text:
    James A. Bingham v. William C. Browning.
    1. Unliquidated Demands — Defined. —Where there is & bona fide dispute as to the amount due from one party to another the matter is to be considered as an unliquidated demand.
    2. Same — When the Acceptance of a Less Sum than is Claimed Discharges the Debt. — Where there is a dispute as to the amount due, and the debtor makes an offer of a certain sum to settle the claim and attaches to his offer the condition that the same, if taken at all, must be received and accepted in full satisfaction of the entire claim in dispute, and the party receives the money, he takes it subject to the condition attached to the offer, and it will operate as an accord and satisfaction; for the mere act of accepting the money is an agreement to take it on the conditions upon which it was offered.
    3. Liquidated Demands— When the Acceptance of a Less Sum than is Due Does Not Discharge the Debt. — Where a demand is liquidated and liability is not in good faith disputed, the acceptance of a less sum than that due to the creditor does not of itself discharge the debt, even where a receipt in full is given, for the element of a consideration is lacking and the obligation of the debtor to pay the entire debt is not satisfied. »
    Assumpsit. — Attachment in aid. Appeal from the Circuit Court of Cook County; the Hon. Edmund W. Bukke, Judge, presiding. Heard in this court at the October term, 1900.
    Affirmed.
    Opinion filed October 10, 1901.
    Statement. — The suit in which the judgment rendered was appealed from was in attachment by appellant against appellee. The declaration is in assumpsit and contains a special count and the common money counts. The defendant filed a number of pleas on which issue was taken, and the cause was submitted for trial to the court without a jury. The court found the issues for the defendant and rendered judgment accordingly. The parties made the following stipulation, which was read in evidence on the trial:
    “It is stipulated and agreed by and between the parties to the above entitled cause, by their respective attorneys, that on the trial of said cause the following facts shall be taken as being true for the purposes of this case, without any evidence being produced thereof, to wit:
    “ That on and prior to July 12, 1898, the firm of Henry W. King & Company was doing business in the city of Chicago, consisting of eight or nine partners; that the plaintiff and defendant were members of the said firm; that E. W. Dewey came to Chicago in June, 1898, as the agent of the defendant; that as the agent of the defendant, the said Dewey asked the plaintiff to submit to the defendant a proposition upon which the ydaintiff would sell out to the defendant all his interest in the said copartnership; that thereupon, about the middle of June, 1898, the said Bingham submitted to said Dewey a proposition which was unsigned, and was as follows:
    ‘Chicago, June 11, 1898.
    Mr. Dewey:

      Dear Sir: In compliance with your suggestion, I submit the following proposition:
    Will settle July 1st for $75,000 — my original capital— and waive all interest in good will and fixtures of Browning, King & Company, and Henry W. King & Company also, in the interest and y>rofits for this year. Will stay until January 1st, if wanted at a salary of $1,000 per month.
    $75,000. Original capital.
    28,410.- My note January 1st, 1898.
    $46,590. Due me then.
    11,250. Good will.
    5,000. Fixtures.
    $16,250.
    1,634. Interest due July 1st.
    $17,834.
    $64,474. Total.

      Due me without profits for this year:
    $16,250. Good will. And fixtures in Browning, King & Company, and Henry W. King & Company, as per our article of agreement.
    1,634. Interest to July 1st.
    10,526. Balance on my note, after credit for good will, interest and fixtures accounts, as above.
    "$28,410.
    £ In lieu of the credit for balance on my note — good will and fixtures. Interest on capital (as above) with the balance of capital to my credit of $46,590, would reinstate my original capital of $75,000. And in consideration of my long connection with this business, and poor prospect of ■ being able to continue in the business longer, also for the past few years not having enough profit from it to pay my living expenses, I feel that it would not be unfair to ask that the original amount I put in the business be returned; therefore 1 propose that if you pay me $75,000 July 1,1898, or within sixty days of that time, I will relinquish all my interest in the business of Browning, King & Company, and Henry W. King & Company, and waive all interest in the good will, fixtures and profits of the business for the year-1898, and retire from the concern — or, if wanted, will remain until January 1, 1899, at a salary of $1,000 per month.’
    “That upon receiving the same the said Dewey, without any action thereon, took the same to New York to submit the matters to said defendant. That afterward, on July 12, 1898, on said Dewey’s return to Chicago from New York, after seeing said defendant, the said Dewey, acting for and on behalf of said defendant, presented to the plaintiff at Chicago, in said county, a paper in writing, which is below herein set forth, and on behalf of defendant proposed to plaintiff that the plaintiff and defendant make and enter into that agreement, to which the plaintiff thereupon assented; and the said plaintiff, and the defendant, by said Dewey, his attorney in fact, on the day and year last mentioned, at Chicago aforesaid, executed and delivered the said agreement in duplicate, in form, as so proposed by said Dewey, which agreement was in the words and figures following, that is to say :
    ‘Agreement made this first day of July, A. D. 1898, between James A. Bingham, of Chicago, party of the first part, and William C. Browning, of New York City, party of the second part.

      ‘ The parties hereto, each in consideration of the covenants and agreements of the other hereinafter expressed, do mutually covenant and agree to and with one another as follows, that is to say:
    ‘ First: The first party in consideration of the sum of seventy-five thousand dollars ($75,000), payable as hereinafter stated, and of the release, cancellation and discharge of all indebtedness of the first party to the copartnership of Browning, King & Company, whether in the shape of promissory notes, or other obligations, or open book accounts, hereby sells, assigns, transfers and conveys unto the said second party all right, title and interest of the first party in and to the capital stock of said copartnership of Browning, King & Company, and Henry W. King & Company, and all interest in the fixtures, furniture, good will and any and all assets and property of every description whatever, belonging to and owned by said copartnership. and all the interest of the first party in and under the certain articles of copartnership between the members of said copartnership of date January 1, 1895, and in and to any and all assets and property therein mentioned.
    ‘ Second: Said second party agrees to pay said first party the sum of seventy-five thousand dollars in the manner following, to wit: Ten thousand dollars ($10,000) in cash, the receipt whereof is hereby acknowledged; and sixty-five thousand dollars ($65,000), thirty (30) days after demand therefor by first party, with interest thereon from July 1, 1898, at the rate of five per centum (5^) per annum, said, sixtv-five thousand dollar’s ($65,000) to be payable at all events on or before July 1, 1899. Said second party also undertakes and agrees to procure, cancel and deliver to the said first party any promissory note or other written obligation of said first party to said copartnership of Browning, King & Company, and Henry W. King & Company, and also to deliver to said first party a receipt and release in full for any and all obligations or any amount on open book account due from said first party to the said co-partnership.
    6 Third. The first party agrees that he will not for a period of three (3) years from July 1, 1898, engage in the business of selling at retail clothing, furnishing goods, hats and caps in competition with the business of said copartnership of Browning, King & Company, and Henry W. King & Company, at any place where the business of said copartnership was established on the first day of July, 1898, to wit, at either or any of the following cities: Chicago, Milwaukee, St. Paul, Minneapolis, Omaha, Kansas City, St. Louis, Cincinnati, Cleveland, Philadelphia, New York, Brooklyn, Providence, Boston.
    1 Fourth. Said James A. Bingham hereby expressly agrees that the business of said copartnership of Browning, King & Company, and Henry W. King & Company, may be continued under said names in accordance with the articles of copartnership of date January 1, 1895, until December 31, 1898, to the same extent as though the first party had not hereby sold his interest therein (except, as between the parties to said articles), and that no publication of dissolution of said copartnership shall be had prior to January 1, 1899,'provided, however, and the second party expressly undertakes and agrees that he will indemnify and save the first party harmless from any and ail obligations of said copartnership of Browning, King & Company, and Henry W. King & Company, whether incurred prior or subsequent to July 1, 1898.
    ‘ Fifth. The first party further agrees that at any time hereafter and from time to time upon request of the second party he will execute such further contracts, instruments or conveyances as second party may require for more effectually transferring or conveying any portion or all of the copartnership property herein referred to.
    1 In witness whereof, the parties hereto have hereunto, and to a duplicate hereof, set their hands and seals the day and year first above written.
    James A. Bingham, [Seal]
    Ym. C. Browning, [Seal]
    By E. W. Dewey,
    Attorney in Fact.’
    “And at the same time with the execution of said agreement, the said Dewey on behalf of defendant on said July 12, 1898, paid to plaintiff the sum of $10,000, the receipt of which by the plaintiff is acknowledged in said agreement.
    “ That on July 7, 1898, and on clivers days theretofore, and after the time when said Bingham presented said statement to said Dewey about the middle of June, 1898, the said Bingham drew from the moneys of the copartnership divers sums of money, amounting in the aggregate to the sum of two thousand dollars, which sums wére at first carried by the bookkeeper on tickets, and the said aggregate amount of which, viz., $2,000, was on said July 7, 1898, charged to plaintiff upon the books of account of said firm, and which amount was never repaid the plaintiff, and that the same stood and remained to his debit on open book account upon the books of said firm thence until and on the 12th day of July, 1898, when the said written agreement was signed and delivered as aforesaid. There is no admission in this stipulation (other than is herein contained) as to the exact days upon which all the sums making up the said total of $2,000 were drawn out by the plaintiff. Each party is left to offer such proof upon that point as he may see fit.
    “That said plaintiff was indebted to said firm at the time he submitted said proposition to said Dewey and thence until and at the time of making and delivering said agreement on July 12, 1898, upon certain promissory note or notes theretofore given by him to said firm.
    “ That after the execution of said contract sued upon in this action, and before December 1,1898, the said defendant became the owner of all the assets of the said copartnership of Henry W. King & Company, and so remained up to the time of the institution of this suit.
    “ That the said plaintiff has never repaid to the copartnership of Henry W. King & Company, or the defendant, or any one else, the said sum of two thousand dollars ($2,000) obtained by him on July 7, 1898.
    “ The foregoing stipulation is upon the condition and agreement that either party may offer in evidence the foregoing stipulation or any part thereof, and that upon its being so offered that the foregoing evidence and each and every part thereof shall remain and be and is subject to objections by the other party to its competency, materiality or relevancy precisely as if proof of such respective facts, instead of the stipulation, were so offered upon the trial; and that either party is at liberty upon the trial to introduce other evidence as he may be advised.
    Peck, Miller & Starr,
    Attorneys for Plaintiff.
    Bentley & Burling,
    Attorneys for Defendant.'5
    The plaintiff put in evidence the following letters :
    “ New York, Nov. 30, 1898.
    My Dear Mr. Bingham :
    I am in receipt of your favor of November 28th. If it would be just as convenient to you and you could use it, I would send you the balance immediately; if you can use it so that it is worth telegraphing for, do so; if not, drop me a line and let me know. Very truly yours,
    William C. Browning.
    James A. Bingham, Union League Club, Chicago, Ill.”

      “New York, Dec. 15, 1898.
    My Dear Mr. Bingham :
    Will you please upon receipt of this send me a memorandum. of your account as you figure it and the balance I shall have to send you in a check to close up the matter January 1, 1899. I do this to check back my figures.
    Very truly yours,
    William C. Browning.”
    “December 24th, 1898.
    William C. Browning, Esq.
    Dear Sir : On my return to the city yesterday I received your favor of November 30th and December 15th. In reply to the first I will say that I have made arrangements to invest my money on January 1st, and therefore do not wish it before that time. 1 don’t quite understand your second letter in which you ask for a memorandum of the amount due me, as it seems simple enough. The obligation of seventy-five thousand dollars reduced by cash payment of ten thousand dollars, would leave sixty-five thousand dollars. Five per cent interest on this amount for six months, sixteen hundred and twenty-five dollars, would leave a total due me of sixty-six thousand six 'hundred and twenty-five dollars, -which I think must be correct.
    Yours truly,
    James A. Bingham.”
    “New York, December 27th, 1898.
    Mr. James A. Bingham, care Union League Club, Chicago, Ill.
    Dear Sir: I have your letter of December 24th. I have also a statement of your account from Mr. Frank King; he says that on the 7th of July you drew two thousand dollars, which of course wants to be deducted from the payment, and now as your settlement was made under date of July 1st, I will forward the money to Mr. Frank King so that it will reach you Monday, January 2d, and if you will please call upon him he will hand you the same.
    Very truly yours,
    William C. Browning. ”
    “December 29, 1898.
    Mr. W. C. Browning:
    Dear Sir: Yours of December 27th received. I am surprised that you wish to deduct two thousand dollars from the amount that you pay me, as it was understood between Mr. Dewey and myself that my personal account was not to be taken into consideration in the settlement when he was here in June. He asked me to submit a proposition upon which I would settle with you and retire from the concern on the 1st of July. I told him that if I was to retain an interest in the business in the future, I would settle on the same basis the balance of you did, but if not I should want the original amount I put into the business when we made up the last partnership, returned to me, which would only give me a living for my services for the past four years, which I felt I was entitled to. He returned there and submitted his proposition to you and returned here about July 1st. He did not accept the proposition and make a settlement with me until July 12th when a contract was signed, and I did not draw a dollar from the concern after that time. The two thousand dollars referred to in vour letter was a ticket; Mr. Benson was holding different amounts I had drawn previous to the time it was charged to me, and Frank King says he had told Mr. Dewey about this ticket at the time he made the settlement, and to me it does not seem fair or right to ask me to deduct this amount now. • Tours truly,
    James A. Bingham.”
    Bingham, the plaintiff, having testified on his own behalf that he remembered writing the above letter of date December 29, 1898, was questioned and answered as follows:
    Q„ “ What followed the writing by you of that letter ? ” A. “ What followed % ”
    Q. “Yes; you got some money, some payments, did you ? ” A. “ Yes, sir; 1 settled with the— I accepted the money that was sent.”
    Plaintiff then testified that before accepting the money he consulted his attorney in regard to giving a receipt for it, and then went to Frank King and told him that he, witness, thought it was unfair, and objected to receiving that amount, and told him that he would like to receipt for the amount of money he received, and King told him that he, King, could not do that; that he could not pay the money without taking a receipt in full, and that as he, witness, had to use the money at that time, he accepted and save the receipt. He says that this occurred January 2, 1899. Frank King, who had beeñ a partner in the firm of Henry King & Company until July, 1898, was, at the time of the conversation testified to by plaintiff, acting as Mr. Browning’s representative or agent in Chicago, Browning being a resident of New York City. Bingham further testified that he received from King $64,585.35; that what he claimed was $66,625, as mentioned in his letter of December 24, 1898; that the $2,000 was deducted from what he claimed; that he drew nothing from the firm of Hénry W. King & Company after July 12,1898. On cross-examination the witness admitted signing a receipt shown him, and testified that he received a New York draft for the money receipted for; that he got no premium on the draft, and didn’t ‘ state to Frank King that he had, and that he had never claimed that he had drawn all of the $2,000 prior to July 1, 1898, but had claimed that bethought part of it had been drawn out prior to that date.
    The foregoing .was substantially all the plaintiff’s evidence in chief. The defendant put in evidence the receipt, the signature to which had been admitted by the plaintiff. The receipt is as fqllows:
    “ Chicago, December 31, 1898.
    Received of Henry W. King & Company, and of William C. Browning, individually, the sum of ($64,585.35), sixty-d'our thousand five hundred and eighty-five and 35-100 dollars, being in full payment of all claims of any name or nature against the said firm of Henry W. King '& Company, and Browning, King & Company, and William C. Browning, individually.
    James A. Bingham.”
    The defendant called as a witness E. W. Dewey, formerly partner in the firm of Henry W. King & Co., whose testimony is merely that about the middle of June, 1898, he came to Chicago as Mr.' Browning’s agent; that after he received Bingham’s proposition, he went to New York, returned to Chicago June 30th, left Chicago again July 1st, returned July 7th, and had the contract contained in the stipulation prepared by an attorney.
    Frank King, called by defendant, testified that in December, 1898, he was acting as Mr.' Browning’s representative in Chicago; that he had three conversations with plaintiff at witness’ office, about his claim against Mr. Browning; that the first time he, plaintiff, showed witness a statement of Browning and said it was not right; that he should receive $2,000 more; that that amount had been drawn out before July 1st; when witness told him that he did not know without looking up the books; that in a day or two after, Bingham again called on witness, with Mr. Benson, cashier of Henry W. King & Co., to find the dates of the items composing the $2,000; that witness got the check books stubs, which Benson examined, and showed that the checks were drawn after July 1st. The following then occurred in this witness’ examination:
    “ Q. And what did Mr. Bingham say then % A, Why, he was surprised, that is all.
    Mr. Miller: I object to that.
    The Court: Strike that out.
    Witness: That is what he said.”
    Witness further testified that the next time plaintiff came in, he said he had received a letter from Mr. Browning and wanted to know if witness had received a check from him, and witness told him he had, and offered it to him, and he declined to accept it, saying it was not right, and when witness asked him to sign the receipt he refused, when witness told him he did not know what his contract with Browning was, and that if he, plaintiff, desired, he would write to Browning; that plaintiff came in the next day, witness thinks in the morning, and said he would accept the check, and witness handed him the receipt and he signed it and said it made no difference whether he signed it or not; that witness remarked to him that Hew York exchange was at a premium, and he might take advantage of it; that afterward witness met him and asked him if he had done anything with the check, and he said he had, that he had received thirty or forty dollars in exchange on it. On cross-examination, the witness testified that when plaintiff told him the money was drawn out before July 1st, Henry W. King & Co.’s books were in Avitness’ possession and control; also, that he did not recollect whether plaintiff told him. that he had advised with counsel as to signing the receipt.
    Bingham, plaintiff, recalled on his own behalf, testified that the performance of his duties as partner in the firm of Henry W. King & Co. ceased on signing the contract July 12, 1889.
    Frank King, recalled by defendant, testified that he sold his interest as a partner in the firm of Henry W. King & Co. July 1, 1898, to Mr. Browning; that he signed the contract with Browning July 11th or 12th, and that it took effect July 1st.
    The following additional stipulation was made by the parties, and read on the trial:
    “ It is stipulated by and between the parties to the above entitled cause, by their respective attorneys, that for the purposes of this trial, it may be considered as proved that of the two thousand (2,000) dollars which was charged to James A. Bingham on the books of Henry W. King & Company, on July 7, 1898, one hundred and twenty-five (125) dollars was drawn by the said Bingham from the moneys of the copartnership of Henry W. King & Company, on July 1, 1898, and that eighteen hundred and seventy-five (1,875) dollars, to make up the said aggregate sum of two thousand (2,000) dollars, was drawn out by the said Bingham from the moneys of the copartnership of Henry W. King & Company, on divers days after July 1, 1898, and prior to July 8, 1898.
    Beck, Millee & Stabb,
    Attorneys for plaintiff.
    Bentley & Fueling,
    Attorneys for defendant.”
    Peck, Millee & Starr, attorneys for appellant.
    Bentley & Burling, attorneys for appellee.
   Mr. Justice Adams

delivered the opinion of the court.

The foregoing somewhat lengthy statement of facts has been made in view of the probability that, whatever our decision may be, the cause will be taken to the Supreme Court for final adjudication. Counsel for appellant rely on the general legal proposition that a contract takes effect, as to the parties to it, at the date of its delivery, and argue that the contract in question having been signed and delivered July 1*2, 1898, the appellee, Browning, is liable, under his contract, to discharge the indebtedness of appellant to the firm of Henry W. King & Co., which indebtedness consisted of sums of money drawn from that firm by appellant between July 6, 1898, and the time of the execution of the contract, amounting in all to $2,000. W e are of opinion, however, that the vital question in the case is as to the effect of the receipt of date December 31, 1898. In the discussion of this question counsel for appellant rely on the legal proposition that the payment by the debtor and acceptance by the creditor of a less sum than is actually due, will not, although agreed to by the creditor, extinguish the debt; citing Hayes v. Mass. L. Ins. Co., 125 Ill. 626, and other cases. The American editor of Smith’s Leading-_ ZD Cases, in the notes to the case of Cumber v. Wane, 1 Smith’s Leading Cases, 9th Am. Ed., 606, 621, after citing a number of cases in which the rule has been applied, says:

“ But it is to be noticed that these are largely early cases. In many of these States attempts have been made in later decisions to overthrow this rule. The foundation of it seems to be that1 in the case of the acceptance of a less sum of money in discharge of a debt, inasmuch as there is no new consideration, no benefit accruing to the creditor, and no damage to the debtor, the creditor may violate, with legal impunity, his promise to his debtor, however freely and understanding^ made. This rule, which obviously may be urged in violation of good faith, is not to be extended beyond its precise import; and whenever the technical reason for its application does not exist, the rule itself is not to be applied. Hence judges have been disposed to take out of its application all those cases where there was any new consideration or any collateral benefit received by the payee which might raise a technical legal consideration, although it was quite apparent that such consideration was far less than the amount of the sum due.’ Brooks v. White, " 2 Met. 283. So that even where the rule prevails it is overburdened with qualifications, nice distinctions and equivocal approbations, and courts are not unready to find grounds for avoiding its application.”

A number of cases are cited in support of the text of the note. Ib. 621-2.

In C., M. & St. P. Ry. Co. v. Clark, 178 U. S. 353, the court, Fuller, C. J., delivering the opinion, say:

“While the general rule must be regarded as well settled, it is considered so far with disfavor as to be confined strictly to cases within it,” citing a number of cases in support of this statement. In the case cited, Clark claimed a much . larger amount than the company paid him, but he signed a receipt for the amount which the company paid, as follows:

“ How, therefore, be it known that I, Heman Clark, have received of and from the said Chicago, Milwaukee and St. Paul Bailway Company the sum oí one hundred and seventy-three thousand five hundred and thirty-two and 49-100 dollars ($173,532.49), in full satisfaction of the amount due me on said estimates, and in full satisfaction of all claims and demands of every kind, name and nature, arising from, or growing out of, said contract of March- 6, 1886, and of the construction of said railroad, excepting the obligation of said railway company to account for said forty thousand dollars, as hereinbefore provided.

Heman Clabk.”

The receipt was not under seal. The court held that the receipt was a bar as to all claims against the company existing when the receipt was given, and rendered judgment in Clark’s favor for the sum of $2,425, on a claim which accrued after the receipt was given, lb. 372.

That the rule is technical and subject to numerous exceptions, is also stated in Tanner v. Merrill, 108 Mich. 58, citing many cases.

It is claimed by counsel for appellant that the amount due from appellee to appellant was liquidated by the contract itself. We understand the rule to be that (if there is a bona fide dispute as to the amount due), it must be considered as unliquidated. In Railway Co. v. Clark, supra, the court, commenting on a finding of the referee, says:

“ If it means that the statement of account as to these items was disputed, then the contention is a reasonable one, that such dispute was a sufficient reason to support the settlement in its entirety.”

The following authorities support the proposition that when any part of the demand is, in good faith, disputed, it is unliquidated. Fuller v. Kemp, 138 N. Y. 231; Nassoiy v. Tomlinson, 148 Ib. 326; Tanner v. Merrill, 108 Mich. 58; Ostrander v. Scott, 161 Ill. 345.

In Fuller v. Kemp, the court say:

“ Where the demand is liquidated, and the liability of the debtor is not in good faith disputed, a different rule has been applied. In such cases the acceptance of a less sum than is the creditor’s due will not of itself discharge the debt, even if a receipt in full is given. The element of a consideration is lacking, and the obligation of the debtor to pay the entire debt is not satisfied. There are many authorities which enforce this proposition, but they have no relevancy to a case like the present, where the debt was unliquidated, and there was a bona fide disagreement in regard to the extent of the debtor’s liability.”

In that case there was a dispute between the plaintiff and the defendant as to the amount of a physician’s bill of the defendant, the latter claiming $670 and the former contending the charge was excessive. The defendant inclosed to the plaintiff in a letter a check for $400, stating that the check was sent in full satisfaction of the plaintiff’s claim. The plaintiff cashed the check, retained the money, and sent his bill to defendant for the balance, $270, and subsequently sued for it. Held, that the plaintiff having retained the check and its proceeds, there could be no recovery. In Nassoiy v. Tomlinson, supra, the court say :

“ A demand is not liquidated, even if it appears that something is due, unless it appears how much is due, and when it is admitted that one of two specific sums is due, but there is a genuine dispute as to which is the proper amount, the demand is regarded as unliquidated, within the meaning of that term as applied to the' subject of accord and satisfaction.”

In that case the plaintiff claimed there was due to him from the defendant $1,500 commission for his services in selling real estate owned by the defendants. The defendants sent him a letter inclosing a check for $300, expressing it to be “ 1 per cent on $30,000, your commission on the sale,” and requesting him to sign and return a voucher, which was also enclosed in the letter. The voucher was in these words:

“Suspension Bridge, New York, 1887.

Received of the Tomlinson estate three hundred dollars, in full for commissions for sale to J. A. Weston of 66 acre lot, $300.”

Plaintiff retained the check, drew the money on it, and did not sign or return the voucher. He sued to recover $1,200, the balance which he claimed to be due him. Held, there could be no recovery, the court saying, among other things:

“ We think that the undisputed evidence shows conclusively that the offer was made in settlement of the claim, and that the plaintiff so understood it, when, by" using the check, he accepted the offer.” Ib. 331.

The court further say :

“ The plaintiff can not be permitted to assert that he did not understand that a sum of money, offered 1 in full,’ was not, when accepted, a payment in full. As was said in Hills v. Sommer (53 Hun, 392, 394), he was 6 bound either to reject’ the check, ‘or, by accepting it, to accede to the defendant’s terms.’ The money tendered belonged to them, and they had the right to say on what condition it should be received. ‘ Always the manner of the tender and of the payment shall be directed by him that maketh the tender or payment and not by him that accepteth it. ’ (Pinnel’s case, 5 Co. 117.) The plaintiff could only accept the money as it was offered, which was in satisfaction of his demand. He could not accept the benefit and reject the condition, for if he accepted at all it was eum onere. When he indorsed and collected the check referred to in the letter asking him to sign the inclosed receipt in full, it was the same, in legal effect, as if he had signed and returned the receipt, because acceptance of the check was a conclusive election to be bound by the condition upon which the check was offered. The use of the check was ipso faeto an acceptance of the condition. The minds of the parties then met so as to constitute an accord, and, as was said by this court in Fuller v. Kemp (138 N. Y. 231), ‘the acceptance of the money involved the acceptance of the condition, and the law will not permit any other inference from the transaction.’ ”

In Tanner v. Merrill, supra, the court say:

“ The important fact to ascertain is whether the plaintiff’s claim was a liquidated claim or not. If it was, there was no consideration for the discharge. If not, the authorities are in substantial accord that part payment of the claim may discharge the debt, if it is so received. Upon the undisputed facts, the claim of the plaintiff, as made, was not liquidated. It was not even admitted, but, on the contrary, was denied, because the defendants claimed that it had been partially paid by a valid offset. While the controversy was over the offset, it is plain that the amount due the plaintiff was in dispute.”

In Ostrander v. Scott, 161 Ill. 339, the court say:

“ The authorities are numerous and uniform that a payment of a part of a fixed and certain demand which is due and not in dispute is no satisfaction of the whole debt, even where the creditor agrees to receive a part for the whole and gives a receipt for the whole demand. (Bishop on Contracts, Sec. 50; 2 Parsons on Contracts, (5th ed.), 618; Curtis v. Martin, 20 Ill. 557; Morrill v. Baggot, 157 Id. 240; Titsworth v. Hyde, 54 Id. 386.) This doctrine rests upon the ground that the agreement for a discharge of the entire debt is without consideration. But it is limited to cases where the debt is of the character stated. It has no application to the honest settlement of unliquidated or disputed demands. (Hayes v. Massachusetts Life Insurance Co., 125 Ill. 626.) The rule disregards the actual intention of the parties, and if the balance due is disputed and the subject of an honest settlement and adjustment by the parties, such settlement will bar a recovery.” See also Lapp v. Smith, 183 Ill. 179, 183.

o We are of opinion that there was a bona fide dispute between the parties in the present case as to whether the defendant was bound to pay the indebtedness of the plaintiff to the firm of Henry W. King & Co., incurred between July 6, 1898, and the execution of the contract. There was room for such a dispute between men unlearned in the law. In appellant’s proposition to appellee, of date June 11th, he proposed to settle July 1st for $75,000, and estimates interest on an item contained in the proposition to July 1st. The agreement executed July 12th is dated July 1st, and, by the agreement, interest on the deferred payment of $65,000 is to be estimated from July 1st. That there was a dispute is sufficiently evidenced by appellee’s letter to appellant of date December 27, 1898, and appellant’s answer to that letter of date December 29, 1898. The trial court, exercising the province of a. jury, must have found, as a fact, that there was a genuine dispute between the parties as to the amount, and we think this finding of fact warranted by the evidence. Appellant, at the time he gave the receipt in question, had full knowledge of all the facts. He knew its purport, because he at first refused to sign it on the express ground that it purported to be in full of all claims. There is no evidence of fraud, mistake or duress in respect to the receipt. Appellant’s own testimony shows that he fully understood the purport of the receipt, and that in signing it he acted voluntarily and deliberately. He testified :

I went over to Mr; Frank King, and I told him that I thought it was entirely unfair, and objected to receiving that amount of money, and I told him that I would like to receipt for the amount that I received. He stated that he could not pay the money without taking a receipt in full, and, as I had to use the money at that time, I accepted it and gave the receipt.”

In C., M. & St. P. Ry. Co. v. Clark, supra, the court say :

“ Without analyzing the cases, it should be added that it has been frequently ruled by this court, that a receipt in full must be regarded as an acquittance in bar of any further demand, in the absence of any allegation and evidence that it was given in ignorance of its purport, or in circumstances constituting duress or fraud,” citing prior decisions of thé court.

In Ostrander v. Scott, 161 Ill. 339, the plaintiff, Scott, had an undisputed bill against the defendants, Ostrander et al., amounting to $5,282.57, but the defendants claimed an offset to the bill of $1,210, which was disputed. The defendants wrote a letter to the' plaintiff, inclosing their check for $4,072.57, and plaintiff’s bill for $1,210. The plaintiff retained the check and drew the money on it. The check was expressed to be in full of all demands to date,” and the letter inclosing it stated it to be “ in full of account to date.” Scott sued for $1,210, the balance which lie claimed to be due him. The court held there could be no recovery, saying, among other things:

It was the right of the plaintiff to accept the check upon the terms proposed, or to reject it; but there could be no modification of the terms by his will alone, without the concurrence of the defendant.”

The following language of the court is especially applicable to the facts of the present case:

“ The check was made on its face as payment in full of all demands to date, and the effect, when it was received, indorsed and collected, was the same as if it' had been tendered accompanied with a receipt to be signed in full of all demands to date, and the plaintiff had received the check and signed the receipt.”

In the present case the check or draft was accompanied with a receipt to be signed by appellee, “ in full payment of all claims,” etc., and he was informed that the check would not be delivered to him unless he signed the receipt, and he received the check and signed the receipt.

In Lapp v. Smith, 183 Ill. 179, there was a dispute between the parties as to the plaintiff’s claim, the defendant denying that it had matured, and also claiming a set-off. Under these circumstances the defendants wrote to plaintiffs, inclosing a check for $500, and three promissory notes. It was plainly stated in the letter that the check and notes were sent as a settlement. The plaintiffs retained the check, collected it, and credited the amount of it on the defendants’ account, and tendered back to defendants the notes, which they refused to receive unless accompanied with the check. Plaintiffs sued for the balance which they claimed, but the court held they could not recover. The court say:

“In Fuller v. Kemp, 138 N. Y. 238, which involved the same principle, it was said: ‘ The tender and the condition could not be dissevered. The one could not be taken and the other rejected. The acceptance of the money involved the acceptance of the condition, and the law will not permit any other inference to be drawn from the transaction. Under such circumstances the assent of the creditor to the terms proposed by the debtor will be implied, and no words of protest can affect the legal quality of this act.’ And in McDaniels v. Bank, 29 Vt. 230, the court said : 1 When a party makes an offer of a certain sum to settle a claim, when the sum in controversy is open and unliquidated, and he attaches to his offer the condition that the same, if taken at all, must be received in full satisfaction of the claim in dispute, and the party receives the money, he takes it subject to the condition attached to it, and it will operate as an accord and satisfaction. * * * The mere act of receiving the money is an agreement to accept the same on the conditions upon which it is offered.’ The doctrine of these cases is applicable here.”

It will be observed that the Hew York and Illinois decisions cited are not so strong for the defendants, respectively, as is the present case for appellee; because in those cases no receipt was signed by the creditor, whereas in the present case appellant knowingly, voluntarily and deliberately signed a receipt in full of all claims. We are of opinion that the receipt given by appellant is a bar to recovery in the present case.

We find no reversible error in the record, and the judgment will be affirmed.


source: Caselaw Access Project

author: Opinion per Curiam.

license: Public Domain

text:
    Jacob Schack v. Edward B. McKey, Trustee.
    1. Receivers — General Rule of Appointment. — A receiver should never be appointed unless it is apparent to the chancellor from the showing made, that there is danger that the property which is the subject of the litigation will be dissipated or placed beyond the jurisdiction of the court, or in some way involved by transfers or conveyances, or by its being subjected to other claims, so as to render it more difficult for the court to give and enforce the final relief, to which the complainant may be found to be entitled.
    3. Same —Application for an Appointment Addressed to the Sound Judicial Discretion of the Court. — An application for the appointment of a receiver is addressed to the sound judicial discretion of the court, taking into account all the circumstances of the case, and if exercised, it is for the purpose of promoting the ends of justice and protecting the rights of all parties interested in the controversy and subject-matter, and is based upon the fact, made to appear to the court, that there is no other adequate remedy or means of accomplishing the desired object of such proceeding.
    3. Same — Nature of the Appointment. — The appointment of a receiver and authorizing him to take possession of property, is the exercise of a higher and more reaching power than the granting of an injunction, and should not be resorted to where an injunction will as well serve the purpose and to the same extent protect the rights of the complainant.
    4. Same — Rights of Parties Under the Law of this State — Where the Right of Appeal Does Not Exist. — The law of this State gives to a party against whom an injunction has been issued, and over whose property a receiver has been appointed, a right of appeal, but from subsequent interlocutory orders relating to the sale and distribution of the property, no appeal is given.
    5. Chancery Practice — Where the Allegations of the Bill Show that the Complainant Has a Remedy at Law. — Where the material allegations of a bill to set aside a sale of goods as fraudulent and the affidavits in support of them make out no more than the case of a sale and delivery of a stock of merchandise for an inadequate consideration or for a pretended consideration for the purpose of hindering, delaying or defrauding creditors, and placing the property beyond their reach, it amounts to the statement of a case for which the law affords a full and adequate remedy, either in replevin to recover the goods in specie or in trover for their value.
    6. Same— Where the Complainant Has a Complete Remedy at Law. — The rule in this State is that a party who has a plain and adequate remedy at law, must proceed at law, and so long as his remedies at law are not exhausted he can not resort to a court of chancery.
    7. Same — Effect of the Formal Reservation in an Answer in Chancery. — The reservation by a defendant in his answer of all ad vantage he might have had by demurring to the bill, enables him, on the application for the appointment of a receiver and turning over to him the possession of the property which was the principal and substantial relief sought, to raise the question that the complainant has a complete and adequate remedy at law.
    8. Fraud — Remedy Where a Sale is Fraudulent. — If a contract of sale is fraudulent an action at law will lie at the suit of the proper parties for the value of the goods, and the fraudulent contract can not be interposed as a bar to a recovery.
    Bill to Set Aside a Sale of Merchandise, and the appointment of a receiver. Appeal from the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1901.
    Reversed.
    Opinion filed July 30, 1901.
    Rehearing denied October 8, 1901.
    Statement. — By the bill filed in this cause it was represented that on November 14, 1900, Abraham Meyer, of Chicago, was the owner and possessor of two stocks of merchandise located at No. 109 Dearborn street and No. 219 West Madison street, in the city of Chicago; that he was at said places engaged in the tailoring business; that in the course thereof he had incurred liabilities aggregating about $8,000, and at the filing of said bill he was still indebted in such sum; that on said November 14th said Meyer, for the pretended consideration of about $3,300, sold, transferred and conveyed said stocks of merchandise to appellant by bills of sale and at once delivered possession thereof to said appellant, who, it is alleged in said bill, “is now in possession thereof and claims to be the owner of said merchandise by virtue of said pretended bills of sale, and refuses to surrender possession of said merchandise to appellee as trustee in bankruptcy of said Meyer, and threatens to sell and dispose of said stock for his own account and benefit, in disregard of the right of appellee as such trustee and of the creditors of said bankrupt.”
    It was alleged in said bill that on November 15, 1900, a petition in bankruptcy was filed against said Meyer, and that on December 11, 1900, he was adjudged a bankrupt, and that on January 3,1901, appellee was appointed, under such bankrupt proceedings, trustee of all the- assets and property of said Meyer. That the pretenses of said Meyer and of said Schack are fictitious and made for the purpose of covering up the title to said property and keeping the same from appellee as such trustee. “ That in truth and in fact no consideration whatever passed from said defendant Schack to said Meyer for the transfer and sale of said merchandise; that said pretended sale was made without any consideration whatever, and for the purpose of hindering, delaying and defrauding the creditors of said Meyer and placing the property beyond their reach.”
    That said property was so transferred and delivered to said defendant, Schack, by said Meyer, to be held by said defendant in trust for the use and benefit of said Meyer and for the purpose of so hindering and delaying the creditors of said bankrupt, of which fraudulent purpose and intent the said defendant, Schack, had notice at the time of said alleged purchase.
    That the property claimed to have been sold by said Meyer in truth and in fact was worth at least the sum of $6,000, “and said pretended sale, if any was made, was for a totally inadequate consideration, and was and is fraudulent and void as against” appellee “as such trustee and the creditors of said bankrupt; that at the time of the making of said pretended sale said Meyer was wholly insolvent,” and has, since the filing of said petition in bankruptcy, either absconded from the State or secluded himself within the State, without surrendering to appellee “any property or assets whatsoever.”
    The complainant in said bill further represented that he feared that .unless said defendant, Schack, be enjoined from selling, transferring or otherwise disposing of the property so claimed to have been purchased by him from said Meyer, or unless a receiver is appointed to take possession of said property pendente 1/ite, the rights of the complainant will be lost in the premises, and said property and proceeds dissipated and squandered.
    The bill waived answer under oath, and was verified by the affidavit of the complainant, stating, “ that he has read said bill of complaint and knows the contents thereof, and that the same is true of his own knowledge.”
    The defendant answered the bill, admitting the purchase of said merchandise, at one store for $2,070.76, and at the other store $1,376.96. That upon said purchase he, the defendant, immediately took possession of said goods and has since retained possession of the same and claimed that said purchase was in good faith, for a fair consideration, without any purpose of hindering or delaying the creditors of said Meyer and without any notice that said Meyer had any such intention, and averred that the transfer aforesaid was made to him in absolute good faith for the consideration named in two bills of sale, and denied that said sale and transfer was in any respect fraudulent or void, or for an inadequate consideration, and insisted that the purchase was made without any intention or knowledge on the part of the defendant of any fraud on the part of said Meyer, actually or constructively, against his creditors or any of them.
    The affidavit of one of the solicitors in said cause was filed with the bill, in which affidavit it was stated that the ' defendant, Schack, had been examined under oath before a referee in bankruptcy; “ that from said examination it appeared that he claimed to have paid to the bankrupt the sum of about $3,300 for the merchandise referred to in said bill of complaint; ” that he testified that he had procured the money November 13, 1900, from his private vault in the Graham Safety Deposit Company and carried said money with him until about four o’clock Wednesday, when he paid the same to said Meyer; that it further appeared from the examination of Schack that no receipt was taken for said payment; that thereupon the affiant had all of the employes of said Deposit Vault Company subpoenaed, and it appeared from the testimony of said witness that said Schack had not visited said deposit vault on the 12th, 13th or 15th days of November, and that it appeared by a record kept by said Deposit Vault Company that no visit was made by said defendant at said vaults on any of said days; that it appeared from the testimony of the cashier of Graham & Sons, bankers, that he, defendant, was a depositor for a year prior to November 14th; that within five months previous to November 15th, he had borrowed from said Graham & Sons, upon his individual note, an amount aggregating $1,600, of which about $1,100 had been paid, and at the time of giving the said bills of sale by Meyer, said Schack was indebted to said Graham & Sons, on account of said loan, to the extent of $500; that it also appeared from the testimony of said cashier, that said bankrupt, Meyer, kept a bank account with Graham & Sons, and said bank account did not show a deposit by said bankrupt of the sum of about $3,300, or any like amount, but on the contrary, no deposit was made in the account of said Meyer within ten days previous to the filing of said petition, or any amount exceeding $100, and that at the time of the alleged sale there were but eight dollars and some cents to the credit of the said bankrupt with Graham & Sons.
    The court appointed the complainant receiver of all the property described in the bill of complaint, “and now in' the possession of said defendant,” and ordered the defendant to surrender the same to said receiver, and authorized him to take possession of and hold the same until the further order of the court.
    McEwen & Weissenbach, attorneys for appellant; Moran, Mayer & Meyer, of counsel.
    Moses, Rosenthal & Kennedy, attorneys for appellee.
   Opinion per Curiam.

In Hancock v. The American Bonding & Trust Company, 86 Ill. App. 630 (633), it is said:

/ “ The general rule no doubt is, subject to a few exceptions, that a receiver should never be appointed unless it is apparent to the chancellor from the showing made that there is danger that the property which is the subject of the litigation is liable to be dissipated or placed beyond the jurisdiction of the court, or in some way involved by transfers or conveyances, or by its being subjected to other claims, so as to render it more difficult for the court to give and enforce the final relief to which the complainant may be found to be entitled.”

An application for the appointment of a receiver is addressed to the sound judicial discretion of the court, taking into account all the circumstances of the case, and, if exercised, is for the purpose of promoting the ends of justice and of protecting the rights of all the parties interested in' the controversy and the subject-matter, and is based upon the fact made to appear to the court that there is no other adequate remedy or means of accomplishing the desired object of the judicial proceeding. Pomeroy Encv. Jurisprudence, Secs. 30, 31.

The appointment of a receiver and authorizing him to take possession of property is the exercise of a higher and more far-reaching, power than the granting of an injunction, and should not be resorted to where an injunction will as well serve the purpose of the judicial proceeding, and to the same extent protect the rights of the complainant.

The law of this State gives to a party against whom an injunction has been issued,' or over whose property a receiver has been appointed, a right of appeal, but from subsequent interlocutory orders as to the sale and distribution of the property, over which a receiver has been appointed, no appeal is given. Had a mere preservative injunction been issued in this case, appellant would have been assured that his rights in and to this property would be preserved by a full hearing upon the merits. "Whereas, a receiver appointed upon an interlocutory order might at any time, under the direction of the court, sell all this property, and it thus be forever passed away from his control, notwithstanding the final result of the litigation might establish that his purchase of the same was entirely valid and his title unimpeachable. In so far as one of the affidavits submitted by the complainant stated what appeared upon the taking of certain testimony, it should not have been considered. Certainly, evidence that would not be admissible when a witness is called to testify orally, is not permissible because presented in the form of an affidavit. Had the affiant been called in open court, he might have testified as to what he had heard the defendant say under oath or otherwise, but not as to what appeared from'the defendant’s statement.

Counsel, in respect to the criticism that the complainant’s verification of the bill was a statement .of things he could not have known of his own knowledge, say:

“ The fact remains that the affidavit was so made, and the court has before it the verified bill stating positive facts, and the propriety of the order.appointing a receiver will have to be tested upon the pleading as it stands.”

All testimony, whether by way of affidavit, verification or otherwise, is addressed to the general knoxvledge and understanding of the tribunal before which it is presented. The fact that a witness has sworn that of his own knowledge he knows a particular thing, is an assertion to be carefully considered by the court, but not necessarily to be believed and acted upon. If other evidence presented to such tribunal the surrounding circumstances, or the general knowledge which all men have is such that a particular statement made by a witness is manifestly untrue, such statement, so far from strengthening the cause of him in whose behalf it is made, tends to weaken the force of other things which said witness may declare. 1 Ency. Pl. and Pr. 942; Hartley’s Appeal, 103 Penn. St. 23.

Appellee urges that the answer of appellant is not as full and explicit as it ought to have been. The answer might have gone much less into details than it did. Appellee waived an answer under oath, and thereby placed appellant in a position where he might make his answer a mere pleading, stating technically and formally enough to constitute an issue upon the material allegations of the bill.

■The material allegations of the bill, and the affidavits in support thereof, so far as they are entitled to be considered, make out no more than the case of a sale and delivery by Meyer to Schack of the stocks of merchandise for an inadequate consideration, or for nothing but a pretended consideration, for the purpose of hindering, delaying and defrauding the creditors of Meyer, and placing the property beyond their reach.

This is the statement of a case for which the law affords a full and adequate remedy, either in replevin to recover the goods in specie, or in trover for their value.

Whatever may be the doctrine of other courts, the rule in this State is unmistakable that a party who has a plain and adequate remedy at law must proceed there, and so long as his remedies at law are not exhausted he may not resort to a court of equity. Gore v. Kramer, 117 Ill. 176; County of Cook v. Davis, 143 Ill. 151; Kimball v. Walker, 30 Ill. 482; Comstock v. Henneberry, 66 Ill. 212.

The reservation by appellee in his answer of all advantage he might have had by demurring to the bill, enabled him, on the hearing of the application for the appointment of the receiver and the turning over to him of possession of the property, which was the substantial relief sought by the bill, to raise the question that appellant had a complete and adequate remedy at law. Black v. Miller, 173 Ill. 489; 1 Daniell’s Ch. Pl. and Pr. 715.

Taking the bill and affidavits to be true, a case for an action of replevin to recover the specific property is probably made out. The objection to such a form of remedy, that a replevin bond would have to be given by appellee , that might subject the estate in bankruptcy to a possible liability which the bankruptcy court might hesitate to authorize, does not seem to possess much force. The little weight to which the objection is entitled does not seem to have prevented the appellee from giving a receiver’s bond of $6,000 in this proceeding. The objection urged to the other forms- of action, in trover or assumpsit, that are open to appellant for a recovery of the value of the property, can not be sustained on the ground that it might be difficult to collect a judgment that might be recovered. There is no allegation in the bill that in anywise tends to show that appellant is not able to respond to any judgment that might be recovered against him in such a suit, and in the absence of an allegation or showing of that kind, the presumption is that he is able. '

But it is urged that the equity court acquired jurisdiction because the transaction was a fraudulent one. The fraud relied upon is in the sale and purchase of the merchandise for an inadequate consideration, or for only a pretended consideration, that was not real at all. It is not every fraudulent act that will authorize a court of equity to take jurisdiction. It is only in cases where complete justice can not be done at law that equity will interfere. In many instances of fraud, the law courts can give as full remedy as can be had in equity. In this case it would be only because - of fraud that suits at law could be successfully maintained, in replevin or trover, and we have shown that if because of the fraud replevin would give to appellee the goods in kind, or their value in trover, the remedy of appellee is just as complete at law as it could possibly be in equity.

As is said in Gore v. Kramer, sufora, “ it is clear that if the contract of sale was fraudulent, an action at law would lie for the value of the goods, and the fraudulent contract could not be interposed to bar a recovery.”

We think there was plain error in appointing a receiver of the goods mentioned, and in ordering the appellant to turn over possession of the goods in question to the receiver, and to that extent the order appealed from is reversed.


author: Mr. Presiding Justice Windes

text:
    Illinois Steel Company v. Henry Hanson.
    1. Pleadings — When Defeats are Cured by the Verdict. — When a declaration shows a cause of action, if defective in minor details, it will be sufficient after the verdict to sustain the judgment.
    2. Practice — Motions to Strike Out Ansivers. — A motion to strike out an answer to a question as not responsive is properly denied where a part of the answer is responsive and the objection is general.
    3. Instructions — Properly Refused When Covered by Other Instructions in the Case. — An instruction is properly refused where it is fully covered by other instructions in the case given at the request of the same party.
    4. Same— When Not Erroneous for Assuming Facts. — An instruction is not erroneous for the reason that it assumes the existence of facts in dispute, where it does not purport to be based upon the facts of the case but only by general terms embodies simply a proposition of law.
    5. Appellate Court Practice — Questions Which Can Not Be Raised for the First Time on Appeal. — The contention that the verdict was not rendered by the jurors impaneled and sworn to try the case, not having been raised in the court below, can not be raised for the first time on appeal.
    6. Damages — Where $5,000 is Not Excessive. — An employe in a steel mill was injured in assisting to handle some steel rails. It appeared from the evidence that his leg. was not only broken but extensively crushed, with both bones involved, rendering it a half inch shorter than the other, and his foot not in line with it, but turning outward. The leg is weak, rendering him lame, the condition being permanent; he had to use crutches for about a year after his injury, and the muscles of the leg, both front and back, gave him pain. The evidence was not controverted and in the opinion of the court justified a judgment for the sum of five thousand dollars.

      Trespass on the Case, for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Jesse Holdom, Judge, presiding. Heard in this court at the October term, 1900.
    Affirmed.
    Mr. Justice Adams dissenting.
    Opinion filed October 10, 1901.
    Statement Tby the Court. — Appellee, a servant of appellant, in its steel mill at South Chicago, had his right leg broken and crushed while in the performance of his duties on July 2, 1897, and brought this suit to recover for his injuries. A trial resulted in a verdict in his favor of §7,000, upon which, after a remittitur of §2,000, judgment was entered for the balance, from "which this appeal is taken.
    The declaration in substance alleges that plaintiff, the appellee here, was employed by the defendant, the appellant, to take care of certain tools, chains, etc.; that defendant, in the operation of its mill, from time to time had occasion to remove therefrom certain long, hot, imperfect steel rails, called cobbles, and pile the same outside the mill; that if said cobbles were cooled off with water the
    expansion or contraction ” would cause them to warp and press against the other cobbles in the pile, so that they were likely to jump and spring from their place when being moved, thereby exposing the person undertaking to move them to great danger; that it was defendant’s duty and its custom to permit said cobbles to cool off without the aid of. water; that the defendant negligently cooled off certain cobbles, so placed in a pile, with water; that it was plaintiff’s duty to move and remove one of said cobbles so cooled with water, but not knowing that it had been so cooled with wrater, the defendant having negligently failed and neglected to warn the plaintiff it had been so cooled, he, in the discharge of his duty, undertook to move or remove one of said cobbles so cooled with water, and while so doing and in consequence of its being warped, as aforesaid, and because of defendant’s failure to warn him it had been cooled with water, said cobble jumped and sprang a great distance from its place, struck plaintiff’s right leg, and thereby caused the injury complained of. The plea was the general issue.

      Among other instructions given for the plaintiff was the following, to wit:
    “ The court instructs the jury that where a master confers authority upon one of his employes to take charge and control of a certain class of workmen, in carrying on some particular branch of his business, such employe, in governing and directing the movements of the men under his charge, with respect to that branch of the business is the direct representative of the master, and is not a mere fellow-servant; and all the commands given by him within the scope of his authority are, in law, the commands of the master, and if he is guilty of a negligent and unskillful exercise of his power and authority over the men under his charge, it is in law the same as though the master itself was guilty of such conduct.”
    The court was asked by the defendant to give and it gave eleven instructions, but refused the following instruction asked by defendant, to wit:

      It

    “ The jury are instructed that if they believe from the evidence that the plaintiff, had he used reasonable and ordinary care in view of all the circumstances and surroundings there, including the facts which were open and apparent to his observation, should have known before his injury that the cobbles at that place had been cooled by the use of water, and that they were likely to spring when freed from the other cobbles, as the cobble 'which injured him sprung, then he can not recover in this case, and the jury should find the defendant not guilty.”
    At the close of the plaintiff’s evidence, and again at the close of all the evidence, the defendant moved the court to instruct the jury in ivriting to find the defendant not guilty, but each of said motions was overruled.
    Kemper K. Knapp, attorney for appellant.
    James G. McShane, attorney for appellee.
   Mr. Presiding Justice Windes

delivered the opinion of the court.

For appellant it is contended that the declaration does not state- a cause of action, in that it fails to allege that to cool the cobbles with water would cause them to act differently than if cooled without water, and that it fails to allege facts from which it could be said that the defendant, in the exercise of ordinary and reasonable care ought to have apprehended that to cool the cobbles with water or to fail to warn the plaintiff thereof, would likely endanger the latter.

Without attempting to follow counsel through all the different subdivisions of his extended argument in this regard, it seems sufficient to say that the declaration, the substance of which is set out in the statement, shows a cause of action, and if it is defective in the respects claimed, it is sufficient, after verdict, to sustain the judgment.

Next it is said that the defendant was guilty of no negligence for four reasons: First, because the cobble which injured Hanson was not cooled by water; second, if it was cooled by water, that it was not done by the defendant’s order; third, to cool cobbles by water does not cause them to warp any more than to cool them without water; and, fourth, that if a cobble cooled by water will warp more than one cooled without water, still there is no evidence of negligence in the case.

On the first three of these points it seems sufficient to say that we have carefully read and considered'the evidence in the case, and are of opinion that it presents questions of fact for the jury; and a finding by the jury that the cobble in question was cooled by water, that the water was put upon the cobbles by the order of defendant’s foreman, and that cobbles cooled by the aid of water will warp more than when cooled without the aid of water, can not be said to be clearly and manifestly against the evidence. This being true, we should not disturb the verdict for lack of proof in any of these three respects. The only remaining question on the matter of defendant’s negligence, is with regard to the general claim that there is no evidence of negligence on the part of the defendant.

It appears from the evidence, though not without contradiction, that the usual and customary mode of procedure at appellant’s steel mill with reference to the hot cobbles in question, was to permit them to be cooled off by the air before anything was done with reference to their further use; also that when hot cobbles were cooled by the use of water, the effect was to make them spring or jump; that when, they were cooled without the use of water, they would warp or spring a very little, but some of the witnesses say the warping ranged from six to twenty-four inches at the end of a steel rail of from thirty to forty feet in length. The evidence also shows, without contradiction, that the steel rail or cobble which caused appellee’s injury, when released from the pile of cobbles where it lay, sprung or jumped to one side from five to eight feet. One witness says five to six feet, and the plaintiff says'six to eight feet. The evidence by the witnesses familiar with the effect of the use of water in cooling the hot cobbles tends to show that so cooling them would cause them to spring or jump more or less, and that it was dangerous for a person to stand near a cobble which had been cooled by water when it was being moved from a pile of cobbles, because of its liability to spring or jump.

As stated above, a finding that the cobble in question was cooled by water by the order of defendant’s foreman, must be taken as established. There is no evidence that the defendant notified the plaintiff that the cobble in question was cooled by water. In fact he says that he did not know it had been so cooled. From all these circumstances, we think a question of fact as to defendant’s negligence in failing to warn the plaintiff that the cobble was cooled by water, vras presented, and that it can not be said that a finding that defendant was negligent in this regard is not supported by the evidence.

In this connection it is argued that an accident like the one in question could not have reasonably been foreseen or apprehended by the defendant. This, we think, was a question for the jury, and that it can not be said, in view of the circumstances above stated, that different conclusions might not be reached by reasonable men.

It is also said that the plaintiff was guilty of contributory negligence, and could not, therefore, recover, and in this respect it is said, and that truthfully, that plaintiff was an intelligent man and had had an experience of nearly twelve years at the kind of work in question. It is therefore argued that he knew all that any man could know with regard to the danger to which he was exposed. It appears from the evidence that when plaintiff was injured he was in the act of taking a chain from off the end of the cobble that injured him, that in so doing he stood astride the cobble, with his feet about eighteen inches apart, and that two other employes of appellant raised the cobble by means of a pinch bar, while plaintiff was proceeding to remove the chain. When the cobble had been sufficiently raised to free it from the others in the pile, it sprang to one side from five to eight feet, thus causing the injury.

As we have seen, plaintiff did not know that the cobble had been cooled by water; and the evidence tends to show that when a cobble is cooled by the air without the aid of water, it will spring or warp very little, none of the witnesses claiming that it would spring more than two feet; some say six inches and one says that they would not jump any. Under this evidence we think the jury were justified in finding that plaintiff was in the exercise of ordinary care. But in this regard it is said that it was not the plaintiff’s duty to take the chain from the cobble; that he was a volunteer, and therefore can not complain. Plaintiff testifies that it was his duty to take the chains from the cobbles, that he tried to take the chains off and that the two employes of appellant, Nelson and Colliander, whose duty it was to work with the cobbles, “ put the piece of bar under and lifted the cobble up so I could take the chain off.” It is true that Nelson testifies on cross-examination that he and the others of his gang were going to use the chain on the other cobbles in breaking them, and that he did not ask the plaintiff to take the chain off. This may have been entirely true and plaintiff not have known it. There is no evidence that plaintiff knew that Nelson and the other men were going to make any use of this chain, and the plaintiff says it was his duty to look after all the chains, take charge of the tools for the sailor gang, to which Nelson belonged, and to take them from the outside of the mill to the inside to have them handy for the sailor gang. No doubt plaintiff was proceeding, as he believed, in the discharge of his duty. It was for the jury to say from the evidence whether he was about his duty or not, and we think the verdict in this regard is justified by the evidence.

Error is claimed in the admission of evidence on plaintiff’s behalf that at the time he was injured he was going to get a chain from off the cobbles, and that it was his duty so to do. We think, in view of the allegations of the declaration, the substance of which is given in the statement, this evidence was proper and competent. In this connection the plaintiff was asked the following question: “ Where did you use to get these chains ? ” to which, under objection of defendant’s counsel, he made this answer, viz.: “ The chains, were on the cobbles. It was my duty to take off those chains to get them inside of the mill.” A motion was made to strike out the answer, but it was denied, and we think properly. The question was not objectionable, nor the first sentence of the answer. The second sentence of the answer, it is true, is not responsive to the question, but no such objection is shown by the abstract to have been made to it, and we therefore think it was not error to overrule the motion to strike out the whole answer. It is said that the second sentence of the answer is improper because, it is claimed, when the witness says it was his duty to take off the chains, etc., that is a statement of a conclusion. No such claim was made when the evidence was offered, so far as appears from the record, and can not now avail appellant. Moreover, the witness had previously stated, without objection, that his work was, among other things, to look after all the chains and bring all the tools from outside the mill to the inside, so that they would be handy for the sailor gang. This we think in substance covers the statement that it was his duty to take off those chains to get them inside the mill.

Objection is also made that the plaintiff was allowed to introduce evidence to the effect that more frequently than otherwise cobbles were permitted to cool without the aid of water, as well as the opinion of several witnesses that cobbles cooled with water would warp, while those cooled without water would not warp so much. We think this evidence was competent as bearing both upon the care of plaintiff and negligence of defendant.

The defendant’s instruction, quoted in the statement, which was refused, was, in our opinion, properly refused; if for no other reason, because it is fully covered by instruction 10 given for defendant, and the latter instruction, together with instructions 6, 7 and 9, given on behalf of defendant, fully instruct the jury upon the question 'of ■ plaintiff’s care.

The instruction given for plaintiff and quoted in the statement is not, in our opinion, erroneous for the reason claimed by appellant, viz., that it assumes the. existence of facts which are in dispute. The instruction does not purport to be upon the facts of the case, but by general terms used, embodies sim ply a proposition of law which is clearly sustained by the rulings of the Supreme Court in Fraser v. Schroeder, 163 Ill. 459-64, and cases cited.

The contention of appellant that the verdict in the case was not rendered by the jurors who were impaneled and sworn in the case, can not now be urged for the first time on this appeal. Ho such objection appears .to have been made in the court below, and it now comes too late. Brewer, etc., Co. v. Hermann, 187 Ill. 40; Goldstein v. Smith, 85 Ill. App. 588.

It is also claimed that the verdict is excessive, but we can not yield our assent to this claim. It appears from the evidence that plaintiff’s leg was not only broken but crushed extensively; that both bones are involved, that the leg is half an inch shorter than the other, and that his foot is not in line with the leg — turns outward; that the leg is weak, that plaintiff is lame, and the condition is permanent; also that plaintiff had to use crutches about a year after his injury, at the time of the trial used a cane, and that the muscles of his leg, both back and front, gave him pain. This evidence is not controverted, and we think justifies the amount of the judgment rendered, and it is affirmed.

Mr. Justice Adams dissents.


author: Mr. Justice Adams

text:
    George S. Poppers v. Frank Schoenfeld.
    1. Account Stated — Only Prima Facie Evidence of its Correctness. —An account stated is only prima facie evidence of its correctness.
    Assumpsit, for attorney’s services. Appeal from the Superior Court of Cook County; the Hon. Jesse Holdom, Judge, presiding. Heard in this court at the October term, 1900.
    Reversed and remanded.
    Opinion filed October 10, 1901.
    Statement. — This is an appeal from a judgment against appellant in favor of appellee, for services by the latter as an attorney at law. The suit was commenced December 27, 1899. The declaration is in assumpsit and contains a count for services as an attorney at law and solicitor in chancery, the common money counts, a count for labor, services and material, and a pount on an account stated.
    The plaintiff, appellee here, testified that from July 21, 1897, to and including November 28, 1899, he represented appellant in a number of cases, and, as his counsel, did certain work in the cases, and that, July 1, 1899, and November 29,1899, he rendered to appellant accounts; that July 1, 1899, he sent appellant an account up to that date, and November 29,1899, he sent the whole account up to the last date, in a letter of that date, which last account included the one sent July 1st. The accounts were put in evidence. They include very numerous items, and the balance appearing from the accounts to be due is $737, the amount for which judgment was rendered. Appellee also put in evidence the following letters from him to the appellant:
    “Chicago, Aug. 30th, 1899.
    ■Mb. George S. Poppers, City.
    Dear Sir: You said you would be able to send me a check for balance of my account by Thursday of this week. I trust you will not disappoint me in this.
    Respectfully yours,
    F. Schoenfeld.”
    “Chicago, Oct. 18th, 1899.
    Me. George S. Poppers, 92 West Madison St., City.
    Dear Sir: You were to settle up the balance of my account two weeks ago without fail. Last week you were sure to adjust it. I can not understand what you mean by your neglect in this regard. Do you think you can come to my office and take my time from other people and let me wait for your own convenience to make compensation for it? I must again insist that you give this matter your immediate attention, as there is certainly no excuse for this delay. I remain,
    Very truly yours,
    F. Schoenfeld.”
    “Chicago, Nov. 29th, 1899.
    Mr. George S. Poppers, 92 West Madison St., City.
    Dear Sir : Herewith find enclosed two bills showing a balance due me amounting to $737.00. One of the bills is from July 21st, 1897, to June 30th, 1899, and amounts to $543.00; the other bill is from July 1st, 1899, until November 28 th, 1899, and showing a cash credit of $100.00, leaving the balance as above stated. You have been heretofore advised and a number of statements were handed you for this account upon which you made partial payment. I would not like to institute suit against you to recover this money, but if you continue to ignore this matter I shall be compelled to prosecute a suit to recover the same. Trusting you will give this matter your immediate attention, I remain,
    Respectfully yours,
    F. Schoenfeld.”
    “ Chicago, Dec. 18th, 1899.
    Mr. George S. Poppers, 92 West Madison St., City.
    Dear Sir : Some time ago I sent you an itemized statement of your account, showing a balance due of $837.00, upon which you paid $100.00, leaving $737.00 still due and unpaid. I do not understand why you do not give this matter your attention, and seem to ignore my statement entirely. I must again, therefore, call your attention to it and insist upon receiving a check from you for the amount by early mail. If Ido not hear from you by Wednesday of this week, I shall be compelled to institute suit against you to recover this balance still due me.
    Trusting you will give this matter your immediate attention, I remain,
    Truly yours,
    Frank Schoenfeld.”
    Appellee also testified that he did not believe that he ever had a talk with appellant about the account; that on the statement or account of July 1, 1899, appellant paid him $100; that appellant said to him a number of times that he was a little short of money, but he would fix up the account; that he, appellee, had received no response to his letters, and that the" balance of the account was due and unpaid.
    The foregoing was substantially appellee’s evidence in chief. He was the only witness in his own behalf. At the close of his examination in chief the court remarked : “I presume you are proceeding on the theory of an account stated?” to which appéllee’s counsel responded, “Tes.”
    On appellee’s cross-examination he testified that he had an arrangement with appellant as to the rate of charges for attending to his business; that he was to receive $25 for each day’s attendance in court, and that if a day’s services were rendered on a motion he charged the regular rate per day. The following question was asked and answer made:
    Q. “ The first item in this bill is July 21, 1897, for one-half day in the Kennedy case ? ” A. “ There were two Kennedy cases, one against Poppers and one in which he brought a replevin suit as plaintiff. I presume it was a half day; that is the memorandum I have in the book. One of "those cases was originally instituted in this court and the other case before a justice of the peace.”
    Counsel for appellee then asked the following question: '“Did you appear in the case brought before the justice?” The question was objected to and the court sustained the objection. Counsel for appellant insisted on his right to cross-examine appellee as to each item of the account, when the following colloquy occurred between the court and appellant’s counsel:
    Mr. Hunt: “ Does your honor rule that I have no right to cross-examine him in regard to these items ? ”
    The Court: “Yes, I do; the question here is whether there has been an account stated.”
    Mr. Hunt: “ I desire to call your honor’s attention to another fact; the two special counts in this case are for particular services rendered and a special liability declared upon. The plea is the general issue.”
    The Court: “ Do you withdraw those special pleas ? ”
    Mr. Peterson: “Yes, we will withdraw the special counts.”
    Mr. Hunt: “ I understand he can not withdraw the special counts at this time without depriving us of the right of cross-examination.”
    The Court: “ Let the record show that the plaintiff now withdraws the special counts.”
    The court adhered to the ruling that appellant’s counsel had no right to examine appellee in regard to the items of the account. It does not appear from the record that any count of the declaration was withdrawn.
    Appellee further testified, on cross-examination, that in a conversation, after appellee rendered the account of July 1, 1899, appellant claimed that some charge in the account was too high; that he, appellee, did not know what he referred to, but that appellant, at the same time, told him that he would have some money for him in a few days, and said, “I will fix up your account, Mr. Sohoenfeld;” that appellant did not object to the number of specific items in the account, but said he did not have the amount with him; that witness does not think appellant spoke of the account that had been rendered. He simply said he had received the statement, and had not the money. He said as soon as he would be able to get some money matters fixed up, he would pay the balance due. Immediately succeeding the foregoing evidence, the following occurred:

      Q. “Did he acknowledge that the balance due, as stated by you in your account, was correct?” A. “ I don’t believe that he referred to the balance or referred to anything. He just told me he would fix up my account.”
    Subsequently, in cross-examination, appellee testified: “At a further conversation we had, he promised to pay me the balance due.”
    Appellant testified that shortly after July 1, 1899, when the first account was rendered to him, he told appellee that it was not correct, when appellee said he was hard up for money, and asked him, appellant, if he could spare him 8100, and that he, appellant, said, “Yes, I don’t owe you that; simmer it down; the list of items is too high. He says, ‘You ought to be good for $100.’ I says, ‘All right; here is $100 for you;’ but, I says, ‘I would like to have this bill fixed up.’ He says, ‘ I have got no time just now; come in some other time.’ I brought this bill four times to have it corrected.” Appellant further testified that he pointed out to appellee items in the account which he, appellant, claimed to be incorrect, and that appellee told him that he had no time to settle the business; to come another time; and that he, appellant, went to appellee in respect to the matter three or four times, but appellee would not listen to him. Witness also testified that he never agreed to pay appellee the balance shown on total account rendered November 29, 1899.
    The court gave to the jury this instruction:
    “ The court instructs the jury as a matter of law that where an itemized statement of account is by the creditor delivered to the debtor, showing the aggregate charges in the creditor’s favor and the proper credits thereon, and the debtor retains said statement of account and makes payment upon it without objection, it thereby becomes an account stated between the parties.”
    George Hunt, attorney for appellant.
    Zach. Hofheimer, attorney for appellee.
   Mr. Justice Adams

delivered the opinion of the court.

It is apparent from the preceding statement, the theory of the trial court was that in a suit by an attorney at law against his client, to recover compensation for professional services performed by the former for the latter, proof of an account stated is conclusive as against the client. Hence the court ruled that appellee could not be examined as to the items of his account.

Gruby v. Smith, 13 Ill. App. 43, was a suit by the appellee, an attorney at law, against the appellant, for professional services. The court intructed the jury thus:

“ The jury are instructed that in an action upon an account stated, the original form of evidence of the debt is unimportant, for the stating of the account changes the character of the cause of action, and it is in the nature of a new undertaking. The action is founded, not upon the original contract, but upon the promise to pay the balance ascertained. If.the jury find from the evidence that there were accounts rendered by both parties to this suit, the one to the other, and a balance agreed upon in favor of the plaintiff, and a promise made bv the defendant to pay that balance, then you must find for the plaintiff, not exceeding the amount so agreed upon and promised.”

Of this instruction the court, McAllister, J., delivering the opinion, say:

“ Hnder the peculiar circumstances of the case, that instruction was wrong and misleading, first, because, by the argument ingeniously embodied in it by the counsel who drew it, and inadvertently overlooked by the court, the jury would be drawn to the conclusion that an account stated was something which rendered the original merits or extortionate character of the plaintiff’s charges entirely immaterial, and that such account stated was absolutely conclusive upon the defendant. Such was the rule in the early days of the common law. In Truman v. Hurst, 1 Term 42, Lord Mansfield said : ‘ What is an account stated % It is an agreement by both parties, that all the articles are true. This was formerly conclusive; but a greater latitude has of late prevailed in order to remedy the error which may have crept into the account in surcharging the items.’ It is only prima facie evidence of the correctness of the account. Perkins v. Hart, 11 Wheat. 237. ‘It is not material when the admission was made, 'whether before or after action brought, if it be proved that a debt existed before suit, to which the conversation related. But whensoever such admission was made, it is not now held to be conclusive, but any errors may be shown and corrected under the general issue.’ 2 Gréenleaf on £v., Sec. 128, and authorities in notes. The instruction was erroneous, secondly, because, while purporting to give to the jury all the elements necessary to a recovery, it wholly omits any reference to the relation of attorney and client, and whether the defendant was fully and fairly informed in respect to material facts. The parties not dealing upon a footing of equality, those matters should have been embraced.”

Hopkinson v. Jones, 28 Ill. App. 409, was a-like suit. The plaintiff, Jones, “ rested his case on proof of an account stated, without attempting to show what services he had rendered, nor what such services were worth.” Ib. 416. The defendant, while testifying in her own behalf, was asked: “ Can you mention some of the facts in reference to the charges % Do you remember the fact that there was anything said about a lump charge of $5,000 % ” Ib. 422. The question being objected to, the trial court ruled against it. The Appellate Court held the ruling error, saying :

“ The question asked of the defendant opened up a branch of the case which she was refused the right to investigate, and that was as to the right of the defendant to go back of the alleged settlement and statement of the account (even ■ conceding that such settlement and statement had been made), and look into the fairness and reasonableness of the charges made as they grew out of the original transaction. The court in the admission and rejection of the evidence, as well as in the instructions given and refused, seems to have proceeded on the theory that a statement of account made between attorney and client, -was conclusive upon the client. This may be the rule as among strangers where no relation of confidence or trust exists, and where neither has a right to look upon the other for protection against fraud or oppression, or undue advantage. But this rule, if it ever had any existence as between persons holding confidential trust or dependent relations toward each other, seems to have been relaxed as to them.”

Coffee v. Williams, 103 Cal. 550, was an action by a partner against his copartner, on what the plaintiff claimed to be an account stated. A number of questions were asked the witnesses for the defendant, in regard to items of the account, to which objections were sustained. The Supreme Court held the ruling error, saying :

“ The foregoing questions, and many others of a similar kind, should have been allowed. It would certainly be difficult to believe that the defendant acquiesced in the alleged account stated and promised to pay the alleged balance, if the things which he sought to prove are true.”

In Gruby v. Smith, supra, the court say of an account stated, “ It is only prima facie evidence of the correctness of the account,” citing Perkins v. Hart, 11 Wheat. 237.

We are of opinion that the ruling of the court against examination in regard to the items of the account in evidence, was error, prejudicial to appellant.

During his address Mr. Peterson, counsel for the plaintiff, made the following statement:

“ This man Poppers has had a great deal of litigation. He is well known here. He has lived in Chicago for thirty years.”

Mr. Hunt: “ I object to the remark and ask that it be stricken out.”

The Court: “Ho, he is well known.”

Mr. Hunt: “ Can he .infer from that that he has had a great deal of litigation %

The Court: “Ho.”

Mr. Hunt: “ That is what I object to.”

The Court: “ They will assume that he has had a great deal of litigation by looking at these statements.”

Mr.’ Hunt: “ I object to the ruling and the language of the court in ruling on the motion.”

To which ruling of the court defendant, by his counsel, then and there duly excepted.

Mr. Peterson, continuing his address to the jury, said:

“ He is in the furniture installment business. He is a pawnbroker and has been for years. He claims he has not been in the pawnbroking business for the last eighteen years.”

Mr. Hunt: “ I object to the statement and ask that it be stricken out.”

The Court: “You had better not, because the time is up.”

To which ruling of the court defendant, by his counsel, then and there duly excepted.

While we do not hold the remarks of counsel for appellee and of the court above quoted reversible error, we think them objectionable. The fact that a party has had a great deal of litigation, if true, or the fact that he has been a pawnbroker, should not operate against him in the cause on trial. He is as much entitled to a fair trial as if he had never been a party to a suit before and had never been a pawnbroker. The remark of the court in the presence of the jury, “ They will assume that he has had a great deal of litigation by looking at these statements,” was improper. It assumes that the statements in the account in evidence are true, and, in effect, tells the jury to assume from such statements that appellant had had a great deal of litigation. While we do not approve the instruction quoted in the preceding statement, we can not consider the giving it as ground for reversal, the giving it not being assigned as error..

For the reason that the court excluded competent evidence, the judgment will be reversed and the cause remanded.


author: Mr. Justice Sears

text:
    John Gunzenhauser, Impleaded, etc., v. William D. Henke.
    1. Foreclosure — Allowance of Solicitor's Fees. — The allowance as solicitor’s fees for the carrying on of a suit in foreclosure to be paid out of the sum realized from the sale, is a matter resting entirely upon the contract of the parties as contained in the instrument being foreclosed and is limited to the amount specified in such contract.
    2. Same — Not to be Controlled by General Clauses. — Where the con-tract expressed in the instrument being foreclosed, for the allowance of solicitor’s fees provides for the allowance of the sum of §100 only, and another and different clause provides for the allowance of all costs and attorney’s fees incurred or paid by the holder of the instrument or the notes secured by it in any suit in which either of them may be plaintiff or defendant by reason of being a party to the trust deed or holder of the notes, it is the specific provision for solicitor’s fees which governs and not the general one as to expenses incurred in other suits.
    Foreclosure of Trust Deed. — Appeal from the Superior Court of Cook County; the Hon. Joseph E. Gary, Judge, presiding. Heard in this court at the October term, 1900.
    Affirmed in part and reversed in part.
    Opinion filed October 10, 1901.
    Runyan & Runyan, attorneys for appellant.
    Julius & Lessing Rosenthal, attorneys for appellee.
   Mr. Justice Sears

delivered the opinion of the court.

This suit is to foreclose a trust deed in the nature of a mortgage upon real estate. The cause has proceeded to a final decree of foreclosure and sale, from which decree this appeal is prosecuted. The only complaint of appellant, who is the owner of the equity of redemption in the mortgaged land, is that the decree provides for the payment out of the funds realized from the foreclosure sale, the sum of $625 as solicitor’s fees, to which the complainant’s solicitors are found to be entitled for services in the foreclosure proceeding. The contract expressed in the trust deed for allowance of solicitor’s fees upon a foreclosure of the same provides for the allowance of $100 only.

Another and different provision of the trust deed is for the allowance of all costs and attorney’s fees incurred or paid by the grantor in the trust deed or the bolder of the notes secured, in any suit in which either of them may be plaintiff or defendant by reason of being a party to the trust deed or holder of the notes. It is plain that the former specific provision for solicitor’s fees in the foreclosure suit governs here, and not the general provision as to'such expenses incurred in other suits. Atwood v. Whittemore, 94 Ill. App. 294; and Loughridge v. Podrasnik, 9642 of this court, not reported.

In Atwood v. Whittemore, supra, we held that the allowance of a sum as solicitor’s fees for the carrying on of the foreclosure suit, to be paid out of the sum realized upon foreclosure sale, was a matter resting entirely upon the contract of the parties and limited by such contract.

In Loughridge v. Podrasnik, supra, this doctrine was re-asserted.

We regard these decisions as applying and governing in this appeal.

The decree is therefore reversed to the extent of §525 of the sum. allowed as solicitor’s fees, and in all other respects it is affirmed. The costs of this appeal are adjudged against . • the appellee. Affirmed in part and reversed in part.