author: Mr. Justice Niemeyer

text:
    Alice Olson and Celia Russ, Appellants, v. George W. Rossetter et al., Appellees.
    Gen. No. 43,866.

      Opinion filed February 3, 1947.
    Rehearing denied February 17, 1947. Released for publication February 17, 1947.
    Shulman, Shulman & Abrams, of Chicago, for appellants ; Meyer Abrams, of Chicago, of counsel.
    Sonnenschein, Berkson, Lautmann, Levinson & Morse, of Chicago, for certain appellees.
    Morris G. Leonard and Arthur A. Goldberg, both of Chicago, for certain other appellee; Arthur A. Goldberg and Isaac E. Ferguson, both of Chicago, of counsel.
   Mr. Justice Niemeyer

delivered the opinion of the court.

Plaintiffs, holders of stock trust certificates for 28 shares of approximately 9,000 shares of the capital stock of 1617 Belmont Company, a corporation (hereafter called the corporation), held under a voting trust agreement dated October 15, 1935, appeal from a decree dismissing for want of equity their amended complaint seeking to have declared null and void an amendment of the trust agreement purporting to extend it from October 15, 1945 to October 15, 1955, and a lease alleged to have been executed by the voting-trustees in 1944 leasing the theatre portion of the premises of the corporation for a period of 10 years from October 1945. They also appeal from a prior order entered on motion of the defendant Theatre Amusement Company, the lessee of the theatre, dismissing- the amended complaint as to that defendant. The defendants, the voting trustees and the corporation, filed a joint answer admitting most of the allegations of the complaint, denying some, and moving to strike other allegations. On the trial the only evidence introduced was a letter from the trustees to the holders of trust certificates advising them that the amendment extending the trust agreement to August 15, 1955 had become effective, only two holders of certificates representing 30 shares having objected.

The material facts not controverted are: The corporation was organized as an Illinois corporation pursuant to a reorganization plan approved under section 77B of the National Bankruptcy Act by the district court of the United States for the northern district of Illinois, under which the property described in the complaint, improved by 9 stores, 67 apartments and a theatre, was conveyed to the corporation, which issued its stock in exchange for first mortgage bonds— the bondholders receiving trust certificates, issued by voting trustees under a trust agreement approved by the court, for the shares of stock to which they were to be ultimately entitled. The plaintiffs, Alice Olson and Celia Buss, respectively, are holders of trust certificates for 20 and 8 shares of the capital stock of the corporation, registered in their respective names since September 3, 1940 and December 14, 1943. The parties to the trust agreement are "the corporation, the persons entitled to trust certificates, and the trustees. Article 6 provides that the aggregate annual compensation of the" trustees shall not exceed 1 per cent of the annual gross income derived from the property of the corporation; that the trustees may act as directors and also as officers of the corporation. Article 7 provides: “This trust agreement shall terminate, in any event, on the fifteenth day of October 1945, without notice by or to, or action on the part of the trustees, or any other parties hereto, but it may be terminated at an earlier date by a resolution of two trustees, or by the consent of the certificate holders” expressed on referendum directed to be held within 60 days of the expiration of biennial periods ending on the 15th day of October of the years 1937, 1939, 1941 and 1943, if the trust had not been theretofore terminated. If the referendum is at a meeting of the certificate holders, not less than 15 days’ notice shall be given of the time and place of the meeting, but if the referendum is conducted by mail and without a meeting, the trustees shall, at least 30 days before October 15 of the year of the referendum, mail notice thereof to all of the record owners of trust certificates. Article 8, section 6 provides: “This trust agreement may be amended, altered or modified by the resolution of all the trustees. If it is the opinion of the trustees (which shall be conclusive) that any such amendment, alteration or modification will materially affect the rights of the holders of trust certificates, the trustees shall notify the registered holders of all trust certificates . . . of the nature of such amendment, alteration or modification, not less than ten days prior to the date on which it is proposed such amendment, modification or alteration is to become effective, and such amendment, alteration or modification shall not become effective if at or prior to such date the holders of trust certificates representing 33 1/3% or more of the capital stock outstanding issued to the trustees shall in writing advise the trustees of their objection to and dissent therefrom.”

Under date of May 1, 1945 the trustees sent to the holders of trust certificates a letter, headed “Important — Proposed Extension of Trust Agreement,” in which they stated that 9,899.75 shares of a total of 12,109 shares outstanding were held by the trustees pursuant to the trust agreement; that the agreement would expire October 15, 1945; that the holders of trust certificates were approximately 750, and resided in 34 states, Washington, D. C., and Belgium; that if the trust were terminated, few security holders would be able to attend shareholders’ meetings; that it would be necessary to solicit proxies for every meeting; that as a result it would be difficult and perhaps expensive to obtain a quorum for meetings, and the conduct of necessary corporate business, such as voting liquidating dividends, would be delayed; that if the trust were terminated it would be comparatively easy for speculators buying the stock to elect a majority of the directors and obtain control of the corporation; that the very purpose of the trust might be defeated and benefits for a few might be obtained by persons with adverse interests; that “If, however, the stock of the corporation continues to be held in trust, you will be assured of the continuation of the sound and conservative policies which have been carried out during the past ten years. If the trust is ended, the certificate holders will have no assurance as to the integrity of management and operation, nor will there be any limit on the fees and expenses which may be imposed upon the corporation. This is in strong contrast to the definite limitations on charges under the present trust agreement. ... As your trustees, we are thoroughly familiar with the affairs of your company and have been actively in touch with all phases of its management. Accordingly, we sincerely believe that a continuation of the present administration of the affairs of your company will permit the uninterrupted carrying out of policies which have been adopted with a view towards the maximum realization by security holders upon their original investments”; that the trust agreement provides that it may be amended; that the trustees have unanimously adopted resolutions amending it to provide that the term of the trust agreement be extended to October 15, 1955; that as in the past, there will be a referendum each two years, commencing October 15, 1947, to determine whether the trust shall terminate or continue; that there will be no other changes in the trust agreement; that in accordance with the provisions of the trust agreement and the resolutions of the trustees, the amendment will become effective on May 21,1945, unless at or prior to such date the holders of trust certificates representing 33 1/3 per cent or more of the shares for which trust certificates are outstanding shall advise the trustees in writing of their objection thereto; that if a- certificate holder wished to object to the amendment he should immediately send a written dissent to the trustees; that if he favored the amendment he need take no action; that they, the trustees, “strongly recommend that the stock trust be extended for an additional period of ten years.” On May 12, 1945 the plaintiff Alice Olson sent a communication to the trustees stating that she had acquired her shares from her deceased sister; that she desired a sale of the property in the present market, and that it was her desire “to communicate with my fellow beneficiaries for the purpose of opposing the continuation of the trust, and to effect a sale without further delay, ’ ’ and asking among other things that the trustees furnish to her attorneys the names and addresses of all beneficiaries so that she could communicate with them in person and also for the purpose of calling a meeting to discuss the subject matter of a sale or extension of the trust or its rejection. The trustees replied May 16, 1945, acknowledging receipt of plaintiff’s communication on the 14th instant and stating: “Your request for a list of certificate holders, so that you ■ may communicate with them regarding a sale of the property or regarding an extension of the trust, is palpably made in bad faith.

. . . After waiting until May 12 to write to the trustees, it is obvious that you have no sincere desire to send a communication to the certificate holders in opposition to the extension of the trust, to be considered by them within the 20-day period for dissents. . . . Lists of shareholders are subject to uses detrimental to the majority shareholders, therefore the trustees feel that such lists should not be furnished unless it appears that the purpose is legitimate and the interests of the majority shareholders will not be endangered. For the reasons indicated, the trustees have concluded that your request for a list of certificate holders should be rejected.” The names and addresses of the certificate holders were not furnished to the plaintiffs, and, as stated above, the trustees advised the beneficiaries that the amendment had become effective.

Plaintiffs contend that the trust agreement cannot be amended by extending the life of the trust; that the voting trustees' improperly influenced the beneficiaries not to dissent, and improperly denied plaintiffs an opportunity to communicate with the beneficiaries in opposition to the amendment. Defendants contend that the amendment was proper, citing Morris v. The Broadview, Inc., 328 Ill. App. 267, where we held that the extension of the voting trust there involved was authorized under a provision permitting the trust agreement to be “amended, altered or modified,” there being “nothing in the trust agreement restricting or limiting the application of the words.” The Morris case is authority in the matter before us only if there is nothing in the trust agreement under consideration restricting and limiting the application of the words “may be amended, altered or modified.” The provisions in the agreement in the Morris case and in the instant case relating to amendment, alteration or modification are substantially alike. The provisions governing the life and termination of the respective agreements differ widely. The power, if any, to extend the life of the trust agreement before us must be determined by the language of that agreement, interpreted according to established rules of construction of contracts. Courts of equity, like courts of law, must construe written contracts according to the intention of the parties as expressed in the terms of the contract. Domeyer v. O’Connell, 364 Ill. 467; Atchison, T. & S. F. R. Co. v. Chicago & W. I. R. Co., 162 Ill. 632; Hayes v. O’Brien, 149 Ill. 403, 414. In arriving at that intention, effect must be given to each clause, word and term employed by the parties, rejecting none as meaningless or surplusage unless absolutely necessary. Mittel v. Karl, 133 Ill. 65; Gage v. Cameron, 212 Ill. 146; Brittain v. Farrington, 318 Ill. 474; Rhomberg v. Texas Co., 379 Ill. 430. Where there are two clauses in a contract which are so entirely repugnant to each other that they cannot stand together, the first will be received and the last will be rejected. Thomas Hoist Co. v. William J. Newman Co., 365 Ill. 160. Repugnant words which contravene the evident purpose and intention of the agreement as clearly expressed may be transposed or rejected, or limited and controlled by other and prior provisions. 54 Am Jur., Trusts, sec. 17. Wh.ere in an agreement there are general and special provisions relating to the same thing, the special provisions control. 12 Am. Jur., Contracts, sec. 244. The present contract was evidently drawn with care. It was submitted' to the creditors in the bankruptcy proceeding and, on final hearing, had approval of the creditors and the court. The language of the provision relating to termination of the contract is clear and unambiguous. Article 7, entitled “Termination,” commences: “This Trust Agreement shall terminate, in any event, on the fifteenth day of October, 1945, without notice by or to, or action on the part of the Trustees, or any other parties hereto. . . .” (Italics ours.) The words “in any event” are in common use and their meaning is generally understood. In Edwards v. Laird, 22 Cal. App. 398, 134 Pac. 365, where they were used in relation to the continuance of a contract in force they were held to mean “no matter what else may be,” or “whatever may happen.” As here used they clearly express the intention that no matter what happens or is done, the trust agreement is to terminate on October 15, 1945, or, stated conversely, that in no event shall the agreement continue beyond that date. In Bechtel v. Rorick, 65 Ohio App. 455, 30 N. E. (2d) 451, 455, the Presiding Judge Lloyd, specially concurring, but dissenting from the majority opinion upholding the right to amend by extending the life of the trust, said: “The words, ‘but in no event shall this agreement continue for a longer entire period than six years from the date hereof’ are so definite and explicit a limitation as to time as to obviate any other construction than that they were intended, as in fact they do, to exclude any attempted extension of the contract beyond the time so fixed, and to apply to the deposit contract in its entirety. There is nothing uncertain or equivocal in their meaning or purpose . . .” The construction we have given to the contract before us is strengthened by the remaining provisions of article 7, which provide that the agreement shall terminate on October 15, 1945, “without notice by or to, or action on the part of the Trustees, or any other parties hereto”; that “it may be terminated at an earlier date by resolution of two (2) Trustees; that if the trustees fail to terminate it they must, without action or request on the part of the beneficiaries, hold a referendum on the question of the termination of the contract within 60 days of the expiration of each biennial period ending on the 15th day of October of the years 1937,1939,1941 and 1943, if the trust has not been theretofore terminated. These provisions, more favorable to the termination of the contract than is usually found in voting trust and liquidation agreements, evidence the intention of the parties to terminate the trust at the earliest date, prior to its expiration date, deemed advisable by the trustees or the certificate holders, and negative an intent to have the trust extended indefinitely. Nowhere is there any express provision for extension of the trust. The language relied upon to extend it is in article 8, section 6, and reads: ‘ ‘ This trust agreement may be amended, altered or modified by the resolution of all the trustees.” To hold that this language, which standing alone applies to all provisions of the contract, outweighs the specific language of article 7 relating to the termination of the contract on October 15, 1945, requires rejection of the phrase “in any event” as meaningless or surplusage, defeats the express intention and purpose to terminate the trust, in any event, on October 15, 1945 without notice by or to, or action on the part of the trustees or any other parties thereto, and permits the general provision of article 8 to control and nullify the express language of article 7 relating to the termination of the contract, contrary to the rules of construction stated above. In conformity with these rules, the power of amendment, alteration and modification given in article 8 must be limited to provisions of the agreement other than those in article 7 providing for the termination of the contract, in any event, on October 15, 1945.

Plaintiffs’ further objection to the validity of the amendment is based on the conduct of the trustees in procuring its adoption. Plaintiffs say “The Voting Trustees had no right to take sides and to influence the beneficiaries how to vote, particularly when the extension would operate in favor of the Voting Trustees.” The amendment did directly affect the personal interest of the trustees. Without it their services would have terminated within a few months. If the amendment should be adopted their tenure of office would be extended more than 10 years beyond October 15, 1945. In recommending adoption of the amendment they acted in a dual capacity in which their undivided loyalty to the trust and their self-interest might conflict. Courts of equity do not permit trustees to put themselves in a position where it is difficult to be honest and faithful to their trust. Galbraith v. Tracy, 153 Ill. 54, 63. Or, as stated more fully in Central Elevator Co. v. People ex rel. Moloney, 174 Ill. 203, 207: “It is a firmly established rule that where one person occupies a relation in which he owes a duty to another he shall not place himself in any position which will expose him to the temptation of acting contrary to that duty or bring his interest in conflict with his duty. This rule applies to every person who stands in such a situation that he owes a duty to another, and courts of equity have never fettered themselves by defining particular relations to which, alone, it will be applied. They have applied it to agents, partners, guardians, executors, administrators, directors and managing officers of corporations, as well as to trustees, but have never fixed or defined its limits. The rule is founded upon the plain consideration that the one charged with duty shall act with regard to the discharge of that duty, and he will not be permitted to expose himself to temptation or be brought into a situation where his personal interests conflict with his duty. Courts of equity have never allowed a person occupying such a relation to undertake the service of two whose interests are in conflict, and then endeavor to see that he does not violate his duty, but forbid such a course of dealing irrespective of his good faith or bad faith.”

The trust agreement requires a resolution of all the trustees as the first step in an amendment. Then if it is the opinion of the trustees that the amendment will materially affect the rights of holders of trust certificates, the trustees are required to notify the registered holders of all trust certificates “of the nature of such amendment.” No further obligation is imposed on the trustees, and no right or privilege of advocacy of the amendment is given them. In Shapiro v. Chicago Title & Trust Co., 328 Ill. App. 650, the amendment did not affect the personal interests of the trustees, and the duty or right of the trust managers to make recommendations was not questioned. The attack on the communication sent to the beneficiaries of the trust related solely to its character. It was condemned by this court as being incomplete and misleading. In speaking of the duty of trust managers in notifying the beneficiaries, we said (p. 662): “Under Article 16, as defendants contend, the trust managers were merely required to send notice of the proposed amendment to the beneficiaries by mail, ‘briefly specifying the nature of such proposed amendment.’ However, the trust managers did more. They gave reasons supporting their recommendation that the proposed amendment was ‘fair both to holders of preferred and common units alike. ’ In so doing they became advocates, urging the adoption of the amendment.” In the instant ease the substance of the communication sent by the trustees to the certificate holders is sufficiently stated above. It stresses the advantages seen by the trustees of continuation of their management over the possible 'dangers seen by the trustees if the voting trust were terminated as originally intended. The trustees, who were administering and directing the affairs of the corporation, say that they “sincerely believe that a continuation of the present administration of the affairs of your company will permit the uninterrupted carrying out of policies which have been adopted with a view towards the maximum realization by security holders upon their original investments,” and that they “strongly recommend that the stock trust be extended for an additional period of ten years.” There is nothing in the communication indicating when they were speaking as trustees, and when, as applicants for a job, they were promoting their own interests. Having urged extension of their employment upon the certificate holders, respect for their position and obligation as trustees should have prompted them to facilitate communication between the beneficiaries as to the amendment and to have given ample time for such communication. Without an emergency compelling prompt action — the notice having been sent more than five months before the termination of the trust — and knowing that there were 750 beneficiaries, residing in 34 states, Washington, D. C., and Belgium, the trustees limited the time for dissents to 20 days. Wlien plaintiff Olson, who had filed her dissent, spent 10 days — not an unreasonable time — in consulting an attorney and determining upon a course of action, requested a list of the certificate holders in order that she might communicate with them for the purpose of opposing continuation of the trust, the request was refused as “palpably made in bad faith,” because “After waiting until May 12 to write to the trustees, it is obvious that you have no sincere desire to send a communication to the certificate holders in opposition to the extension of the trust, to be considered by them within the 20-day period for dissents.” If the time was too short the defendants had made it so, and thereby made marshalling the opposition to their continued employment practically impossible. However, in the short time remaining, communication could have been had by telephone or letter with some of the stockholders in Chicago and close by. The fact that the trust agreement permitted the trustees to give notice “not less than ten days prior to the date on which it is proposed such amendment ... is to become effective,” in no way diminished the trustees’ duty to act in utmost good faith in fixing the time within which to file dissents. 54 Am. Jur., Trusts, sec. 311.

The only other reason assigned by the trustees for refusal of the list was their determination “that such lists should not be furnished unless it appears that the purpose is legitimate and the interests of the majority shareholders will not be endangered. ’ ’ The vice of the latter position in the present case is that the trustees determined, against a trust benefiei-ary and ostensibly for the majority beneficiaries, that the interest of the majority beneficiaries and the personal interest of the trustees in the extension of the trust are identical. Courts of equity do not permit trustees to make such decisions. Central Elevator Co. v. People ex rel. Moloney, supra.

Defendants contend that plaintiffs cannot urge the refusal of the trustees to furnish the list of certificate holders because they failed to produce affirmative evidence of good faith on the trial, citing Morris v. The Broadview, Inc., 385 Ill. 228. We are not dealing here with the right of a certificate holder under a statute to compel production of such list in a mandamus proceeding. The inquiry here is by a court of equity into the conduct of trustees who have circularized the trust beneficiaries strongly advocating an amendment extending the trust and their own employment as trustees for a period of 10 years, and who have denied the right of beneficiaries to communicate with the remaining beneficiaries in opposition to such amendment, to determine whether or not such conduct renders or contributes in rendering the purported approval of the amendment ineffective and void. At the time, defendants justified their refusal of the list on the ground of palpable bad faith, established by the delay of 10 days in forwarding the request for the list when only 20 days had been allowed by the trustees for filing dissents. The request for the list followed the improper conduct of the trustees in advocating the amendment which extended their employment 10 years in a letter to all certificate holders. The trustees had possession of and used the list of certificate holders in sending out their recommendation and notice. They sent it' at the expense of the trust. Under such circumstances the right of a beneficiary to the list would seem to follow as a matter of course, with the burden of establishing bad faith of a beneficiary as á bar to the right resting upon the trustees asserting it. If there were other facts and circumstances than those appearing from the pleadings and admitted documents showing alleged bad faith, the trustees should have produced them. Plaintiffs may have been foolishly optimistic in making the request, but there is nothing before us to justify the charge of palpable bad faith. It will not be presumed. It is not an answer to plaintiffs’ claim to assert, as defendants do, that “In effect the plaintiffs are demanding that all of the other certificate holders be denied the right to enter into a perfectly legal agreement, namely, that the duration of the trust be extended, even though such action is not coercive upon the plaintiffs.” Plaintiffs became parties to the trust agreement which provided that it should terminate on October 15, 1945, whereupon, among other things, certificates for shares of stock would be issued to the stock trust certificate holders. They have the right to insist upon the terms of that agreement. Upon the dissolution of the trust, all parties to it will have the privilege of entering or abstaining from entering into a voting trust. A new voting trust requires affirmative action by each stockholder in entering into the agreement and depositing his stock, etc. Defendants, relying upon the inertia of the certificate holders and the favorable provisions of the trust agreement, which make non-action by the beneficiaries approval of the action of the trustees, seek to use the assets and facilities of the trust to retain their control of the stock of the passive beneficiaries and of the corporation by abusing their position as trustees and assuming a nonexistent authority to extend the life of the trust by amendment, and force dissident beneficiaries to withdraw and place themselves among the minority stockholders. They are not entitled to that advantage. Their illegal conduct should confer no benefit upon them. If all beneficiaries are freed from the voting trust by its dissolution, the trustees will face a far more difficult task in forming a new trust, and plaintiffs and others may be in a better situation to organize a more favorable combination, or voting trust.

Plaintiffs’ objection to the lease of the theatre in 1944 for 10 years, commencing in October 1945, is narrowed to the claim that the lease was executed without authority from the board of directors. There is no claim that the lease was in any way disadvantageous to the corporation or any certificate holder. It was executed by the proper corporate officers. The business of the corporation included the rental of the corporate premises, of which the theatre was only a part. There was no need for approval by the board of directors as the action of the officers was in the scope of their apparent authority and in the regular course of business. Domestic Bldg. Ass’n v. Guadiano, 195 Ill. 222, 226, 227. However, if authority were required, the amended answer of defendants alleges — and the allegation is not denied — that resolutions approving the lease were later adopted by the directors and entered of record. The complaint was properly dismissed as to the theatre company, and upon the record before us the lease is valid.

The decree dismissing the complaint for want of equity as to the defendants, the trustees and the corporation, is reversed and the cause remanded with directions to declare the amendment purporting to extend the voting trust beyond October 15, 1945 null and void; to dissolve the voting trust and to take such other and further action as shall be deemed necessary and advisable in conformity with this opinion. The order dismissing the amended complaint as to defendant Theatre Amusement Company is affirmed.

Affirmed in part, and reversed and remanded with directions.

O ’Costhor, P. J., and Feieberg, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    In re Estate of William Brauns, Deceased. Ingrid Chenal, Appellee, v. Arnold O. Diersen, Executor under the Last Will and Testament of William Brauns, Deceased, Appellant.
    Gen. No. 43,878.

      Opinion filed February 3, 1947.
    Released for publication February 17, 1947.
    Thomas S. MacKinlay, Gunnar Jensenius and Marshall Solberg, all of Chicago, for appellee; Thomas S. MacKinlay, of Chicago, of counsel.
   Mr. Justice Niemeyer

delivered the opinion of the court.

The claimant, hereafter called the plaintiff, filed in the probate court her claim based upon five judgment notes alleged to have been executed by the decedent, William Brauns. The executor of decedent’s last will and testament, hereafter called the defendant, filed an answer stating that “as to the fact of the genuineness of the signatures thereon, and the execution and delivery of said notes by said Testator, the Executor has no information, and therefore demands strict proof thereof, ’ ’ alleging that if the notes were made and delivered by decedent to the claimant, they were without a good and valuable consideration, and setting up certain detailed evidentiary facts relied upon by the executor to prove want of consideration for the notes. On a hearing in the probate court the claim was denied. On a trial de novo in the circuit court on appeal, judgment was entered for,plaintiff in the sum of $4,984.25. Defendant appeals, contending that having denied by verified answer the execution and delivery of the notes on which plaintiff bases her claim, she was required to prove the execution and delivery by a preponderance of the evidence, and failed to do so, and that plaintiff failed to prove consideration for the notes. It is also argued that having failed to file a reply to the answer of defendant filed in the probate court, the allegations as to want of consideration, etc., were admitted.

Under section 5 of the Probate Act, unless otherwise provided, the Civil Practice Act is made applicable to all proceedings under the Probate Act. The sufficiency of the allegation of defendant’s answer as to the execution of the notes must be determined under the provisions of the Civil Practice Act. The allegation in that answer that the executor has no information as to the genuineness of the signatures on the notes and the execution of the notes by the testator, and demanding strict proof, is an alternative to the explicit denial required under sec. 40, subpar. 2, of, the Civil Practice Act [Ill. Rev. Stat. 1945, ch. 110, par. 164, subpar. (2); Jones Ill. Stats. Ann. 104.040, subpar. (2)] if allegations in pleadings of the opposite party are not to be deemed admitted, but it does not meet the requirements of sec. 35 [Ill. Rev. Stat. 1945, ch. 110, par. 159; Jones Ill. Stats. Ann. 104.035], which says that the allegation of the execution of any instrument in writing shall be deemed to be admitted unless denied by a pleading verified by oath. Where the denial is made by a person other than the maker, it may be made on information and belief. There being no explicit denial of the execution of the notes, which includes the delivery (Burr v. Beckler, 264 Ill. 230; Barrow v. Phillips, 250 Ill. App. 587), plaintiff was under no obligation to prove such execution. However, a witness called by her testified that he saw the decedent sign three of the notes and that in his opinion the signatures on the remaining two notes were the signatures of the decedent. Defendant offered no testimony to refute this statement.

Section 196 of the Probate Act, permitting the executor or any other person whose rights may be affected by the allowance of a claim to file pleadings, authorized an answer by the defendant, and if under the provisions of the Practice Act a reply to such answer would-be necessary in an action at law on the judgment notes here involved, plaintiff should have replied to the answer of the executor filed in the probate court. Under section 24 of the Negotiable Instrument Law (Ill. Rev. Stat. 1945, ch. 98, par. 44 [Jones Ill. Stats. Ann. 89.044]), “Every negotiable instrument is deemed prima facie to have- been issued for a valuable consideration . . .” The burden of proving want of consideration is on the defendant. American Nat. Bank of Mt. Carmel v. Woolard, 342 Ill. 148. The notes recite consideration, and the claim filed, impliedly if not directly, asserts a consideration and therefore a denial of want of consideration. Where a complaint meets and negatives matters set up in an answer, no reply to the answer is necessary. City of Flora for use of Liberty Mut. Ins. Co. v. Bryden, 300 Ill. App. 1; Allwood v. Cahill, 382 Ill. 511. Furthermore, on the trial of this case defendant offered evidence tending to support the evidentiary facts unnecessarily alleged in his answer in support of the defense of want of consideration. He therefore waived a reply, if any was necessary, to the answer. Funk v. Babbitt, 156 Ill. 408; Cairo Lumber Co., Inc. v. Ladenberger, 313 Ill. App. 1.

The judgment is affirmed.

Affirmed.

0 ’Connor, P. J., and Feinberg, J., concur.


text:
    Paul C. Dittman, Appellant, v. Samuel W. Miller et al., Appellees.
    Gen. No. 43,898.

      Opinion filed February 3, 1947.
    Released for publication February 17, 1947.
    Wilhartz & Hirsch, of Chicago, for appellant; Samuel E. Hirsch, Jack A. Diamond and Warren Krinsky, all of Chicago, of counsel.
    Owens & Owens, of Chicago, for appellees; Thomas L. Owens, of Chicago, of counsel.
   Mr. Justice Niemeyer

delivered the opinion of the court.

Plaintiff, a judgment debtor whose property had been sold on an execution, entered into an escrow arrangement during the redemption period, under which the judgment creditor, defendant herein, deposited his quitclaim deed conveying to plaintiff the property sold on the execution, the certificate of sale and an assignment thereof from defendant to plaintiff to be delivered to plaintiff if he made certain payments covering the balance due on the judgment, with interest. Plaintiff failed to make the last payment on the date fixed in the agreement. This amount remaining unpaid for 10 days, the escrow was terminated pursuant to its terms and the papers deposited by defendant returned to him. Within three months plaintiff filed his complaint seeking to have the escrow arrangement declared to be a mortgage, from which he was entitled to redeem, and for incidental relief. After a hearing the complaint was dismissed for want of equity. Plaintiff appeals.

November 9, 1937, a judgment was entered against plaintiff in the municipal court of Chicago for $9,551.45 and costs — the balance, with interest, of an original indebtedness of $18,000 to plaintiff’s father-in-law incurred more than 10 years prior to the entry of the judgment. In the meantime the father-in-law died. The judgment was obtained by the administrator with the will annexed. Various suggestions for the satisfaction of the judgment were submitted. The master found that plaintiff either refused to accept the propositions offered, or failed to comply with those he accepted. May 11,1938, a three-flat building owned by plaintiff was sold on execution to defendant for $4,000. The master found that the property was then worth $12,000, with unpaid general taxes and special assessments amounting, with interest, to approximately $4,000. Garnishment proceedings were instituted, and in September 1938 a creditor’s bill, asking for a receiver, was filed. Further negotiations were had and, notwithstanding plaintiff’s broken promises and perverse and annoying conduct now complained of, the escrow arrangement above mentioned was entered into. Plaintiff contends that it created an equitable mortgage and that he should now be permitted to redeem. Defendant says that it was merely an agreement extending the redemption period.

The arrangement was freely entered into by parties capable of contracting, advised by counsel and dealing at arms length. Plaintiff’s bad faith and his unreasonable conduct, costly to defendant, now urged as a bar to plaintiff’s suit, were known to the defendant, and presumably were considered by him when the terms of the contract were fixed. The rights of the parties must be determined by the agreement, unaffected by the prior conduct of either party. When the escrow was entered into January 11,1939, plaintiff had reduced the judgment to $6,065.45, plus interest from December 1, 1938. He had therefore paid substantially $3,500 on the principal of the judgment, and in addition had paid interest on the unpaid balance. This was within $500 of the amount necessary to redeem from the execution sale. By the escrow he undertook to make three semi-annual payments of $500, plus interest, commencing June 1, 1939, and a final payment December 1, 1940 of $4,565.45, plus interest. The escrow arrangement therefore contemplated full satisfaction of the judgment, with interest, and the holding of the certificate of sale, even though the full redemption money had been paid, until the satisfaction of the judgment. Attorneys for defendant place this construction on it. On the day the escrow was entered into the attorney for plaintiff wrote defendant’s attorneys stating that a satisfaction of judgment should have been filed, but that it could be attended to when the balance was paid; that in order to protect him from criticism for having entered into the escrow without tending to all the details necessary to give a clear title after the amount of the judgment is paid, he would appreciate a letter from defendant’s attorneys. January 12, 1939, defendant’s attorneys replied: “When, as and if the judgment is paid ... we shall turn over to you at once a satisfaction of judgment, and shall give you any and'all papers necessary to clear the title to the property . . . which was sold to satisfy part of this judgment,” but that there should be no expense to the attorneys or their client in connection with clearing the title. The certificate of sale being held by the defendant until full payment of the judgment, it must be regarded as security for the payment of the judgment, and therefore an equitable mortgage. The facts here and those in Allen v. Allen, 242 Ill. 510, are strikingly similar. In that case a brother of a judgment debtor bought the certificate of sale from the purchaser at the execution sale and, having obtained a sheriff’s deed, executed a quitclaim deed to the property to the judgment debtor and deposited it with a banker, to be delivered upon payment of the amount expended by the brother, with interest. The brother, claiming that the deed to the judgment debtor had been improperly obtained by him, brought suit to cancel the deed and for other relief. His complaint was dismissed for want of equity. On appeal" the Supreme Court held that the complainant had misconceived his status; that the bill should be brought as a bill to foreclose his equitable lien, and said (p. 513): “When he furnished the money to redeem the land from the sheriff’s sale, with an understanding with his brother that he was to take the assignment of the certificate of purchase and afterwards a sheriff’s deed, the relation that existed between the parties was that of debtor and creditor, and the certificate of purchase and the deed were mortgages to secure the appellant in his debt against his brother. It clearly appears from appellant’s bill that he agreed to re-convey the land to his brother when his debt was satisfied. ’ ’ Here the defendant agreed to reconvey the land to plaintiff upon payment of the judgment in full, and not before. The escrow created an equitable mortgage, from which plaintiff should be given the right to redeem. If defendant receives the balance due on the judgment, with interest, he will receive all that he is permitted to recover on his claim on the indebtedness. If plaintiff is not permitted to redeem, defendant is enriched approximately $3,500 to $4,000, the value of the property after deducting unpaid taxes and special assessments, over and above the amount paid for it on the execution sale.

The decree is reversed and the cause remanded for ■ further proceedings in accordance with the views expressed herein.

Reversed and remanded.

O’Counor, P. J., and Feiuberg, J., concur.


author: Presiding Justice Wolfe.

text:
    Herman Eicksteadt and William Fenz, Appellees, v. Louis A. Cox and Bessie M. Cox, Appellants.
    Gen. No. 10,055.
    opinion filed April 18, 1946;
    rehearing denied February 3, 1947; released for publication February 5, 1947.
    J. J. McCauley, for appellants; David B. Joslyn and Charles S. Parker, for appellees; Charles S. Parker, of counsel.
   Opinion by

Presiding Justice Wolfe.

Not to be published, in full.


author: Justice Bristow.

text:
    Ralph R. Bradley, Appellee, v. Shore Line Yellow Cab Company, Appellant.
    Gen. No. 10,114.
    opinion filed December 12, 1946;
    rehearing denied February 3, 1947; released for publication February 5, 1947.

      Mortimer Singer and Esther C. Singer, for appellant; Hall, Hulse, Meyer & Carey, for appellee.
   Opinion by

Justice Bristow.

Not to be published in full.


author: Presiding Justice O’Connor.

text:
    Thomas Hollis Weaver, Minor, by Cloe Weaver, Mother and Next Friend, Appellee, v. A. A. Sprague et al., Defendants. Bernard J. Fallon, Trustee of Chicago Rapid Transit Company, Appellant.
    Gen. No. 43,856.
    opinion filed February 3, 1947;
    released for publication February 17, 1947.
    Gardner, Morrow, Fowler & Merrick and James K. Miller, for appellant; Walter M. Fowler, of counsel; Thomas M. Morris and Sears & Streit, for appellee; Barnabas F. Sears and Ralph C. Putnam, Jr., of counsel.
   Opinion by

Presiding Justice O’Connor.

Not to be published in full.


text:
    Russell Curl, Minor, by Alfred C. Curl, Father and Next Friend, Appellee, v. City of Chicago, Appellant.
    Gen. No. 43,869.

      opinion filed February 3, 1947;
    rehearing denied February 17, 1947; released for publication February 17, 1947.
    Barnet Hodes, Corporation Counsel, for appellant; J. Herzl Segal and L. Louis Karton, Head of Appeals and Review Division, Joseph C. Stastny and Sydney R. Drebin, Assistant Corporation Counsel, of counsel; Barnie E. Frankel, for appellee.
   Opinion by

Presiding Justice O’Connor.

Not to be published in full.


text:
    John N. La Belle, Appellee, v. Virginia Hillsman and Otto Hillsman, Appellants.
    Gen. No. 43,930.
    opinion filed February 3, 1947;
    released for publication February 17, 1947.
    B. S. Quigley, for appellants; James C. Hallahan, of counsel; Joseph A. Bailey, for appellee; James A. Moore, of counsel.
   Opinion by

Presiding Justice O’Connor.

Not to be published in full.


author: Justice Feinberg.

text:
    People of State of Illinois, Defendant in Error, v. Sam Watts, Hazel Smith and Bernice Powell, Plaintiffs in Error.
    Gen. No. 43,872-43,874.
    opinion filed February 3, 1947;
    released for publication February 17, 1947.
    Aaron H. Payne, for plaintiffs in error; James Y. Carter, of counsel; William J. Tuohy, State’s Attorney, for defendant in error; Edward E. Wilson, John T. Gallagher, W. S. Miroslawski, Joseph A. Pope and Melvin S. Rembe, Assistant State’s Attorneys, of counsel.
   Opinion by

Justice Feinberg.

Hot to be published in full.


text:
    Francesco D’Oranzo, Appellant, v. Mitchell Lacny, Appellee.
    Gen. No. 43,894.
    opinion filed February 3, 1947;
    rehearing denied February 17, 1947; released for publication February 17, 1947.
    Joseph Barbera and A. V. Champagne, for appellant; Eckert & Peterson, for appellee; Harold W. Huff, of counsel.
   Opinion by

Justice Feinberg.

Hot to be published in full.


author: Justice Niemeyer.

text:
    Isadore Josephson, Appellant, v. Joseph M. Rubenstein et al., Appellees.
    Gen. No. 43,752.
    opinion filed February 3, 1947;
    released for publication February 17, 1947.
    John O. Wagner, for appellant; Goldman, Allshouse & Healy, for appellees; Louis Goldman and Robert G. Dreffein, of counsel.
   Opinion by

Justice Niemeyer.

Not to be published in full.


text:
    Arnold L. Montgomery, Appellee, v. Atchison, Topeka and Santa Fe Railway Company, Appellant.
    Gen. No. 43,783.
    opinion filed February 3, 1947;
    released for publication February 17, 1947. Emmett

      Trainor, T. J. Barnett and A. R. Peterson, for appellant; Sol Andrews and Marion J. Hannigan, for appellee; Charles T. Shanner, of counsel.
   Opinion by

Justice Niemeyer.

Not to be published in full.


author: Justice Nie-meyer.

text:
    William J. Huff, Appellee, v. Walter J. Cummings et al., Trading as Chicago Surface Lines and Allied Construction Company et al., Defendants. Appeal of Allied Construction Company and George Orlovik, Appellants.
    Gen. No. 43,812.
    opinion filed February 3, 1947;
    released for publication February 17, 1947.
    Eckert & Peterson, for appellants; Walter W. Ross, Jr. and Owen Rall, of counsel; Michael A. Gerrard, for appellee.
   Opinion by

Justice Nie-meyer.

Not to be published in full.


text:
    People of State of Illinois ex rel. Robert Ryan, Appellant, v. City of Chicago and Edward J. Gorman, Appellees.
    Gen. No. 43,852.

      opinion filed February 3, 1947;
    released for publication February 17, 1947.
    Howard D. Geter, for appellant; Barnet Hodes, Corporation Counsel, for appellees; J. Herzl Segal, Head of Appeals and Review Division, Fred V. Maguire and Sydney R. Drebin, Assistant Corporation Counsel, of counsel.
   Opinion by

Justice Niemeyer.

Not to be published in full.


text:
    Lester R. Graham, Appellant, v. Anna M. Ready, Appellee.
    Gen. No. 43,888.
    opinion filed February 3, 1947;
    released for publication February 17, 1947.
    William H. Fields and Eugene K. Lutes, for appellant; Eugene K. Lutes, of counsel; Kirkland, Fleming, Green, Martin & Ellis, for appellee; Joseph B. Fleming, Manly K. Hunt and Charles M. Rush, of counsel.
   'Opinion by

Justice Niemeyer.

Not to be published in full.


text:
    Mercury Electronic Laboratories, Inc., Appellee, v. Marie Krug, Appellant.
    Gen. No. 43,916.

      opinion filed February 3, 1947;
    rehearing denied February 17, 1947; released for publication February 17, 1947.
    George B. Cohen, for appellant; A. S. and E. W. Froehlich and Seymour J. Frank, for appellee.
   Opinion by

Justice Niemeyer.

Not to be published in full.


text:
    City of Evanston, Appellee, v. Mrs. Ona Webb Hopkins, Appellant.
    Gen. No. 43,939.
    opinion filed February 3, 1947;
    released for publication February 17, 1947.
    Harold M. Tyler, for appellant; Joseph E. Snowden, of counsel; Erwin F. Stolle, for appellee.
   Opinion by

Justice Niemeyer.

Not to be published in full.


author: Mr. Presiding Justice

text:
    DuQuoin Packing Company, Appellee, v. Alfred Bonifield, Fred Bonifield and Reuben Bonifield, Appellants.
    Term No. 46012.

      Opinion filed January 20, 1947.
    Released for publication February 20, 1947.
    Frank E. Trobaugh and Stephen E. Brondos, both of West Frankfort and M. C. Cook, of DuQuoin, for appellants.
    C. E. Kimmel, of DuQuoin and L. R. Stewart, of Murphysboro, for appellee.
   Mr. Presiding Justice

Culbertson delivered the opinion of the court.

This cause comes before us on appeal from a judgment in the amount of $200 and costs, in favor of ap-pellees, DuQuoin Packing Company, a corporation (hereinafter called plaintiff), and against appellants, Alfred Bonifield, Fred Bonifield and Beuben Bonifield (hereinafter called defendants), which resulted from the verdict of a jury in the sum of $200. On appeal in" this cause the appellee has filed a motion to dismiss the appeal for what is alleged to be a failure to file an accurate and sufficient abstract of record. Objections to such motion and affidavits are filed by the respective parties to this appeal and such motion is taken with the case for consideration.

Upon consideration of such motion to dismiss the appeal it does not appear that the failure to abstract in detail the original, rather than the amended order entered by the court below justifies a dismissal of the appeal. We do not believe any protracted discussion of the activities of the parties in this connection is necessary or desirable."

The motion to dismiss the appeal is, therefore, denied.

The action .in this cause was based upon a claim for the value of certain skinless sausages which were shipped from plaintiff’s meat packing plant near Du-Quoin, Illinois, and consigned to Elgin State Hospital at Elgin, Illinois. The evidence disclosed that defendants, who operated as common carriers in the trucking business, issued a freight bill to plaintiffs showing the destination of the shipment as Elgin, Illinois, and nothing therein indicated that the sausages were in bad condition. The cartons contained inspection marks of the department of agriculture. It was shown in the court below that the defendants carried the meat to West Frankfort, Illinois, on the truck in which they first received it, and there transferred it to another truck, which eventually carried it to the dock of defendants in Chicago. The shipment was made in the first instance, on Friday, June 4, 1943. It arrived at the Chicago dock of defendants on Saturday, June 5, and a connecting carrier was then called to complete the carriage of the shipment to the consignee. The Friday and Saturday involved were very warm days and there was no refrigeration on the truck of the defendants, nor were any refrigerating facilities furnished by them at any time, and apparently, not to any of the shippers who shipped on their trucks. The connecting carrier in Chicago picked up the shipment and stored it in the warehouse of the carrier in Elgin under refrigeration. There was evidence that at the time the shipment was picked up the boxes were broken and the sausage had an offensive odor. When the shipment was finally delivered to the Elgin State Hospital on Monday it was rejected as unfit for food. It was thereafter returned to plaintiff’s plant, where plaintiff put the meat in its waste product, or tankage.

It was claimed by plaintiff that the shipment was lessened or reduced in value in the sum of $225 as the result of the failure of defendants to perform their duty as common carriers. The evidence showed that the shipment would have had a value of $247 at Elgin if delivered in good condition, and that the market value thereafter was only $22 when it was finally delivered again at DuQuoin. No evidence was introduced on behalf of defendant, except the photostatic copy of the receipt given defendants by the connecting carrier. There was no affirmative showing of any precautions taken by the defendants to protect the shipment, even though the evidence indicated that the weather was very warm and humid and that the advisability of refrigeration was discussed with the defendants’ driver. The cause was tried by a jury who returned a verdict in favor of plaintiff for $200.

A number of errors are assigned by appellant which we will not discuss in detail, but will treat in the course of this opinion.

The plaintiff in this case made out a prima facie case by showing delivery of the shipment of sausage to the defendants in apparently good condition and their delivery at the destination in a bad condition. It was incumbent upon defendants to meet and overcome such prima facie case (Jennings v. Baltimore & O. R. Co., 194 Ill. App. 358).

Defendants failed to introduce any evidence to meet plaintiff’s prima facie case. It was only necessary that plaintiff take action against the “initial carrier” and it was not necessary that any connecting carrier be joined in the action (Illinois Cent. R. Co. v. Frankenberg, 54 Ill. 88; Chicago & N. W. R. Co. v. Simon, 160 Ill. 648).

It was the duty of defendants to provide all suitable means of transportation and to exercise that degree of care which the nature of the property required to protect it from loss and damage during transportation (Jennings v. Baltimore & O. R. Co., supra). In this case no evidence was offered by defendants of any effort on their part to prevent the spoilage of the meat in transit. In the Jennings case, supra, (at page 362), it was even pointed out that where a defendant contends that the loss or damage occurred because of the inherent nature of the goods, this defense presupposes that the carrier has performed its duty to carry the goods safely to its destination. The evidence in that case offered on behalf of the defendant merely showed that there was no delay in the shipment, or any mishap during transit, but there was no evidence by the defendant to show that it took any steps to prevent the freezing of the apples accepted by it for transit, nor was there anything to advise the court as to what care these apples had while carried in this train or while standing at stations, nor what care they received at their destination and before delivery. In that case the court stated that unless the courts are prepared to hold the damage by frost, while in transit, is something that the carrier owes no duty to attempt to prevent, the court could hardly sustain the contention that the evidence showed that the defendants used due care, and, accordingly, the court thought that there was an entire failure to rebut the presumption of negligence that arose. The instant case bears a strong similarity in that nothing is before us to show what efforts, if any, were made by defendants to use due care, and we cannot conclude that the damage through deterioration caused by the heat while in transit is something that the. carrier owed no duty to attempt to prevent.

■ There are a number of detailed objections to the order of the court entered in connection with the joinder of the connecting carrier as parties defendant, and to testimony of witnesses, as well as an exhibit in the case, and, likewise, to a number of instructions given and refused. As we have indicated, it was proper for the court to refuse to permit the joinder of the connecting carrier as a party defendant (Illinois Cent. R. Co. v. Frankenberg, supra). The testimony and exhibit to which objection was made were not of such character as to justify reversal of this cause.

As to the instructions (of which 47 were offered by the defendant, 16 of which were given and 31 refused), we do not believe it is helpful to discuss them in detail and will merely say that we have examined such instructions, both given and refused, and find no reversible error therein.

The further objection that the verdict should be set aside because it is for less than plaintiff claimed cannot be sustained (Kernan v. Advance Terra Cotta Co., 211 Ill. App. 316).

The judgment of the circuit court of Perry county will, therefore, be affirmed.

Judgment affirmed.

Bartley and Smith, JJ., concur.


author: Mr. Justice Bartley

text:
    Industrial Natural Gas Company, First National Bank of Philadelphia, Trustee and Alexander B. Bassett et al., Appellees, v. Sunflower Natural Gasoline Company et al., Appellants.
    Term No. 46F9.

      Opinion filed January 20, 1947.
    Released for publication February 20, 1947.

      Brown, Fox & Blumberg, of Chicago, Brown, Hay & Stephens, of Springfield, and John L. Kagy, of Salem, for appellants; Charles LeRoy Brown, of Chicago, Robert A. Stephens, Jr., of Springfield, and David F. Matchett, Jr., of Chicago, of counsel.
    Frank R. Hurlbutt, of New York, Wham & Wham, of Centralia, and Raymond O. Horn, of Salem, for appellees; Frank R. Hurlbutt, of New York, and Charles Wham, of Centralia, of counsel.
   Mr. Justice Bartley

delivered the opinion of the court.

This is an appeal by the defendants, Sunflower Natural Gasoline Company, Sunflower Gasoline Corporation and Sunflower Petroleum Products Corporation, hereinafter called the defendants (whenever this "opinion refers, to defendant or defendants, it is meant to refer to the defendant or defendants to which the circumstances may apply), from that portion of a decree of the circuit court of Marion county which awarded damages to the plaintiff appellee, Industrial Natural Gas Company, hereinafter referred to as plaintiff, in the sum of $200,000, for a breach of contract of July 21, 1942 providing for the sale by the defendants to the plaintiff of natural gas. The appellees, First National Bank of Philadelphia, et al. were intervening plaintiffs and anywhere in this opinion that it may be necessary to refer to them, they will be particularly identified.

A complaint was filed March 14, 1944 and alleged, among other things, that by a certain agreement dated July 21, 1942 between the plaintiff and two of the defendants, Sunflower Natural Gasoline Company and Sunflower Gasoline Corporation, plaintiff agreed to buy and the defendants agreed to sell certain quantities of natural gas; that subsequent to the execution of said agreement, the defendant, Sunflower Petroleum Products Corporation, by merger, consolidation or otherwise, acquired all of the assets of defendants, Sunflower Natural Gasoline Company and Sunflower Gasoline Corporation, and assumed their obligations including the said agreement of July 21,1942; that the plaintiff was engaged in the business of buying natural gas and distributing and selling same to industrial consumers; that said agreement of July 21, 1942 is the only agreement which plaintiff had, or at any time has had, for the purchase of natural gas and constitutes the sole source of supply of natural gas available to plaintiff for delivery and sale by plaintiff to its customers; that the plaintiff entered into business in reliance on said agreement of July 21, 1942 and in reliance thereon, entered into an agreement with Mount Vernon Car Manufacturing Company and J. P. Devine Manufacturing Company, Inc., for .delivery' and sale to them of natural gas at their plants in Mount Vernon, Illinois, to the extent of the entire fuel requirements of said companies.

The complaint further alleged that, as contemplated in the agreement of July 21,1942, plaintiff constructed and put into operation a pipe line for the purpose of supplying said car companies at a cost of approximately $120,000 and thereafter purchased and constructed other pipe lines and equipment at a cost of approximately $50,000 and incurred great additional expense to procure and arrange to serve plaintiff’s customers; that the plaintiff has procured and is now serving several industrial consumers in addition to the car companies and has been requested by numerous other industrial consumers to supply them with natural gas; that its present customers require a daily delivery in excess of 3,500,000 cubic feet of natural gas and that plaintiff has a potential market of another 2,500,000 cubic feet of natural gas per day; that since November 3, 1943 defendant has never furnished plaintiff more than 2,500,000 cubic feet on any one day and since that date the quantities of natural gas furnished have constantly decreased until plaintiff at the time of filing the complaint, was furnishing to its customers less than an average of 750,000 cubic feet per day; and that at least since November 3, 1943 defendants failed to deliver to plaintiff the quantities of natural gas to which the plaintiff is entitled pursuant to the provisions of the agreement of July 21, 1942; that plaintiff made numerous demands to defendants to supply the gas required by said agreement of July 21, 1942 but that defendants have failed and refused to do so; that plaintiff has, at all times, been ready and willing to accept delivery of and pay for all natural gas required to supply the demands of plaintiff’s customers.

It is further alleged that because of the breach by the defendants of said agreement of July 21, 1942, plaintiff has been unable to supply even the minimum requirements of its present customers; that as a result, plaintiff has irretrievably lost some of its actual market and is continuing to lose more and that its business is being rapidly destroyed, and will be completely destroyed unless the defendants be required to perform and carry out their obligation under said agreement of July 21,1942; that apart from the loss of plaintiff’s investment, if said agreement is not substantially performed, the actual losses previously suffered and which may hereafter be suffered, and in addition thereto, the loss of profits previously suffered and which may hereafter be suffered, on the quantities of natural gas which plaintiff could have sold and could hereafter sell throughout the term of the agreement of July 21, 1942 if such quantities should be available, would constitute the major part of plaintiff’s damages; that plaintiff has at all times performed, is now performing, is ready, willing and able to continue to perform its part of the agreement of July 21,1942.

The complainant’s prayer for relief, among other things, asks that defendants or one or more of them be required to specifically perform all of the terms of said agreement of July 21, 1942; that defendant he required to account to plaintiff for losses and damages plaintiff has sustained and will sustain throughout the term of said agreement of July 21, 1942 whether or not said agreement shall be specifically enforced; that the plaintiff have judgment against the defendants for all losses and damages which the plaintiff has heretofore or will hereafter sustain on account of the failures and defaults of the defendants and that the plaintiff have such further and general relief as equity will require.

The answer of the defendant sets up as defenses to the complaint, that it is not under any obligation by virtue of said agreement of July 21, 1942 or supplements thereto, to deliver to plaintiff any natural gas except such residue gas as the defendant has available for sale in accordance with the written contract which it has with the producers of casinghead gas; that under and by virtue of said agreement, it was not obliged to deliver to plaintiff any natural gas in excess of the amount of residue gas available for sale by it in accordance with the provisions of the casinghead gas contracts under which it acquired the casinghead gas, from which said residue gas was left; that at the time of entering into the said agreement of July 21, 1942, the defendants had available for sale to plaintiff, residue gas in excess of 5,000,000 cubic feet per day and had the same available until the Fall of 1943; that since July 21, 1942 there has been a steady depletion of the casinghead gas available in the Salem, Illinois field through conditions over which the defendant had no control; that with the decline in the production of oil and casinghead gas the operators and owners of wells, who are the sellers under the casinghead gas contracts, have been demanding back the full amount of residue gas to which they are entitled for the development and operation of their leases under the provisions of the casinghead gas contracts; that this has reduced the volume of residue gas which defendant has for sale to plaintiff, which at the time of the filing of the answer, was approximately 250,000 cubic feet per day; which said residue gas was all that the defendant can procure for delivery to plaintiff; that there is no other source of natural gas in the Salem, Illinois field from which the defendant could procure gas to sell to the plaintiff; that the depletion of the casing-head gas available in the Salem, Illinois field caused the shut-down by the defendant of its plant designated •as Sunflower No. 1 and that the depletion now threatens the shut-down of Sunflower Plant No. 2 and the complete cessation of all operations of defendant in the Salem, Illinois field; that the provision of said agreement of July 21, 1942 calling for the furnishing of 5,000,000 cubic feet per day is not binding upon the defendant in case of a depletion in the Salem, Illinois field, arising out of causes beyond the control of the defendant; that the defendant is fulfilling all of its obligations to the plaintiff under the provisions of said agreement of July 21, 1942 for the reason that section 18 of said agreement expressly provides that the defendants should not be liable for failure to furnish gas pursuant to the provisions of said contract where said failure arises because of the depletion of said gas supply and that the failure of the defendant to furnish more gas than is now being furnished is due entirely to the depletion of the supply available and to causes beyond its control; and that said agreement is lacking in mutuality.

The plaintiff by its reply filed April 24, 1944, takes issue with the matters of defenses put forward by the defendants.

The First National Bank of Philadelphia as trustee, on October 30,1944 filed its intervening petition claiming first lien upon the proceeds of any recovery by the plaintiff to the extent .of the principal and interest on all outstanding bonds and any other amounts due by virtue of an indenture of mortgage and deed of trust to it to secure the payment of moneys due from the plaintiff. A like petition was filed on October 30,1944 by Alexander B. Bassett, et al., who were the owners of the bonds secured by said indenture of mortgage and deed of trust. The decree of the circuit court established the lien. This portion of the decree is in no way questioned here and, therefore, no further reference will be made to this feature.

The agreement of July 21, 1942 after various recitals by way of “whereases,” by section 1, fixed the duration of the agreement to September 1, 1947 as its “primary term” and section 2, required the plaintiff to enter into an agreement for the sale of natural gas to Mount Vernon Oar Manufacturing Company and J. P. Devine Manufacturing Company, Inc., to the extent of the entire fuel requirements of their respective plants located at Mount Vernon, Illinois. Section 3, required plaintiff to construct and put into operation at its expense, a natural gas pipe line to extend from what is termed the main delivery point to a point at or near the plant of the Mount Vernon Car Manufacturing Company. Section 4 provides for the termination of the agreement for failure of plaintiff to comply with sections 2 and 3. Section 5 fixed the delivery points. Section 6, provides for the defendants to make the necessary connection with plaintiff’s pipe line.

Section 7 provides in part as follows: “Quantity. Upon the completion of, and connection of and with, Buyer’s said pipe line, as aforesaid, and thereafter throughout the term of this agreement, Sellers jointly and severally covenant and agree to sell, or to cause to be sold, to Buyer, and Buyer covenants and agrees to purchase from Sellers, or either of them, at the prices hereinafter specified, all of the natural. gas which may be necessary to enable Buyer, from time to time, to supply said total gas requirements of Mount Vernon Car Manufacturing Company and J. P. Devine Manufacturing Company, Inc., under the Car Company Contract, and any and all renewals and extensions thereof, and the total gas requirements of all such other customers as Buyer may now have or may hereafter procure. ... In order that Sellers, or one of them, directly or indirectly, may at all times be in a position, so far as possible, to deliver to Buyer sufficient gas to supply the said total requirements of Mount Vernon Car Manufacturing Company and J. P. Devine Manufacturing Company, Inc., under the Car Company Contract and the total requirements of all of Buyer’s said other customers, Sellers jointly and severally expressly covenant and agree that, at all times throughout the term of this agreement, Sellers will respectively give to Buyer, and do hereby respectively give to Buyer, the first call upon, and exclusive right to purchase, all natural gas which Sellers, or either of them, or any affiliate owned or controlled, directly or indirectly, by Sellers, or either of them, shall respectively have available for delivery in and from the said Salem oil field and vicinity, not only from Sunflower No. 1 Plant and Sunflower No. 2 Plant, but also from any other plant owned or controlled, directly or indirectly, by Sellers, or either of them, or any such affiliate, and from any oil well, casinghead gas well, or natural gas well, owned or controlled, directly or indirectly, by Sellers, or either of them, or .any such affiliate. Sellers further jointly and severally covenant and agree, anything hereinbefore contained to the contrary notwithstanding, that Sellers, or one of them, will, on each and every day throughout the Primary Term of this agreement have available for delivery at the Main Delivery Point and will deliver to Buyer thereat, if required by Buyer, a minimum of 5,000,000 cubic feet of natural gas.”

Section 8 provides as follows: “Sellers’ Contracts for Supply op Casinghead or Oil Gas. Sellers jointly and severally covenant and agree to use their respective best efforts to keep in force throughout the entire term of this agreement all of the respective agreements of Sellers, or either of them, or of any such affiliate, for the delivery of casinghead or oil gas to Sunflower No. 1 Plant, Sunflower No. 2 Plant, and to each and every other plant owned or controlled, directly or indirectly, by Sellers, or either of them, or any such affiliate, at which natural gas may now or hereafter be or become available, and to make, and to cause to be made, all such other agreements or arrangements for additional deliveries thereof, and to do, or cause to be done, all such other things, as may be necessary to enable Sellers, or one of them, or one or more of such affiliates, from time to time, to deliver to Buyer such quantities of natural gas as shall be sufficient to enable Buyer at all times to supply the said total requirements of Mount Vernon Car Manufacturing Company and J. P. Devine Manufacturing Company, Inc. under the Car Company Contract and the total requirements of all of Buyer’s said other customers.”

Section 9 provides for the maintenance and operation of plaintiff’s pipe line. Section 10 provides for the erection of measuring stations. Section 11 provides for delivery pressure to be maintained by the defendants. Section 12 provides for measuring instruments and measurement of gas in British Thermal Units. Section 13 provides for the reading of meters.

■ Section 14 provides as follows: “Price. The number of cubic feet of natural gas which shall have been delivered hereunder in each calendar month, and the pertinent number of Therms when applicable, shall be determined in accordance with the provisions of Section 12 hereof from the readings of Buyer’s meter or meters and instrument or instruments at the measuring stations, and the prices to be paid by Buyer to Sellers for all gas delivered hereunder shall be as follows:

(a) for all gas measured at the Main Measuring Station, sixty-five hundredths cents per Therm;

(b) for all other gas, if any, delivered hereunder, one-half (%) of the average resale price received by Buyer therefor.”

Section 15 provides for billing and payment. Section 16 provides for the testing of meters and adjustment of accounts. Section 17 provides for the merchantability of the gas.

Section 18 provides as follows: 1 ‘Interruptions. Buyer covenants and agrees to complete and put into operation its pipe line, pursuant to the provisions of Section 3 hereof, and thereafter to keep itself in a position to accept deliveries of gas hereunder, and Sellers jointly and severally covenant and agree to make the installations and connections provided for in Section 6, and at all times to respectively keep themselves, and to cause any such affiliate to keep itself, in a position to furnish natural gas to Buyer each day, to the extent and as hereinbefore provided; but neither Buyer nor Sellers nor any such affiliate shall be held liable for damages, nor shall this agreement be subject to termination because or on account of delays or interruptions, or because of inability to complete and put into operation said pipe line, installations or connections, or because of depletion of gas supply except as herein otherwise provided, if such delays or interruptions, or such inabilities, as the case may be, shall be due to Acts of God, strikes, riots, epidemics, landslides, lightning, earthquakes, fires, storms, floods, washouts, arrests and restraints of rulers and peoples, civil disturbances, governmental embargoes or prohibitions, priorities on or shortage of necessary materials, explosions, breakage or accident to lines of pipe, installations, connections, or equipment, freezing of lines of pipe, or any other cause, whether of the kind herein enumerated or otherwise, not within the control of Buyer or Sellers or any such affiliate, or if such depletion shall occur, as the case may be.; provided that any such cause for any such delay or interruption or inability or depletion shall, so far as possible, be remedied with all reasonable dispatch.”

Section 19 provides for the apportionment of taxes. The last four sections, numbers 20, 21, 22 and 23, provide for liability for damage, warranty, ownership of physical property and assignment of the contract.

At the time of the entering into the agreement of July 21, 1942, Sunflower Natural Gasoline Company owned an oil absorption gasoline plant in the Salem, Illinois oil field called Sunflower Plant No. 1. Defendant, Sunflower Gasoline Corporation, owned a similar plant in the same field called Sunflower Plant No. 2. At the same time, the Illinois-St. Louis Gas Line Company, an affiliate of these two defendants, owned a pipeline system connecting Sunflower Plant No. 1 with the City of Centralia, Illinois, which was subsequently changed to connect with Sunflower Plant No. 2. The Salem field was primarily a producer of oil. There were numerous oil and gas fields in the area in which what is termed casinghead gas was being discovered and being produced in large quantities. There were also natural gas wells in the vicinity. Casinghead gas is that which was expelled at the oil wells from the earth, and in the Salem field great quantities were expelled. Companies including the defendants were engaged in extracting liquids from this casinghead gas by means of absorption and compression plants operated for this purpose. These liquids were valuable and consisted of gasoline, butane, propane, iso-pentane and iso-butane. After the gasoline and other liquids are extracted from casinghead gas, the remaining gas, called residue gas,- is relatively free of liquid and still rich in heat producing constituents.

Defendants, the Sunflower companies, never owned any oil leases or operated any oil wells and they depended for their supply of casinghead gas upon producers of oil. They had entered into contracts for this casinghead gas with lessees and operators of oil wells. The contracts in the main were in standard form. Nearly all were cancellable at the option of the oil producer and all were terminable by the seller of the casinghead gas if it determined the requirements of oil production necessitated either a return of all the residue gas or the use of casinghead gas for the purpose of the wells. The result of this was that in actuality, the defendants were dependent upon the oil well operators for the amount of residue gas that they might have for delivery to the plaintiff.

At the time of the entering into the agreement of July 21, 1942, the defendants had contracts with oil operators for the furnishing of casinghead gas which gave them a supply of residue gas which was more than sufficient, after meeting the demands of their sellers, to meet the requirements of the agreement of July 21, 1942 for natural gas; and from this source, the terms of the agreement were complied with until about November 1943. Beginning in November 1943, and at all times afterwards, the defendants failed to furnish gas sufficient for the requirements of the plaintiff’s customers. The daily deliveries decreased from 1,952,700 cubic feet in November 1943 to 327,100 cubic feet in May 1944 and at the time of the trial, and after June 18, 1944, the defendants had no residue gas for sale and did not anticipate that they would have any in the future. The defendants thus became unable to furnish the requirements of the plaintiff for natural gas, because the oil operators upon whom they depended for casinghead gas, after the extraction process of residue gas, either by cancellation of their contracts or by exercising their options under the contracts, required to be delivered back to them larger quantities, from time to time, of the residue gas for their own use either in the operation of their leases or for repres-suring purposes. Repressuring consists of injecting gas into the earth for the purpose of increasing the production of oil from the wells.

After the making of the agreement of July 21, 1942, there began a reduction in the production of oil in the Salem field, and the sellers of casinghead gas, from time to time, demanded a larger return of residue gas from the defendants, which was being used by them for their own operations including the repressuring of oil wells.

It is apparent from the record that the failure of the defendants to supply the requirements for natural gas to the plaintiff, was due to the fact that they depended entirely upon residue gas available under their contracts for casinghead gas with the oil operators, and that they were unable to so comply with said agreement because of the cancellation of contracts, exercise of options and increased demands of the oil operators under their contracts with the defendants.

We come then immediately to a consideration of the question as to whether under the terms of the agreement of July 21, 1942, the defendants were excused from furnishing gas to the plaintiff by reason of what they term “depletion” not within their control.

In support of this position, the defendants rely on that part of section 18 in the agreement of July 21, 1942, which provides that neither buyer nor sellers shall be liable for damages because of the depletion of the gas supply not within the control of buyer or sellers.

The agreement, like any other contract, must be construed as an entirety (MacAndrews & Forbes Co. v. Mechanical Mfg. Co., 367 Ill. 288; Llewellyn v. Board of Education, Cicero-Stickney High School Tp. Dist., 324 Ill. 254) and enforced according to its terms, and if it is unambiguous, clear, definite and certain, there is no room for construction by the court. (Domeyer v. O’Connell, 364 Ill. 467; Decatur Lumber & Manufacturing Co. v. Crail, 350 Ill. 319; Green v. Ashland Sixty-Third State Bank, 346 Ill. 174.) The law is well settled that when one by his own contract engages unconditionally to do an act or to make deliveries, he takes the risk of being unable to perform, although his inability is caused, except where it is rendered impossible by an Act of God or the public enemy, by reasons beyond his control inasmuch as he might have provided against such contingencies by his contract. (Bunn v. Prather, 21 Ill. 217; Bacon v. Cobb, 45 Ill. 47; Dehler v. Held, 50 Ill. 491; Deibler v. Bernard Bros., Inc., 385 Ill. 610.)

As to the effect to be given to the provisions of section 18 which relieves the parties from damages on account of depletion of gas supply, the same is limited by the clause “except as herein otherwise provided,” which clause can refer only to the entire contract inasmuch as there is not anything in section 18 limiting the operation of the" words to such section.

We must, therefore, turn to the other provisions of the contract to ascertain which provisions were excepted. By the specific terms of section 7 of the contract the defendants covenant and agree to sell to the plaintiff, all of the natural gas which may be necessary to enable the plaintiff, from time to time,, to supply the total gas requirements of Mount Vernon Oar Manufacturing Company and J. P. Devine Manufacturing Company, Inc., under the car company contract, and any and all renewals and extensions thereof, and the total gas requirements of all such other customers as plaintiff might then have or might thereafter procure. It was also provided in this section that the defendants would on each and every day throughout the primary term of the agreement which extends up through September 1,1947, have available for delivery at the main delivery point and would deliver to the plaintiff thereat, if required by the plaintiff, a minimum of 5,000,000 cubic feet of natural gas. It is thus apparent from these provisions that the defendants covenant and agree to furnish to the plaintiff a minimum of 5,000,000 cubic feet of natural gas per day. These were the exceptions referred to in section 18 of the contract and constituted direct covenants and agreements apart from the provisions of section 18.

Moreover, the failure to deliver gas to the plaintiff by the defendants was not due to depletion. Depletion as applied to gas and oil is the reduction in the mineral contents of the reserves from which the product is taken (United States v. Ludey, 274 U. S. 295, 47 S. Ct. 608, 71 L. Ed. 1054). The record shows that there had been some reduction in the production of oil and the emitting of casinghead gas in the Salem, Illinois field. There was ample casinghead gas, however, to have readily supplied the demands of plaintiff under the agreement of July 21, 1942 from residue gas. The difficulty arose from the fact that the defendants relied on residue gas to comply with the agreement of July 21, 1942 and in turn depended upon their contracts with oil companies to secure casinghead gas from which the residue gas was obtained. As time passed, these contracts were either cancelled under their terms or the defendants were compelled to re-' turn the residue gas to such companies. If the defendants wished to avoid liability because of these conditions, they should have provided against them by the provisions of the agreement with the plaintiff.

Among other errors assigned by the defendants is that the agreement in question lacks mutuality. It is, of course, a well understood law that a contract not based on any other consideration, must contain mutuality of obligation. However, it is not the law that a contract must be reciprocal as to each and every separate obligation. It is sufficient if the contract legally obligates both parties to abide by and perform its conditions. (Prudential Ins. Co. v. Hite, 69 Ill. App. 416.) By the provisions of section 2 of the agreement of July 21, 1942, the plaintiff was required within fifteen days from the date of the execution of said agreement, to enter into an agreement for the sale of natural gas to Mount Vernon Car Manufacturing Company and J. P. Devine Manufacturing Company, Inc., to the extent of the entire fuel requirements of their respective plants. In pursuance of this agreement, the plaintiff did enter into such agreement under date of July 21, 1942 by the terms whereof, among other things, said companies agreed to purchase from the plaintiff for a period of five years, all of their natural gas to the extent of their entire fuel requirements and pay, therefor, as stated in the contract, a minimum of $30,000 per year. By this agreement as well as by section 3 of the agreement of July 21,1942 between the plaintiff and defendants, plaintiff was required to complete and put into operation a natural gas pipe line approximately twenty miles in length to extend from what is termed the main delivery point to the plants of the said companies at Mount Vernon, Illinois. In pursuance of these agreements, the plaintiff did construct such pipe line at a cost of $120,000. As a part of the transaction which resulted in the said agreement of July 21, 1942 between plaintiff and defendants, and by agreement of the same date between - the plaintiff and the Ulinois-St. Louis Gras Line Company, plaintiff acquired approximately ten miles of pipe line system owned by the Illinois-St. Louis Gas Line Company, an affiliate of the defendants, extending from Sunflower No. 1 Plant at or near Salem, to a point at or near the City of Centralia, Illinois, at a cost of $40,000 and took over the furnishing of gas to the customers previously served by the Illinois-St. Louis Q-as Line Company. By the terms of said agreement of July 21,1942 between the plaintiff and defendants, the defendants covenant and agree to sell or cause to be sold to the plaintiff and the plaintiff covenants and agrees to purchase from the defendants at the price specified in the agreement, all of the natural gas which may be necessary to enable the plaintiff, from time to time, to supply the total gas requirements of Mount Vernon Car Manufacturing Company and J. P. Devine Manufacturing Company, Inc., and the total gas requirements of all such other customers as the plaintiff may have. Other reciprocal covenants could be pointed out.

• It appears clear, therefore, that said agreement of July 21,1942 between the plaintiff and defendants is mutual and based on adequate considerations.

The defendants contend said agreement of July 21, 1942 between the plaintiff and defendants is in certain respects uncertain, which alleged uncertainties vitiate the contract. Defenses other than those which go to the jurisdiction of the court not raised in the trial court will not be considered on review. (Bittner v. Field, 354 Ill. 215, 220; Hill v. Siffermann, 230 Ill. 19, 25; Chicago Title & Trust Co. v. DeLasaux, 336 Ill. 522, 529.) The alleged defenses of uncertainty were not raised in the answer of the defendants or in any other way in the trial court. They will not, therefore, be considered for the first time by the court here.

The trial court found in its decree as facts that all material allegations of the complaint had been proven and that the plaintiff would be entitled to specific performance of the agreement of July 21, 1942 between the plaintiff and defendants, but that as a result of defendants’ failures it had become impossible for defendants to comply with the terms of said contract, so that it would be futile to decree a specific performance of said contract as the same was not at the time of the decree susceptible to specific performance and that, therefore, the prayer for mandatory injunction would not be granted. This decree found further that the contract having been violated by the defendants, the plaintiff was entitled to recover as an alternative relief, damages as prayed for in the complaint. It seems clear that what the court meant was that by reason of the failures of the defendants, there was no practical way that a court of equity could enforce the performance of the contract in question and in that sense, the enforcement of the contract was impossible. The defendants assign as error that the court after denying the equitable relief, then proceeded to assess damages. The rule is as stated by the defendants, that under the law in Illinois, a court of equity will not ordinarily, after the denial of equitable relief, go on and adjudicate the question of damages. (Patterson v. Patterson, 251 Ill. 153; Brauer v. Laughlin, 235 Ill. 265.) Seeming exceptions exist, however, where equitable considerations require the court to go on and adjudicate damages. (Garden City Sand Co. v. Southern Fire Brick & Clay Co., 260 Ill. 231.) As to whether in the instant case such equitable considerations exist is unnecessary for us to decide because of the view we take.

Early in the trial of the case the defendants took the position that it was in reality a case for damages. The complaint Sought and prayed for damages either in addition to specific performance or as an alternative to specific performance. No objection was made by any motion filed directed to the pleadings, nor was the right of the court to award damages either as an incident or an alternative, in any way questioned by the pleadings. Moreover, both sides tried the case before the court below affirmatively and without any objection or question on the theory that there was being adjudicated by the court the question of damages either in addition to specific performance or as an alternative to specific performance.

The law is well settled that, barring a question which goes to the jurisdiction of the court, parties cannot try a case on one theory in the trial court and then on appeal assign as error the procedure of the court which they had been a part of producing. Not having in any way raised the question of the power of the court to adjudicate the damages there, the same cannot be questioned here for the first time. (Bittner v. Field, 354 Ill. 215, 220; Hill v. Siffermann, 230 Ill. 19, 25; Kaufman v. Wiener, 169 Ill. 596; Monson v. Bragdon, 159 Ill. 61; Stout v. Cook, 41 Ill. 447; Johnson v. Miller, 50 Ill. App. 60.)

Defendants assign as error that the damages of $200,000 are excessive. The court below in arriving at its conclusion did so on the basis of loss of profits to the plaintiff, past and future. These damages were specifically claimed in the complaint and in its prayer for relief. Being an action in equity, the damages were properly assessed to the date of the entry of the decree. (Baker v. Salzenstein, 314 Ill. 226; Town of Kaneville v. Meredith, 361 Ill. 556; Kelly v. Galbraith, 186 Ill. 593.)

Early in the trial of the case, if not before, the defendants completely repudiated the agreement in question of July 21, 1942. Under such circumstances, the plaintiff had a right to treat the repudiation as putting an end to the contract for all purposes of performance and recover the profits it would have realized if it had not been prevented from performing, continuing' the contract in force for the latter purpose only. (Lake Shore & M. S. R. Co. v. Richards, 152 Ill. 59.)

Previous to the filing of the complaint, the defendants had for a substantial period, breached the terms of the contract. Where property or goods are purchased for resale, as here, loss of profits is a proper measure of damages. (Thorne v. McVeagh, 75 Ill. 81; Lapp v. Illinois Watch Co., 104 Ill. App. 255.)

A recovery may be had for prospective profits where there are any criteria by which future profits may be estimated with reasonable certainty. All the law requires as to the amount of loss or damage in such cases, is that it be approximated by competent proof and that the evidence shall with a fair degree of probability, tend to establish a basis for the assessment of such damages. (Barnett v. Caldwell Furniture Co., 277 Ill. 286.)

The evidence in the case here showed with reasonable certainty the loss of profits to the plaintiff, past and future, for the primary term of the contract and taking into account solely the definite and known customers of the plaintiff, such loss of profits, past and future, was well over $200,000.

We have laboriously examined the record and the briefs filed in this cause. The briefs filed by the appellants amount to 340 pages with an appendix of 16 pages. The briefs filed by the appellee amount to 321 pages. The abstract of the record with the supplemental abstract amount to 889 pages. These were prepared by learned and experienced counsel. We have given consideration to all of the assignments of error and to all the contentions of the appellants.. It appears that the trial court rightly understood the questions of law involved in the cause and correctly applied them to the facts. All issues of fact involved have been determined by the trial court adversely to the appellants and his conclusions are supported by the record.

We find no reversible error in the record. The decree of the circuit court of Marion county is affirmed.

Decree affirmed.

Culbertson and Smith, JJ., concur.