text:
    Elizabeth Kirchoff v. The Union Mutual Life Insurance Company.

      Trust. Deeds—Foreclosure—Redemption as to Part in Conformity with Agreement.

    1. When a mortgagor has conveyed the mortgaged premises to the mortgagee it only operates as a bar to the equity of redemption, where it clearly and unequivocally appears that both parties so understood and intended it should.
    2. When by the operation of law upon the facts, or by the agreement of the parties, a mortgage debt has been apportioned, and a part of it made the sole burden upon a part of the incumbered property, that part may be redeemed by paying the portion of the debt apportioned thereto.
    3. Upon a bill filed to redeem certain property to which defendant acquired the legal title under a quit'claim deed from complainant and her husband, and under certain foreclosure proceedings under a trust deed to which complainant was a defendant,' instituted prior to said quit claim deed, and carried to decree and sale subsequent thereto, it being contended by said complainant that her offer to release and quit claim to the defendant all her lands in said trust deed described, providing she might be allowed to redeem two lots included therein upon terms named, was agreed to by it, this court holds that said complainant is entitled to the benefit of such agreement, and that, upon the ascertainment of the amount due and the payment thereof within a time named, a conveyance to her of the premises in question must be made.
    [Opinion filed October 28, 1889.]

      In error to the Circuit Court of Cook County; the Hon. Murray F. Tuley, Judge, presiding.
    Messrs. W. S. Harbert and George E. Daley, for plaintiff in error.
    The doctrine in this State is, that when a party induces another to execute a conveyance to him by promising to convey to a third person, he will be considered as holding the title in trust for such third person; and we fail to see any distinction between such promise, and one to reconvey to the grantor. Lantry v. Lantry, 51 Ill. 458; Fischbeck v. Gross, 112 Ill. 208.
    Where one of the contracting parties has been induced or allowed to alter his position on the faith of an oral contract, within the statute of frauds, to such an extent that it would he a fraud on the part of the other party to set up its invadid] ty, equity will make the case an exception to the statute. Reed on the Statute of Frauds, Sec. 553.
    A conveyance by a husband and wife, passing her dower and homestead rights, is sufficient part performance of a verbal contract, that if she would so join in the deed, the vendor would convey other land to her. Farwell v. Johnston, 34 Mich. 343.
    In Morrell v. Cooper, 65 Barb. 512, the parties, after a sale to the mortgagee under a decree of foreclosure, entered into a parol agreement by which the mortgagee was to reconvey to the mortgagor upon payment of the indebtedness. Upon the faith of this promise the mortgagor acquiesced in the sale, and omitted to apply by motion to have it set aside. Held, that to permit a party to avoid his agreement under such circumstances would be allowing the statute of frauds to be used as an instrument of fraud, instead of a shield against it.
    The case of Beegle v. Wentz, 55 Pa. St. Rep. 369, is one which we deem to be conclusive on this point. In that case Beegle recovered judgment against Wentz, and levied upon certain land belonging to the judgment debtor and upon which he resided. Wentz claimed his exemptions under the statute. Upon this a parol agreement was entered into between the parties, by which it was agreed that the land should be sold by the sheriff and bid in by the creditor; and that upon consideration of the debtor waiving his exemptions, Beegle would reconvey to him a part of the premises. Beegle, upon obtaining title to the premises, refused to reconvey and brought ejectment. The defendant set up the parol contract, and the court held that the case was not within the statute of frauds. They say: “ The distinguishing feature of the case is that the agreement of Wentz was not to acquire anew interest in the land by parol; but he was the owner of the land; had a title, both legal and equitable, and a right to retain so much of the land as would be of the value of 8300. It was this subsisting title which Beegle procured Wentz to forego by his promise to leave him his house and fifteen acres, and make over to him the sheriff’s deed for that part. This part lie was not to take, but to hold in trust. His language was that he did not want to take their home from them; that he would give them a home of fifteen acres, provided Wentz would sign some agreement to let him sell the whole tract; and he would buy the land and give them a sheriff’s deed for the fifteen acres. * * * The trust in such cases arises ex maleficio on the principle that equity will not permit one to deprive another of the title which he actually has, by such a promise, not intended to be performed. * * * Mor does it make any difference that the title was acquired by Beegle through a judicial sale. When the trust arises in a fraud, it vitiates all deeds, private or judicial.” That case is cited approvingly by this court in Fischbeck v. Gross, supra.

    Messrs. Swett, Grossoup & Wean, for defendant in error.
    The alleged agreement, taken as stated, does not, in connection with all the facts of the transaction, confer upon the appellant a right to redeem.
    In this State [& mortgage or trust deed passes to the mortgagee the legal title in the premises as security for the debt, reserving to the mortgagor the right to defeat such legal title by the payment of the debt. Bispham’s Eq., Sec. 151; Carroll v. Ballance, 26 Ill. 9; Jackson v. Warren, 32 Ill. 331; Harper v. Eli, 70 Ill. 581.
    The equity of redemption is the right which the mortgagor has in the land, upon his payment of the debt for which the mortgagor stood as security. Such right is not fastened upon land by any contract subsequent to the making of the mortgage, but is an estate, inhering in the mortgagor at the time of the making of the mortgage, and not defeated thereby. An equity of redemption, or the right to redeem, therefore, while it may be affected by some subsequent contracts, as for instance a contract extending the time within which it shall be exercised, is not created by contract. The fact that the appellant may have supposed herself acquiring, by her alleged agreement, the.right to redeem, does not give her any such right. She could not, any more than a stranger, acquire the right to redeem by a contract with the appellee. The appellant’s right to redemption, then and now, if any exists, arises from her estate in the land, and is subject to the conditions which the law uniformly imposes upon the exercise of that right, viz.: that the redemption extend to the whole tract by the payment of the whole debt. There can be no division of the tract, part of which shall be redeemed and part not redeemed, or division of the debt, part of which shall be paid, and part remain unpaid, and the payment must be in money. Jones on Mortgages, Secs. 1070, 1072.
    These principles would be too familiar for repetition, but for the argument of counsel that the appellant is entitled to “ redeem ” a portion only of the mortgaged premises, upon the promise to pay a portion only of the debt. The argument amounts to the proposition that the conditions of redemption, fixed by law, may be changed tiy the parol contracts of the parties. It would follow that upon proof of a parol agreement to that effect, the mortgagor could redeem by the payment of an infinitesimal portion of the mortgage debt.
   Gary, P. J.

The facts of this case as established by a preponderance of the evidence, are that in May, 1871, the insurance company loaned $60,000 to the complainant and plaintiff in error and her husband, Julius Kirchoff, and her mother, Angela Diversy, uj on their note secured by a trust deed conveying many parcels of land belonging to them in severalty, among which were lots 2 and 4 in block 21 of. the Canal Trustees’ subdivision of the south fractional quarter, Sec. 3, T. 39 N., R. 14, E. 3d P. M., which were the property of the complainant.

In 1878 there was default in payment. Reasons which are not very clearly shown by the record, led to negotiations which resulted in the conveyance by the mother of all her lands included in the deed, except forty acres which the company released to her, and by the complainant and her husband of all their lands included in the deed, which conveyances the company accepted in satisfaction of their debt. But as to a part of the transaction, it was agreed that the complainant might purchase from the company the two lotsfor 810,000, the terms for the payment of which are involved in considerable uncertainty, except that they were to extend over a period, probably of nine years, but which certainly has now elapsed, and the rate of interest was to be six per cent.

She filed her bill to have the benefit of this agreement. The bill was dismissed upon the hearing. As was said in Sargent v. Howe, 21 Ill. 148, the deed of trust in this case “only differs from a mortgage with power of sale in its being executed to a third person instead of the creditor,” and therefore the dealings between the parties are within the rule applicable to mortgagors and mortgagees, “that the courts look upon their transactions with jealousy.” 1 Jones Mtg., 711.

The evidence as to the agreement is by the testimony of Julius Kirchoff, E. A. Warfield, then general agent, and R. B. Kendall, then attorney of the company, and it was made between Julius Kirchoff, acting for the complainant, and Warfield, with some participation by Kendall, acting for the company.

The authority of Warfield to act for the company under circumstances as shown by this record, has been affirmed by the Supreme Court in the cases of this company v. White, 106 Ill. 67, and v. Slee, 110 Ill. 35. The testimony of Julius Kirchoff, in regard to the agreement, is much weakened by the inconsistency of his conduct afterward, but it is so corroborated by Warfield and Kendall, that there is sufficient proof of the agreement. Before the conveyance to the company, it had commenced foreclosure proceedings, in which they sought to reform the description of part of the lands of Mrs. Diversy; she had answered, contesting it, and alleging a defense which, if successful, would have invalidated most, if not all, of the papers she had executed. The company understood, whether correctly or not is immaterial, that they could make no adjustment with her without the assent of the Kirchoffs. There were, therefore, considerations to induce the company to make the agreement, and that they did make it, is satisfactorily proved, and they have had from it all the benefit they proposed to obtain by it. The foreclosure proceedings went on after the conveyances, to cut off an intervening title, but with the agreement that it should not affect the agreement as to the lots described.

The company obtained deeds under the foreclosure in January, 1882, but refused to perform the agreement made by Warfield. As to the effect of this agreement, the rule in equity “once a mortgage, always a mortgage,” applies.

As was said in Ennor v. Thompson, 46 Ill. 214: “When the mortgagor has conveyed the mortgaged premises to the mortgagee, it only operates as a bar to the equity of redemption, when it clearly and unequivocally appears that both parties so understood and intended it should.” Here the contrary, as to the two lots, clearly and unequivocally appears. And it does not affect the complainant’s right to redeem those lots, that as to the residue of the mortgaged property, there is no redemption, and that she proposes to pay but a small part of the original debt. When, by the operation of law upon the facts, or by the agreement of the parties, the debt has been apportioned, and a part of it made the sole burden upon a part of the incumbered property, that part may be redeemed by paying that part of the debt apportioned to the part redeemed. Meacham v. Steele, 98 Ill. 135; Mutual Mill Ins. Co. v. Gordon, 121 Ill. 366.

The complainant filed her bill to redeem in June, 1882. The lots she was to redeem and the principal sum she was to pay, as well as the rate of interest, are definitely fixed by the agreement.

The time at which the interest was to begin, and the amount and time of payment of the installments, are left uncertain. But this is not a bill for a specific performance. It is an appeal to a court of equity by the complainant that she may have her property restored to her upon the terms that she shall discharge the burden upon it, fixed in amount by agreement, and which, if that agreement had been executed and performed, would have been discharged in the time that has elapsed. She is now entitled to the benefit of that agreement, upon the terms that she, within a short time after the amount is ascertained, pay it. The decree is therefore reversed and the cause remanded to the Circuit Court with directions to that court to have an account taken of the amount due the company, crediting them with the principal sum of §10,000 and interest thereon at six per cent from September 10,1879, the day of the delivery of the deed of the complainant and her husband to the company, together with whatever the company has paid for taxes, assessments, insurance, repairs and other expenses upon the property so far as the same may be found to have been reasonably necessary, and charging them with the rents and profits which they have, or by ordinary care and diligence ought to have received from the property, interest to be allowed upon the disbursements if not repaid by the rents and profits (but there is to be no compounding of interest), and when the amount due the company is ascertained, to enter a decree that upon the payment of that amount with interest thereon within ninety days thereafter, the company convey to her, and that in that event she recover her costs. But if she do not so pay, the bill to be dismissed at her costs. Bremer v. Canal & Dock Co., 127 Ill. 464.

Reversed and remanded with directions.

Gaknett, J., does not concur in the conclusion reached.


source: Caselaw Access Project

author: Garnett, J.

license: Public Domain

text:
    Fred W. Wolf Company v. James Salem.

      Master and Servant—Traveling Salesman—Wages—Expenses—Itemized Account of—Obligation to Keep—Account Stated—Usage—Evidence.

      1. It is the duty of an employe receiving a salary and his expenses to keep and preserve true and correct statements of account.
    2. The right to an itemized account of expenses may be waived by the principal, either by express agreement or by the acceptance of faulty statements in lieu thereof.
    3. The rule that a traveling salesman shall preserve vouchers for expenditures in way of expenses must be construed in a reasonable manner.
    4. When two parties by compromise liquidate and state at an agreed sum an unliquidated and disputed claim which the one holds against the other, it amounts to a valid contract whether the amount stated be paid or not, and the only remedy is upon the contract to recover the amount thus liquidated.
    [Opinion filed December 2, 1889.]
    Appeal from the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge, presiding.
    Messrs. Hamline & Scott, for appellant.
    Messrs. Tatham & Webster, for appellee.
   Garnett, J.

This was a suit in assumpsit by appellee to recover of appellant a balance on account, said to be due for services, commissions on sales and traveling expenses. In 1885 Fred W. Wolf was a manufacturer, at Chicago, of refrigerating and other machinery, and about June 1st of that year appellee entered his employ under a verbal agreement, by the terms of which, as sworn to by appellee himself, he was to receive §100 per month salary, two and one-half per cent commission on sales, and Ms traveling expenses. In 1887 the Fred W. Wolf Company was organized, and sueceeded to the business, having Mr. Wolf as its president and manager and retaining appellee in its service without any change as to his duties or compensation. On or before June 1, 1887, Salem’s account of expenses was not entirely satisfactory to Wolf, and a small book was then handed to Salem for his expense account. Wolf testified that on July 1, 1887, he told Salem he would get no more money until he brought in a statement of his expenses. His employment continued until January 11, 1888, when he rendered to appellant ,a bill for salary, commissions and expenses, amounting to $2,390.94. Some statements were rendered before that, but appellant insists that they were not such as appellee’s duty required him to make. Of the amount claimed in the final statements, the sum of $1,616.99 was for expenses. Wolf declined to pay the account, asserting that the expenses were excessive, that statements had not been rendered showing for what purposes expenses had been incurred, and that a large part of the expenses charged was not for traveling expenses, but was money spent at Chicago, where Salem lived. A statement of account was also prepared by Wolf, showing a balance of $870.17 due Salem. Appellant claims that there was a settlement between the parties, and that full payment was made according to the terms of such settlement; but this is denied by appellee. The case was tried by the court without a jury; there was a finding and judgment for plaintiff for $1,796.57 (the full amount claimed, less payments that had been made), and the defendant appeals.

The point most seriously disputed between the parties relates to the duty of Salem in keeping an account of his expenses, appellant contending that it should be at all times strictly itemized, while appellee claims that a statement of aggregates is allowable. For example, appellee admits in his testimony that he never rendered a statement of the items which constitute such charges as these : “ Expenses in Chicago from July 1st, to July 12th, $34”; “sundry expenses, $125.12;” “ money expended October 20th to December 30th, $218”; “expenses in Chicago from July 18th to July 22d, $12.50; difference as per my statement—short money difference, can not account for same, $18.70.”

On the trial the defendant requested of the court this proposition of law: “ The court finds as a proposition of law, that under the contract shown by the evidence, the plaintiff was not constituted the sole judge of what- were necessary and proper expenses of such employment, but that it was incumbent on the plaintiff, upon the trial, in order to recover such expenses, to show affirmatively, by a preponderance of evidence, that the amounts claimed were actually spent, that they were just.and reasonable expenses, and for what purposes the -amounts were spent, it not being sufficient that he swear to aggregate expenditures,” which was refused.

The erroneous principle upon which this branch of the case was tried is evidenced from the position assumed by the judge-in the course of the trial, when this passage occurred between the court and one of defendant’s counsel:

“ The Court: I think we can shorten that up. I think that when a man makes a contract with another man that he is to have his expenses paid, why, he leaves it to the man himself-to make his expenses; and unless he can show that he has actually charged for money that he did not spend, I think he must stand it, and when he gets tired of him he can tell him to go, but he must pay his expenses, whatever they are.
“Mb. Scott: Your Honor holds that he must present no evidence of what he spent, but that his expenses must be paid.
“ The Court : And also, when he comes into court, he must swear to it. Aman can not tell'every day what he expended, he has got to take his word for it; especially when a man comes tip here and swears that he did spend it. If it seems to be unreasonable, and if the employer is dissatisfied with the amount of the expenses, just let him discharge his man— that is a simple remedy—not come into court, ask-the court to differentiate, and allow him fifty cents here and twenty-five, cents there.”

This method of determining upon what principle the court decided the case is not of recent origin in this State. Gauche v. Mayer, 27 Ill. 134; Lowe v. Moss, 12 Ill. 477.

It must he presumed that the opinion thus expressed hy the judge continued to the time of the refusal of the above proposition, as there is nothing in the record indicative of a change in his views. The law is settled and is sustained by reason, that the duty of an agent is not fulfilled in a case of this kind, by reporting to his principal that he has spent a round sound of money in prosecuting his employment, and then swearing to the fact in a suit to recover the sum. His duty to keep and preserve true and correct statements of account is a necessary consequence of his duty to account. Mechem on Agency, Sec. 528. An account is a detailed statement: 1 Bouvier’s Law Dictionary, 53. It must be something which will furnish to the person having the right thereto, information of a character which will enable him to make some reasonable test of its accuracy and honesty, otherwise the obvious design of requiring it must be virtually fruitless. The right to an itemized account may be waived by the principal, either by express agreement or by the acceptance of a faulty statement in lieu thereof. Ho express agreement to that effect is proven, and whether the statements of aggregates were accepted as a compliance with Salem’s duty, depends upon the facts—such as failure to object to the accounts rendered for any considerable time, and the absence of circumstances to repel the presumption of acceptance. The court below was of a different opinion, and refused a proposition of law in which this point was made.

The second proposition of law requested by appellant is abstractly sound, but there was no evidence in the case to warrant it. The fifth would seem to imply that Salem was bound to preserve vouchers for all his outlays in the shape of traveling expenses. The requirement of vouchers must be reasonable. It is a fact universally known that a receipt for railroad fare is never asked or given. Without laying down any arbitrary rule on the subject, we should say that some respect, in such matters, is due to the usages of business, where the parties have neglected to make specific provision in their contract. There was some evidence tending to prove an account stated between the parties before the suit was brought, and the seventh proposition asked by defendant on that ¡joint should have been given. When two parties, by compromise, liquidate and state, at an agreed sum, an unliquidated and disputed claim which the one holds against the other, this constitutes a valid contract, whether the amount stated be paid or not, and the only remedy is upon the contract to recover the amount thus liquidated. Hanley v. Hoyes, 35 Minn. 174.

We think no error was committed in refusing the remaining propositions asked by appellant. The law gives the right to a trial upon correct principles. ' In a case where the evidence is conflicting, it can not be known, until there is such a trial, whether justice has been done. The judgment is reversed and the cause remanded.

Reversed and remanded.


author: Garnett, J. Gary, P. J.

text:
    Beadle County National Bank v. Sigmund Hyman et al.

      Guaranty—Letter of Credit—Construction of—Evidence—Surprise—■ Practice Act, Sec. 50.

    1. This court holds that a letter bespeaking the assistance of a bank president in behalf of a third person, can not be construed as authorizing the purchase by said person of a bad debt from the bank in question, and guaranteeing payment therefor.
    2. Whether a declaration states a case upon which a recovery can be had, is always an original question in a court of review, without regard to demurrers and motions in arrest below, if presented by the assignment of errors.
    3. A court trying a cause without a jury, should act upon principles which it would direct a jury to follow in a similar case.
    [Opinion filed December 2, 1889.]
    In eeeor to the Superior Court of Cook County; the Hon. Hollín S. Williamson, Judge, presiding.
    Mr. James K. Edsall, for plaintiff in error.

      When a business firm addresses a letter of this character to a bank, it is fair to presume that the “assistance” for which the bank may be called upon, and the “favor” which it may be expected to extend to the bearer of the letter, are such as fall within the scope of the business in which the bank is engaged, and embraces such assistance and such favors as the bank may, in the course of its business, properly extend. And this clearly embraced the loaning of money, the discount of commercial paper, and the giving or extension of credit on promissory notes.
    The “ assistance ” contemplated in the letter was clearly not confined to the discount of a draft drawn by Moss on S. Hyman & Co., which was only one of the alternatives mentioned.
    The undertaking of the writers of the letter is that “ any favor” the bank might “be pleased to extend” to Moss “you may hold us responsible for.”
    The established rule of law is that while the terms of a written contract can not be enlarged or varied by parol, nevertheless, whenever there is any uncertainty in the meaning of its written terms, the contract should be read and construed in the light of the attending facts and circumstances, as they appeared to the parties when the contract was made. Wilson v. Boot, 119 Ill. 379, 386; Turpin v. Baltimore & Ohio R. R. Co., 105 Ill. 11, 19.
    It is frequently necessary to apply this principle to aid in the construction of letters of credit. White’s Bank v. Myles, 73 N. Y. 335, 337, 341; Gates v. McKey, 13 N. Y. 232; Bainbridge v. Wade, 20 Law Jour. (pt. 2), p. 7; Mauran v. Bullus, 16 Peters, 528, 533-4.
    Messrs. Moses & Pam, for defendants in error.
   Garnett, J.

The record in this case is very large and the briefs very elaborate, covering in argument a number of intricate questions, but we regard the case as turning upon a very simple point and shall therefore confine our attention to that. The action was assumpsit upon the following letter:

“Chicago. Nov. 20, 1884.
F. E. Stevens, Esq., Pres’t Beadle Co. Nat. B’k, Huron, D. T.
Dear Sir:—The hearer, Mr. M. F. Moss, may have occasion to call upon you for assistance during his stay at Huron. Any favor you may be pleased to extend to him you may hold us responsible for, or should he wish to draw upon us for money, we will honor his draft upon presentation.
Tours very respectfully,
S. Hyman & Co.”

At the time the letter was written the bank and S. Hyman & Co. were severally creditors of the firm of L. Adler & Co. of Huron, Dakota, which was then insolvent. There is a dispute whether Moss went to Huron as the representative of Hyman & Co. in the matter of their claim, and as to the time of the presentation of their letter, and what was said on that occasion, but. it is not denied that the bank sold to Moss its claim against L. Adler & Co., and as payment therefor received his promissory note dated November 28, 1884, for §>2,731.48, payable December 11,1884, with interest at twelve per cent per annum after maturity. On the back of the note was this indorsement: “If an extension of thirty days is desired it may be had.” It appears from the evidence that an extension of thirty days was given for the payment of the note.

The plaintiff claims to have had possession of the letter sued on at the time of the execution of the note, but defendants deny it. But plaintiff says, even if the evidence fails to show its possession of the letter when the note was executed, it certainly had possession thereof when the extension was granted, and so the defendants are liable as guarantors. We think it makes no difference when the letter was handed to the bank. It does not contemplate such a transaction as the selling of a bad debt by the bank to Moss. There was nothing in the relations between the plaintiff and defendant in the terms of the letter, or in the surrounding facts, which authorized such a conclusion.

We have examined the record carefully to ascertain whether there was anything in the evidence to warrant the construction given to the letter by the bank, and we are clearly of opinion there is nothing of the kind.

[Opinion filed January 8, 1890.]

The judgment is affirmed.

Affirmed.

Upon Petition for Rehearing.

Gary, P. J.

On the trial the deposition of Stevens, the cashier of the plaintiff, was read in evidence. He testified that the letter of credit was delivered to him by Moss as security for the note Moss made to the bank. Moss and another witness testified that the letter of credit was not delivered until three days afterward, and then only as security for a wholly independent accommodation. On this state of the evidence the finding of the court, without a jury, in favor of the defendant, could not be disturbed, nor, if the testimony of the witnesses for the defendant is true, could the letter of credit be held by the bank as security for the note upon the ground that while it was in the possession of the bank an extension of the time of payment of the note was agreed upon, nor can the bank claim a new trial on the ground of sur-prise. It may not speculate upon the chance of a finding in its favor on the evidence as it stood, and, when disappointed, ask an opportunity to supply the further evidence it knew it needed on the first trial, and which it did not then ask the court to give, as the court might well have done—time to procure. A rehearing of the case would be useless to the appellants.

This court preferred, in its former opinion, to put the case upon a point which might possibly make the opinion of some future use upon the construction of a written instrument.

Whether a declaration states a case upon which a recovery can be had or not is always an original question in a court of review, without regard to demurrers and motions in arrest below, if presented by the assignment of errors. Stearns v. Cope, 109 Ill. 340; Teal v. Walker, 111 U. S. 242.

In Chicago v. Turner, 80 Ill. 419, it is within the personal knowledge of one member of this court, though the report does not show the fact, that a demurrer to the declaration had been overruled, and yet because it showed no cause of action the court erred in giving and refusing instructions. The statute makes the sufficiency of any court in a declaration a j question that may be raised on the trial. Practice Act, Sec. 50; Frink v. Schroyer, 18 Ill. 416. It hardly needs to be stated that a court trying a cause without a jury should act upon principles which it would direct a jury to follow.

Rehearing denied.


author: Gary, P. J.

text:
    George Parry v. J. M. Arnold.

      Contract—Storage—Presentation of Bill—Long Delay in—Practice— Rule 21.

    1. In the absence from appellant’s abstract of any exception taken to rulings of the trial court and the instructions given or refused in a case stated, this court will not lo )k into the record to supply the omissions.
    2. In an action brought to recover an amount calmed to be due for the storage of a machine, this court holds, the contention of the defendant being that the rate of charges was inserted in the application for storage after he signed the same, that a bill sent to him covering such claim and the letter written by him in reply thereto were admissible in evidence in his behalf, and declines to interfere with the judgment in his favor.
    [Opinion filed December 2, 1889.]
    Appeal from the Superior Court of Cook County; the Hon. Kirk Hawes, Judge, presiding.
    Mr. G. Frank White, for appellant.
    Messrs. Flower, Smith & Musgrave, for appellee.
   Gary, P. J.

Where the abstract prepared by the appellant does not show an exception, the court will not look into the record to see if one was taken, and where the abstract does not contain the instructions the record will not be referred to to supply the omission. Rule 21 is, in fact as well as form, a rule.

This is an action for storage on a machine left by the appellee with the appellant, on which the appellant advanced to the aj>pellee $25, and the question before the jury was whether that money was a loan to be repaid by the appellee, together with storage charges, or whether the appellant took the machine to do what he pleased with it, so far as the appellee was concerned, and with no recourse upon the appellee for money advanced or storage charges.

The appellant produced an application from the appellee to the appellant, upon a printed blank, beginning, “ store for me in your warehouse,” some portion of the printed part of which was erased, but which contained no promise in express words to pay anything. The appellee testified that the rate of storage was inserted after he signed it, as the result of a conversation, that as he was to pay no storage, it made no difference what rate was inserted. The transaction was in April, 1885. About the end of January, 1887, the appellant sent to the appellee a bill, which the appellee returned in a letter. That bill and the letter were put in evidence by the appellee. To the foregoing evidence of appellee the appellant presented exceptions. It was all admissible. It was for the jury to say whether the rate of storage was inserted after signature, and if so, whether as a part of a contract between the parties or for some other purpose ; and it being disputed that the rate was inserted after signature, the long delay of the appellant in making any claim was a circumstance which the appellee had the right to present for the consideration of the jury in corroboration of his testimony; and then it followed that he had the right to show that when a claim was made he did not acquiesce, and thereby impliedly admit the justness of the claim. There is no error of law, and the verdict of the jury settles the facts. Judgment affirmed.

Affirmed.


author: Moran, J.

text:
    Frederick J. Lange et al. v. Henry Soffell.

      Highways—■Taxes—Illegal Levy—Refunding of—Suit to Recover— Parties.

    1. Highway commissioners are a quasi corporation, and suit by or against them should be brought in their official and not their individual names.
    2. A payment of money is not to be regarded as compulsory unless made to relieve the person or property in question from the actual and existing duress imposed by the party to whom the money is paid.
    3. In an action brought to recover in full an amount paid under an illegal levy of taxes for the purpose of establishing a road, the fact being that subsequent to the declaration of illegality by the Supreme Court a resolution was adopted at a regular town meeting to refund said levy less a percentage for expenses, this court holds that the plaintiff is entitled to the refunding of the same only under said resolution and in conformity with the terms thereof.
    [Opinion filed December 2, 1889.]
    Appeal from the Superior Court of Cook County; the Hoñ. John P. Altgeld, Judge, presiding.
    Messrs. Vallette & Grieein, for appellants.
    Messrs. E. H. & N. E. Gary, for appellee.
   Moran, J.

This action was commenced before a justice of the peace to recover back $19.45, paid by appellee in discharge of a tax upon his land levied by the town of Proviso, for the building of a hard road. The Supreme Court held the levy illegal, and at the annual town meeting thereafter, a resolution was passed directing the commissioners of highways and their treasurer, to refund to the persons who paid the tax, fro rata, according to the several sums paid by them, on said persons producing satisfactory evidence of their payment of said tax, so much of the fund collected for the improvement as remained in the hands of the treasurer of the commissioners of highways, after deducting the cost expended in levying and collecting said tax, and the expenses of litigation therefrom.. This left about eighty per cent of the tax paid to be refunded to the taxpayers, and the commissioners of highways offered to refund to appellee eighty per cent of the tax paid by him, but he refused to receive it and brought this action. The suit before the justice was against the highway commissioners individually, but when it came up for trial in the Superior Court, an amendment was made making the board of highway commissioners also defendants, and upon the trial, which was by the court, the jury being waived, there was a finding and judgment against all the defendants, ani an execution was awarded against all. This was error. There was no proof whatever, introduced, which showed any claim by appellee against the individuals who were highway commissioners.

If appellee had any action at all it was against the highway commissioners of the town. Highway commissioners are a quasi corporation, and suit by or against them should be brought in their official and not in their individual names: Town of Rutland v. Town of Dayton, 60 Ill. 58. Ho execution should have been awarded against the highway commissioners, they being a municipal corporation. Village of Kansas v. Juntgen, 84 Ill. 360, and eases there cited.

But aside from these technical grounds we are of opinion that appellee was not entitled to recover on the proof made. The levy is admitted to have been void. Appellee paid the tax levied on his land voluntarily. He was under no compulsion or duress. A sale of his land on a judgment rendered on a void levy would have passed no title. The payment of the land tax, $18.71, was made to the county collector, and so far as appears he had no warrant authorizing a levy on personal property for said tax. It is invariably hold that a payment is not to be regarded as compulsory unless made to relieve the person or property from the actual and existing duress imposed upon him by the party to whom the money is paid. Elston v. Chicago, 40 Ill. 514; Swanston v. Ijams, 63 Ill. 165. Appellee’s only right to recover this land tax is based on the resolution passed at the town meeting, and under such resolution he is undoubtedly entitled to his pro rata, and upon complying with the terms of said resolution, if the highway commissioners refuse to pay him he may maintain his action. The judgment must be reversed and the case remanded.

Reversed and remanded.


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    Dwelling House Insurance Company v. John A. Butterly, Jr.

      Fire Insurance—Oral Application—Policy—Conditions—Ownership— Mortgage.

    1. A construction of a contract that nullifies and destroys the same, should not be adopted if it can be avoided.
    2. In an action brought to recover upon an insurance policy, the company contending that it was not liable because of the breach of one of its conditions touching the title to the property covered, this court holds, that a policy upon farm stock and implements, covers the property on hand at the place mentioned when a fire occurs, even though no one of the identical articles destroyed were there when the policy issued, and that the sale or incumbrance of any such property covered, avoids the policy only as to the specific articles themselves.
    [Opinion filed December 2, 1889.]
    Appeal from the Superior Court of Cook County; the Hon. Elliott Anthony, Judge, presiding.
    Messrs. W. S. Harbert and George E. Daley, for appellant.
    Mr. Chas. L. Easton, for appellee.
   Gary, P. J.

This was an action upon a policy of insurance, issued upon an oral application, and containing the following provision: * * If the interest of the assured in said property or any part thereof now is or shall become any other or less than a perfect, legal and equitable title and ownership, free from all liens whatever, except as stated in writing thereon * * * this policy shall be absolutely void.” The insurance was $500 on farming implements, wagons, carriages, sleighs and harness ; $2,500 on horses, mules, oxen, colts cows, heifers, calves, sheep and hogs; $250 on frame addition to barn, fence and improvements, and $250 on hay and grain in barn and in stacks on a farm mentioned. When the policy issued, portions of the property were mortgaged, and after it was issued other portions were, and nothing in regard thereto was written upon the policy. By the fire, property incumbered and property not incumbered, covered by the policy, was destroyed. The case was tried by the court without a jury; no propositions of law were presented under the statute and neither in the motion for a new trial or the assignment of error here, is there any complaint as to the amount of the damages assessed. Horan v. People, 10 Ill. App. 21.

Indeed, the abstract presents no data upon that subject, and the appellant’s original brief says, “ the only question is whether, under this condition of the policy, the chattel mortgages rendered it void.” The inquiry now will be confined to that question. Although this policy was not upon a stock of merchandise, yet as to the property to which it attached, it is within the reason, and governed by the principle, of decisions relating to insurance upon such stock; that is, it covers the stock on hand, at the place mentioned, at the time of the loss, even though none of the identical articles destroyed were there when the policy issued. American Ins. Co. v. Rothchild, 82 Ill. 166; City Fire Ins. Co. v. Mark, 45 Ill. 482. The policy was for a term of three years, and it could not. have been expected by either party, that the same farming implements, live stock, hay and grain, and no other, would be and remain upon a farm for that term. And this is a very important feature in determining whether a mortgage upon a portion of the property avoided the whole policy, or only so much of it as attached to the property mortgaged. A prior part of the same provision quoted from at the beginning of this opinion is, “ if the property or any part thereof shall be sold, conveyed, incumbered by mortgage or otherwise.” How if a literal reading of this provision is to be enforced, the assured could not sell a calf, sheep or hog, or a bushel of grain without rendering his policy void. A distinction might be attempted on the ground that if he sold articles from his farm, they would be taken away and the removal of them from the farm would take them out of the policy, as in Towne v. Fire Ass., 27 Ill. App. 433. But this would not remove the difficulty. The words of the provision remain. And suppose he sold a horse and then boarded him for the purchaser. If such an event had been presented to the contemplation of the parties when the policy issued, would either of them have thought that the policy was to be avoided by it? A construction that nullifies and destroys the contract is not to be adopted if it can be avoided. A reference to elementary works at large is sufficient authority for such a proposition as that. Then, as to sales of the movable insured property, it must be conceded that the parties did not intend that the policy should be affected, except as to the property sold. But by the words of the policy the same consequence is attached to a sale as to an incumbrance, and as it is manifest that in relation to sales, the consequence was to be as partial as the sales, why is it not as to an incumbrance ? Ho case where such a provision containing, as this does, the words “ or any part thereof,” has been construed, has been found. Without these words, Com. Ins. Co. v. Spankneble, 52 Ill. 53, is authority that a sale of part, does not affect the insurance as to the residue of the insured property, and in Dacey v. Agricultural Ins. Co., 21 Hun, 83, and Merrill v. same company, 73 N. Y. 452, the same rule is applied to incumbrances. The reasonable and fair conclusion is that a sale or incumbrance avoided the policy as to the thing sold or incumbered, and no further. The finding and judgment are as to this question, right, and the judgment is affirmed.

Judgment affirmed.


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    Henry Willetts v. Oscar G. Wheeler et al.

      Negotiable Instruments—Notes—Interest—Usury—Remittitur—Costs.

    In an action brought to recover upon certain promissory notes, the plaintiffs offering to remit all over and above a sum named, if it was held that the defense of usury was made out, this court holds that the plaintiff is entitled to a judgment for the sum named.
    [Opinion filed December 2, 1889.]
    In error to the Superior Court of Cook County; the Hon. John P. Altgeld, Judge, presiding.
    Messrs. P. L. Sherman and W. B. Bradford, for plaintiff in error.
    Messrs. Payne & Porter, for defendants in error.
   Gary, P. J.

From the record no very satisfactory history of the dealings out of which the suit grows, can be extracted, upon the truth of which reliance can be placed. It is clear, however, that in 1875 the appellant had, as a loan from the appellees, $3,614.74 more than he has ever repaid; that the notes sued upon in this case are now the only evidence remaining of the indebtedness created by that loan; that the loan was at a usual rate of interest. The appellees offer to remit all beyond the sum above named, if the court comes to the conclusion the defense of usury is made out; and acting upon that offer, the judgment of the Superior Court is reversed and the cause is remanded with directions to permit the appellees to enter judgment and issue execution for the sum above named. Appellees pay the cost here.

Reversed and rema/nded with directions.


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    The Winona Paper Company v. First National Bank of Kalamazoo.

      Insolvency—Assignment—Publication of Notice—•Filing of Claim— Note—Appeal—Failure to Present Bond for Approval in Apt Time— Stipulation—Bill of Exceptions.

    1. In view of the filing of briefs by the appellee wherein are discussed the merits of a given cause, a motion filed by him on the same day asking that the appeal be dismissed because the appeal bond was not presented for approval until after the time fixed therefor in the order allowing the same, must be considered waived.
    2. Upon petition of the indorsee of a note given by a corporation subsequently insolvent, that it might be permitted to share in the distribution of the estate although its claim was not filed in apt time, this court holds that in view of the fact that the trial under review, was under astipulation that the assignee duly published a notice as required by law, the argument of petitioner that said notice was defective can not stand, and that the trial court erred in granting the relief as prayed.
    [Opinion filed December 2, 1889.]
    Appeal from the County Court of Cook County; the Hon. Kiohard Prendergast, Judge, presiding.
    Messrs. Flower, Smith & Musgrave, for appellant.
    Messrs. Osborne Bros. & Burgett, for appellee.
   Garnett, J.

On July 15, 1887, the W. O. Tyler Paper Co. executed and delivered its promissory note for $1,461.27, payable to B. F. Lyon & Co. in three months after date, which was assigned by the payees and delivered to the appellee on or before August 1, 1887, and the same has been ever since owned and held by appellee. By deed of assignment executed pursuant to Chap. 10, R. S., the W. O. Tyler Paper Co. conveyed all its assets to James L. Bubel, as assignee, for benefit of its creditors. Immediately after his appointment, the assignee sent to B. F. Lyon & Co. the notice required by the statute, requesting them to file their claim with him on or before November 13, 1887; but no notice was sent to appellee, the reason being,' presumably, because the assignee had no notice of the assignment of the note to appellee. From a stipulation in the cause it appears that the assignee “ duly published a similar notice as required by law.” The claim of appellee was not presented to the assignee; but on February 20, 1888, petition was filed by appellee in the County Court, praying that its claim should be allowed as a debt against the estate of the insolvent, and that it might be permitted to share in the distribution of the estate as fully as though the claim had been filed in apt time. The Winona Paper Co., a creditor of the insolvent, having filed its claim, objected to the granting of the petition of the bank ; but on July 1, 1889, its objection was overruled, and a decree entered according to the prayer of the petition. To that decree the Winona Paper Co. excepted, and brings this appeal to reverse the decree.

Appellee asks that the appeal be dismissed because the appeal bond was not presented to the County Court for approval until after the time fixed therefor in the order allowing the appeal. A paper purporting to be a motion to that effect was filed in this court on October 17th of this term, but no entry of the motion was ever made on the record. On the same day the briefs of appellee were filed in the cause in which the merits of the case are discussed at large. Under these circumstances the supposed motion, which merely goes to the manner in which the case comes to this court, must be regarded as waived by appellee. Martin v. Hochstadter, 27 Ill. App. 166.

At the time the decree was entered this appeal was prayed, and twenty days given by order of court for filing bill of exceptions. The bill was signed by the judge on July 25th, after the lapse of the term and after the twenty days had expired. For that reason appellee prays that the bill of exceptions may be stricken from the record. We find, however, attached to the bill of exceptions, a stipulation signed by counsel for appellee, in these words: “It is stipulated that the foregoing bill of exceptions may be incorporated in and taken to the Appellate Court as a part of the record herein, as provided by the statute.” Good faith requires the application here of the doctrine of estoppel against appellee. If necessary to give effect to this stipulation, it would be presumed that all necessary orders were entered by the County Court to make the bill of exceptions a part of the record. The terms of the stipulation would seem to import as much.

As an excuse for not presenting its claim within the three months allowed by the statute, the appellee says the notice published was dated August 9th, while the date of the first paper in which it was published was August 13th; that a creditor, seeing the publication for the first time on November 10th succeeding, would conclude that he was too late, as that would be one day after the expiration of the three months from August 9th. There seems to be some plausibility in this point, and it appears to be supported by Metropolitan Bank v. Morehead, 38 N. J. Law, 500. But the force of the argument is broken by the fact that the trial, which is under review on this appeal, was under a stipulation that the assignee “ duly published a similar notice as required by law.” To be sure a notice dated August 9th, and a certificate of publication thereof, stating that the same was first published August 13th, were introduced in evidence, but they do not contradict the stipulated fact that a notice was duly published, as required by law; another notice might have been published in a different paper.

In Suppiger v. Seybt, 23 Ill. App. 468, it was held, that if a claim was not presented within the three months given by the statute, it could not participate in the distribution with claims presented within that time, and allowed by the court. With that we agree, and as the decree of the County Court is to the contrary, it is reversed and the cause remanded for further proceedings..

Reversed and remanded.


author: Per Curiam.

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    Charles Sundberg v. Ada F. Temple.

      Negotiable. Instruments—Note—Judgment by Confession—Motion to Set Aside—Affidavits.

    This court holds as proper the order of the trial court overruling a motion to set aside a judgment entered by confession in favor of the plaintiff and against the defendant, the case as based upon the affidavits of both parties being free from doubt, no attempt having been made by the defendant to deny or controvert the statements set forth in that of the plaintiff.
    [Opinion filed December 2, 1889.]
    In error to the Superior Court of Cook County; the Hon. Elliott Anthony, Judge, presiding.
    Hr. George W. Plummer, for plaintiff in error.
    Hr. H. C. Noyes, for defendant in error.
   Per Curiam.

This record brings here for review the order of the trial court overruling a motion to set aside a judgment entered by confession in favor of defendant in error and against plaintiff in error. Plaintiff in error stated in his affidavit, filed in support of the motion, that the note in question was given to one H. S. Robinson, the payee in the note, who was affiant’s partner, as an accommodation note, for the purpose of his, said Robinson’s, procuring a temporary loan of money for his own use; that Robinson had the possession of said note until long after the same became due. That at the time the note was given plaintiff in error was not indebted to said Robinson in any sum, and that there was no consideration for said note. Defendant in error filed her counter affidavit, in which she states that the note was given for money loaned by her to Sundberg; that she had loaned him §3,000; that he had paid her various sums on said loan, by which the amount owing was reduced to §1,950, the amount of the note; that a few days before the note was given, Sundberg had paid her on said loan the sum of §325, and that when the note was given to her she surrendered to Sundberg other notes, which were given to her for money loaned, and that the note in question was given in settlement of all moneys due from Sundberg. That the note was delivered to her on the day it was executed, and had remained in her possession until September 23,1889, when she delivered it to Robinson for collection, and Robinson gave her a receipt for the same, which she attaches to her affidavit. Afterward Robinson returned the note to her, saying that he could not collect it. The note in question is dated May 20, 1885, is due one year after date, and bears eight per cent interest, and such is the description of the note given in the receipt of Robinson, which was introduced in evidence.

Plaintiff in error did not attempt to contradict the facts as detailed in the affidavit of defendant in error.

We are of opinion that the court properly refused to set aside the judgment, or allow an issue to be formed, to be tried by a jury.

The case as it stood on these affidavits can not be said to have been involved in doubt. Plaintiff in error had the opportunity to deny or controvert the statements made in the affidavit of defendant in error; having failed to do so, those statements were to be taken as true. The judgment must be affirmed.

Judgment affirmed.


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    Ferdinand Siegel et al. v. Seth F. Hanchett, for use, etc.

      Replevin—Debt—Bond—Damages — Attorney's Fees — Evidence — Instructions.

    1. Solicitor’s fees are within the condition in a replevin bond, providing for the payment of all costs and damages occasioned by wrongfully suing out the writ.

      2. The attendance of an attorney and his conduct of the trial raises the presumption of a retainer and liability to pay usual fees, and damages may be given for a liability to pay as well as for actual payment.
    [Opinion filed December 2, 1889.]
    Appeal from the Circuit Court of Cook County; the Hon. Abba FT. Watebman, Judge, presiding.
    Messrs. Flower, Smith & Musgrave, for appellants.
    The case of Janes v. The People, 19 Ill. App. 300, was an action on a sheriff’s bond. The plaintiff was permitted to prove, and the jury were instructed that they should allow to the plaintiff as damages the expenses incurred by her in the trial of the right of property, including attorney’s fees, traveling and hotel expenses, and all costs, including the expense of printing briefs, etc., in the Appellate Court. The Appellate Court, by Wall, P. J., says: “In an action on a con-
    tract the successful party recovers only such costs as are taxable under the statute ; he can not usually have an allowance for his loss of time and expense in prosecuting the demands or making the defense, as the case may be, and the expenses for services of attorneys stand upon the same ground as the other personal expenses of the party, not embraced in the list of taxable costs.
    “ Legal relief is at best imperfect; it is not usually designed to furnish complete and perfect indemnity, and it may well be doubted whether a sound public policy would be subserved if absolute indemnity were given, since thereby a great and even a dangerous stimulant would be furnished to litigation.
    “A defendant should have the same hope of indemnity in this respect as the plaintiff. In certain exceptional cases the law provides for such indemnity by requiring bond and security, but we think it may be stated as a general rule that such items are not ordinarily allowable, even in actions in form ex delicto, unless there is an admixture of fraud, malice, or other such sinister motive as will furnish ground for vindictive or punitory damages.

      “ In the present instance the owner of the property might have replevied, and in that proceeding could have recovered damages for the detention of the goods, or she might have brought trover or trespass against the sheriff, but in neither of these actions could she have been allowed for counsel fees or personal expenses, without showing such a case as would warrant vindictive damages. The law will not sustain her in accomplishing such a result in the indirect way here attempted.”
    In the case of Pacific Insurance Co. v. Conrad, 1 Baldwin (C. C.), 138, the court used the following language:
    “The rule which ought to govern juries in assessing damages for injuries to personal property depends much on the circumstances of the case. When a trespass is committed in a wanton, rude and aggravated manner, indicating malice, or a desire to injure, a jury ought to be liberal in compensating the party injured in all he has lost in property, in expenses for the assertion of his rights, in feeling or reputation; and even this may be exceeded by setting a public example to prevent a repetition of the act. In such cases there is no certain fixed standard ; for a jury may properly take into view, not only what is due to the party complaining, hut to the public, by inflicting what are called in law speculative, exemplary or vindictive damages. But when an individual, acting in pursuance of what he conceives a just claim to property, proceeds by legal process to enforce it, and causes a levy to be made on what is claimed by another, without abusing or perverting its true object, there is and ought to be a very different rule, if, after a due course of legal investigation, his case is not well founded. This is what must necessarily happen in all judicial proceedings, fairly and properly conducted,, which are instituted to try contested rights to property. The value of the property taken, with interest from the time of the taking down to the time of the trial, is ¡generally considered as the extent of the damages sustained, and this is deemed legal compensation, which refers solely to the injury done to the property taken, and not to any collateral or consequential damages resulting to the owner by the trespass. These are taken into consideration only in a case more or less aggravated. But where the party, taking the property of another by legal process, acts in the fair pursuit of his supposed legal right, the only reparation he is bound to make to the party who turns out ultimately to be injured, is to place him, as to the property, in the same situation in which he was before the trespass was committed. The costs of the action are the only penalty imposed by the law, which limits and regulates the items and amount. In the present case the defendant acted under the order of the Government in execution of his duties as a public officer; he made the levy, but committed no act beyond the strictest line of his duty, which placed him in a situation where he had no discretion. The result has been unfortunate for him; he has taken the property of the plaintiffs for the debt of Edward Thomson, and must make them compensation for the injury they have sustained thereby, but no further.”
    These cases, we think, indicate the proper rule, and are well supported by the authorities. See Davis v. Crow, 7 Blackf. 129; Kenly v. Commonwealth, 6 B. Mon. 553; Blackwell v. Acton, 38 Ind. 426; Park v. McDaniels, 27 Vermont, 594; 2 Sutherland on Damages, p. 50.
    Mr. Allah C. Story, for appellee.
   Gary, P. J.

This is an action of debt on a replevin bond. The question in it arises upon an instruction to the jury, that in assessing damages they should, witer alia, award the usual and customary charges for attorney’s fees, in trying and conducting said replevin suit.” The replevin suit had been disposed of on the merits upon the second trial. The fees paid for the first trial were proved.

The usual and customary ” fees for the second trial were proved, but no proof was offered of any retainer of the attorney who conducted the defense on that trial, or that anything had been, or was agreed to be, paid to him for it. The condition of the bond contained the statutory clause to pay all costs and damages occasioned by wrongfully suing out the writ.

The appellant’s object that the condition does not cover attorney’s fees for services in defeating the replevin suit, and that without proof of payment, or agreement to pay the fees5 they should not be allowed, even if covered by the condition. The first question is not an open one in this court. It was made in Horner v. Boyden, 27 Ill. App. 573, and considered by the court, but other questions fixed the attention of the writer of that opinion, to the extent that he inadvertently omitted to mention that point, which had even then been settled here, by the unreported case of Burnstein v. Matson, in 1883.

Hnder statutory language as to assessing damages on the dissolution of an injunction, similar in form, and in effect the same as the language of this condition, the cases in this State are numerous that solicitor’s fees are allowable. Ryan v. Anderson, 25 Ill. 372 has, as to this point, never been departed from. Misner v. Bullard, 43 Ill. 470.

As to the other questions, the undisputed fact that the attorney attended and conducted a trial for three days, and afterward appeared and resisted the motion for a new trial, raises the presumption of a retainer and liability to pay usual fees, and that the fees allowed were usual was not' contested.

Damages may be given for a liability to pay, as well as for actual payment. Directors v. Trustees, 66 Ill. 247; Richard son v. Chasen, 10 Ad. & El. N. S. 756.

There is no error and the judgment is affirmed.

Judgment affirmed.


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    Charles H. Maguire v. John L. Woods et al.

      Practice—Creditor's Bill—Demurrer.

    An order sustaining a demurrer, not being a final decree, is not appeal-able.
    [Opinion filed December 2, 1889.]

      Appeal from the Superior Court of Cook County; the Hon. Egbert Jamieson, Judge, presiding.
    Messrs. Keator & Thompson, for appellant.
    Messrs. Jonas Hutchinson and Byron Boyden, for appellee.
   Gary, P. J.

The appellant filed a creditor’s bill under section 49 of the chancery act, making the village of Hyde Park one of the defendants, to reach the salary of Woods, as one of the village trustees. The village demurred, the court sustained the demurrer, and there the record of the action of the court upon the cause stops.

What this court would have to say upon the merits, if the case was properly here, may be plausibly conjectured by reading the case of Merwin v. Chicago, 45 Ill. 133; but the order sustaining the demurrer is not a final decree, and therefore not appealable. Knapp v. Marshall, 26 Ill. 63.

The appeal is dismissed.

Appeal dismissed.


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    James D. Johnson and George P. Blair v. Charles D. Wilson.

      Landlord and Tenant—Recovery of Rent—Respectability of Neighbor hood—False Representations—Court of Equity.

    Fraud is a good defense at law to an action upon a sealed instrument, if the fraud is such as shows that the party has been tricked into signing an instrument that he did not intend to execute, but such defendant can not show in an action at. law, that he was induced to sign by fraudulent representations as to collateral matters, or as to the nature and value of the consideration.
    [Opinion filed December 2, 1889.]

      Appeal from the Superior Court of Cook County; the Hon. John P. Altgeld, Judge, presiding.
    Messrs. Wilber & Clark, and John W. Smith, for appellants.
    Messrs. James B. Muir and Bobert H. Vickers, for appellee.
   Moran, J.

This was an action to recover rent, brought on a lease under seal, executed by appellants. The defense was that appellants were induced to enter into the lease by false representations as to the respectability and purity of the neighborhood in which the dwelling leased was situated.

Much evidence was introduced pro and con on the matter of this defense, and the court, to whom the case was submitted for trial, found the issue of fact in favor of appellee. The judge might have saved much trouble had he applied a well settled principle, and excluded all evidence tending to show that the execution of the lease was induced by false and fraudulent representations. Fraud will be a good defense at law to an action upon a sealed instrument, if the fraud is such as shows that the party has been tricked into signing an instrument that he did not intend to execute, such as misreading the instrument, the surreptitious substitution of one paper written for another, or the like. But the defendant is not allowed to show, in an action at law on such an instrument, that he was induced to execute it by fraudulent representations as to collateral matters, or as to the nature and value of the consideration. Jackson v. Hills, 3 Co wen, 290; Windett v. Hurlbut, 115 Ill. 403; Gage v. Lewis, 68 Ill. 604; Escherick v. Traver, 65 Ill. 379; George v. Tate, 102 U. S. 564. Cases cited in notes to Collins v. Blanturn, 2 Smith’s L. C. p. 689.

Taking all the evidence introduced by appellants as true, it did not make out a legal defense. If they wished to avoid the lease on the ground of false representations, they should have applied to a court of equity.

The judgment must be affirmed.

Judgment affirmed.


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    Samuel Coffman and Thomas H. Brown v. Clarinda National Bank.

      Banks—Draffs—Agreement by Commission Merchant to Pay upon Presentation—Cashing of by Local Bank—liecovery on.

    In an action brought by a bank to recover on a draft upon commission merchants to its order, the amount called for having been paid by it to the drawers, this court holds that the agreement by the commission merchants to honor drafts upon stock about to be shipped, was legally binding upon them, being acted upon by said bank, and that the course of business between the parties previous to the making of the draft in question was such as to warrant plaintiff’s claim, and declines to interfere with the judgment in its behalf.
    [Opinion filed December 2, 1889.]
    Appeal from the Superior Court of Cook County; the Hon. John P. Altgeld, Judge, presiding.
    Messrs. Dupee, Judah & Willard, for appellants.
    Messrs. Peckham & Brown, for appellee.
   Moran, J.

Appellants were in the livestock commission business, at the Union Stock Yards, in Chicago. Webb Brothers were a firm engaged in buying cattle and shipping them to market to sell, their field of operations being in Clarinda and other points in Iowa and Missouri, along the line of the H. & S. R. R.

On May 18, 1889, said Webb Brothers drew the following draft on appellants:

“ $5,000. Clarinda National Bank,
Clarinda, Iowa, 5 - 18, 1889-
Pay to the order of Clarinda National Bank five thousand 00-100 dollars.
Webb Brothers.
To Coffman & Brown,
U. S. Yds., Chicago, HI.”

This draft was delivered on the day it was drawn to the Clarinda National Bank, and said bank cashed the checks of Webb Brothers to the amount of said draft, the money being used by said Webb Brothers to pay for four carloads of cattle and one car load of hogs, which they had purchased and were about to ship to appellants.

On the same day said Webb Brothers wrote appellants, saying: “We ship you four cars of cattle to-day, and will ship hogs to-morrow or Thursday. Have made drafts for $5,000 this a. m.”

The draft was sent on to Chicago for collection by the Clan'nda Bank, and was presented to appellants the day before the cattle arrived, but, it is contended, was not accepted by them.

The hogs mentioned in Webb Brothers’ letter were not shipped to appellants, it being found they would sell better at a point in Iowa.

After the cattle had been sold by appellants, the draft was again presented to them and they refused payment upon it, and credited the proceeds of the sale of the cattle upon an indebtedness due from Webb Brothers to them.

On the trial, which was by the court, a jury being waived, appellee introduced evidence tending to show that appellant Coif man, acting for his firm, promised Webb Brothers in the fall of 1885, to pay such drafts as they should make on appellants, to pay for stock that said Webb Brothers had in sight, and which could be shipped within a few days. That Webb Brother’s communicated said agreement to the Clarinda National Bank, and that the parties entered upon a course of dealing under such arrangement, and that between October 21, 1885, and the date of the draft in question, appellants paid some fifty-four drafts drawn by Webb Brothers in favor of the Clarinda National Bank, amounting in the aggregate to §76,000, for money advanced by the bank to Webb Brothers to pay for live stock purchased, to be shipped, and which was shipped, to appellants. It was further shown that the ckr load of hogs when purchased and when loaded was intended to be shipped to appellants, but that after the bank had advanced the money on the draft on the understanding that it was to be used to pa^ for the stock to be shipped to appellants, the hogs were sent to other consignees.

Appellant Coffman denied that he made any such agreement to pay drafts drawn by Webb Brothers, and the conflict of evidence thus arising was one which must be held to be conclusively settled in fav'or of appellee by the finding of the trial judge who saw the witnesses and heard them testify. The course of business during the winter and spring preceding the making of the draft in question, appears to give substantial support to appellee’s claim, but even if this were not so, we could not interfere with the finding.

The draft sued on was, in our opinion, one of a character which the contract, if made, bound appellants to pay. That such agreement may be made, and is legally binding when acted upon by third persons, is well settled. Nelson v. First National Bank, 48 Ill. 36; Boyce v. Edwards, 4 Peters, 122.

The judgment of the Superior Court must be affirmed.

Judgment affirmed.


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    Joseph Block et al. v. John Blum et al.

      Appeals—Bond—Misstatements Therein as to Name—Form of Action —Change of in Higher Court—Justices.

    1. A bond upon an appeal from a judgment in trover rendered in a justice court is not discharged for the reason that the form of action was changed to assumpsit in the higher court.
    2. A mistake in an appeal bond as to the name of the party who recovered the judgment appealed from is fatal to an action thereon, for the reason that no record of the court appealed to, showing any disposition of a suit between the parties named in the bond can be produced, and therefore that no breach of the condition of the bond can be proved.
    3. The true intent of such bond may be followed, where the same can be discovered therefrom, without the aid of extrinsic evidence.

      [Opinion filed December 2, 1889.]
    Appeal from the Superior Court of Cook County; the Hon. John P. Altgeld, Judge, presiding.
    Messrs. Hofheimer, Zeisler & Rosenberg, for appellants.
    Mr. M. D. Brown, for appellees.
   Gary, P. J.

The appellants recovered a judgment in trover against Blum before a justice of the peace. He appealed to the Circuit Court, and gave a bond with the other appellee as surety, which recited that Emil Block was one of the persons who recovered the judgment. The person intended was Emil Pollock. In the Circuit Court the form of the action was changed to assumpsit and the appellants recovered.

The judge of the Superior Court trying this case asan action on the bond without a jury, found for the appellees; but whether upon the objection that the form of action was changed, or that the mistake in the name was fatal, does not appear. There is nothing in the first objection. It makes no difference what the, justice, or the plaintiff before him, calls an action there. It is in the fact that the evidence fits. Swingley v. Haynes, 22 Ill. 214; Chi. & R. I. v. Reid, 24 Ill. 144. The point of the second objection is not that a bond running to an obligee by a wrong name can not be enforced, but that no record of the Circuit Court showing any disposition of a suit between the parties named in the bond, can be produced, and therefore no breach of the condition of the bond can be proved. “Parol evidence can neither bend the bond to the record nor the record to the bond.” Colman v. Crumpler, 2 Dev. (N. C.) Law, 508. Where what ought to have been, as well as the mistake, appears upon the face of the bond, so that it may be helped out by construction, without extrinsic evidence, the true intent may be followed. Schill v. Reisdorf, 88 Ill. 411; Hibbard v. McKindley, 28 Ill. 240. The question has usually arisen on a motion to dismiss the appeal, and the variance of the bond from the record has always been held fatal, even when the practice did not permit the substitution of a new bond. Gillilan v. Gray, 13 Ill. 705; Brooks v. Jacksonville, 1 Scam. 568; People v. Monroe 3 Wend. 426.

The finding in favor of the appellees was therefore correct, and the judgment is affirmed.

Judgment affirmed.


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    Frederick W. Michaelis v. Sarah Wolf et al.

      Mechanic's Lien—Architect's Certificates—Fraudulent Refusal to Deliver—Amendment.

    A decree awarding a mechanic’s lien having been previously considered herein, the same having been reversed and the cause remanded, after which complainant amended his bill, alleging, among other things, that the architect had fraudulently and without cause, refused to deliver to him certain certificates calling for amounts due and unpaid, this court holds that such view is not supported by the evidence, and declines to interfere with the decree in behalf of the defendants.
    [Opinion filed December 2, 1889.]
    Appeal from the Circuit Court of Cook County; the Hon. Lorin C. Collins, Judge, presiding.
    Mr. Levi Sprague, for appellant.
    Mr. M. Solomon, for appellees.
   Garnett, J.

At a former term this case was before this court, under the title of Wolf v. Michaelis, and the decree was then reversed and the cause remanded. After the re-docketing of the case in the Circuit Court, the complainant, Michaelis, by leave of court, amended his bill, alleging in the amendment, among other things, that he had demanded of the architect, certificates for the fifth and sixth installments specified in the contract, but that the architect had fraudulently and without any valid reason, refused to deliver the same to the complainant. It is not denied that the allegations of fraud are sufficient, but upon examining the evidence introduced in support of them, as well as that offered by defendants to the contrary, we think the Circuit Court correctly held that no case was made out under the amendment. In all other respects the case is governed by our former opinion in 27 Ill. App. 336. The decree is affirmed.

Deoree affirmed.


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    James Magner and Z. R. Winslow v. H. J. Trumbull & Co.

      Practice—Insufficient Abstract.

    The court declines to consider the case presented, for the reason that the appellant failed to file an abstract of the evidence.
    [Opinion filed December 2, 1889.]
    Appeal from the Circuit Court of Cook County ; the Hon. Julius S. Grinnell, Judge, presiding.
    Messrs Bangs & Bangs, for appellants.
    Mr. E. C. Ferguson, for appellees.
   Gary, P. J.

The brief for the appellants indicates that they are endeavoring to pay an honest debt to the appellees with a technical rule of law; but as no abstract of the evidence, only an index to the names of the witnesses has been filed, the court will not look to see whether the rule applies. C. & G. T. Ry. v. Crolie, 33 Ill. App. 17. The judgment is affirmed.

Judgment affirmed.


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    Union Safe Deposit Company v. James W. Chisholm.
    Sales— Real Property—Contract—Conditions— Title—Payment—Forfeiture of—Installments—Abstract—Waiver of Objections—Damages.

    1. The term, “ abstract of title ” means a statement in substance of what appears on the public records affecting the title to the property in question.
    2. A waiver as to one objection to a title, does not absolve the seller from endeavoring to remove another objection, such removal being made one of the conditions of carrying out the sale.
    [Opinion filed December 2, 1889.]
    Appeal from the Circuit. Court of Cook County; the Hon. ¡Richard W. Clifford, Judge, presiding.
    Messrs. George S. Willits and Henry S. Robbins, for appellant.
    Mr. Isaac E. Adams, for appellee!
   Garnett, J.

By contract in writing, dated ¡November 9, 1887, appellant agreed to sell to appellee a tract of land in Chicago for $15,000, of which the sum of $500 was then paid, and the balance was to be paid in installments. One of the stipulations of the contract was this :

“ It is hereby agreed, that, should the title to said property be found to be unmerchantable and bad upon examination (such examination to be made within ten days from delivery of abstract), then all payments made in pursuance of this contract shall be refunded. But should the said James W. Chisholm fail to perform the contract on his part promptly at the times and in the manner above specified (time being the essence of this contract), then the above mentioned first cash payment shall be forfeited by said J. W. Chisholm as liquidated damages, and the above contract shall be and become null and void.”

There was evidence tending to prove these facts: The abstract of title to the property was delivered December 8, 1887, by appellant to the attorneys of appellee, who were authorized by him to examine it and decide for him whether it should be accepted or rejected. The abstract showed that the title was traced through a suit for foreclosure of a trust deed, but the last step appearing from the abstract was a certificate of sale to W. O. D. Grannis made in pursuance of the foreclosure sale. So far as appeared from the abstract, appellant was a stranger to the title. The attorneys of appellee, having examined the abstract, prepared an opinion in writing, noting therein four objections to the title, the first having reference to a possible right of dower in the wife of one Daly, and the last to the absence of a master’s deed on the certificate of sale. On December 17, 1887, appellee informed the secretary of appellant of the objections made by his attorneys, and told him he would not take the title, unless they were made right. The master’s deed was procured by appellant (Grannis having previously assigned the certificate of sale to appellant) and left at the recorder’s office for record. But the deed was never shown, or tendered to, or seen by appellee or his attorneys, nor was any additional abstract made or tendered by appellant. On February 8, 1888, appellee, by his attorneys, notified appellant that"he had annulled the contract for the reason that the title had not been made good. Appellant denied his right to do so, claiming that a good and merchantable title had been furnished, and that appellee had forfeited the $500 deposited. Thereupon this suit was brought by appellee to recover the $500 and he had judgment in the Circuit Court, which appellant now prays may be reversed.

It is probable that more emphasis was given to the dower question by Chisholm’s attorneys than it deserved; but through the entire negotiation which followed the discovery of the insufficiency of the abstract, we find no waiver of the last objection made by them. Ho effort appears to have been put forth by appellant to remove the objections beyond having the deed executed and recorded and notifying appellee’s attorney thereof. Examination of the record might have been made by appellee’s attorneys, but the contract required no such exertion, and, moreover, a reading of the original master’s deed or the record of it, might not have been a protection to appellee. He could not, in that way, derive any information as to the judgments against, and conveyances by, the grantee in the master’s deed. The contract provided for the delivery of an abstract, and an abstract means a statement, in substance, of what appears on the public records affecting the title to the property. Chase v. Heaney, 70 Ill. 268; Warvelle on Abstracts, 3.

Perhaps in the treaty between the parties for clearing away the points made against the title, there was a waiver of any additional abstract, or the production of the master’s deed. But the waiver, if any, was conditional.

That which must be depended upon as a waiver was the consent of appellee’s attorneys to go to the record to examine the master’s deed when the other objections were removed. The waiver might have been entirely withheld, or, if given, it was within the power of the appellee to couple it with such conditions, reasonable or unreasonable, as were deemed advisable.

Admitting that the point on the supposed dower interest was unreasonable, it is, nevertheless, true that appellee was firmly and, to all appearances, in good faith, insisting upon it as a serious objection to the title. Having made the removal of that objection one of the conditions, the waiver is not available to appellant except upon compliance therewith. The record fails to show that any evidence was ever given to appellee to clear up the dower question, and having failed in that respect to comply with the conditions, appellant can not be permitted to rely on the waiver.

The judgment is affirmed.

Judgment affirmed.


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    George D. Barrett et al. v. Regina Lingle.

      Judgments—Assignments—Priority—Satisfaction—Motion to Set Aside —Remed.es—Court of Equity.

    Upon an appeal from an order setting aside the satisfaction of a judgment assigned to another, a previous assignment thereof having been made, this court holds that the various questions involved can not be settled upon such appeal, and that resort must be had to proceedings better calculated to attain the end in view.
    [Opinion filed December 2, 1889.]
    Appeal from the Superior Court of Cook County; the Hon. John P. Altgeld, Judge, presiding.
    Messrs. Whitehead & Pickard, for appellants.
    Mr. E. P. Blanchard, for appellee.
   Gary, P. J.

This record shows that the appellee recovered a judgment against the appellants; that she assigned it to one Blanchard; again assigned it to one Fay, for the benefit of Barrett; that on the judgment docket the first assignment was noted, and ten minutes thereafter the second was; that the second assignee entered satisfaction of the judgment, and on motion of the appellee the court set aside the satisfaction. From that order this appeal was taken.

Fay paid appellee $465, not money of either of the appellants. The object of Fay in buying the judgment was to use it, under a previous arrangement, in a trade with Barrett. Appellee tendered the money back to the appellants, but not to Fay. The disputed question of fact in the case is whether, when Fay took an assignment, it was with notice of the prior assignment, and on that last question a material witness refused to make an affidavit.

The validity and priority of these assignments, the respective considerations of them, the interest of Fay, are questions that ought not to be determined without full information as to the facts. The remedy by motion is imperfect.

The principle of Day v. Graham, 1 Gilm. 435, approved under same title, reversed in 4 Gilm. 389, and in Jackson v. Merriweather, 109 Ill. 647, requires a resort to a court of equity. The order appealed from is reversed that recourse may be had to a mode of proceeding where the whole truth can be ascertained and complete justice done. Order reversed and cause remanded.

Reversed, and remanded.