author: 'Mr. Justice Shepard

text:
    Erie Fire Ins. Co. v. Alonzo H. Hill.
    1. Insurance — Denial of Liability a Waiver of Proofs of Loss.— An insurance, company, by denying its liability, waives its right to insist upon proofs of loss under the provisions of the policy.
    Assumpsit, on a policy of fire insurance. Appeal from the Circuit Court of Cook County; the Hon. Charles G. Neely, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.
    Affirmed.
    Opinion filed December 24, 1901.
    Steere & Furber, attorneys for appellant.
    James Hibben, attorney for appellee; Thomas Bates, of counsel.
   'Mr. Justice Shepard

delivered the opinion of the court.

This appeal is from a j udgment in favor of appellee in a suit brought by him on a policy of fire insurance. There is no question that the building described in the policy was substantially destroyed by fire September 30, 1898. The contention is that proofs of loss were not made and delivered to appellant within the sixty days time required by the terms of the policy.

The case was tried before a jury, and among other instructions given, one was as follows:

“ The jury are instructed that unless they believe from the preponderance of the evidence that the plaintiff served upon the defendant, within sixty days after the date of the fire, proofs of loss as provided in the policy of insurance introduced in evidence herein, then the plaintiff is not entitled to recover, and if you find from the evidence that no proofs were served upon the defendant, or that the papers served as proofs were not delivered to the defendant until more than sixty days after the date of the fire, then your verdict should be for the defendant.”

This instruction was fully as favorable to appellant as it was entitled to, and we must regard the fact of whether proofs of loss were made and delivered within the sixty days, as settled by the verdict in favor of appellee.

The next point is that the proofs of loss were insufficient, even if made and delivered in time. The evidence tended to show that, irrespective of the sufficiency of the proofs, appellant denied its liability to pay the loss to appellee in any event. In such a case the defect in the proofs was waived.

It is said in Williamsburg City Fire Insurance Company v. Cary, 83 Ill. 453:

“ As to the objection, the proofs of loss furnished were insufficient under the conditions of the policy, we think the assured was relieved from any obligation to make further proofs, in consequence of the company placing its refusal to pay the loss suffered on the distinct ground of non-liability in any event. Timely notice of loss was, in fact, given, and had the company been willing to pay the loss upon sufficient proofs, the defects now insisted upon could and would have been readily supplied. But that was not the reason of its refusal, and had the assured complied with every minutia in the condition of the policy in making the proofs of loss, we are warranted in believing, from the facts proven, the refusal of the company would have been none the less absolute and positive. It would have been folly to impose upon the assured the burden of doing an act "that would not, in the slightest degree, have changed the determination of the company. The law has required no such useless thing to be done. Peoria Marine and Fire Insurance Company v. Whitehill, 25 Ill. 470.”

The case was fairly tried and substantial justice has been done; and if there were any minor errors committed they were not sufficient to warrant us in reversing the judgment, which is therefore affirmed.


source: Caselaw Access Project

author: Mr. Justice Waterman

license: Public Domain

text:
    A. Bernstein v. Margaret M. Curran.
    1. Judgment by Confession — Must Follow the Cognovit. — A. cognovit or warrant of attorney for the confession of a judgment executed by A. Bernstein & Company will not authorize the confession of a judgment against A. Bernstein.
    2. Amendments — Of Judgments by Confession on Cognovits. — The statute permits amendments at any stage of a case for the furtherance of justice, but only in cases where the court acquires jurisdiction, without a confession by the defendant or his attorney upon a cognovit or warrant of attorney.

      Confession of Judgment, on a lease for rent. Appeal from the Circuit Court of Cook County; the Hon. Edward F. Dunne, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.
    Reversed and remanded.
    Opinion filed December 24, 1901.
    Blum, Blum & Rothschild, attorneys for appellant.
    John Reid McFee, attorney for appellee.
   Mr. Justice Waterman

delivered the opinion of the court.

Appellant received a lease from appellee, the same running to him and he signing his name thereto as A. Bernstein & Company. The lease contained a power of attorney authorizing a confession of judgment for rent.

On the second of March, 1900j a confession of judgment was entered upon said lease against A. Bernstein & Company, a corporation. The cognovit upon which judgment was entered sets forth that A. Bernstein & Company, a corporation, comes and confesses there is due the plaintiff, etc. Thereafter, Abraham Bernstein asked the court to set aside the judgment and in support of the motion filed his affidavit setting forth, in effect, that he did not sign the lease nor is he doing business as a company or as a firm, but signed the lease and does business individually under the name of A. Bernstein & Company. Thereupon, upon motion of the plaintiff, the judgment was changed to one against Abraham Bernstein, instead of as it had been against A. Bernstein & Company, a corporation, and the defendant’s motion to set aside the judgment was overruled.

While it is true that a motion to set aside a judgment by confession is considered upon equitable grounds and that the statute of amendments and jeofails permits amendments at any stage of a case for the furtherance of justice, it is the case that a court has, without a confession by the defendant or his attorney, no power to enter judgment by confession.

In the present case the cognovit which alone warranted the entry of a judgment by confession was not by any one who purported to represent A. Bernstein, but by one who appeared" and confessed judgment only for A. Bernstein & Company, a corporation.

It is quite likely that upon the coming in of the affidavit made by appellant, an attorney might, upon the strength thereof and the lease, have confessed a judgment for A. Bernstein, but no one did.

The judgment against A. Bernstein is therefore unwarranted by any cognovit or confession and should have been set aside.

The judgment of the Circuit Court is reversed and the cause remanded.


text:
    Hoops Tea Co. v. James A. Dorsey.
    1. Contracts — In Restraint of Trade. — A contract in restraint of trade, or an agreement not to transact business at specified places, or with particular persons, or beyond a limited and within reasonable bounds, is valid and enforcible, and courts will not inquire, when such a contract has been made and is reasonable, whether the consideration therefor was adequate or equal in value to that which the party restrained lost thereby.
    Bill for Belief. — Appeal from the Circuit Court of Cook County; the Hon. Edward E. Dunne, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.
    Reversed and remanded, with directions.
    Opinion filed December 24, 1901.
    Copy of the agreement upon which the bill is predicated :
    “ This agreement, made and entered into this 11th day of March, A. D. 1899, between the Hoops Tea Company,’ party of the first part, and J. A. Dorsey, of Chicago, party of the second part,
    Witnesseth; That in consideration of the promises hereinafter made by said second party, said first party hereby promises and agrees as follows, viz.:
    1. To pay said second party the sum of sixteen dollars for each and" every week; said second party shall be and remain in said first party’s service and employment as hereinafter mentioned; said sum to be payable at the end of each and every week, beginning from the date hereof,

      2. To furnish said party a serviceable horse and wagon- and a supply of goods, for the purpose of soliciting orders, delivering .goods and making collections for said first party.

      Said second party for and in consideration of the promises of said first party, above mentioned, hereby promises and agrees with said first party as follows, viz.:
    1. To diligently devote his entire time and attention to soliciting.orders in Chicago, Illinois, for the goods of said first party, delivering the same and collecting money due upon said orders, or otherwise, under the directions of said first party.
    2. To report to said first party, daily, all orders taken, goods delivered and collections made by said second party.
    3. To be liable for the value of any shortage in goods received by said second party, or money collected by him and unaccounted for to said first party.

      i. To preserve and return in good condition all books of account belonging to said first party intrusted to said second party’s care, being liable for their loss, destruction or injury.
    5. To be liable to said first party for loss of any kind whatsoever, caused by second party’s negligence or carelessness.
    6 To carefully avoid all car tracks, and, at all times and places, and especially when approaching car tracks, to use the'utmost care and caution to avoid accident.
    7. To execute and deliver to said first party a bond satisfactory to said first party for a sum not to exceed five hundred dollars ($500.00).
    8. That said party shall in no way interfere or compete with the business, customers or trade of said first party, or in any way solicit the customers of said first party in said Chicago, Illinois, for a period of two years after the termination of this contract; said second party shall be liable to said first party for damages caused thereby, upon the bond herein required, or in any other legal proceeding.
    It is further mutually agreed that this contract may be terminated at the option of either party upon giving two weeks prior written notice to the other party. .
    Witness the hands and seals of the respective parties hereto this eleventh day of March, A. D. 1899.
    Hoops Tea Co. [seal.] W. T. Cooper, Secy.
    J. A. Dorsey, [seal.]”
    [corporation seal.]
    Tenney, McConnell, Coffeen & Harding, attorneys for appellant.

      Bo appearance by appellee.
   Mr. Justice Waterman

delivered the opinion of the court.

The complainant, as appears by this bill, being engaged in selling teas, coffees and spices at retail in Chicago by delivering such goods to regular customers at their residences upon established routes in said city, such customers, being first obtained through solicitors and their orders being taken and billed by a salesman who travels over the route at regular intervals for that purpose, employed appellee to a,ct for it as such salesman and in and by a contract of employment agreed to pay him a salary of $16 per week and to furnish him a horse and wagon and a supply of goods for the purpose of carrying on the business in which he was employed. It was provided that the contract could be terminated only on two weeks written notice by either party.

Appellee, on his part, agreed to devote bis entire time to soliciting orders for appellant, delivering goods, making collections, etc., under its direction, to make daily reports of orders, sales, collections, etc., to preserve and return all books intrusted to him and to be responsible for any injury by his negligence.

The contract also contained a provision in substance as follows:

“ That appellee should in no way interfere or compete with the business, customers or trade of appellant or in any way solicit the customers of appellant in Chicago for a, Eeriod of two years after the terms of the contract, and that e should be liable to appellant for damages caused thereby, upon his bond required of him or in any other legal proceeding.”

The bill sets forth that relying upon this contract, appellant introduced appellee to its customers on the routes assigned to him for work, showed him its business methods, gave him books containing lists of its customers and furnished him with a team and a stock of goods; that he continued in appellant’s employment until July 19, 1899, when it was discovered that he was short in his accounts. He was then temporarily suspended while they were being investigated, whereupon he left appellant’s employment and at once began running a wagon over the routes on which he had worked for appellant and began soliciting appellant’s customers to leave it and deal with him, taking orders from its customers, delivering them goods, etc., and thus effectually and seriously interfering with its business by means of the knowledge thereof which he had gained while in its employment.

The court below denied to appellant any relief upon the ground that the contract which appellee had entered into with it was unilateral and inequitable, and further decreed that the contract was wholly null, void and unconscionable and so lacking in mutuality as not to be enforcible; and enjoined appellant from commencing any action at law or in equity against the defendant under and by virtue of said contract.

The law is well settled that contracts of this nature which-are reasonable in respect to time and territory may be made and will be enforced; that is, that particular restraint of trade or an agreement not to transact business at specified places or with particular persons or beyond a limited distance and within reasonable bounds is valid and enforcible. Nor will a court inquire, when such reasonable contract has been made, whether the consideration therefor was adequate or equal in value to that which a party restrained loses thereby. Linn v. Sigsbee, 67 Ill. 76; Moore v. Bennett, 41 Ill. App. 164-173; Hursen v. Gavin, 59 III. App. 66; 162 Ill. 377; Darnell v. Geis, 78 Ill. App. 493; Davis v. Hamlin, 108 Ill. 39; Guyer v. Warren, 175 Ill 328; Cahill v. Madison, 94 Ill. App. 216.

The decree of the Circuit Court is reversed and the cause remanded, with directions to enter a decree enjoining appellee in accordance with the prayer of the bill filed by appellant.

Reversed and remanded with directions.


author: Mr. Justice Shepard

text:
    John V. Farwell Co. v. Harry Nathanson.
    1. Fraudulent Representations — Essentials of a Recovery. — To recover in an action for deceit, it is only necessary for the plaintiff to prove that the representations were false, that the party making them knew them to be false and that he (the plaintiff) relied upon them as true and was induced to act upon them to his loss and injury.
    2. Same — When the Motives Are Immaterial. —The motives which actuate a person in making false representations, are wholly immaterial. The law infers an improper motive, if what the party states is false within his own knowledge and is the cause of injury to the other.
    3. Instructions — Fraudulent Representations. — In an action for obtaining goods on credit by means of a false statement, an instruction to the jury that there can be no recovery unless the statement under consideration was made under circumstances calculated to deceive a person acting under reasonable care and prudence, is misleading as applied to the facts in this case.
    Trespass on the Case, for obtaining goods on credit by false statements. Appeal from the Circuit Court of Cook County: the Hon. Edward F. Dunne, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.
    Reversed and remanded.
    Opinion filed December 24, 1901.
    Tenney, McConnell, Coffeen & Harding, attorneys for appellant.
    Ho appearance by appellee.
   Mr. Justice Shepard

delivered the opinion of the court.

In an action of case brought by the appellant against the appellee for obtaining goods on credit by a false statement the jury returned a verdict in favor of the defendant, and this appeal is for the purpose of reversing the judgment entered thereon.

The statement alleged to be false was made by the appellee in the fall of 1895 at the store of appellant, where the appellee had gone to apply for and obtain credit in a business he, together with one Wile, were about to engage in, in Indiana.

The statement was made in writing and on its face purports to be for the purpose of obtaining credit with appellant for goods then or thereafter to be purchased of it.

Under the head of “ assets,” the statement contains but one item: “ Cash on hand or in bank, $5,000.” On the other side, under the head of “ liabilities,” it is stated that the firm owes no debts of any kind, that there are no individual liabilities and no confidential liabilities to wives or relations. Belying upon this statement appellant sold the firm then and at different dates during the following winter, goods, the average line of credit being about $2,000, and in about eighteen months the firm failed owing appellant about $800, and leaving no unappropriated assets.

In his testimony at the trial, the appellee substantially admitted that the statement was false in respect of the $5,000 cash on hand or in bank, and that he knew it to be false at the time he made it. He, however, attempted to justify the statement on the ground that he expected the firm would subsequently have that much cash from contributions to be made by himself and Mr. Wile, and which were afterward in- part made by them.

The fifth and sixth instructions given to the jury by the court, in behalf of appellee, were as follows :

5. “ The jury are instructed that in order to constitute actual fraud there must be contrivance and design to injure another. Actual fraud is not to be presumed but it must be proved by the party alleging it by a preponderance of the evidence; and although actual fraud may be proved by proof of facts and circumstances tending to show fraud, still, if the motive and design of an act can as well be traced to an honest and legitimate source as to a corrupt or dishonest one, the former must always be preferred.”
6. “The jury is instructed that in order to find the defendant guilty in this case, the jury must believe from the evidence that the defendant made the representations and statements alleged in the declaration; that such representations and statements were false; that the defendant knew they were false or had no good reason to believe thej were true; that they were made with the intent to defraud the plaintiff; that plaintiff was induced thereby to sell and deliver to the firm of S. Wile & Co., and did so sell and deliver to said firm the goods and merchandise for which they now seek to recover damages from this defendant, and that by means thereof, plaintiff has sustained damages as alleged in his declaration.”

These instructions, severally, announce erroneous rules of law, applicable to the case at bar. Case v. Ayers, 65 Ill. 142; Farwell v. Hanchett, 120 Ill. 573; Keith v. Goldston, 22 Ill. App. 457; McBeen v. Fox, 1 Ill. App. 177; Reed v. Pinney, 35 Ill. App. 610; Brabek v. Grand Lodge, 24 Ill. App. 82; Flower v. Brumbach, 30 Ill. App. 249.

“ It is fraud in law, if a party makes representations which he knows to be false, and injury ensues, although the motive from which the representations proceeded may not have been bad.” Foster v. Charles, 7 Bing. 103, referred to in several of the cases above cited.

“ To recover in an action for deceit, it is only necessary for the plaintiff to prove that the representation was false, that the party making it knew it to be false, and that the plaintiff relied upon the representation as true, and was induced to act upon it and was injured. Merwin v. Arbuckle, 81 Ill. 501. The motive which actuated the defendant in making the false representation is wholly immaterial. The law infers an improper motive, if what the defendant says is false within his own knowledge and is the occasion of damage to the plaintiff.” Keith v. Goldston, 22 Ill. App. 457. The same doctrine is substantially enunciated in all the cases above cited.

So, it was clearly erroneous to instruct the jury, as was done in the fifth instruction, that “to constitute fraud there must be contrivance to injure another,” and that if the motive and design of the act could as well be traced to an honest as to a dishonest purpose the former should be preferred.

The law infers a purpose to injure from an intentional false statement of fact. When a man knowingly makes a false statement to one who relies upon it and suffers injury, the latter’s right of action is complete. The injured party is not required to prove as an additional element a design or purpose to injure, or a fraudulent intent, as said in the sixth instruction, nor is the wrongdoer allowed to escape liability for the damage which he has caused by showing that he did not in fact intend that injury should result from his false statement.

The seventh instruction laid down the rule that there could be no recovery unless the statement was “madeunder circumstances calculated to deceive a person acting under reasonable care and prudence.”

This was a misleading instruction, as applied to the facts of this case. There was no dispute as to what the statement was which the defendant made. It related to the financial condition of his firm, of which he had and assumed to have actual knowledge, and of which the plaintiff had no knowledge, but had the right to rely as to the truth of, without making further inquiries. Endsley v. Johns, 120 Ill. 469.

Other instructions were also objectionable in ignoring, in some respects, the rules laid down in the cases we have cited, but they can be remedied at another trial, if one shall be had. What we have said in relation to the instructions is equally applicable to some evidence that was admitted. The written statement that appellee made was not subject to be impeached by him, by testifying that the amount of cash he therein stated the firm had on hand was the amount they expected to have in the business. The cash stated to be on hand was the whole basis of the credit appellee was asking for, and a reality could not be exchanged into a mere expectation, by showing that it was so intended. Brant v. Gallup, 111 Ill. 467.

The proposition contained in numerous of the instructions, as to where the burden of making out the case lay, and of the preponderance of the evidence, was correct as the statement of a general proposition applicable to most cases, but it was not correctly stated when applied to a case like this, where no burden whatever was upon the plaintiff with reference to the intent of the maker of the statement.

It was not proper as applied to a case where the law infers an intent to injure the plaintiff, from an intentionally false statement. Independent proof of this intent was not necessary to be made — the law inferred it.

From a consideration of the entire record the judgment must be reversed and the cause remanded.


text:
    Reid, Murdoch & Co. v. Jay K. Sheffy, Receiver, and Plano Mfg. Co.
    1. Fraudulent Sales— When Void and When Voidable.— Where goods are obtained upon false representations by the vendee as to his character, financial ability and intentions as to the goods, the sale is merely voidable and a bona fide purchaser from the vendee will acquire a good title; but where the deception practiced upon the vendee is such that there is in reality no meeting of the minds of the parties, the sale is actually void and a bona fide purchaser from the apparent vendee will acquire no title.
    2. Constructive Trusts — When They Arise. — A constructive trust arises whenever another’s property has been wrongfully obtained, appropriated and converted into a different form. If a trustee or other fiduciary person wrongfully converts goods held in trust into a different species of property, taking to himself the title, or if an agent or bailee wrongfully disposes of his principal securities and with the proceeds purchases other securities in his own name, equity will impress a constructive trust upon the new form or species of property, not only while it is in the hands of the original wrongdoer, but as long as it can be followed and identified, into whosesoever hands it may come, except those of a bona fide purchaser for value and without notice.
    3. Same — Application of the Doctrine. — Whenever one person has wrongfully taken the property of another and converted it into a new form, or transferred it, a trust arises and follows the property or its proceeds.
    Creditor’s Bill. — Appeal from the Circuit Court of Cook County; the Hon. Murray F. Tuley, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.
    Reversed and remanded with directions.
    Opinion filed December 12, 1901.
    Statement. — This is an appeal from an order of the Circuit Court of Cook County sustaining the separate demurrers of Jay M. Sheffy, receiver, and the Plano Manufacturing Company to an amended petition of Reid, Murdoch & Company, intervenors, said petition being filed in a certain cause wherein the Plano Manufacturing Company was complainant, and Lillian E. Amphlett et al., defendants.
    On December 30, 1896, the Plano Manufacturing Company filed in the Circuit Court a creditor’s bill upon a judgment obtained by that company in said court on the 3d day of August, 1896, for the sum of $815.15 and costs, against T. G. Amphlett, John B. Amphlett and T. L. Amphlett. On the same day Jay K. Sheffy, one of the appellees, was appointed receiver of the effects of the said J ohn B., T. G. and T. L. Amphlett.
    On the first day of February, 1897, an order was entered by the court directing the receiver to take possession of the grocery store in question. On February 6, A. D. 1897, Beid, Murdoch & Company,the appellants and intervenors, filed their intervening petition, setting up the purchase by the intervenors from Lillian E. Amphlett on January 30, 1897, of the grocery store in question, for a pre-existing indebtedness due to them on account, and asked that the receiver be required to turn over said property to the intervenors; and on February 10, 1897, filed an amended petition in substance as follows :
    The petition of Beid, Murdoch & Go., respectfully represents that in the year 1890 Lillian E. Amphlett engaged in the retail grocery business at No. 4845 North Clark street; that the business was run and conducted in the name of Lillian E. Amphlett as sole proprietor; that the fact that Lillian E. Amphlett was the owner and proprietor of the said cash grocery became and was generally known to the complainants in this cause, and during the time she ran said business, up to and including the time hereinafter mentioned, she acquired a certain credit and rating among the business houses and the commercial agencies, whose business it is and was to report the standing of the different persons, firms and corporations, doing business in that vicinity and elsewhere; that in or about the month of February, 1893, the said Lillian E. Amphlett commenced to trade with your petitioner and your petitioner caused an investigation to be made as to the ownership of the said business known as Amphlett’s Cash Grocery, and so alleged to be owned and conducted by the said Lillian E. Amphlett, and obtained a statement from the said Lillian E. Amphlett; that both the said Lillian E. Amphlett and her husband, John B. Amphlett, stated that Lillian E. Amphlett was the owner of said grocery store, goods, chattels, accounts and business, and sole proprietor thereof; that no other person or persons had any interest therein; and based upon said statement and apparent ownership by her, your petitioner extended credit to the said Lillian E. Amphlett; that she purchased goods in her own name, and dealt with your petitioner continuously upon an open running account down to and including the 30th of January, 1897, and on the 30th of January, 1897, the said Lillian E. Amphlett was indebted to your petitioner in the sum of six hundred ninety-two dollars and eighty-nine cents ($692.89) after allowing all just credits, deductions and set-offs for and on account of a balance due your petitioner by reason of the purchase by her of goods, wares and merchandise and credits allowed from your petitioner from the time she commenced trading with your petitioner down to the date hereinbefore mentioned.
    Tour petitioner further represents that the goods so purchased from your petitioner by the said Lillian E. Amphlett were used by her in said business and resold by her at a profit, the said profit reinvested in said business and other goods purchased by her.
    Tour petitioner further represents that John B. Amphlett, T. Gf. Amphlett and T. L. Amphlett were indebted to the complainant in this cause in a large sum of money and that said indebtedness was'long past due and payable to the said complainant from the said John B. Amphlett and T. G. Amphlett and T. L. Amphlett at the time the said Lillian E. Amphlett first engaged in the business in 1890; that during all the time, to wit, from 1890 down to the filing of the bill herein, the said complainant had notice that the said Lillian E. Amphlett was conducting said grocery business at Rogers Park in her own name, and that notwithstanding that said debt was due the said complainant, it permitted her to so continue in said business without molestation, and to obtain goods from your petitioner and other persons, firms and corporations upon the strength of her ownership of said business down to the date of the filing of the bill of complaint herein; that on the evening of the 30th of January, 1897, said Lillian E. Amphlett agreed with your petitioner to, and did sell and convey by bill of sale, all and singular the goods, wares and merchandise in said store, more specifically set forth in said bill of sale; that said goods and chattels described therein were accepted in full payment and satisfaction of the then existing debt due by her to your petitioner; that Amur petitioner entered into and took possession of all the articles described in said bill of sale, save the book accounts; that said possession continued until this petitioner was ordered by this honorable court to deliver possession to James K. Sheffy, receiver herein; that this petitioner delivered possession to said receiver pending settlement and adjustment of your petitioner’s rights.
    Your petitioner further alleges it had no knowledge or notice of the pending litigation, and was not notified by Lillian E. Amphlett or any one representing her; that it knew of no secret lien; that said petitioner purchased the above goods for the consideration above set forth; that it was a bona fide one, made in good faith.
    Your petitioner further represents that the said goods which were turned over to the said receiver, were a large part of the goods and chattels which the said Lillian E. Amphlett had purchased from your petitioner, and that the residue was largely composed of the goods and chattels which were purchased by the said Lillian E. Amphlett by the money derived from the sale of the goods and chattels purchased from your petitioner.
    Your petitioner further represents that the indebtedness upon which the judgment of the Plano .Manufacturing Company against John E. Amphlett, T. G-. Amphlett and T. L. Amphlett is rendered, had accrued long prior to the time that the said Lillian E. Amphlett commenced in business, and that the said Plano Manufacturing Company had taken no steps whatever to enforce their rights, if any, against the said Lillian E. Amphlett or upon the said judgment from the time she commenced in business until the creditor’s bill was filed in this cause.

      Tour petitioner, therefore, prays that an order may be entered ordering and directing the said receiver and said complainant to re-deliver to your petitioner so many of the said goods and chattels taken from your petitioner by said receiver as will satisfy the claim of your petitioner to the amount above mentioned, or in lieu thereof that they may be decreed to pay to your petitioner the sum of six hundred ninety-two dollars and eighty-nine cents ($692.89), together with the costs of these proceedings, and your petitioner prays for such other and further relief as equity may require or to your honor shall seem meet.
    Reid, Murdoch & Co.,
    By ¥m. F. Bode.
    As above stated a demurrer -to. this petition was sustained.
    H. G. Colson, attorney for appellants.
    Archibald Cattell, attorney for the receiver.
    David F. Matchett, attorney for the Plano Mfg. Co.
   Mr. Justice Waterman

delivered the opinion of the court.

That fraud vitiates all acts, and that a vendor from whom goods have been obtained by fraud on the part of the vendee may rescind and retake the goods, are matters concerning which there is no dispute.

The question whether a sale, or rather an apparent or attempted sale, is absolutely void, or merely voidable at the instance of the vendor, and whether a bona fide purchaser from the vendee acquires, as against the vendor, a good title to goods intended to be, or apparently sold, has frequently arisen and been discussed; the rule seeming to be that where goods are obtained upon false representations by the vendee as to his character, financial ability and intentions as to-the goods, the sale is merely voidable, and a bona fide purchaser from the vendee will acquire a good title; but where the deception practiced upon the vendor is such that there is in reality no meeting of the minds of the parties, the sale is actually void and a bona fide purchaser from the apparent vendee will acquire no title. That in such an instance as is presented in this case — goods having been sold by appellants, as they believed, to Lillian E. Amphlett, she representing that she was buying them for herself, when in reality she ' bought the goods for three other parties and had no interest in them or their purchase save as the agent of said third parties — it has ever been held that the three concealed and unknown parties could hold goods so obtained against the vendor, we are unaware.

In Lindsay et al. v. Cundy et al., Law Reports, Queen’s Bench Div., 2d App., it appeared that one Blenkarn took premises at 37 Wood street and wrote to the plaintiffs at Belfast ordering goods of them. The letters were dated 37 Wood street, and signed A. Blenkarn & Co., in such a way as to look like A. Blenkiron & Co., there being an old established firm of Blenkiron & Sons at 123 Wood street, which the plaintiffs knew. They supplied the ordered goods, addressing them to A. Blenkiron & Co., 37 •Wood street. The defendants purchased some of the goods bona fide of Blenkarn and re-sold them to other persons. The plaintiffs brought an action for the conversion of the goods. The court held that the plaintiffs intended to deal with Blenkiron & Sons and therefore there was no contract with Blenkarn; that the property of the goods never passed from the plaintiffs and that they were accordingly entitled to recover in the action.

In Reed v. Barnett, Law Reports, 3d Chancery Div. 123, it appeared that a liquidating debtor who had not obtained his discharge, ordered goods from a wholesale house which sent the goods to him in the belief that the order had come from a firm with whom they were acquainted and whose name resembled that under which the debtor traded. The debtor’s trustee under the liquidation proceedings endeavored to hold the goods. The court say:

“ If the law enabled the trustee to keep possession of these goods it would be a very singular law. The trustee has no right to these goods, but is bound to return them to the true owners unless he, indeed, is willing to pay the price of them. He ought not to have resisted the claim of the appellants. It was simply dishonesty to do so.”

In Bush et al. v. Fry et al., 15 Ont. 124, it appeared a person at Beardstown, Illinois, had represented to a dealer in Chicago that he had a customer named Johnston to whom he could sell a piano and desired him to ship one in their name to be subject to their order, he, the music teacher, to pay freight charges in case of no sale and return the piano to the plaintiff, he, the music teacher, simply acting as their agent. The piano was shipped to him, whereupon he sent the same to Canada and pledged it for money borrowed. The court held “ that no title to the piano ever passed to the music teacher, as it was never intended that there -should.”

Appellants never intended to sell any goods to the judgment debtors of the Plano Manufacturing Company against whom it filed its creditor’s bill, and consequently no title to goods parted with by appellants, with the belief that they were dealing with Lillian E. Amphlett only, was acquired by any of said judgment debtors.

Under the finding of the court below that the store carried on by Lillian E. Amphlett was in realty the property and business of the judgment debtors, John B., T. G. and T. L. Amphlett, all goods obtained by Lillian from appellants were obtained by fraud, not only upon her part, but also on the part of John B., T. G. and T. L. Amphlett.

The decree of the court below, by which goods so obtained were to be devoted to a payment of the debt of John B., T. G. and T. L. Amphlett to the Plano Manufacturing Company, carries into effect the fraud of the Amphletts, and enables John B., T. G. and T. L. Amphlett to pay their debt to the Plano Manufacturing Company with goods fraudulently obtained from appellant. A court of equity will never “ rob Peter to pay Paul.”

It is urged by appellees that appellants, having taken a bill of sale from Lillian E. Amphlett of the goods in her store, and therefore canceled her debt 'to them, thereby ratified the action under which the goods were obtained from them, and lost all right to retake their goods.

It does not appear that appellants, when they took this . bill of sale, were aware that the store in reality belonged to John B., T. Q-. and T. L. Amphlett, and that the goods therein had been obtained by fraud. But if they did know these facts, we do not perceive that it would have made any difference. Having ascertained that the goods had been obtained by fraud, appellants might have replevied the goods which they had parted with, but if Lillian Amphlett was willing to surrender them without such action, we see no reason why they should not have accepted her surrender; and, necessarily, the retaking of the goods, either by replevin or by voluntary surrender, would have discharged the obligation of Lillian Amphlett to pay for them. Mor do we think that if the first petition filed by appellants placed their right to hold the goods upon the surrender of them, or the bill of sale to them made by Lillian Amphlett, it deprived them of their right to insist that the goods had been obtained from them by such a fraud as that against them, none of the Amphletts obtained any title thereto. Taking the bill of sale, as appellants did, apparently without any knowledge of the fraud perpetrated by the Amphletts, or of the creditor’s bill filed by the Plano Manufacturing Company, it was quite natural for them to file their first petition, relying upon the title-they had acquired under the bill of sale. Indeed, while the right to hold the goods, because they had been induced to part with the possession of them by fraud, was set up in the amended petition which we are now considering, it does not seem to have been clearly urged, on argument, to the chancellor before whom the demurrer to said position was heard.

Can appellants, of the goods surrendered to them by Lillian Amphlett, hold other than those which they had themselves parted with the possession of, under the fraudulent representations made to them? In other words, have they a fight to goods which, while not directly obtained from them, are the proceeds of goods which they parted with in consequence of the fraudulent representations and practices of the Amphletts?

The Plano Manufacturing Company did not, as it might, have their execution levied upon the goods in the store carried on by Lillian E. Amphlett. They have resorted to a court of equity, and, being now in a court of equity, the goods kept by Lillian Amphlett in her store, and by her voluntarily surrendered to appellants in satisfaction of her debt to them, are to be treated and disposed of in accordance with equitable principles. Obtaining goods from appellants as she did, neither Lillian, John B., T. Gf. or T. L. Amphlett acquired title thereto; delivered, as the goods were, into the possession of Lillian, in the view of a court of equity, she received them merely in trust, holding them for the benefit of their true owners — appellants.

A constructive trust arises whenever another’s property has been wrongfully obtained, appropriated and converted into a different form. If a trustee or other fiduciary person wrongfully converts goods held in trust into a different species of property, taking to himself the title, or if an agent or bailee wrongfully disposes of his principal securities and with the proceeds purchases other securities in his own name, in these and all similar cases, equity impresses a constructive trust upon the new form or species of property, not only while it is in the hands of the original wrongdoer, but as long as it can be followed and identified, into whosesoever hands it may come, except those of a bona fide purchaser for value and without notice. As a necessary consequence of this doctrine, whenever property subject to a trust is wrongfully sold and transferred to a bona fide purchaser so that it is freed from the trust, the trust immediately attaches to the price or proceeds in the hands of the vendor, whether such price be a debt yet unpaid due from the purchaser or a different kind of property taken instead, or even a sum of money paid to the vendor, so long as the money can be identified and is left in his hands or under his control. Pomeroy’s Equity Jurisprudence, Sec. 1044-1848-1051.

It is not essential for the application of this rule that an actual trust or fiduciary relation should exist between the original wrongdoer and the beneficial owner. Whenever one person has wrongfully taken the property of another and converted it into a new form or transferred it, a trust arises and follows the property or its proceeds. Pomeroy’s Equity Jurisprudence, Sec. 1051.

The decree of the Circuit Court is reversed and the cause remanded with directions to overrule the demurrer to appellant’s amended petition and for further proceedings in this cause not inconsistent with this opinion. . Beversed and remanded with directions.


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    First National Bank v. Barse live Stock Commission Co.
    1. Possession — Wrongful Talcing Does Not Divest the Owner of His Title. — A wrongful seizure or taking of the personal property from the possession of another does not divest the lawful owner of any of his rights.
    Bill of Interpleader. — Appeal from the Superior Court of Cook County; the Hon. Arthur H. Chetlain, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.
    Affirmed.
    Opinion filed December 24, 1901.
    Statement of Facts. — This was a bill of interpleader filed by Wood Brothers on June 16, 1898, asking the direction of the court in the disposition of a fund of $2,397.47 in their hands. The bill alleged that complainants were engaged in the live stock commission business at the Union Stock Yards, Chicago; that on September 3, 1896, they received 155 head of cattle from Wagoner Station, Indian Territory, that had been shipped to them by A. H. Wooters; that said cattle were sold by them as commission merchants on open market, and after deducting the expenses, commissions, etc., the sum of $2,397.47 was realized; that an itemized account of sales was promptly sent to said shipper on the 3d of September, 1896, and that they received a telegram from A. H.Wooters,dated Wagoner, Indian Territory, September 3, 1896, instructing them to remit the proceeds to National Bank of the Republic, St. Louis, for account II. F. Moore, cashier, Crockett; that on September 5, 1896, they received a letter from A. H. Wooters confirming said telegram; that said H. F. Moore referred to in the letter and telegram was the cashier of the First National Bank of Crockett; that the First National Bank of Crockett notified complainants it was entitled to and made demand on complainants for the fund, and that the George R. Barse Live Stock Commission Co. notified complainants it was entitled to the proceeds of the sale of the cattle under an alleged chattel mortgage executed by one T. F. Smith; that on September 11, 1896, the Barse company brought an attachment suit in the Superior Court of Cook County, cause number 177,115, in which A. H. Wooters was named defendant and the complainants named as garnishees; that said attachment suit was pending until June 3, 1898, when it was dismissed and complainants discharged as garnishees; that both the bank of Crockett and Barse company were claiming the money in the hands of complainants and that complainants did not know the interest, if any, of A. H. Wooters or T. F. Smith in and to the proceeds.
    Appellant and appellee and A. II. W ooters and T. F. Smith were made parties defendant to said bill of complaint. All of these defendants entered their appearance in the case, and the defendants A. H. Wooters and T. F. Smith filed disclaimers.
    Appellant filed an answer and interplea, alleging that it was entitled to the fund in the hands of complainants by the terms of an agreement entered into by T. F. Smith in August, 1896, whereby Smith, being the owner of the cattle in controversy, agreed to ship the cattle in the name of A. H. Wooters, but for appellant, and thereby to assign and transfer to appellant the cattle in question for the purpose of taking up an indebtedness of said Smith to appellant which was maturing September 1,1896; that the cattle had been shipped in accordance with said agreement for appellant; that the delivery of the cattle to Wooters was a delivery to appellant and that appellant was entitled to the fund.

      The appellee filed an answer and in ter plea, claiming to be entitled to the fund under the terms of a chattel mortgage executed by T. F. Smith to appellee on October 25, 1895, said Smith being a resident of Crockett, Houston county, Texas; that the cattle were located in the Creek nation in Indian Territory; that the mortgage was filed for record in Houston county, Texas, on October 28, 1895, and on October 31, 1895, was filed in the office of the clerk of the United States Court for the ¡Northern District of Indian Territory, in accordance with the United States statutes, and that consequently appellee was entitled to the fund.
    On October 22, 1898, an interlocutory decree was entered in the cause sustaining the bill of interpleader, decreeing T. F. Smith- and A. H. Wooters to have no interest in the fund in controversy and ordering that the answers of appellant and appellee stand as interpleas or statements of the claims of the respective parties, and that complainants deposit the fund, then amounting to $2,334.47, with the clerk of court, and be dismissed out of the cause.
    On February 15, 1900, the appellee filed an amendment to its answer and interplea by leave of court, alleging that on or about the first day of August. 1896, it had taken possession of the 155 head of cattle which were the subject of controversy in this cause, and that it was in actual and notorious possession of said cattle at the time they were shipped to Chicago in the name of A. IT. Wooters.
    Upon a hearing of the issues thus raised between the appellant and appellee the court found that appellee was entitled to the fund and decreed accordingly, and entered judgment against appellant for costs of suit, from which decree and judgment this appeal is prosecuted.
    Alden, Latham & Young and Shepard & Shepard, attorneys for appellant.
    Paddock & Billings, attorneys for appellee.
   Mr. Justice Shepard

delivered the opinion of the court.

The appellant in its brief says :

“Under, our assignment of errors we shall urge three points on this appeal, two of them being questions of law and one a question of fact.
First. The prosecution of the attachment suit against Wooters by appellee was-a bar to recovery in this action.
Second. The mortgage of the Barse company was void as against the rights of appellant that accrued August 31, 1896.
Third. At the time the cattle in controversy were shipped from Gibson Station, I. T., to Chicago, they were in the possession of T. F. Smith, and not in the possession of the Barse company.”

We will consider these" points in the order of their making. The bill of interpleader sets out that on September 11,

1896, an attachment suit was begun in the Superior Court, wherein A. H. Wooters was made defendant and Wood Bros, were served as garnishees, for the purpose of reaching the proceeds of said cattle, and that said attachment suit was dismissed June 3, 1898.

The answers of both parties admit the commencement of said attachment suit and its dismissal, without prejudice, on the date named in the bill, and the evidence shows that the suit was dismissed on the stipulation of the parties thereto.

Immediately following the dismissal of that suit the bill of interpleader was filed by Wood Bros., making the appellant and appellee parties defendant, and the fund was paid into court. Both parties defendant submitted to the jurisdiction of the equity court in the interpleader suit, and there asserted their rights to the fund.

It is the same fund — the proceeds arising from the sale of the cattle — that is in controversy in the interpleader suit, that was sought to be reached in the attachment suit.

The issues presented in the attachment suit are not shown by this record, but it is plain that they might be the same that are presented here, viz., to whom .does the fund in conscience and of right belong? The appellant has not pleaded the attachment suit in bar of the right of appellee to have the fund, nor set it up in any way as a defense to appellee’s claim, and without such a plea we can not say that there is any room for us to hold that appellee has in this proceeding pursued a remedy that is inconsistent with the remedy he elected at first to pursue in the attachment suit. Ho intervening rights are made to appear, nor any change in appellant’s position with respect of the fund, because of the attachment suit, is observable.

The case of Johnson-Brinkman Com. v. Missouri Pacific Railway Co., 126 Mo. 344, appears to be very much in point. See also Stier v. Harms, 154 Ill. 476, and Barchard v. Kohn, 157 Ill. 579.

Consideration of the second point may be deferred, for if the Barse company were in actual and open possession of the cattle at the time in question, then, whether their mortgage was good in law or not, is not material. As between the parties to it, the mortgage was good and valid, and as between the mortgagee in possession, Barse company, and a third party whose rights attached subsequent to the possession of the Barse company, it was good.

The Barse company had loaned a large amount of money to Smith, which was secured by Smith’s chattel mortgage on 2,100 head of cattle that were ranging on pastures in the Indian Territory. Only 155 head of these cattle are involved in this suit, although the testimony taken in the case covers more. During the season of 1896 and prior to August first, the witness Stonebreaker was sent by the Barse company to inspect the various securities held by the company in the Indian Territory, and among others the Smith cattle. He reported a shortage of 400 to 500 head of the Smith cattle, and received instructions from the company to take such measures as were necessary to protect the interest of the company concerning what remained. Stonebreaker immediately returned to the range where the cattle were feeding. Finding there one Redman, who was then in charge of the cattle for Smith, he concluded an arrangement with him to take and hold possession of the cattle for the Barse company. This was on August first, or a day or two before the first. A great deal of testimony was taken about the possession then and thus taken, and as to what followed, for the purpose of showing and disputing the question of the possession, and as to whether it was effectual against third persons or not. The testimony covered a very wide range and embraced the knowledge of others concerning the fact of actual and open possession, the manner of shipments of cattle thereafter, the payment of the expenses of the ranch from that time forward, and about everything that would have a bearing upon the question.

It is reasonably plain that about the middle of August, or a little before, Smith, the mortgagor, came to the ranch, and was informed of what Stonebreaker had done in the matter of taking possession, and at first objected to it on the ground it would injure his credit,but afterward ceased to object and probably gave his assent to it, and there was considerable evidence that it soon became a matter of general notoriety in the neighborhood that the Barse company had taken possession of Smith’s cattle by Stonebreaker, and that Bed man was acting for Stonebreaker in the actual charge of the cattle.

But whether the evidence, considered together, sufficiently sustains appellee’s contention that actual and open possession was taken on August 1,1896, of all the cattle, or not, we need not stop to inquire, or say more than its tendency is to support the finding of the court below in that respect. The evidence is substantially conclusive that actual possession of the 155 head of cattle involved in this suit was taken by the Barse company in the latter part of August. These particular cattle were actually separated by agents of the Barse company, from the balance of the herd, and put into a separate inclosure known as the “ horse pasture ” adjoining the headquarters of the ranch, convenient to and from one-half to three-quarters of a mile from the railway station, for shipment.

After they had been thus separated, and while Bedman was temporarily absent, two sons of Smith went to the “ hor'se pasture ” and drove the 155 head from there to Gibson station, some six to eigh t miles distant, and there shipped them to Wood Brothers in the name of A. H. Wooters; and the cattle so shipped were the cattle directly involved in this suit.

It does not require the citation of any authorities to show that such a seizure by or in behalf of Smith or Wooters was wrongful, and did not divest the Barse company of any of its rights. Neither Wooters nor the appellant had any lien on the cattle or any of them, nor had Smith any right to their possession as against the Barse company, a mortgagee in actual and open possession of them. The only claim of Wooters or the appellant bank, to the cattle, was under a verbal agreement with Smith that he would cause to be shipped to Chicago, in the name of Wooters, but for appellant, a number of cattle, the proceeds of which would be sufficient to take up and pay a $3,000 note of his, which matured September 1,1896, and the possession of the cattle, so wrongfully acquired.

We observe nothing else requiring discussion, and accordingly affirm the decree of the Superior Court. Decree affirmed.


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    Jefferson E. Greer, Jesse Sherwood and Mills & Co., v. John Clay, Jr., et al.
    1. Trials — By the Court — When Not to Be Set Aside. — The finding of a judge to whom a cause is submitted for trial without a. jury is entitled to as much weight on controverted question of fact as the verdict of a jury, and will not be set aside by an appellate tribunal unless it is manifestly against the weight of the evidence.
    Ti'over. — 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 December 24, 1901.
    Pattison & Shaw, attorneys for appellants.
    Swift, Campbell & Jones, attorneys for appellees.
   Mr. Justice Shepard

delivered the opinion of the court.

This is a suit in trover begqn by appellants to recover the proceeds of the sale of cattle consigned to the appellees by a chattel mortgagee who had taken possession of them. The appellants claimed the proceeds of sale under another chattel mortgage claimed to have covered the same cattle. The contest is between the claimants under the two mortgages. The mortgage under which the appellees claimed is dated September 18, 1897, and describes the cattle as two-year-olds, past, with “ a round ring in the upper part of the right ear,” and was given for money loaned to buy cattle, claimed to be the same ones shipped.

The controversy is as to whether the cattle consigned and sold were the identical cattle covered by appellants’ mortgage, not whether they were the same cattle covered by the mortgage held by appellees’ consignor. If the question was as to whether the cattle were covered by the mortgage of appellees’ consignor, we might agree that they were not, on the ground that the cattle did not bear the identifying mark described in his mortgage.

The appellants claimed the cattle because of the claimed identity of them with those described in their mortgage. In endeavoring to establish that identity much evidence was elicited tending to show that they' were not and could not have been the cattle covered by the mortgage of appellees’ consignor. Still, the question remained, were they the same cattle covered by appellants’ mortgage. The declaration counted upon the conversion of the identical cattle described in appellants’ mortgage, and no others.

At the request of the owner of the cattle, appellants, who are commission merchants doing business at the Union Stock Yards, in Chicago, sent a man to the farm of the owner, in Iowa, to examine the cattle and investigate the records of the county in which they were located for liens on them, and if satisfactory to loan $2,000 on the cattle.

This was done, and the money was loaned and applied in large part to pay off an existing chattel mortgage held by a bank in the vicinity, and the chattel mortgage in question was given by the owner.

The mortgage was dated December 9, 1897, and the property described in it was as follows:

“ Thirty-six steers, namely, 23 red steers, three-year-olds; 5 roan steers, three-year-olds; 1 brindle steer, three years old; 3 red and white spotted steers, three-year-olds; 1 yellow spotted steer, three years old; 4 red ring faced steers, three-year-olds; 200 hogs, average 120; 100 pigs, shoats, average 75; also 4,000 bushels of corn in crib and shock, being all feeding cattle, three-year-olds, and chattels of the kind that I have; and it is hereby covenanted and stated as a fact that all of the said cattle and hogs and chattels are owned by said party of the first part and are free and clear of all incumbrances of every kind and character. The said cattle and bogs and chattels are now in perfect health and good condition and in the undisputed possession of the said party of the first part on the premises, being the southwest quarter (Jl of section No. 21, in township No. 68, range No. 9, in Van Burén County, State of Iowa. * * * Said cattle and hogs have been in the undisputed possession of the party of the first part for the period of one hundred and twenty days last past, having been purchased by the party of the first part from various parties of Van Burén county. The average weight of said cattle is now thirteen hundred and sixty (1,360) pounds.”

The evidence that tended to show the cattle in question were not the same as those described in appellants’ mortgage, was mostly directed to the claim that the cattle consigned and sold were two years old past, and not three years old; that they had not been in the possession of the mortgagor so long as the mortgage stated them to have been; that they were purchased from farmers in the early part of September, 1897, and were not the same that were purchased from parties in Van Burén county, Iowa.

On the other hand, the testimony of the man Pried, who went to Iowa to examine the cattle, and made the loan for appellants, is positive that the cattle are the same he saw on the mortgagor’s farm and took the description of for the purpose of drawing the mortgage. He afterward saw the cattle when they were being unloaded at the Stock Yards and picked out and separated them and positively identified them as the same ones on which he took the mortgage, in Iowa. Another witness, Ferguson, is the only one for the appellants except Pried who saw the cattle in Iowa, and his opinion was they were three years old. Six other witnesses testified for appellants that they were three-year-olds, basing their opinion on their size and general appearance.

An equal or greater number of witnesses for appellees testified that the cattle were two-year-olds or two years past, some of them basing their opinion on their size and appearance, and others on actual knowledge of them from the time they were calves or yearlings.

Boude, the appellees’ consignor, was clearly a creditor of the mortgagor, and as such was entitled to contest appellants’ right to possession of the cattle. Whether he made out his right to possession under the terms of his mortgage as against appellants may be questioned, but as we said at the beginning, the case turns on the evidence as to appellants’ mortgage covering the identical cattle in question. It does not follow, that because the cattle were not the same as described in the mortgage held by appellees’ consignor, they therefore belonged to appellants.

From all the testimony we are quite unable to say that the learned judge, before whom the case was tried without a jury, came to an incorrect conclusion. The findings of a judge to whom a cause is submitted without a jury, are entitled to as much weight on controverted questions of fact as is the verdict of a jury, and should not be set aside by an appellate tribunal unless the findings are manifestly-against the weight of evidence. Burgett v. Osborne, 172 Ill. 227; Western, etc., Coal & C. Co. v. Beaver, 95 Ill. App. 95; Hays v. Langley, 90 Ill. App. 500.

This we can not say on the record before us, and the judgment must, accordingly, be affirmed.


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    Jacob Doppelt v. Columbia Paper Stock Co.
    1. Trials— Without a Jury upon Conflicting Evidence. — The finding of a judge before whom a case is tried without a jury, is entitled to as much weight as the verdict of a jury, as to the facts about which the evidence is conflicting.

      2. Fees — 0/ Witnesses Residing Outside of the State. — A witness living outside of the State is as much entitled to witness fees for the distance necessarily traveled in the State, as if he lived in another county within the State.
    Assumpsit, for goods sold and delivered. 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 December 24, 1901.
    Elijah N. Zoline, attorney for appellant.
    Leslie H. Whipp, attorney for appellee.
   Mr. Justice Shepard

delivered the opinion of the court.

This case was originally begun by appellee before a justice of the peace, and appellant being beaten, appealed to the Circuit Court, when the cause was submitted to the court without a jury, and the appellant being again beaten there, has brought the case to this court for review.

The controversy is over the authority of one,claiming to be the agent of the appellant, to bind the appellant by a contract entered into by the purported agent, with appellee, for the purchase of a quantity of paper rags.

It was fairly established that the purported agent had no authority in the first instance to make the contract for appellee, but the question is whether appellant did not, after he was informed, of the contract, ratify it and make it his own.

Gross, the purported agent, had a desk in the office of appellant and unauthorizedlv used the letter-heads of appellant in the early correspondence with the appellee, and signed appellant’s name to the letters, without authority to do so.

Two or three of the later letters were, however, written and signed by the. appellant, and in them appellaht does not allude at all to his contention that Gross was acting without his authority in buying the rags, but places his refusal to perform the contract solely on the ground that the rags were not according to the sample, not equal to what Gross told him were the kind of rags he had contracted for. Nor did appellant deny when on the witness stand that he had knowledge of the earlier letters written by Gross and signed in the name of appellant.

Under such circumstances the finding of the Circuit Court against him is not so lacking in evidence to support it, as to justify us in reversing the judgment on the ground that there was no ratification shown of the authority of Gross.

The finding of a judge before whom a case is tried without a jury, is entitled to as much weight as the verdict of a jury, as to facts about which the evidence is conflicting. Greer v. Clay, p. 204, ante.

We find no error committed by the court in refusing to hold the propositions of law submitted by the appellant. The sale was by sample, and the evidence tended to show that the shipment was of rags that corresponded with the sample. The sale afterward made of them by the appellee for a price much below the price agreed by Gross to be paid for them, was a circumstance in the case entitled to consideration, but was not conclusive that they did not agree with the sample, and we ought not to disturb the finding of the trial court on that ground alone.

We have examined the point made with reference to the taxation of witness fees in behalf of non-resident witnesses. It appears that the witnesses lived in St. Louis, and were allowed fees at the statutory rate for the mileage traveled in this State.

A witness living outside the State is as much entitled under the statute to witness fees for the distance necessarily traveled in the State, as if he lived in another county within the State. Rev. Stat., Sec., 47, Chap. 43.

We think the witness fees were properly taxed. Observing no error in the record, the judgment is affirmed.


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    C. A. Peterson v. Charles Bostrom.
    1. Sales — Of Personal Property — Delivery—Liens of Executions.— Between eight and nine o’clock in the moíning A. sold his buggy to B. and gave him an order for it on a livery stable keeper in whose possession it then was. At twelve o’clock an execution was issued against A. and placed in the hands of a constable. At five o’clock of the same day the purchaser presented the order he had received to the liveryman and took the buggy away. Two days later it was levied upon by the constable while in the possession of the purchaser. It was held that under the law and the circumstances of the case the execution was not a lien upon the buggy.
    Replevin. — Appeal from the Superior Court of Cook County; the Hon. Farlin Q. Ball, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.
    Affirmed.
    Opinion filed December 24, 1901.
    Louis Greenberg and William M. Klein, attorneys for appellant.
    Henry F. Joslin, attorney for appellee.
   Mr. Justice Waterman

delivered the opinion of the court.

This was an action of replevin. The facts were agreed upon by counsel in open court and substantially are that between eight and nine o’clock in the morning of September 5, 1899, one Alund sold his buggy to appellee and gave him an order on a liveryman in whose possession it then was. At twelve o’clock upon the same day an execution against Alund was issued and placed in the hands of appellant, a constable. At five o’clock upon the same day appellee presented the order he had received, to the liveryman and took the buggy away. Two days later it was levied upon by appellant while in the possession of appellee. Thereupon appellee brought this action of .replevin.. Appellant claims that the order for the buggy was not a delivery good as against creditors; and the execution having come to his hands before the order was presented to the liveryman, he had a right to seize the buggy upon his execution.

The statute of this State, section 124 of chapter 79, is as follows:

‘‘The personal property of every defendant in a judgment before a justice of the peace, not exempt from execution, shall be bound for the payment of such judgment from the delivery of the execution issued thereon to the constable.”

It will be perceived that it is only the personal property of the defendant in a judgment that is bound. The question in this case is, therefore, whose property was this buggy at the time the execution came into the hands of the constable.

Shepherd’s Touchstone, p. 224, states the common law as follows:

“ If one sell me his horse or any other thing for money or other, valuable consideration, and, first, the same thing is to be delivered to me at a day certain, and by our agreement a day is set for the payment of the money; or, secondly, all, or, thirdly, part of" the money is paid" in hand; or, fourthly, I give earnest money, albeit it be but a penny, to the seller; or, lastly, I take the thing bought by agreement into my possession, where no money is paid, earnest given, or a day set for the payment — -in all these cases there ]s a good bargain and sale of the thing to alter the property thereof.”

And in Hoy’s Maxims, p. 87, it is stated:

“ If I sell my horse for money I may keep him until I am paid, but I can not have an action of debt until he be delivered; yet the property of the horse is by the bargain in the bargainee or buyer; but if he presently tender me my money and I refuse it, he may take the horse, or have an action of detinue; and if the horse die in my stables between the bargain and delivery, I may have an action of debt for the money, because by the bargain the property was in the buyer.”

So, too, in Simmons v. Swift, 5 B. & C. 862, it is said :

“ Generally, where a bargain is made for the purchase of goods, and nothing is said about payment or delivery, the property passes immediately, so as to cast upon the purchaser all future risk, if nothing remains to be done to the goods, although he can not take them away without paying the price.”

And in Dickson v. Yates, 5 Adolphus & Ellis, 313-340, and Benjamin on Sales, 6th Ed., p. 252-253, “the rule is laid down that by the law of England the sale of specific chattel passes the property in it to the vendee without delivery.”

In the present case the vendee actually obtained possession of the property before there was any levy, while the title to it passed by the bargain and order of delivery given to him. The property having thus become that of appellee, appellant’s mere execution against a third party was not a lien upon it.

The judgment of the Superior Court is affirmed.


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    Harvey & Mose Plumbing Co. v. C. W. Wallace et al.
    1. Mechanics’ Liens— Under Written Contracts. — Under a written contract, no lien will attach where the time stipulated for the completion of the work or furnishing of the material is beyond three years from the date of the contract, or the time of payment beyond one year from the time stipulated for the completion thereof.
    2. Same — Under Verbal Contracts. — When the work is done or materials are furnished under a verbal contract, no lien will attach by virtue of the mechanics’ lien law unless the work is to be done or materials furnished within one year from the date of the contract.
    Petition for a Mechanic’s Lien. — 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 December 24, 1901.
    Elmer H. Adams, attorney for appellant.
    E. S. Cummings, Burton & Kanally and Dunn & Ripple, attorneys for appellees.
   Mr. Justice Waterman

delivered the opinion of the court.

This was in part a proceeding under the mechanics’ lien law now existing in this State. Some of the contracts under which claims were made were in writing, some were verbal, all were express;, in none was any time fixed for the completion of the work or improvement.

Section 6 of the lien law, so far as it relates to written contracts, is:

“ If the contract be written, no lien shall be had by virtue of this act, if the time stipulated for the completion of the work or furnishing the material is beyond three years from the date of the contract, or the time of payment beyond one year beyond the time stipulated for the completion thereof.”

As to verbal contracts the language is :

“ If the work is done, or materials are furnished under a verbal contract, nó lien shall be had by virtue of this act, unless the work shall be done or material furnished within one year from the date of the contract.”

It is conceded by the claimants that the case of Freeman v. Rinaker, 185 Ill. 172, is decisive of and adverse to the claim under the written contracts, while it is contended that a lien is given to contractors who, by express verbal contracts, furnished material, although no time was fixed for the completion of the work or payment therefor. As to this see Rogers v. Concord Apartment House Co., 93 Ill. App. 302.

It certainly would be remarkable if the law gives in this regard a preference to verbal over written contracts.

None of the complainants completed its contract, and none gave the notice required in such case by section i of the law.

As an excuse for this it is said that the architect stopped the work. In so doing he not only acted without authority and in violation of his duty, but as he himself testified, not in or for the interest of Mrs. Wallace, “ but in order to protect the contractors; ” “ I simply stopped work.”

None of the claimants had any reason to think this was done at the instance, desire or by authority of the owner; each could easily have ascertained by asking her whether such was the case.

We have here a case in which the work of the respective claimants was never completed and in which none followed the course pointed out by the statute.

The decree of the Superior Court denying the petition for a lien is affirmed.


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    Max Masterofsky v. Henry Hellman.
    1. Promissory Notes — Internal Revenue Stamps — Evidence.—Under the laws of this State a promissory note is not required to have upon it an internal revenue stamp, to make it competent evidence in the courts of the State.
    3. Evidence — Instruments Without Revenue Stamps. — Congress has no power to determine what shall be evidence in the courts of this State and it is error to instruct a jury that a promissory note without having an internal revenue stamp upon it is not to be taken into consideration in arriving at their verdict.
    Assumpsit, on a promissory, note. Appeal from the Circuit Court of Cook County; the Hon. Edward F. Dunne, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.
    Affirmed.
    Opinion filed December 24, 1901.
    Elmer H. Adams, attorney for appellant.
    B. M. Shaffner, attorney for appellee.
   Mr. Justice Waterman

delivered the opinion of the court.

This cause has its origin in a confession of judgment which appellee asked to have set aside, and was allowed to and did plead; the cause coming on for trial before a jury, the jury found in-favor of the defendant.

A defense, among others, was that a note dated October 10, 1897, was in fact given in 1898, after the United States internal revenue law went into effect, and being unstamped the note was void, and could not be recovered upon.

Second. That all of the notes were paid.

The court gave the following instruction:

“ The court further instructs the jury that if they believe from the evidence the note offered in evidence and purporting to be dated October 10, 1897, was delivered to one Louis Heilman, signed in blank, during the month of August, 1898, and the same was and is unstamped with proper revenue, stamps, then the jury must disregard said note, and not take the samé into consideration in arriving at the verdict in this case.”

This was error. Congress has no power to determine what shall b¿ evidence in the courts of the State. The (U. S. Express Co. v. James Haines, 48 Ill. 248.

That the notes had been paid was shown beyond controversy. The plaintiff offered no evidence save the notes. The court might properly have instructed the jury to find for the defendant.

The judgment of the Circuit Court will therefore be affirmed.


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    Canal Melting Co. v. Columbia Park Co.
    1. Nuisances — Lawful Occupations, Not Nuisances per se. — At the present day any lawful occupation can not be spoken of as a nuisance per se.

    2. Same — Jurisdiction of a Court of Equity to Enjoin a Nuisance at the Instance of a Private Party. — It is well settled that the jurisdiction of a court of equity to enjoin the carrying on of a lawful business at the instance of a private party is always reluctantly exercised, until the nuisance has been found to exist by a jury.
    3. Injunctions — To Restrain Nuisances — Nature of the Injury Inflicted. — In order to restrain the carrying on of a rendering establishment in a populous neighborhood, the threatened injury from it must be real, not trifling, transient or temporary. It must be one for which either on account of its essentially irreparable nature, its repetition or continuance, the legal remedy for damages is inadequate. Amerediminu- ■ tion of the value of property by it without irreparable mischief will not furnish ground for equitable relief.
    Bill for an Injunction. — Appeal from the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge, presiding. Heard in' the Branch Appellate Court at the October term, 1900.
    Reversed and remanded with directions.
    Opinion filed December 24, 1901.
    Statement. — Appellee, on the 19th day of March, 1897, filed its bill asking that appellant be enjoined from carrying on its business ,at its factory in the town of Lyons, County of Cook and State of Illinois.
    Appellee showed that it owned about sixty acres of land in said town and that it had erected thereon at a great expense, various, substantial and costly buildings, to wit, a dance hall, bowling alley, restaurant building, boat house, toilet and parcel rooms, two ice houses, four refreshment stands and other buildings; also had constructed ball ground, bicycle track, running track, swings, gravel walks and other improvements for picnic purposes; and also owmed boats for boating on the Desplaines River and for renting, and had expended on such improvements $30,000, the value of the property, with improvements, being $50,000.
    “ That the park was generally known as Columbia Park; that since the year 1899, the park company had carried on a profitable business in renting the park to a large number of associations, lodges, churches, clubs, etc., for picnic purposes.”
    “ That within the last four weeks, the Canal Melting Company had constructed a factory about 200 yards from Columbia Park, for rendering and melting dead animals, etc., and that since April 10, 1897, such factory had been used and operated by said Canal Melting Company for rendering dead animals and refuse matter, and garbage procured by the Melting Company from the city of Chicago and other places, and rendering such matter.
    “ That foul, noisome, disagreeable and sickening odors escape day and night from such factory and pollute the air in and around the park of the complainant; that if the Canal Melting Company is permitted to continue to so operate the factory, complainant’s park will be rendered unfit and undesirable for picnic purposes, and complainant’s business will be entirely destroyed.
    “ That the season for leasing the park for picnic purposes extends from the middle of May to the first of October; that during the months of April and May committees examine such park; that already committees from several organizations have visited the park and refused to lease same, because of the foul odors from said factory.”
    On March 31, 1899, appellee filed a supplemental bill setting forth that on the 19th day of April, 1897, one Schlichting filed a bill in the Circuit Court of Cook County against appellant with charges similar to those of the bill filed on the same day by appellee and praying for the same relief.
    That under the bill filed by Schlichting, on May 10, 1897, the Circuit Court found that the business carried on by appellee was a nuisance and enjoined it from carrying on in its said factory its rendering business, “so as to produce, generate or disseminate any foul and disagreeable odors that may be carried or wafted to the dwelling of said Schlichting, complainant, and from discharging any foul matter from said factory into the waters of the Desplantes river, until the further order of the court.”
    That thereafter appellant was cited into court to show cause why it should not be attached for violating said order of court; that upon hearing thereof, the court found that appellant had acted in contempt of court and further enjoined it in the premises and ordered that it pay to the complainant, Schlichting, $190 taxed as master’s fees, from which order appellant appealed to the Appellate Court for the First District.
    The supplemental bill further showed that about September 1, 1898, the appellant, for the sum of $1,000, procured a stipulation from Schlichting to dismiss his bill of complaint, and on November 18, 1897, his bill was dismissed. The supplemental bill then goes on to charge the carrying on by appellant of its business at said Willow Springs in the town of Lyons, in such a manner as to be a nuisance and damage to appellee since the filing of its original and up to the filing of the supplemental bill, and it insists that its business has been greatly damaged thereby and that it will be irreparably injured, unless appellant be perpetually enjoined from carrying on its rendering business in said factory.
    The answer of appellant admits the carrying on of a rendering business as alleged in the bill; alleges that it is under contract to and does receive all dead animals found in or about the streets of Chicago; converts and disposes of the same without cost to said city; that its business is a necessary and proper one, and is not a nuisance; that whatever foul odors and emanations may have come from this factory when first established and at the time said Schlichting filed his bill, by the use of improved methods and appliances, have long since ceased; that appellee has not been injured or its business lessened by anything appellant has done, but that if its business has fallen off it has been because of the establishment of rival picnic grounds in the same vicinity, which by competition have diverted business from appellee; that the damages alleged in the supplemental bill are of a pecuniary character and such as are recoverable at law; that the premises of appellee were not occupied by any dwelling house or residence, but as an amusement ground, occasionally occupied during the summer months.
    Evidence having been heard the court perpetually enjoined appellant from maintaining and operating its factory in the town of Lyons for rendering and melting refuse matter of any kind and description whatever and from treating in any manner whatsoever in said factory any refuse animal matter of any kind or description and from converting in said factory refuse or animal matter into fertilizers or other products, and from bringing and conveying by railroad cars or by any means of transportation to its factory any refuse animals and refuse animal matter and from discharging from its factory into the JDesplaines river, by any means whatsoever, animal matter or the washings of said factory, or corrupt and filthy water or polluting liquid, fluid or matter whatsoever.
    Eddy, Haley & Munroe and Pattison & Shaw, attorneys for appellant.
    George W. Plummer and Wharton Plummer, attorneys for appellee.
   Mr. Justice Waterman

delivered the opinion of the court.

As to under what circumstances the carrying on of a lawful business will be enjoined at the instance of a private person upon the ground that said business is a nuisance and damaging to a complainant is one of the most delicate questions which can be presented to a court of chancery.

Whatever may have been the rule in former times, we do not think that at the present day any lawful business can properly be spoken of as a nuisance per se. Legislatures, and not infrequently cities, may declare certain kinds of business, when carried on in certain places, nuisances, per se; when so declared it is quite immaterial in what manner such business is thereafter carried on, it having ceased to be lawful. Beyond this, while a business may béprima facie a nuisance, that is to say, its general character and effect such that in certain neighborhoods, it is therein prima facie a nuisance, nevertheless, it may be shown that it is carried on in such a manner that neither health, comfort nor property of any one is injured thereby; that is, that which is done is transacted in such a manner that the lawful right of no one is infringed.

Nor do we think that at this day and in this generation, because a business has in the past been in certain neighborhoods a nuisance, it follows that it will hereafter always be so.

The entire process of manufacturing and treating matter on a great scale has been revolutionized within the last fifty years. Many products, the collection of which at one place in great quantities, half a century ago, necessarily offended the nostrils and sickened the stomachs of those in the immediate vicinity, have by improved methods been so treated and disposed of that, except for the sight thereof, their presence is hardly known to those who live in the immediate vicinity.

A great, if not the principal portion of the profits of all slaughtering, packing and rendering establishments now come, not from the casting aside as useless any portion committed to its care, or polluting streams with the refuse thereof, but from saving and utilizing every portion of the ■animal; in consequence of which, it is well known that the ■ odors emanating from such establishments are very much less than they were not many years ago.

What science has in store for us — what discoveries and advantages chemistry may bring — it is impossible to say. In view of the wonderful progress of the past, it is certain that we can not say that rendering establishments must for all time be nuisances to dwelling houses and picnic grounds in their immediate neighborhood.

It is well settled that the jurisdiction of a court of equity . to enjoin, at the instance of a private party, the carrying on of a lawful business, is always reluctantly exercised until the nuisance has been found to exist by a jury. Nelson v. Milligan et al., 151 Ill. 462-466.

The present threatened injury must be real, not trifling, transient or temporary. It must be one for which either on account of its essentially irreparable nature, or its repetition or continuance, the legal remedy for damages is inadequate. A mere diminution of the value of the property by the nuisance, without irreparable mischief, will not furnish a foundation for equitable relief. Pomeroy’s Equity Jurisprudence, Secs. 740 and 1350; Nelson v. Milligan et al., supra, 467.

In the present case it appears that the majority of the people in the village of Willow Springs where the factory of appellant is situated, approved of its continuance. A license to carry on its works was granted to it some five years ago and has been annually renewed.

Counsel for appellee complain that the president of the village board was present during the hearing of this cause and aided and assisted appellant.

Under the evidence the case does not appear to us to be one for the appliance of measures so severe and drastic as the perpetual closing up and suppression of the business of appellant.

The finding of the court that the works of appellant are equipped with the best and most approved machinery and appliances, and that the works can not be conducted without the odors complained of escaping and being carried over the premises of the complainant, is not borne out by the evidence.

Complainant’s witness, Henry Freese, who was for some time the local foreman at the rendering works of appellant, testified that the works were arranged so that all the odors should lead into a condenser; that if a condenser of that kind got beyond its capacity, it would show it, and that appellant’s did in 1898, when there was more work than it could do; that to prevent any accident a vent was put on the top of the condenser; that the condenser could not handle all the steam that went in there and a pipe was run into the smoke stack and carried the odors with it; that in the spring and summer of 1899, the bodies of animals received at the park showed that they had been left on the streets longer than was proper; that dogs and smaller animals could not be handled without a shovel and they gave off odors; that he testified before the master that the odors were destroyed in the condenser and he again states that that was a fact; that he now claims that the putting this vent from the condenser up into the smoke-stack, simply let so much odor escape into the smoke-stack; that the condenser was not sufficient to take care of the odors; that there was no odor there to speak of in the winter time, when he was there; that you can take an animal, no matter what the condition of the decomposition and freeze it and it has no odor at all, though it takes plenty of ice to do that. •

Counsel for appellee in their brief say :

“It was during this season of 1898 that appellant ran the vent pipe from its alleged condenser into the smoke stack and malignantly and maliciously, and with total disregard of the rights of other people, scattered the full force of its vile emanations over the country, and continued the use of this vent pipe according to its own admissions during the entire season of the year 1898. We feel warranted in disbelieving the claim that this vent pipe was removed in 1899. We have no doubt that the use of it was continued up to the time of the trial, when Freese, its ex-foreman, was called to the witness stand and exposed the methods which were carried on under the express order and direction of appellant’s responsible agent and officer, Ailing.”

What appears from this evidence and from the statement of counsel for appellee is not that the destruction of the rendering works is required, but that the factory should be conducted with the most improved appliances and the greatest care, in order to prevent the escape of offensive odors. Mor under the evidence offered by appellee and the allegations of its bill does it appear that it is entitled to have the operation of the works, during the winter season, enjoined. Its allegation is that it makes use of the premises owned by it from the middle of May to the 1st of October. Why, then, from the first of October to the first of May, when its premises are unoccupied and there is no one there to be disturbed by anything done by appellant, should it have the right to have the operation of appellant’s factory stopped ?

Appellant is engaged in a necessary occupation, one essential to the health and comfort of the community. Appellee conducts a place of amusement, a public utility, but not a necessity in the sense that is the business carried on by appellant.

In Minke v. Hopeman, 87 Ill. 450, which was the case of a bill filed to enjoin the carrying on of a business similar to that of the defendant, the defendant was perpetually enjoined from carrying on or continuing the business in such a manner as to be offensive to complainant and injurious to him or his family in the use, occupation and enjoyment of his dwelling house and farm. As to this the court say:

“ The decree did not seek to deprive the defendant of the right to engage in or prosecute its business, but only from conducting it in such a manner as to be offensive and injurious to others, and in this regard it is right.”

The injunction in the present case should have proceeded upon lines similar to that approved in Minke v. Hopeman.

The decree of the Circuit Court will be reversed and the cause remanded, with directions to enter an injunction perpetually restraining appellant, du'ring the months of May, June, July, Augu’st and September of each and every year, from disseminating any foul and disagreeable odors that may be carried or wafted over the premises of appellee, and from polluting the waters of the Desplaines river opposite the premises of appellee, and from carrying on or conducting its business in such a manner as to be justly offensive to appellee and injurious to it in the use, occupation and enjoyment of the premises described in said bill, and now owned and occupied by it in the said town of Lyons.

Eeversed and remanded, with directions.


author: Mr. Presiding Justice Burroughs

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    Third District
    — May Term, 1901.
    Oscar A. Graham v. Russell LeSourd.
    1. Dower — Assignment of, May Be by Parol. — In 1891, the heirs of a deceased father conveyed their interest in the land of which he died seized to a son of their mother by a former marriage, and the mother at the same time made an oral agreement with the son that he should take possession of the land (excepting the dwelling house upon it), cultivate the same, and so long as she lived should give her as rent for her homestead estate and dower interest therein, one-third of the crops raised upon it. It was held that the oral agreement with the widow was equivalent to a parol assignment of her homestead and dower rights in the land.
    2. Rents — When a Quit claim Deed by a Lessor Operates as an Assignment. — A son made an oral agreement with his widowed mother that he should take possession of the land in which she had a homestead estate and dower interest, and pay her as rent for it, one-third of the crops grown thereon as long as she lived. Subsequently she sold, and by a quitclaim deed conveyed her interest in the land to a third person. It was held that the quitclaim deed operated as a legal assignment of the rents, and the grantee therein could properly maintain an action of assumpsit for their recovery, the same as the mother might have done had the conveyance not been made.
    Assumpsit, for rents. Appeal from the Circuit Court of Mason County; the Hon. Thomas N. Mehan, Judge, presiding. Heard in this court at the May term, 1901.
    Affirmed.
    Opinion filed September 11, 1901.
    Rehearing denied November 20, 1901.
    John W. Pitman, attorney for appellant.

      Lyman Lacey, Sr., & Son, and Nortrup & Williams, attorneys for appellee.
   Mr. Presiding Justice Burroughs

delivered the opinion of the court.

This was an action of assumpsit brought by appellee against appellant in the Circuit Court of Mason County to recover rent owing by the latter, under an agreement made by him with his mother,- appellee claiming same as assignee of the mother. Appellant entered a general denial and the case was tried by jury and resulted in a verdict and judgment in favor of appellee for $140.

Appellant prosecutes this appeal, and urges this court to reverse the judgment upon the alleged grounds that the evidence does not support the verdict, and -that the court gave improper instructions at the instance of appellee.

It appears that the land in question was owned and possessed by one Henry R. Marshall, before and at the time he died, intestate, in the year 1873, and that before, and when he died, he and his wife, Edith Marshall, and his four children, resided upon it, and that she and the children continued to reside upon it until 1898. In 1891, appellant,

Oscar A. Graham, the son of the widow by a former husband, bought the interest of the four children in the land, and at the same time made an oral agreement with the mother that he should take possession thereof (excepting the dwelling upon it) cultivate same, and so long as she lived, for her homestead estate and dower interest therein, would pay her one-third of the crops grown upon it; and he did take possession and continued to cultivate the land and pay her the rent, according to the ■ agreement, until the year 1898, when, in consideration of $500 paid to her by him, by quitclaim deed, she sold and conveyed her interest in the land to appellee, Russell LeSourd.

In 1899, appellee demanded the rent of the land from appellant in accordance with the agreement between the latter and his mother, but he refused to pay same, and this suit to collect it followed.

The contention of appellant is that the homestead estate and dower interest of his mother had not been assigned, and for that reason the deed of his mother for the land to appellee, conveyed nothing. But in that we are unable to concur; for the effect of the agreement by appellant with his mother, was equivalent to a parol assignment of her homestead and dower rights in the land in rents to be paid her as long as she lived. (Pearce v. Pearce, 184 Ill. 289.) And the rents were assigned or conveyed by the deed to appellee, and therefore, as her assignee or grantee, he could properly maintain this action and recover the rents the same as the mother; and assumpsit is an appropriate action therefor. (Pearce v. Pearce, supra, and same case in 83 Ill. App. 77.)

We have carefully examined appellee’.s given instructions and fail to find that they contain anything calculated to prejudice appellant. Appellee moved to dismiss the appeal in this case, upon the alleged ground that this court is without jurisdiction to hear and determine same, for the reason that a freehold is involved. But we are unable to discover wherein a freehold will be gained or lost by the result of this case, so we will overrule the motion.

Finding no reversible error has intervened, either in the proceedings or judgment of the trial court in this case, the latter will be affirmed.