text:
    Louis H. Kohn v. Jacob Miller et al.
    1. Ratification — Power to Purchase Implies Authority to Patify.— A trustee who is invested with power to purchase has power to ratify a purchase previously made by another, and his ratification will relate back and operate, in law, as a prior authority.
    Assumpsit, for goods sold, etc. Appeal from the Superior Court of Cook County; the Hon. Axel Chytraus, Judge, presiding. Heard in this court at the October term, 1900.
    Affirmed.
    Opinion filed October term, 1901.
    Flower, Vroman & Musgrave, attorneys for appellant.
    Newman, Northrup & Levinson, attorneys for appellees.
   Mr. Justice Adams

delivered the opinion of the court.

The appellees sued appellant, in assumpsit, for the amount of two bills of goods shipped by them to Stein & Brodeclc, a firm composed of Albert Stein and Albert A. Brodeclc, doing business in Everett, in the State of Washington. The first bill was shipped July 15, 1895, amounting to §129, and the other September 10, 1895, amounting to §491. That the goods were shipped and their value as above stated, and that they have not been paid for, are uncontroverted facts. The only contested question is as to the liability of appellant. The cause was submitted to the court for trial, and the court found the issues for the plaintiffs and assessed the plaintiffs’ damages at the sum of §756.03, and judgment was rendered on the finding.

It appears from the evidence that Stein & Brodeck failed in business and that they had executed to Charles Stein, father of Albert Stein, a chattel mortgage on their stock of goods; that prior to December, 1893, Charles Stein took possession of the stock under the chattel mortgage; that subsequently the creditors of Stein & Brodeck, not including appellees, had a meeting in Chicago, and an arrangement was made by which Charles Stein released his mortgage, and he and Louis H. Kohn were appointed trustees for the creditors. By the arrangement the business of Stein & Brodeck was to be superintended by Charles Stein, at Everett, and goods sufficient to replenish the stock of the firm were to be purchased, but no order for goods were to take effect, or the goods to be shipped, without the approval of appellant, who resided in Chicago. All money received on sales, above expenses, including compensation to Stein & Brodeck, who were to act as clerks, was to be sent to Chicago to appellant. Charles Stein continued to be trustee up to July, 1894, when, as the evidence tends to show, one Taylor became trustee in his place. There is no evidence that Taylor ever did anything as trustee.

The suit was brought against Kohn and Charles Stein, but Stein having ceased to be trustee when the bills in question were contracted, the suit was dismissed against him, and the declaration was amended accordingly.

In a letter from appellant to appellee, of date December 23,1893, the following occurs:

“ Creditors here, whom Stein & Brodeck owed $9,400, had Charles Stein release his mortgage and place affairs in the hands of myself and Charles Stein, as trustees for creditors. The goods at the other store, a few goods to replenish their stock, were to be bought as they did business. Trade has not been very brisk there, and you can be well satisfied that you get your money so early. Herewith check $178.Gi>. Please receipt in full for bill to me here.” Signed, “ Louis H. Kohn, trustee.”

The following letters passed between the parties:

“Chicago,'January 6, 1894.

Messes. Jacob Milleb, Son & Co., Philadelphia, Pa.

Gentlemen: Tour favor of the 26th sent to Stein & Brodeck, was forwarded here. This business is in the hands of Charles Stein and L. H. Kohn, trustees. They expect by the first of February to have paid all their new bills contracted for the fall, and to start paying on the old accounts. The new bills contracted for are to be paid before any of the old bills are paid, so that after you ship these goods your claim, as well as those of the other parties who are willing to continue business under this style, will be paid first. You are not taking any risk, but your account is as good as if it was against the best firm you have on your Books. If you should not desire to do any business with them, please advise us here so that we can inform them. So far as the risk is concerned, you are not taking any chances at all. Would thank you to advise what your position is, so we can notify them, if they did not buy your goods, to buy those of some other firm.

Yours truly,

L* H. Kohn.”

“November 26.

Hr. Louis H. Kohn, care Messrs. Ederheimer, Stein & Co., Chicago, Ill.

Dear Sir: We are to-day in receipt from Messrs. Stein & Brodeck, Everett, Wash., for spring shipment, clothing amounting to $786.75 and shirts $506.50. In receiving the same it reminds us that we had the expression from Messrs. Stein & Brodeck that their fall bill of July 19th as October 1, $129, Sept, as Nov. 1, $491, that the same should be discounted. Accordingly, we did send you in due time a statement of this account. Kindly take notice of the same and give us your expression by return mail, and oblige.

Yours respectfully,

Jacob Miller, Sons & Co.”

“Chicago, November 30, 1895.

Messrs. Jacob Miller & Son, Philadelphia.

Gentlemen: Your favor of the 26th inst. is at hand. I am one of the trustees who have the affairs of Stein & Brodeck in charge, and all orders before being shipped should receive my O. K. I do not understand how you can ship goods to them under the circumstances as you did this bill, without having my consent to do so. You will please not do it again, with orders for next spring delivery, before having my O. K. on them, and it will be better for you not to consider them as ordered until then. The arrangement is that I am to know what goods they buy, and the bills are then paid by me as trustee; and while I consider the account all right now, as we are doing all we can to help them to pay their old debts in full, you have no right to send them any goods unless you first confer with me. The bills that they are owing now that you ship will not be discounted promptly, as there is no money on hand to do it Avith; but when your turn comes for payment you Avill no doubt receive the money as quickly as' any of the other parties whom the goods were bought from.

Yours truly,

Louis H. Kohn.”

The letter of December 28, 1893, is evidence that Kohn paid the bills for goods shipped to Stein & Brodeck. He sent a check and requested a receipt sent to him. Leon Freedman, bookkeeper of appellees, also testified that appellees’ bills, except those sued for, were paid by Kohn. In appellant’s letter of November 30, 1895, he writes: “ All orders, before being shipped, should receive my O. K.” In this letter he also approves the purchases referred to in appellees’ letter of November 26th, which are the purchaseso in suit, saying: “ I consider the account all right now.” About the end of the year 1895, appellant, as he testified, directed attorneys in EAmrett to have the stock sold out. This Avas done. The proceeds of goods sold by Stein & Brodeck, and also the proceeds of the sale of the entire stock, as directed by appellant, Avere deposited Avith the banking firm of Stein, Ederheimer & Co., of Avhich firm appellant Avas a member. An account AA-as kept on the books of the firm in the name of Louis II. Kohn, trustee, and shoAvs a balance to his credit, as trustee, of $1,482.31, and appellant, himself, testified on the trial, that there Avas on deposit Avith the firm of Ederheimer & Go., subject to his order and control, some $1,500,” proceeds of the sale of goods formerly of Stein & Brodeck. The evidence tends to show that duplicates of bills of goods shipped to Stein & Brodeck were sent to appellant. If appellant, under the arrangement between the creditors, had power to authorize purchases, as his letter of November 30, 1895, and his oavii testimony shoAV he had, then he had power to ratify a purchase, and his ratification would relate back and operate, in law, as a prior authority. His letter of November 30th is clearly a ratification of the purchase of the goods for the price of which the suit was brought.

Appellant claims that credit-for the goods was not given to him, and in support of this, relies on appellees’ books, which show the. account in the name of Stein & Brodeck. If goods are charged to A, on the books of the vendor, this raises a presumption that credit was given A, but such presumption may be rebutted by evidence and the circumstances of the case. In the present case appellees knew that the stock of goods of Stein & Brodeck had been taken possession of under a chattel mortgage which had subsequently been released, and that by an arrangement between creditors, other than themselves, control of the business, formerly of Stein & Brodeck, had been transferred to appellant and Charles Stein. Under these circumstances it would seem absurd to suppose that credit was given to Stein & Brodeck for the goods in question. In appellant’s letter to appellees of-December 23, 1893, he writes: “Creditors here * * * had Charles Stein release his mortgage and place affairs in the hands of myself and Charles Stein as trustees for creditors;” and in his letter of January 6,1894, he writes: “ This business is in the hands of Charles Stein and L. H. Kohn, trustees.” Appellees having been thus informed in December, 1893, and January, 1894, is it credible that they credited Stein & Brodeck in July and September, 1895 ? .Becker testified that he represented the appellees, for their attorney; that in the early part of 1896 he presented to appellant an itemized statement of appellees’ account, amounting to §620 (the amount of the bills in question); that appellant said he would have to investigate» to ascertain whether it was correct, and, at a second interview, said it was correct and would be paid. Appellant admitted, in his testimony, that Becker saw him in regard to the claim of appellees, but says he don’t think he, Becker, had a written account with him; that other parties saw him in regard to claims, and he told them that as the money came in it would be distributed equally among them all; and that what he said to Becker would be the same thing. He did not assume to testify as to just what he said to Becker. It does not appear from the evidence that Taylor ever did anything about the business, and it would seem from the evidence of Charles Stein, who was not a trustee when the bills sued on were contracted, that he, Stein, did .little or nothing. To reverse the finding of the trial court on the ground of being contrary to the evidence, we would have to hold that it is manifestly against the weight of evidence, which we can not do. It would seem that appellant can suffer no loss by the judgment. According to his own testimony, given December, 1899,- there was then $1,500 to his credit, as trustee, on the books of his firm; the business was closed and all the remainder of the stock, formerly of Stein & JBrodeck, sold about the end of the year 1895, and it seems extremely probable that the amount on deposit is a surplus above the indebtedness of Stein & Brodeck to the creditors who entered into the trust arrangement. These creditors were apparently active in promoting what they deemed their interests, and on the hypothesis that appellant has performed his duty as trustee, which 'he will hardly deny, the assumption must be that all creditors assenting to the trust arrangement have been paid.

We find no reversible error in the record, and are of opinion, from inspection of the entire record, that substantial justice has been done. The judgment will be affirmed. A motion made by appellees to strike the bill of exceptions from the record was reserved. The motion will be overruled. Affirmed.


source: Caselaw Access Project

author: Mr. Justice Sears

license: Public Domain

text:
    James Pease, Sheriff, v. Stephen L. Bartlett.
    1. Default — Judgment by, Erroneous, When Pleas Are on File and Undisposed Of. — Where a plaintiff amends his declaration after responsive pleas are on file and the court enters an order on the defendant to plead to the amended declaration in five days, it is erroneous to enter a judgment by default against him in his absence while his pleas are undisposed of.
    2. Practice— Where it is Not Necessary to Plead to an Amended Declaration. — Where a declaration is amended after the defendant has previously filed pleas setting up a complete defense, and the amendment presents no new matter requiring further answer, it is not necessary to file new pleas.
    3. Same — Erroneous Defaults in Replevin. — Where pleas on file are a sufficient answer to any declaration in replevin, it is not necessary for the defendant to plead further in case the plaintiff amends his declaration but sets up no new matter, and a default taken after such amendment for want of further pleas is erroneous.
    Replevin. — Error to the Circuit Court of Cook County; the Hon. John Gibbons, Judge, presiding. Heard in this court at the March term, 1901.
    Reversed and remanded.
    Opinion filed October 24, 1901.
    Statement. — This writ of error is prosecuted to review a judgment entered by the Circuit Court on January 12, 1900, in favor of defendant in error and against plaintiff in error.
    The suit in which the judgment was entered was brought by defendant in error in replevin to recover certain chattels of the value of $5,000. The chattels were taken upon the writ and delivered to Milford J. Thompson, as the attorney in fact of the plaintiff, defendant in error here.
    March 4, 1898, a declaration wTas filed by M. J. Thompson, as the attorney at law for plaintiff, in the usual form, containing three counts: (1) wrongful taking; (2) wrongful detention; (3) trover.
    March 22, 1898, pleas were filed for the defendant: (L) non-cepit; (2) non-cletinet; (3) not guilty; (4) property in Plows & Co., a corporation; (5) justification under an execution in favor of Gaspoigne against Plows & Co. for $2,100 and costs; (6) justification under an attachment writ.
    Issue was joined on the first three pleas by similiter and replications ending to the country were filed to the remaining pleas.
    A notice was given to the attorney for defendant below, that plaintiff would ask leave to amend his declaration on December 14, 1899, at 1:30 p. m. of that day.
    Upon December 14, 1899, the court entered an order allowing the plaintiff below to amend his declaration as follows:

      “ By inserting after the word 1 plaintiff, ’ in the last line in the first count, the words ‘ by virtue of a chattel mortgage lien executed by one Plows & Co. ’
    “ Also after the word ‘ plaintiff ’ in the next to the last line of the second count in said declaration by inserting ‘ by virtue of the terms of a chattel mortgage lien executed by one Plows & Co. ’
    “ And also after the word ‘ plaintiff5 in the third line of the third count, by inserting the words * acquired by virtue of a chattel mortgage executed by one Plows & Co. ’
    “ And also by inserting after the word ‘ possessed5 in the second line of the fourth count the words ‘ by virtue of a chattel mortgage executed by one Plows & Co.’. ”
    Upon the same day a rule was entered by the court requiring the defendant below to plead to the amended declaration in five days.
    It appears that the defendant was not in court nor represented there by counsel when these orders were entered.
    January 3, 1900, default was entered, without notice, before Judge Smith, on whose calendar the case was pending, for failure to plead to the declaration as amended.
    January 12, 1900, in this state of the record, the following judgment was entered before Judge Gibbons :

      “ This cause being called for trial, come the parties by their attorneys respectively, and issues being joined :
    “ It is ordered that a jury come; whereupon come the jurors of a jury of good and lawful men, to wit (naming them), who being duly elected, tried and sworn well and truly to try the issues joined herein and a true verdict render according to the evidence, after hearing all-the evidence .adduced, say : We, the jury, find the issues for the plaintiff, and that the right to the possession of the property in question is in the plaintiff; therefore it is considered by the court that the plaintiff do have and retain the property replevied herein, by virtue of the writ of replevin issued in said cause, and do have and recover of and from the defendant his costs and charges in this behalf expended, and have execution' therefor. Thereupon the plaintiff having admitted in open court payment in full of costs, it is ordered that this judgment be, and the same is hereby, satisfied in full of record.”
    April 2, 1900, a motion was presented to Judge Gibbons to vacate this judgment. It was not heard by him until November 17, 1900, when he denied the motion. Thereupon the defendant filed his motion to have the record corrected and amended, upon which motion the court entered the following order:
    “ The court having considered said motion and the files, records and minutes in said cause, finds that owing to a clerical mistake of the clerk of this court, the order entered herein on January 12, 1900, is erroneous, and incorrectly recites the facts and circumstances under which said judgment was entered, as clearly appears by the minutes and records in said cause in this court, in this: that when said cause was called for trial the defendant, as a matter of fact, was not in court, and was not represented in court by any attorney; and the record did not then show that the issues were joined, and that-as a matter of fact said verdict and judgment were intended to be taken, and were taken and entered, upon a default of the defendant entered in said cause on January 3, 1900.
    “ It is therefore ordered, adjudged and decreed that said order and judgment of January 12, 1900, be corrected and amended so as to read as follows : ” (Reciting the ordinary judgment in replevin on default.)
    In support of the motion to vacate, an affidavit was filed and presented to the court, which shows the followingfacts : (1) That Judge Smith did not sit in his court room December 14, 1899, when the order to plead to the amended declaration was entered, until 9:30 a. m.; that neither the defendant nor any attorney representing him, appeared in court on said day to attend to said motion, and that they had no notice that the motion was in fact presented; (2) that no note or memorandum of the entry of said order appeared in the Chicago Daily Law Bulletin of December 14,1899, or in any subsequent issue; (3) that neither the defendant nor his attorney had notice of the entry of said order to plead to said amended declaration until the 29th of March, 1900 ; (4) that no notice of the application for default was served upon the defendant or his attorneys, and the knowledge that default had been entered January 3, 1900, did not come to the defendant or his attorneys until March 29,1900 ; (5) that in the Chicago Law Bulletin of January 3, 1900, there are noted a number of orders entered by Judge Smith, who was then sitting both as a chancellor and a common law judge; that the Bulletin stated, under the head of the word “ Law,” orders entered in common law cases, and under the head of “Chy.,” orders entered in chancery cases; that under the head of “ Chy.” there appeared as follows: “ 10490 Bartlett v. Pease, Dflt.,” which was the only reference to said default order; (6) that no notice was given of the application for judgment entered January 12,1900, and the fact that said judgment was entered ivas not known to the plaintiff or his attorneys until March 29, 1900; that the judgment did not appear in the Chicago Law Bulletin of January 12th; that on January 13th appeared the words, under the name of Judge Gibbons, “10490 Bartlett v. Pease ver for plff. for possn & judgt;” (7) that January 13th Avas Saturday, the last day of the January term, and the Luav Bulletin was not delivered until after office hours on that day, so that there Avas no way to ascertain from the Bulletin during the term the entry of said judgment; (8) that there was then and is a rule of the Circuit Court requiring common law cases to be assigned to each judge and so marked upon the wrapper, Avhich rule provides: “All pleading will be settled and orders entered in the cause by the judge to whom the same is assigned; but in the absence of any judge, any other judge may take default or enter orders of course in causes assigned to such absent judge;” that this case had been assigned to Judge Abner Smith, and his name was on the wrapper and had been placed on his printed trial calendar, being number 694; that the case had never been reached on his trial calendar; that no order Avas e\Ter entered transferring the cause to Judge Gibbons ; that the day Judge Gibbons entered the order Judge Smith was holding court in the same building; that it Avas Judge Smith’s practice to enter no judgment upon default for noncompliance with a rule, unless notice should be given to the attorneys for the opposite party of such application, which Avas not done in this case; (9) that it was not true, as stated m the judgment, that at the time the judgment was entered • the parties appeared by their attorneys respectively; that the case was not called for trial in its turn and neither the defendant nor his attorney, nor any representative of the defendant or his attorney, was present; that it is not true that the plaintiff was ever paid by the defendant, or anybody representing him, any costs in said cause.
    The affidavit further shows that there was a good defense upon the merits to said cause of action.
    The bill of exceptions shows that on the hearing of the motion there were introduced before Judge Gibbons all the files, minutes and records in the cause, which were set out in the affidavit.
    Flower, Vroman & Musgrave, attorneys for plaintiff in error.
    Jackson, Busby & Lyman, attorneys for appellee and defendant in error.
   Mr. Justice Sears

delivered the opinion of the court.

Among the errors assigned is the following:

“ Said Circuit Court of Cook County erred in entering the order of January 3, 1900, defaulting said James Pease for failure to plead to said declaration as amended.”

We are of the opinion that the error is well assigned. The record as now presented, including the amendment by which the judgment is shown to have been taken by default, discloses that the default was taken when the defendant’s pleas were on file and undisposed of. These pleas were apt pleas, responsive to the plaintiff’s declarar t-ion, and they set up a complete defense to the declaration, both as it was originally framed and as it was amended. Therefore, there was error in entering a default and proceeding to a judgment upon the default while these pleas were undisposed of. It was not necessary thát new pleas should be filed to the amended narr. The amendment presented no new matter requiring further answer. The. amendment was not necessary at all, for it merely operated to set up specifically the title of the plaintiff below, which title was alleged in general terms and sufficiently in the original na/rr. The original narr. was sufficient in this behalf. 1 Chitty on Pl. (9th Am. ed.), star page 380-385 ; Harvey v. McAdams, 32 Mich. 472 ; Nudd v. Thompson, 34 Cal. 39 ; Person v. Wright, 35 Ark. 169.

In Harvey v. McAdams, supra, the action was trover, and the court, by Cooley, J., said:

The objection to the admission in evidence of the chattel mortgage under which the plaintiffs claimed the property, has no force. The ground of it was that the declaration counted upon a conversion of plaintiffs’ property without setting out the nature of their interest, and was not calculated to inform the defendants of what they would be expected to meet. But no declaration in trover undertakes to notify the defendant of the precise nature of the plaintiffs’ title, or what are the evidences of it. These are matters of evidence merely.”

In Nudd v. Thompson, supra, the action was replevin, and the court said :

“ Whatever doubt may exist as to the true result of the pleadings in this case comes of the fact that the plaintiffs have presented their case in two parallel sets of allegations. In the first set the plaintiffs aver that the title to the goods, and the right of possession, are in them, and that the property is wrongfully detained by the defendants; in the second set particular grounds upon which the title and right to possession are claimed to be in the plaintiffs, and on which the detention of the goods is claimed to be unlawful, are set forth in detail. There can be no question, however, that the more general statement was sufficient for all ■ the purposes of pleading, nor that a denial of it put the plaintiffs upon their proof as a prerequisite to judgment.”

In Persons v. Wright, supra, the action was replevin, and the court said :

“ It was not necessary for plaintiffs to have shown in their complaint the means by which they acquired title. It would have sufficed to allege their ownership, general or special; their right to the possession; and that defendant unlawfully detained it after demand, or was holding and using it as his own adversely to their right. These were the material allegations necessary to show cause of action and all that the defendant was required to answer.”

The pleas on file' were a sufficient answer to any declaration in replevin. The pleas being a sufficient answer to the declaration as amended, it was not necessary that the defendant below should plead further, and it was therefore error to enter his default. McAllister v. Ball, 28 Ill. 210; Milwaukee Ins. Co. v. Schallmann, 188 Ill. 213; Ridgely Bank v. Fairbank, 54 Ill. App. 296; Cozzens v. C. H. P. B. Co., 64 Ill. App. 569; Wright v. Lessee, etc., 1 Peters, 165.

In Milwaukee Ins. Co. v. Schallman, supra, an action was brought upon an insurance policy. After verdict the defendants moved in arrest on the ground of insufficiency of the declaration. The plaintiff asked and obtained leave to amend. Defendants objected and asked leave to plead over. The original declaration alleged at its end :

“ Yet the said defendants, although often requested, and though more than sixty days have elapsed since the delivery of said proofs of loss, have not paid the said money, or any part thereof, to the plaintiff, but to pay the same have neglected and refused,” etc.

The amendment allowed was by inserting before this clause the words:

“ And plaintiff alleges that the delivery of said proofs of loss, as aforesaid, was more than sixty days before the commencement of this actiop.”

Mr. Justice Magruder, speaking for the court, said :

“ Any defense which could have been made to the declaration as amended, could have been presented under the plea of general issue which was already filed. Appellant did not show, nor does the record reveal, that it had any defense which was inadmissible under the general issue. It is only where the plaintiff is permitted to amend his declaration in a material respect that the defendant should be permitted to file additional pleas to the amended declaration.”

In Wright v. Lessee, etc., supra, the court said:

“ The authorities cited by the learned counsel do not, we think, support his last position, that the judgment is erroneous because a plea was not filed to the new count. They prove unquestionably that upon the amendment being made to the declaration by adding a count, the defendants had a right to plead de novo/ they prove nothing more.

They do not show that the defendants in such cases must necessarily plead de novo; or that judgment may be entered by default for want of a plea to the new count, if before the amendment he has pleaded the general issue. We think the practice is well settled to the contrary. The defendant has a right, if he will, to withdraw his former plea and plead anew either the general issue or any further or other pleas which his case may require; but he may, if he will, abide by his plea already pleaded, and waive his right of pleading de novo. His failure to plead and going to trial without objection are held to be a waiver of his right to plead, and an election to abide by his plea, and if it in terms purports to go to the whole action, as is the case , in this instance, it is deemed sufficient to cover the whole. declaration, and puts the plaintiff to the proof of his case on the new as well as on the old counts.”

But it is urged by the defendant in error that the Circuit Court had no jurisdiction to amend the judgment, and that inasmuch as before amendment the judgment appeared by the record to have been based upon verdict, we should not treat it now as a default judgment. In this behalf it ' ■is argued that the order amending the judgment is void, first, because no notice of the application for such order was given to the defendant in error; and, second, because there appears to have been no memoranda or memorial paper by which the court could amend its judgment after the term.

¡Notice was not given to defendant in error in person, but it appears that this motion was made and allowed when the attorneys of record, representing both litigants, were before the court, at the conclusion of the hearing of the motion to vacate the judgment. Mr. Thompson, who had acted both as attorney in fact and attorney at law for the plaintiff below, was the proponent of the motion to vacate. After it had been overruled, and when the attorney for the defendant presented his motion to amend the judgment, Thompson undertook to limit his' appearance for the plaintiff so that it should include an appearance for him to urge the motion to vacate, but to exclude any appearance for him to resist the motion to amend the judgment. We think that the plaintiff was sufficiently represented. Thompson was his attorney of record. His appearance as such had not been withdrawn, and no other attorney had been substituted of record for him. Although it was after judgment, a notice to him was a sufficient notice of a motion to correct the record upon which the judgment was based. Lusk v. Hastings, 1 Hill. 656; Drury v. Russell, 27 How. Pr. 130; Miller v. Miller, 37 How. Pr. 1; Read v. French, 28 N. Y. 285; Doane v. Glenn, 1 Colo. 454; Merriam v. Gordon, 22 N. W. Rep. 563.

Lusk v. Hastings, supra, seems to be a leading case upon the question of when the authority of the attorney to represent the litigant ceases by reason of the termination of the litigation. It would seem from the doctrine announced in that case, that while the general rule is to the effect that with the procuring of the final judgment the services of the attorney under his retainer and his authority as attorney of record come to an end, yet in proceedings to attack the final judgment by motion to modify or vacate, the attorney of record is still presumed to be authorized to represent the litigant, and notice to him will be held to be sufficient notice to the litigant. The court said:

uThe power, of the attorney seems sometimes to be retained, even after the entry of final judgment on the record, and beyond the purpose of merely superintending the collection of the debt. If a writ of error be brought against his client, it has long been the practice to require that he should be served with notice (2 Sel. Pr. 365), though this, with us, is now regulated by statute. (2 R. & S. 498, 2d Ed., Par. 57, 8; Vid. 2 Tidd’s Pr. 1068, Am. Ed. of 1807.) So the entry of final judgment by the defendant’s attorney may be irregular. What objection is there, in such case, to serving him with notice of a motion to set it aside % It is his business at least to see that a regular judgment in favor of his client should be perfected and sustained when the court have awarded in his favor. Having conducted the suit, he is best able to resist all attacks upon the judgment. Indeed, his own regularity is generally drawn in question by the proceeding. For a similar reason he is the proper person to be served with notice, when the judgment, or any other proceeding in which he has participated, is sought to be set aside on the ground of merits, as in this instance, the rule for arrest.”

It is also urged by the learned counsel for defendant in error that the Circuit Court had no power to amend the judgment because no memoranda or memorial paper appeared by which the amendment could be made.

A bill of exceptions was preserved by the plaintiff in error by which we are informed as to various documents, files, wrappers, minute book, docket, etc., which are recited in the order as having been considered by the court, the nature and contents of which are shown in an affidavit filed in support of the motion.

Without discussing the nature and sufficiency of these papers and books, so far as they are shown by .the affidavit, to serve as memoranda upon which to base the amendment of the judgment after the term, it is enough to say that their sufficiency has been called in question only by the plaintiff in error. He alone preserved a bill of exceptions upon the proceedings to amend .the judgment. He alone assigns errors, and he assigns none on the amending of the judgment. He now says to the court in his brief:

“ There can be no doubt that the court below properly amended this record so as to recite correctly the facts on which the judgment was based. The record of the court itself showed the mistake, and what the record correctly written should have been. There is no dispute that the judgment was in fact based upon a default entered for want of compliance with the rule to plead to the declaration as amended.”

■ Defendant in error, having assigned no cross-errors, is not in a position to question the sufficiency of showing made in support of the motion to amend the judgment or the propriety of such amendment.

The judgment, being based upon a default which was improperly entered, must be reversed and the cause will be remanded.

Reversed and remanded.


author: Mr. Presiding Justice Windes

text:
    John R. Eldred v. Charles S. Ripley.
    1. Corporations — A Stockholder Can Not Maintain an Action in His Own Behalf Against One Who Has Injured the Corporation— Where the Ride Does Not Apply. — A stockholder, merely as such, can not maintain an action in his own behalf against a person who has injured the corporation, however much the wrongful acts may have depreciated the value of his shares, but the court is of the opinion that this principle has no application where the wrongful acts are not only wrongs against the corporation but are also violations by the wrongdoer of a duty arising from contract or otherwise, and owing directly by him to the stockholders.
    2. Same — Actions by Stockholders to be in Equity. — Under the rule in this State a suit by a stockholder for an injury to his stock must be brought, in equity, by and in the name of the corporation, or if it refuses, on request, to bring such suit, then it may be brought by the stockholder, and the corporation made a party.
    3. Same — A Stockholder Can Not Maintain an Action at Law Against a Director for Wrongful Acts. — A stockholder can not maintain an action at law against a director of the corporation for wrongful acts which result in the depreciation of the value of his shares of stock, for the reason that a judgment in favor of one stockholder would be no bar to an action by a creditor, nor a judgment by both, to an action by the corporation.
    4. Same — A Stockholder Can Not Maintain an Action for an Injury to the Whole Body of Stockholders in Common. — A stockholder can not maintain an action for an injury done to the stock and capital of the corporation by negligence or misfeasance, for such injury is not to his separate interest, but to the whole body of the stockholders in common.
    5. Malicious Prosecution — Does Not Lie for Fraudulently and Maliciously Bringing a Civil Suit. — An action for malicious prosecution will not lie by a stockholder in a corporation against a person for fraudulently and maliciously attaching his shares of stock.
    Trespass oil the Case, for fraudulently and maliciously conspiring to depreciate the value of capital stock of a corporation. Appeal from the Circuit Court of Cook County; the Hon. Frank Baker, Judge, presiding. Heard in t\áp court at the March term, 1901.
    Affirmed.
    Opinion filed October 24, 1901.
    Statement toy the Court. — Appellant brought suit in case against appellee to recover damages for the depreciation in value of certain stock owned by appellant in the American Mining Company, alleged to have been caused by appellee, and to recover attorney’s fees, costs and expenses claimed to have been incurred by appellant in a certain chancery suit brought by the latter against appellee and others in order to have a certificate of the shares of said stock re-issued to appellant.
    A demurrer was sustained to the declaration, and it was subsequently amended, to which a general and special demurrer was interposed, one of the causes of special demurrer being that the “ plaintiff does not complain of Charles S. Ripley, defendant, but of one Josiah Stedman.” This demurrer was also sustained and a judgment for costs entered against the plaintiff, from which this appeal is taken.
    „ The first count of the declaration in substance charges that plaintiff, September 18, 1896, was the owner and possessed of certain full paid shares of capital stock of said corporation; that April 15, 1896, the corporation was the owner of large properties, describing the same, worth $100,000, and was possessed of $25,000 in money; had a controlling interest in a certain valuable mine, which was subject to a mortgage securing 100 bonds of $500 each, of which seventy of the bonds remained unissued and under the control of said mining company until the 15th of April, 1899; that plaintiff’s stock was worth seventy cents per share on said last named date; that said appellee, who was then and for a long time had been a director and the managing director of said company, and three others, directors, who were the president, secretary and treasurer of the company, respectively, composing a majority of the board of- directors, wickedly devising and intending to cheat, wrong and defraud the plaintiff, did then and there, unlaw- • fully, fraudulently and maliciously conspire, confederate, combine and agree together, knowingly, designedly and fraudulently to defraud said plaintiff out of the value of his said stock in said corporation, and to render it worthless, by fraudulently, unlawfully and collusively diverting the funds and property of said corporation into the possession, or under the control of some one or more of said conspirators, or their agents in that behalf, and by destroying confidence in said corporation and the management thereof, such funds and property to be thereafter transferred to a new corporation to be organized by or under the direction of said conspirators, or some one or more of them, in payment for stock in such new corporation, it being understood, either expressly or impliedly, by and between said conspirators, who were then and there the holders of a majority of the capital stock of said American Mining Company, that all of the stockholders of said corporation last mentioned, excepting only said plaintiff, should receive, without cost or charge, the same number of shares, and amount of stock, of the same par value per share, in such new corporation, as they, and each of them, respectively, held in said American Mining Company.
    The count then proceeds to set up the details of the alleged conspiracy, combination and agreement between the defendant and others, giving in detail their actions, and alleges that all “said acts, doings and proceedings are, and subsequent to said 15th day of April, 1899, were had and taken by and with the consent of, or have been ratified by the holders of all the stock of said American Mining Company, excepting only said plaintiff;” and that by means of the premises said mining company has been defrauded of property of the value of $143,750, and plaintiff’s stock has thereby been and is depreciated in value fifteen cents per share, and also confidence in the management and control of the business and affairs of the corporation has been and is wholly lost and destroyed, and his said stock has thereby suffered a further depreciation in value of fifty-five cents per share and is rendered wholly worthless.
    The second count sets up the ownership of the same stock, and that on December 29, 1896, while he so owned it, the defendant, who was a director and managing director of the said mining company, did unlawfully, fraudulently and maliciously, without plaintiff’s knowledge or consent, commence a certain attachment suit before a justice of the peace in the county of Milwaukee to recover an alleged demand of $200, and fraudulently and maliciously procured an attachment writ to be issued by said justice and delivered to a constable, and fraudulently and maliciously caused the constable to seize plaintiff’s stock, and afterward fraudulently and maliciously procured a pretended judgment in the attachment suit for the amount claimed and costs, ancj an execution to be issued and a sale made of said stock to the defendant, and procured the cancellation of plaintiff’s certificate of the shares of said stock and another certificate to be issued by the company to the defendant; also that plaintiff had no notice or knowledge of said proceedings, or any of them, until more than a year thereafter; that at the time, of the commencement of said attachment suit, said stock was worth twenty-five cents per' share and at the time of said pretended sale it was worth thirty-five cents per share; that the justice of the peace obtained no jurisdiction over plaintiff, and his judgment was void; that the defendant willfully and fraudulently concealed from the plaintiff all the proceedings aforesaid, and that by means of said pretended suit and proceedings therein taken the mining company refused to re-issue to plaintiff a certificate for his said shares of stock, and in order to procure the re-issuance to him of said certificate be was obliged to and did commence and prosecute a suit in chancery against the defendant and others in order to have said certificate re-issued to ■ him, and in so doing necessarily laid out and expended large sums of money for attorney’s fees, costs and expenses therein.
    Jerome Probst, attorney for appellant.
    Walsh Brothers and Roblin & Sickelsteel, attorneys for appellee.
   Mr. Presiding Justice Windes

delivered the opinion of the court.

The judgment must be affirmed, because the declaration does not complain of Charles S. Ripley, but of one Josiah Stedman, who is not a party to the suit. The declaration - as amended commences as follows: “John E. Eldred, by Jerome Probst, his attorney, complains of Josiah Stedman of a plea of trespass on the case,” and then proceeds in regular form, setting out the allegations, the substance of which appears in the statement and is clearly subject to the cause of special demurrer assigned.

We have, however, seen fit to consider the merits of the case as stated in the declaration, and are of opinion that the general demurrer was properly sustained.

In one of the cases cited and relied upon by counsel for appellant, viz., Ritchie v. McMullen, 79 Fed. Rep. 522-33, the court say:

“It is undoubtedly true, as the Circuit Court held, that a stockholder, merely as such, can not have an action in his own behalf against one who has injured the corporation, however much the wrongful acts may have depreciated the value of his shares. Smith v. Hurd, 12 Metc. (Mass.) 371; Allen v. Curtis, 26 Conn. 456; Wallace v. Bank, 89 Tenn. 630, 15 S. W. Rep. 448; Hersey v. Veazie, 24 Me. 1; Conway v. Halsey, 44 N. J. Law, 462; Porter v. Sabin, 149 U. S. 478, 13 Sup. Ct. Rep. 1008. But we are of opinion that this principle has no application where the wrongful acts are not only wrongs against the corporation, but are also violations by the wrong-doer of a duty arising from contract or otherwise, and owing directly by him to the stockholders.”

It will be observed by an examination of this case, that a contract relation existed between the plaintiff and the defendants by reason of a pledge of stocks there in question, and the court bases its opinion largely upon the case of Smith v. Hurd, supra, in which the court held that its main reason for denying the right of action of a stockholder in such a case, was the want of privity between him and the directors. Each of the cases cited in the Federal opinion clearly sustains the general proposition that a stockholder can not have an action at law against a director of a corporation for wrongful acts which result in the depreciation of the value of his stock, and in the Massachusetts case referred to, the court gives the reason, among others, why the action should not lie, that a “judgment in favor of one stockholder would be no bar to an action by creditor, nor a judgment by both to an action by the corporation.”

The court also further say:

“ An injury done to the stock and capital by negligence or misfeasance, is not an injury to such separate interest, but to the whole body of the stockholders in common.”

■ In the Allen case, supra, the court, in a suit by a stockholder against the directors of a bank for their fraudulent acts by which his stock was rendered worthless, say: “ The entire duty of the directors growing out of their agency, is owed to the bank, which, under the charter, is the sole representative of the stockholders and the legal protector and defender of their property,” and held that until the directors refused to act, on request, the action could not be maintained, and after such refusal, then that equity was the forum, and that the corporation should be a party.

In the Wallace case, supra, which was an equity suit against the officers and directors of a corporation for negligence and mismanagement of its affairs, whereby the stock was rendered worthless, the court say:

“ The recovery must be for the benefit of the corporation, all its creditors and shareholders, innocent and guilty sharing proportionately in the benefits of the decree.”

In the Porter case, supra, the Supreme Court of the United States held that such a right of action was in the corporation, and that it is only when the corporation will not bring the suit that it can be brought by one or more of the stockholders in behalf of all, and then only to enforce'the right of the corporation, which is a necessary part)*" to the suit.

In the Conway case, supra, the Sew Jersey court, in an action by a stockholder against the president and directors of a national bank for mismanagement of its affairs, bv which the stock was rendered worthless, held that the action would not lie, relying upon the Smith case, supra, and say that since the decision of that case the court does not find that its doctrine has been anywhere doubted. To the same effect, in substance, are the following cases: Greaves v. Gouge, 69 N. Y. 154-7; Peabody v. Flint, 6 Allen, 52-6; Talbot v. Scripps, 31 Mich. 268; Jones v. Johnson, 10 Bush. (Ky.) 649-60.

In the last case cited the court holds that the stockholder thus injured can sue only in equity, and say : It does not matter if the action be founded upon a tort; the shareholders not having a legal right to sue, must either come into equity or be without remedy.”

In so far as the case of Gardner v. Pollard, 10 Bosw. 674-91, decided by the Superior Court of New York, relied upon by appellant, may be said to conflict with the foregoing authorities, it must be controlled by the Greaves case, supra, decided by the Court of Appeals of that State.

The case of Hanley v. Balch, 94 Mich. 315, is relied upon by counsel for appellant, but an examination of the case shows that while the language of the court seems to support appellant’s contention, the case contains the element of contract the same as the Ritchie case in the Federal Court, and the court also recognizes the general rule that a stockholder’s suit must be brought in equity.

The case of Cazeaux v. Mali, 25 Barb. 578, decided by the Supreme Court of Hew York, if it can be said to conflict with the rule above stated, must be controlled by the later case of Greaves, supra, decided by the Court of Appeals of that State.'

The other cases cited and relied upon by appellant’s counsel are not, in our opinion, applicable. It is true that in the case of Doremus v. Hennessy, 176 Ill. 608-14, the court uses general language which would seem to justify an action at law .such as the one at bar, but this language must be considered with reference to the. case then under consideration by the court, which is totally different from the case here presented. The rule in this State is to bring such suits in equity, and it has been invariably held that the action must be brought by and in the name of the corporation, or if it refuses, on request, to bring the suit, then that the suit may be brought by a stockholder, and the corporation should be made a party.

It does not seem to have been decided directly that an action at law would not lie. City of Chicago v. Cameron, 120 Ill. 447; Chicago, etc., Co. v. Yerkes, 141 Ill. 320; Hyde Pk. Gas Co. v. Kerber, 5 Ill. App. 132; Bruschke v. N. C., etc., Verein, 145 Ill. 433-45; Brown v. DeYoung, 167 Ill. 550; Farwell v. G. W. Tel. Co., 161 Ill. 522-604.

We think the clear weight of authority is that the stockholder’s remedy for such an injury is in equity, and that this rule is in consonance with reason and does justice to all concerned.

The second count of the declaration, besides being bad under the special demurrer as above stated, is also, in our opinion, fatally defective, in that it in substance seeks to recover damages of appellee for fraudulently and maliciously bringing a civil suit against appellant, in which the former recovered judgment, which has never been set aside. The general rule is that an action in such a case can not be maintained, and the allegations of the second count do not bring it within any exception to the rule, so far as we have been able to ascertain. Feazle v. Simpson, 1 Scam. 30; Reynolds v. De Geer, 13 Ill. App. 113, and cases cited.

The judgment of the Circuit Court is affirmed.


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    John E. Murphy et al. v. Cicero Lumber Company.
    1. Mechanics’ Liens. — What is Not to be Considered as a Contract in Writing under the Law. — An estimate in writing by a carpenter of the cost of a building and the acceptance of the same by the owner of the premises upon which it is to be erected can not be treated as a contract in writing within the meaning of the law giving a lien to a person furnishing lumber for the erection of the building, for extrinsic evidence would be necessary to establish a valid contract between the owner and the carpenter.
    3. Contracts— What is a Written Contract. — A written contract is one in which all its terms are in writing. A contract can not be said to be in writing unless the parties thereto, as well as the terms and provisions thereof can be ascertained from the instrument.

      3. Same — What is to be Considered as an Oral Contract. — A contract partly in writing and partly oral is, in legal effect, an oral contract.
    Petition for a Mechanic's lien. — Eiror to the Superior Court of Cook County; the Hon. Arthur H. Chetlain, Judge, presiding. Heard in this court- at the March term, 1901.
    Affirmed,
    Opinion filed October 24, 1901.
    Statement. — Defendant in error filed its petition for a mechanic’s lien upon premises of plaintiff in error John E. Murphy. Plaintiff in error Murphy, the owner of the premises, contracted with one Kruschinsky for the carpenter work upon a building which he was about to construct. The contract was in writing and provides for the completion of the work within three and one-half months from the date of the contract, weather permitting, and for payment of $200 by plaintiff in error Murphy to Kruschinsky when the roof should be on and finished, and the balance of $2,630 when the building should be completed, all work done and all lumber and mill bills paid. This contract was dated December 17, 1898. Kruschinsky obtained the lumber for his work in part from defendant in error. Defendant in error made an estimate in writing of amounts of lumber and prices, upon the margin of which estimate is written “Accepted 12-23-98, amt. $1,455. C. A. Kruschinsky.” This estimate was nowhere .signed by defendant in error. There is some conflict in the evidence as to the oral agreement between Kruschinsky and defendant in error concerning the time of payment by Kruschinsky for the lumber included in this estimate. There was evidence tending to support the contention of plaintiff in error Murphy that defendant in error was to be paid only when the roof was on and finished, as provided in contract between plaintiff in error Murphy and Kruschinsky; and there was evidence tending to support the contention of defendant in error that it was agreed between its representative and Kruschinsky that payments were to be made from time to time as the work progressed, and the entire amount to be paid when the roof was on. Aronson, the salesman of defendant in error, who made the agreement with Kruschinsky, testified: “ He (Kruschinsky) said we could have the payments as we went along, and by the time we had the building under roof we could have all that was coming to us at that time.” The testimony of Kruschinsky is somewhat conflicting and uncertain; it fails to either fully corroborate of contradict Aronson.
    Defendant in error did not deliver all the lumber included in the estimate. The lumber delivered amounted to $694.06. Ho payments whatever were made to defendant in' error as the lumber was delivered or at any other time. After January 22, 1899, defendant in error stopped delivering lumber. Kruschinsky testified that plaintiff in error Murphy stopped him from having any more lumber delivered by defendant in error. Aronson testified that Kruschinsky told him that he (Kruschinsky) had orders not to buy any more lumber. G-ilpin, secretary of defendant in error, testified that plaintiff in error Murphy, on about January 22, 1899, told him not to deliver any more lumber. Kruschinsky did not continue work on his contract after March 8, 1899, which was about two weeks after the roof was on.
    Ho amount was paid to Kruschinsky by plaintiff in error Murphy on account of his contract, except $105, up to the time of the serving of lien notices upon plaintiffs in error by defendant in error. Two lien notices were served, one on January 31, 1899, dated January 28,1899, and another on February 28, 1899, dated February 25, 1899. Each notice specified the amount due as $694.06. The petition for a mechanic’s lien filed by defendant in error alleges that at the time of the service of the lien notice on February 28, 1899, there was due from plaintiff in error Murphy to Kruschinsky more than the amount of defendant in error’s claim.
    Plaintiff in error Murphy testified that he did not order the defendant in error to stop delivering lumber; that Kruschinsky told him that defendant in error refused to carry out its contract to deliver the balance of the lumber; that by reason of such refusal Kruschinsky bought the balanee of the lumber needed from the South Side Lumber Company; that such refusal by defendant in error delayed work upon the building for five or six days; that by reason of such delay plaintiff in error Murphy suffered a loss; that items of loss specified by witness aggregated §360; that he owed nothing to Kruschinsky on February 1, 1899, and on March 1, 1899, when Gilpin called upon him and made a demand for payments, and that he owed nothing at the time he testified. The answer of plaintiffs in error to the petition for a lien averred that there was nothing due Kruschinsky under his contract with plaintiff in error Murphy when notice was served, or at any time thereafter, to and including the commencement of said suit; that plaintiff in error Murphy did pay out and become responsible to said Kruschinsky and sub-contractors on account of the contract to the extent of §1,200; that he is unable to state what amount, if any, will be due on said contract to plaintiff in error Murphy or to Kruschinsky or his sub-contractors until the building is fully completed, etc. The only evidence as to the completion of the building was the testimony of Kruschinsky to the effect that it was completed and rented at the time he testified.
    Nothing in the answer of plaintiffs in error and nothing in the evidence indicates how much he had paid to Kruschinsky or to subcontractors under him, except the conclusion testified to by plaintiff in error that he owed him nothing, and the testimony of Kruschinsky that he had been paid only §105 out of the amounts due under the contract between plaintiff in error Murphy and Kruschinsky.
    The cause was referred to a master in chancery, who took the evidence and reported that Kruschinsky called on defendant in error and obtained an estimate, by which estimate the defendant in error agreed to furnish lumber therein mentioned for §1,455, which was accepted by Kruschinsky; that by the terms of said agreement said lumber was to be delivered within one year from the date-of said estimate, as from time to time the said Kruschinsky directed, and was to be paid for upon delivery; that as soon as the roof was on, then.payment for all material delivered up to that time should then become due and payable ; that said lumber company furnished under said contract §455.81 worth of material, and extra material amounting to $238.25, making a total of $694.06 actually delivered and used. The master further finds that on February 28, 1899, a lien notice was served by defendant in error upon plaintiff in error Murphy, notifying him that there was due $094.06 on February 24, 1899, etc. The master further finds that at the time of services of the said notice, said plaintiff in error Murphy owed said Kruschinsky an amount greater than amount due defendant in error; that defendant in error complied with the lien laws, and is entitled to a lien for $694.06, with interest from February 24, 1899, and reasonable solicitor’s fees ; that the material allegations in said bill arc sustained by the proofs.
    The chancellor entered a decree in conformity with the report.
    There appear in the record no objections filed before the master or considered by him, and no exceptions considered or disposed of by the chancellor, except as it is shown that on February 28,1900, it was ordered by the court that “ the objections filed to the master’s report stand as exceptions to said report in said cause,” and except as it appears by affidavit of T. S. Allee, Esq., that objections were filed before the master and overruled by him.
    The final decree was entered on the 28th day of February, the same day of the order allowing objections to stand as exceptions, but the decree in no'manner disposes of the exceptions by overruling or sustaining the same.
    The affidavit of Mr. Allee sets up in effect that plaintiff in error’s written objections to the master’s report were filed before the master and by him overruled; that said written objections have become lost; that it was stipulated between counsel for the respective parties that the objections stand as exceptions to the report in the Superior Court; that it was so ordered by the Superior Court; and that attached -written objections was an exact copy of the original.

      This affidavit was filed in support of a motion in the court below, upon which the chancellor entered the following order:
    “This cause coming on to be heard on motion of defendants, John E. Murphy and Francis B. Peabody, by Murphy & Allee, their solicitors, and it appearing that counsel for complainant was duly notified of this motion, and is present in court, and after hearing arguments of counsel and being fully advised in the premises, the court doth hereby order that the copy of exceptions presented to the court be filed herein instanter, to stand in lieu of the original exceptions which were filed in this court on February 28, 1900, and which have since become lost and can not be found.”
    The following is the stipulation alleged by the affidavit to have been entered into by the litigants through their counsel:
    “ It is hereby stipulated and agreed by and between the parties to the above entitled cause, that the objections heretofore filed by Murphy & Allee as solicitors for certain defendants, to the report of Sydney Stein, master in chancery of said Superior Court, in the above entitled cause, may stand as exceptions to said report in this court. Dated Chicago, February, A. D. 1900.
    Cicero Lumber Compart, By Chester Firebaugh, Solicitor.
    Murphy & Allee, Attorneys for certain defendants.”
    Francis T. Murphy and Thaddeus S. Allee, attorneys for plaintiffs in error.
    Chester Firebaugh and George C. Mastir, attorneys for defendant in error.
   Mr. Justice Sears

delivered the opinion of the court.

The learned counsel for plaintiffs in error urge as grounds for a reversal of the decree:

First: That the contract between Kruschinsky and defendant in error was a written contract, and that there- . fore the lien notice here is insufficient, in that it did not contain a copy of this sub-contract. Second: That the defendant in error was not entitled to any payment for its lumber until the roof of the building was completed, and that inasmuch as it refused to deliver more lumber before the roof was finished, it broke its contract and can not assert its lien. Third : That defendant in error is not entitled to a lien because no time was fixed in its contract with Kruschinsky within which the lumber was to be delivered and paid for. Fourth: That there is no evidence that any amount was due to Kruschinsky from plaintiff in error Murphy when the lien notice was served, or thereafter. Fifth: That the decree is erroneous, in that it allows interest on the amount found to have been due. Sixth : That there was error in allowinglfjlOO as fees of the master in chancery who heard the evidence and reported the same with his conclusions to the court.

The contract between defendant in error and Kruschinsky can not be treated as a contract in writing. The estimate in writing and the acceptance of the same did not supply all the essential elements of a contract. ¡No other contracting party is mentioned in the estimate save Kruschinsky, and he alone signed it. Extrinsic evidence would be necessary to establish a valid contract between defendant in error and Kruschinsky. Therefore it is to be treated as an oral contract. The R. P. & F. Conductors’ B. Ass’n v. Loomis, 142 Ill. 560. In the decision of that case the Supreme Court said:

“ A written contract is one which in all its terms is in writing. A contract partly in writing and partly oral is, in legal effect, an oral contract. * * * A contract can not be said to be in writing unless the parties thereto, as well as the terms and provisions thereof, can be ascertained from the instrument itself.”

It can not, we think, be held that the limitation in the contract between Kruschinsky and plaintiff in error, viz., that no payment should be made until the roof was on the building, applied as well to the contract between Kruschinsky and defendant in error.

There was a conflict in the evidence as to whether any one representing defendant in error ever saw or knew of this condition in plaintiff in error’s contract, and the evidence is sufficient to sustain the finding of the master that by the agreement between Kruschinsky and defendant in error the latter was entitled to payment as the work progressed and the lumber -was delivered.

The evidence does not sustain the finding of the master to the effect that it was agreed by Kruschinsky and defendant in error that the lumber contracted for was to be delivered within one year. There is no evidence as to any agreement whatever as to the time of delivery. But this deficiency in the evidence is made a ground of defense for the first time in this court. Plaintiff in error Murphy did not rely upoii it before the master or in the Superior Court. If the copy of objections filed with the affidavit of Mr. Allee be treated as properly in the record and as having been presented to the master, still the difficulty remains that no one of these objections points out this deficiency in the proof. It is the settled rule in this State that objections to a master’s report must point out the ground of objection specifically. There is no one of these objections which points out specifically or otherwise that the evidence is lacking in this respect.

The evidence is not definite as to the time when payments were made to Kruschinsky by plaintiff in error Murphy. It is clear that only $105 had been paid when the. lien notices were served. After that time plaintiff in error Murphy “ became responsible to said Kruschinsky and sub-contractors on account of the contract to the extent of $1,200.” This is admitted by the answer of plaintiffs in error. Plaintiff in error Murphy did not disclose by his evidence what payments had been made after the lien notices were served. Therefore, plaintiff in error Murphy, after the lien notice, became liable under the contract for an amount of the contract price more than sufficient to cover the claim here enforced. We are of opinion that the allowance of interest was proper under the provisions of the act providing for mechanic’s liens. The statute expressly provides therefor. Sec. 22, Mechanic’s Lien Act, 36, Chap. 82, R. S. It is complained that the sum of $100 is an excessive amount to be taxed as the fees of the master in chancery for the taking of the evidence and the making of the report herein. But it does not appear that this sum has been taxed as costs. It only appears that at the conclusion of his report the master has noted, “ Master’s fees, $100,” which would indicate that the master desired that amount to be taxed as his fees. If the Superior Court shall hereafter tax an amount to be allowed as master’s fees as part of the costs, counsel for plaintiffs in error can interpose any objection they may have to such allowance. The fact that two lien notices were filed is unimportant.

It is suggested by counsel for defendant in error that inasmuch as it does not appear that objections were filed before the master and considered by him, except as shown by the affidavit referred to, and since the court below did not pass upon any exceptions to the master’s report, therefore we are now precluded from passing upon 'the various points urged by the plaintiff in error and above considered by us. But inasmuch as the decree must be sustained upon a consideration of all the grounds presented by counsel for plaintiffs in error, it is unnecessary to pass upon this .condition of the record as to objections before the master and exceptions to the master’s report, as a further ground for affirming the decree. The decree is affirmed.


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    C. H. Locher v. Ludwig Kluga, Adm., etc.
    1. Variance — Questions of, tobe Raised in the Trial Court. — In a court of review, it is well settled that in order to avail one’s self of a variance between the proof and the declaration, the alleged variance must have been specifically called to the attention of the trial court, so that the opposite party may avoid it by an amendment of his pleading.
    3. Instructions — When to be Reasonably Accurate. — Where the evidence tends to show a right of recovery, it is essential that the jury. be instructed with reasonable accuracy.
    3. Same — Permitting a Jury to Assess Damages without Reference to the Evidence in Case they Find for the Plaintiff.. — An instruction in an action for damages resulting from a death by negligent act, which permits a jury to assess damages in case they find a verdict of guilty, without reference to the evidence, is erroneous because it leaves the jury free to assess damages based upon a reasonable expectation of benefit, as of right or otherwise, which the next of kin (which may include collateral kindred, such as brothers and sisters,) might have received from the continuance of the life of the deceased, without proof that such kindred were in the habit of claiming assistance from the deceased.
    4. Same — Referring to the Amount of the Recovery Limited by the Statute. — An instruction, in an action for damages resulting from a death by negligence, which tells the jury that the plaintiff can in no event recover more than $5,000 (the statutory limit), is erroneous, but is not reversible error.
    5. Self-Defense — Right to Fire Shots. — Where a person and his associates, acting as reasonably cautious, prudent men, in good faith believe that their lives are in danger, considering the surrounding circumstances at the time as appearing to them, and that it was necessary to fire shots in order to protect themselves from serious bodily injury, and they do fire shots, under such belief, they will not be liable for the consequences, although a bystander is injured, notwithstanding the fact that the jury might have been justified in believing from the evidence presented that such person and his associates were in no actual danger at the time.
    6. Defense of Property — Other than Dwelling Houses. — A person is not justified in taking life simply to protect his property (other than his dwelling house), from injury or destruction.
    7. Same — Application of the Law in Criminal Cases to Civil Suits.— The court sees no reason why the rules applied in criminal cases should not apply with equal force to a civil liability arising out of the same circumstances.
    8. Justifiable Homicide — In Defense of Person, Home, Wife or Children. — A homicide is justifiable when committed by a person in resisting an attempt to commit a felony upon him or upon his dwelling house, or in the lawful defense of his person or of his wife and children, when there is reasonable ground to apprehend a design to do some great personal injury, and there is reasonable cause for believing that there is imminent danger of such design being accomplished.
    Trespass oil the Case. — Death from negligent act. Error to the Circuit Court of Cook County: the Hon. Edward F. Dunne, Judge, presiding. Heard in this court at the March term, 1901.
    Reversed and remanded.
    Opinion filed October 24, 1901.
    Statement lby tlie Court.— Defendant in error, as administrator of John Kluga, deceased, plaintiff below, began an action to recover damages for the death of his intestate alleged to have been caused by the plaintiff in error, defendant below. One trial resulted in a verdict of not guilty, but a new trial was granted, and on a second hearing the plaintiff recovered a judgment for $5,000, to review which this writ of error is prosecuted.
    The declaration, in substance, charges that on June 15, 1S93, the defendant Locher, with several confederates who were employed by and acting under the direction of Locher, wrongfully shot off certain guns and thereby shot and ■wounded deceased so that he died from the effects of said wound. The plea was the general issue.
    At plaintiff’s request the court gave, among others, the following instructions, to wit:
    “1. The court instructs the jury as a matter of law that only so much force can be used by citizens as is necessary to protect life and property, and in this case if the jury find from the evidence that it was not necessary for the defendant, Locher, or his associates, to assemble at the place of said accident and fire shots in order to protect their lives and property, then the court instructs you as a matter of law that said assembly was unlawful, and each and all members of the party from which shots were fired, and each and all persons who encouraged or instigated said assembly are guilty and liable for the consequences of the acts of said crowd.
    “ 2. The court instructs the jury as a matter of law that if they believe from the evidence that the deceased, John Kluga, was unlawfully killed at, upon or near the right of way of the Atchison, Topeka & Santa Fe railroad tracks in Will- county, Illinois, while peacefully pursuing his usual employment of a section hand, on the day in question, by some one in a crowd of men, and that said defendant, Locher, was a member of said crowd and aided, abetted or advised the men in said crowd to fire shots, then they must find said defendant guilty. Provided you further believe from the evidence that at the time when the said shots were fired the lives or property of Locher, or those of the men then with him, were not in imminent danger of destruction or serious loss, and that Locher and the men with him at the time of the shooting did not believe or have reasonable grounds to believe that their lives or property were in iminent danger of destruction or serious damage.
    4. The court instructs the jury as a matter of law that in estimating the damages to be awarded the plaintiff, in case they should find from the evidence the issues for the plaintiff, they should calculate in reference to a reasonable expectation of benefit, as of right or otherwise, which the next of kin might have received from the continuance of life of said John Kluga. The parents, and even brothers and sisters, may reasonably expect in many ways to derive pecuniary benefit from the continued life of the intestate, as of grace or favor, if not of right, at any age of life, and our statutes impose the duty of support in the event of their becoming paupers, of parents by child and of one brother or sister by another brother or sister, but the court instructs you, as'a matter of law, that in no event can the plaintiff recover more than five thousand dollars.”
    The court also gave, at the request of the defendant, certain instructions, and was asked to give the following, to wit:
    “ If you believe from the evidence that G. H. Locher and other persons were in possession of premises and machinery along the sanitary district channel in June, 1893, and that large bodies of men came upon the premises in question for the purpose of interrupting the work of defendant and others by violence, and that the defendant and others, with the assistance of deputy sheriffs, attempted to drive such bodies of men from the premises, and that defendant had no understanding with any other person except that they would defend their premises, and that some person'other than Locher shot and killed Kluga, then you will find" defendant not guilty.”
    The court, however, modified it by adding the following words, to wit:

      “ If you further believe from the evidence that Locher did not aid, abet, encourage or assist the person firing said shot in and about the firing of the same” — and gave it as modified.
    J. L. O’Donnell and Pedeick & Dawson, attorneys for plaintiff in error.
    Czarnecki & Koraleski and Max A. Dbbzmal, attorneys for defendant in error.
   Mr. Presiding Justice Windes

delivered the opinion of the court.

No claim is made by counsel for plaintiff in error that the evidence was insufficient to go to the jury — only that it varied from the allegations of the declaration. It is a sufficient answer to this contention to say, there was no attempt in the trial, so far as appears from the abstract, to point out the alleged variance. In a court of review it is well settled that to avail of a variance between the proof and declaration, the alleged variance must have been specifically called to the attention of the trial court, so that the opposite party could avoid it by amendment.

The evidence tending to show, as it does, a right of recovery, it is essential that the jury should have been instructed with reasonable accuracjn Chicago City Ry. v. Canevin, 72 Ill. App. 81, and cases there cited.

The first instruction given for plaintiff and quoted in the statement, is erroneous, in our opinion, in assuming, as it does, that Locher or his associates fired shots. There was a conflict in the evidence in this regard, and the jury should have been left free to determine the fact as to whether shots were fired or not by Locher or his associates. Moreover, the instruction is erroneous, because it in effect tells the jury that defendant Locher would be liable for the consequences if the jury believed from the evidence that Locher or his associates fired shots when it was not necessary in order to protect their lives and property. Such is not, in our opinion, the test as to defendant’s liability in this case. If the defendant and his associates, acting as reasonably cautious, prudent men, in good faith believed that their lives were in danger, considering the surrounding circumstances at the time appearing to them, and that it was necessary to fire shots in order to protect themselves from serious bodily injury, and they did so fire shots under that belief, which was justified by the circumstances appearing, they would not be liable for the consequences of firing such shots although, as in this case, injury was caused to a bystander. And this is true notwithstanding the fact that the jury might have been justified, from the evidence presented upon the hearing, in believing that the lives and persons of defendant and his associates were in fact in no actual danger at the time it is alleged they fired shots. They would, however, not be justified in taking life simply to protect their property (not their dwelling houses) from injury or destruction. Campbell v. People, 16 Ill. 17; Maher v. People, 24 Ill. 241; Davison v. People, 90 Ill. 221; Lamb v. People, 96 Ill. 73.

The cases cited above in support of the right to protect life and one’s person, are criminal cases, but we see no reason why the rule applied in criminal cases should not apply with equal force to civil liability arising out of the same circumstances, but there is authority in other jurisdictions applying the rule to civil suits.

In the case of Higgins v. Minaghan, 76 Wis. 298, -which was an action to recover damages for a gunshot wound inflicted by the defendant during a riot, it was held that the question as to the defendant’s liability under the evidence should have been submitted to the jury, and the court say :

“ Even a homicide is justifiable when committed by any person while resisting any attempt to commit any felony upon him or upon his dwelling house, or in-the lawful defense of his person or of his wife and children, when there shall be reasonable ground to apprehend a design to do some great personal injury, and there shall be reasonable cause for believing that there is imminent danger of such design being accomplished. The defendant was justifiable in acting for his defense according to the circumstances as they appeared to him.”

To a like effect, in principle, is the very thoroughly considered case of Morris v. Platt, 32 Conn. 75-83. See also 1 Hilliard on Torts, 200-202, and Bliss v. Johnson, 73 N. Y. 529.

In the Davison case, supra, the court holds that a person is not justified in taking life to protect his property from injury or destruction, unless it be his dwelling house.

The second instruction for the plaintiff is bad because it in no way connects the alleged killing of John Kluga with the defendant Loeher, or with any other person who was advised, controlled, aided or directed by him. It also leaves to the jury a question of law, viz., whether Kluga was unlawfully killed.

The fourth instruction for the plaintiff is erroneous, in that it permits the jury to assess the damages, in case they should find a verdict of guilty, without any reference to the evidence; also because it leaves the jury free to assess the damages based upon a reasonable expectation of benefit, as of right or otherwise, which the next of kin (which may of course include collateral kindred, such as brothers and sisters) might have received from the continuance of life of said John Kluga, without proof that such collateral kindred were in the habit of" claiming and receiving pecuniary assistance from deceased; also in telling the jury that the plaintiff could in no event recover more than $5,000. This last error may not, of itself alone, be cause for reversal. R. R. Co. v. Swett, 45 Ill. 197-204; City of Chicago v. Scholten, 75 Ill. 470; Holton v. Daly, 106 Ill, 131-8, and cases cited; R. R. Co. v. Austin, 69 Ill. 426; Ry. Co. v. O’Hara, 150 Ill. 580; R. R. Co. v. Woolridge, 174 Ill. 330-4, and cases cited.

In the Holton case, supra, the court say :

“ If the next of kin are collateral, it is a material question whether they were in the habit of claiming and receiving pecuniary assistance from the deceased. If they were not, they can recover but a nominal sum; but when the relation of husband and wife, or parent and child, exists, the law presumes pecuniary loss from the fact of death.”

To the same effect is the latest expression of the Supreme Court in the case of Woolridge, supra. In so far as the cases of City of Chicago v. O’Keefe, 114 Ill. 230; Ry. Co. v. Wangelin, 152 Ill. 138, and Ry. Co. v. Then, 159 Ill. 535, relied upon by appellee, can be said to conflict with the other rulings of the Supreme Court, if they do so conflict, they must yield to the later case of Woolridge, supra.

We perceive no error in the modification of the defendant’s instruction quoted in the statement, and in giving it as modified. The instruction as asked by the defendant is clearly bad, and the modification as made by the court is as favorable as defendant could ask.

For errors in the instructions noted, the judgment is reversed and the cause remanded.


author: Mr. Justice Adams

text:
    Richard Curran v. Samuel E. Webbe.
    1. Mechanic’s Lien — Under Written Contracts Containing No Provision as to the Time in Which the Work is to be Performed. — When a written contract contains no provision as to the time in which the work is to be performed, or the money paid, there can be no lien.
    Petition for a mechanic’s Lien. — Appeal from the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge, presiding. Heard in this court at the October term, 1900.
    Reversed.
    Opinion filed October 24, 1901.
    Sullivan & McArdle, attorneys for appellant.
    Defrees, Brace & Ritter, attorneys for appellee.
   Mr. Justice Adams

delivered the opinion of the court.

This is an appeal from a decree for a mechanic’s lien in favor of appellee and against appellant. The contract under which it is claimed the materials were furnished and the work done, is in writing, is dated July 16, 1897, and purports to be between Samuel E. Webbe, party of the first part, and Biehard Curran, party of the second part, and contains the following:

“ Witnesseth, that the said party of the first part, for and in consideration of the payment to be made to him by the said second party, as hereinafter provided, do hereby covenant, contract and agree to furnish and set cut stone in building on Edgerton avenue and Sixtieth street, as follows: To top of 2nd floor by July 23; to top of 3rd floor by July 29, and balance, so as not- to delay roof, by August 4“ 1897; * * * and the second party, for and in consideration of the first party completely and faithfully .executing the aforesaid work * * * do hereby agree to pay to said party the sum of nine thousand five hundred dollars, in manner following, viz.: provided work is finished, as before mentioned, July 17, §1,675; July 23, §1,000; July 29, §2,000; Aug. 4, §1,000; when cornice is set, §2,000; balance at completion.”

If the words in the first part of the contract above quoted, viz., “and balance, so as not to delay roof, by Aug. 4,1897,” stood alone, it might be, at least, doubtful whether the words “ by Aug. 4, 1897,” refer to the time when the roof was to be put in place, or to the time of completion of appellee’s contract; but the subsequent part of the contract providing for the payment to appellee of §1,000 August 4, 1897, and of §2,000 when corhice is set, and the balance thereafter, “at completion,’’leaves no room to doubt that the words “ by Aug. 4, 1897,” in the first part of the contract, were intended by the parties to refer to the time when the roof was to be in place, and not to the time for the "completion of appellee’s contract. That such was appellee’s understanding appears from his testimony. He testified:

“ I was to get the rest of the work done after we reached the roof, so as not to delay the completion of the building; that was really the agreement-we had. He had plenty of time to do that, and of course, the two weeks were mentioned in regard to the cornice, but there was the other work besides the cornice; there was the entrances, the washing down and the tuck pointing, but there was no given time for the whole thing; he says, however, it had to be done in such a manner as not to interfere with the rest of the building; that is, if the roof of the building was complete, then my work should be completed, and if the rest of the building took six months, then, of course, I could not finish my work. The cornice balustrades could not have been put on before the roof was put on.”

Since the decree appealed from was rendered, it has been held by the Supreme Court in two cases (Freeman v. Rinaker, 185 Ill. 172, and Kelley v. Northern Trust Co., 190 Ib. 401), that when a written contract contains no provision as to the time within which the work is to be performed, or the money to be paid, there can be no lien. These decisions are conclusive as against appellee’s right to a lien. The decree will be reversed.