text:
    In re Estate of Alfred Thompson, Deceased. Henry C. Roberts, Appellant, v. John T. Dempsey, Administrator, Appellee.
    Gen. No. 43,604.
    Opinion filed February 14, 1946.
    Rehearing denied February 26, 1946.
    Released for publication February 26, 1946.

      C. Francis Stradford, of Chicago, for appellant.
    Prescott, Burroughs & Taylor and Don M. Peebles, all of Chicago for appellee; A. Morris Burroughs and Euclid Louis Taylor, both of Chicago, of counsel.
   Mr. Justice Sullivan

delivered the opinion of the court.

Alfred Thompson died August 19,1943 and the public administrator (hereinafter for convenience referred to as the administrator) was appointed to administer his estate. Shortly thereafter Henry C. Roberts, the president of a waiter’s union, of which Thompson was a member, delivered to said administrator, upon the latter’s written request, a group life insurance policy for $2,000 issued to Alfred Thompson by the Prudential Insurance Company of America. Thompson had named his wife “Salena Thompson,” as beneficiary of the insurance payable under the policy but she was not living at the time of his death. The policy provided that “if there be no Beneficiary living at the death of said employee the amount of insurance shall be paid to the executors, administrators or assigns of said employee.” The administrator collected the insurance. On December 6, 1943 Roberts filed a petition in the probate court in which he alleged that Thompson delivered said insurance policy to him two days before he died as a gift causa mortis. This petition concluded with the prayer that “John T. Dempsey, administrator, be directed to pay the proceeds of said Prudential group policy to your petitioner after the payment of funeral expenses in the sum of $330.50 to Metropolitan Funeral Parlors, debts that may be filed and allowed against said estate and costs of administration.” The probate court entered an order, denying the petition and Roberts perfected an appeal from such order to the circuit court, which after a hearing de_novo entered a judgment order wherein it found that the decedent Thompson “in contemplation of his impending death from an existing disorder, delivered said policy as a gift to Henry Roberts on the 17th day of August, 1943, and that the said Alfred Thompson within two days thereafter, to-wit, on the 19th day of August, 1943, died of said existing disorder”; and then held as a matter of law that “an insurance policy, payable to the executors, administrators or assigns of the insured, can not be the subject matter of a gift causa mortis.”

Roberts appeals from the judgment order in so far as it holds as a matter of law that “an insurance policy, payable to the executors, administrators or assigns of the insured, can not be the subject matter of a gift causa mortis,” regardless of the donor’s desire and intention to make such a gift. The administrator assigns cross-error as to that portion of the judgment order which found that Alfred Thompson in contemplation of his impending death made a gift causa mortis of the insurance policy to Henry C. Roberts. It was stipulated upon the trial that the total assets of Thompson’s estate were $2,285.45, which included the $2,000 proceeds of the insurance policy collected by the administrator, and that claims were allowed against the estate aggregating $813.48. As has been seen, Roberts seeks to be awarded the difference between the face amount of the policy and the claims allowed against Thompson’s estate, plus the costs of the administration thereof.

We will first consider the administrator’s contention that the trial court erred in finding that Thompson made a gift causa mortis of his insurance policy to Roberts. While it might seem that Roberts’ claim to ownership of the insurance policy or to any part of the proceeds thereof was purely an afterthought since he advanced no such claim when he voluntarily delivered the policy to the administrator upon the latter’s request and while it might also seem unlikely and improbable that Thompson would make a gift of the policy to him, two apparently disinterested witnesses testified positively to facts which established all of the essential elements necessary to constitute a valid gift causa mortis of the insurance policy to Roberts by Thompson.

Bernard Keesee testified that he was a member of the executive board of the waiter’s union to which Thompson belonged and of which Roberts was president; that upon learning that Thompson was ill he went with Roberts to visit him in his room on August 17, 1943; that after they inquired about his health, Thompson asked Roberts “to go out and get Mrs. Anderson . . . there was something he wanted her to know”; that when Mrs. Anderson returned with Roberts, Thompson told her, “I am going to die, and want Mr. Roberts to have my insurance policy”; that the decedent “then took the insurance policy out of his safe beside his bed, and give it to Mr. Roberts”; that Roberts “discouraged the idea ... he said he would take him to the hospital and see he got the best of care, he would get well”; and that on the same day Roberts took Thompson to the hospital, where he died two days later.

Hazel Anderson testified in substance that the decedent lived at 5421 South Michigan avenue and that she lived at 5423 South Michigan avenue; that on August 17, 1943 Roberts came to her apartment and told her that Thompson wanted her to go to his room; that when she arrived at Thompson’s room with Roberts, Keesee was there with the decedent; that Thompson said “he was going to die, he wanted Mr. Roberts to have the insurance because he had done more for him than any one . . . Mr. Thompson gave Mr. Roberts his insurance policy”; and that later that day Roberts came back and took Thompson to the hospital, where he died two days later on August 19, 1943.

Blondetta Glover testified in substance in behalf of the administrator that she had lived with Thompson for six years prior to January 1943 “as man and wife”; that he was not sick when she stopped living with him; that after he became ill she visited him nearly every day; that she saw him on August 16, 1943, the day before he was taken to the hospital; that when she was with him that day he “told me to get a policy, he wanted to get in touch with Roberts, so Roberts could take it to Mr. Cole in the Palmer House and get a certain portion of that money, so he could go away to a sanitarium to be cured”; that at that time the policy “was in a large purse that I kept in the chifferobe drawer”; that she took the policy from the drawer and gave it to Thompson; that at the decedent’s request she telephoned Roberts but he was not in his office and she left word for him that Thompson .wanted to see him; that during the time she lived with Thompson she never saw Roberts visit him; that as far as she knew Thompson had no available cash except a joint bank account with her in the First National Bank in which there was about $175; that “he had planned on going to the hospital, which is the reason he turned the policy over to Mr. Roberts . the first time was when he gave the policy to Mr. Roberts to take to Mr. Cole to get a portion of the money, so he could go away to a sanitarium”; and that Thompson told her that he thought he needed “five hundred dollars, maybe three or four.”

William W. Williams, testified in the administrator’s behalf that he had known Thompson for about 50 years; that he “saw him about five times a week, all along until about two weeks or three weeks before he died”; that on August 6, 1943 he went to Louisville, Kentucky and did not return until Thompson was-in the hospital; that the last time he saw Thompson before he went to Cleveland the decedent “was feeling pretty bad, but he was not in bed ... so I would go out nearly every evening and sit and talk with him”; that he went to see him one evening in July 1943 on which occasion “he went in a little safe, he got out a policy and wanted me to take it home”; and that “he always figured some one was going to take something from him ... I knew he was feeling bad ... I told him I would get them some other time. ’ ’

The trial judge saw these witnesses and heard them testify and since he was in a better position than we are to determine their credibility and the weight to be given their testimony, we do not think that we would be warranted in holding that the finding under consideration was against the manifest weight of the evidence. .

Roberts contends that the trial court erred in holding that “as a matter of law, an insurance policy, payable to the executors, administrators or assigns of the insured, can not be the subject matter of a gift causa mortis by actual delivery of the policy to donee by a donor, in contemplation of his (donor’s) impending death from an existing disorder, from which existing disorder the donor dies within a few hours, notwithstanding donor’s desire and intention to make such a gift.” In other words it is insisted that the trial court erred in holding that a policy of life insurance payable to the personal representative of the decedent cannot be made the subject of a gift, regardless of the fact that all of the essential elements of a gift causa mortis have been shown by the evidence. In so far as we have been able to ascertain this precise question has not heretofore been considered or determined by any court of review in this State. However, the general rule is that “a policy of insurance on the life of the donor may be made the subject of a gift in the same manner as any other chose in action” and that “the gift of a policy of life insurance is valid, in the absence of a written assignment, provided there is a delivery of the policy by the donor to the donee.” 47 A. L. R. 738, 740. This general rule is also enunciated in 24 Am. Jur., sec. 70, p. 766; 38 C. J. S., sec. 98, p. 911 and Annotated Cases, 1914 D, 294.

In Gordon v. Clark, 149 Ark. 173, 232 S. W. 19, the decedent prior to his death made a gift causa mortis of certain property including two insurance policies. The subject matter of the gift was not delivered directly to the donees but to one Wilmot Clark, Jr., who was instructed by the decedent to divide such property equally between his own mother and the mother of Ms deceased wife. Wilmot Clark, Jr., was appointed administrator of the decedent’s estate and he as well as the donees were made defendants in a suit in equity instituted by the heirs at law of said decedent to compel the donees to turn over the subject matter of the gift to the administrator for distribution to said heirs at law. There the Supreme Court of Arkansas said at p. 22:

“The delivery of the life insurance policies was complete, and it is well settled that life insurance policies payable to the legal representatives of the insured may be transferred by a mere delivery without a written assignment. Gledhill v. McCoombs, 110 Me. 341, 86 Atl. 247, 45 L. R. A. (N. S.) 26, Ann. Cas. 1914D, 294. In a case note to the latter citation on page 297 it is said that the general, if not universal, rule is that a policy of insurance on the life of the donor may be made the subject of a gift in the same manner as any other chose in action.and numerous decisions are cited in support of the rule.
“Again on page 298 of Ann. Cas. 1914 D it is said that the gift of a policy of life insurance is valid in the absence of a written" assignment provided there is a delivery of the policy by the donor to the donee, and numerous cases are cited in support thereof. In such cases the courts make no distinction between bonds or promissory notes and policies of life insurance. Each is held to be a contractual obligation to pay money at a certain time so that it is said that, if the mere delivery of a promissory note without indorsement is sufficient to entitle the donee as against the donor and his representative to demand and receive the money from the obligor, no reason can be perceived why under like circumstances the donee of a life insurance policy should not be vested with like rights. ’ ’

In Gledhill v. McCoombs, 110 Me. 341, 86 Atl. 247, 45 L. R. A. (R. S.) 26, Ann. Cas. 1914 D, 294, the Supreme Court of Maine said at pp. 248 and 249 of the last mentioned report:

“In view of the overwhelming authority that a policy of life insurance, payable to the legal representatives of the assured, may be made the subject of a gift, in the same manner as other choses in action, and that such gift may be effected by the mere delivery, without assignment of the instrument, if accompanied by such words or acts on the part of the donor as indicate a clear intention to give, coupled with the subsequent retention by the donee, it cannot be seriously contended here that, if the necessary elements of fact are proved, the gift was not consummated.
“Thus a valid gift of a negotiable promissory note may be made without indorsement or other writing [citing cases]; of a savings bank book unaccompanied by an assignment [citing cases]; of unindorsed certificates of stock [citing cases]; and of an unassigned life insurance policy (Chapman v. McIlwrath, 77 Mo. 38, 46 Am. Rep. 1; Hani v. Germania Life Ins. Co., 197 Pa. 276, 47 Atl. 200, 80 Am. St. Rep. 819; Travelers’ Ins. Co. v. Grant, 54 N. J. Eq. 208, 33 Atl. 1060; Knowles v. Knowles, 205 Mass. 290, 91 N. E. 213; Opitz v. Karel, 118 Wis. 527, 95 N. W. 948, 62 L. R. A. 982, 99 Am. St. Rep. 1004; Lord v. N. Y. Life Ins. Co., 27 Tex. Civ. App. 139, 65 S. W. 699). . . . In the case at bar the policy did not belong to the estate; and the defendant, as administratrix, had no rights in it. It is true that, as the naked legal title remained in the estate, it must be collected in her name. But she was simply the agency therefor, the conduit through which the proceeds were to pass to their true owner. Her position was nominal merely. The plaintiff could doubtless have maintained an action against the insurance company, if necessary, in the name of the equitable assignor; that is, in the name of the defendant as administratrix. (Borneman v. Sidlinger, 15 Me. 429, 33 Am. Dec. 626), and even against the protest of such administratrix (Bates v. Kemption, 7 Gray [Mass.] 382; Pierce v. Savings Bank, 129 Mass. 425, 37 Am. Rep. 371). The defendants refusal to sue or to have her name used could not destroy the plaintiff’s rights under the policy. The proceeds, when collected, belonged to the plaintiff and not to the estate. The defendant had neither the right nor the power to treat the proceeds as a part of the estate . . . .”

Thus it clearly appears from the foregoing authorities that the general rule is that a policy of insurance on the life of the donor, the proceeds of which are payable to his legal representative, may be made the subject of a gift causa mortis without a written assignment thereof, when the policy is actually delivered to the donee.

The administrator asserts that this is “an action at law” and not “a bill in equity” and that Roberts “should have held the insurance policy and forced the insurance company to file a bill of interpleader .in a court of equity, and then asked for equitable relief.”

Of course Roberts could have resorted to a court of equity to establish his title and right as donee to the insurance policy and the proceeds thereof but it was unnecessary for him to do so. Having received the policy as a gift, he knew that the proceeds thereof could be reached by the administrator to the extent necessary for the payment of claims allowed against Thompson’s estate and the costs of the administration thereof, if there were not other assets in the estate sufficient to pay such claims and costs. We fail to see where Roberts is in any different position than he would have been in, if he had refused to comply with the request of the administrator to turn over the policy to him. If he had so refused, the administrator as a matter of course would have cited him before the probate court to show by what right he retained the policy. The parties then would have been in the identical position that they are now in as the result of the filing of Roberts’ petition in the instant case. While other remedies might have been pursued by Roberts to assert his right to the policy, he selected the simplest remedy by instituting this proceeding in the probate court where the equities of both parties could be determined, including the administrator’s right to set off the amount of the claims allowed against the estate and the costs of the administration against the proceeds of the policy. The administrator seems to intimate that the probate court is purely a court of law but such is not the fact. It has been repeatedly held that probate courts have equitable jurisdiction in matters pertaining to the administration of estates. (In re Estate of Cunningham, 324 Ill. App. 210; Trego v. Estate of Cunningham, 267 Ill. 367; In re Estate of Kinsey, 261 Ill. App. 481; Harris v. Harris, 116 Ill. App. 537.)

For the reasons stated herein the judgment order of the circuit court of Cook county is reversed in so far as it decreed that “the appeal of the said Henry Roberts from the order entered by the Probate Court on 2nd day of August, 1944, he dismissed” and held “as a matter of law, an insurance policy, payable to the executors, administrators or assigns of the insured, can not be the subject matter of a gift causa mortis by actual delivery of the policy to donee by a donor, in contemplation of his (donor’s) impending death from an existing disorder, from which existing disorder the donor dies within a few hours, notwithstanding donor’s desire and intention to make such a gift.” The cause is remanded with directions that Henry C. Roberts be granted the relief prayed for in the petition involved herein filed by him in the probate court.

Judgment order reversed and cause remanded with directions.

Friend, P. J., and Scanlan, J., concur.


source: Caselaw Access Project

author: Mr. Justice Matghett

license: Public Domain

text:
    Frank O. Koepke, Appellant, v. Peter J. Schumacher et al., Defendants. Alice Campo, Appellee.
    Gen. No. 43,150.

      Opinion filed February 18, 1946.
    Released for publication March 1, 1946.
    Reuel H. Grunewald and Robert F. Kolb, for appellant.
    Harold Omar Mulks, for appellee.
   Mr. Justice Matghett

delivered the opinion of the court.

Koepke was plaintiff in a suit to foreclose a mortgage on real estate in which Mrs. Campo claimed an interest. She was served by publication only. He obtained a decree November 24, 1942. The premises were sold to Koepke December 23, 1942. Mrs. Campo filed a petition February 16, 1944 to have the decree set aside as to her and for leave to answer. This was after the period of redemption had expired. Koepke filed a verified answer to her petition. It was stricken on motion of Mrs. Campo, and a motion of Koepke to vacate the order was denied. He elected to abide by his answer, and an order in favor of Mrs. Campo was entered that the decree theretofore entered on November 24, 1942, should be vacated and set aside as to Mrs. Campo and she be granted leave to appear and defend, from which Koepke appeals. We reversed the decree (Koepke v. Schumacher, 324 Ill. App. 315, Abst.). The Supreme Court reversed this court (391 Ill. 355) and remanded the cause to this court with direction to dismiss the appeal, in substance á direction to proceed in conformity with the views expressed in the opinion of the Supreme Court.

The merits of Koepke’s appeal were not considered by. the Supreme Court. The question considered by the Appellate Court had been whether a supposed affidavit of nonresidence was sufficient to confer jurisdiction of Mrs. Campo. The Supreme Court held that neither that court nor this had jurisdiction to decide that question. The Supreme Court said:

“Notwithstanding what purported to be a copy of the affidavit of nonresidence is contained in the transcript it is not a part of the record because it is not authenticated by the certificate of the clerk. . . .
“We have no record before us upon which we can decide the question of jurisdiction over the person of Alice Campo; and it is equally clear the Appellate Court for the First District lacked that power.”

The record was returned to this court. Mrs. Campo made motions to redocket the cause, dismiss the appeal and assess damages of $474. The motion to redocket was allowed. Koepke made a motion for leave to suggest a diminution "of the record. This was allowed and an additional record duly certified by the clerk filed January 25, 1946. The same day we denied the motions to dismiss the appeal and for assessment of damages.

The supplemental and additional record shows the filing on September 28, 1942, of the affidavit of non-residence as to Mrs. Campo in the suit for foreclosure in the circuit court and sets forth a photo static copy thereof. It is substantially the same affidavit contained in the record on which the appeal was originally considered in this court and which appears to have been lost or mislaid in the trial court and restored upon proof by order of the circuit court. Mrs. Campo objected to the motion for leave to file this additional record on the ground “that this court is without power or jurisdiction to grant said motion.” We hold the allowance of the motion was within the discretion of this court under sec. 92 (1) (c) of the Civil Practice Act (Ill. Rev. Stat. 1945, ch. 110, par. 216, subpar. (1) (c); Jones Ill. Stats. Ann. 104.092, subpar. (1) (c)), which provides:

“ (1) In all appeals the reviewing court may, in its discretion, and on such terms as it deems just, . . .
“(c) Order or permit the record to be amended by correcting errors or by adding matters which should have been included.”

This section of the statute was construed in Francke v. Eadie, 373 Ill. 500, where it was held the Appellate Court had the power under the statute to permit the filing of an additional record, showing that a notice of appeal, which had not been included with the record theretofore filed, might be thus supplied.

The Supreme Court said:

“In the instant case, the Appellate Court granted the leave to file an additional transcript, which, when filed, supplied the deficiency in the original transcript. The transcript which was filed November 23 contained sufficient parts of the record to make it amendable, subject to the discretion of the court, and, in the granting of leave to file the additional transcript, the court was acting within the discretionary powers conferred by sub-paragraph (c) of section 92.
“The provisions of section 92 of the Civil Practice act and rule 36 of .this court, when considered together and properly applied, make for a speedy and final determination of the case according to the substantive rights of the parties.”

The textwriters agree with this construction. Nichols Ill. Civ. Prac. §§ 6259, 6260. Smith-Hurd Anno. Stat., ch. 110, par. 216 [Jones Ill. Stats. Ann. 104.092], Historical and Practice Notes.

It now appears the transcript of the record considered by this court was inaccurate in that the affidavit of nonresidence, shown on page 24A of the record as having been filed September 28, 1942, was in fact an affidavit of nonresidence filed June 1, 1944, pursuant to an order of that date “to restore to the files an affidavit of nonresidence filed herein on September 28, 1942, and which has been lost or misplaced, and the court having examined said petition . . . finds, that said affidavit of nonresidence was duly filed herein, and that the same has been lost or misplaced and that diligent search has been made therefor . . . by the clerk of this court, and the same cannot be found, and it further appearing that the plaintiff has tendered a copy of said affidavit of nonresidence duly verified as a true and correct copy there: it is therefore ordered that leave is hereby given to the plaintiff to restore said lost document to the files and to file herein said copy of said affidavit of nonresidence this day presented to the court.”.

It also appears that the certificate appended to the record dated June 1, 1944, was misleading in that the exception in it with reference to Item 3 of the original praecipe (the specification of the affidavit of nonresidence filed September 28, 1942) failed to state that the affidavit on page 24A of the record was the affidavit of nonresidence filed June 1, 1944, to restore the lost or misplaced affidavit of nonresidence filed September 28, 1942. These inaccuracies are now corrected by the supplemental record certified by the clerk.

To the objection that this court is without power to enter an order permitting the filing of this additional record sec. 92, as above construed in Francke v. Eadie, 373 Ill. 500, is, we hold, a sufficient answer. It is worthy of note that the same power and authority existed under the former Practice Act of 1907, Callaghan’s Stat. Anno., V 6, ch. 110, sec. 81 of which is as follows:

“ . . . if it shall appear to the Supreme or Appellate Court that the record in any cause is incomplete or insufficient upon which to fairly consider and pass upon errors or cross errors assigned, such court shall order the clerk of the trial court to certify such additional parts of the record as it shall deem necessary, and such court shall make such order as to costs resulting therefrom as it shall deem just.”

It is also worthy of note that prior to the enactment of that statute the same practice prevailed with the exception that it was necessary to make application for relief to the trial court instead of the reviewing tribunal. Bergen v. Riggs, 40 Ill. 61; Brooks v. Bruyn, 40 Ill. 64; Illinois Cent. R. Co. v. Garish, 40 Ill. 70; Reed v. Curry, 40 Ill. 73; Shipley v. Spencer, 40 Ill. 105.

The fact controlling our discretion in allowing the motion to suggest a diminution of the record is that the merits of the appeal were' not passed on by the Supreme Court. This distinction is vital, as appears from a number of Supreme Court cases.

In In re Estate of Maher, 210 Ill. 160, 164, 165, the opinion of the Supreme Court refers to two lines of cases and states the general rule to be applied. The court there said:

“It is impossible, in an opinion of reasonable length, to discuss the cases to which we have been referred on this subject. The only rule of general application deducible therefrom is one as to the existence of which there can be no controversy, and which may be thus stated: Where this court, in considering a cause, determines the issues and decides the questions involved upon their merits, and the case is reversed and remanded, with directions ‘to proceed in conformity with the views’ expressed in the opinion, there is no power in the court below except to enter a final order or judgment, without a re-trial; but if, on the other' hand, the issues are not determined by this court upon their merits, but the case is reversed and remanded with directions above mentioned, a re-trial may be had, when the court below will be governed by the legal principles which have been announced by this court, and evidence offered by either party which falls within the principles so announced must be received.
“ It is manifest, therefore, that for the purpose of determining whether this court has determined the merit's of a question involved in any cause requires an ascertainment of the issues in that cause and an examination of the opinion of this court dealing therewith. Each case must be determined by the application of the general rule above set forth to the particular questions and issues arising in that case.”

In that case the Supreme Court said it had not decided the issue and again reversed the cause with directions to overrule the motion to dismiss the petition of one of the parties and retry the issue upon the motion of either party.

In Dinsmoor v. Rowse, 211 Ill. 317, it was held that on remandment with directions to proceed in conformity with the views expressed in the opinion, if it appeared from the opinion that the grounds of reversal might be obviated by amendment of the pleadings or the introduction of additional evidence, it was the duty of the trial court to redocket the cause and permit amendments and allow additional evidence. The court said: (page 320)

“Where a cause is reversed and remanded with directions to proceed in conformity with the views expressed in the opinion filed, and it appears from such opinion that the grounds of reversal are of a character which may be obviated by subsequent amendments of the pleadings or the introduction of additional evidence, it is the duty of the trial court to permit the cause to be re-docketed and permit amendments to be made and evidence introduced on the hearing, just as though it was then being heard for the first time.”

In Aurora & Geneva Ry. Co. v. Harvey, 178 Ill. 477, 484, the court said:

“This defect was easily cured by amendment, and the circuit court committed no error in allowing the amendment. .In fact, it was the duty of the court to permit the amendment and to admit evidence in proof of the facts alleged in the amended petition. It is only when the merits of the controversy and the ultimate rights of the parties are decided in a court of review that a reversal and remandment will deprive the court below of the right to allow amendments to the pleadings and hear other evidence, and the authorities cited by counsel for appellees go no farther than this.”

Other cases to the same effect are Roggenbuck v. Breuhaus, 330 Ill. 294, 297-99 (citing Aurora & Geneva Ry. Co. v. Harvey, 178 Ill. 477); Ziolkowski v. Continental Casualty Co., 365 Ill. 594, 600; Gee v. Hoeppner, 267 Ill. App. 459, 464, 465. A review of all these cases would unduly extend this opinion. In conformity with these authorities, as we understand them, we hold it was the duty of this court to allow the suggestion of Koepke for a diminution of the record and permit it to be filed. The additional record removed the only reason for which the Supreme Court opinion dismissed the appeal, and our opinion on the merits of the case on the record is not different from those expressed in our opinion filed December 11, 1944, in (Koepke v. Schumacher, 324 Ill. App. 315, abst.). We said:

“Defendant further objects to the affidavit that while it states ‘due inquiry’ and ‘diligent inquiry’ had been made, the language of the statute is that it must be ‘ an affidavit showing’ due inquiry, etc. This, he says, means to demonstrate, to prove and to establish, and the language used by the court in Spalding v. Spalding, 3 Howard’s Practice, 297, is said to be applicable here. A distinction is drawn between a mere statement and a ‘showing,’ and we are asked to hold that an affidavit must not only state due inquiry was made but must state in some detail what was done in order to ascertain the residence of the defendant. The form of affidavit used in this case is one which has been widely used in proceedings relating to the title of lands in Chicago and Cook .County for many years. We are disposed to hold it sufficient. Many things might properly be done to ascertain the residence of any person. Certainly an unending search should not be necessary. We think it was not the intention of the legislature in enacting this statute to require an affidavit giving in detail an account of the search made. We do not know of any Illinois case which so holds. The affidavit was, we hold, sufficient. We hold the court had jurisdiction of defendant Campo.
“After the record was filed in this court, defendant Campo moved to dismiss the plaintiff’s appeal and in support of her motion filed affidavits tending to show a conspiracy between plaintiff and some of the defendants to defraud her. Of course, no court will allow its process to be used for that purpose, but no such question, so far as this record shows, was raised in the trial court. This court is not one of original jurisdiction. It is designed to review and, if necessary, reverse and correct errors of the courts of nisi prius. Sections of the practice act which have attempted to authorize this court to take evidence have been held invalid by the Supreme Court for that reason. Schmidt v. Life Assurance Society, 376 Ill. 183. Much less would it be permitted an appellate tribunal to substitute affidavits for evidence. The motion to dismiss the appeal is denied.
“We hold the affidavit of plaintiff’s attorney was sufficient to confer jurisdiction on the court; that the time for filing a bill of review or petition to set aside under the statute had expired, and that the writ of error coram nobis is inapplicable to a chancery proceeding. It follows that the trial court was without jurisdiction to enter the order appealed from. It will, therefore, be reversed.

Again, we hold the order appealed from must be reversed.

Reversed.

O’Connor and Niemeyer, JJ., concur.


author: Presiding Justice Stone.

text:
    First National Bank of Jonesboro, Illinois, Appellee, v. Road District No. 8, Union County, Illinois et al., Appellants.
    Term No. 4,305.

      opinion filed February 6, 1946;
    rehearing denied March 15, 1946;
    released for publication March 16, 1946.
    Paul D. Reese, for appellants;
    R. Wallace Karraker, for appellee.
   Opinion by

Presiding Justice Stone.

Not to be published in full.


author: Presiding Justice Kiley.

text:
    Glen T. Rogers, Appellee, v. New York, Chicago and St. Louis Railroad Company, Appellant.
    Gen. No. 43,283.
    opinion filed February 13, 1946;
    rehearing denied March 1, 1946;
    released for publication March 8, 1946.
    Winston, Strawn & Shaw, for appellant; Douglas C. Moir, Arthur D. Welton, Jr. and Edward J. Wendrow, of counsel;
    Edward L. Richter and Marion J. Hannigan, for appellee; John B. King, of counsel.
   Opinion by

Presiding Justice Kiley.

Not to be published in full.


text:
    Ray F. Schuster and Ruth M. Schuster, Appellants, v. Jefferson Ice Company and Ben Rieken, Appellees.
    Gen. No. 43,305.
    opinion filed February 13, 1946;
    rehearing denied March 1, 1946;
    released for publication March 8, 1946.
    Defrees, Fiske, O’Brien & Thomson, for appellants; Kenneth M. Fiske, Harry S. Ditchburne, Vincent O’Brien and John Merrill Baker, of counsel;
    Hinshaw & Culbertson, for appellees; Oswell G. Treadway, of counsel.
   Opinion by

Presiding Justice Kiley.

Not to be published in full.


author: Justice Burke.

text:
    People of State of Illinois, Defendant in Error, v. Amante Rongetti, Plaintiff in Error.
    Gen. No. 43,309.

      opinion filed February 13, 1946;
    rehearing denied March 1, 1946;
    released for publication March 8, 1946.
    Ray E. Lane, for plaintiff in error;
    William J. Tuohy, 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

Justice Burke.

Not to be published in full.


text:
    In re Estate of Gussie Teichman, formerly known as Gussie Boller, Deceased. Benjamin Teichman, Executor, Petitioner in Citation Proceedings, Appellant, v. Sarah Weinberg and Morris Weinberg, Appellees.
    Gen. No. 43,428.
    opinion filed February 13, 1946;
    released for publication, March 8, 1946.
    Moses, Kennedy, Stein & Bachrach, for appellant; Hamilton Moses and Morris Solomon, of counsel;
    Cohon & Goldstein, for appellees.
   Opinion by

Justice Burke.

Not to be published in full.


text:
    Emily Pilackus, Appellant, v. Paul Pilackus et al., Executors of Estate of Paul Pilackus, also known as Paul Platz, Deceased et al., Appellees.
    Gen. No. 43,455.
    opinion filed February 13, 1946;
    released for publication March 8, 1946.
    Leslie A. Kohn and Irving Breakstone, for appellant;
    Frank W. Chern and Philip M. O’Connell, for certain appellees;
    Winston, Strawn & Shaw, for certain other appellee.
   Opinion by

Justice Burke.

Not to be published in full.


author: Opinion by Justice Lewe.

text:
    Louis H. Freise, Appellant, v. Mid-City Trust and Savings Bank of Chicago and Mid-City National Bank of Chicago, Appellees.
    Gen. No. 43,089.

      opinion filed February 13, 1946;
    released for publication March 8, 1946.
    Kinne, Scovel, Robson & Murphy, for appellant; Harry C. Kinne, of counsel;
    Gustav E. Beerly, for certain appellee; Gustav E. Beerly, Jr., of counsel;
    John M. Lee and Carl M. Loos, for certain other appellee.
   Opinion by

Justice Lewe.

Not to be published in full.


author: Justice Lewe.

text:
    Elmer C. Krauter, Appellant, v. Robert S. Adler et al., Appellees.
    Gen. No. 43,133.
    opinion filed February 13, 1946;
    rehearing denied March 1, 1946;
    released for publication March 8, 1946.
    Winston, Strawn & Shaw, for appellant; George B. Christensen and Edward J. Wendrow, of counsel;
    Michael F. Ryan, for appellees.
   Opinion by

Justice Lewe.

Not to be published in full.


text:
    Charles R. White, Appellant, v. American Electric Fusion Corporation and Edmund J. Henke, Appellees.
    Gen. No. 43,145.
    opinion filed February 13, 1946;
    rehearing denied March 1, 1946;
    released for publication March 8, 1946.
    Samuel G. Rautbord, for appellant; Elmer Gertz, of counsel;
    Howard A. Brundage, George E. Kanary and A. B. Manion, for appellees; A. B. Manion, of counsel.
   Opinion by

Justice Lewe.

Not to be published in full.


text:
    Hattie Gabl, Appellant, v. Equitable Life Assurance Society of United States, Appellee.
    Gen. No. 43,182.
    opinion filed February 13, 1946;
    released for publication March 8, 1946.
    John P. Carey, for appellant;
    Mayer, Meyer, Austrian & Platt, for appellee; Miles G. Seeley, of counsel.
   Opinion by

Justice Lewe.

Not to be published in full.


text:
    LeRoy Paul, alias LeRoy Pollokofski, Appellant, v. Samuel A. Stritch, D. D., Archbishop of Roman Catholic Church of Chicago et al., Appellees.
    Gen. No. 43,204.
    opinion filed February 13, 1946;
    released for publication March 8, 1946.
    John G. Riordan, for appellant;
    Kirkland, Fleming, Green, Martin & Ellis, for appellee; William H. Symmes, Charles R. Morrow and John M. O’Connor, Jr., of counsel.
   Opinion by

Justice Lewe.

Not to be published in full.


author: Justice Scanlan.

text:
    Selma Savit, Administratrix of Estate of Julius Savit, Deceased, Plaintiff Appellee, v. Chicago Title and Trust Company, Trustee et al., Defendants. Theodore J. Ticktin, Appellant.
    Gen. No. 43,206.
    opinion filed February 14, 1946;
    rehearing denied February 26, 1946;
    released for publication February 26, 1946.
    Herman & Pollack, for appellant; Edward M. Herman and B. L. Pollack, of counsel;
    Shulman, Shulman & Abrams, for plaintiff appellee; Meyer Abrams, of counsel;
    Warren B. Buckley, Harold L. Reeve and Edmund J. Reynolds, for certain appellee;
    Kirkland, Fleming, Green, Martin & Ellis, for certain other appellees; Walter C. Senne and John M. O’Connor, Jr., of counsel.
   Opinion by

Justice Scanlan.

Not to be published in full.


text:
    Ludmilla Stapel, Appellant, v. Julius Kanwischer et al., Appellees.
    Gen. No. 43,454.
    opinion filed February 14, 1946;
    rehearing denied March 7, 1946;
    released for publication March 8, 1946.
    Madden, Meccia & Meyer, for appellant; Edward D. Feinberg, of counsel;
    Frank P. Zaleski, for appellees.
   Opinion by

Justice Scanlan.

Not to be published in full.


author: Justice Sullivan.

text:
    William T. Dickerman, Appellee, v. Amy V. Jones, Appellant.
    Gen. No. 43,336.
    opinion filed February 14, 1946;
    released for publication February 26, 1946.
    Beckman, Healy, Reid & Hough, for appellant; William W. Curran, of counsel;
    William T. Dickerman, pro se.

   Opinion by

Justice Sullivan.

Not to be published in full.


text:
    Catherine M. Jacobson, Appellee, v. Chicago Motor Coach Company, Appellant.
    Gen. No. 43,464.

      opinion filed February 14, 1946;
    released for publication February 26, 1946.
    Barrett, Barrett, Costello & Barrett, for apellant;
    Errett O. Graham, for appellee.
   Opinion by

Justice Sullivan.

Not to be published in full.


text:
    Jacob Siegel and Lena Siegel, Appellees, v. David J. Davis and Selma Bloch, Appellants.
    Gen. No. 43,586.
    opinion filed February 14, 1946;
    released for publication February 26, 1946.
    Michael A. Gerrard, for appellants;
    Ordower & Ordower, for appellees; Benjamin Ordower, of counsel.
   Opinion by

Justice Sullivan.

Not to be published in full.


author: Justice O’Connor.

text:
    Edward M. Hart, Appellee, v. Finley W. Brown, Appellant.
    Gen. No. 43,524.
    opinion filed February 18, 1946;
    rehearing denied March 8, 1946;
    released for publication March 8, 1946.
    Jesse H. Brown, for appellant;
    T. A. Sheehan, for appellee.
   Opinion by

Justice O’Connor.

Not to be published in full.


author: Mr. Justice Lewe

text:
    Mary Latham Jacobs, Appellant, v. Whipple Jacobs, Appellee.
    Gen. No. 43,232.

      Opinion filed February 13, 1946.
    Rehearing denied March 29, 1946.
    Released for publication March 29, 1946.
    Taylor, Miller, Busch & Boyden, of Chicago, for appellant; Francis X. Busch and Cassius M. Doty, both of Chicago, of counsel.
    Bell, Boyd & Marshall and Cantwell & Cantwell, all of Chicago, for appellee; Robert E. Cantwell, Jr. and Louis Yager Cantwell, both of Chicago, of counsel.
   Mr. Justice Lewe

delivered the opinion of the court.

Mary Latham Jacobs (hereinafter called “plaintiff”) filed an amended petition for the construction and modification of certain provisions of a divorce decree relating to alimony and children’s support, payments into an educational fund for the children, and for an increase in alimony and support money for the children. After a hearing on the issues of law raised by the answer of defendant Whipple Jacobs and plaintiff’s replication, the chancellor denied and dismissed the petition. Plaintiff appeals.

It appears that the parties were married on the 20th day of October 1923, and that three children were born of the marriage. On the 28th day of March 1941, they entered into a written contract providing for the permanent support and maintenance of the plaintiff and their children. On the 12th day of April 1941, plaintiff filed her bill for divorce, and on the 14th day of May 1941, a decree was entered, granting a divorce to the plaintiff from defendant on the ground of desertion. The contract theretofore entered into between the plaintiff and defendant on March 28, 1941, was incorporated into and made a part of the divorce decree. The pertinent provisions of the contract are articles 1 and 2 which appear in the divorce decree and read as follows:

“Article I
“The Husband agrees to pay to the Wife for her support and maintenance, and for the support, maintenance and education of the Children (subject to the abatement hereinafter provided) the sum of $700 per month, on the first day of each month, commencing with the month of April, 1941; provided, however, that:
“(a) Said monthly payments of $700 per month shall be reduced in the amount of $100: (1) on July 1, 1947, or upon the prior death of said William Latham Jacobs; (2) on July 1, 1949, or upon the prior death or marriage of said Nancy Jacobs; (3) on July 1,1952, or upon the prior death or marriage of said Ann Jacobs.
“ (b) In the event of the divorce of the parties and subsequent remarriage of the Wife then from and after her remarriage each monthly payment shall comprise, in lieu of the amount provided for in the foregoing paragraph, $100 per month for said William Latham Jacobs until July 1, 1947; $100 per month for said Nancy Jacobs until July 1, 1949; and $100 per month for said Ann Jacobs until July 1, 1952.”
“Article II
‘ ‘ The Husband further agrees to pay to the Wife as an ‘Educational Fund’ for the education of said Children, jointly and severally, sums as follows:
“(a) One-ninth of his net income (as hereinafter defined) over $20,000 for each calendar year, beginning with the calendar year 1941, until July 1, 1947 or the previous death of said William Latham Jacobs.
“(b) One-ninth of his net income (as hereinafter defined) over $20,000 for each calendar year, beginning with the calendar year 1941, until July 1,1949, or the earlier death or marriage of said Nancy Jacobs.
“(c) One-ninth of his net income (as hereinafter defined) over $20,000 for each calendar year, beginning with the calendar year 1941, until July 1, 1952, or the earlier death or marriage of said Ann Jacobs.
“The term ‘net income’ as used herein shall mean the amount written in line 1 (from Schedule A) of Form 1040 of the United States Bureau of Internal Revenue in use for 1940 income tax returns, or the corresponding item in forms hereinafter issued, less the amount of income tax which would have been payable, or would be payable were that amount the net income to be written in line 20 of such form. It is recognized by the parties that the business income of the Husband may at some time in the future be not in the form of salary or bonuses; and in that event it is understood and agreed that the income of the Husband is to be deemed the income from the business in which he is then engaged, less the corresponding income tax which would have been payable or would be payable were that amount entered on line 20 of said form as ‘net income. ’
“The said sum shall be paid to the Wife for the benefit of the Children on or before March 15 of each year, beginning with the year 1942.
“Until July 1, 1952, the Husband agrees to deliver to the Wife, simultaneously with the filing thereof Avith the United States government, a copy of each income tax return or amended income tax return so filed.
‘ ‘ Said Educational Fund may be used by the Wife in her own absolute discretion in the education of the Children. Any surplus remaining in this fund on July 1, 1952, shall be paid equally to the Children, or the survivors or survivor of them, as a gift from the Husband. ’ ’

When the divorce decree was entered in 1941, alimony paid by defendant to plaintiff could not be deducted from the gross income of the defendant in determining the net income tax payable by the defendant under the provisions of the Internal Revenue Code, nor was the alimony received by the plaintiff subject to an income tax. Under the provisions of subsection (k) of section 22 of the Internal Revenue Act, effective October 21, 1942, alimony paid by the defendant in accordance with the provisions of the divorce decree was deductible from defendant’s gross income in determining his net income subject to income tax; and the alimony received by plaintiff was subject to an income tax. Notwithstanding the amendments to the Internal Revenue Code in 1942, defendant continued to make deductions in 1942 and 1943 from his gross income as he did in 1941 before the amendments were adopted. As a result of these amendments the income tax paid by plaintiff was much higher. By defendant’s method of computation, nothing was due the educational fund as provided in article 2 of the divorce decree for the years 1942 and 1943.

Plaintiff’s amended petition prays that: (1) defendant be required to pay petitioner for the educational fund the amounts payable by defendant on account of Ms 1942 and 1943 income under said decree, computing Ms liability on a basis of allowing as a deduction from Ms income for personal services in excess of $20,000 only the amount of income taxes defendant was legally required to pay on his income for personal services in each of said years; (2) that the provisions of the divorce decree be amended so as to read substantially as follows: The husband shall pay to the wife for her support and maintenance the sum of $400 monthly, commencing with the month of April 1941, and the further sum of $300 monthly commencing with the month of April 1941, for the support, maintenance and education of the children; provided, however, that said monthly payments of $300 for the support, maintenance and education of the children shall be reduced as provided in the original decree; (3) that the “net income” as defined in article 2 be modified so that the defendant in computing his liability to make payment to the educational fund may deduct from his gross income derived from salary and bonus only the amount of income tax he is lawfully required to pay thereon; (4) the amount of alimony to be paid by defendant to petitioner be increased to meet the change in the financial status of petitioner; (5) defendant be required to pay petitioner’s reasonable attorney’s fees.

Defendant’s answer averred in substance that plaintiff’s contentions are not in accord with the strict' reading of the contract nor with the intent of the parties; that the payment of $100 on the respective children reaching a certain age obligates the defendant to make these payments long after each of the children reaches his or her legal majority, and that under the rulings of the Internal Revenue Code the tax on $3,600 is as a matter of fact payable by plaintiff and not by defendant. The answer denies that there is a change in the plaintiff’s circumstances, except that the plaintiff must now pay income taxes as decreed by the con-gross of the United States, and that the sole basis for this petition is a change in the revenue code necessitating that petitioner pay taxes and thereby share in the war effort.

Plaintiff’s replication to defendant’s answer denies that under the rulings of the Internal Revenue Code the tax on $3,600 a year now payable to the minor children of the plaintiff and defendant is payable by the plaintiff.

Defendant’s principal contentions are (1) that the construction and interpretation of the contract as merged in the consent divorce decree is not within the jurisdiction of the trial court under section 18 of the Divorce Act [Ill. Rev. Stat. 1945, ch. 40, par. 19; Jones Ill. Stats. Ann. 109.186]; and (2) that the change in circumstances arising out of the change in the, 1942 federal income tax law is not such a material change as to require this court to. take jurisdiction.

The trial court rested its decision upon the ground that (Deft’s brf. p. 22):

“When congress changed the income tax law in 1942 it did not contemplate that the payee (wife) could escape its tax burden and restore the burden on the alimony payor (husband) through a court order for an increase in alimony for the purpose of paying taxes. ... It would seriously interfere with collection of federal taxes and would convert our state courts into courts for the adjustment of federal taxes.”

After a decree is rendered, the rights of the parties rest upon the decree and not upon their agreement. When making a change in the alimony, the court should take into consideration the property and income of the parties, their ages, health, and social conditions, and whether there are children dependent upon them for support. (Herrick v. Herrick, 319 Ill. 146.) The court is not deprived of the power to modify a consent decree. Grounds for divorce, payment of alimony, and modification of divorce decrees are regulated by statute. When dealing with such matters a court is exercising powers granted by the legislature and cannot by incorporating a contractual provision in its decree divest itself of the power to modify, contrary to the legislative will. (Adler v. Adler, 373 Ill. 361, 372.) In Maginnis v. Maginnis, 323 Ill. 113, 117, the court said:

“The power to make such modifications is not exhausted by the entry of the original order fixing the amount, but under the statute is a continuing power to modify the provisions of the decree in that respect at any time, according to the varying needs and circumstances of the parties. Nor is an express reservation of the power in the decree necessary, for the power exists and may be exercised whether so reserved or not.”

Again, at page 118:

“Agreements of that character, when not entered into for the purpose of facilitating a divorce, become merged in the decree and lose their contractual nature, to the extent, at least, that the court has the power to modify the decree, upon the application of either party, when a modification is justified by altered circumstances.”

The language of article 1 of the divorce decree clearly indicates that $300 of the monthly payments of $700 made by the defendant to plaintiff was intended for the support of the children and not as alimony for the plaintiff. Since the law is well established that the court has the power to modify the decree, we think the chancellor erred in not modifying it as prayed for in the petition, by separating the alimony from the children’s support money.

Defendant’s next contention leads us to a consideration of whether the court can modify the terms of a divorce decree on the ground that the change in the federal income tax law in 1942 caused a material change in the financial status of the plaintiff. This question has not heretofore been determined in Illinois. On oral argument before this court, defendant’s counsel maintained that the court was precluded from adjusting plaintiff’s alimony, on the theory that the rights of the parties were determined and fixed by the divorce decree in 1941. He also urged, for the same reason, that an increase in the husband’s income taxes after the entry of the decree would not warrant a reconsideration, by the chancellor, of the alimony paid by the husband, in the event he should petition for a reduction. At the trial of the case, the chancellor indicated that the plaintiff was attempting to defeat the intent of congress in amending the income tax law, by transferring her tax burden to the defendant. Plaintiff’s income tax expenditures, it seems to us, cannot be distinguished from any other of her necessary expenses, such as those for food, shelter, and clothing, all being equally necessary for her maintenance. In the recent case of Kraunz v. Kraunz, 293 N. Y. 152, an action for separation involving a change in the financial circumstances due to the amendment of the Internal Revenue Code, sec. 22, subd. (k), substantially the same arguments were advanced as in the case at bar. At page 156, the court said:

“In fixing the alimony to be paid by a defendant under a judgment of separation presently granted the court would certainly take, into account the income and other taxes which the wife and husband would probably be compelled to pay. Only the balance which remains after such payment will be available for the support or enjoyment of either husband or wife. No public policy embodied in the tax statutes is thwarted by the courts when they direct a defendant in a matrimonial action to pay to his wife for her support and for the maintenance of his children a sum commensurate with his financial ability to pay and sufficient to furnish proper support after taxes are paid. Justice requires that the amount of alimony should be measured by that standard both when the judgment is granted and when application is made for its modification. ’ ’

We think any decrease in the wife’s income, whether due to the payment of income taxes or to any other reason which reduces her income beyond what is necessary for her station in life may be considered. (Russell v. Russell, 142 F. (2d) 753, at page 754.)

From the pleadings in the case at bar it appears that as a result of the amendments to the Internal Revenue Code of 1942 the balance remaining in the hands of the plaintiff was substantially reduced after the payment of her income tax, whereas the balance remaining in the hands of the defendant after the payment of his income taxes was substantially increased. We hold that this change in the financial status of the parties was sufficient to justify the chancellor in modifying the decree, and that an additional allowance of alimony should be made as shall appear to the court to be reasonable and proper under all the circumstances.

With respect to payments into the educational fund under the provisions of article 2 of the divorce decree, we agree with plaintiff’s contention that article 2 should be modified in order that deductions from defendant’s gross income derived from salary and bonus should be only the amount of income tax he is lawfully required to pay thereon. Any other construction would defeat the purpose of this provision in the divorce decree. In accordance with the prayer of plaintiff’s petition, plaintiff is entitled to reasonable attorney’s fees necessarily incurred by the plaintiff in this proceeding.

For the reasons given, the order denying and dismissing the plaintiff’s petition is reversed and the cause remanded with directions to proceed in a manner not inconsistent with this opinion.

Reversed and remanded with directions.

Kiley, P. J., and Burke, J., concur.


author: Mr. Justice Scanlan

text:
    Thomas H. Fisher and Chester Bowles, Administrator, Office of Price Administration, Appellees, v. Michigan Square Building Corporation, Appellant.
    Gen. No. 43,633.
    Opinion filed February 28, 1946.
    Released for publication March 26, 1946.
    See also case reported on p. 323, post.
    Scott, MacLeish & Falk, of Chicago, for appellant; Cranston Spray, Robert S. Cushman and Thomas F. Hirschauer, all of Chicago, of counsel.
    Norman Crawford, of Chicago, for certain appellee.

      George Moncharsh, Milton Klein, David London and Abraham H. Maller, for intervener appellee; Amos J. Coffman and George E. Leonard, regional attorneys.
   Mr. Justice Scanlan

delivered the opinion of the court.

Thomas H. Fisher, plaintiff, filed a complaint seeking a preliminary and permanent injunction to recover possession of certain space on the tenth floor of the Michigan Square Building, 540 North Michigan avenue, Chicago, Illinois, from which he had been evicted by Michigan Square Building Corporation, defendant, the owner of the property. Chester Bowles, Administrator of the Office of Price Administration, intervened in the cause; the Emergency Price Control Act contains a provision.that the Administrator is specifically authorized to intervene in any suit or action wherein a party relies for ground of relief or defense upon the Emergency Price Control Act or any Regulation issued thereunder.

The case was tried by the chancellor and after evidence heard the following permanent injunction order was entered:

‘ ‘ This matter coming on to be heard upon the complaint of Thomas H. Fisher, the complaint of Chester Bowles, Administrator, Office of Price Administration, intervener, herein, and the answers of the defendants herein and the Court having examined the pleadings and heard the evidence submitted in this matter and the arguments of counsel and finding that it has jurisdiction of the subject matter herein and of the parties hereto, the Court finds:
“1. That defendant, Michigan Square Building Corporation, an Illinois corporation, is the -owner of the building known as the Michigan Square Building and located at 540 North Michigan Avenue, Chicago, Elinois, within the Chicago Defense-Rental Area.
“2. That the space within said building designated as the north end of the tenth floor of the Michigan Square Building was on March 1,1942 and at all times thereafter, to and including August 11, 1945 occupied by the plaintiff, Thomas H. Fisher, as housing accommodations, said tenant having expended approximately $10,000 in the alteration and re-modeling of such space for the purpose of making it available as and for housing accommodations, and as such housing accommodations is subject to the provisions of the Rent Regulation for Housing.
“3. That on August 11, 1945 the defendant unlawfully evicted .the plaintiff, Thomas H. Fisher, from possession of said housing accommodations without recourse to legal process and without the compliance with the provisions of the Rent Regulation for Housing, in violation of Section 6 thereof, and Section 4 of the Emergency Price Control Act of 1942, as amended.
“4. That the defendants, Illinois Properties, Inc., an Illinois corporation, William J. Shoeninger, James W. Pope and George Edler have no claim or interest in said premises and that this complaint should, therefore, be dismissed as to such defendants.
“It Is Therefore Ordered as follows:
“1. That the complaints herein be dismissed as to Illinois Properties, Inc., an Illinois corporation, William J. Shoeninger, James W. Pope and George Edler for want of equity.
“2. That the defendant, Michigan Square Building Corporation, its agents, servants, employees, attorneys and all other persons in active concert or participation with it-be, and they are hereby, permanently enjoined from directly or indirectly evicting, threatening or attempting to evict by exclusion from possession, elimination or decrease of essential services, or otherwise, the plaintiff, Thomas H. Fisher, tenant of the housing accommodations described as the north end of the tenth floor of the building known as the Michigan Square Building located at 540 North Michigan Avenue, Chicago, Illinois, in violation of or in any way contrary to the provisions of the Bent Regulation for Housing.
‘ ‘ 3. The defendant, Michigan Square Building Corporation, be and it is hereby ordered and directed forthwith to. restore the above-named Thomas H. Fisher, tenant, to possession of the housing accommodations formerly occupied by said tenant as heretofore described and to restore all the property of said Thomas H. F'isher to said premises which said defendant has removed therefrom.”

Defendant appeals from the above order.

The Michigan Square Building is a ten story building, eight stories of which were devoted to various commercial uses. The defendant, Michigan Square Building Corporation, is a wholly owned subsidiary of Time Incorporated, a New York corporation, publisher of the magazines Time, Life, Fortune and Architectural Forum. About March 1, 1945, defendant acquired the building from the Northwestern Mutual Life Insurance Company, the then owner of the fee, and Illinois Properties, Inc., a wholly owned subsidiary of the insurance company, which had a leasehold interest in the building. The building was purchased by defendant in order to obtain space for conducting the circulation operations of the Time magazines.

Plaintiff had occupied the premises in question for fifteen years at the time of the eviction. On September 22,1930, there was a ten year lease drawn between plaintiff and MacChesney-Rubens-Wolbach Syndicate, the then owners of the property, for “that portion of the tenth floor (second floor of penthouse) as shown on the blueprint attached hereto and marked Exhibit ‘A’, and by reference hereto made.a part hereof in Michigan Square . . .” The lease provided “That the Lessee will use and occupy said premises for--r studio - and for no other use or purpose . . .” Bule 19 of the Bules and Regulations attached to the lease reads: ‘ ‘ The premises leased shall not be used for lodging or sleeping . . .” On September 25, 1940, a new lease was executed between plaintiff and Michigan Square Building Corporation. The term was for three years, commencing November 1, 1940, and ending October 31, 1943; this lease also contained Rule 19. On October 13, 1943, a lease was executed between plaintiff and Illinois Properties, Inc., the then owner of the premises. Plaintiff’s premises were described as “the Premises, known as the studio space at the north end of the tenth floor, in Michigan Square . . . to be occupied and used by the Lessee for-studio-.” Paragraph “0” of the Rules and Regulations of this lease reads as follows: “Unless the Lessor gives advance written consent in each and every instance, the Lessee shall not install or operate any steam or internal combustion engine, boiler, machinery, refrigerating or heating device or air-conditioning apparatus in or about the premises, or carry on any mechanical business therein, or use the premises for lodging or sleeping purposes, or do any cooking therein, or use any illumination other tiian electric light, or use or permit to be brought into the Building any inflammable oils or fluids such as gasoline, kerosene, naphtha and benzine, or any explosives or other articles deemed extra hazardous to life; limb or property. ’ ’ The term commenced November 1,1943, and ended-October 31, 1945. This lease provided that ‘ ‘ The Lessee will occupy and use the premises during the term for the purpose above specified and none other . . . without the advance written consent of the Lessor . . it also provided that “the lessor shall have the right to cancel this lease at any time during the term hereof, for any reason whatsoever, by giving the lessee sixty (60) days’ previous written notice of its intention so to cancel.”

The primary question before the chancellor was, whether the premises involved were “housing accommodations” as defined by the Rent Regulation for Housing. If they were “housing accommodations,” then the provisions of the Bent Regulation are applicable and defendant did not have the right to evict plaintiff. At the conclusion of the evidence the chancellor delivered an opinion so comprehensive that we deem it advisable to cite it in toto:

. “decision of the court.
“The Court: As the Court views it the primary question in this case revolves around whether this is housing accommodation or whether this is business or commercial use. If it is housing accommodation then admittedly the Federal Bent Control Act applies. If it is business or commercial in any sense, then that act does not apply and the parties complainant here have no right of action.
“It appears clearly from this evidence that in 1930, September 22nd, the then owners of this building now known as the Michigan Square Building, entered into a lease with the complainant Fisher, and the lease demised the premises described in the lease as ‘That portion of the tenth floor, second floor of penthouse, as shown on the blueprint attached hereto marked Exhibit A and by reference made a part hereof. ’
“So that in the description there of the premises, the demised premises, it is referred to as a penthouse. And in the second clause with respect to restricted use it provides ‘ That the lessee shall use and occupy said premises for studio and for no other purpose.’
“It appears clearly here that this blueprint attached to the lease showed a plan of remodeling of the premises, the demised premises. The premises as originally built was left unused- after completion because the landlord had no particular use to make of this section of the premises; as Mr. Wolbach testified he didn’t know whether they were going to use it for purely storage purposes or what purpose they could use it for. They had apparently no idea of using it as office space because it was impracticable, since the elevator only went up to the eighth floor, and this was on the tenth floor. And so there was no intention originally to adapt the particular demised premises to any office space such as was found in the other floors of the building except the ground floor, which was adapted to stores and shops and so on.
“The plaintiff came along here with a plan of remodeling the premises in question, and for that purpose submitted sketches showing the intended plan of remodeling or alterations. Mr. Wolbach admitted he received such or had known of such, he had left it entirely to Holabird & Root, his architects, to approve of the type of remodeling proposed.
“It appears clearly here that the remodeling resulted in the installation of a kitchen, a gas range, refrigerator, kitchen cabinets, — the type of improvement that could be expected and found in the average kitchen of any living quarters.
“A bathroom was also provided for, including a tub and shower and toilet cabinet. There was then a large room referred to by some as a studio room and by the complainant Fisher as a living room. The dimensions were shown here to be quite considerable for the living room or studio room, wherein the south wall of this space was entirely mirrored, including the .doors. I believe there were two doors that led to storing of clothing space or clothes closets, and behind which there was accommodation for storaging or hanging or keeping of personal wearing apparel.
“There was involved in these remodeling plans a method of drawing curtains between the so-called studio room or living room and an alcove in which was installed two Simmons beds. Some referred to them as studio couches but the architect who designed the type ' and the architect who provided for its installation and method of fastening to the wall so that it would not slide out when in use, provided a method of hooking it on to the back wall that was built for this type of bed.
c i There were two such backs built for these so-called studio couches, or as the complainant referred to them as Simmons beds, mattress and springs, pillows and other coverings. These curtains could divide this so-called sleeping space from the studio room or living room.
“In addition to that there was a fireplace built in, which had not been there before, and the architect planned for the installation of a chimney or the connection of the fireplace with the opening that could be used as a chimney, which was used for additional heat required in the winter, because of the lowering of the heat pressure during the weekend when the shops and offices in the rest of the building were closed.
“It appears here clearly from this evidence and without contradiction that the plaintiff has spent over $10,000 in the remodeling, original planning and remodeling of this space, the cost of which was indicated clearly to the then owners. And in the course of the work done apparently the owners had received some bills for extra carpenter work and transmitted to the plaintiff by the then owners and the plaintiff paid them.
“It appears here clearly too that the original lease was for ten years, and subsequently an exact type of lease or similar form of lease was entered into in 1940, for a period of three years. And' in 1943 a similar lease, I think for two years. Is that correct?
“Mr. Spray [counsel for defendant]: Yes, sir.
“The Court: If I happen to be mistaken in some particular the counsel might correct me, but I think those are the facts.
“It appears that throughout the period of the first lease they had a maid, a colored maid, who did the cooking and who took care of this space, whether you call it living space, living quarters or studio. She prepared the meals for the complainant and his wife and removed the garbage daily. There was delivery of milk and food products to the space in question by elevator service. And after all of these alterations and remodeling had been completed it was found objectionable by the management of the building to have small articles delivered to that space or apartment, which required the elevator to go to the eighth floor, when there otherwise might be no need for it, hence a rear entrance directly to the kitchen was installed, a metal staircase, so that these deliveries could be made without the necessity of having the elevator go up for each small article.
“The elevator operator who was in charge of that building from seven o’clock in the evening until seven o’clock in the morning — those hours, I think, are correct — had occasion to observe the plaintiff and his wife come and go, day by day or every other day or during the week. He observed them coming in at late hours to occupy that space. He observed that they had company come there from time to time, they received guests and guests stayed at late hours, — they left at late hours. He knew that food was being brought up there and food was delivered. He knew that the plaintiff and his wife had not left the building during his hours of service and indicated that they remained there over night every night, except during a period of the summer when it appears from this evidence, and undenied, this plaintiff and his wife occupied a home in Winnetka, and that during the period in the summer months when they occupied the house in Winnetka they ■ occasionally used this studio space in the building in question to remain over night or to use it for incidental reasons but not to stay there as regularly as during the winter.
‘ ‘ That the plaintiff and his wife occupied that space for living quarters there can be no question. They slept there, lived there, had their meals there, meals were prepared and they had a servant there; that the building knew that they were using that for living quarters there can be no question, from all of this evidence.
“The building had access to this space by use of a pass key, and on some occasions the manager of the building and the superintendent made routine inspection, as they call it. There was nothing to stop them from going through the entire apartment and there was nothing to stop them from knowing what use the premises were adapted for. As a matter of fact, one of the managers of the building admitted he saw these beds; he called them couches, studio couches. But as against his impression of what they were the architect who provided for them and installed them, he knew better than the mere observation or impression that the superintendent of the building had, that they were beds, they were made up for use as beds and they were actually occupied as beds every night when the lessees were in the city during the winter, except for the summer months.
“There was one occasion when the manager of the building went into the kitchen. He said he saw some canned goods there, he didn’t know what brand but he did see food there. They saw clothing, wearing apparel, in the places provided for the keeping of the wearing apparel of the complainant and his wife. But in addition to that he saw some costumes.
“Now, it is claimed here and argued that ‘studio’ has a definite meaning, according to the dictionaries, the standard dictionaries. It may have a defined meaning in the dictionaries but there is nothing to prevent parties from using the same term to mean something else. As a matter of fact the Court can almost take judicial notice, because it is so universally known, that there is such a thing as studio apartments and so advertised daily and so generally recognized that it is an accepted fact. Apartments are so built these days that they are called ‘studio apartments.’ “Now, what does ‘studio’ mean as used in this lease or in these leases? Certainly, if the parties by their conduct, by their understanding, have placed an interpretation upon this term ‘studio’ then the Court will accept that interpretation which has been placed upon it by the conduct of the parties.
“It is said that it was understood by the owners, successive owners, that this would be used as a studio and intended to be. used as a studio, and throughout the entire leasing there was no other intention except that it be used as a studio, and the definition in the dictionary is offered which means a use for some educational, dramatic, artistic purpose, such as music, dancing and the like.
“It is a peculiar coincidence here in this case that if that was the intended use of the premises to be used as a dancing studio, because Ruth Page was known as a professional dancer, the wife of this complainant, and it was expected and intended that that space be used for giving dancing lessons or to he employed as a dancing studio, that the management should have taken occasion to investigate a complaint made because of the use of a piano and the making of some noise that interfered with the tenants below, as a result of some dancing and the playing of a piano. And on that one occasion referred to and testified to here the management representative went up there, looked in, and he heard the piano playing and he thought he saw somebody in costume dancing.
“Why investigate that kind of a complaint if they knew that was the purpose of the use of the studio? If they knew that that was the use that was to be made of that space, why investigate it? They knew that there was to be a piano, would have to be a piano used or some kind of music used in connection with the dancing, I assume, to keep the proper rhythm. The fair inference is that if that was to he used as living quarters, why all the noise that the tenants downstairs were complaining about?
“The conduct of the lessors originally and the knowledge of the management of the building under the subsequent lessors would clearly show that they not only knew, that the premises were used for living quarters, but by their conduct have placed a construction upon the use of the term in the lease, ‘ studio ’, as including living studio, living quarters. This Court cannot judicially say that the ‘ studio ’ may not include living quarters. If it does, by the conduct and acquiescence and understanding of the parties here constitute a construction that would include living quarters then the rent regulation act would apply here, even though the rest of the building was completely used for commercial purposes. There is nothing to prevent any building from appropriating any part of its building for living quarters, if it so chooses.
“Now, has a forfeiture been sought here by any of these lessors, original or subsequent, on the ground of a violation of the terms of the lease? Halve they given notice here to the lessee at any time of the right and desire to forfeit this tenancy because of a breach of the covenant in the lease against the use of the premises other than that designated? No, there is no such notice. The notice that was actually given dated January 29th was, ‘You are hereby notified that we have elected to exercise our right as lessor in such lease to terminate your lease, pursuant to the provisions of Section 18 thereof. Accordingly, your lease is hereby terminated. ’
“There is a rule well settled in law that where you express specifically your reason for forfeiture and give notice of it, you may not thereafter include in such right to forfeiture some other reason which you haven’t included in your notice. ‘Expressio máus est exclusio alterius’, expression of the one excludes all others.
“You definitely took the position you were forfeiting or sought to forfeit on the ground provided or for the reasons provided in Section 18, and he agrees: ‘It is further understood and agreed the lessor shall have the right to cancel this lease at any time during the term hereof for any reason whatsoever, by giving to the lessee 60 days’ previous written notice of its intention to so cancel. ’
“The only reason given is 60 days, no other reason given. It is the right to cancel on notice, 60 days’ notice, at any time. It was not because of any breach and no notice is given here of any breach of the covenants of the lease.
“Now, this 60-day clause could be enforced except for the fact that the rent control act doesn’t permit it without a certificate of consent from the Price Bent Control Administrator. No such application for consent was made and no such certificate of right was granted and it was treated entirely upon the basis that the rent control act did not apply, this being commercial use and not housing accommodation.
“If this Court concludes, as it does, that it is housing accommodation, then the rent control act does apply and there is no right of the lessor to cancel on 60 days’ notice.
“In view of what the Court has said there will be a mandatory injunction issued here restoring the complainant to the possession of the premises in question. You may prepare a decree.”

The following are the grounds upon which defendant bases its contention that the permanent injunction order should be reversed:

“I.
“The demised premises involved in this case are not subject to the OPA Bent Regulation for Housing.
“(a) The application of the OPA Bent Regulation for Housing is limited to premises rented or offered for rent for living or dwelling purposes.
“(b) The premises here involved are located in a commercial building and were leased under a commercial form of lease for studio purposes with express provisions which prohibit the use of the premises for living or dwelling purposes.
“II.
“The lease of October 13, 1943 was not modified either expressly or by implication, nor was the prohibition against the use of the demised premises for living purposes waived.
“(a) There can be no implied modification of a lease or waiver of a lessor’s rights thereunder by lessor’s conduct unless it unequivocally appears that he has clearly intended to relinquish his right to insist upon a strict compliance with the terms of the lease.
“(b) Even where the lessor’s knowledge and consent has been held to constitute an implied waiver of a continuing breach it does not operate to give the lessee a vested right to continue the violation or result in a modification or amendment of the lease.
“in.
“After the termination of the lease defendant had the right to retake possession of the demised premises as it did.”

Defendant argues, at some length, that the premises are located in a commercial building and were leased under a commercial form of lease for studio purposes with express provisions which prohibit the use of the premises for “lodging or sleeping” purposes, and that the trial court erred in modifying the plain language of the lease by holding that the word “studio” has not a definite meaning and that the parties in the instant case had placed a construction upon the use of the word “studio” as including living quarters. In our view of this appeal it is unnecessary to pass upon the construction that should be given the lease tested by its verbiage alone. The chancellor held: “That the plaintiff and his wife occupied that space for living quarters there can be no question. They slept there, lived there, had their meals there, meals were prepared and they had a servant there; that the building knew that they were using that for living quarters there can be no question, from all of this evidence.” That the great weight of the evidence sustains this finding of the chancellor cannot be reasonably questioned. In addition to the facts stated in the chancellor’s opinion we will cite a few additional facts: Prior to the time of the execution of the 1930 ten year lease, two-thirds, at least, of the space in the building was unoccupied. The great depression was on. The elevator service ended at the eighth floor. The tenth floor was “waste space” and had no value save as a possible future storage space for the building. The owners “were desperately anxious to get any revenue from it they could. The space had no commercial value whatsoever.” The evidence shows that the said lease was executed upon the understanding that plaintiff would be permitted to remodel and decorate the space at his own expense so that it could be used for dwelling purposes. The architect employed by plaintiff drew up plans and specifications for remodeling the space so as to make it a dwelling unit and the plans and specifications were submitted to the then owners, and thereafter the space was altered and remodeled, at an expense to plaintiff of approximately $10,000, into what constituted a place for living and dwelling purposes. During the fifteen years that plaintiff occupied the premises it was the only place used' by him and his wife as a home save that in the summer months they occupied a place in Winnetka for a summer home. Visitors and guests came to the premises, and plaintiff and his wife gave dinner parties there. During the entire period they had a colored maid, who cooked the meals. Food and other articles were delivered to the place daily during all of the period. Some time after plaintiff took possession of the premises he was granted permission to build, at Ms own expense, a special metal staircase, which led directly to the kitchen, and thereafter all of the food and other articles were delivered to the kitchen. He was also allowed to build, at his own expense, a fireplace, because the landlord, during the depression, in order to save fuel, allowed the heat to go down on weekends. Plaintiff and his wife in Voting and in the matter of tax payments gave the premises as their home. Defendant argues that plaintiff’s wife was a well known professional dancer and that it had a right to assume and did assume that the premises were used solely for the purposes of a studio wherein she taught dancing, but the evidence conclusively shows that plaintiff’s wife never used the premises for any such purpose and that during the fifteen years’ period she had a professional studio elsewhere. In Ms opinion the chancellor exploded the claim of defendant that the owners of the building assumed that the premises were being used only as a dancing studio by plaintiff’s wife. The argument of defendant that neither it nor any of the former landlords knew that Fisher was using the premises for dwelling purposes is absurd.

Defendant contends that the premises are not subject to the OPA Rent Regulation for Housing and therefore it had the right to cancel the lease in accordance with its terms. Defendant argues that the Emergency Price Control Act of 1942 limits its scope to “housing accommodations”; that the instant lease, a “bona fide contractual arrangement between the parties permits the tenant to occupy the space for office, store, loft, manufacturing, amusement or any other than living or dwelling purposes,” and that therefore “the OPA Rent Regulation does not apply and the rights of the parties are governed by the lease which they execute”; that the premises “are located in a commercial building and were leased under a commercial form of lease for studio purposes with express provisions which prohibit use of the premises for living or dwelling purposes,” “and consequently the premises were clearly not within the scope and effect of the OPA Bent Regulation for Housing.” In a short, excellent brief filed by the Administrator, he makes the following forceful statement: “The use of a commercial form lease does not disprove the leasing of the premises for living quarters. It is a common practice for lessors to use but one form of lease for all tenants in a building. While the Administrator does not contend that the use of this form of lease in this case was a subterfuge, nevertheless, to decide this issue on the basis of the form of-the lease would open the door to future evasive practices by landlords. Indeed, it would become a simple matter for landlords to evade the regulation by the use of commercial form lease.” Upon the oral argument counsel for the Administrator argued that it would be a serious blow to the “Bent Begulation for Housing” if the instant contention of defendant were sustained; that it is the theory of the Grovernment that the rent regulations are applicable where the premises were rented or used for dwelling purposes, and in his brief states that “the primary question in this case is whether the premises involved are ‘housing accommodations’ as defined by the Bent Begulation for Housing. If the premises are housing accommodations, then the provisions of the Begulation are applicable, and the defendant could not evict the plaintiff Fisher.” The Administrator further contends that the fact that the premises were situated in a commercial building does not negative the renting of the premises for living quarters; that “particularly is this true in the case at bar, where it appears from the evidence that the space was never used for commercial purposes and was, in fact, located two floors higher than the elevator could go. As the Chancellor found, ‘there is nothing to prevent any building from appropriating any part of its building for living quarters, if it so chooses.’ ” (Italics ours.) We hold' that the lease itself does not determine the question before us. But defendant argues that there can be no implied modification of a lease or waiver of a lessor’s rights thereunder by lessor’s conduct unless it unequivocally appears that he had clearly intended to relinquish his right to insist upon a strict compliance with the terms of the lease. The chancellor saw and heard the witnesses, and we agree with his finding that the original lessor, the subsequent lessors, and plaintiff, all contemplated that the premises would be used for living quarters. A fortiori, that all of the lessors acquiesced in the use of the premises for living quarters clearly appears flora the evidence. As the chancellor noted in his opinion, defendant did not, in the notice given to the plaintiff, rely upon the ground of any violation of the terms of the lease, and that it relied entirely, in the notice, upon its alleged right to terminate the lease pursuant to the provisions of section 18,-which provides: “It is further understood and agreed that the Lessor shall have the right to cancel this lease at any time during the term hereof, for any reason whatsoever, by giving to the Lessee sixty (60) days’ previous written notice of its intention so to cancel.” In view of the fact that plaintiff spent over $10,000 in order to improve the premises and to make a home for himself, and that he had a home there for fifteen years, it would be highly inequitable to determine the instant appeal solely upon the verbiage of the several leases. It is a settled principle of law that rights arising under sealed instruments may be waived by parol, and the instant case is clearly one where that principle should be enforced. Defendant concedes that it purchased the building in order to obtain space for conducting the circulation operations of the Time magazines, and it appears that as soon as plaintiff was evicted the possession of his premises was turned over to Time Incorporated, of which defendant is a subsidiary, and we think it is a reasonable assumption from the evidence that it was decided to pay no attention to the rights of plaintiff in the premises and to evict him at night and while he was living in his country home. It was certainly harsh treatment toward a man who had lived in the premises for fifteen years and had spent thousands of dollars in improving it, and who had notified the agent of the building in January, 1945, of his rights under the Emergency Price Control Act. But defendant contends that when it bought the building the lease of October 13, 1943, was in force and that it had a .right to rely upon the terms of the lease; that “in the instant case there was a failure to show knowledge on the part of the lessor [defendant] that plaintiff Fisher was using the premises for living or dwelling purposes in violation of the terms of the lease. ’ ’

“But, although other courts have held the doctrine of notice by possession as subject to being materially modified by circumstances, this court has uniformly held that actual occupancy is equal to the record of the deed or other instrument under which the occupant claims, and a purchaser is bound to inquire by what right or title he holds. The purchaser takes the premises subject to that title or interest, whatever it may be. Dyer v. Martin, 4 Scam. 147; Brown v. Gaffney, 28 Ill. 150; Doyle v. Teas, 4 Scam. 202; Williams v. Brown et al., 14 Ill. 201; Davis v. Hopkins, 15 id. 519; Prettyman v. Wilkey, 19 id. 241; Truesdale v. Ford, 37 id. 210; Lumbard v. Abbey, 73 id. 178; Whittaker v. Miller, 83 id. 386; Strong et al. v. Shea, id. 575.” (Coari v. Olsen, 91 Ill. 273, 280.)

We have carefully considered defendant’s labored argument in support of its contention that it did not know that plaintiff was using the premises for living or dwelling purposes, and we find ourselves in full accord with the finding of the chancellor that it had knowledge of the situation. It had a pass key to all of the places of the tenants in the building and the simplest investigation would have disclosed the obvious situation as to the premises occupied by plaintiff. Had it consulted Hogán & Farwell, Inc., who were the agents of the owners of the building from 1940 to 1945, it would have learned that Fisher sent it a letter, on January 17, 1945, asserting his rights to continue his occupancy of the premises under the Federal Act and Bent Begulation. A simple inquiry of Fisher, a prominent lawyer at the Chicago bar, would have disclosed the situation. Wendell B. Ward, the vice president of Time Incorporated and also vice president of defendant corporation, testified for the latter. He stated that he took an active part in the negotiations for the purchase of the Michigan Square Building and that he made a personal inspection of all of the premises prior to the signing of the contract, but that he did not examine the premises above the eighth floor; that he also examined the existing leases. The following then occurred: “Q. [by the court]: And discussed all of them with the parties in interest? A. That is right. That is a correct statement.” That was a proper procedure for defendant to follow but it did not follow it as to plaintiff. He further testified that after the eviction Time Incorporated was given possession of the premises. William J. Schoeninger, defendant’s manager of the building, testified that as said manager he had the right to enter the premises; that he made a routine inspection of plaintiff’s premises in March or April, 1945; that between March 1 and June 1 he made a routine inspection of the premises; that prior to August 11 he inspected the premises and that he was present in the premises at the time of the eviction on August 11. 'This witness attempted to hide the real situation that he found in the premises upon these inspections. To illustrate: He stated that he saw there a couple of studio couches, when the evidence shows beyond all reasonable doubt that there were two Simmons beds in the premises. Despite his effort to support the opinion he expressed, that it looked more like a studio than a home, his evidence when analyzed supports plaintiff’s claim as to the character of the premises. This witness testified that he was in the premises just prior to August 11, and he superintended the eviction.

It is plain from the record that plaintiff had no trouble in his occupancy of the premises as a home until defendant took possession of the building, and that his trouble commenced when it was found that Time Incorporated needed all the space in the building from the fourth floor to the tenth, inclusive.

After a careful consideration of this appeal, we have reached the conclusion that the permanent injunction order of the Circuit court of Cook county should be and it is affirmed.

Permanent injunction order affirmed.

Friend, P. J., and Sullivan, J., concur.