text:
    Lowenstern Bros., Inc., Appellee, v. Marks Credit Clothing, Inc., Appellant.
    Gen. No. 42,372.
    Opinion filed May 5, 1943.
    David Sosson, of Chicago, for appellant; Edward Levett, of Chicago, of counsel.
    Charles S. Hirsch, of Chicago, for appellee.
   Mr. Justice Hebel

delivered the opinion of the court.

This is an action at law in a first class municipal court case which was instituted by Lowenstern Brothers, Incorporated, as plaintiff against Marks Credit Clothing, Incorporated, as defendant, for breach of contract. The court at the request of plaintiff entered a summary judgment in favor of the plaintiff and against the defendant in the sum of $822.30 and no costs, and this is an appeal by the defendant from that judgment.

From the facts it appears that on March 21, 1941 the defendant in writing contracted with the plaintiff for the sale to the defendant of 250 58-piece baby layette sets at $7.50 each set. The plaintiff delivered to the defendant 147 70-piece baby layette sets not provided for in defendant’s order, as suggested by the defendant, and upon defendant’s refusal to consider these sets as performance of the contract, plaintiff on its motion and without trial obtained a judgment in the sum of $937.50 which judgment defendant satisfied.

The case proceeded as to undelivered sets and the defendant in its fourth amended defense, which substantially repeated the matter contained in four prior defense pleadings (all of which were stricken on as many of plaintiff’s motions, which motions were substantially the same as plaintiff’s motion of January 8, 1942), denied that plaintiff had performed the contract, and averred that plaintiff had never tendered the sets ordered by the defendant.

Plaintiff in its reply to defendant’s fourth amended defense alleged that it tendered delivery of 105 sets, the balance of the order (providing for 58-piece sets), identified in its exhibit 1, in contradiction of its later motion for summary judgment and affidavits in support of same, wherein plaintiff showed delivery of 147 70-piece sets and tender of a balance of 105 70-piece sets.

Thereafter, defendant’s motion to strike plaintiff’s motion for summary judgment and affidavits was denied and the court on plaintiff’s motion for summary judgment and affidavits (without permitting the defendant a trial by jury on its fourth amended defense, and on the matters contained in its answer to plaintiff’s motion for summary judgment and affidavits) awarded a further judgment to the plaintiff and against the defendant in the sum of $822.30 on the contract for the undelivered sets, from the entry of which order and judgment the defendant has perfected this appeal.

The defendant contends that its motion to strike was a proper method to test the sufficiency of plaintiff’s affidavits in support of the motion for summary judgment, and suggests that the court in denying the defendant’s motion to strike plaintiff’s motion for summary judgment and affidavits in support of same indicated no reason or cause therefor, and cites in support of this contention the case of People v. Sanculius, 284 Ill. App. 463, where the court said:

“It is our opinion that appellant’s motion to strike the defendant’s affidavits for summary judgment from the files was the proper procedure to test the sufficiency of this affidavit.”

However, the defendant contends that the discussion of this point in our opinion is unnecessary.

It is further contended by the defendant that at law and in equity the pleadings and proof must correspond, and plaintiff cannot recover where' a variance exists, and it is suggested and called to our attention that the plaintiff alleges: “That upon, to-wit, March 21, 1941, the defendant purchased of and from the plaintiff 250 baby layette sets at the agreed price of $7.50 each, said contract of sale having been evidenced by a memorandum of said contract in writing signed by said defendant; that an exact copy of said memorandum has been attached hereto and has been labeled ‘Exhibit 1.’ ” And defendant further suggests that the “Exhibit 1” clearly evidences the fact that the defendant ordered 250 58-piece baby layette sets, and that the fact that a particular set consisting of 58 pieces, and such a set only, was the subject matter of the contract is further borne out by plaintiff in the affidavit of Harry Edelman: “ ... Milton Lowenstern called at 6409 South Halsted Street, Chicago, Illinois, and exhibited to the said Abe Weinstein a sample baby layette set and a choice of several styles of boxes; that the said Weinstein selected a baby layette set consisting of 58 pieces as the one which the defendant would purchase; that thereupon the said Abe Weinstein stated that he would write up an order for 250 baby layette sets . . . .”

It is further suggested by the defendant that nowhere in its pleadings does plaintiff deny that defendant’s order provided for a certain 58-piece set; further, plaintiff in the affidavit of Frank Chalupa admitted: “That upon April 18, 1941, and April 19, 1941, affiant, together with one Jack Glass, who was in the employ of plaintiff, packed 252 baby layette boxes; that each of said boxes was packed with 70 individual pieces or items of infant’s apparel and accessories thereby assembling and packing one complete baby layette set in each of the said 252 boxes; that in assembling and packing said boxes, affiant used the list marked ‘Exhibit 2’ in selecting the individual pieces to be included in each set; that upon April 18, 1941, and April 19, 1941, the said boxes containing said layette sets and which had theretofore been packed, except those sets which were then or theretofore shipped to defendant, were then stacked in piles in the store room at 305 West Adams Street, Chicago, Illinois, and that said baby layette sets and boxes were then and thereafter the only complete baby layette sets in the store and storage rooms of the plaintiff.”

The defendant cites in support of the suggestions that were offered by it the case of Feder v. Midland Casualty Co., 316 Ill. 552, in which the plaintiff was a beneficiary under a policy of insurance. In her declaration among other things, there was an allegation that notice was given to the insurance company of the death of the assured. The plaintiff in her proof showed that the notice was orally given to the defendant insurance company, whereas the policy of insurance provided that written notice of injury must be given to the insurance company. The court in that case said:

“The object of a declaration in an action at law is to state the facts constituting the plaintiff’s cause of action upon which he relies to recover, so as to enable the defendant to prepare his defense and meet the facts alleged with appropriate evidence. In order to recover the plaintiff must prove the case alleged in his declaration. It is a primary and elementary principle that a plaintiff can recover only on the case made in his declaration. He cannot make one case by his allegation and recover on a different case made by the proof.”

Defendant also cites the case of Ward Hamilton Co. v. Channel Chemical Co., 327 Ill. 362, upon questions that may be of material interest herein. The court in that case said:

“There is more than a variance in this case — there is a failure of proof. Where the allegations of the declaration are unproved in their entire scope and meaning, a motion by the defendant to instruct for a finding in its favor should be allowed. There is no rule of practice permitting a plaintiff to make one case by his declaration and another by his proof.”

It is then argued by the defendant that it is, therefore, conclusive that the certain 58-piece layette set provided for by defendant’s order, and which is the subject matter of the contract between the parties, was never delivered or tendered^- but plaintiff offered evidence of a different set entirely not only in the number of pieces, but also in character, since it was alleged to have been selected from a different sample.

The plaintiff, in answer to the suggestions that were offered by the defendant, states that the defendant’s statement of facts was not accurate and complete, "and calls to our attention that on March 21, 1941 the defendant by Abe Weinstein, its agent, gave plaintiff a written order for 250 58-piece layette sets at the agreed price of $7.50 per set. Abe Weinstein was the duly authorized agent for the defendant and his authority to act for the defendant has never been denied.

It further appears from the facts suggested by the plaintiff that on March 24, 1941 the defendant requested the plaintiff to submit to it a set containing additional pieces, as appears in the affidavit of Edelman and the affidavit of Lowenstern.

On April 7 the defendant is alleged to have approved the composition of the set consisting of 70 pieces, and ordered a photograph taken thereof; and that on April 17, 1941 the defendant ordered the plaintiff to ship a part of the order to its various stores and to hold the balance subject to its order; that 147 sets were shipped upon defendant’s directions and accepted by it; that the defendant advertised the sale of the" 70-piece set on April 20, 1941; that no directions were given by the defendant where the remaining sets were to be shipped notwithstanding plaintiff’s repeated requests for shipping instructions. It is also stated that the goods were and are in the plaintiff’s warehouse available for delivery to the defendant.

Plaintiff avers that all of the foregoing facts were admitted by the defendant’s motion to strike the affidavits of the plaintiff.

It is alleged by .plaintiff that it continually requested payment of its invoices but payment was refused ; that defendant promised in writing to pay for the merchandise received by it; that in addition thereto the defendant stated in a letter to the plaintiff that, “I have contacted some very close friends of mine in this business to take the rest of the goods off our hands.”

The defendant failed to pay for any part of the merchandise, and suit was instituted for the entire purchase price on June 19, 1941. Five affidavits of defense were filed by defendant. Each affidavit of defense denied liability both for the merchandise received and accepted and for the merchandise refused. On January 12, 1942 judgment was entered against the defendant for $937.50, being the purchase price of the 147 sets less $200 credit for advertising.

Again on March 27, 1942 the plaintiff made an application for summary judgment for the balance due and filed four affidavits and eight exhibits in support thereof. Upon the hearing on the application for a summary judgment upon the affidavits of plaintiff, the answer of defendant and motion of defendant to .strike portions of plaintiff’s affidavits, on April 30, 1942 the court entered judgment for the plaintiff for $822.30, being the balance due for merchandise refused by the defendant.

The plaintiff, in reply to the defendant’s suggestion that a variance existed between the plaintiff’s statement of claim and affidavits for summary judgment, states that the variance asserted is the charge that plaintiff by its affidavits established the fact to be that it tendered a 70-piece set in lieu of a 58-piece set as called for under defendant’s order of March 21, 1941; that this variance is not fatal and can in no wise affect the right of the plaintiff to recover; and that the defendant, not only by its motion to strike plaintiff’s affidavits, but also, by positive acts on its part confirmed the modification.

It is suggested by plaintiff that the theory of fatal variance has been limited in its application to cases where certain legally essential elements have been operative, and that the doctrine of material variance is predicated (a) upon the theory that the defendant was surprised and therefore was unable to prepare itself to meet the evidence presented by the plaintiff in support of an entirely new cause of action which was not contained in the pleadings; or, (b) upon the theory that the judgment would not constitute a bar to a subsequent action upon the same controversy, and that (c) in either event, it is essential that the variance complained of must be both material and .substantial.

Further plaintiff suggests that none of these theories are valid contentions in the case at bar; that the defendant was not surprised; that an adjudication upon the issues framed herein is a complete bar to any subsequent action by either party concerning the controversy, and that the variance is neither substantial nor material.

The affidavits for summary judgment were filed by plaintiff March 27, 1942. The defendant answered portions thereof and moved to strike portions thereof on April 20, 1942; and plaintiff suggests that the defendant would not be warranted in asserting the element of surprise after it had this interval within which to prepare its counter affidavits under rules 72 and 73 of the municipal court, in force July 1,1940, or to take such other, proceedings as may be provided by law to present an issue as to the alleged variance, citing the case of Gliwa v. Washington Polish Loan & Building Ass’n, 310 Ill. App. 465 (477).

It is suggested that in an application for summary judgment the court may consider the entire record before it, including all affidavits, exhibits, pleadings and defenses filed, citing the case of Gliwa v. Washington Polish Loan & Building Ass’n, 310 Ill. App. 465 (471), and stating that it was obvious to the court from the entire record before it, in view of the letters written by the defendant on May 24,1941 and on May 27, 1941, that the defendant had refused to pay its just debt to the plaintiff for the merchandise accepted and used by it, and that its purported defense to the claim for unaccepted merchandise was merely a subterfuge to avoid payment pf its just indebtedness.

By the defendant’s motion to strike certain portions of plaintiff’s affidavits for summary judgment, the defendant admitted the material facts stated in the affidavits. Assuming that the motion filed by the defendant was a proper procedure, the defendant must therefore take the legal consequences of its motion. It is fundamental in the law of pleading that a demurrer, or the present motion to strike, admits all of the allegations of fact contained in the pleading to which the motion to strike is directed. Wainscott v. Penikcoff, 287 Ill. App. 78; Gliwa v. Washington Polish Loan & Building Ass’n, 310 Ill. App. 465; Anderson v. Pettigrew Foundry Co., 297 Ill. App. 14; Roberts v. Sauerman Bros., Inc., 300 Ill. App. 213; Boyd v. Aetna Life Ins. Co., 310 Ill. App. 547; Toledo, P. & W. R. v. Brown, 375 Ill. 438. In the Glass affidavit it is stated that the merchandise not delivered was placed in the plaintiff’s warehouse, which substantiates Chalupa’s affidavit with respect to the preparation of the 252 sets. These facts are also admitted by the defendant’s motion, and there seems to be no question but what the written order of the defendant could be modified by the subsequent oral agreement between the parties. Selman v. Geary, 334 Ill. 642; National Importing & Trading Co., Inc. v. E. A. Bear & Co., 324 Ill. 346; Williston on Contracts, Rev. Ed., Vol. II, sec. 591.

The fundamental facts alleged by the plaintiff with respect to the agreement to increase the number of units in the layette sets cannot and have not been de'nied by the defendant; moreover, the acts and the conduct of the defendant are an admission of the facts as charged by the plaintiff. It is obvious that the defendant would not have requested a list of the pieces and advertised a 70-piece layette set for sale if it had not favored and indorsed the modification. Of course there can be no question that evidence of modification after the execution of the contract is admissible testimony.

It does not appear, from anything that the defendant has cited as authority, why the conversation of the parties as to the subsequent modification of the contract was not admissible as evidence.

The introduction contained in the affidavits of Edelmanand of Lowenstern does not vary the terms of the contract between the parties. They are intended to comply with rules 72 and 73 of the municipal court, which require that the facts for a summary judgment be set forth with particularity. The facts leading up to the preparation of the original- order are not decisive of this cause, and could be treated as a mere surplusage without affecting the rights of the parties, and their only office is to afford a complete history of the transactions between the parties.

' The facts alleged by the plaintiff were directed solely to pleading the issues in the case at bar. The defend- . ant wilfully refused to meet these facts by a firm or definite denial or by the presentation of a good and legal excuse why it is not liable. The defendant’s affidavit was evasive and frivolous and failed to disclose any meritorious defense to the action.

On the facts as they appear in this record the plaintiff is entitled to recover the purchase price of the merchandise available for delivery. The defendant having paid the judgment entered against it on January 8, 1942, for the purchase price of 147 layette sets received by it, the only controversy remaining for determination is the propriety of the judgment rendered against the defendant for the purchase price of the" balance of the goods sold, being 105 layette sets.

After the modification of the number of pieces constituting the individual layette sets had been consented to by the parties, the plaintiff assembled and packed in boxes 252 layette sets according to the list and sample submitted to defendant. These sets had'been completely assembled and packed by April 19, 1941, and were placed in the storeroom of plaintiff awaiting shipping instructions from defendant. It appears that tenders and offers were made to deliver to the defendant the remaining 105 sets, from April 24, 1941, to May 15, 1941; that defendant repeatedly promised to send plaintiff distribution lists for the balance of its order or promised further delivery instructions when the defendant’s stores had made known their needs. The Edelman affidavit avers that plaintiff on April 17, 1941, requested delivery instructions for all of the merchandise ordered by the defendant. On April 21, 1941, the defendant promised to instruct the plaintiff as to the places to deliver the balance of the sets, and requested that plaintiff, should hold the sets until the defendant gave notice to plaintiff where to ship them. On April 23,1941, and during the period from April 26, 1941, to May 15, 1941, the plaintiff repeatedly sought further shipping orders but defendant, replied that it would advise Edelman later as to the places to ship the remainder of the order.

From the facts it appears that defendant failed to deny any of the allegations made by the plaintiff that the 105 layette sets were packed, ready and awaiting shipment to defendant, and that the merchandise was available for delivery and had been appropriated to the contract; nor does defendant deny the fact that the merchandise was tendered to it on numerous occasions.

It appears too, that in defendant’s letter of May 27, 1941, defendant agreed to pay for goods delivered to it and to dispose of the undelivered balance, and by its letter of May 24, 1941, in response to plaintiff’s invoices, admitted its knoivledge that the balance of the sets were available for delivery to it. The seller had the goods ready for delivery and offers of delivery had been made, which was a sufficient tender.

The defendant has insisted throughout its pleadings and affidavits that it was entitled to a $200 allowance for advertising, although at the same time defendant has constantly tried to discard any obligation to pay for the 70-piece layette sets. The defendant has .thereby elected to treat the contract, as modified, in force and effect in so far as concerns any advantage which it may derive therefrom, yet the defendant claims the contract was breached by the plaintiff and therefore the obligation of the defendant is at an end.

On the question as to the advertising allowance, plaintiff’s answer to this contention is that the entire amount requested of the plaintiff was allowed, and a computation of the account in this respect is as follows :

No issue or complaint has been made by the defendant against the allowance of interest, and interest was properly allowed. (Ill. Rev. Stat., ch. 74, sec. 2 [Jones Ill. Stats. Ann. 67.02]).

The summary judgment entered in the sum of $822.30 is computed as follows:

For the reasons above indicated, the judgment entered by the municipal court is affirmed.

Judgment affirmed.

Burke, P. J., and Kilby, J., concur.


source: Caselaw Access Project

author: Mr. Justice Kiley Mr. Presiding Justice Burke,

license: Public Domain

text:
    Chicago Title and Trust Company, Plaintiff, v. William J. Cleary, Defendant. William J. Cleary, Appellee, v. Chicago Title and Trust Company, Appellant.
    Gen. No. 41,469.
    Burke, P. J., dissenting in part.
    Opinion filed May 5, 1943.
    Kirkland, Fleming, Green, Martin & Ellis, Harold L. Reeve, Charles F. Grimes and Carl F. Faust, all of Chicago, for appellant; Howard Ellis, of Chicago, of counsel.
    Orr, Vail, Lewis & Orr and John O’C. FitzGerald, all of Chicago, for appellee.
   Mr. Justice Kiley

delivered the opinion of the court.

This is an appeal from the second trial of a cross-action for damages for breach of an alleged escrow agreement, with verdict and judgment for plaintiff for $110,000. In the first trial verdict was for plaintiff for $150,844.50, and judgment notwithstanding was for defendant, and on appeal this court (Chicago Title & Trust Co. v. Cleary, 286 Ill. App. 97) reversed the judgment and remanded the cause for a trial on the merits.

The Trust Company sued Cleary in 1932 for $481 on an open account. Cleary counter-claimed for damages for breach of contract and the Trust Company took a nonsuit. The first trial was on Cleary’s second amended counter-claim. The second trial was on his sixth amended counter-claim, as amended, in which he charged the Trust Company with breach of an alleged escrow agreement dated November 26, 1927, between the Trust Company and Cleary, Chicago Lumber Company, Croissant and Owens, under which he 'claimed he ivas entitled to $100,000 of Chicago Lumber Company bonds and $10,000 cash. He alleged in one count performance of conditions precedent to the Trust Company’s obligation to deliver the bonds and pay the cash to him; and in another count that an anticipatory breach waived necessity of fulfillment of the conditions precedent. The issues made up by the- pleadings were whether the instrument sued on by Cleary Avas genuine or spurious; whether, if genuine, it was accepted by the Trust Company; whether, if genuine, conditions precedent had been fulfilled, or waived by an anticipatory breach through the Trust Company’s delivery of the Lumber Company’s bonds to Kirkeby, Watts & Company instead of Cleary; and Avliether Cleary approved and ratified the délivery to Kirkeby, Watts & Company.

The second trial lasted 21 Aveeks and was vigorously contested. Extraneous issues were introduced which contributed to the length of the trial. On the irrelevant issue whether Attorney Reeve of the Trust Company had been a Chicago policeman, sixteen witnesses, including four attorneys and two municipal court judges, testified. The record discloses a bizarre proceeding, in Avhich matters presented ranged from a motion based on the statute of Westminster and Gloucester to quotations from “Alice in Wonderland. ’ ’ Many important witnesses are dead. Some died before, and others after the first trial and one witness committed suicide during the second trial.

November 11, 1927, the Trust Company agreed in writing with Croissant, Owens and Chicago Harbor Lumber Company, by its President, Becks, to act as escrowee of deeds from the latter parties and Cleary, and of deposits of money by the Lumber Company which the Trust Company was to disburse as directed. The escrow was designed to convey to the Lumber Company several parcels of land which, together with other land conveyed to it by one Lorenz under a separate escrow, the Lumber Company was to convey in trust to the Trust Company, as Trustee, to secure a bond issue of $200,000. The Lumber Company deposited the trust deed, under the escrow, covering the several parcels, as Sites 1, 2, 3, 4, 5 and 6 (Site No. 4 was later stricken out of the trust deed); and agreed to “will deposit” “herewith” $14,616.67 and “will deposit” $12,000 of the bonds. The escrow provided that when the Lorenz deed was deposited in the escrow, all deeds therein should then be recorded and when the Trust Company was prepared to issue its guaranty policy, subject to objections not pertinent here, it should pay, “when deposited,” $14,616.67 to Croissant and deliver the $12,000 in bonds to Lorenz. Under its terms Cleary, not a signatory, was to pay all of the Trust Company expenses in connection with the escrow. November 21, 1927, another agreement was entered into between the same parties with Cleary an additional signatory. This contract was substantially the same as the November 11th escrow instrument, except that the provision for bonds to Lorenz is omitted and Cleary guarantees the Trust Company ’s expenses, and on page 3 it is provided that the Trust Company should disregard all instructions of November 11, 1927. There is no provision for disbursement of any kind to Cleary in either this or the November 11th instrument.

The Trust Company insists that the alleged escrow of November 26,1927, is spurious. The original of the instrument is not in evidence and the foundation of the action is a carbon copy introduced by Cleary. Most of the provisions of this instrument are the same as those in the escrow agreement of November 11th and November 21st, but under it Cleary’s guarantee of the escrow charges is limited to $150; Site 4 has been eliminated; the signature for the Lumber Company is different; and in addition to the disbursal directions in the prior instruments the Trust Company is directed to “deliver One Hundred Thousand Dollars in bonds to William J. Cleary, when certified, also $10,000.00 cash and stock.”

Cleary had the burden of proving the escrow agreement on which he relies, its acceptance by the Trust Company, its breach by that Company and his damages resulting. In proving the breach he was required to prove fulfillment of the conditions precedent to that obligation, deposits of money, etc., as he charges in' one count, or the anticipatory breach by the Trust Company waiving fulfillment as he charges in the other count. The Trust Company’s burden was to establish ratification by Cleary of its delivery of the Lumber Company bonds to Kirkeby, Watts & Company, should proof be made by Cleary of the several elements hereinabove mentioned. The burdens imply the requirements of a preponderance of the evidence and, where there was any evidence in favor of the party having the burden, the issue thereon was for the jury, unless on all the evidence, considered favorably to. the one having the burden, with all reasonable, favorable and legal inferences therefrom, the minds of reasonable men could come to only one conclusion; and finally, where any issue of fact was for the jury, we should not, especially on the second successive verdict in favor of Cleary, set the verdict aside unless the rule of manifest weight is clearly applicable.

The essential issue in the case was the alleged escrow agreement of November 26th. Cleary testified that he signed the November 21st agreement without reading it and, later, reading his carbon copy thereof, discovered that Site 4 was improperly included and that no provision was made for him in exchange for his properties, and that he brought these matters to the attention of Marriott, a Trust Company official who died before the trial. The 'inference from the testimony of Cleary and Attorney Powell is that Marriott was to rewrite the instrument. Cleary says thereafter the original and a carbon copy of the November 26th instrument were delivered to his office, compared by him and Powell, and on Saturday morning, November. 26th, executed by the several parties at the Trust Company’s offices. Powell corroborates Cleary on this point. Cleary says he saw the original later, at the Trust Company’s office, on four occasions, each time with an attorney. The testimony of one attorney at the trial and the deposition of Powell, then deceased, read at the trial, corroborate Cleary. The other two, one a master in chancery, were not offered as witnesses. The fact that they were not offered is relied upon by the Trust Company as affecting adversely the truth of Cleary’s story. We see no reason why Cleary should be bound to produce these latter two witnesses. He made his proof by offering the instrument, telling his story and offering some corroborative testimony. The Trust Company admits the two witnesses were available and it could have called them. The two attorneys who testified, identified the disputed document dated November 26th, as the one which they had seen- and compared with the original at the Trust Company office and in the presence of a Company official now deceased. Powell testified he also saw .the original at his office when Cleary brought it and the copy to him before it was executed.

At the trial Trust Company’s counsel sought at length to gain admissions from Cleary that pages 1 and 3 of the disputed document were carbon copies of pages 1 and 3 of the November 21st instrument. It was the theory of the Trust Company in the trial court, that the disputed document is spurious, having been manufactured by using pages 1 and 3 of Cleary’s copy of the valid November 21st agreement and a carbon copy of a false page 2. Cleary refused to make the admissions sought and steadfastly replied that he could not admit what he did not know. The • original of the November 21st instrument is in evidence and Cleary’s copy thereof was not produced at the trial. A comparison of the November 21st and November 26th documents leaves no doubt that pages 1 and 3 in the latter are carbon copies of pages 1 and 3 of the former.

Cleary says that when he first saw the original November 26th document and its disputed copy, after ■November 21st, 1927, both were unsigned. He thus negatives the possibility that pages 1 and pages 3 of the November 21st and November 26th documents are originals and carbon copies. One of his attorneys by cross-examination of a Trust Company employee, brought out testimony of a custom of the Trust Company, indulged in 1927, to suggest that it had rewritten page 2 of the November 21st instrument and with it and pages 1 and pages 3 built the original and copy of the. disputed instrument. His other attorney argued to the jury that it was impossible for pages 1 and pages 3 to be originals and carbon copies.

Thus, the jury had contradictory theories on behalf of Cleary: First, the testimony of Cleary and' the argument of one of his attorneys that there was no possibility that pages 1 and pages 3 of the November 21st and November 26th documents were originals and carbon copies; Second, the other suggested by his other attorney in cross-examination, that pages 1 and pages 3 were originals and carbon copies, with page 2 rewritten by the Trust Company. On the other hand the theory of the Trust Company is that pages 1 and pages 3 were originals and carbon copies with page 2 spurious, neither drawn nor known nor accepted by it.

The jury according to its verdict must have found either that pages 1 and pages 3 of the November 21st and November 26th documents were not originals and carbon copies, or that they were originals and carbon •copies with page 2 having been drawn and inserted by the Trust Company as suggested by the cross-examination. If the first alternative, Cleary in his brief in effect admits, and from a comparison of the instruments we must conclude, that the jury was in error; and if the second alternative, we must set the verdict aside, based as it is on the mere suggestion under cross-examination without more, as being manifestly against the weight of the evidence.

In his brief Cleary says that the first and last pages of November 26tli agreement “appear to be carbon copies of the first and third pages of the November 21st agreement” and that page 2 could readily have been recopied and that, “according to the way the Trust Company did business in 1927, it would not have had the entire agreement recopied” and that it would “have been reasonable for it to have used carbon copies of pages 1 and 3 of the November 21st agreement and have rewritten page 2 and have the new agreement executed.” He then argues that different kinds of ink were used in the signatures, indicating the signatures were made at different times. The theory of the Trust Company is the same here as it was in the trial court.

We cannot presume that the verdict of the jury would have been the same had the issue been as it is presented here. The case was not submitted clearly to the jury; there were no instructions on the vital element — the disputed escrow — which outlined the theories of the parties. The judgment must be reversed.

There are conflicts in the evidence upon the character of the disputed instruments and two juries have decided the issue in Cleary’s favor. It is our opinion he should have an opportunity to present evidence to sustain the theory which he has adopted in this court and, therefore, the cause should be remanded. If retried, the case should be kept under close control by the court in order that the trial be free from irrelevancies which beclouded and prolonged unduly the former trial; should be considered on the definite theories which now appear, based on the fact that pages 1 and 3 of the disputed document are carbon copies of pages 1 and 3 of the November 21st agreement; and the trial court should see that the different theories are presented to the jury with all available helpful testimony and suitable instructions on the vital issue.

For the reasons given the judgment of the municipal court is reversed and the cause is remanded with directions.

Reversed and remanded with directions.

Hebel, J., concurs.

Mr. Presiding Justice Burke,

dissenting in part:

In my opinion Mr. Cleary has not made out a case and judgment should be entered for the Chicago Title and Trust Company. He does not have a cause of action and further time and money should not be consumed in fruitless litigation.


author: Mr. Justice Kiley Mr. Presiding Justice Burke

text:
    Franc Arnold et al., Trustees, Appellants, v. H. Piper Company, Appellee.
    Gen. No. 41,947.
    Bubble, P. J., dissenting.
    Opinion filed May 5, 1943.
    Rehearing denied May 19, 1943.
    Milton Kauffman, of Chicago, for appellants; J. F. Bishop, of Chicago, of counsel.
    Harold E. Marks and Leonard Gordon, both of Chicago, for appellee.
   Mr. Justice Kiley

delivered the opinion of the court.

Plaintiffs sued for damages for breach of a contract between Packers Brands, Incorporated, a Missouri corporation, and The H. Piper Company, an Illinois corporation. Judgment after trial by the court without a jury was for plaintiffs in the sum of $77.80 and they appeal, asking judgment.here for $9,336.00.

Packers Corporation, owner of a dog food formula and a scientific compound of ingredients for dog food, entered into a contract with the Piper Company May 20,1937, granting the latter a license to merchandise the product. The license for 10 years covered Chicago and a surrounding area and limited Piper’s dog food business to Packers’ dóg food, or to that containing at least 50 per cent of Packers’ compound. Under the contract Piper was obliged to purchase two tons of the compound simultaneously with the execution of the contract and after six months at least one ton per month, all at $164 per ton and Piper had an option to cancel the contract on 60 days ’ notice within the six month period. It is conceded that Piper bought two tons during the first six months but none thereafter and that the option to cancel "was not exercised.

January 1,1938, Packers’ corporate rights were forfeited by order of the Secretary of State of Missouri by virtue of section 4619, Rev. Stats, of Mo. 1929, to-wit:

“If any corporation shall fail to comply . . . the corporate rights and privileges . . . shall be forfeited, and the secretary of state . . . cancel the certificate or license, . . . whereupon all the powers, privileges and franchises . . . shall subject to rescission . . .' cease and determine, and the secretary of state shall notify, such corporation . . . that its corporate existence and rights . . . have been forfeited and canceled, and the corporation dissolved, subject to rescission. . . .”

Plaintiffs sue as trustees under section 4622, a related section which provides:

“When the forfeiture . . . has been declared, the officers and directors ... at the time . . , shall be trustees of such corporation with full pov-er to settle its affairs and distribute its assets among its stockholders, after paying the debts due and owing by such corporation, and as such trustees to sue and recover debts and property due such corporation, and they shall be jointly and severally responsible to the creditors and stockholders of such corporations to the extent of its property and assets that may properly come into their hands.”

January 21, 1938, Packers wrote Piper of the requirement of the agreement that Piper buy' at least one ton of compound a month and that Packers was ready, willing and able to sell. February 8th it again wrote Piper to the same effect. These letters were not signed, but concluded, “Packers Brands, Incorporated, By: Secretary.” February 14, 1938, Piper responded that it had no success selling the dog food, had made every effort, but could not compete in price, could not perform under the contract, and that there was an understanding with Mr. Arnold that if the item was not saleable the agreement would be terminated.

The office of Packers was in the law office of plaintiff Sigoloff. Packers had no investment in ingredients, kept no stock, but purchased ingredients as orders came. To make dog food, Piper mixed the compound with stale bread and water, put it through a machine, boxed, sealed and packed it; and delivered it to retailers.

Plaintiff sought to recover damages for an anticipatory breach of the contract for the entire term of the 10 year contract, claiming first that the breach occurred prior to January 1, 1938, and that in any event, the breach took place on February 14, 1938. Defendant, by way of avoiding liability on the theory that the merchandise was unfit, attempted to show that the merchandise molded in the stores. The court found that defendant had breached its contract for the month of December 1937, but that it was not liable after January 1, 1938. The series of letters exchanged between the parties clearly indicates that there was no anticipatory breach prior to January 1, 1938, and that neither so considered. IVe see no reason to disturb that finding of fact.

The remaining question is one of law whether on February 14, 1938, Packers whose charter had been forfeited January 1, 1938, acquired a cause of action based on an anticipatory breach on that date by Piper. The court decided the question of law adverse to plaintiffs on the ground that the action of the Secretary of State of Missouri on January" 1, 1938, rendered Packers incapable of performance under the contract and that amy repudiation thereafter by Piper was meaningless. The decision involved determination of the question whether during the year 1938 the Corporation was dissolved and unable to perform executory contracts; or in suspension only with power to transact its ordinary business until January 1, 1939. Plaintiffs say that Packers’ situation following February 14,1938, is irrelevant because the cause of action accrued on that day. They introduced a form of affidavit sent by the Secretary of State of the State of Missouri for rescission of the forfeiture order under sec. 4621 and they admit that the affidavit was not filed. Section 4621 provides:

“The secretary of state may rescind the forfeiture . . . upon presentation of an affidavit signed by the president, or secretary, . . . setting forth that such corporation has not suspended its ordinary and lawful business within one year next before the filing of such affidavit, . . . .”

Sigoloff testified concerning the affidavit, there were no objections to the questions put to him, and no point can be made of the admission of the testimony.

Plaintiffs contend that at the time of the alleged breach Packers was not dissolved but suspended, and direct our attention to the reference to rescission in section 4619 and to the provision of section 4621, under which the Secretary of State “may” rescind the forfeiture. A reading of section 4619 and 4621 with section 4622 gives rise to difficulty. If the ordinary forfeiture under 4619 was conditional only, why should the affairs of the Corporation be settled and its assets distributed under 4622? And, if the forfeiture were final and a dissolution made, how could the purpose of section 4621 be fulfilled by a showing that the Corporation did not suspend its ordinary business ? Plaintiffs cite and rely mainly upon Arnold v. Streck, 108 F. (2d) 387, claiming that it is decisive of this case in plaintiffs’ favor. That case, decided by the United States Circuit Court of Appeals, 7th Circuit, involved the same plaintiffs as appear in this case. By virtue of that case plaintiffs say that we must hold that dissolution did not occur until January 1, 1939 and that plaintiffs had the right to recover for a breach in 1938. We think there can be no question of the right of plaintiffs to sue and recover for a breach occurring before they became trustees.

Piper admits renunciation but contends that, the Secretary of State not having rescinded the forfeiture of January 1,1938, dissolution became effective on that date. It points out that plaintiffs could not have filed the requisite affidavit for rescission, since the evidence shows Packers had no active contracts after January 1, 1938 and had no credit or funds. Sigoloff testified that Piper was the only customer, and that Packers had no credit, after January 1, 1938, and it appears that the trustees had no power to borrow money for the Corporation. Piper relies upon the case of Estel v. Midgard Inv. Co. (Mo. App.), 46 S. W. (2d) 193, to sustain its position that Packers was dissolved on January 1,1938.

In the Streck case the court said that the construction of the pertinent sections of the Act by the St. Louis Court of Appeals in Estel v. Midgard, supra and Watkins v. Mayer (Mo.), 103 S. W. (2d) 566 was the correct one and that Packers was completely incapacitated for business after January 1, 1939. It said the trustees’ powers were to wind up and liquidate, with powers to enforce obligations maturing prior to January 1, 1939. The breach in that case occurred in February 1939 and, accordingly, an entirely different question wás presented, furthermore to say that the alleged anticipatory breach here was a maturing obligation is to beg the question.

We take the same view as the Circuit Court of Appeals that the Missouri cases referred to by it correctly construed the sections involved in this appeal. Under that construction, the Circuit Court of Appeals decided the Streak case and plaintiffs infer from that decision that since the breach here occurred prior to January 1,1939, a right of action accrued to them. No obligation matured in plaintiffs’ favor on February 14, 193-8, because Packers on that date “was without power to function as a corporation” and plaintiffs “were without any power or authority to transact any business on behalf of the corporation, except to wind up its affairs and distribute its assets.” Estel v. Midgard Inv. Co. (Mo. App.), 46 S. W. (2d) 193, consequently, it could not claim an anticipatory breach, on that day, of a contract requiring it to produce and sell dog food and compound to Piper for almost 10 years.

We have not been referred to any case which construes section 4621, and the language therein is a shadow upon the clear language of the related sections. Beading the several sections together in the light of the many cases cited which have construed sections 4619 and 4621, we are of the opinion that the declaration of the Secretary of State was an order of dissolution subject to rescission (Estel v. Midgard, supra), and that on February 14, 1938, the' order not having been rescinded, Packers was incapable of performing and no anticipatory breach was possible.

For the reasons herein given the judgment of the superior court is affirmed.

Jiidgment affirmed.

Hebel, J., concurs.

Mr. Presiding Justice Burke

dissenting: Passing the dispute as to whether there was a renunciation of the contract before January 1, 1938, it is clear that there was a renunciation by the defendant in February 1938. The defendant found the contract unprofitable and clearly stated that it did not intend to perforin. In fact, it claimed a right to cancel. This claim of a right to cancel, advanced prior to the commencement of the suit, was abandoned by the defendant. The contract did not require performance by the corporation as distinguished from performance by a successor to the. corporation’s rights, such as plaintiffs. In' my opinion the record shows that plaintiffs were at all times, able to' perform and were urging performance. The corporation could have performed but was not required to perform after the renunciation. In February 1938 and in July 1938, when the instant suit was filed, and for a long time thereafter, the corporation could have been reinstated. 'The suspension was subject to be remedied at the time of the renunciation. The suspension of the certificate of the corporation could not abrogate the corporation’s contract rights. The contract was entered into long before the suspension and at a time when the corporation had a clear right to do business. The cases cited by defendant do not support its contentions. It is my view that the authorities cited by the respective parties are support for plaintiffs’ theory. In considering this case we must view the situation as it existed at the. time of the breach. The defense now relied upon appears to be an afterthought. Plaintiffs. are entitled to judgment for damages computed upon the difference between the total contract price and the cost of rendering performance to the defendant as approved at the trial. In Lake Shore & Michigan Southern Ry. Co. v. Richards, 152 Ill. 59, our Supreme Court said (80):

:: “It is well settled that where one party repudiates the contract and refuses longer to be bound by it, the injured party has an election to pursue either of three remedies: He may treat the contract as.rescinded, and recover upon quantum meruit so far as he has performed ; or he may keep the contract alive for the benefit of both parties, being at all times himself ready and able to perform, and at the end of the time specified in the contract for performance, sue and recover, under the contract; or he may treat the repudiation as putting an end to the contract for all purposes of performance, and sue for the profits he would have realized if he had not been prevented from performing.”

The difference between the contract price and the cost of performance was adjudicated by the trial court at $77.80 per month. Plaintiffs are entitled to damages in the sum of $77.80 per month, multiplied by 120 months, or $9,336.


author: Mr. Justice Kiley

text:
    General Finance Corporation, Appellant, v. C. W. Nimrick, Trading as Nimrick Motor Sales, et al., Appellees.
    Gen. No. 42,060.

      Opinion filed May 5, 1943.
    Rehearing denied May 19, 1943.
    William V. Brooks, of Chicago, for appellant.
    Chancellor & Chancellor, of Chicago, for certain appellees; Justus Chancellor, Jr., of Chicago, of counsel.
   Mr. Justice Kiley

delivered the opinion of the court.

This is an action for the conversion by defendants of a Packard automobile. Judgment was entered for defendants in a trial by the court without a jury.

Stamer bought a Packard automobile from Nimrick in December 1939 and several days later it was wrecked and Nimrick, under instructions from Stamer brought the car to Polo, Illinois, for repairs. The repairs were completed in February 1940 and Stamer arranged with Nimrick to keep possession of the automobile and sell it. Nimrick advanced $150 and was obligated to pay something over $800 more. Stamer says the $150 was a loan, though the inference is he needed no loan, however, the details from which the precise nature of this transaction might be known, are too vague for a finding.

In August 1940, Nimrick mortgaged the car to plaintiff under a note and mortgage signed by him individually, but the check covering the loan issued in the name of Nimrick Motor Sales. Shortly after Labor Day, 1940, Stamer repossessed the car and refused plaintiff’s demand for the same after default by Nimrick in the mortgage payments. In refusing, Stamer explained that Nimrick had possession of the car since December 1939 until after Labor Day; had driven it; had parked it at home and kept it on display; and that occasionally during the nine months Stamer would occasionally have the car but only for a few days.

Plaintiff claims title under its mortgage; defendants answer that their title was superior; and plaintiff replies that, since defendants had permitted Nimrick to appear to plaintiff as owner .and had placed him in a position to defraud plaintiff, the doctrine of estoppel has intervened to preclude defendants from asserting title. The last clause presents the issue.

Since there is no substantial dispute in the evidence, we shall decide the issue as a question of law.

Estoppel may operate to defeat a superior title where the conduct of the superior owner, allows another to appear as owner and thereby deceive, to his damage, a third person. Lambert v. Dobbs, 302 Ill. App. 400; Drain v. LaGrange State Bank, 303 Ill. 330. Nimrick could not convey more than he had but if Nimrick was apparent owner and plaintiff was innocent and relied upon the appearance, it could defeat Stainer’s title. Williams v. Fletcher, 129 Ill. 356; Western Union Cold Storage Co. v. Bankers Nat. Bank of Chicago, 176 Ill. 260; Drain v. LaGrange State Bank, 303 Ill. 330. Plaintiff had the burden of showing that it did not know of Stamer’s title, had no ready means of ascertaining the facts and had relied upon the appearances of ownership. (Vail v. Northwestern Life Ins. Co., 192 Ill. 567; Payne v. Hutson, 264 Ill. App. 508; Alton Banking & Trust Co. v. Alton Building & Loan Ass’n, 289 Ill. App. 177.)

Plaintiff contends defendants clothed Nimrick with these indicia of ownership — possession, and driving the car with power of disposition, for nine months. Plaintiff did not learn of these indicia until after Stamer had repossessed the automobile, therefore did not rely upon them, for the mortgage was made in August. It saw a bill of sale to Nimrick in February, saw the car on display, and asked Nimrick whether the. car was his and unencumbered. It knew the car was not included in the general floor plan mortgage covering Nimrick’s “dealer cars,” and though plaintiff checked Nimrick’s cars from May until September, since the Packard in question was not in the floor plan, the inference is that it checked only those carried by the mortgage and were not concerned with the Packard. Under these circumstances it would appear that plaintiff relied upon its view of a bill of sale in February which, under the evidence of custom of selling customers only through dealers, is not weighty evidence of ownership in a dealer; possession of Nimrick in August, though the mortgage was made away from Nimrick’s place of business leaving an inference it did not see the car at the time; and plaintiff’s statement of ownership. We are not called upon to say that it was required to look to the office of the Secretary of State for evidence of ownership, but we do believe that while the evidence shows Stamer was not prudent, plaintiff has not made satisfactory proof that it is such an innocent, diligent, careful person (31 C. J. S. 332) in this transaction that we are warranted in denying Stainer’s title in its favor.

For the reasons given the judgment of the municipal court is affirmed.

Judgment affirmed.

Burke, P. J., and Hebel, J., concur.


text:
    Joseph M. Siegel, Appellee, v. Herman Meyer and Julia Meyer, Defendants. Alfred E. Williston, Administrator to Collect of Estate of Julia Meyer, Deceased, Appellant.
    Gen. No. 42,085.
    Opinion filed May 5, 1943.
    Eugene P. Kealy, of Chicago, for appellant; John M. Smyth, Jr., of Chicago, of counsel.

      Harold E. Marks and Leonard Gordon, both of Chicago, for certain appellee.
    Thomas P. Powers, of Chicago, for certain other appellee.
   Mr. Justice Kiley

delivered the opinion of the court.

This is an action to recover $10,271.76, represented by a certain note and interest coupons executed by Julia and Samuel Meyer. An administrator of the estate of Julia Meyer, appeals from an order setting off the judgment in an attachment proceeding against plaintiff’s judgment in the main action.

May 6, 1940, upon plaintiff’s affidavit and bond, an attachment in aid issued against Julia Meyer. June 10, 1940, the attachment writ was quashed as wrongfully issued and a judgment for damages was entered in favor of Julia Meyer and against plaintiff for costs and damages occasioned thereby. May 7, 1941, the death of Julia Meyer was suggested and Williston, administrator, substituted to prosecute her petition for damages arising out of the attachment. March 24, 1941, .the court found plaintiff liable to the administrator in the sum of $217 for costs, damages and attorneys’ fees, with leave to plaintiff to amend his complaint, making the administrator defendant; and further ordered the main issue heard April 28, 1941, staying execution for the costs, damages and attorneys’ fees until the disposition of the main issue. June 9, 1941, the administrator petitioned the court praying that execution be ordered issued against plaintiff upon the $217 judgment, pursuant to which an order was entered denying the prayer; finding that Samuel and Julia Meyer had executed the notes and interest coupons of which plaintiff was legal owner and holder; refinding the liability of plaintiff to the administrator for $217; finding that there was due plaintiff on account of the notes and coupons $10,271.76; setting off against said .sum the $217 judgment and satisfying the same and ordering judgment for plaintiff in the sum of $10,054.76 and costs.

The question is whether the trial court erred in setting off the judgment for damages, costs and attorneys’ fees in violation of ch. 77, par. 63, Ill. Rev. Stat. 1941 [Jones Ill. Stats. Ann. 107.213], wherein, among other things, it is provided that set-offs of execution between the same parties shall not he allowed as to so much as is due the attorney in “that suit’’for his fees and disbursements therein. The administrator relies on that provision and says that the $217 judgment was obtained through the efforts of Eugene Kealy, attorney in “that suit” who should be protected under the statutory provision. A motion was made to dismiss the appeal so far as it pertained to the order of March 24, 1941 on the ground that it was not a final order or, in the alternative, that if final, the appeal was not perfected within 90 days. The motion was taken with the case.

Defendant contends in opposition to the motion that the order was interlocutory at the date of its entry, but became final June 9, 1941 and that the appeal was perfected within 90 days after that date. The judgment of March 24th on the attachment was auxiliary to the main action, interlocutory and unappealable until the final judgment on June 9th. Brignall v. Merkle, 296 Ill. App. 250. Appeal was taken from the final judgment within due time and the entire record is before us and we may consider all orders entered in the proceeding. Brignall v. Merkle, supra. The motion to dismiss is denied.

There is no basis either for plaintiff’s contention that defendant has waived his right to present this matter on appeal because of his failure to formally object or except in the trial court.

Plaintiff argues that chapter 77, as cited by defendants, is not applicable here because the references are to ‘ ‘ executions after-trial and judgment” and not to set-offs entered at final judgment. He points out that the cases relied on by defendants are different in that the parties there had actually separate judgments in distinct suits which ripened into executions, and that in each the attorneys themselves were suing as assignees of their client’s judgments, while here the attorney himself was not involved in the set-off. He also points out that there is no showing before this court as to how much of the $217 judgment represented attorneys’ fees; that no attempt was made to prove that factor and no finding of the court; and refers us to' Bogar v. Walker, 89 Ill. App. 457, for authority that the case, in any event, should be remanded so that proof could be made as to how much of the judgment was for attorneys’ fees.

Defendant argues that plaintiff’s contention as to chapter 77, section 63, is too narrow. We agree. The act and sections referred to were intended to make attorney’s claim for fees preferred as against a judgment creditor of his client. Brent v. Brent, 24 Ill. App. 448; Silverman v. City Construction Co., 338 Ill. 154. The •right to set-off defendant’s judgment in the attachment proceeding against judgments for plaintiff on the main issue, must yield to the prohibition of section 63. However, there is nothing in the record before us to show what the attorneys’ fees amounted to. It is true that there are allegations in petitions from which inferences may be drawn, but there is no finding by the court. The statute is effective only to the extent of the attorneys’ fees and, consequently, would apply here only to so much of the $217 as represents attorneys’ fees. Because of the deficiency in this respect, while the final judgment of the trial court must be reversed, the cause is remanded with directions to determine what part of the attachment judgment is for attorneys’ fees and, to that extent, exempt it from the set-off.

For the reasons given the judgment is reversed and the cause is remanded with directions.

Reversed and remanded ivith directions.

Burke, P. J., and Hebel, J., concur.


text:
    Helen Motusas, Appellee, v. Acme Burial Association, Appellant.
    Gen. No. 42,109.
    Opinion filed May 5, 1943.
    McKinley, Price & Quindry, of Chicago, for appellant; William McKinley and Paul E. Price, both of Chicago, of counsel.
    Herman L. Bogolub, of Chicago, for appellee; Clarence M. Shapiro, of Chicago, of counsel.
   Mr. Justice Kiley

delivered the opinion of the court.

This is an action on a certificate of insurance, with trial by the court without a jury and judgment for plaintiff in the amount of $500; the full amount of the certificate.

Defendant, an Illinois burial insurance society, issued the certificate September 6, 1939, on the life of Victor Motusas, with plaintiff beneficiary. Insured died February 23, 1940 of lobar pneumonia. The certificate by its terms is incontestable after two years and provides that the certificate and application therefor constitute the contract with the member. On the face of the certificate, below a large gold colored seal covering a snip of red ribbon, is a capitalized statement “Modified Liability During Contestable Period.” The same statement appears on the back of the certificate. In the application the insured agreed that in event of his death resulting directly or indirectly from, among other causes, a disease of the lungs, the liability of the defendant, at its option, should be limited to a return of the assessments paid. At the trial defendant tendered plaintiff $7, the paid assessments.

A question of law is presented on the undisputed facts whether lobar pneumonia is a disease of the lungs. If so, defendant’s liability is limited to the assessments paid and the judgment must be reversed.

Defendant first contends that plaintiff, by failing to reply to defendant’s answer, admitted the facts constituting the affirmative defense. Since defendant presented evidence of that defense at the trial, it waived the filing of the replication. Ford Motor Co. v. National Bond & Investment Co., 294 Ill. App. 585; Cairo Lumber Co. v. Ladenberger, 313 Ill. App. 1.

The only testimony as to the character of lobar pneumonia is defendant's medical expert whose qualifications were admitted by plaintiff. His uncontradicted testimony is that lobar pneumonia is a disease of the lungs. The insured Motusas was sick about six days and treated by the doctor about' two days before his death. It does not appear that the medical expert was asked his opinion of the exact case of the insured.

The court found that the policy was unfair to t'ie public. So far as the record shows, the form of the certificate is approved in Illinois.

Plaintiff, while not producing any testimony at the trial.nor cross-examining defendant’s medical expert, relies here upon dicta in Metropolitan Life Ins. Co. v. Bergen, 64 Ill. App. 685, as authority for deciding that pneumonia is a temporary inflammation of, not' a disease of, the lungs. Pneumonia is defined by Webster as a medical term, as: A disease characterized by inflammation of the lungs with exudation into the lung tissue and resulting solidification of the tissue . . . ; and lobar pneumonia, “an acute febrile form involving all the greater part of a lobe of the lung or several lobes . . . .” The term disease is defined “pathologically” as, “an alteration of the state of the human body ... or some of its organs or parts interrupting or disturbing the performance of the vital functions, or a particular instance or case of this.” In view of the medical testimony and the definitions, we cannot follow the dicta in the Metropolitan case, and have no alternative but to reverse the judgment and remand the cause with directions to the trial court to enter a judgment for plaintiff in the amount of $7.

Judgment reversed and cause remanded with directions.

Burke, P. J., and Hebel, J., concur.


text:
    Samuel C. Perlman, Appellee, v. Thomas Paper Stock Company, Appellant. Samuel C. Perlman, Cross Appellant, v. Thomas Paper Stock Company, Cross Appellee.
    Gen. No. 42,138.
    Opinion filed May 5, 1943.
    Poppenhusen, Johnston, Thompson & Raymond, of Chicago, for appellant and cross appellee; Henry J. Brandt, Albert K. Orschel, both of Chicago, Samuel W. Block, of Washington, D. C., and Adolf L. A. Loeb, of Chicago, of counsel.
    McInerney, Epstein & Arvey, of Chicago, for appellee and cross appellant; Elmer Gertz and George L. Siegel, both of Chicago, of counsel.
   Mr. Justice Kiley

delivered the opinion of the court.

This is a contract action with a decree ordering judgment for plaintiff for $8,900. Defendant appeals from the judgment; and plaintiff from “denial of motion to modify decree” and .from a “portion” of the decree.

Plaintiff filed a “complaint in equity and at law.” In Count I “at law,” he charged defendant with breach of an oral contract by the terms of which plaintiff was to have $500, or 50 per cent of the profits, monthly during the life of a contract for waste paper between the Chicago Tribune and defendant, which latter contract plaintiff claims he induced. He asks judgment. In Count II, “in equity” plaintiff restated by reference all charges in “Count I” and in addition that defendant’s books, which would disclose the exact amount due him, were under control of defendant which has refused plaintiff an accounting, seeking to cheat and defraud him. Plaintiff prays for an accounting. Defendant answering the counts separately, denies the agreement and the terms thereof; performance by plaintiff thereunder; that plaintiff induced the contract ; denies indebtedness and any intention to cheat plaintiff.

The decision of the trial court recites the. overruling of defendant’s motion for a jury trial; that the cause was submitted to the court which heard evidence, considered charges in Counts I and II, and finds defendant’s indebtedness; finds that there is no cause for an accounting and for equity jurisdiction, as prayed for in Count II; and ordered that plaintiff have judgment for $8,900.

Defendant’s motion for a new trial attacked the decree, as having been entered on a finding that there was no cause for equity jurisdiction as prayed for in Count II; and in overruling defendant’s demand for a jury trial on the law count. Plaintiff asked for a modification of the decree to increase the period of the indebtedness ; to find that defendant agreed to pay one-half of the profits in excess of $500 per month; to refer to a master for an accounting; and to strike the finding on the equity count.

The trial court sitting as chancellor, as appears from the decision, found no cause for an accounting or for equity jurisdiction, but, nevertheless, then found plaintiff entitled to recover from defendant and ordered judgment in plaintiff’s favor for $8,900. The court stated that it, having disposed of Count I, the law count, found no need of going into Count II, the equity count. Defendant’s counsel sought by motion and objection to have the equity count considered first, presumably upon the theory advanced here that unless equity had jurisdiction under Count II, it could not in equity determine the matter of law under Count I. To defeat the contention of defendant, plaintiff cites the cases of Weininger v. Metropolitan Fire Ins. Co., 359 Ill. 584; Crawford v. Schmitz, 139 Ill. 564. These cases are not helpful for in the former the complaint and proof were sufficient to give equity jurisdiction and in the latter defendant had waived his right to object that plaintiff had an adequate remedy at law by failing to so assert in his answer. The first case is distinguishable on the ground that here the court expressly found that there was no cause for equity jurisdiction, and the second case because here the defendant had no opportunity to make such a defense in his answer for this was a dual action and on its face the equity count was not objectionable and defendant’s objection would necessarily have to await proof, for if the complaint was not objectionable, but the proof insufficient, equity jurisdiction would not attach. Brauer v. Laughlin, 235 Ill. 265; Hogg v. Hohmann, 330 Ill. 589; Belleville Bride Co. v. Industrial Commission, 305 Ill. 577.

It is apparent from a colloquy between court and counsel at the trial and from the form of the decision, that the trial court determined that the actions were not properly severable and proceeded to try them jointly in chancery, and the decree found that there was no ground for an accounting or for equity jurisdiction. The court, however, in a subsequent colloquy indicated that the case was disposed of on Count I, the law count, without going into Count II, but also indicated that Count II had been considered and the decree recites that both counts were considered. The decree while finding that there was no cause for equity jurisdiction, proceeded to order judgment for plaintiff for $8,900. The court apparently intended to and did try the counts jointly, however, the only justification for overruling defendant’s jury demand was to proceed in equity and we shall assume that the trial court did so, but having done so, under the uniform rule in Illinois (Brauer v. Laughlin; Hogg v. Hohmann; Belleville Brick Co. v. Industrial Commission), when it determined there was no equity jurisdiction, it should have thereupon dismissed Count II and remitted the parties to trial at law oti. Count I before a jury in accordance with their demand.

We have considered the evidence in the record and agree with the trial court that the proof is insufficient to sustain a decree in plaintiff’s favor as prayed for in Count II. . The judgment, however, must be reversed and the cause remanded for a new trial before a jury on Count I.

Judgment reversed and cause remanded with directions.

Burice, P. J., and Hebel, J., concur.


author: Justice Dove.

text:
    Albert F. Johnson, Appellant, v. Charles M. Thompson, Trustee, and Oscar B. Anderson, Appellees.
    Gen. No. 9,854.
    opinion filed April 28, 1943.
    Raphael E. Yalden, for appellant; Hyer & Gill and Nelson J. Wilcox, for appellees.
   Opinion by

Justice Dove.

“Not to be published in full.”


author: Presiding Justice Burke.

text:
    Ace Engineering Company, Appellee, v. Pioneer Brewing Company, Appellant.
    Gen. No. 42,321.
    opinion filed May 5, 1943.
    Adam S. Przybyszewski, for appellant; Edward McTiernan, of counsel; Moss, Ellman & Inlander, for appellee; Walter E. Moss, of counsel.
   Opinion by

Presiding Justice Burke.

“Not to be published in full.”


text:
    Local Loan Company, Appellee, v. Jack Norman et al., Appellants.
    Gen. No. 42,461.
    opinion filed May 5, 1943.
    Hubbard, Baker & Rice and Landon L. Chapman, for appellants; Newton, Wilhelm & Kenny, for appellee.
   Opinion by

Presiding Justice Burke.

“Not to be published in full.”


text:
    People of the State of Illinois, Defendant in Error, v. Ruth Slade, Plaintiff in Error.
    Gen. No. 42,480.
    opinion filed May 5, 1943.
    W. G. Anderson, for plaintiff in error; Thomas J. Courtney, State’s Attorney, for defendant in error; Edward E. Wilson, John T. Gallagher, Melvin S. Rembe and Joseph A. Pope, Assistant State’s Attorneys, of counsel.
   Opinion by

Presiding Justice Burke.

“Not to be published in full.”


author: Justice Matchett.

text:
    Benjamin D. Ritholz, Appellant, v. Yellow Cab Company et al., Appellees.
    Gen. No. 42,437.
    opinion filed July 2, 1943.
    Julius S. Neale, for appellant; Jesmer & Jesmcr and Edwin A. Halligan, for certain appellees; Edwin A. Halligan and Samuel M. Lanoff, of counsel; Rawlins & Wright, for certain other appellee; Fay Warren Johnson, of counsel.
   Opinion by

Justice Matchett.

“Not to be published in full.”


author: Justice Kiley.

text:
    Joseph Brockman, Appellee, v. Peoples Gas Light and Coke Company and John M. Gallagher, Appellants.
    Gen. No. 41,984.
    opinion filed May 5, 1943.
    Daily, Dines, White & Fiedler, for appellants; Edward H. Fiedler and George J. O’Grady, of counsel; Mack S. Colburn, F. Patrick Conlon and Marion J. Hannigan, for appellee.
   Opinion by

Justice Kiley.

‘ ‘Not to be published in full. ’ ’


text:
    Taft Dorsey, Appellee, v. Boris Kriloff and Sam Newman, Trading as Boris Tavern, Defendants. Appeal of Underwriters at Lloyds and John S. Lord, Attorney in Fact, Appellants.
    Gen. No. 42,042.
    opinion filed May 5, 1943.
    Ekern & Meyers, for appellants; Donald L. Thompson and Vernon A. Forsberg, of counsel; Blowitz, Baskin & Kallick, for appellee ; Samuel J. Baskin, of counsel.
   Opinion by

Justice Kiley.

“Not to be published in full.”


text:
    Marie F. Cullerton, Administratrix of Estate of John F. Cullerton, Deceased, Appellant, v. Dillwyn M. Bell, Appellee.
    Gen. No. 42,119.
    opinion filed May 5, 1943.
    Harry A. Biossat, for appellant; Johan Waage, for appellee.
   Opinion by

Justice Kiley.

“Not to be published in full.’’