author: Mr. Presiding Justice Freeman

text:
    Ida E. Schmidt v. Emma A. McBean et al.
    1. Guardians — Power of Sale over the Ward's Personal Property.— A guardian has the power to sell the personal property of his ward without an order of court, except where such sale is prohibited by statute, and he will be liable on his bond for any abuse of this power; but the purchaser will take a good title unless he has notice of the guardian’s fraud.
    2. Fraud — Where One of Two Innocent Parties Must Suffer. — Where one of two innocent parties must suffer a loss, the consequences must ultimately rest upon the one whose conduct made it possible for the loss to occur.
    Bill to Set Aside an Assignment of a Judgment. — Appeal from the Superior Court of Cook County; the Hon. Philip Stein, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.
    Affirmed.
    Opinion filed November 26, 1901.
    Statement. — This is a bill to set aside certain alleged assignments of a judgment for $5,000, recovered by appellant against the city of Chicago, in the Superior Court.
    At the time the judgment was obtained appellant was a minor, and one George M. Shaver was appointed and acting as her guardian. Her claim against the city had been prosecuted by a corporation known as the “ People’s Casualty Claim and Adjustment Company,” employed for the purpose by appellant’s parents. The president of this company was one Charles W. Beck. It was at the suggestion of said Beck, acting for- 'the adjustment company apparently, that Shaver was appointed appellant’s guardian. • Complainant attained legal age in 1897. About a month thereafter, August 11,1897, her said guardian filed a report in the Probate Court, stating that the judgment was still unpaid and asking to be discharged upon assigning it to appellant. An assignment of the judgment was accordingly executed and turned over to her through said Beck, president of the investment company, who, it subsequently appeared, had already disposed of the same judgment, and received the money therefor more than two years before, meanwhile concealing the fact and apparently appropriating the money to his own use. When delivering the assignment to appellant he is said to have represented to her that the judgment would be paid in about two years. In February, 1899, he wrote that he would look up the matter and see when the judgment would be paid; and again that he had not been able to find out its exact status, but was “ quite surprised ” to find there had been several transfers, and "would “ take steps to enforce payment to you.” Appellant, becoming suspicious, caused an investigation, and learned that a paper purporting to be an assignment of the judgment to one Ames H, Perkins, executed by Shaver, her guardian, dated March, 1895, two years before his discharge as such guardian, had been filed with the clerk of the court, and that subsequent assignments had been made by Perkins to one Duncan S. McBean, by McBean to the Commercial National Bank, by the bank to McBean again, and by the latter to one J. II. Pearson. Further investigation developed that the assignment by Shaver, the guardian, to Perkins, was made under an order of the Probate Court entered in March, 1895, authorizing such sale for $4,375, which sum Perkins had offered through Beck, the president of the adjustment company. It appears that the guardian had deposited the assignment with the Northern Trust Company Bank for delivery to Perkins upon payment of the sum agreed upon as above. Finding some days after, that Perkins had not paid the money as expected, the guardian took the assignment from the bank, and subsequently, as he testifies, handed it to a stenographer "employed by the adjustment company, asking her to put it away in the company’s vault, which she did, placing'it in a large envelope, it is said, writh other papers belonging to Shaver, said to have been there for safe keeping. At a period considerably later, Beck, who had then sold the judgment to Perkins and received the money, is said to have told the guardian that there was no immediate prospect of the consummation of the sale;- and Shaver paid no further attention to the matter until the question of ownership arose, in December, 1898,- having meanwhile, in August,-1S97, closed his accounts as guardian, and executed a new assignment of the judgment to appellant. There is evidence tending to show that Beck, the president of the adjustment company, took the original Perkins assignment from the vault and delivered it to Perkins, and received therefor the sum of $4,375, by a check payable to Beck’s own order, dated March 23,1895. Apparently, therefore, Beck had received the money nearly four years before appellant discovered the facts.
    Appellant filed her bill of complaint seeking to set aside the assignments to Perkins- and hiif assignees, and recover the interest which had meanwhile been paid by the city upon the judgment. Appellees answered denying the allegations of the bill, and claiming good title to the judgment. The Superior Court upon the hearing dismissed the bill for want of equity, and from that decree this appeal comes.
    Defrbes, Brace & Bitter, attorneys for appellant.
    George Sawin, attorney for appellees.
   Mr. Presiding Justice Freeman

delivered the opinion of the court.

It is first contended by counsel for appellee, that the guardian had no power to sell or authorize the sale of the judgment, and that the Probate Court had no power to authorize or direct such sale. The statute (Chap. 64, Sec. 17), provides that “ The guardian shall settle all accounts of his ward and demand and sue for, and receive in his own name as guardian, all personal property and demands due the ward, or with the approbation of the court compound for the same, and give a discharge to the debtor upon receiving a fair and just dividend of his estate and effects.” The argument is that this statute is a limitation upon the common law powers of guardians; that if, before the statute, the guardian might have compounded, released or sold the ward’s choses in action, he can now do only what is in accordance with the exact terms of the statute; that the statute now requires him to demand and sue for the ward’s claims, and does not allow him to sell them to third parties at a discount.

That a guardian has the power to sell the ward’s personal property without an order of court except where such sale is prohibited by statute, seems to be unquestioned, lie will be liable on his bond for any abuse of this power, but the vendee will take a good title unless he has notice of the guardian’s fraud. The power to sell is said to extend to a note or debt including a mortgage securing the same. (Woerner’s Am. Law of Guardianship, p. 179; Am. Eng. Ency. of Law, Yol. 15, p. 56.) It is argued, however, that inasmuch as the statute of this State above quoted affirmatively requires the guardian to “demand, sue for and receive * * * all personal property and demands due the ward,” these positive requirements exclude the common law right to sell a chose in action. In support of this view reference is had to Hayes v. Mass. Life Ins. Co., 125 Ill. 626. In that case it is held that while at common law, a guardian might have compromised or submitted to arbitration claims and demands due the ward’s estate, “it is manifest that when the legislature in the section referred to, undertook to define the powers and duties of guardians, and expressly provided that as to demands due the ward the guardian might ‘with the approbation of the court compound for the same and give a discharge to the debtor, a change and modification of the common law was intended. If before this statute the guardian might, in the exercise of his own honest discretion, compound and release a demand due his ward, after the passage of this statute he was clearly required to procure the approbation of the proper court before exercising such power;” and it is said that this statutory requirement “was intended by the legislature as an additional safeguard and protection to the ward,” etc. This language is used with reference to the last part of the section referred to, viz., that which authorizes the guardian to “compound” for demands due the ward, with the approbation of the court. The case holds that such composition can not be had under the statute except with the “approbation of the court.” But in the same decision, reference is made to an earlier case (Bond v. Lockwood, 33 Ill. 212), in which it was held the statute in question “was not designed and did not constitute a complete code, and that the purpose of the legislature was to confer upon the Probate Court the power to appoint guardians and to regulate their conduct according to the common law.” In Bond v. Lockwood the court says that “ while some of its (the statutes) provisions were declaratory of the common law and were appropriately introduced in conferring jurisdiction upon a new tribunal, it is evident that many of the powers and duties, rights and liabilities of guardians are not by the statute specifically defined. The statute contains such provisions as were necessary to define the nature of the jurisdiction conferred, prescribe the manner of its exercise, and correct some of the defects of the law as it then existed. In other respects the common law regulating the powers and duties, rights and liabilities of guardians was left in force.” If, then, the common law regulating the powers of guardians was left in force notwithstanding the statute in question, the power of sale, one of these common law powers, must still be regarded as in full force and effect.

It is, however, urged that the assignment of the judgment was never delivered by the guardian to Beck, from whom the assignee, Perkins, received it. The evidence upon this point, however, we are compelled to conclude justifies the conclusion apparently reached by the learned chancellor in the Superior Court, that the assignment was left by the guardian in the hands of or at least subject to the disposition of Beck, the president of the casualty company. The latter seems to have represented the guardian in the whole conduct of the case. The guardian was appointed and acted as such at the request, of said Beck, and it was the latter who conducted the negotiations with Perkins, purchaser of the judgment, and made out the assignment. Beck seems to have acted in the matter as the attorney and agent of the guardian all the way through, and while he deceived the guardian afterward and concealed the fact that he had collected the money for which the judgment was sold, yet it does appear that the assignment was in his hands and subject to his control in the same way as were other papers left with the casualty company in cases where Shaver acted as guardian. It is true, the guardian says, that in the event the deal went through, he “ was to receive the papers,” and that Beck was to let him know “if the deal would be consummated.” But he also testifies that “ nothing was said in Beck’s office as to what was to become of those papers if Perkins got ready to consummate the deal; they were simply deposited there for safe keeping.” It is clear, at least, that it was the guardian’s conduct in leaving the assignment with the casualty company under Beck’s control, that made it possible for the loss to occur. “ The principle is that when one of two or more innocent persons must suffer loss, upon him whose conduct made it possible for the loss to occur, must the consequences ultimately rest.” Sroelowitz v. Schultz, 86 Ill. App. 341, 347, and cases cited.

It appears that Perkins paid for the assignment of the judgment by a check payable to the order of Beck, and not payable to the order of the guardian. But in view of the conclusion that the guardian fully trusted Beck, and left the assignment with him, so that it might be used in case Perkins should decide to consummate the purchase, the fact that the money was paid directly to Beck, who appeared to have authority to collect, and apparently did have, while perhaps not in a high degree prudent on Perkins’ part, can not be regarded as invalidating the purchase.

It is urged that the assignees should not be allowed to retain out of the judgment they purchased more than the actual consideration paid therefor. But if the sale to Perkins was valid, he acquired title thereby to the judgment as it stood. We are unable to find any sufficient ground for depriving his assignees of any part of their purchase. The judgment must be affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Hercules Coal and Mining Co. v. Central Investment Co.
    1. Trials — By the Judge Without a Jury. — In trials by the court without a jury, where the evidence is conflicting, the finding of the judge, who sees and hears the witnesses and stands in the place of a jury, will not be, ordinarily, interfered with.
    2. Contracts — When Binding upon Both Parties Alike. — An arrangement entered into between two parties, by the terms of which one of them agrees to furnish to the other, at agreed prices, the coal for the season to be used in a flat building owned by such other party, to be accepted by his janitor, constitutes a contract between the parties binding alike upon each, and under it the party is bound to buy the coal needed for the building during the season, and for a failure to do so will be liable to the other for any damages sustained by reason of such failure.

      3. Measure of Damages — Breach of Contract for the Delivery of Coal. — On the trial of an action for the breach of a contract for the delivery of. coal, the allowance of the difference between the prices at which the seller agrees to furnish it and the market prices at the time of purchasing of coal to take the place of that which he refused or failed to furnish, is the proper measure of damages for the breach of the contract.
    4. Damages — Accruing after the Commencement of the Suit. — For a breach of a contract to deliver coal for the season, where suit is brought before the expiration of the season, damages are properly assessed for the remainder of the time after the suit is brought, down to the expiration of the contract (season) when such expiration is before the day of trial.
    Assumpsit, for the breach of a contract to deliver coal. Appeal from the Superior Court of Cook County; the Hon. Axel Chytraus, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.
    Affirmed.
    Opinion filed November 26, 1901.
    Young, Makebl, Bradley & Frank, attorneys for appellant.
    O. E. & Gr. I). Anthony, attorneys for appellee.
   Mr. Presiding Justice Freeman

delivered the opinion of the court.

This was a suit in attachment to recover for coal sold by appellant to appellee. Service was had upon certain parties as garnishees, and a conditional judgment entered against them. This judgment was made final, but was subsequently set aside upon appellee depositing with the clerk of the court an amount sufficient to cover the claim of appellant. Appellee filed a plea of a general issue with notice of set-off, in which damages are claimed of appellant for breach of contract. The cause was submitted to the court, a jury having been waived, and the claim of set-off was allowed, appellant recovering judgment for $55.52, instead of $271.69, the amount of its original claim.

The set-off is based upon a verbal contract which appellee alleges was entered into between the parties, by the terms of which, it is claimed, appellant agreed to furnish appellee, at agreed prices, the coal for the season to be used in a flat owned by the latter. The contract, according to the testimony, consisted of an offer by appellant’s agent to £l furnish the coal for the season at these prices,” and its acceptance by the janitor and agent of appellee, who testifies that he told appellant's agent that “ we would take all the coal what we needed for them buildings at that price, Maryland Smokeless for $2.90 and Indiana Block for $2.35;” and that appellant’s agent accepted the order, saying he was sure we would be satisfied with the delivery.” This testimony is denied by witnesses for appellant. But the evidence being conflicting, the finding of the judge, who saw and heard the witnesses and stood in the place of a jury, will not ordinarily be interfered with. Gaynor v. Harding, 76 Ill. App. 659-660; Hays v. Langley, 90 Ill. App. 500, 501.

Assuming then that the agreement was made as above, did it constitute a contract between the parties binding alike upon each ? The trial court found that it did, and we think correctly. The agreement was, on the one side, to furnish, and on the other to take coal of the kinds referred to, and all that “ was needed ” in appellee’s building at the agreed prices, during the season. There is evidence that this “ season ” included the winter season from the time the agreement was made in September, until May following. By virtue of such an agreement appellee was bound to buy of appellant the coal it needed for its said building for that season, and had it failed to do so would have been liable to appellant for any damages the latter might have sustained by reason of such failure. The contract was not void for uncertainty, but was binding upon both parties. National Furnace Co. v. Keystone Mfg. Co., 110 Ill. 427-434.

The trial court allowed to appellee the difference between the prices at which appellant agreed to furnish the coal and the market prices at the time of purchase of coal bought by appellee to take the place of that which appellant refused or failed to furnish. It is not disputed that this was a proper measure of damages for the breach of such a contract. The damages were properly assessed for the remainder of the time after the suit was brought down ■ to the time of the expiration of the contract — the end of the season — this being before the dajr of the trial. Mount Hope Cemetery Association v. Weidermann, 139 Ill. 67-76, and cases cited.

It is urged that the proof does not support the notice of set-off. However this may be, and the trial court appears to have found otherwise, it has been held that the damages could be recouped under the plea of general issue. Cooke v. Preble, 60 Ill. 381-382.

Finding no reversible error in the record, the judgment of the Superior Court must be affirmed.


author: Mr. Justice Shepard

text:
    Hale Elevator Co. v. George W. Hale, Ex’r, etc.
    1. Instructions — When Not Error to Refuse. — It is pot error to refuse an instruction the substance of which is covered by other instructions given in the same case.
    2. Same — Abstract Propositions of Law, When Not Reversible Error. —In an action between parties to a contract an instruction that “ if the jury think that any circumstance proven in the case is of greater weight in determining any issue than the oral testimony of witnesses they are at liberty to so decide, is in form the statement.of an abstract proposition of law and for that reason objectionable, but is not necessarily reversible error.
    Assumpsit, on a "written contract. Appeal from the Circuit Court of Cook County: the Hon. Charles Q-. Neely, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900,
    Affirmed.
    Opinion filed November 26, 1901.
    "Wing & Chadbourne, attorneys for appellant.
    "Wilson, Moore & MoIlvaine, attorneys for appellee.
   Mr. Justice Shepard

delivered the opinion of the court.

The appellant, Hale Elevator Company, prosecutes this appeal to reverse a judgment for $16,550 rendered against it and in favor of the appellee, George W. Hale, executor of the estate of William E. Hale, deceased, by the Circuit Court.

Suit was brought by William E. Hale, November 14, 1896. Declaration in assumpsit on written contracts,-in and by which the appellant agreed to pay William E. Hale a certain sum (to be ascertained in the way mentioned in the contract) for getting for appellant the contracts for constructing the elevators in the Champlain and the Marquette buildings in Chicago. These contracts comprise three letters, two addressed to William E. Hale and signed by appellant, per Chas. N. Coon, general manager, and one addressed to appellant and signed by William E. Hale, and the Vertical Transit Company, per William E. Hale, treasurer.

Appellant pleaded the general issue, and under the statute gave written notice of the special matters upon which it would rely on the trial.

The special matters in defense, of which written notice was given, consisted of a certain contract of W. E. Hale with the Hale Elevator Company, whereby it was contended that Mr. Hale had previously contracted to render the same services claimed in'this suit, and of the fraudulent concealment thereof by him from appellant’s manager; that the contract sued on was in fraud of the prior contract, and that Hale made false statements to appellant’s manager respecting material facts; that they were of a character to deceive a person of ordinary prudence, and that they were relied on, and it was solely by reason thereof the contract declared on was made.

The contract sued on was entered into October 19, 1893. and was for the securing by Hale of certain contracts for the Hale Elevator Company for the construction of elevators in the Marquette and Champlain buildings.

The prior contract entered into December 24, 1888, between Hale and the Hale Elevator Company, contains the following agreement on the part of William E. Hale and George W. Hale:

“ In consideration of one dollar ($1) to them in hand paid, and the premises and agreements herein contained, the said parties of the second part hereby covenant and agree to give so much of their time for the period of ten years from .July 1, 1888, as they shall give to the elevator business in the territory reserved to them in said agreement of May 1, 1878, exclusively to the Hale Elevator Co., and to aid and assist said company in such manner as they may be able when in Chicago, without being actually engaged in the business, and to advise and consult with its officers, and to transfer to it with the business, whatever influence and assistance they may be able, to enable it to realize the full benefit and enjoyment of the business heretofore conducted by them under the firm name of W. E. Hale & Co.”

This is the prior contract mentioned in the notice of special matter in defense, and contains all that Mr. Hale contracted to do.

It will be observed that by this contract Hale was not required to perform any active services whatever. He was only to give so much of his time as he should devote to the elevator business, and to aid and assist the company as he might be able when in Chicago, without actively engaging in the business, to consult and advise, and to transfer with the business whatever influence and assistance he could to make it effectual.

On the other hand, by the contract sued on, he was required to go out and actively enlist himself in procuring these contracts. He was to be paid if he secured them, otherwise not.

We do not think there was any conflict of duty under the last agreement sued on, and the prior one. The claim, therefore; of appellants, that he had done no more under the last than he was bound to do under the first contract, does not appear to us to be well founded. And for the same reason it was not his duty to disclose the first contract when he made the last one. But it is contended that Hale was guilty of fraudulent deceit upon appellant’s manager concerning matters other than the alleged suppression of the existence of the agreement of 1888.

This was a question of fact which the jury passed upon on instructions that stated the law correctly. The twelfth and thirteenth instructions asked by appellant were submitted on that subject, and were refused in the form submitted, and modified and given as modified, so as to limit the effect of the false representations, if found to have been made, to the modifications of the contract thereby secured. In other words, they instructed the jury that Hale could not recover the amount of the reduction so obtained; instead of that he could not recover anything. This modification of the instruction was, we think, correct.

The other of appellant’s instructions that were refused by the court were either covered by instructions that were -given, or were incorrect in their statements of the law applicable to the case. We have already shown that the services rendered under the contract in suit were different from those which were required to be rendered under the prior contract of 1888. The two contracts called for the rendering by Hr. Hale of services of an entirely distinct character, as has already been shown. He was awarded no more than his services in procuring the contracts amounted to. The fair inference from the amount of the verdict is that he was refused a recovery for any of the services which the jury may have thought the evidence showed he laid claim to, that were covered by the prior contract of 1888.

It is argued that as to appellee’s instruction number 2, it was erroneous because not based upon any evidence in the case. But we think this contention arises from .a misconception of the evidence. There is certainly evidence tending to show that appellant’s manager did consult with others about Mr. Hale’s efforts to get the contracts, and did not rely upon Hale’s representations and was not influenced thereby.

Appellant’s counsel next directs attention to the concluding sentence of appellee’s seventh instruction, which is as follows:

“ And if you think any circumstances proven in the case' are of greater weight in determining any issue than the oral testimony of witnesses, you are at liberty to so decide.”

And they urge that it has no application to the case.

The preceding part of the instruction was the usual one concerning the credibility of witnesses and what may properly be considered in connection with their testimony in weighing it.

It is not plain what circumstances are referred to in the instruction, and we do not mean to approve it. Tet we can not see that it produced any harm to appellant. Proven circumstances may always be relied upon to overcome the testimony of witnesses. We regard the instruction as being in form the statement of an abstract proposition and for that reason objectionable, but not necessarily harmful.

We discover no substantial error in the admission of evidence. Even if there was error it is quite plain that no harm was done by it.

We think that substantial justice was attained by the verdict.

The jury has settled all questions of fact, and there was no substantial error of law committed. The judgment will therefore be affirmed.


text:
    City of Chicago v. Henry Peck.
    1. Lease— Execution of, Between a Private Citizen and the City of Chicago. — A lease between a private individual as lessor and the city of Chicago as lessee, executed under the corporate seal of the city, signed by the mayor in his official capacity and approved by the chairman of the finance committee, is sufficiently executed for and on behalf of the municipality and is binding upon the city.
    3. City of Chicago — Power to Lease Property for a Small-pox Hospital. — Under the statute (R. S. Chap. 34, ¡Sec. 63, Par. 78) empowering cities and villages to do all acts and make regulations which may be necessary or expedient for the promotion of health or the suppression of disease, the city of Chicago has the power to lease property and locate a. small-pox hospital thereon.
    3. Practice— When the Execution of a Lease Can Not be Denied.— On the trial of an action in assumpsit for arrears of rent, to the declaration, to which is attached a copy of the lease sued upon, the defendant can not, under the plea of the general issue, not verified by affidavit, deny the execution of the lease.

      4. Same — Proof of the Execution of an Instrument Sued On, under Pleas Not Verified. — Where a party brings a suit in assumpsit against the city of Chicago, upon a lease, for arrears of rent, an<f the only plea of the city is the general issue, not verified, the plaintiff is not under the necessity of proving the execution of the lease by the city.
    5. Ultra Vires — Defense of, When to be Pleaded and Proved.— When a municipal corporation seeks to avoid its contract on the ground of its want of power to contract, and the contract is not upon its face necessarily beyond the scope of its authority, such authority will be presumed, and in an action upon such contract, the defense of ultra vires must be both pleaded and proved.
    6. Landlord and Tenant— When the Holding Becomes from Year to Year. — Where a tenant ratifies his lease by the payment of rent for the original term and remains in possession after the expiration of that term without a new agreement, he becomes a tenant from year to year at the option of his landlord, upon the terms of the original lease.
    7. Same-Presumption of Renewal Not to be Rebutted by the Tenant Alone. — Where a tenant holds over after the expiration of his lease without a new agreement, the presumption is that he does so upon the terms of the original lease, and such presumption can not be rebutted by proof of a contrary intention on the part of the tenant alone.
    8. Trials — By the Court Without a Jury, Conclusive. — Whether a tenant holds over after the expiration of his term is a question of fact, and when the evidence is conflicting and the trial is by the court without a jury, the finding will not be disturbed by an Appellate Court unless it is manifestly against the weight of the evidence.
    Assumpsit, for arrears of rent. Appeal from the Circuit Court of Cook County; the Hon. John Gibbons, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.
    Affirmed.
    Opinion filed November 26, 1901.
    Charles M. Walker, Corporation Counsel, William H. Fitzgerald, Assistant Corporation Counsel, attorneys for appellant.
    Churan & Sabate, attorneys for appellee.
   Mr. Presiding Justice Freeman

delivered the opinion of the court.

This is an appeal from a judgment rendered by the Circuit Court of Cook County in favor of the appellee against the appellant. The cause was submitted to the court, a jury being waived. The action is based upon what purports to be a lease claimed to have been made between the parties, dated July 3,1894. In and by the terms of this lease, the city of Chicago rented the premises therein described from the appellee for the term of twelve months, which term began on the first of May, 1894, and terminated April 30, 1895. The city took possession of the premises and paid the rent for the original term. The lease in question is signed by the appellee and is executed .on the part of the city, as it is claimed, by the signatures as follows : “ John P. Hopkins, Mayor. (Seal.) Approved, M. B. Madden, Chairman Finance Committee.”

Evidence was introduced tending to show that after the expiration of the term mentioned in the lease, the city of Chicago continued in possession of the premises, and that said city did not surrender possession thereof, or offer to do so, for three years. Appellee claimed to be entitled to recover rental under the lease for three years after the expiration of the term therein mentioned; it being claimed that the city was liable under said lease by reason of said holding over. The lease provided that the city should immediately, upon the expiration of the term, restore the premises to the same condition in which they were at the time of their taking possession, and it was sought to recover damages for the alleged failure of the city to comply with this provision of the lease. This, however, the court refused to allow, and judgment was rendered in favor of the appellee for $7,000, being the rental for one year of the term, during which it was claimed the city remained in possession after the expiration of the original term, as provided in the written instrument.

It is contended that the alleged lease was not executed by appellant. The instrument was introduced in evidence. As before stated it is executed in behalf of the lessee as follows: “ John P. Hopkins. (Seal.) Approved, M. B. Madden, Chairman Finance Committee.” It states, however. that it is made “ between Henry Peck, of the City of Chicago and State of Illinois, party of the first part, and the City of Chicago, in Cook county and State of Illinois, party of the second part.” It is thus evident upon the face of the instrument that its purpose was to bind the municipality. There is testimony in the record that Hopkins was mayor at the time, appellee’s agent testifying that “ in making the alleged lease he dealt with M. B. Madden, the chairman of the finance committee, and the mayor of the city of Chicago, Mr. Hopkins, and with the commissioner of health.”

This evidence is not disputed, and it may be considered established that the instrument in question, purporting to be a lease to the city of Chicago, bore the signature and seal of the mayor of the said city, the lessee thereunder. We are of opinion that it sufficiently appears the lease was executed by the majmr for and in behalf of the municipality.

There would be no question of .its proper execution if we consider an ordinance introduced in evidence passed April 30, 1894, making a special emergency appropriation of $100,000, for the establishment of additional small-pox hospitals, made necessary, as the ordinance states, by the spread of small-pox since the passage of the annual appropriation ordinance for that year. That ordinance authorizes the erection of such additional small-pox hospitals “ as may be approved by the mayor and the finance committee of the city council.” The lease in question was executed by the mayor and approved by the chairman of said finance committee and a small-pox hospital located thereon. There is no question that the city had power to rent premises for such a purpose. It is expressly empowered to do all acts and make all regulations which may be necessary or expedient for the promotion of health or the suppression of disease. Eev. Stat. Chap. 24, Sec. 62, par. 78.

It is, however, urged by appellant’s attorneys that the lease in this case is not shown to have been entered into in accordance with the requirements of the statute; that the appropriation ordinances referred to as authorizing such a contract, are not by the evidence shown to have been' passed by a yea and nay vote, nor to have been adopted by the requisite majority. See Chap. 24, Art. 3, section 13, and Art. 7, sections 2 and 3, Chap. 21, E. S.

It sufficiently appears, we think, that improvements in the Avay of additional small-pox hospitals Avere made necessary by such a casualty or accident as a small-pox epidemic; at least the necessity is not questioned. It is, hoAVever, true, that while the objection Avas not specifically made to the introduction of the ordinances on that ground, nor is it intimated they were not in fact properly passed, yet appellee’s counsel did not introduce the additional evidence showing compliance in the passage of the ordinance with the provisions of the statute referred to. Under the pleadings, however, the introduction of the ordinance Avas not, we think, necessary. The action is assumpsit, and to the declaration, to which was attached a copy of the lease, appellant pleaded the general issue, without verification. Sec. 33 of the Practice Act provides that “No person shall be permitted to deny, on trial, the execution or assignment of any instrument in writing, Avhether sealed or not, upon which any action may be brought, or which * * * is admissible under the pleadings when a copy is filed, unless the person so denying the same shall, if defendant, verify his plea by affidavit.” Not having complied with this requirement, the appellant is not in a position to deny tfie execution of the lease in controversy. In City of Chicago v. English, 160 Ill. 476, on page 479, it is said in a case Avhere a verified plea of non est faoimm was filed by the city in a suit upon a lease: “ If the proof shows the execution of the instrument by the parties, the poAver to make it can not be questioned under the plea, and any other defense which would make it void or voidable must be specially pleaded.” In the case at bar, the only plea being the general issue, appellee was not even under the necessity of proving the execution of the lease by the city. In the case of Bailey v. Valley National Bank, 127 Ill. 332, page 339, it is said : “It is clear to us that the plea referred to in the 33d section, and Avhich the pleader must verify by affidavit before the plaintiff is put to proof in the first instance of the execution of the instrument, Avas some one of the pleas which at common law Avould be a denial of the plaintiff’s right of recovery thereon.” There was, we think, no error in admitting the instrument in evidence.

It is contended that the evidence fails to show authority on the part of the mayor and finance committee to enter into the contract in question. But this defense, which would make the contract “ void or voidable, must be specially pleaded.” Chicago v. English, supra. In Encyclopedia of Pleading and Practice, Vol. 14, it is said :

“ When a municipal corporation seeks to avoid its contract on the ground of its want of power to contract, and the contract is not upon its face- necessarily beyond the scope of its authority, its authority to make such contract will be presumed, and in an action on the contract the defense of ultra vires must be both pleaded and proved.”

In Brown v. Board of Education, 103 California, 531-534, it is said: “ But surely", when a corporation seeks to avoid its own contract on the ground of its want of power to contract, it must make good its defense of ultra vires by plea and proof. A contract by a corporation which is not upon its face necessarily beyond the scope of its authority will, in the absence of proof, be presumed to be valid.”

It is urged by appellant that, in any event, appellee has mistaken his remedy; • that he should have proceeded by mandamus. It is argued in reply by appellee that no such objection was made in the trial court, and it is too late to raise it here for the first time on appeal. However that may be, under the pleading and proof, we do not consider the objection well taken.

It appearing, therefore, that the relationship of landlord and tenant has been established by the written lease, and by other evidence, the city was bound by the obligations thus assumed. It is shown by the evidence, and is undisputed, that the lease was ratified by payment of the rent for the original term. If appellant continued to hold over and remained in possession after the expiration of that term without a new agreement, it became thereby a tenant from year to year, at the option of the landlord, upon the terms of the original lease. In Clinton Wire Clothing Co. v. Gardner, 99 Ill. 151, it is said: “ The legal presumption of a renewal from the holding over can not be rebutted by proof of a contrary intention on the part of the tenant alone.”

Whether the appellant did so hold over Avas a question of fact, upon which the evidence was somewhat conflicting. The finding of the trial judge, acting in the place of a jury, will not, under these circumstances, be disturbed by an Appellate Court, unless manifestly against the weight of the evidence. Searing v. White, 58 Ill. App. 81; Louden v. Mullins, 52 Ill. App. 410. See also Luthy v. Kline, 56 Ill. App. 314.

We have examined the evidence with care, and find no sufficient-reason to question the correctness of the finding.

We have not deemed it necessary to refer to every point raised in the rather voluminous briefs of counsel. It must suffice to say that we find no reversible error in the judgment, and it must be affirmed.


author: per Curiam.

text:
    Charles E. Cessna et al. v. Otis M. Benedict.
    1. Appellate Court Practice — Assignments of Error Necessary.— In a case on appeal in the Appellate Court, where there are no errors assigned, as required by the rules, there is nothing before the court for consideration.
    S. Waiver — Of a Demurrer in Chancery Suits. — -In a chancery proceeding, where there is a demurrer on file and the attention of the trial court is not called to it during the pendency of the case in the court below, the demurrer must be considered as waived.
    3. Assignments of Error — Are Essential. — The assignment of error is not a form, but is essential.
    Bill in Chancery. — Appeal from the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.
    Affirmed.
    Opinion filed November 26, 1901.
    A. S. Kobebtson, William S. Hewburgek and Edward I. Buoklin, attorneys for appellants.
    Hornstein & Coith, attorneys for appellee.
   Opinion

per Curiam.

This is an appeal from a chancery decree. The principal objections seem to be, first, that the evidence did not warrant the finding that the transactions between appellant Cessna and appellee, were in the nature of an open account, upon which appellee charged and received usurious interest, and the finding that the entire debt had been in fact paid; second, that there was a demurrer still pending and undisposed of when the cause was referred to the master and when the final decree was entered; third, that the decree includes in the judgment for costs the fees of the master and his stenographer, and is excessive; fourth, that appellant Card, to whom notes in controversy were transferred by Cessna, was not an innocent purchaser thereof.

There are no assignments of error, and there is therefore nothing before this court for consideration. If, however, we were at liberty to consider the points made in the briefs, we should be compelled to conclude that the finding of facts by the court was warranted by the evidence; that the demurrer was waived; that the question as to the master’s charges was not raised in the trial court; and that the evidence justified the conclusion that appellant Card was not an innocent purchaser for value,

Assignments of error are not a mere form, but are essential. Ditch v. Sinnott, 116 Ill. 288; Taylor v. Wright, 121 Ill. 455-468; Lang v. Max, 50 Ill. App. 465; French v. Meehan, 77 Ill. App. 577.

The judgment of the Circuit Court must be affirmed.


author: Mr. Justice Waterman

text:
    Emanuel Weinberger v. M. McDonough et al.
    1. Appellate Court Practice — As to Setting Aside Verdicts.— Where the evidence in a case tried by a jury is conflicting, and two juries have come to the same conclusion, while it may be that the Appellate Court would, if the matter were submitted to it de novo, arrive at a different result, if there is evidence to support the verdict, after being ratified by the action of the trial court, it will not be set aside.

      2. Evidence — Harmless Error in Admitting. — -Where evidence of a matter offered by a party litigant is admitted over the objection of his opponent, and such opponent subsequently testifies in the case and admits the matter which the testimony tends to prove, the fact as to whether the court erred in the admission of such evidence is a matter of no material consequence.
    Assumpsit, on an appeal from a justice of the peace. Appeal from the Circuit Court of Cook County; the Hon. Abner Smith, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.
    Affirmed.
    Opinion filed November 26, 1901.
    James R. Ward, attorney for appellant.
    Bulkley, Gray & More, attorneys for appellees.
   Mr. Justice Waterman

delivered the opinion of the court.

Appellees, constituting the firm of E. P. Reed & Co., brought in a justice court an action of attachment against Louis Heidelberger to recover the sum of $104, whereupon appellee McDonough, as a constable, seized certain merchandise then in the store of appellant; whereupon appellant brought, in a justice court, this action of replevin. From the judgment by him there obtained, appellees appealed to the Circuit Court, wherein a trial by jury was had and a verdict rendered for the defendant in such action of replevin.

A new trial having been granted, another jury trial was had with the same result, upon which second verdict the judgment from which this appeal is taken was had. Upon the trial it appeared that a short time prior to the beginning of the attachment suit, the plaintiff, a brother-in-law of the defendant in that suit, had purchased from him his entire stock of goods and the business which he was then carrying on in Chicago, and having taken possession of the stock thus acquired had put his name on the store as proprietor and his agents in possession of the goods.

Upon the trial of the replevin suit, the defendant insisted 'and offered evidence tending to show that Louis Heidelberger was at the time he made such sale largely indebted for the merchandise he so sold, and among others, to the plaintiff, for the account upon which said attachment was based; that the sale by Heidelberger was made for the purpose of hindering, delaying and defrauding his creditors, which purpose appellant, when he bought, then well understood, having, as appellees insisted, entered into a conspiracy with said Heidelberger to enable him to defraud his creditors and to secure the stock of goods which he then had, against claims made by his creditors.

The question of fact arising upon such contention by appellees was hotly disputed. Two juries have come to the same conclusion; and while it maybe that this court, if the matter were presented to it de novo, would arrive at a different result, we do not regard the testimony such as to warrant us in overturning the verdict of the jury, ratified as it has been by the action of the trial court.

It is said that the court below erred in admitting certain evidence as to the existence and amount, if any, of the indebtedness of Heidelberger to Reed & Company. Heidelberger, a witness for the plaintiff, testified admitting such indebtedness and the amount thereof.

Such being the case, whether evidence that afterward came in was properly admissible, is of no material consequence. Indeed, counsel for appellant in his brief says, 11 There is no dispute or controversy as to the facts of this case.” The instruction given on behalf of the defendant may be open to some just criticism, but taking the instructions as a whole, we think they fairly informed the jury as to the law concerning the facts presented to them.

The issues in the case "were simple, easily understood, and we find no reason for thinking that the jury were misled by anything the court did.

While we have serious doubt as to whether the jury arrived at a correct conclusion, it can not be said that the evidence did not warrant the verdict.

The judgment of the Circuit Court is affirmed.


text:
    Cooke Brewing Co. v. Stephen Ryan.
    1. Practice — Power of a Court to Limit the Number of Witnesses. —Where a matter, though not conceded, is not seriously in dispute, that is, when concerning it there has been, or it is admitted there is to be no contrary evidence, the court may reasonably limit the number of witnesses to be heard; but this court is not aware of any rule which permits a trial court, under such circumstances as exist in this case, to limit the number of witnesses which either party may call.
    Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. Charles Q. Neely, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.
    Reversed and remanded..
    Opinion filed November 26. 1901.
    Statement. — Appellee brought suit in the Circuit Court of Cook County to recover damages from appellant for personal injuries sustained by him on the 2d day of July, A. D. 1898, by reason of the alleged negligence of appellant.
    Appellee was, on the day mentioned, about six o’clock in the evening, on the north side of Twenty-sixth street east of Emerald avenue.
    Emerald avenue makes a jog near the crossing of Twenty-sixth street so that the east line of the north part of Emerald avenue is nearly opposite the west line of the south part of Emerald evenue.
    Appellee’s contention was that he was crossing Twenty-sixth street, south, toward his home, and when he reached that part of the street lying between the east and westbound street-car tracks on Twenty-sixth street, he noticed appellant’s team attached to a beer wagon coming rapidly east on the east-bound track; that he hesitated for a moment and took two steps backward between the tracks, and while in that position, and as the wagon was passing him, one of the beer barrels which had been piled upon the wagon fell off, striking him in the breast, felling him .to the ground and crushing his leg, causing the injuries for which he sued.
    The defendant contended that the plaintiff was attempting to climb upon, the wagon and pulled this keg off upon himself; that this was an ordinary brewery wagon with a skeleton frame or bed for holding the kegs, the center being eight inches lower than the rails forming the sides.
    Defendant contended that plaintiff in his attempt to climb upon the wagon got upon a keg which was hanging in the hooks and with his hand caught hold of the rim of one of the kegs tying on the side rail and in endeavoring to raise himself up, overbalanced the keg and fell, causing the keg to fall with him.
    The case was tried in the Circuit Court and on May 16, 1900, the jury brought in a verdict against this defendant in the sum of $10,000. Judgment was entered on the verdict. Upon the trial each side introduced evidence to sustain its contention.
    B. F. Bicholson and F. J. Canty, attorneys for appellant.
    King & Gross, attorneys for appellee.
   Mr. Justice Waterman

delivered the opinion of the court.

Upon the trial the plaintiff gave before the jury the testimony of seven witnesses, including the plaintiff, who claimed to have seen the accident happen, and testified substantially in accordance with the plaintiff’s contention that he was standing in the street and not endeavoring to get on the wagon, neither had he hold of it at the time the barrel fell and injured him. The defendant then called nine witnesses who testified substantially in accordance with the defendant’s contention; that the accident was caused by the plaintiff’s attempt to climb upon the wagon, as several of his companions had already done, and that while so doing, he was injured.

The defendant then offered four more witnesses and asked that they, as witnesses to the occurrence, might be allowed to testify as to what they saw done by the plaintiff immediately before and at the time he was injured. When the first of these four was called, the plaintiff’s counsel was asked how many more witnesses he had on this point; to which the reply was, “We have four.” The court then said: “ I will limit you to one more witness on this point; ” to which ruling the plaintiff excepted. Afterward the plaintiff said: “I desire to call Thomas McElligott and Lawrence King.” The Court: “ By this witness }tou want to show what occurred.” Mr. King: “ Substantially the same facts as shown by the others.” The Court: “No, sir, I will not allow them to be called;” to which ruling the defendant excepted. The Court: ^ “If they will swear to any additional facts, I will allow you to call them.” Counsel for plaintiff: “We concede that these — ” Mr. Bicholson: “ You need not concede anything.” The Court: “You concede what?” Mr.King, counsel for plaintiff: “ That if they will swear they would testify to the same line.” The Court: “ As I say, if you have witnesses to swear to any other fact, you may call them, but I will not allow you to call more cumulative evidence, and if they are on the same line, I will exclude them.”

It appears that the witnesses which the court refused to permit the defendant to call, were produced that they might testify as to what happened immediately before and at the time of the accident — the vital point in the case, the matter upon which the entire controversy turned, the essential thing in dispute.

We are not aware of any rule which permits a court, under such circumstances, to limit the number of witnesses which either party may call. Where a matter, though not conceded, is not seriously in dispute, that is, when concerning it, there has been, or it is admitted there is to be no contrary evidence, the court may reasonably limit the number of witnesses to be heard, but not under such circumstances as the limitation in this case was made.

Where a particular point appears to the court to be satisfactorily established, the calling of further witnesses may be stopped subject to the right to recall should the point be subsequently disputed. Such, so far as we are aware, has always been the rule and practice in this State, as is abundantly established by Gray v. St. John, 35 Ill. 222, 238; Village of South Danville v. Jacobs, 42 Ill. App. 533, 535; Union National Bank v. Baldenwick, 45 Ill. 375, 378; White v. Herman, 51 Ill. 243-246; Traders Ins. Co. v. Gatlin, 71 Ill. App. 569; Green v. Phoenix Mut. Life Ins. Co., 134 Ill. 310; Crane Co. v. Stammers, 83 Ill. App. 329, 333; Barhyte v. Summers (Mich.), 36 N. W. 93.

The defendant had introduced a written statement signed by plaintiff’s witness, Sullivan. Sullivan, upon his examination by the plaintiff, while admitting the signing of this statement by him, had in effect testified as to the circumstance under which it was signed and the understanding which he had of it, in such a manner as to seriously impair its force as impeaching evidence.

The defendant thereafter called several witnesses to testify as to the circumstances under which this writing was signed by Sullivan, whether it was read to him, and what he said'at the time, concerning circumstances of the accident, and what was contained in the statement. The court refused to allow these witnesses to testify. It is urged by appellee that the court, in so doing, merely exercised its discretion to allow witnesses who had left the stand to be recalled. Such does not appear to have been the ground upon which the court based its refusal.

The offered testimony appears to have been admissible, and if excluded, could only so be because the witness had once testified without being examined as to this matter.

As the case must be tried again, we refrain from any comments upon the evidence; for the error in excluding witnesses called by the defendant to testify as to the principal question of fact in dispute, the judgment of the Circuit Court is reversed and the cause remanded.


text:
    City of Chicago v. J. E. McNichols et al.
    1. Practice — Assumpsit Lies for Money Collected by a City on an Installment of a Special Assessment. — Where a city issues a voucher for work done, to be paid for out of the collection, of an installment of a special assessment, and makes a collection of the installment for which the voucher is issued, assumpsit will lie upon the promise in the voucher to pay from the funds so collected, and the objection that a judgment against the city in such an action would result in compelling payment out of the general city property instead of the special assessment fund alone, is not well taken.
    Assumpsit, upon a special assessment voucher. Appeal from the Circuit Court of Cook County; the Hon. Edward P. Vail, Judge, presiding. Heard in the Branch Appellate Court at the -October term, 1900.
    Reversed, with a finding of facts.
    Opinion filed November 26, 1901,
    Statement. — This is an action in assumpsit by appellees to recover upon a special assessment voucher, which is as follows:
    Warrant Ho. 18,441. Estimate Ho. 1. Installment Ho. 5.
    Special Assessment Vouchee.
    Bureau of Sewers.
    Chicago, May 21, 1894.
    From the collection of the fifth installment of the special assessment above mentioned made by the city of Chicago, and as confirmed by the County Court of Cook County’ Illinois, on the 13th day of September, A. D. 1893, for the purpose of improving building sewers in the city of Chicago, Illinois, but out of no other assessment or fund on the-day of-189-, or when and as so collected and in the city ti’easury, the city of Chicago will pay to J. E. and T. Mc-Hicliols or order, the sum of six thousand two hundred and eighty-five and 24-100 dollars, being part of fifth installment of the contract price upon the contract of said sewer for said work, with interest thereon at the rate of six per cent per annum, from the 21st day of May, 1894, and annually thereafter, or when and as thereafter collected and in the city treasury, or so much of said principal sum and such interest as shall be so collected by said city upon said installment and interest thereon.
    This voucher is for part only of said fifth installment of the contract price for such improvement, and will only share 'pvo Tcubcv with the vouchers for the remaining part thereof, in such principal moneys and interest so collected.
    This voucher is given under sections 55 and 63 of article 9 of an act of the General Assembly of the State of Illinois, entitled “An act to provide for the incorporation of cities and xdllages,” approved April 10, 1872, as amended by the act approved June 15, 1891, in payment for part of the work, labor and materials done, performed and furnished for said improvement.
    By accepting this voucher the holder thereof expressly agrees that the city of Chicago shall and does have the right to pay the whole or any part thereof at any time after the date hereof. The agreement of said J. E. and T. Mc-Michols accepting this voucher hereafter appearing is a part of this voucher.
    ]ST. J. Jones,
    Registered: Commissioner of Public Works.
    L. S. Hates, -
    Acting Chief Clerk, Wh. K. Ackerman,
    Comptroller’s Office. City Comptroller.
    In consideration of the issuing of this voucher we hereby for ourselves, heirs, executors, administrators and assigns, accept the same in full payment of the amount herein stated, and relinquish any and all claims or liens we may have against the city of Chicago for the work mentioned herein, or for the payment of this voucher, except from the collection of the installment herein named.
    J. E. and T. McISTici-iols, Contractors.
    It appears that $212 was assessed against the city for public benefits, and is-unpaid; that the city collected within $109.06 of the principal of the voucher; that the city paid appellees all it has collected on account of the principal and $24 more; that it has collected $1,323.63 on account of interest of wrhich it has paid appellees only $1,079.64, leaving $243.99 collected by the city but not paid over; that the entire balance unpaid upon the voucher at the time of the trial was $85.24 principal, and $621.35 interest, a total of $706.59,for which judgment was rendered against appellant.
    Charles M. Walker, Corporation Counsel, and Roswell. B. Mason, Assistant Corporation Counsel, attorneys for appellant.
    Charles S. Babcock, attorney for appellee.
   Mr. Presiding Justice Freeman

delivered the opinion of the court.

It is contended for the city that the proof did not warrant any verdict; that assumpsit is not the proper form of action; that as the appellees agreed to be paid from the special assessment fund only, they have no general claim and can not recover against the city; that their remedy is by mandamus for the amount collected and not turned over, and for a new and supplemental assessment for the uncollected balance; that the release or waiver signed by appellees released the city in any event except from collection of the installment, and that the verdict is .excessive.

That the proof warrants a verdict against the.city for the amount it has collected of the fifth installment of the special assessment is, we think, clear. The voucher contains an express promise to pay. It creates, therefore, to the extent of the fund collected, a contract obligation, and to that extent we know of no reason why the city is not subject to an action ex contractu. If so, assumpsit will lie. There is in this no departure from the manner of compensation prescribed by the statute. Having funds in hand which it has expressly agreed to pay upon the voucher sued on, it is liable upon its promise to pay, as in the case of any other promisor. Cases holding that a warrant drawn against a tax levy discharges the corporation from liability on account of the services for which it is drawn, as in Law v. The People, 87 Ill. 385, see p. 400, referred to by appellant’s counsel, are not in point. It is true “ the warrant is given and received in full satisfaction for the services .rendered or material furnished.” But in the case before us the suit is not for such services or material. It is upon the specific promise to pay according to the terms of the warrant itself. The statute in force when this assessment was made provided that persons accepting a voucher like the one in question here,shall relinquish all claim or lien théreon against the municipality, “ except from the collection of the installment” for which said voucher is issued. '(Sec. 63, Art. 9, Chap. 94, R. S.) The suit in the case before us is brought upon the promise to pay from the funds so collected. The objection that a judgment against the city in such action would result in compelling payment out of the general city property instead of the special assessment fund alone, is not well taken, where, as in this cáse, it appears that the city has collected and holds money belonging to said fund. When so collected, the name under which the money is held is a mere matter of bookkeeping. It is the city and the whole city which holds the money, and the whole city is liable therefor.

The remedy is complete at law to the extent of the money so collected and mandamus is not the appropriate remedy, “ Where the ordinary proceedings at law afford a remedy this writ (mandamus) is never awarded.” People v. Clark County, 50 Ill. 213, 215.

It appears that §243.99 remains in the city’s possession on account of the interest collected from the fifth installment against which this voucher is drawn. It further appears that the unpaid amount assessed against the city for public benefits is $212. This last can only be collected by general taxation. (Newman v. City of Chicago, 153 Ill. 469, p. 446.) An item from the annual appropriation ordinance appropriating “ for public benefits including the improvement of Randolph street market $21,000,” was introduced in evidence, tending to show that general taxation for public benefits had been resorted to, and payment of such benefits provided for. By its terms the appropriation was for public benefits generally, and out of it can undoubtedly be paid any such benefits remaining unpaid. We regard the evidence as properly admitted.. The total amount collected and on hand liable for the payment of the voucher sued upon is therefore $243.99 interest and $212 assessed against the city for public benefits, making a total of $455.99. From this should be deducted an over-payment of $24 made by the city upon the principal, with which appellant is entitled to be credited, leaving a balance of $431.99, applicable upon appellees’ voucher.

It is said by appellant’s counsel that from all that appears, the interest,money collected from property holders “may have been used to pay some other voucher payable out of this fifth installment.” If any of it has been thus used, it was matter of defense, and the burden of proof was on appellant. No such evidence was offered. So far as appears appellees’ voucher was the only one so payable.

For the amount collected and not paid over, appellees are entitled to judgment. Whether to compel collection of the balance mandamus is the appropriate remedy is not now before us. At all events appellees are not entitled in this action to recover such uncollected balance. To the extent, then, that the judgment exceeds the sum mentioned, it is erroneous. We do not deem it necessary, however, to send the case back for a new trial. There is a definite amount which the evidence shows appellees are undoubtedly entitled to recover. The judgment of the Circuit Court will therefore be reversed and judgment entered here in favor of appellees for $431.99. Eeversed.

Finding of Facts. — The court finds that the appellant has collected and holds the sum of $243.99, which is due upon appellees’ voucher sued on, for interest collected from property-holders upon the fifth installment of the assessment in said voucher mentioned; that there is due upon said voucher the sum of $212 assessed against appellant for public benefits from said assessment; that appellant has paid upon the principal of said voucher $24 more than it has collected, for which it is entitled to be credited; that there is due appellees from appellant after deducting said credit the sum of $431.99.


text:
    Thomas Brown et al. v. Theodore H. Schintz, Trustee, et al.
    1. Appellate Court Practice —Sufficiency of the Transcript of Record. — Where, in a case pending for determination in this court, the transcript of the record is not complete as to the whole case, but fully and fairly presents all the matters material and necessaiy for a decision of the questions involved under the assignment of error, it is sufficient.
    2. Same— Wheyi the Appellant Can Not Complain of a Decree.— A defendant in the court below, when appellant in this court, can not complain because the relief granted in the decree against him. was not all that was asked for in the bill.
    3. Same — Sufficiency of the Certificate of Evidence. — In the Appellate Court, where legal questions alone are to be raised, it is sufficient if it appears by the certificate of the judge that evidence tending to support the issues was heard by him.
    4. Banks and Bank^g — Contract Between a Depositor and, His Banker. — By the universal consent of the commercial world it is the contract between a depositor and his banker that the banker when he receives a deposit shall pay it out on the presentation of the depositor's checks, in such sums as his checks may call for, and to the person presenting them, and the banker agrees with the whole world, that whoever shall become the owner of such a check shall, upon its presentation, be entitled to receive the amount specified in such check, provided the drawer shall at the time have the amount on deposit.
    o. Same — What is a Reasonable Time for the Presentation of Checks for Payment. — A reasonable time in which a check must be presented and payment demanded of the bank upon which in is drawn, where all parties tb the check reside or are located in the same city, is until the close of banking hours on the next day after the delivery of such check.
    6. Checks — A Loss is Necessary to Discharge the Drawee. — The general rule is, that to discharge the drawee of a check because of delay in its presentation for payment, a loss to him must be shown.

      7. Estoppel — Of a Party to Dispute a Decree. — Where an order of a court recites on its face that it was entered on the petition of a receiver and with the consent of all the parties in interest, the parties affected by the order when appellants in the Appellate Court, are estopped to dispute it.
    8. Receivers — Power to Mortgage Property. — Although it is unusual for a receiver to give a mortgage to secure money loaned to him, the power to mortgage is in principle the same as the power to issue his certificates and make them a first lien upon the property.
    Foreclosure. — Error to the Circuit Court of Cook County; the Hon. Elbridge Hanecy, Judge, presiding. Heard in this court at the October term, 1901.
    Affirmed.
    Opinion filed November 26, 1901.
    Statement.- — This suit in error attacks the propriety of a decree entered in favor of the defendants in error, Huber and Mann, as holders and owners of certain notes made by Thomas Brown and secured by trust deeds executed by himself and wife to Theodore H. Schintz.
    The principal notes aggregated §3,200, and were respectively for §2,500 (owned by Huber), and $700 (owned by Mann), and represented the amount of what is called a building loan agreed to be made by Schintz to Brown, on which Schintz was to advance the money as the building progressed.
    The only money ever advanced by Schintz on either of the notes, was on July 16, 1897, on which date Schintz made and delivered to Brown his two bank checks for $1,075 and $125 respectively, payable to the order of Brown. These checks were received by Brown, and by him indorsed over and delivered as payment to certain contractors who were putting up the building for him. These contractors indorsed and delivered the checks over as payment to certain sub-contractors.
    The date of the making and delivery of the checks to Brown, and by him to the contractors, and by the contractors to the sub-contractors, July 16, 1897, occurred on Friday, but they were" not presented to the bank on which they were drawn, until Monday, July 19, 1897, when they were refused payment, because Schintz had already, on that day, made an assignment in the County Court of Cook County, of which the bank had notice.
    It was conceded that Schintz had a checking balance of about $2,000 on deposit in said bank at the close of banking hours on Saturday July 17, 1897, and for several .days prior thereto, and that if said checks had been seasonably presented at the bank they would have been paid.
    Albion Cate, attorney for plaintiffs in error.
    Ives, Mason & Wyman, attorneys for defendants in error.
   Mr. Justice Shepard

delivered the opinion of the court.

The sufficiency of the transcript of record filed herein, for the purpose of a review of the decree, is first attacked by the defendants in. error, and numerous early decisions by this court have been referred to in support of the contention.

The transcript constitutes what is commonly called a praecipe record. It was made and certified by the clerk in accordance with a praecipe filed by counsel for the plaintiffs in error, and probably omits many matters and proceedings of the original suit that are not necessary or material to the'questions involved in this error suit. In so far as any of our former decisions hold or seem tq hold that the lack from the transcript of everything that was of record in the suit in the court below, constituted a sufficient ground for affirming the decree, they are no longer approved.

Although the trans-ript of record is not complete as to the whole case, yet if it fully and fairly presents all matters material and necessary for a decision of the questions involved, under the assignments of error, it is enough. Seneff v. Olivet Baptist Church, 89 Ill. App. 352; Thomas v. O’Brien Lumber Co., 185 Ill. 374; Roach v. Glos, 181 Ill. 440; Baltimore & Ohio R. R. Co. v. Gaulter, 165 Ill. 233.

The original proceedings were to enforce certain mechanic’s liens against the premises involved. The Browns, Huber and Mann, and Schintz, the trustee, were made parties defendant to the lien suits. Schintz, the trustee, was defaulted; Huber and Mann answered, and set up the two trust deeds given to Schintz to secure the notes for $2,500 and $700 respectively, held by them, and prayed their foreclosure. All the lien suits were dismissed for want of equity, and there has been no appeal or suit in error prosecuted therefrom. The master in chancery, to whom the cause was referred, reported adversely, also, to the claims of Huber and Mann for a foreclosure of the trust deeds, but the Circuit Court overruled the master in that respect, and a decree was entered in favor of the trust deeds.

It is this decree that is questioned by this error suit, and nothing else.

The only issues are between the Browns, as owners of the property and makers of the trust deeds and notes, and Huber and Mann, the owners and holders of the latter. The transcript seems to contain everything necessary to a full understanding of the foreclosure proceedings and for a determination by us of the errors assigned, and we discover no occasion or propriety for anything more. If otherwise, we do not understand why counsel for defendants in error have not availed themselves of the opportunity to supply the omitted requisite portion of the record, afforded by the rules of this court. We regard the transcript as being sufficient for a review of all that is asked.

The transcript is next attacked because the certificate of evidence certifies only what the evidence tended to show, etc. When legal questions alone are intended to be raised it is sufficient that it appears by the certificate of the judge that evidence tending to support the issues wa,s introduced. Johnson v. Johnson, 187 Ill. 92; Costly v. McGowan, 174 Ill. 76.

We come now to the merits of the case.

“ It is, by the universal consent of the commercial world, the contract between a depositor and his" banker, that the banker when he receives the deposit shall pay it out on the presentation of the depositor’s checks,™ such sums as those checks may call for, and to the person presenting them; and he agrees with the whole world, that whoever shall become the. owner of such check, shall upon its presentation thereby become the owner and entitled to receive the amount specified in such check, provided the drawer shall at that time have that amount on deposit.” Bickford v. First National Bank, 42 Ill. 238; Munn v. Burch, 25 Ill. 35; Gage Hotel Co. v. Union National Bank, 171 Ill. 531.

Such being the conceded law of this State, the question before us on the facts stated, is, was the giving of the checks by Schintz to Brown and the failure of the latter’s indorsee to present them in seasonable time for payment, a good payment to Brown on the loan.

What will amount to a reasonable time in which a check must be presented and payment demanded of the drawee bank, all the parties to the check residing or being located in the same city (concededly the case here), is held to be until the close of banking hours of the next day after the giving of the check. Bickford v. First National Bank, 42 Ill. 238; Strong v. King, 35 Ill. 9.

But it is contended by plaintiff's in error that the checks were delivered to Brown after the close of banking hours on the day they bear date, and the fact seems to be admitted by the defendant in error.. Saturday was only half a bank day and Sunday was a dies non, and if we considered the question, an open one we might yield to our impression that the delay until Monday, July 20th, in presenting the checks, was not an unreasonable one under the circumstances. Loux v. Fox, 171 Pa. St. 68.

It is said that Schintz, the drawer of the checks, is not released by the delay in their presentment because no loss has thereby been shown to have been suffered by him. The general rule is that to discharge the drawer because of delay in the presentation of checks, a loss to him must be shown. This is not pretended was the result in this case. Indeed, it is because of his own act in making the assignment that the checks were refused payment. Just how this act operated to justify the bank in refusing payment is not shown or argued. It would seem that the drawee bank was perfectly solvent (and still remains so) and held enough of Schintz’ funds to pay the checks at the time they were presented, and for anything appearing still holds the same. We do not understand that the bank was discharged by the mere making of the assignment, and discover no reason in this record why it may not yet be required to pay the indorsee of the checks. But the case is argued on both sides, as if there was no liability on the part of the bank, and we will not pursue the question further.

4 If, however, the checks were taken as payment, and such is the finding of the court below, and they were dishonored because the bank properly refused to pay them, then they constituted a payment pro tanto on the loans, for which Brown should be held. He received the checks from Schintz and paid them out to his sub-contractors, just as much to all intents and purposes as though the cash had been actually delivered to him by Schintz, and by him handed over to his sub-contractors.

It is next argued that the court erred in decreeing different relief from that prayed. The decree prayed for was a foreclosure of the trust deeds. The relief given was the establishment of the liens ■ of the trust deeds for the amount secured thereby, and going no further. Ho authorities are cited, in support of or against the proposition that appellees were bound to proceed to the obtaining of the relief they had prayed, other than that the decree must conform to the prajmr of the bill. We were at first inclined to attach much weight to this objection, because of the inconvenience and possible hardship to the appellants. But upon further consideration it would seem that the appellants can not complain because the relief given was not all that was asked. In Hodson v. Eugene Glass Co., 156 Ill. 397, it is said:

“Counsel for appellants also contend, that the relief granted by the decree is not as broad as the relief prayed for in the bill and recommended in the report of the master ■which is approved by the court. This, however, is a matter which can work no injury to appellants, and of which they have no right to complain.”

It is further urged that there was error in decreeing that the receiver’s trust deed was a lien and entitled to .priority of lien over the two trust deeds given to Schintz for the use of Huber and Mann.

By the order of court, August 10, 1897, the receiver was appointed and he was authorized to borrow' $400 to complete the building, without notice to the appellants. On August 30, 1897, on petition of the receiver, the former, order was vacated and another order entered directing thp" receiver to borrow $600, for the. purpose of completing the building, on his certificate which was declared to be a first lien on the premises.

The order on its face recites that it was entered on the petition of the receiver and with the consent of all parties in interest. Having consented to the order appellants are estopped to now dispute it. Robey v. Title Guarantee & Trust Co., 166 Ill. 336.

But it is urged that the giving of the trust deed by the receiver is not warranted by the order. The order is that the receiver be authorized to borrow $600, and to execute and deliver a receiver’s certificate or obligation therefor. Instead of issuing his certificate the receiver secured the money by executing his mortgage on the premises therefor. Although it is unusual for a receiver to give a mortgage to secure money loaned to him, yet we can see no harm in doing so, especially when no remedy on any of the covenants of the mortgage is sought.

The power to mortgage is in principle the same as the power to issue receiver’s certificates and make them a first lien upon the property. Smith on Receivers, Sec. 26.

Error is claimed because of costs allowed, but we think the decree is right concerning them; also, because the Huber and Mann trust deeds are held to be concurrent liens. Whether the trust deeds are concurrent liens or not is something which the appellants are not interested in. If both .trust deeds are liens on Brown’s property it is not for him to say that he is prejudiced by a finding that they are concurrent.

Upon the whole record we are of opinion that the decree will have to be affirmed, and it is so ordered. Affirmed.


text:
    Henry G. Brown et al. v. Theodore H. Schintz, Trustee, et al.
    1. Decrees — Recitals in, When Conclusive.— Where, in a proceeding to foreclose two trust deeds, it is recited in the decree that it is agreed in open court between the solicitors for the different parties that certain sums of money, exclusive of costs and solicitor’s fees, are the correct amounts secured by such trust deeds, such recital is'conclusive and can not be contradicted in this court by affidavits filed and not brought to the attention of the court below.
    Foreclosure of Trust Deeds. — Error to the Circuit Court of Cook County; the Hon. Elbridge Hanecy, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.
    Affirmed.
    Opinion filed November 26, 1901.
    Albion Cate, attorney for plaintiffs in error.

      Ives, Mason & Wyman, attorneys for defendants in error.
   Mr. Justice Shepard

delivered the opinion of the court.

This case is like that of Thomas Brown et al. v. Schintz, trustee, and Huber and Mann, supra. This case, like that one, is for a foreclosure of trust deeds made by the appellants to Schintz, to secure building loans agreed to be advanced as the work progressed on the buildings. Except as to the amounts advanced and secured by the trust deeds, and as to some minor matters, the facts are the same in both cases, and the decree is the same. As to the amount secured by the trust deeds, the decree recites :

“ It is agreed in open court between Albion Cate, solicitor for the defendants Brown, and Ives, Mason & Wyman, solicitors for said defendants Huber and Mann, that the said sums of $1,319.61, exclusive of solicitor’s fees and costs, and $371.13, exclusive of solicitor’s fees and costs, are the correct amounts secured by said trust deeds respectively.”

This recital is conclusive, and can not be contradicted by the affidavit filed and not brought to the attention of the court below. (See Roby v. Title Guarantee and Trust Co., 166 Ill. 336.)

As is well said by appellant’s counsel, “ the contentions in this case are identical with those in Thomas Brown et al. v. Theodore H. Schintz, trustee, et al., ante; the record is substantially the same, and the same rules of decision will apply in both cases.”

And the decree is asked to be reversed for the same reasons urged in the Thomas Brown case.

We see no reason for repeating the opinion, and therefore, for the reasons stated in that case, affirm the decree.


author: Me. Presiding Justice Feeeman

text:
    George Mamerow v. National Lead Co.
    1. Guaranty — Contract of, Not to be Extended by Implication. —The liability of a guarantor is not to be extended or limited by implication beyond the terms of the contract.
    2. Same — Construction of the Contract of. — A contract of guaranty is to be construed fairly and reasonably, according to the intention of the parties. If the party secured has advanced his money on the faith of the interpretation most favorable to his rights, such interpretation will ordinarily prevail, if it is reasonably open to such interpretation.
    3. Same — Notice of tlie Default of the Guarantor.— Whenever the undertaking of a guarantor is absolute, notice is not necessary; but where it is collateral merely, notice must be given within a reasonable time, otherwise the guarantor will be discharged, unless he has not been prejudiced by the want of such notice.
    4. Same — Notice—Where the Guaranty is Absolute. — Where the contract of guaranty is absolute the guarantor is not entitled to demand or notice of non-performance; but where it is collateral and not absolute, notice must be given within a reasonable time, unless circumstances exist which will excuse the want of notice. If the principal is insolvent when the debt becomes due or default is made, so that no benefit can be derived from the receipt of notice, no notice is required.
    5. Evidence — Matters Showing that the Guarantor Has Not Been Prejudiced by the Want of Notice, Not Admissible Under the General Issue. — In an action upon a contract of guaranty, evidence that the defendant has not been prejudiced by the want of notice of non-performance, is not admissible under the general issue.
    6. Notice — Prejudice by Want of, as a Defense in Actions upon Contracts of Guaranty. — In an action upon a contract of guaranty, evidence of prejudice by the want of notice is affirmative proof admissible only when such defense has been specially pleaded and the burden of maintaining such defense is upon the party pleading it.
    7. Contracts — Liability of Guarantor. — The liability of a guarantor under a collateral or conditional contract of guaranty is to pay if the principal debtor fails to do so and creditors are not bound to institute legal proceedings against the debtor, but are required to use reasonable diligence to make a demand and give notice of the non-payment.
    8. Sam:e — Notice Where, the Contract is Collateral. — Where the contract of guaranty is collateral, notice of the non-performance must be given within a reasonable time, otherwise the guarantor will be discharged, unless he has not been prejudiced by the want of notice.
    Assumpsit, on a contract of guaranty. Error to the Superior Court of Cook County; the Hon. Joseph E. Gary, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.
    Affirmed.
    Opinion filed November 26, 1901.
    Statement. — This is a suit against plaintiff in error to recover a balance for goods sold by defendant in error to a • corporation known as the Berner-Mayer Company. The action is based upon the following guaranty:
    “ Agreement, made this 19th day of March, 1897, between Herman D. Berner, residing at 3673 Euclid avenue, in the city of Cleveland, Ohio, and Jacob J. Maver,' residing at the Arlington Hotel, in the city of Cleveland, Ohio, and George Mamerow, residing at Irving Park, in the city of Chicago, Illinois, parties of the first part, and National Lead Company, a corporation of New Jersey, doing business at No. 287 Pearl street'in the city of New York, of the second part, witnesseth : '
    Whereas, The Berner-Mayer Company, a corporation organized under the laws of Ohio, and doing business in the city of New York and at Cleveland, Ohio, is indebted to the National Lead Company in various sums of money for goods sold and delivered on open account and for other accounts; and
    Whereas, the said National Lead Company has called upon the said The Berner-Mayer Company for security for its indebtedness to said National Lead Company, and has refused to permit the indebtedness of said The BernerMayer Company to increase until the said present indebtedness is amply secured; and
    Whereas, the said parties of the first part are interested in the said The Berner-Mayer .Company as stockholders and directors thereof and desire that the said National Lead Company shall continue to sell goods to the said The Berner-Mayer Company, and have requested it so to do; and Whereas, the parties of the first part have agreed to furnish the said National Lead Company security - for all accounts due and to become due from said The BernerMayer Company to said National Lead Company.
    Now, therefore, in consideration of the foregoing, and in consideration of the sum of one dollar and other valuable consideration to the parties of the first part in hand paid by the parties of the second part, at or before the ensealing and delivery of these presents, the said party of the first part do jointly and severally, and for their heirs, executors and administrators, guarantee to the said National Lead Company the payment to said National Lead Company, upon demand, of all moneys, debts, obligations and demands of whatever nature or character, now due or which may hereafter become due from said The BernerMayer Company to the said National Lead Company.
    In witness whereof, the said parties of the first part have hereunto set their hand and seal this 19th day of March, 1897. IIeeman D. Berner,
    Jacob J. Maybe,
    In the presence of George Mamerow.”
    B. M. Mobley.

      To the declaration in assumpsit the defense pleaded only the general issue with an affidavit of merits. The cause was submitted to the court, a jury having been waived, and the issues were found in favor of the plaintiff. Damages were assessed at $4,778.71.
    It appeared from the evidence that the Berner-Mayer Company was an Ohio corporation, with offices at Cleveland, Hew York and Brooklyn. The items for which plaintiff in error was held liable under the guaranty were all sold and delivered to the Hew York and Brooklyn branches. The company made an assignment for the benefit of its creditors December 17, 1897. The day following, defendant in error began a suit in attachment in Hew York and recovered judgment against the Berner-Mayer Company, the insolvent corporation, upon which, however, nothing, it is said, has been realized.
    Benson Landon, attorney for plaintiff in error.
    Tennev, McConnell, Coffeen & Harding, attorneys for defendant in error.
   Me. Presiding Justice Feeeman

delivered the opinion of the court.

The account for which it is sought to recover in the present case against the plaintiff in error as guarantor was wholly created after the execution of the alleged guaranty.

It is claimed that no notice was given to the guarantor here sued, of the acceptance of the guaranty by the Hational * Lead Company. It was, however, executed and delivered, and no notice was necessary under the facts.

It is also claimed that no notice of the default of the Berner-Mayer Company in making payment on the account, now said to have been included under the guaranty, was ever given. Plaintiff in error testifies that he first learned of the existence of the debt for which he is now sued in December, 1898, or January, 1899, at least a year after the failure of the Berner-Mayer Company, and about a year and nine months after the execution of the guaranty. Previous to that time he states that he had no knowledge that defendant in error had extended credit for any goods sold after 'the said instrument was executed and delivered.

It is first contended, on the part of the plaintiff in error, that the guaranty in question does not apply to nor include purchases thereafter made. With this contention we are unable to agree. The preamble of the instrument states that the National Lead Company “has refused to permit the indebtedness of said The Berner-Mayer Company to increase until the said present indebtedness is amply secured,” and that the parties to the guaranty “desire that the said National Lead Company shall continue to sell goods to the said The Berner-Mayer Company, and have requested it so to do,” in consideration of which, among other things, the guaranty is made of all debts, “ of whatever nature or character, now due, or which may hereafter become due, from said The Berner-Mayer Company to the said National Lead Company.” It is true that there is room for argument that this phraseology shows the guaranty was intended to and does apply only to existing and not to future indebtedness. All the indebtedness then existing has, it appears, been paid. But, looking at the instrument as a whole, it is certainly open to the construction that it was intended to cover debts not only due, but which might become due thereafter in pursuance of the expressed wish of the guarantors that the Lead Company should continue to sell goods to the Berner-Mayer Company. We can not agree with counsel for plaintiff in error “ that the recitals expressly limit the guaranty c to the said present indebtedness.’ ” There is a recital which states the guarantors have agreed to furnish “security for all accounts due and to become due from said The Berner-Mayer Company ” to the Lead Company. There is no limitation here of the security to accounts already existing; and where the parties themselves have made no such limitation, we know of no canon of construction that would justify the court in making it for them. While it is true that the liability of a surety is not to be extended by implication beyond the terms of the contract (Shreffler v. Nadelh offer, 133 Ill. 536; Tolman Co. v. Rice, 164 Ill. 255), it is also true that it is not to be limited by implication beyond its terms. In Smith v. Molleson, 148 N. Y. 241, it is said:

“ Like all other contracts, the undertaking of a surety must be construed fairly and reasonably, and according to the intention of the parties. If the party secured has advanced his money on the faith of the interpretation most favorable to his rights, that will ordinarily prevail, if the instrument is open reasonably to such interpretation.”

In Lawrence v. McCalmont, 2 How. 426, 450, it is said by Justice Story that letters of guaranty “ ought to receive a liberal interpretation; ” that they are commercial instruments, generally drawn by merchants in brief language, sometimes inartificial and often loose in their structure and form; ” and “ if the language used be ambiguous and admits of two fair interpretations, and the guarantee has advanced his money upon the faith of the interpretation most favorable to his rights, that interpretation will prevail in his favor; for it does not lie in the mouth of the guarantor to say that he may, without peril, scatter ambiguous words, by which the other party is misled to his injury.” We regard the guaranty as fairly subject to the interpretation that it was intended to cover future sales made in accordance with the request, as therein stated, of the guarantors.

It is further contended that plaintiff in error is not liable under the .guaranty because notice of the default of the Berner-Mayer Company should have been given within a reasonable, time after such default. It is claimed this was not done, more than a year having expired thereafter, and after the failure of the Berner-Mayer Company. In Taussig v. Reid, 145 Ill. 488, 491, the court says:

“ Story on Contracts, Ybl. 2, Sec. 1133, in the discussion of the question, says: ‘Whenever the undertaking by a guarantor is absolute, notice is necessary; but where it is collateral merely, notice must be given within a reasonable time, otherwise the guarantor will be discharged, unless he is not prejudiced by the want of notice.’ In Baylies on Sureties and Guarantors, 202, the author says : ‘ It may be laid down as a general rule, that in case of an absolute guaranty the guarantor is not entitled to demand or notice of non-performance; but where the undertaking is collateral, and not absolute, notice must be given within a reasonable time, unless circumstances exist which will excuse the want of notice. If' the principal is insolvent when the debt becomes due or default is made, so that no benefit could be derived by the guarantor from the receipt of notice, no notice is required.’ * * * The principle upon which this doctrine rests, is that the contract is absolute, and not conditional or collateral. But does the contract upon which this action is brought rest upon the same principle, or is it to be governed by a different rule?”

Answering the question, the court holds that after the guaranty was executed, if appellee chose not to sell any goods to the party for whom the guaranty was made, “ it could not be claimed that an absolute guaranty existed, because there was no debt upon which it could operate. How can a guaranty be absolute where it is uncertain whether a debt will ever exist to which it could apply ? ” Applying the principle so stated to the case at bar, it is clear, we think, that the guaranty can not be deemed absolute, but conditional or collateral, requiring notice to be “given within a reasonable time, otherwise the guarantor will be discharged, unless he is not prejudiced by the want of notice.” Story on Contracts, Vol. 2, Sec. 1133, quoted in Taussig v. Reid, supra.

Was the guarantor in the case before us so prejudiced ? If he was it does not, we think, so appear. The trial court held evidence upon that subject inadmissible under the pleadings. In'this there was ho error. The only plea, as above stated, was the general issue. Under this plea, it is true, any matter which shows the plaintiff never had a cause, of action, and most matters showing no subsisting cause of action at the commencement of the suit, may be given in evidence. But the introduction of evidence to show that the plaintiff in error was prejudiced by the want of notice is something more than mere matter of defense. It is affirmative proof which can only be introduced when such defense has been specially pleaded, and the burden of maintaining such pleas is on the party setting up such matter of defense.

It is urged that though the guaranty be regarded as covering future credits, it was nevertheless necessary for the guarantee to exercise due diligence in the prosecution of its claim against the principal debtor, and this, it is urged, was not done. The liability of a guarantor under a collateral or conditional guaranty is to pay if the principal debtor fails to do so, in the present case upon demand.” The creditors are not, indeed, bound to institute any legal proceedings against the debtor, but they are required to use reasonable diligence to make demand and to give notice of the non-payment.” Where the undertaking “ is collateral merely, notice must be given within a reasonable time, otherwise the guarantor will be discharged, unless he is not prejudiced by the want of notice.” “ If the writer states that he will guarantee the payment of the goods to be afterward sold to another, or that he will see the goods paid for, or that he will be security for their payment, the promise is only collateral.” Taussig v. Reid, supra, p. 493, and cases there cited. In the language of the guaranty now under consideration, there is warrant for the construction that the guarantors intended to and did bind themselves to pay any and all obligations of whatever character were or might become due the guarantee from the BernerMayer Company “ upon demand,” Without reference to when the demand should be made. The guaranty is not to pay at maturity of such indebtedness, but “ upon demand.” As to indebtedness existing at the time of the guaranty, it was absolute. “ A contract guaranteeing the payment of a note or debt, is an absolute contract.” Dillman v. Nadelhoffer, 160 Ill. 121, 125. But it was conditional as to future indebtedness, as above stated. It is claimed by defendant in error that the guarantor, as a stockholder and director of the Berner-Mayer Company, must be deemed to have had notice of the failure of said company to pay its indebtedness to the guarantee, and that the latter was therefore relieved from the necessity of giving such notice. In view, however, of the failure of plaintiff in error to show under appropriate plea that he has been in any way prejudiced by the alleged want of notice, we do not deem it necessary to consider at length whether, had he made such defense, it could have availed him in the present case.

Under the pleadings, we find no error in the refusal of the trial court to admit the evidence offered by plaintiff in error for the purpose of endeavoring to show a want of notice, and that the insolvent corporation was in possession of goods until the date of its assignment sufficient to have satisfied the claim of the guarantee; and other evidence not admissible under the general issue.

The judgment of the Superior Court must be affirmed.