. 26, ch. 146, Ill. State Bar Stats. 1935. Moreover, the petition for the change of venue was insufficient. Hutson v. Wood, 263 Ill. 376; Levy v. Payne, 204 Ill. App. 224 (Abst.). In the petition defendant swears that “this petition is made at the first opportunity since the knowledge of the prejudice of” Judge Pad-den came to him.

In the Hutson case the court said the right to a change of venue is absolute where a party brings himself within the provisions of the statute, but that it was not an abuse of discretion to refuse a change of venue on the ground of the judge’s prejudice when notice of the application was not given until 4:20 o ’clock in the afternoon of the day preceding the day at which the case was set for hearing. The court there said (p. 381): “The right to a change of venue is absolute where a party brings himself within the provisions of the statute, but the statute requires reasonable notice, and what is reasonable notice is left to the discretion of the judge to whom application is made in the particular case, and this discretion will not be interfered with unless abused. (Glos v. Garrett, 219 Ill. 208.) The affidavit of the complainant stated that a knowledge of the judge’s prejudice did not come to her until the day the notice was given but did not state the time in the day when she acquired such knowledge. The notice was not served until late in the afternoon and the case was set for hearing the nest day. Whether so short a notice was reasonable was a question to be determined by the court in view of all the circumstances, and we cannot say that he abused his discretion in this regard.”

In the instant case the petition states that it was presented at the “first opportunity” since knowledge of the prejudice of the judge came to defendant’s attention. When he obtained that knowledge does not appear. We think the petition was entirely insufficient in this respect.

Defendant contends that the information is insufficient in that it fails to charge an offense defined in the statute, and that his motion to quash should have been sustained. And further, that the evidence is also wholly insufficient to sustain the judgment that defendant had violated the statute. We think each of these contentions must be sustained.

In 1931 the legislature enacted a law entitled “An Act regulating the business of giving bail in criminal and quasi-criminal cases and providing for the licensing of persons, firms, or corporations who engage in that business, and providing certain penalties.”

Section 1 of the Act provides: “Any person, firm or corporation in any court having criminal jurisdiction or in any criminal or quasi-criminal action or proceeding who shall for another . . . execute as surety any bond or recognizance who within a period of one month prior thereto shall have made such a deposit or given such bail in more than two cases not arising out of the same transaction and shall have charged a fee or other compensation therefor, shall be deemed to be engaged in the business of giving bail.” Section 2 provides that the court, judge or justice of the peace authorized to accept bail may examine the proposed bondsman or depositor of security for bail, and may refuse to accept such bond if satisfied that any portion of the security has been feloniously obtained by defendant or if the provisions of the section have in any case been violated by the proposed bondsman, and also if such bondsman within a period of one month prior thereto has acted in more than two other cases not arising out of the same transaction, and who has not been licensed by the Director of Trade and Commerce to execute bond under the statute.

Section 3 provides: “No person, firm or corporation shall engage in the business of giving or soliciting bonds ... in criminal or quasi-criminal cases without being duly licensed by the Director of Trade and Commerce. ’ ’

Section 4 provides that “Every corporation engaged in such business shall procure a license for itself and every person and every firm so engaged in such business shall procure a license for himself or for such firm”; that the license shall be issued by the Director of Trade and Commerce upon the payment of a fee of $25 and upon a certificate of good reputation of the applicant signed by a judge; that each license shall be valid from the time it is issued until the first of August of each year following the date of issuance. It further provides how the license may be renewed, revoked or suspended; and that “Every person, firm or corporation who continues in the business of giving, soliciting or executing bonds” shall annually renew the same by paying a fee of $10, and that anyone executing such bonds, being licensed, must deposit securities with the Director of Trade and Commerce of • the value of at least $5,000; that the compensation for acting as bail shall not exceed 10 per cent of the first hundred dollars and 5 per cent of each additional $500; that if any such person charge greater compensation for acting as bail, or who shall engage in the business without obtaining a license, “or who shall accept any fee or compensation for obtaining a bondsman "... shall be guilty of a misdemeanor and be subject to a fine of not less than one hundred dollars and not more than five hundred dollars for each offense and in addition thereto shall, in any action brought to recover any such overcharge be liable in treble damages.”

The State’s attorney contends that the information is sufficient because it does not purport to charge that defendant was engaged in the bonding business and while so engaged accepted a fee for obtaining a bond, as defendant contends, but that defendant “was tried for a violation of the last of the four classifications [of sec. 4] which deals ‘with persons, firms or corporations who shall accept any fee or compensation for obtaining a bondsman or obtaining a bond or recognizance, . . .’ Persons engaged in such acts are commonly called ‘bond runners’ and such acts are labeled as soliciting business for bondsmen. Such persons cannot be licensed under this act.” This contention cannot be sustained. The act is entitled an Act “regulating the business of giving bail . . .” and licensing persons “. . . who engage in that business,” and the Act provides for the licensing of any person, firm or corporation engaged in the business; and section 3 provides that one soliciting bonds in criminal or quasi-criminal cases shall take' out a license. We think the legislature intended to regulate the business of giving bail by requiring a license and the depositing of securities with the Director of Trade and Commerce by the licensee, and that the Act was not leveled at the punishment of one who obtained a bondsman for another charged with a criminal or quasi-criminal offense.

In People v. Adams, 351 Ill. 79, the court, in construing section 1 of the Act in question, held that an information which charged that defendant in two cases had acted as surety within a period of one month before executing a bond for Helen Smith, without having obtained a license as the statute required, did not charge a violation of the statute. The court there said (p. 81): “Only in case of his giving bail in three cases or more within a month before the act which is the subject of the criminal charge does the statute declare that he shall be deemed to be engaged in the business of giving bail. ‘More than two’ has no meaning different from ‘three or more.’ The act charged on August 3, 1931, in the case of Helen Smith was only the defendant’s third act of becoming surety, and not until after that act was he by the terms of the statute deemed to be engaged in the business of giving bail.” In that case the defendant was charged with acting as surety in two cases, and it was held that the information did not charge an offense because the statute did not apply unless such person acted in more than two cases within a month before the act which was the subject of the criminal charge. And that before there was a violation of the statute, the bondsman must act in “three or more” cases. If, as held in that case, one might sign a bond as surety in three cases within a month and charge a fee therefor and the statute did not apply, it would seem a little unreasonable to hold that the legislature intended that a person who secured a surety to execute but one of these bonds would be liable under the statute. We think a fair consideration of the Act does not lead to such a conclusion.

Holding as we do that no violation of the statute was charged in the information, the judgment of the municipal court must be reversed.

Judgment reversed.

McSubely, P. J., concurs.

Hatchett, J.,

specially concurring: I agree the judgment should be reversed but I do not agree with the statements of the opinion concerning defendant’s contention that the court erred in denying his motion for a change of venue. The State’s attorney does not argue that the petition was defective in substance, or that it was presented on insufficient notice, or that a prior change of venue had been granted. In my opinion, the record would not justify the State’s attorney in making any one of these contentions, and he does not so contend. The State’s attorney argues that the abstract is insufficient to show the substance of the petition, citing People v. Kraushaar, 357 Ill. 463, and that the petition and supporting affidavits are not part of the record, citing People v. Schueneman, 320 Ill. 127. I think the abstract is sufficient, and that under section 74 of the Civil Practice Act, which is applicable, the petition and affidavits are a part of the record.


author: Mr. Justice O’Connor

text:
    Edith C. Lindquist and Agnes Lindstrom, Appellees, v. Friedman’s Inc. and Maurice Friedman, Appellants.
    Gen. No. 38,696.
    McSurely, P. J., dissenting.
    Opinion filed April 20, 1936.
    Max M. & Samuel Grossman, of Chicago, for appellants ; Sid Mogul, of Chicago, of counsel.
    Schofield & Wood, of Chicago, for appellees; Frank Schofield and David H. Kraft, of Chicago, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.

Plaintiffs brought an action against the defendants to recover damages for an alleged false arrest and imprisonment. There was a jury trial and a verdict in favor of each plaintiff and against the defendants for $1,000. Upon a remittitur of $250 on each verdict a judgment was entered on the verdicts for $750 in favor of each plaintiff, and defendants appeal.

The record discloses that on Saturday, March 24, 1934, at about 3:15 p. m., plaintiff Agnes Lindstrom, accompanied by her aunt, Edith C. Lindquist, the other plaintiff, entered defendant Friedman’s Inc. department store located in the northwest section of Chicago, to shop. Miss Lindstrom made a two-dollar purchase of some silk for which she paid; they then went to another counter where Miss Lindstrom made another purchase which amounted to $3.74; she handed the saleswoman a five-dollar bill; the saleswoman examined it and pronounced it a counterfeit; the bill was then shown to the cashier and then to defendant Maurice Friedman, who was president of the defendant corporation and managed the department store. He went over to the counter where plaintiffs were .standing, told them the bill was counterfeit; that he had notified the police who were coming to the store in a few minutes and that plaintiffs would have to wait until the police arrived. There is some dispute (which will be hereinafter referred to) as to what was said and done at the time. About 10 or 15 minutes later two uniformed policemen came into the store and were shown plaintiffs, who were still standing at the counter; after some questions the policemen and defendant Friedman went to the president’s office on the same floor and some further questions were asked; thereupon, the policemen told plaintiffs they would have to go to the police station and they all went out; plaintiffs and the two officers got into the police patrol and were driven to the station six or seven blocks from the department store. A few minutes thereafter the parties were followed by Friedman; they were interrogated by police officers at the police station, who then notified a government official in charge of investigating matters in connection with the passing of counterfeit bills, and about a half hour afterward two employees of the government came and after questioning plaintiffs and being satisfied they were entirely innocent of any wrongdoing, told them they could go home, and plaintiffs walked to their home, a distance of about five blocks.

Plaintiff Lindstrom testified that she was 33 years old and at the time of the occurrence in question lived with her aunt, the other plaintiff, and the aunt’s brother, about five or six blocks from defendants’ department store; that prior to and at the time of the difficulty she was employed continuously for about 15 years as a stenographer by Fleishman Transportation Company at 327 S. LaSalle street, and was receiving $27 a week, her salary being paid twice a month by check; that for a number of .years she had lived in the vicinity of defendants’ store where she had been dealing for about 14 years; that she had a “nodding acquaintance” with defendant, Friedman; that about 10 days prior to the arrest she had taken her check for two weeks’ salary, deposited part of the proceeds in the Harris Trust & Savings Bank, and at the time she went to defendants’ store she had about $20 in currency in her purse. After detailing the two purchases made by her she further .testified that defendant Friedman came to where she was standing at the counter, with the five-dollar bill in his hands, and said, “I have called the police. You will have to wait here”; that there were a good many customers in the store at the time; that Friedman stood near plaintiffs until two uniformed policemen arrived some 15 or 20 minutes later; that all the parties then went into Mr. Friedman’s office in the store, which was about 50 feet from where they had been standing; that the police stated the counterfeit bill was a “pretty good bill,” and that Mr. Friedman said plaintiffs would have to go to the. station with the police officers who wanted to take the matter up with other police officers at the station; that the officers asked plaintiffs their names, where they lived and where they worked; that the officers then stated they would all have to go to the station; that she then asked Mr. Friedman if they were going with him in his car or with the police officers, and Mr. Friedman said they would have to go with the officers; that a number of customers were looking at them and that they then went out of the store, got in the police squad car which was parked around the corner, and were driven to the station; that they were taken to the lieutenant’s office where they were questioned, and shortly thereafter Mr. Friedman came into the office; that the officer asked their names, where they thought they got the five-dollar bill, and were told where the plaintiffs worked, and that during the questioning Mr. Friedman was present; that about 20 minutes later two government men came, having been telephoned for by the police, and after plaintiffs were interrogated by these men the police telephoned to plaintiff Lindstrom’s employer and told him that the women were held at the Summerdale police station for passing a counterfeit bill, and the office advised that plaintiff Lindstrom had worked for them for 14 years and was still employed there; that Mr. Friedman stayed about five minutes while the questioning was going on and then left; that about five o ’clock the officers told plaintiffs they could go home, which they did.

Edith C. Lindquist, the other plaintiff, testified she was 45 years old and at the time of the trial was employed by the United States Government in the Internal Revenue department, but was not employed at the time of her arrest; that she was born in Chicago and had lived there continuously. Hqi' father testimony is substantially the same as that of her niece, the other plaintiff. Plaintiffs both testified they were very much embarrassed, disturbed and nervous at the time in question and for a considerable time thereafter.

The five-dollar bill was pronounced counterfeit, retained by the government officials and is in the record. We think very few people receiving it would have noticed that it was not genuine.

Irene Dutch, the saleslady who waited on plaintiff at the time but who was not employed by defendants at the time of the trial, called by defendants, testified that about a week before, one of the girls in the store had received a five-dollar counterfeit bill and the employees were all informed to thereafter look at such bills closely; that upon receiving the five-dollar bill from plaintiff she took the matter up with the cashier; that Mr. Friedman came over to the counter and said to plaintiff, “I am sorry, Madam, but we cannot accept this bill because it is a counterfeit. The only thing we can do is turn it over to the authorities ’ ’; and that the authorities would give plaintiff a receipt for it. She further testified that Friedman told another employee to notify the authorities and then walked away toward the front of the store; that the two women remained standing at her counter for about 10 minutes, when two uniformed police officers came; that Mr. Friedman took them to where the women were standing and at Friedman’s suggestion they all went into Mr. Friedman’s private office and after some questioning she testified she had worked at defendants’ store for about three years and did not know either plaintiff.

Thomas Cleary, one of the police officers called by defendants, testified that on the day in question a call came to the Summerdale police station and he and another officer took a squad car and went to defendants’ department store, a distance of about four blocks; that they parked their car, went into the store, someone met them at the door and told them someone had attempted to pass a counterfeit bill; Mr. Friedman came over, talked to them and took them to where plaintiffs were standing at the counter; that he asked plaintiffs where they got the bill and was told at the Continental Bank, but one of the plaintiffs said she might have got it at a millinery store where she bought a hat; that they then went to Mr. Friedman’s office, which was near the back of the store, because people started to look and wanted to listen to the conversation; that when they went into the office he informed plaintiffs they would take them to the station where they would notify the government officials because the police did not handle counterfeit cases; that they took plaintiffs in their squad car to the station where their superior officer would look into the matter; that he told Friedman he had better come to the station and talk the matter over with the lieutenant. Shortly after they got to the station Mr. Friedman came in; that there was considerable counterfeit money being passed at that time and the police had several calls in such matters ; that the lieutenant took charge of the matter and Mr. Friedman explained what had taken place at the store; about 10 minutes later the government men arrived and took charge of the matter.

Other witnesses gave testimony substantially to the same effect. It is conceded that plaintiffs were law-abiding citizens and had done nothing wrong in offering the five-dollar bill in payment of merchandise purchased.

In Cooley on Torts (4th ed.) vol. 1, sec. 109, page 345, it is said: “False imprisonment is a wrong akin to the wrongs of assault and battery, and consists in imposing, by force or threats, an unlawful restraint upon a man’s freedom of locomotion. Prima facie any restraint put by fear or force upon the actions of another is unlawful and constitutes a false imprisonment, unless a showing of justification makes it a true or legal imprisonment. False imprisonment is necessarily a wrongful interference with the personal liberty of an individual. ’ ’

In Schramko v. Boston Store of Chicago, 243 Ill. App. 251, which was an action to recover damages for alleged false arrest and imprisonment, where plaintiff was charged with stealing jewelry while in a department store, was apprehended by an officer and interrogated and then permitted to go, we said (p. 256): “False imprisonment is ‘any unlawful exercise or show of force, by which a person is compelled to remain where he does not wish to remain, or to go where he does not wish to go.’ Durgin v. Cohen, 168 Minn. 77, 209 N. W. 532. False imprisonment is ‘the unlawful restraint by one person of the physical liberty of another. The true test seems to be, not the extent of the restraint, but the lawfulness thereof.’ Weiler v. Herzfeld-Phillipson Co., 89 Wis. 554, 208 N. W. 599.” And continuing we said (pp. 256, 257): “It has been held that the arrest of a private person without process is trespass if no criminal offense was committed or attempted in the presence of the officer, whether he had probable cause or not to believe the arrested person guilty. Hight v. Naylor, 86 Ill. App. 508. Such arrest can be justified only by proving actual guilt of the party. Siegel, Cooper & Co. v. Connor, 70 Ill. App. 116; Kindred v. Stitt, 51 Ill. 401.”

From the foregoing statements of the law in this State it is obvious that plaintiffs were falsely imprisoned and their arrest illegal when defendants caused them to remain in their store until the police arrived. And since the evidence shows, and it is conceded, that plaintiffs were entirely innocent, the arrest and imprisonment were not justified.

In Enright v. Gibson, 219 Ill. 550, in an action for false imprisonment against a private individual for arresting or causing an officer to arrest a person without a warrant, it was held that the defendant could justify the arrest when it is shown that a crime was committed and that the plaintiff was guilty of the crime. In that case suit was brought for false imprisonment and malicious prosecution. The court there said (p. 553): “By the common law, and according to the holdings in many of the States, a private person may justify an arrest by showing that a felony had actually been committed and that he had reasonable grounds to suspect that the person arrested committed the felony. . . . By section 4 of division 6 of our Criminal Code (Hurd’s Stats. 1903, par. 342, p. 677) it is provided: ‘An arrest may be made by an officer or by a private person without warrant for a criminal offense committed or attempted in his presence, and by an officer when a criminal offense has in fact been committed, and he has reasonable ground for believing that the person to be arrested has committed it.’ ” (That statute is still in force, par. 681, ch. 38, Ill. State Bar Stats. 1935.) “From the reading of this statute it would seem that there is pointed out a distinction between the power of a citizen to make an arrest and that of an officer. A citizen may arrest when an offense is committed or attempted to be committed in his presence; so, too, may an officer under the same circumstances. But an officer may also arrest where the criminal offense has in fact been committed and he has reasonable grounds for believing the person arrested has committed it. But this latter power is not extended to a citizen by the statute. ’ ’ And continuing (p. 555) the court quoted from Dodds v. Board, 43 Ill. 95, “ ‘To hold this plea good as a justification to the persons causing the arrest would be to hold that private individuals might arrest on probable cause to believe that the party was guilty, as the arrest thus caused is, in principle, precisely the' same as if the arrest had been made by a private person. The mere fact that they induced even an officer, without a warrant to make the arrest does not protect them. They do not act under the direction of the officer, but he under theirs. Whilst in such a case the officer, acting upon facts reasonably calculated to raise the presumption of guilt, would no doubt be protected, the party causing him to make the arrest would not be unless guilt were shown.’ ” And continuing (p. 556): “We think this case, [Dodds v. Board, 43 Ill. 95] a clear announcement of the rule in this State that before a private citizen can justify an arrest made by him, he must show not only that a crime has in fact been committed, but that the person arrested is guilty of the crime. [Citing authorities.] These cases, as we think, are in keeping with the provisions of the statute above quoted.” This rule has been consistently followed by our Supreme Court. People v. McGurn, 341 Ill. 632. Defendants having caused plaintiffs’ arrest and false imprisonment by detaining them in the store and having them taken to the police station, plaintiffs being entirely innocent, there was no defense to "this case.

Defendants contend that there is no evidence in the record that plaintiffs were taken to the police station by the officers at the direction of defendants, but on the contrary, plaintiffs were taken by the officers to the station on their own initiative and therefore the admission of evidence as to conversations that took place at the police station outside of the presence of defendant Friedman should have been excluded. We think the question whether plaintiffs were taken to the station by the police at defendants’ direction or request, was, at most, a question of fact for the jury, and in these circumstances the evidence was admissible. Moreover, as said in Enright v. Gibson, 219 Ill. 550, from which we have above quoted, “The mere fact that they induced even an officer, without a warrant, to make the arrest does not protect them.”

Defendants further contend the damages awarded were so excessive as to warrant the conclusion that the jury was actuated by prejudice and passion. The jury was instructed at defendants’ request that it had the “right to consider whether or not the defendants, . . . acted in good faith with honest intentions and with prudence and proper caution, and if you so find from the evidence, then you cannot assess punitive or exemplary damages against the defendants, or either of them.” We think the jury might properly find that defendants did not act with “prudence and proper caution.” It seems clear that if Friedman or defendants’ other employees had made but a little investigation at the time of the passing of the five-dollar bill, it could have been ascertained without difficulty that plaintiffs were entirely innocent. Failure to investigate, resulting in unlawful imprisonment, connotes malice. Hirsch v. Feeney, 83 Ill. 548.

In Coolahan v. Marshall Field & Co., 159 Ill. App. 466, plaintiff, who was in defendant’s store, was taken into custody by employees of the store who claimed plaintiff had stolen a handkerchief. She was detained, questioned'and searched and shortly thereafter discharged on the ground that a mistake had been made. She brought suit for arrest and false imprisonment and a judgment for $750 was held not to be excessive.

Upon a careful consideration of all the evidence in the record, we are of opinion the judgment entered in favor of each plaintiff, instead of being excessive, “is very moderate.” Ryan v. Donnelly, 71 Ill. 100.

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

Judgment affirmed.

Hatchett, J., concurs.

HcSurely, P. J., dissents.


author: Mr. Presiding Justice Hall

text:
    MacAndrews and Forbes Company, Appellee, v. Mechanical Manufacturing Company, Appellant.
    Gen. No. 38,097.
    Opinion filed April 22, 1936.
    Rehearing denied May 5, 1936.
    Samuel A. & Leonard B. Ettelson, of Chicago, for appellant; Samuel A. Ettelson, Erwin M. Treusoh and Carl J. Appell, all of Chicago, of counsel.
    Gann, Secord & Stead, of Chicago, for appellee ; Guy Van Schaick, of Chicago, of counsel.
   Mr. Presiding Justice Hall

delivered the opinion of the court.

By this appeal, defendant seeks the reversal of a judgment against it for the sum of $37,426.10, and costs of suit. The cause was tried by the court without a jury.

The action is based upon the claim of plaintiff that defendant contracted to manufacture, furnish and deliver to plaintiff, a machine for spray drying licorice by a continuous operation; that by the terms of the contract entered into between the parties, there was both an -implied and express warranty by defendant, that the machine so to be furnished by it would be fit for the purpose for which it was intended; that a machine was manufactured by defendant and placed in plaintiff’s factory at great cost to plaintiff, including moneys paid by it to defendant as a part of the purchase price of such machine, moneys spent by plaintiff in connection with the installation and alteration of such machine, and moneys spent in alteration of plaintiff’s building in order that such machine might be installed in such building. It is plaintiff’s contention that the machine furnished by defendant to plaintiff wholly failed to do the work for which it was intended, and the suit is brought to recover moneys paid out by it, together with damages it claims to have sustained by reason of defendant’s alleged breach of contract.

Defendant does not claim that the machine furnished by it did the work for which it was intended, but insists that there was neither an express nor implied warranty that the machine would do such work; that the machine was a patented article, and that, therefore, under the provisions of the Uniform Sales Act, there was no implied warranty as to the fitness of the machine for any particular purpose, that plaintiff purchased the machine for experimental purposes, and that if it did not work, it was because of certain characteristics pertaining to licorice which prevented the machine’s successful operation, and for which defendant could not be held responsible.

Prior to the execution of the original contract between the parties, there had been considerable experimentation on the part of defendant in an effort to perfect a machine which would meet the needs of the plaintiff, and there was a great amount of correspondence and talk between the parties on this subject. On September 8, 1925, plaintiff wrote defendant the following letter:

“Will you please have made up and mailed to us, three copies of formal contract, one of which is to be returned to you with our signature when' accepted, for one Stutzke Spray Dryer for use with licorice extract, capacity of 100 gallons per hour evaporation, using steam at 150 lbs. per square inch pressure, and electricity three phase, 60 cycle, MO volts.

“Please state or include—

“(1) Price, terms, and delivery.

“(2) Guaranteed steam consumption in lbs. per lb. of evaporation.

“ (3) Guaranteed electric consumption in k.w. hours per lb. of evaporation.

“ (4) Provision or certificate from Hartford Steam Boiler Inspection and Insurance Co., approving all parts under boiler steam pressure to 200 lbs. per square inch.

“(5) Guarantee of overall yield or per cent of weight of dry solids delivered from machine to the weight furnished it.

“ (6) Guaranteed evaporation in lbs. water per hour over 24 hr. period.

“(7) Statement of maximum density licorice solution that can be dried with your outfit.

“We will want to inspect your installation in operation that is in our vicinity if it is possible to do so, and we would like to have your contracts at hand by that time.

“As we have explained to your Mr. Hubbard, the cost of evaporation with your dryer is high, but there are certain factors that may induce us to go ahead with our installation. An inspection of one of your plants in commercial operation will be of great assistance to our executives in making their decision.”

In reply to this letter, on September 19, 1925, defendant wrote plaintiff the following letter, which is referred to by both parties as the original contract between them:

“Replying further to your letter of the 8th, and following up ours of the 11th, our Engineering Department has now gone over the details of the 100 gallon Stutzke Dryer to operate under 150 pounds steam pressure, to pass Hartford Steam Boiler Inspection and Insurance Company’s inspection for 200 lbs. pressure per square inch. We quote you as follows:

“We propose to furnish one 100 gallons capacity Stutzke Patent Spray Dryer complete with fittings for operating consisting of the following items as shown on Drawing QD 530: ■

“ ‘A’ One Drying Chamber of the proper size and design for the above capacity, to be made of 8 gauge black steel throughout and equipped with 4 double glass inspection doors,' so designed as to open automatically from any undue internal pressure.

“ ‘B’ One Heater, designed to withstand 200 lbs. steam pressure (gauge) to be made of flange steel throughout and to have 181 4" boiler tubes expanded and beaded into heads, also equipped with 2 double glass inspection doors, 1 at top and 1 at bottom, designed to open automatically from any undue pressure internally. Top of heater to have baffle or powder blower to prevent the deposit of powder on top of tube sheet. We to furnish 1-0-200 lbs. 6" dial steam gauge. One .spring loaded pop Safety Valve. One steam inlet gate valve and one'condensation cut-off valve of the proper size with this heater.

“ ‘C’ One dry product collector to be made of 8 gauge black steel designed to give the maximum collection possible. All surfaces on inside of collector to be smooth. At the bottom of this collector there shall be a helicoid conveyor to remove powder collected. This conveyor to be fitted with a 24" face pulley for driving.

“ ‘D’ One horizontal circulating fan at top. This fan is to be ‘B. F. Sturtevant Co. ‘s’ Belt Driven slow speed planing mill exhaust fan. The housing for this fan to be substantially constructed and air tight.

“ ‘E’ One vertical belt driven circulating fan at bottom. The wheel for this fan is to be ‘B. F. Sturtevant Co. ‘s’ slow speed planing mill exhaust fan wheel. This housing is to be our own special design of heavy construction with extra heavy shaft and thrust bearing with all seams welded and air tight.

“ ‘F’ One B. F. Sturtevant Co. ‘s’ Belt Driven monogram type exhauster to handle excess vapors.

“ ‘Q-’ Seven patented Spray Nozzles with necessary piping and fittings including one pressure regulating valve, one screen and 1-0-100 lb. 6" dial steam gauge.

“ ‘H’ Two 100° to 500° F. Angle thermometers with 9" scale.

“ ‘I’ One super-heater to furnish steam for atomizers. This super-heater to be made of heavy material to withstand 200 lbs. pressure of the circulating steam used as'a heating medium, and to have necessary connections and fittings for connecting to atomizers.

“ ‘ J’ One Frame complete to be of a substantial design capable of carrying the above apparatus without undue vibration or deflection.

“All work to be done in a neat and workmanlike manner and guaranteed against flaws and defects.

“All outside surfaces to be painted with a good grade of paint and precautions taken to prevent rusting on inside.

• ‘ ‘ Customer to furnish all motors for driving, unless otherwise provided for, the circulating fans will require 2-7% H. P. 1150 R. P. M. motors. The monogram exhauster will require a % H. P. 1800 R. P. M. motor, and the conveyor a % H. P. 1200 R. P. M. motor.

“All power transmissions, motor mounting platforms, belting, ladders, foundations and anchor bolts to be furnished by the customer.

“Customer to furnish feed tank, pump, and necessary piping to atomizers and also piping for steam lines to heater and super-heater.

“The entire unit including fans, ducts, and conveyors to be covered with a 2%" coating of asbestos; this is to be furnished by customer, unless otherwise provided for.

“Price f. o. b. cars, our shops, Union Stock Yards, Chicago, with carload rate of freight allowed to Camden, N. J. $18,750.00.

“Shipment can be made in from 60 to 90 days from receipt of your order.

“Under date of March 3d, we had the pleasure of quoting you on a similar outfit, but rated only up to 150 lbs. steam pressure; and considering the negotiations between us since that time and the fact that we haven’t any of these dryers operating on your class of product, and particularly none of them operating close to Philadelphia, we have decided to stand by the special agreement mentioned in the 6th paragraph of our letter of March 3d, with this exception:

“Instead of making the allowance of $3,750.00 which we made and which would net you $15,000.00 for the machine, we are obliged to take into consideration the additional cost of labor and material required in building the present machine to stand 200 lbs. pressure, and will accordingly make you a special allowance of $2,150.00, this special allowance being for prompt acceptance, subject to withdrawal at our option at any time before the order reaches us.

“We are enclosing you a blueprint of our Drawing QD 530 showing the general construction of the dryer.

“Taking up now the seven points outlined in your letter; the above will serve as a reply to No. 1. On the balance, we furnish you the following information:

“No. 2. The steam consumption of this machine will be l>j lbs. per pound of liquid sprayed.

“No. 3. The electrical consumption will be .015 K. W. per pound of liquid sprayed, based on liquid weighing 9% lbs. per gallon. This covers all motors on the machine proper, but does not include motor for the liquid feed pump.

“No. 4. We will furnish certificate of inspection for 200 pounds pressure per square inch, from the Hartford Steam Boiler Inspection and Insurance Company.

“No. 5. We guarantee the losses will not exceed three percent (3%) of the total yield when machine is handled according to our instructions. This may be slightly higher at the time of starting up, but only until the interior surface is covered with the powder that will naturally accumulate on any surface.

“No. 6. This machine is designed for the evaporation of 100 gallons of liquid per hour irrespective of the amount of solids contained therein, and we will guarantee 100 gallons of water evaporation per hour if no solids are present, and 100 gallons of liquid evaporation containing solids from 0 to 40%.

“No. 7. We have found from various tests that a density of 18° Baume works best in our atomizer.

“If you are prepared to proceed with this matter at the present time, and should desire information on any point which we have not covered, we wish you would please write or wire us at our expense, and the writer will call on you prepared to take up such details.

“Right now we are in position to give you most excellent service on this, and are looking forward to your prompt acceptance of this proposal, which we assure you will be very much appreciated.

“The Mechanical Manufacturing Company grants to MacAndrews and Forbes Company exclusive right to the use of the Stutzke Dryer for drying licorice for tobacco products.” The proposition so submitted to plaintiff was formally accepted by it in writing on November 5, 1925.

The plaintiff is a New Jersey corporation, with its place of business located at Camden, in that' State, where it maintains a large manufacturing plant, and is engaged in the business of manufacturing licorice paste, largely used in the manufacture of commercial tobacco. Prior to the times in question, it had been experimenting with various methods used in drying licorice extract into powder, and in connection with its experimenting it was brought into contact with one Stutzke, who had been experimenting with and perfecting appliances for the spray drying of various organic substances, such as yeast, malt, starch, etc., and who had talien out various patents in connection therewith. About 1921, Roland M. Bickerstaff, Jr., chief engineer, and one of the officers of the plaintiff company, was brought into contact with Stutzke, who had installed a “spray dryer” for use in drying yeast, and at that time these two persons discussed the question of the spray drying of licorice. In 1923 the defendant company employed Stutzke to take charge of the manufacturing and sale of steam spray dryers. Following this, there was some correspondence between the parties to this action, with reference to a spray dryer, and in the year 1924, Bickerstaff came to Chicago to witness a test of this spray dryer, with the object of using such a machine to extract the moisture from the licorice. The correspondence and experimentation finally resulted in the submission by defendants to plaintiff of the contract dated September 19,1925, already referred to. In the month of December, 1925, the terms of payment were agreed to between the parties, and thereafter, the machine was installed in plaintiff’s building, plaintiff, in the meantime, having altered its building in order to accommodate the machine. On June 6, 1926, plaintiff paid defendant the sum of $8,300 as part of the purchase price of this machine, and on August 11, 1926, it paid an additional sum of $4,150. The various amounts paid out by plaintiff and the amount of damage alleged to have been sustained by it, are not questioned. After experimenting with the machine for some considerable period, it was determined that it would not perform the service for which it was intended, and on April 17, 1929, plaintiff served notice on the defendant that June 1,1929, would be the limit of time given by plaintiff to defendant to complete the machine so that it would work. At that time, defendant asked for a month’s extension, and said that a further change would cause the machine to work properly, which extension was granted. An effort was made by defendant to cause the machine to operate, which did not succeed, and defendant then asked for further time in which to make further alterations, which request was granted by the plaintiff, and they thereupon entered into a further agreement submitted by defendant on December 12, 1929, and ratified and approved by plaintiff on December 19, 1929, which recites, among other things, that

“Whereas, the parties hereto have heretofore entered into a contract with reference to a Stutzke Spray Dryer for use in drying licorice; and

“Whereas, a dispute has arisen between the parties concerning their rights under said contract; and

“Whereas, the First Party is willing to malee certain changes in the construction of said Spray Dryer, subject to the terms and conditions hereinafter set forth; Now, therefore,

“1 The first party agrees to make such changes in the construction of said proposed Dryer as its engineers will think advisable, without liability of any kind or nature to the said second party unless the Dryer as finally completed with the aid of such changes shall prove satisfactory to the second party. In no event shall the first party be under obligation to restore the Dryer to its present condition. If the said proposed Dryer after the completion of such changes is satisfactory to the second party, then the latter will pay for said changes the sum of Five Thousand Dollars ($5,000.00) which is estimated as the cost of making the changes proposed by the first party. To the extent that the second party may from time to time in the progress of such changes furnish labor and/or materials to the first party, at the request of first party, the latter will reimburse the second party at cost each thirty days promptly upon presentation of bills by the second party.

“2 The first party will not be responsible for any injury or damage to any person and/or property, including loss of human life, arising directly or indirectly from, or in connection with, the reconstruction or operation of said Dryer, and the second party will hold the first party harmless from any and all loss or damage from such injury, damage or death, excepting the injury or death of the first party’s employees, and excepting also that the first party assumes all risk as respects injury or damage to the Dryer itself pending the completion of said changes.

“3 The making of any and all changes and/or modifications by the first party pursuant to this present agreement shall be without prejudice to the rights of either party under the original contract above referred to and shall not be construed as a waiver of any rights of either party, nor as an admission of any rights of either party against the other.

“In Witness Whereof, the undersigned have set their hands hereto the day and year first above written.

“The Mechanical Manufacturing Company By (Signed) J. W. Hubbard Vice-Prest.
MacAndrews & Forbes Company By (Signed) W. L. Geddes, Prest.”

As stated, defendant insists that there was no expressed warranty that the machine would do the work for which it was intended. In the letter of Septemher 8, 1925, plaintiff asks defendant to mail it “copies of formal contract . . . for one Stutzke Spray Dryer for use with licorice extract, capacity 100 gallons per hour evaporation, using'steam at 150 lbs. per square inch pressure. . . . Please state or include — (1) Price, terms, and delivery. . . . (6) Guaranteed evaporation in lbs. water per hour over 24 hr. period. . . . As we have explained to your Mr. Hubbard, the cost of evaporation with your dryer is high, but there are certain factors that may induce us to go ahead with our installation.” In answer to this letter, the letter of September 19, 1925, referred to as the contract between the parties, was written and contains, among other things, the following: “We propose to furnish one 100 gallons capacity Stutzke Patent Spray Dryer complete with fittings for operating consisting of the following:” (Then follows various specifications concerning the proposed machine, together with price to be paid, as shown by the copy already referred to.) This so-called contract contains the further recital: “The Mechanical Manufacturing Company grants to MacAndrews and Forbes Company exclusive right to the use of the Stutzke Dryer for drying licorice for tobacco products.” The supplemental contract dated December 12, 1929, and approved December 19, 1929, contains the following, among other things: “Whereas the parties hereto have theretofore entered into a contract with reference to the Stutzke Spray Dryer for use in drying licorice, . . . and whereas the first party is willing to make certain changes in the said Spray Dryer, subject to the terms and conditions hereinafter set forth; Now, therefore, The first party agrees to make such changes in the construction of said proposed Dryer as its engineers will think advisable, without liability of any kind or nature to the said second party, unless the Dryer as finally completed with the aid of such changes, shall prove satisfactory to the second party. ... If the said proposed Dryer, after the completion of such changes, is satisfactory to the second party, then the latter will pay for said changes the sum of Five Thousand Dollars ($5,000.00) which is estimated as the cost of making the changes proposed by the first party. To the extent that the second party may from time to time in the progress of such changes labor and/or materials to the first party, at the request of the first party, the latter will reimburse the second party at cost each thirty days promptly upon presentation of bills by the second party.”

In Kansas City Bolt & Nut Co. v. Rodd, 220 Fed. 750, a manufacturer of bolts and nuts ordered from the manufacturer thereof, certain automatic nut tapping machines, to be manufactured for plaintiff. The machines were received by the purchaser, and some of them paid for. The purchaser of the machines brought suit for damages for breach of an alleged warranty that the machines would do good work, and were fit for the purpose for which they were purchased. Liability was denied, and a counterclaim was filed by the manufacturer, defendant, for a balance alleged to have been due. Defendant recovered, and an appeal was taken from the judgment in favor of defendant, which judgment was reversed and the cause remanded. It was insisted by the plaintiff that the machines purchased did not do the work for which they were intended, and in the trial of the case, the court instructed the jury to the following effect, as stated by the court in its opinion:

“The jury was instructed that defendant did not warrant ‘that these machines were fit for any particular purpose, or for tapping any special hind of nuts, ’ and that plaintiff could recover only by 'showing that defects existed in the machines ‘which rendered them unsuitable to perform the ordinary worh which Eodd’s automatic nut tappers are made to do in automatically and commercially tapping the ordinary nuts sold in the trade/ (Italics ours.)” The court there held that this instruction was erroneous, and cited the case of Dushane v. Benedict, 120 U. S. 630, page 636, where the court said, among other things:

“ ‘When a dealer contracts to sell goods which he deals in, to be applied to a particular purpose, and the buyer has no opportunity to inspect them before delivery, there is an implied warranty that they shall be reasonably fit for that purpose.’

“And, as expressed in Jones v. Just, L. R. 3 Q. B. 197 (which case was cited with approval in Dushane v. Benedict):

“ ‘It must be taken as established that on the sale of goods by a manufacturer or dealer, to be applied to a particular purpose, it is a term in the contract that they shall reasonably answer that purpose, and that on the sale of an article by a manufacturer to a vendee who has not had ari opportunity of inspecting it during the manufacture, that it shall be reasonably fit for use or shall be merchantable, as the case may be.’ ”

In Lidgerwood Mfg. Co. v. Robinson & Son Contracting Co., 183 Ill. App. 431, plaintiff sold to defendant a Lidgerwood-Crawford Bucket Excavator, which it was engaged in manufacturing. In its opinion, the court recites that the Lidgerwood Company exhibited to a representative of the defendant certain excavating machines, which were partially completed, and of the character afterwards sold to the defendant. The machines purchased by defendant, however, at that time, were yet to be constructed. After this representative had gone through the plaintiff’s shop and conversed with representatives of the plaintiff regarding the machines to be purchased by defendant, plaintiff submitted a proposal to defendant, very much in the manner in which the so-called contract in this case was submitted to the defendant here, containing certain specifications of the machine which it proposed to construct for the defendant. This proposal contained the following recital, among other things:

“It is expressly agreed that there are no promises, agreements or understandings outside of this contract, and that no agent or salesman has any authority to obligate the Lidgerwood Manufacturing Company by any terms, stipulations or conditions not herein expressed.”

It was claimed by the defendant in that case that the machines purchased did not do the work for which they were intended. Plaintiff insisted that there was no implied or express warranty that they would do such work. In reversing the judgment, this court said:

“The evidence discloses that appellant was desirous of purchasing an excavator and went to Chicago and called upon appellee for that purpose; that appellee exhibited to him blue prints of the several parts of the machine and also exhibited to him some of the machines that were partially erected, ánd that at the conclusion of their examination appellee made the proposition which was offered in evidence and that appellant accepted this proposition.

“Appellant offered to show that before it entered into the contract, it advised the appellee of the purpose for which it was purchasing these machines, in other words, that it wanted the machines to excavate a diversion canal and that appellant also offered to prove that appellee exhibited to its agents, at the same time, a photograph showing a completed machine ready for work, and it was stated by counsel, at the time that it was offered, not for the purpose of changing the terms of the contract but for the purpose of putting the court in the position occupied by the parties at the time the agreement was entered into; but the court refused this testimony and we think this refusal was error. It did not tend to vary the terms of the contract. There is no doubt about the proposition that parol evidence cannot be offered for the purpose of in any manner changing or varying the terms of a written contract, but as the design and intention of the parties in the making of the contract must be determined we think there is no doubt that the surroundings and circumstances under which the contract was entered into is proper. Thomas v. Wiggers, 41 Ill. 470. In the case of Robinson v. Stow, 39 Ill. 572, it is said, where the construction of a written contract was before the court that: ‘The intention of the parties, it is true, must govern; but the experience of human affairs teaches courts that this intention is not to be sought merely in the apparent meaning of the language used, but this language may be enlarged or limited by reference to the circumstances surrounding the parties and the objects they evidently had in view. It often happens that a particular clause in an instrument is made to bear a meaning quite inconsistent with the natural import of the terms used by reference to the entire language and general scope of the contract. “The judges,” says Lord Hale, “ought to be curious and subtle to invent reasons and means to make acts effectual according to the just intent of the parties; they will not, therefore, cavil about the propriety of words, when the intent of the parties appears, but will rather apply the words to fulfill the intent than destroy the intent by reason of the insufficiency of the words.” ’ ” See also Bird & Son v. Guarantee Const. Co., 295 Fed. 451.

In the instant case, as in Lidgerwood v. Robinson, supra, the machine to be delivered to plaintiff was to be especially manufactured by defendant, and the character of the machine to be manufactured, and the special purpose for which it was to be used, is expressed in great detail in the contract, and we are of the opinion that whether the processes of drying materials were patented or not, is of no consequence. From a reading of the original contract between the parties, the supplemental contract entered into between them, and from all the circumstances shown by the evidence in the case, we can arrive at no other conclusion than that there was an express warranty on the part of the defendant that the machine, when installed in plaintiff’s factory, would do the work for which it was intended.

Defendant claims that the court admitted incompetent evidence, and that for that reason, the judgment should he reversed. The trial was .by the court without a jury. In Radtke v. People, 171 Ill. App. 462, this court said:

“We know of no rule of law that a court, on a hearing without a jury, is required to consider, in the determination of the issues, immaterial and incompetent evidence, however the same may have been admitted in the case. On the contrary the rule is that, on a trial by the court without a jury, no improper or incompetent evidence will be presumed by a reviewing court to have influenced the court in reaching a decision, where there is sufficient proper evidence to justify the judgment. Merchants’ Despatch v. Joesting, 89 Ill. 152; Kreiling v. Nortrup, 215 Ill. 195; Pratt v. Davis, 224 Ill. 300. There are also many Appellate Court decisions to the same effect.”

We are of the opinion, however, that there was ample evidence in the record, outside of any evidence which the defendant claims was incompetent, to justify the court in finding for the plaintiff, and that even though incompetent and immaterial evidence might have been erroneously received, such error would not justify a reversal of the judgment.

It is also claimed that the action is barred by the statute of limitations, for the reason that plaintiff’s cause of action, if any, accrued more than five years prior to the bringing of the action. As to this question, we call attention to the fact that the declaration in this cause was filed on August 13,1932. Under the original contract, as heretofore noted, defendant was endeavoring to produce a machine that would serve plaintiff’s needs, and in May, 1929, plaintiff notified the defendant that June 1, 1929, would be the limit of time given by plaintiff to defendant to complete the machine so that it would work, and as already noted, they then entered into a supplemental contract dated December 12, 1929, and ratified and approved by plaintiff on December 19, 1929. This was approximately three years prior to the beginning of the suit. We are of the opinion that the claim that the statute of limitations had run is without merit.

In view of the fact, as already stated, that the machine would not do the work for which it was intended, and that there is no question raised by defendant as to the amount of plaintiff’s damages as found by the court, the judgment should be, and it is, affirmed.

Affirmed.

Hebel, J., and Denis E. Sullivan, J., concur.