author: Mr. Justice Sears

text:
    First District
    March Term, 1901.
    DETERMINED DURING THE YEAR 1901.
    Marshall Field et al. v. Mary E. Kane.
    1. Principal and Agent — Liability of the Principal for Wrongful Arrest by the Agent. — In determining the liability of the principal for a wrongful arrest by his agent, the criterion is, was the act within the general scope of the implied authority conferred upon the agent. If so, the wrongful exercise of it, though not expressly directed by or contemplated by the principal, will render him liable.
    2. False Imprisonment — Arrest by Employes in Mercantile Establishments. — An usher on the floor of a large dry goods emporium followed to the street a customer whom he suspected of theft and there placed his hand upon her arm, and compelled her to return to the store with him, where she was taken into a room and interviewed by other employes of the proprietor. In an action for false imprisonment, the proprietor of the establishment was held liable for the act and mulcted in the sum of §475 as damages.
    Trespass, for false imprisonment. Appeal from the Superior Court of Cook County; the Hon. Theodore Brbntano, Judge, presiding.
    Heard in this court at the March term, 1901.
    Affirmed.
    Opinion filed December 12, 1901.
    Statement. — This suit was brought in trespass byappellee to recover damages for a false arrest of the appellee by appellants. The evidence discloses that appellee had been for a long time a customer of the appellants, and that she had a credit or “ charge ” account with appellants; that at the time in question she visited the store of appellants and after examining certain wares upon the third floor, started away from the store, having made no purchase. She took the elevator, and upon reaching the main floor left the building. After she was upon the street Mr.
    Claribut, an employe of appellants, whose duties were those of usher on the third floor of the store, followed her, placed his hand upon her arm, and caused her to return ,to the store with him, where she was taken into a room and interviewed by others of appellants’ employes. Appellee testified that Claribut opened her cloak and put his hand into her pocket, and that he stated to Mr. Weber, another of appellants’ employes, “ This lady has stolen a candlestick.” Claribut testified to actions of appellee while in the store, which evidently aroused his suspicion, and that he followed her out of the building and asked her “ if she hadn’t got something there that didn’t belong to her,” to which appellee replied that he had made a mistake, and that he thereupon requested her to step into the store with him. He testified that in conducting appellee back into the store he had put his hand under her arm, “just as I would escort airy lady.” He denied that he or any other person had searched appellee. Appellee testified that Claribut “ grabbed her by the shoulder ” when taking her back to the store.
    Ho article belonging to appellants was discovered in the possession of appellee, and it was not contended upon the trial that she had in fact taken anything. The appellants pleaded the general issue. The issues were submitted to a jury, and they found appellants guilty and assessed appellee’s damages at $475. From judgment upon that verdict this appeal is prosecuted.
    Frank P. Leffingwell, attorney for appellants. '
    Daniel M. Rothschild and Blum & Blum, attorneys for appellee.
   Mr. Justice Sears

delivered the opinion of the court.

Counsel for appellants states in his brief that he urges two grounds only for a reversal of the judgment, viz., first, that there was no false imprisonment of the appellee, and secondly, that the act of Claribut in his conduct toward appellee was not within the scope of his employment by appellants, and hence did not render appellants liable. We are of opinion that upon the evidence presented each of the questions raised upon these contentions was a question of fact properly submitted for determination by the jury. There is no serious conflict between the testimony of appellee and that of Mr. Claribut as to the manner in which appellee was stopped while upon the public street and taken back to the store. The variance between their narratives as to the degree of rudeness displayed by Claribut might be of consequence as related to the measure of damages, but not so far as the fact of a wrongful detention of the appellee is concerned. Upon Claribut’s own statement, appellee was charged with having “ something which did not belong to her,” and was conducted back to the store by him, he having hold of her arm, in spite of her protest that he was making a mistake. The jury were warranted in finding from this evidence that the appellee was charged with a theft, coerced into returning to the store, and detained against her will. The elements essential to a wrongful arrest and detention were practically admitted. 2 Addison on Torts (Wood’s Ed.), 798-9; Cooley on Torts, (2d Ed.), pg. 195-6; Bigelow on Torts (3d Ed.), pages 113-114; Moore v. Thompson, 92 Mich. 498.

Greater difficulty is to be found in the second question presented, viz., as to whether appellants are liable for this conduct of their employe. The learned counsel for the appellants cites and relies upon the decision of the New York court in Mali v. Lord, 39 N. Y. 381. The opinion in that case proceeds upon the theory that a principal can not impliedly and without express direction authorize another to do that as agent which the principal could not himself lawfully do. The decision supports the contention of counsel. For here the appellants did not, in express terms, authorize Claribut to detain appellee nor could it be said that appellants themselves might, under the facts of this case, lawfully detain her. The same reasoning would exonerate the principal from liability in every case where an agent made a wrongful arrest without express direction from the principal. We are of opinion that the basis of the decision is not sound, and that it lacks the support of the weight of authority in this country. In the Mali case, as here, a customer was wrongfully detained and searched upon suspicion of having committe’d a theft in a store by an agent of the proprietor of the store. The court, in holding that the proprietor was not liable to respond for this wrongful detention, said:

“ In examining this question it must be assumed that by the employment the master confers upon the servant the right to do all necessary and proper acts for the protection and preservation of his property, to protect it against thieves and marauders; and that the servant owes the duty so to protect it to his employer. But this does not include the power in question. It cannot be presumed that a master, by intrusting his servant with his property, and conferring power upon him to transact his business, thereby authorizes him to do any act for its protection that he coultl not lawfully do himself if present. The master would not, if present, be justified in arresting, detaining and searching a person upon suspicion, however strong, of having stolen his goods and secreted them upon his person. The authority of the defendants to the superintendent could not, therefore, be implied from his employment. The act was not done in the business of the defendants, and they were not, as masters, responsible therefor.”

To that part of the reasoning of the court which concluded that it is one of the implied duties of the employe to protect his employer’s property from theft, we assent, but not to the further conclusion of the court. In the case under consideration Claribut was, like the superintendent in the Mali case, employed in a manner which made it his duty to protect his employer’s wares against thieves. That he might lawfully stop a thief who was carrying ofi any of those wares, can scarcely be questioned. This authority is to be implied from the nature of his employment. If the authority to detain one who actually was carrying away the goods of the master is implied, and the act of the agent is in that respect the act of the master, then when the agent wrongfully exercises this implied authority by detaining one under suspicion of guilt who is in fact innocent, it would seem as clearly to be the act of the master done by the servant, wrongfully, to be sure, yet in the exercise of the implied authority.

The fact that the exercise of the implied authority was wrongful, does not of itself exclude a liability of the master. The criterion is, was the act within the general scope of the implied authority conferred on the agent. If so, the wrongful exercise of it, although not expressly directed by or contemplated by the master, will yet render the master liable. Arasmith v. Temple, 11 Ill. App. 39; W. C. St. Ry. Co. v. Luleich, 85 Ill. App. 643.

In the Arasmith case this court said :

“ That a master is liable for a trespass committed by his servant bona fide as such and in the line of his employment, although willful on the part of the servant, has been often declared by the Supreme Court of this State. * * * The act of the servant within the scope of his authority, with all its characteristics, whether of willfulness, negligence or unskillfulness, is deemed to be the act of the master. And everything done by the servant bona fide as such and in the line of his employment, is within the scope of his authority. The master’s direction to do it is impliedly or conclusively presumed from the relation existing between them. * * * Having set the servant to work about his own business with the right to direct and control him as to the manner of doing it, he ought to answer to others for whatever injury they suffer by reason ofSvhat he so does or of the manner in which be does it; and equally so whether it be willful or only careless or unskillful.”

In the Luleich case, supra, the facts differed from the case under consideration, in that there the principal, held liable for the wrongful act of the agent in causing an arrest, was a corporation and a common carrier, and the person wrongfully arrested was its passenger. This court, in deciding the case, said:

“ The chief contention of appellant’s counsel is, that the causing the arrest was outside the scope of the conductor’s duty, and he argues that authority to cause the arrest can not be implied. We think appellant’s counsel misconceives the sense in which the words ‘ within the scope of his author- . ity’ are used in the text books and judicial opinions. It is not essential to the liability of the master, as counsel assumes, that the servant should be authorized, either expressly or by implication, to do the very act for which the master is sought to be made liable.' Take a familiar instance: A, the owner of a wagon, employs B to drive the wagon in A’s business. B, while so driving, drives recklessly or carelessly, by reason whereof the wagon collides with another vehicle, injuring it and some of its occupants. A is liable, not because he authorized B to drive recklessly or carelessly, which he did not, but because B was acting within the general scope of his authority, which was to drive the wagon in his employer’s business. Having authorized B to drive the wagon, he is as responsible for his negligent driving as if he himself had been driving and guilty of the negligence which caused the accident. In legal contemplation, he acted by B.”

Authorities which do not follow the reasoning of the Mali case, but proceed upon a different and opposite interpretation of the law, are found in Staples v. Schmid, 18 R. 1. 224; Mallach v. Ridley, 9 N. Y. Supp. 922; Rounds v. D. & L. W. R. Co., 64 N. Y. 129.

In Staples v. Schmid, supra, the Rhode Island court held a shopkeeper liable for a wrongful arrest of a customer by an employe of the shopkeeper, although there was no express direction by the principal, and the only authority of the agent to act in the matter for the principal was the implied authority arising from his duty to protect his employer’s property. The court said :

“ It is quite true that the master would have no right to arrest and search an innocent person; but it is equally true that he would have the right to detain a thief and to recapture his property from him. The case therefore was one where the act, aside from any excessive force, might be lawful or unlawful, according to whether the supposed circumstances were real or unreal. The servant was left in a situation where he was obliged to determine the fact and where his duty to his master depended upon his decision. The decision was his, as the substitute of the master, and the act was one intended by him to be for his master’s benefit and which his duty required if the facts were as supposed. Hence, as to third persons, it was the master’s act. The criterion of the master’s liability can never be whether the act would have been lawful for the master to have done in the circumstances as they actually existed. It remains to apply these principles to the case at bar. The servant in this case was left with an assistant in charge of his master’s store. His ordinary duties undoubtedly were to show goods and to sell them to customers. It was, however, equally his duty to protect his master’s property from pilfering. The acts complained of were evidently done with that intention. The arrest was for the purpose of searching for and recovering the master’s property, not with the object of punishing crime against the public. The establishment was not a railroad station where the multiplicity of employes confines each one to a narrow round of duties, where special officers are stationed to preserve order and detain criminals, nor a large dry' goods emporium where detectives and watchmen are employed to guard against thieves. The servant here was salesman and custodian in one. Whatever the master might do in the protection of his property, he expected his servant to do in his absence. If the servant had seen the plaintiff take up and secrete the package of spoons in question and had allowed her to walk away with them unmolested, could any one say that he had not been derelict in his duty to his master ? If in the performance of this duty he mistook the occasion for it, or exceeded his powers or employed an improper degree of compulsion, the mistake and the excess must be answered for by the master.”

We are of opinion that if it was properly determined that the implied authority of Claribut included the protecting of the wares of appellants against theives, then the wrongful act of Claribut in detaining appellee upon an unfounded suspicion that she had committed a theft, was the act of appellants.

Whether the implied authority of the usher included such protection of the appellants’ property, was, upon the facts here, a question for the jury, and we are not prepared to hold that the conclusion expressed in the general verdict is against the weight of the evidence.

In Wood on Master and Servant, Sec. 285, the author says:

“ There is an implied authority to do all those things that are necessary for the protection of the property intrusted to the person.”

The appellants here were conducting what the court in the case cited terms “a large dry goods emporium,” and there were detectives employed in the store to prevent thieving. But the question as to the scope of the employment of Claribut was a question of fact for determination by the jury, and we can not say that the conclusion reached is unwarranted. Claribut was usher upon the floor where the appellee was suspected of having committed a theft. As such, his plain duty was to protect his employer’s wares there. It does not appear that there was any other employe of appellants upon that floor whose specific duty it was to act in the matter, and to whom Claribut should have reported the circumstances before acting. If the suspicions of Claribut had been well founded, it would have been a useless thing to have gone in search of a detective while a theft was being committed in his presence, and if the culprit in such case had escaped through his inattention he would have been derelict in his duty. In the Rhode Island case the court held the shopkeeper to respond for actual damages only. Ho question arises in the case under consideration as to any such limitation of the recovery, as no complaint is made that the damages awarded are excessive.

Ho other question is presented upon the record, except as above considered. The judgment is affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Inland Printer Co. et al. v. Economical Half Tone Supply Co.
    1. Libel — Charging the Wares of a Manufacturer to be a Humbug.— A publication charging that the wares of a manufacturer are a humbug, worthless and unfitted for practical use, is a libel.

      2. Same — Publications Based upon the Examination of a Circular.— The statements of a publication, based upon the examination of a circular issued by a manufacturing company, commending its wares and not upon an examination of, or experience with such wares, if false and maliciously made, are actionable for any damage resulting.
    3. Same — Criticism by the Publishers of Trade Journals. — The publisher of a trade journal may, without liability, make any fair and reasonable discussion of the wares of a manufacturer who solicits public patronage and may publish an honest expression of his opinion upon the merits of such wares. But, under the guise of expressing an opinion, he is not privileged to maliciously make any false statements of any material fact in relation thereto which will impute to such manufacturer a want of integrity in his business.
    4. Same — Truth of a Plea of Justification, a Question for the Jury.— The truth of matters alleged in a plea of justification for a libel is always a question of fact for the determination of a jury.
    5. Cross-examination — Of Expert Witnesses. — Greater latitude is allowed in the going outside of facts in evidence, for the purpose of cross-examining an expert witness, than is allowed in the examination of other witnesses, and the extent of such latitude is a matter resting largely in the sound discretion of the trial judge.
    6. Witnesses — Must Not Usurp the Province of the Jury.— The examination of a witness which permits him to usurp the functions of the jury, to canvass the evidence and to determine the question for which the jury are impaneled, in a case where the evidence is conflicting and where the damages assessed are large, is reversible error.
    : Trespass on the Case, for libel. Appeal from the Superior Court of Cook County: the Hon. Farlin Q. Ball, Judge, presiding. Heard in this court at the March term, 1901.
    Reversed and remanded.
    Opinion filed December 23, 1901.
    Statement. — This is an action for libel, brought by appellee against appellants.
    Appellee is engaged in the manufacture of a device for making what is known as half-tone cuts for printing pictures, produced by photograph. The Inland Printer Company is a corporation engaged in publishing a trade journal known as Inland Printer, circulated among the newspapers of the country. Henry O. Shepard is the president, the principal stockholder and the active manager of the Inland Printer Co.
    The evidence showed that he was personally responsible for the publication in the Inland Printer of the article complained of and made the basis of this suit. The article is as follows:

      “ Half-tone Humbugs. — Several inquiries have been received for an opinion regarding t.he ‘ Fantastical ’ Half-Tone Supply Company of Baltimore, Maryland. This concern offers for $25 a complete half-tone outfit, including material and instructions so that a boy of fifteen can make half-tones at a cost much less than others can buy the copper on which to engrave them. Here is just one of the propositions of this concern : In the elaborate circulars with which they have flooded the newspapers, they show some single column half-tone proofs. The cost of materials for engraving these single column half-tones, they claim, is but three cents; they offer them to those receiving their circulars at fifty cents, ‘ one-fifth the regular price ’" charged for such work. In brief, this concern offers to sell for fifty cents half-tones which cost them, for material, only three cents, and for which other photo-engravers charge $2.50. Just think of the possibilities of money-making here. All this Baltimore company need do is to establish one of their $25 outfits in each of the principal cities and they could soon control the half-tone engraving of the country, up to 4x5 inches in size. Greater wealth than that of the Klondike would be theirs in time. But with a philanthropy as commendable as it is rare, this company offers an v one an opportunity to make a fortune. From one of their letters at hand they agree to send their complete outfit, materials and instructions, on receipt of five dollars, and for two dollars they will supply enough materials to keep your photoengraving establishment running two weeks. According to their circulars, a boy of fifteen can make six by 4^-half-tones in three hours, or eighteen per day. In two wrneks he would make 252 half-tones containing 15f square inches each, which, according to their circular, he can get eighteen cents per square inch for, or $714.42 in two weeks on an investment of seven dollars. This scheme leaves no field for the ‘ gold brick ’ or ‘ green goods ’ people. It also injures the business of the concerns,who advertise a complete printing outfit, ‘ Every man his own printer,’ for $1.50, or the easy-running dynamo for one dollar. It should be hardly necessary to warn people against these concerns, but they are likely to do Business while that saving of the experienced P. T. Barnum holds true, that ‘ There is a fool born every minute.’ ”
    The narr., in two counts, sets up the foregoing article as a false, malicious and libelous publication. One of the pleas filed by appellant avers:

      “ That the Inland Printer is published in the interests of those engaged in the printing business and all that relates thereto; that in the year 1898 the plaintiff distributed circulars as follows :

      (a) That half-tone making is a secret process, and gave a rough summary of its process.

      (I>) That with a day or so practice, in accordance with printed directions, any young person of moderate intelligence, for instance, a bright boy of fifteen, could learn to make half-tones as good as sample shown, 6 which have a far better printing quality than those formerly used.5
    (e) That it would furnish for $25 its entire outfit, the right to use it and the printed instructions, which it designated as ‘ a simplified and secret method,’ so. that one of moderate intelligence, but without experience, could produce in three hours, at a cost for material of about three cents each, six half-tones, such as plaintiff’s said circular, taken as a whole, represents to be the latest improvement ' in half-tones.

      (d) That plaintiff’s outfit would place one of moderate intelligence, but without experience, on a level footing with any firm -engaged in the business of making halftones.

      (e) That plaintiff had perfected an invention which it describes as ‘ a mechanism to automatically perform the difficult parts of the work, and to put the process within the reach of any one of moderate intelligence:’

      (f) That it is the very first means ever offered by which one can make local illustrations of any value whatever to any paper.

      (g) That the profit is so large,6 fortunes are being made at it.5
    And divers and sundry other untrue and misleading statements and representations. That plaintiff made such statements and representations knowing them to be untrue and misleading, as in fact they are, with the intent and purpose of inducing the public, by such false and misleading statements, etc., to purchase its said outfit and instructions in the belief that creditable and merchantable half-tones could be easily and cheaply produced (at about one-fifth the usual cost) by persons described by plaintiff, and thus enabled to compete with the regular trade and make large profits. (Copies of circulars are then set out in full.)
    Wherefore defendants admit publication of article in controversy, and allege it was lawful for them to so publish it, as they were justified in so doing in the interest of and for the protection of those engaged in the printing business and all that relates thereto; that they published the same with good motives and for justifiable ends; that the said several words therein, and all proper and just intendments therefrom to be deduced, are true in substance and in fact; that the wares offered for sale by plaintiff in said circulars will not, in fact, enable the persons therein named to obtain the results therein promised, and the plaintiff was guilty thereby of false, fraudulent and misleading representations and statements in endeavoring to sell the same.”
    Another plea avers, in substance, the same facts as set up in plea above noted, except that it states, “ and the material and apparatus so made and sold by the plaintiff were humbugs and are worthless and unfitted for practical use in the production of half-tone pictures,” etc.
    The circular referred to in the alleged libelous article and by the pleas, is in part as follows :
    “ A New Facts.
    ILLUSTRATION IS THE LIFE OF JOURNALISM.
    The latest -improvement in half-tones now used by the great metropolitan dailies is the form of illustration best adapted to newspapers.
    It does away with all the previous objections to halftone for newspaper purposes.
    The only drawback now to its general use is the expense of making half-tones, which is higher than ever, owing to the large and expensive mechanical plants used, and the increase in the wage scale obtained by the Process Engraver’s Association.
    Also, half-tone making is a secret process, hedged about with restrictions (each shop only allowed to teach a very few apprentices) and so intricate and complicated that it takes years to perfect a workman, and then he usually understands only one branch.
    It occurred to us that, although these were formidable difficulties to overcome, yet, after an expert had once overcome them, it was very practical for him to construct a mechanism to automatically perform the difficult parts of the work, and so to put the process within the reach of any one of moderate intelligence.
    The next thing to accomplish was the making of said mechanism at a low price. It has required long and hard study to reduce the process to a simple system and mechanism, but finally we have been entirely successful.
    We have just perfected the invention and protected our rights, and now for the first time offer the right to use the same.
    IT WILL OPEN A NEW ERA IN NEWSPAPER METHODS
    Because it is the very first means ever offered by which you can make local illustrations, which are the only illustrations of any value whatever to any paper.
    We have exhibited it to numbers, including many newspaper men, and the verdict has invariably been one of outspoken admiration of the results, and of the ease and cheapness of producing them.
    We expect to see it in use in every newspaper office in the land.
    The invention consists in a camera of novel construction and with certain attachments peculiar to itself.
    Also an accompanying outfit of accessory apparatus, and our printed, simplified and secret method of operating the entire combined camera, outfit and process, from the copy to the half-tone ready for the printing press. Besides, we send, free, material to make work enough to start upon.
    * * * * * * ■36-
    Following is a rough summary of the process, so as to give you a general idea of the work you will have to do.
    The detailed instructions will be given in the book sent with the outfit, and those instructions cover every point.
    * * * With a day or so of practice in accordance with our printed directions, any young person of moderate intelligence, for instance, a bright boy of fifteen, can learn to make half-tones as good as those of which we mail you impressions on the specimen sheet inclosed.
    These specimens are printed from half-tones made with our invention by a person having no previous practice with it, beyond a day or so of its use.
    The cost of making the half-tones is trifling.
    See the cost for all material marked below each print on the sample sheet, and notice how cheaply you can illustrate your paper with numerous illustrations; not merely a few, as now done for economy.
    These half-tones have a far better printing quality than those formerly used.
    They are nearly twice as deep and open in the grain.
    You can make a big profit doing work for your job office or for outside customers.

      * * * If you should have a customer and he really needs a large half-tone, we will make it for you at a trade rate of 10 cents per square inch, giving you a chance to make the other 8 cents yourself. But on cuts under 4 x 5, we will charge you the full rate, because you can make them yourself, and it is to your interest that you should do so. This puts you on a level footing with any firm, because your customers need not know that you can make only 4x5 cuts.
    Our terms are, for the entire outfit, the right to use it and our printed instructions, twenty-five dollars.
    We ship all orders with sight draft attached to bill of lading. We pay the freight.
    We have not room in this circular for testimonials, but will send the same to all who prefer seeing them before ordering.
    You will have no trouble in getting copy to illustrate your paper with. Once it is known that you are illustrating, you will be flooded with photographs, drawings, eic.,
    of all sorts of local, attractive stuff, and all you will have to do will be to stick it up in front of the camera.
    In these stirring times especially, illustrating takes on a new value and opens new opportunities. For the job office work, you can make buildings, portraits, reproductions of lithographed letter heads, checks, original designs, catalogue illustrations and the thousand and one things that are always coming into a job office and needing illustration.
    And, besides all the profit, it is a beautiful and fascinating art. We have removed the need of dabbling in poisons, which was inseparable from the old process.
    If you are not convinced by all we have said, we hope you will put the whole of this communication into the hands of some local photographer, -and ask him what he thinks about it. The chances are that he will want to take up the process himself and illustrate your paper for you. At any rate, we are willing to rest our ca.se upon his judgment.
    Following is a detailed list of the articles comprising the outfit:
    One camera, without patent rigid slide channel, etc.
    SUPPLIES FOB YOUR FUTURE WOBK.
    We shall be pleased to furnish you with the supplies you will need in the future, and will do so as cheaply and satisfactorily as any others. At the same time we recognize your right to buy where you please, and therefore, in the spirit of fair dealing, we will in our instruction book tell you where and how to buy all your supplies from firms now regularly supplying the half-tone trade. We will also tell you the names of the chemicals used and instruct you how to mix them, and where to buy them.
    As far as possible we have only mailed circulars to one paper in each town or county, so you, being probably the only one in vour neighborhood to whom our process is sent, will have the advantage over your rival publisher.
    We inclose a blank order upon us for one of our outfits. Should you decide to purchase, please fill same out and mail to us and your order shall have prompt attention.
    Tours truly,
    Economical Half Tone Supply Company,
    9 East Lexington Street,
    Baltimore, Maryland.”
    The evidence showed that the business of the appellee during the two months preceding the publication amounted to twenty-six sales of the apparatus advertised in the circular, at a profit; and that in the twenty-three months after the publication but twenty-four were sold.
    The manager of the appellee company was asked if he knew of any reason except the libelous article in the Inland Printer to which to assign the fact that since the publication so few sales had been made. To which question, over objection of appellant, the witness was permitted to answer, “ I do not.” To this ruling of the court appellant preserved its exception. Witnesses called as experts testified that the prints made by appellee’s device were not “ acceptable.” In cross-examination, prints in half-tone used in copies of Chicago daily papers were shown to the witnesses and they were asked if such prints were, in their opinion, acceptable. The prints thus used were admitted in evidence. The appellant objected thereto and perserved exception. Much evidence was presented upon the truth or falsity of the various representations made by the circular issued by appellee.
    The narr. charged special damage in the loss of one customer named. Appellant objected to evidence of a general falling off in appellee’s sales, upon the ground that no other specific instances of loss were alleged in the narr. save the one.

      The court overruled this objection and appellant excepted to the ruling.
    Upon the trial the issues were submitted to a jury and a verdict was returned finding the appellant guilty and assessing appellee’s damages at $5,000.
    From judgment thereon this appeal is prosecuted.
    James Hibben, attorney for appellants.
    Ritchie, Esher & Knobel, attorneys for appellee.
   Mr. Justice Sears

delivered the opinion of the court. It is contended by appellant that “ the verdict and judgment are contrary to and not supported by the evidence or law,” and upon this ground, among others, it is urged that the judgment should be reversed. To this contention we can not assent. The alleged libel charges, and the pleas of justification reiterate, in effect, that the appellee’s wares are “ a humbug” and are worthless and unfitted for practical use in the production of half-tone pictures. These statements of the publication were based upon an examination of a circular issued by the appellee commending its wares, and not upon examination of or experience with the apparatus offered for sale. If the statements are false and were maliciously made, a cause of action exists for any damage resulting.

The publisher of a trade journal may doubtless make any fair and reasonable discussion of the wares of a merchant or manufacturer who solicits public patronage, and may publish an honest expression of opinion upon the merits of such wares. But, under the guise of expressing an opinion upon' such _waresya-’-publisher is not privileged to maliciously make any false statement of any material fact in relation to said wares; nor to maliciously make_any false statement of fact which shall impute to suchmereha-nt or manufacturer a want of integrity^in. his business.

The issue of fact presented in this cause was as to whether the statements of the publication were false. That the appellants were responsible for the publication, that if false it was also malicious, and that some damage resulted, coüliTTiárdryFé^considered as controverted in this record. Appellants pleaded the truth of the statements in justification of them. The question of fact presented was as to the sufficiency of the evidence to support such plea. This was a question for the jury, and we can not say that upon the evidence they might not have properly found, as they did, that the statements were in substance false. Appellants attempted to support their plea by proving that certain of the representations made by the circular were false. This, we think, they had a right to do. The publication was based upon an examination and criticism of the circular. The plea sets up the circular as false in justification. An issue was formed on replication to this plea. Therefore it was competent to show that the various statements of the circular were false. In this behalf, appellant undertook to establish that the process of half-tone making was not a secret process; that the process adopted by appellee did not operate automatically, and did not dispense with the use of poisons; that the process was not invented by appellee’s employe and agent, but was known long before this device was put upon the market, and had been described in books upon the subject;' and that the representation to the effect that an inexperienced person could make half-tone cuts of commercial value by use of the device, was a false representation. But while this line of evidence was com-j ■petent, yet the establishing of The" falsity- of any one orb more of these various representations- of the • circular will j not qí itself and as a matter of law be conclusive against a | recovery by appellee. The publication and the plea of justification gO-beyond the mere assertion of the falsity of these -various statements of the circular. It is charged that the device -is_a “hmh'6ug.>’ and worthless, unfitted for making half-tone pictures of value, and in effect that appelleeis dishonest in the vending of the device. It was for the-jury to determine from all the evidence whether the plea was sustained, i. <?., whether the evidence established that the device was a “ humbug,” worthless and unfitted for use, and therefore that the appellee was dishonest in advertising and selling it. The evidence is conflicting, and we can not say that the determination of the jury, as expressed in the verdict-, is without support in the evidence.

We are of opinion that there was no error in admitting in evidence the prints in half-tone as contained in the Chicago daily papers, which were exhibited to the witnesses on cross-examination. These witnesses had testified as experts that the prints made by appellee’s device were not commercially acceptable. To test their credibility as experts they were asked if the prints in the Chicago papers were, in their opinions, acceptable, and to explain why they were regarded by them as acceptable, while the prints made by appellee’s process were not. The prints, having been thus, used in cross-examination, were admitted in evidence. We can not say that the court erred in admitting this cross-examination. Greater latitude is allowed in the going outside of facts in evidence for the purpose of cross-examining experts than is allowed in the examination of other witnesses, and the extent of such latitude is a matter resting largely on the sound discretion of the trial judge. 2 Jones on Evidence, 391.

We can not say that the learned trial court erred in the extent to which this cross-examination was permitted. We are of the opinion that there was no error in allowing appellee to show loss in the falling off of its sales after the publication. Whether such loss was attributable to the. publication was for the jury to determine from all the evidence. If it had been attempted to show the loss of specific-customers, and such loss was not alleged specially in the declaration, the ground of' objection urged by counsel would be good. But such objection does not apply to proving a general decrease of the business. '

There remains one other question of procedure to be considered, and we consider it as controlling of the- appeal. The manager of the appellee company, when testifying for appellee, was asked in relation to the falling off of appellee’s sales:

“ Do you know of any reason except this libelous article in the Inland Printer to which to assign the fact that since then you have sold so few?”

This question was objected to by counsel for appellant upon the ground, among others, that it called for the conclusion of the witness. The objection was overruled, to which appellant preserved its exception. The witness answered, “ I do not.” In this ruling we think there was error. It permitted the witness to usurp the function of the jury, to canvass the evidence and to determine from it all that the only reason for the loss was the libel. The jury might well have rested upon this evidence, given to them as competent, and have based their measurement of the damages thereon, without attempting to determine from all the facts whether the opinion and conclusion of the witness was correct or not. In a case where the evidence is conflicting, and where the damages assessed by the jury are large, we can not disregard this error, or view it as any other than reversible. It is altogether too likely that it influenced the jury to the prejudice of appellant. Having objected to the admission of this evidence, and having preserved an exception to the ruling of the court in overruling the objection, appellant urged this as one of the grounds for a new trial, and now presents it as one of its assignments of error.

For the error thus assigned the judgment is reversed and the cause remanded.

We find no other error in procedure. Eeversed and remanded.


author: per Curiam.

text:
    John P. Agnew v. Frank Supple.
    1. Appellate Court Practice — Omission of a Finding of Facts Through Inadvertence. — Where a case is reversed without remanding, and a finding of facts is omitted through inadvertence, and the same is taken to the Supreme Court, where it is remanded to this court with directions to enter a judgment reversing and remanding, or affirming the judgment of the court below, this court will supply the omission in accordance with the mandate of the Supreme Court.
    Trespass on tlie Case, for personal injuries. Error to the Superior Court of Cook County; the Hon. Jonas Hutchinson, Judge, presiding. Heard in this court on a remanding order from the Supreme Court.
    Reversed, with a finding of facts.
    Opinion filed December 24, 1901.
    O. W. Dynes, attorney for appellant.
    M. St. P. Thomas, attorney for appellee.
   Opinion

per Curiam.

This case has been remanded to this court with directions to enter such judgments reversing and remanding or affirming the judgment of the Superior Court, as in its judgment may be proper, or reciting in its judgment the facts found by it, if any such final determination is made, as is provided in section 88 of the practice act. Supple v. Agnew, 191 Ill. 439.

A motion has been made by appellants that final judgment be entered in appellants’ favor, with a finding of facts. A cross-motion has been made by appellee asking us to affirm the judgment of the Superior Court. It is evident from the opinion filed when the case was originally before this court (Agnew v. Supple, 80 Ill. App. 437), that we did not intend to be understood as finding the facts as they were found by the trial court, but that through inadvertence, to which our attention was not called by counsel, a finding of facts by this court was omitted. It is our duty now to supply such omission. Appellant’s motion for final judgment will accordingly be granted, and a finding of facts made.

The opinion rendered at the former hearing and filed March 14, 1899, reported in 80 Ill. App. 437, will be refiled as the opinion of the court, and the judgment of the Superior Court will be reversed without remanding, in accordance with the views in said opinion expressed. Re versed.

Finding of Facts. — The court finds that the injury to the appellee was not caused, as charged in the declaration herein, by any negligence of appellant in failing to furnish a sufficient number of persons to perform the work of moving the log or timber by the fall of which' appellee was injured, and to prevent said timber from rolling, falling or shifting while the “ dolly ” with said timber was being moved along the runway. The court finds that the fall of said timber and the injury to said appellee were caused by the negligence of appellee and his fellow-servants in failing to exercise due care and caution, and failing to use obvious and ordinary precautions for their own safety.


author: Mr. Justice Shepard

text:
    Harry E. Vosseler v. William H. Wheeler.
    1. Bills of Exception — Musi be Under the Seal of the Trial Judge. —Unless a bill of exceptions is under the seal of the trial judge the evidence upon which the assignment is based can not be considered by the Appellate Court.
    Forcible Entry and Detainer. — Appeal from the Superior Court of Cook County; the Hon. Jesse Holdom, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.
    Affirmed.
    Opinion filed November 1, 1901.
    Thornton & Chancellor, attorneys for appellant.
    William Odell Clark, attorney for appellee.
   Mr. Justice Shepard

delivered the opinion of the court.

This is an appeal from a judgment of restitution in a forcible detainer suit begun by the appellee against the appellant.

The merits of the case have been heard, and judgment in favor of the plaintiff had twice, once before the justice and again before a judge of the Superior Court, a jury having been waived.

The purported bill of exceptions is not sealed, and for that reason the evidence, upon which all assigned errors are based, can not be considered by us. Higgins v. Hide and Leather Bank, 88 Ill. App. 33; Elder v. Bennett, 79 Ill. App. 335; Bloomington v. Lishka, 78 Ill. App. 389; Harman v. Brigham, 78 Ill. App. 427.

We might add that we have looked into the so-called bill of exceptions sufficiently to satisfy us that the judgment below was not wrong. Affirmed.


author: Mr. Justice Waterman

text:
    Roland A. Crandall et al. v. Paul J. Sorg.
    1. Landlord and Tenant — Restrictions on the Lessee. — A restriction upon the lessee in a lease providing that no transfer, assignment, mortgage, judgment, mechanic’s or other lien, shall in any manner or degree affect the claim of the lessor in said premises or his rights therein under the provisions of the lease, is not unreasonable and is such as a court of law will enforce in a proper case.
    2. Forfeitures — Failure of a Lessee to Pay Rent and Taxes. — When a lessee fails to pay rent and taxes pursuant to the covenants of his lease, such failure creates a cause for a forfeiture of his rights, and the lessor may declare such a forfeiture, and the holder of a lien must pay all arrears of rent before he can acquire the rights of the lessee under the lease.
    3. Same — He Who Comes into Equity Must Do Equity. — When a lessor makes a declaration of forfeiture and enters into possession of demised premises under it, and then appeals to a court of equity to establish him in what he may have reason to fear he has not obtained by such declaration of forfeiture, the maxim that he who appeals to a court of equity tor relief must be ready to do equity, applies.
    4. Same — Forfeitures in Courts of Equity. — A court of equity will not lend its aid to enforce a forfeiture on a breach of a condition subsequent in a deed, and it will make no difference in such a case that its aid is sought upon the special ground of removing a cloud upon the title of real estate.
    5. Courts of Equity— When a Court of Equity Will Not Enforce a Penalty. — A court of equity will not enforce a penalty or compel a discovery which will expose a party to a penalty or forfeiture.
    Bill to Quiet a Title. — Appeal from the Circuit Court of Cook County; the Hon. Edmund W. Burke, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1901.
    Reversed and remanded with directions.
    Opinion filed December 24, 1901.
    A. N. and E. P. Eastman, attorneys for appellants.

      H. H. C. Miller and W. S. Oppenheim, attorneys for appellee.
   Mr. Justice Waterman

delivered the opinion of the court.

This was a bill filed June 20,1894, by appellee, to quiet title.

Many persons were made parties thereto. Answers, cross-bills and replications having been filed the cause was referred to a master to take testimony and report.

The master found that in the year 1891 George W. Henry and James H. Campbell were the owners of the property in question, situated at the northwest corner of State and Thirty-fourth streets, in the city of Chicago, comprising about two acres. That Henry and Campbell made a conveyance of the property to one Hullinger. Hullinger conveyed the property to the complainant, Sorg, and received from him a lease for ninety-nine years; that before the land was sold to complainant a contract was entered into by which Sorg was to pay $200,000 for the land and to give Hullinger a'ninety-nine year lease at a rental of $12,000 per annum, payable quarterly.

The master’s report states that by this contract the lessee or his assigns were to construct a building on the leasehold premises to cost not less than $300,000 and that of the $200,000 purchase money, $100,000 was to be deposited in bank and paid out — $25,000 when $50,000 had been expended on the contractor’s receipt shown therefor; $25,000 more when the fourth floor joists were laid, provided the contractor’s receipts were shown therefor; and when the building was ready for occupancy the balance, $50,000, was to be paid; that before any part of the $100,000 should be withdrawn, a statement should be made by the architects of the building to Sorg or his representative, Frank H. Hay, showing the amount that had been invested in the building and that all the conditions of the contract had been complied with and the contractor’s receipt presented, showing that all the labor and material had been paid for, upon which Hay was to give his consent to the withdrawal of the deposit as aforesaid.

The contract itself is not that Hullinger, the lessee, or his assigns, were to construct a building, but that Hullinger would construct a building upon the premises costing not less than $300,000.

The master further reports that June 16t,h Hullinger conveyed the property to Sorg, who, on the same day, executed to him a ninety-nine year lease and paid him $100,000 as provided, and deposited another $100,000 in bank subject to the conditions of the contract.

The master further reports that thereafter, Henry and Montgomery organized a corporation, known as the Mecca Company;' that September 5th the aforesaid- leasé was assigned to the Mecca Company and the consent of Sorg given to such assignment. The lease was recorded upon the day of its date, June 16, 1891, in the recorder’s office of Cook county. Nearly three months after the recording of this lease, a contract was entered into between the Mecca Company and Shields & Cook to construct a building on the premises, according to the plans and specifications, for $420,000. This contract was made September 6th. October 23d", so much work had been done that the architects issued their certificates for $50,000 and Shields & Cook gave their receipt to the Mecca Company for that sum; on the 24th of October the written consent of Bay, the agent of. Sorg, was obtained for the withdrawal of $25,000 of the money .which had been deposited in the Columbia National Bank. December 22, 1891, another certificate was issued by the architects for $50,000 and Shields & Cook gave receipts for $50,000, and thereupon, by the consent of Bay, $25,000 more of the $100,000 was withdrawn, and finally the remainder of the $100,000 was under like circumstances withdrawn.

August 23, 1892, the building was turned over by the contractors, Shields & Cook, to the Mecca Company, who accepted the same. The Mecca Company gave" a trust deed of the property to secure the payment of certain bonds issued by it, about $100,000 of which were taken and held by the Columbia National Bank at the time of its failure. On the 23d of May, 1893, one Niblack was appointed receiver for the Columbia National Bank, and on the 7th of July the property in question was deeded by the Mecca Company to him. The bank then held 116 of the bonds of the Mecca Company secured upon this property, each bond being for the sum of $1,000. There was then due to the complainant, Sorg, installments of rent to the amount of $9,000. The property had been sold for taxes in April, 1893. Niblack refused to pay either rent or taxes, and on the 17th of May, 1894, notice was served upon him, and at about the same time upon appellants, that unless within thirty days the rent due on the premises and the delinquent and unpaid taxes were paid in accordance with the terms of the lease made by Sorg to Hullinger, he (Sorg) ■would, in pursuance of the terms of the lease, declare the term provided for in the lease ended and determined.

Thereafter, on May 17, 1894, no part of the past due rent or taxes having been paid, Sorg declared the lease forfeited and determined, and all right, title and interest to or held by any person therein annulled and at an end.

The master finds that Sorg paid out $15,000 to redeem from tax sales, and that since he has taken possession of the property he has paid out $37,000 in the improvement thereof. The lease given by Sorg to Hullinger contained the following:

“ It is further agreed, and notice is hereby given, that no transfer, assignment, mortgage, judgment, mechanics’ or other lien shall in any manner or degree affect the claim of the lessor in said buildings, and his rights in said premises under the various provisions of this lease.”

The master further finds that the premises were purchased by Sorg under the belief that they were worth about $180,000 without a lease, and that with a lease they were worth, at least, the sum of $200,000, and that the $100,000 deposited as aforesaid in bank, was the money of the said Henry, and that Sorg had no interest whatever therein; that $100,000 of the purchase price paid by Sorg was to be placed in the Columbia National Bank to be paid out when certain conditions were fulfilled, and that his sole relation to the Mecca Company after the assignment of the lease to it, was that of landlord; that he was in no way interested in the building as part owner; that the lease was placed of record before any contract for improving the premises was entered into,.and that he had no interest whatever in the leasehold estate; that all the defendants must-be considered as having, at least, constructive notice of the provisions in the lease against mechanics’ liens and the rights of the lessor in the property. The master thereupon found as follows:

<l I am therefore of the opinion and find after carefully considering the evidence in the said cause that the lessee and his assigns have lost all right, title or interest in and to the said premises, by reason of the forfeiture of said lease, and that none of the mechanics’ lien claims of any of the defendants in this cause can be sustained.”

The chancellor approved and confirmed the master’s report as to the mechanics’ liens claimed by appellants and entered a decree in accordance with the said report.

In the case of Franklin Savings Bank v. Taylor, 131 Ill. 376, the court in passing upon the following clause in a trust deed — “ provided that no charge, lien or incumbrance on said premises or any portion thereof shall be thereby created by said Ira Scott or his successors in trust,” (the record of the trust deed having been destroyed,) said (p. 386):

“ If that record had never been destroyed no one would claim that a mechanic’s.lien could have been established against the property, and this simply because the deed expressly provides that no work creating a lien shall be made.”

The restriction is not unreasonable and it is such as the law will enforce.

Counsel for appellant urge that the case of Franklin Savings Bank v. Taylor is not applicable here because of the contract made by Sorg with Hullinger, under which Hullinger was to erect upon the leasehold premises a building costing not less than $300,000. The lease and the contract were undoubtedly one transaction, and the position of Sorg to the leasehold premises is to be determined by a consideration of both instruments. The case of Franklin Savings Bank v. Taylor grew out of the case of Taylor et al. v. Gilsdorff et al., 74 Ill. 354, a petition for a mechanic’s lien in which it appeared that on the loth of June, 1871, Maria L. Taylor, wife of Frank C. Taylor, being seized in fee of lot 4, in block 16, in Bushnell’s addition to Chicago, conveyed the same to Ira Scott, as trustee. This deed vested the estate in the trustee in trust for Mrs. Taylor during the joint lives of herself and husband with remainder over to the heirs or devisees of the husband, and to the husband himself, if he survived the wife and their children. Frank C. Taylor, as by the terms of the trust deed he and his wife with the approval of the trustee might, made in his own name, with the several petitioners, contracts for the improvement of the lot by the erection of a block of houses. This was done while Scott was trustee; he having resigned, one Milliken was appointed in his place. Milliken, as trustee, mortgaged part of the premises to one Howe to secure the payment of certain sums of money to the Franklin Savings Bank. The Supreme Court found (page 359) that Mrs. Taylor knew and approved of the contracts of improvement made by her husband, and that she was to be considered as a party to the contracts; and sustained the petition of Gilsdorff and others for a mechanic’s lien.

In Franklin Savings Bank v. Taylor, 131 Ill. 376, it appears that in the proceedings for mechanics’ liens no jurisdiction was acquired over the persons of the children of Maria L. Taylor and Frank O. Taylor who were made parties thereto; that on the 19th of March, 1875, the Franklin Savings Bank paid the amount due under the decree awarded to Gilsdorff and others, affirmed in 74 Ill. 354, and took an assignment of the decree; that on the 13th of January, 1873, Maria L. Taylor and Frank C. Taylor, her husband, filed their petition in the Superior Court of Cook County, setting forth the destruction by fire of the original trust deed to Ira Scott and the record of the same, and praying that it be restored; that the children of Maria L. Taylor and Frank C. Taylor, the Franklin Savings Bank, Ira Scott and Francis B. Peabody, who had been appointed successor in trust, were made defendants; that a decree was entered on the 19th of March, 1893, restoring the record of the trust deed as prayed; that on the 26th of June, 1878, the Franklin Savings Bank filed its bill to foreclose the mortgages executed to it by Maria L. Taylor and Frank C. Taylor, and Milliken, as trustee; that before any decree of foreclosure was entered in that case, viz., on the 26th of April, 1878, a bill for review of the decree restoring the record of the trust deed was filed in the Superior Court of Cook County, alleging that the original trust deed had been found and that it was materially different from the record thereof as restored; that all persons who were parties to the bill restoring the trust deed were made parties to the bill of review, and it was decreed that the decree restoring the record of the trust deed be set aside and the bill therefor dismissed; that the decree provided that nothing therein should deprive the Franklin Savings Bank or the trustee acting under the restored record, of any rights they might have in the property conveyed in trust. Subsequently a decree of foreclosure was entered foreclosing the mortgages of the Franklin Savings Bank. The mortgaged property was bought by the bank and certificates of purchase were issued for it. Afterward, the bank caused sales to be made under the mechanics’ lien decree in the case of Gilsdorff et al. v. Taylor et al., and lot 4 hereinbefore mentioned, which by a subdivision had become sublot 3, was at such sale struck off to the bank for $12,537.92.

It was under a bill to quiet title in respect to the title of the Franklin Savings Bank obtained as aforesaid under a sale made by virtue of a decree in a mechanic’s lien proceeding, in which Maria L. Taylor, the owner of the property, -was held to have been, as such owner, a party contracting for the improvement of the premises, that the Supreme Court held, (131 Ill. 376) that by virtue of the clause in the trust deed against liens,hereinbefore mentioned, no mechanic’s lien could attach.

The present proceeding is under the statute in force when the contracts were made, liens claimed and decree entered in the case reported in the 74th Ill. Whatever claims upon the premises appellants have were subject and servient to that of the complainant as landlord, and his claim, as that of every other owner of an interest in real estate, is subject to the dominant right of the State under its tax laws. By the terms of the lease, the lessees were bound to pay all taxes. This, the lessee, the Mecca Company, failed to do, and suffered the property to be sold for taxes.

The master finds that the complainant has paid $15,000 to redeem the same from tax sales. The notice of intention to forfeit and declaration of forfeiture were each entirely in accordance with the terms of the lease.

If a lessee fails to pay rent and taxes as he has covenanted to do and thereby creates a cause for forfeiture, the lessor may forfeit, and the holder of alien must pay all arrears of rent to the lessor before he can acquire the rights of the lessee under the lease. Jones on Liens, Sec. 1273; Vanderbilt v. Williams, 40 Ill. App. 298; Williams v. Vanderbilt, 145 Ill. 238.

Appellants did file the statutory notice of claim of lien, but this notice did not mention the complainant, nor was it in any way addressed to him. Thereafter they took no steps for the perfecting of their claim until the filing of the present petition to quiet title. As against the fee owned by Sorg they acquired under" the statute no lien.

Appellee having made his declaration of forfeiture and entered into possession of the premises, applied to a court of equity to give him that which he feared by such declaration and forfeiture he had not obtained. Having come into equity, he must do equity. The imposing of such conditions upon a complainant does not necessarily involve the possession of a legal or equitable claim by the defendant wfiich he could enforce against the complainant either in an action at law or in equity.

Under the common law, by which, upon marriage, the property of the wife passed to the husband, while she could not ordinarily compel him to make a settlement upon her out of such estate, if for the purpose of obtaining possession of the same or any part thereof, he appealed to a court of equity, that tribunal might, as a condition of granting the relief he asked, require him to make a reasonable settlement upon her. So, too, under statutes against usury, making void all usurious debts and obligations; if the debtor' applies to a court of equity for an order requiring the bond or obligation given by him to be given up, the relief asked will be granted only upon condition that the' debtor does equity by repaying to his creditor the amount which was actually loaned. Pomeroy’s Equity Jurisprudence, Sec. 386.

Whether appellants or either of them have, in respect to' the premises under consideration, equitable' rights capable of enforcement, or which the court will require to be satisfied in whole or in part as a condition of giving to the complainant the relief he asks, is a question not presented to or considered by this court.

In this case the complainant’s right, under the bill filed by him, is based upon his declaration of forfeiture and the possession thereafter taken.- It may be that by this he obtained, as against the defendants to his bill, a perfect legal title to the premises in question. He is not, however, content with this, but asks a court of equity to declare that the defendants have no equitable claim in or to the premises or against him, and he has obtained in the court below a decree having that effect. He asked and has obtained a decree of a court of equity carrying into effect his' declaration of forfeiture.

The rule is well settled, and to it. it is stated by Pomeroy, there are no exceptions, that a court of equity will not enforce a forfeiture, Pomeroy’s Equity Jurisprudence, Sec. 459-460.

Our own Supreme Court in Douglas et al. v. Union Mutual Life Ins. Co., 127 Ill. 101, p. 116, said that “ no rule is better settled than that a court of equity' will not lend its aid to enforce a forfeiture because of a breach of a condition subsequent in a deed. * * * And it will make no difference in such case that the aid of equity is sought upon the special ground of removing a cloud on the title.” Nor will a court of equity enforce a penalty or compel a discovery that will expose a party to a penalty or forfeiture. Smith v. Jewett, 40 N. H. 530, 534; 2 Story’s Eq., Sec. 1494; Story’s Eq. Pleadings, Sec. 525; 1 Daniell’s Chancery Practice, 443-536; Livingston v. Tompkins, 4 Johnson’s Ch. (N. Y.) 415, 431, 432; Baxter v. Lansing, 7 Paige’s Ch. 351-353; Fitzhugh v. Maxwell, 34 Mich. 138; President & Directors of the Atlas Bank v. President and Directors of the Nahant Bank, 3 Met. 581.

It appears in the present case that the Mecca Company contracted with Shields & Cook, defendants below, to erect upon the premises of the complainant a building to cost $420,000; that the total amount of the certificates issued by the architects for the construction of said building were $449,644.70. Appellants contributed a considerable amount in the way of labor and materials toward the construction of this building for which they have never been paid.

Appellants’ claim that a court of equity shall declare that they have no right in or to said premises or upon him is based upon his declaration of forfeiture. This may be entirely good and all that he will ever need, but a court of equity will not aid him in the enforcement of his forfeiture.

The decree of the court below as regards appellants is reversed and the cause remanded with directions to dismiss the respective petitions of appellants for mechanic’s liens without prejudice to proceedings other than for mechanics’ liens under the statute and to dismiss the bill of the complainant, appellee, against appellants. Eeversed and remanded with directions.


author: Mr. Justice Adams

text:
    Nelson Morris v. Malcolm M. Jamieson et al.
    1. Remedies — Actions for Money Had and Received for the Use of the Plaintiff. — The action for money had and received for the use of the plaintiff is an equitable action and lies for money received by the defendant, which in equity and good conscience he should not retain but should pay the same to the plaintiff.
    2. Same — Requisites of a Recovery for Money Had and Received. —The right of a recovery in an action for money had and received depends upon the proof of two things : First, that the defendant has actually received the money; and second, that in equity and good conscience he should pay it to the plaintiff.
    3. Recoupment — Ire Actions for Money Had and Received. — In an action for money had and received, if the defendant has received the money he may, when sued for it, recoup or set off any indebtedness of the plaintiff to him.
    Assumpsit, for money had and received. Appeal from the Circuit Court of Cook County; the Hon. Edward P. Vail, Judge, presiding. Heard in this court at the March term, 1901.
    Affirmed.
    Opinion filed December 12, 1901.
    Statement. — May 30, 1896, appellant sued Malcolm M. Jamieson and others, constituting the firm of Jamieson & Co., in assumpsit. The declaration consists of the conimon counts, including a count on an account stated, a count for interest and a count for money had and received. The defendants pleaded the general issue. At the conclusion of the evidence for the plaintiff, the court, on motion of the defendant, excluded the plaintiff’s evidence and directed the jury to find the issues for the defendants. ■ This appeal is from the judgment on the verdict so rendered.
    The suit was for an alleged balance due from the defendants to the plaintiff. The only evidence produced on the trial were certain documents and letters and testimony of Charles E. Davis, secretary of appellant. The evidence tended to prove that, about December 1, 1892, appellant sold by appellees, as his brokers, 1,000 shares of Street’s Stable Car Line stock (hereinafter called Street stock) for the sum of $29,000, deliverable to purchaser in sixty days; that by appellant’s request Jamieson & Co. borrowed the stock for him for delivery on his contract of sale, and paid to the borrower $30 per share, or in all $30,000, on the loan, and delivered the stock to the purchaser about January 31, 1893.
    Davis testified that business relations between appellant and appellees, involving the purchase and sale of about 18,000 shares of stock, began some time in 1892. The following statement or memorandum of the sale of the Street stock, put in evidence by appellant, was inclosed to appellant in a letter from Jamieson & Co., of date January 21, 1893:
    “ Jamieson & Co.,
    Bankers and Brokers,
    187 & 189 Dearborn St.
    MEMORANDUM.
    Sold for act. BTo. 25.
    Dec. 1. 1,000 Street’s s/60 29............$29,000
    60 days’ int.................... 290
    $29,290
    Less Dividend 1 per cent......... 1,000 $28,290
    Less Com’n..................... 125
    $28,165
    Ch’go, Jan’y 31, 1893.”
    The letter contains the following :
    “We made deliveries of 1,000 shares and hand you here- ' with memorandum of same. We borrowed the stock for four months flat at 30.”
    Davis testified that the letter referred to the 1,000 shares in question, sold about December 1,1892, and that the word “ flat” means without interest; also, that appellant did not pay for the borrowed stock. There is no evidence that appellant advanced to or deposited with appellees any money on account of the sale.
    Appellant also put in evidence eight statements made by appellees to appellant at the end of each of the months of January, February, March, April, May, June, July and August, 1893. The following is a sample of the statements:

      “ Feb. 2, a. m.
    Dr. 3STo. 25. In account with Jamieson & Co.
    Date. Amount. Interest.
    Jan. 31. Balance short, 28,165
    “ “ 5,968.02 30.67
    34,133.02 30.67
    Cr.
    Date. Price. Amount. Days. Interest.
    Jany. 1. Balance 5,937.35 31 30.67
    31. 1,000 Street’s s/60 29
    less Div. 1 per cent, 28,165
    Interest, 30.67
    34,133.02 30.67
    Feb. 1 Balance 5,963.02
    do. short 28,165
    1.000 Street’s car line.
    1.000 do. s/60.”
    In regard to these statements, Davis testified that the credit balance of $28,165 appears separately in the first statement of January 31, 1893, but in subsequent statements it is merged with another 1,000 shares of Street stock; that the amount representing the 1,000 shares in question is merged with other items in all statements subsequent to the statement of date January 31, 1893, above shown; also that there is no controversy in regard to stock other than
    the 1,000 shares sold December 1, 1892. It was admitted by appellant’s counsel that appellant claimed* nothing in the suit on account of any transaction with Jamieson & Co. except the transaction relating to the 1,000 shares sold December 1, 1892, and the monthly statements were admitted in evidence only in so far as they relate to those shares. Davis testified that the last three statements showed only
    1,000 shares, namely, the shares in question, and that the balances shown are made up of two items, a credit balance on account of the sale of the 1,000 shares, and a credit to appellant on account of money deposited by him with appellees.
    The last statement shows the following :

      “ Sept. 1 Balance, 3,133.42
    do. short 29,872.66
    1,000 Street’s.”
    This, in accordance with Davis’ testimony, shows a balance of $29,872.66 to appellant’s credit on account of the short sale, and a balance to his credit of $3,133.42, on account of money theretofore deposited by him with appellees.
    Davis testified that August 29, 1893, he tendered to appellees 1,000 shares of Street stock; that the market value of the 1,000 shares so tendered was on that day $18,000, and that on making such tender he demanded from appellees the sum of $11,872.66, the same being the difference between $29,872.66, which appellant claimed as a credit to him, and $18,000, the market value of the stock tendered; that Jamieson, appellee, took the stock, requested witness to remain a few moments in his office while he went on change, and that Jamieson went out, returned in about fifteen minutes and handed the stock back to witness, saying that the person from whom the stock had been borrowed had refused to receive it, and that witness took the stock away with him.
    Davis testified that he did not know how many times Jamieson & Co. had borrowed stock on account of the sale in question; that they reported having borrowed it on two occasions.
    The evidence tends to show that the stock was borrowed from a Mr. Koch.
    The following correspondence occurred between the parties :
    “ Chicago, June 3, 1893.
    Kelson Morris, Esq., City.
    Dear Sir: We have borrowed 1,000 shares Street’s Stable Car Co. at 90 days from May 31st, the lender paying us interest at the rate of 2 per cent per annum.
    Tours truly,
    Jamieson & Co.”
    “ Chicago, June 27, 1893.
    Kelson Morris, Esq., City.
    Dear Sir: We received from you yestei'day 500 shares of Street’s to deliver on contract expiring to-day, which we have attended to, and have deposited $15,000"to your credit in the First National Bank as per your instructions. Regarding proxies for the annual meeting of Chicago Junction Railways and Union Stock Yards Company, we regret to say that we can not obtain any for you.
    Yours truly,
    Jamieson & Co.”
    “ Chicago, August 22, 1893. Nelson Morris, Esq., U. S. Yards, Chicago.
    Dear Sir : We notified Mr. Ed. Koch yesterday, from whom we borrowed the thousand shares stock for your account, that you desired to deliver the same at the expiration of contract, or before, if agreeable to him. He notifies us to-day that he is not in financial condition to accept the stock now, or at the expiration of contract.
    Yours truly,
    Jamieson & Co.” “Chicago, Ills., Aug. 24, 1893. Messrs. Jamieson & Co., 187 Dearborn St., City.
    Gentlemen: Yours of the 22d was duly received. Our
    Mr. Davis called to see your Mr. Jamieson twice yesterday in regard to it, but not finding him in called again to-day, and now informs me that you tell him that Mr. Koch never put up any margins on this deal, although you called upon him to do so some time ago, and that you did not thereupon order the stock sold under the rules of the exchange, because there was no market for it. In view of these facts and the fact that you never heretofore advised me of them, I do not see how I can do other than look to you to make good the amount which I should have received had you properly looked after the trade and not neglected my interests. You will, therefore, kindly oblige me by sending me your check for the amount due me, based on the present market price for the stock. Kindly give this matter your immediate attention.
    Yours truly,
    Nelson Morris.”
    The amount claimed by appellant is $11,872.66, being, as above stated, the difference between $18,000, the market value of the stock tendered August 29,1892, and $29,872.66, the amount claimed as a credit on the sale, with interest on said difference from August 29,1893. No claim is made on account of money advanced to or deposited with appellees by appellant. Davis testified that the other balance, exclusive of the $29,872.66, Avas paid.
    Other parts of the evidence may be referred to in the opinion.
    Dupee, Judah, Willard & Wole, attorneys for appellant.
    F. A. Riddle and J. E. Munroe, attorneys for appellees.
   Mr. Justice Adams

delivered the opinion of the court.

The only controversy betiveen the parties is as to the 1,000 shares of Street’s Cable Car Line stock sold by appellees for appellant, and by the latter’s order, December 1,

1892, for $29 per share, or $29,000 in all, and the main question to be decided is, Avhether there can be any recovery by appellant, in the present suit, and under the pleadings, on account of that sale.

It seems to be conceded by counsel for appellant that, if there can be a recovery, it must be either on the count on an account stated, or on the count for money had and received. Apparently, counsel for appellant do not much rely on the former count, and Ave think it clear that there can be no recovery under that count. In the letter of January 31,1893, from appellees to appellant, inclosing the statement or memorandum of the sale of the 1,000 shares, they informed appellant that they had borrmved the stock for four months flat at 30, and had delivered the 1,000 shares on the sale. Davis, appellant’s private secretary, and who apparently was managing the business for appellant, testified that “ 30 ” meant $30 per share or $30,000 in all. He also testified that appellees borrowed the stock at appellant’s request and delivered it to the purchaser, and that it is customary, in borrowing stock, to pay the market price at the rime of borrowing. The letter of January 31, 1893, inclosing the memorandum of the sale, Avas a part of the report of appellees of the transaction, and informed appellant, in substance, that he Avas debited in his account Avith appellees with $30,000. Davis testified that the stock was delivered in January, 1893, by Jamieson & Co., and that January 31, 1893, Jamieson & Co. reported to Uelson Morris that they had borrowed 1,000 shares of stock and delivered it on the short sale, and that they sent a memorandum of the transaction. The evidence then being that appellant was notified, by the report of appellees, that they had made a sale of stock for $29,000, deliverable in sixty days, and had expended $30,000 in borrowing the stock for the purpose of delivery, it is manifest that there can be no recovery under the count on an account stated. The letter and memorandum, taken together, constitute the report, and show an indebtedness from appellant to appellees. But appellant’s counsel rely mainly on the count for money had and received, and the next question is whether the evidence is such as to warrant a recovery under that count. The action for money had and received for the use of the plaintiff is an equitable action. It lies for money received by the defendant, which, in equity and good conscience, he should not retain, but should pay to the plaintiff. In such case the law will imply a promise of the defendant to pay the money to the plaintiff. 2 Greenl. on Evidence, 13th Ed., Sec. 117; Shaw v. Inhabitants, etc., 7 Cush. 442; Trumbull v. Campbell, 3 Gilm. 502; Farrar v. Hinch, 20 Ill. 646, 653; Watson v. Woolverton, 41 Ib. 241; Alderson v. Ennor, 45 Ib. 128; Belden v. Perkins, 78 Ib. 449; G. & M. R. R. Co. v. Burns, 92 Ib. 302; Green v. Lepley, 88 Ill. App. 543, 548.

The right of recovery depends on proof of two things: first, that the defendant has actually received the money; second, that in equity and good conscience he should pay it to the plaintiff. If the defendant has received the money, he may, when sued for it, recoup or set off any indebtedness of the plaintiff to him. Belden v. Perkins, supra, p. 453.

The appellees having reported to appellant, January 31, 1893, that they had delivered the 1,000 shares of stock to the purchaser, it is a legitimate conclusion that they received from the purchaser, at the time of delivery, the purchase price of the stock, $29,000; but the same report informed appellant that appellees had paid $30,000 to the lender of the stock, which appellant had authorized them to borrow for the purpose of delivery to the purchaser. So that, omitting all deductions for commissions, etc., as shown by the memorandum of sale, while appellees were indebted to appellant in the sum of §29,000, he was indebted to them in the sum of §30,000. Therefore they had no money which, in equity and good conscience, they should have paid to appellant, nor is there any evidence, under the count in question, that there was any money received by appellees and unpaid to appellant which, in equity and good conscience, they should pay to him. Appellant, however, seeks a recovery on the theory indicated in appellant’s letter to appellees, of date August 24, 1893, viz., that it was the duty of appellees to call on Koch, the lender of the stock, for margins, when the market value of it commenced to decline, and to continue so to do as long as the decline continued, in which case, had the margins been put up, there would have' been no loss on the borrowed stock, and there would have been a balance to appellant’s credit; and that, on Koch failing to put up margin, when first called on, it was appellees’ duty to sell the stock on the exchange, and thus stop the loss. There can be no recovery on this theory. First, the evidence does not support the assumption that it was appellees’ duty to call for margins on the borrowed stock. If such was appellees’ duty, it must so appear, either from the contract between the parties, or from evidence of a custom or trade usage to call for margins in such a case, so that the parties must be presumed to have contracted with reference to it. There is no evidence of any contract between the parties, that appellees should call for margins on the borrowed stock.

The witness Davis testified that he dictated a letter, of date September 9, 1893, from appellant-to appellees, in which the following occurs:

“Replying to yours of 7th, I beg to say that it was your duty as brokers to protect my interest by proper margin or security; that you failed to do. Moreover, you did not even notify me that you were not doing it, or that Mr. Koch was unable to put up margins or securities. Had you done what your duty as brokers demanded, and what I have every right to expect, the amount due me would have been in my hands long ago. Hot having done so, you are, therefore, liable to me for it.”

Davis testified:

“As to why I wrote to Jamieson & Co. as I did about their duty, I had had transactions in stocks running up into hundreds of thousands of shares, and 1 never had known of a case before where the broker did not call margins to protect a trade of that kind.”

What is said in the letter of September 9, 1893, as to the duty of appellees, is a mere expression of the witness’ opinion, and the testimony of Davis last referred to is merely a statement of his experience in his personal transactions. The evidence falls far short of proving a custom of brokers to call on the lender of stock for margins. Bissell v. Ryan, 23 Ill. 571; Lyon v. Culbertson, 83 Ib. 33; Coffman v. Campbell, 87 Ib. 98; 27 Am. & Eng. Ency. of Law, p. 719.

Secondly, appellant’s theory assumes that, under the count for money had and received, which count by its very terms indicates that the money sued for was received by the defendant, it is not necessary to prove that the defendant actually received the money, but it is sufficient to prove that the defendant was negligent, and that had he not been so he would have had the’money.

Such is not the law. To warrant- a recovery it must appear from the evidence that the appellees actually received money which in equity and good conscience they should pay to appellant. Morrison v. Rogers, 2 Scam. 317; Stahl v. Ansley, 2 Gilm. 32; Trumbull v. Campbell, 3 Gilm. 502; De Clerq v. Mungin, 46 Ill. 112; Cushman v. Hayes, 46 Ib. 145.

Proof of negligence will not support an action for money had and received.

Appellant’s counsel urge that the evidence does not show that appellees advanced any money for the borrowed stock.

Davis, examined by appellant’s attorneys, testified as follows:

“Jamieson & Co. probably borrowed the stock around thirty. I don’t remember exactly. They had to put up with the man they borrowed the stock from, the market price of the stock. I suppose Jamieson & Co. furnished the money to borrow it. Kelson Morris did not give them his check for it; he did not pay for it — never.”

In his subsequent examination on another day, he testified :

“I did not know before August 29, 1893, that Jamieson & Go. borrowed the thousand shares of stock for delivery on the sale that had been made on December 1,1892. They wrote us that they had borrowed it. I do not mean to say —referring to my testimony of yesterday — that I know that to be an absolute fact. I only know it from their letters. I don’t know that I ever disputed it.”

The statement of Jamieson & Co. in their letter of January 31, 1893, inclosing the memorandum of the sale, that they had borrowed the stock, paid thirty on the loan, and delivered the borrowed stock to the purchaser, has never been disputed by either appellant or his agent, Davis. Appellant claims in this suit that appellees received from the purchaser of the stock $29,000, the purchase price, which could not be, if the stock were not delivered, and appellant neither furnished the stock for delivery, nor advanced any money for its purchase, or for borrowing it. Appellant’s letters to appellees, of August 24 and September 29, 1893, impliedly admit the borrowing of the stock from Mr. Koch. Appellees’ letter of June 3, 1893, stating, “We have borrowed 1,000 shares of Street’s stock at ninety days from May 31st,” must refer either to an extension of the original loan of the stock, or to some other transaction than that in question. However, this is unimportant, in our view of the case.

We find no reversible error in the court’s rulings on evidence, and are of opinion that the court did not err in taking the case from the jury.

The judgment will be affirmed.


author: Mr. Presiding Justice Windes

text:
    Jacob H. Lesher et al., Copartners as J. H. Lesher & Co., v. William Friedman, Assignee, et al.
    1. Preferences — Voluntary Assignments and Judgments. — A voluntary assignment by a corporation, executed by its vice-president without any previous authority from the directors of the company, does not pass the title to the assets of the corporation so as to cut off the lien of an execution issued upon a judgment entered on the same day.
    8. Voluntary Assignments — By Corporations — When Not Effective — Ratification.—A voluntary assignment by a corporation for the benefit of its creditors, executed by its vice-president, unless ratified by the directors of the company does not become effective as to intervening creditors in a contest for preferences.
    Voluntary Assignment. — Petition by a judgment creditor for a preference. Appeal from the County Court of Cook County; the Hon. Orrin N. Carter, Judge, presiding. Heard in this court at the March term. 1901.
    Reversed and remanded.
    Opinion filed December 12, 1901.
    Alden, Latham & Young, attorneys for appellants.
    Whitney & Horner, attorneys for William Friedman, assignee.
    Cratty, Jarvis & Cleveland, attorneys for J. M. Hayes Woolen Co., William A. Doyle, attorney for E. R. Hawkins & Co. et al., William E. O’Neill, attorney for Wm. Hale Thompson, creditors.
   Mr. Presiding Justice Windes

delivered the opinion of the court.

The Yehon Co., a corporation, made an assignment June 6, 1896, at 9:30 a. m., to one Friedman as assignee, and on the same day, at 9:27 a. m., appellants caused a confession of judgment to be entered against the company upon a judgment note. Although the judgment was entered before the assignment, an execution thereon was not delivered to the sheriff until after the assignment was filed with the clerk of the County Court. The assignee was first to get to the company’s place of business and took possession of its property before the sheriff arrived with the execution. Ho levy was made by the sheriff and the execution was returned unsatisfied at the end of ninety days. A contest arose in the County Court between appellants on the one side, on their petition for a priority over other creditors of the company, and the assignee and creditors on the other, as to whether appellants acquired a prior lien by virtue of their judgment and execution, which was decided in favor of appellants, and an appeal was prosecuted by the assignee and certain of the creditors, to this court, which was heard and determined by the Branch Appellate Court (78 Ill. App. 678), and the judgment of the County Court was reversed and the cause remanded. It was held on that appeal, among other things, in substance, that it did not appear on the record then before the court “ that the assignment in question was made without sufficient authority, and in the absence of such proof the authority must be presumed.” For the facts appearing on that appeal, which also appear in this record, we refer to the opinion in that case.

Since the case was remanded another trial resulted, on January 12, 1901, in a finding that appellants were not entitled to a preference over the other general claims filed against the estate of the corporation, and an order that the petition of appellants for such preference be denied and the petition dismissed. The claim of appellants was, however, allowed as a general claim against the estate of the company for $1,469.34. From the finding and order denying the preference and dismissing appellants’ petition for the same, this appeal is taken.

The assignment in question was executed by Marie H. Yehon, vice-president of the company, without any previous authority from the directors of the company so to do, and the deed was, on the same day, though after the execution on appellants’ judgment had been issued and placed in the sheriff’s hands, ratified by the board of directors of the corporation.

The principal question presented upon this appeal is as to whether the assignment passed title to the assets of the corporation so as to cut off the lien of appellants’ judgment and execution.

It is claimed on behalf of appellees that this question was adjudicated upon the former appeal, and is not now open for consideration. We think not. The very evidence by reason of the absence of which the court on- the former appeal held that proof of authority in the vice-president to execute the assignment would be presumed, is supplied by the record on this appeal. The vice-president testified that she did not remember of having been authorized by the board of directors to execute the deed, and did not think it would have been possible that she was asked either by Moses Salomon, or some official of one of the courts, to execute the deed; that she didn’t remember of any action being taken by the company, by the board of directors or stockholders of the company, prior to the 6th day of June, 1896, in reference to the assignment. There were only three directors of the corporation, one of whom died on June 5, 1896, another was the vice-president just referred to, and the third was the president, who testified that he never attended a meeting of the board of directors prior to the death of the one just referred to, and never called a meeting of the directors prior to that death, and never attended a meeting of the board of directors that authorized the execution of the deed of assignment before it was executed by the vice-president, and that he, as president, never authorized the vice-president to execute the deed.

It is clear from this evidence, which is not contradicted, that the vice-president had no authority from the board of directors of the corporation to execute the deed before it was executed, and under the authorities and decision of the court on the prior appeal, the deed of assignment was not valid until it was ratified by the board of directors, which was after the lien of appellants’ judgment and execution upon the property of the corporation had been acquired. It was then too late to cut off appellants’ lien and rights. The assignee took subject thereto. Ch. 77, Sec. 9, Starr & Curtis’ Stat.; Norton v. Alabama Nat. Bk., 102 Ala. 420; 3 Am. & E. Ency. Law (2d Ed.), 46 and 47; Knights v. Martin, 155 Ill. 486; State Nat. Bk. v. Union Nat. Bk., 168 Ill. 519-28; State Bk. v. Moran Pkg. Co., 68 Ill. App. 25-39; Trumbull v. Union Trust Co., 33 Ill. App. 319-38; McVeagh v. Chase, 67 Ill. App. 160-4.

By the section of the statute above quoted, the lien of appellants’ judgment and execution upon the property of the corporation attached when the execution was delivered to the sheriff.

In the Trumbull case, supra, in which this court had under consideration the validity of an assignment for the benefit of creditors made by two of three partners, without the third joining in or authorizing its execution, it was held that because there was a crisis in the affairs of the firm and the absent partner could not be consulted personally or otherwise, in time to avoid or meet the emergency of the case, that authority from such absent partner would be implied; but it was also held that “ ratification by the absent partner does not operate to divest the rights of purchasers and lien holders, acquired in good faith after the execution of the first instrument, and before the ratification.”

In the case of McYeagh, supra, this court held that where an attachment was levied upon property which had been assigned for the benefit of creditors, the deed having been executed and recorded, but not accepted by the assignee before the levy of the attachment, the assignee took title subject to the attachment lien.

In the State Bank case, supra, it was held by this court that where a president and secretary of a corporation conveyed by mortgage substantially all of its property, in order to prefer certain creditors, though authorized by the board of directors at a meeting held in a foreign State, the mortgage did not take precedence of the rights of attaching creditors intervening before a subsequent ratification by the board of directors at a meeting held within this State. The holding of this court was affirmed by the Supreme Court in the First National Bank case, supra, in which it is said :

“ When, therefore, the directors of the corporation met on March 25, 1895, and by resolution confirmed the mortgage previously made or authorized a new one, this action could only be taken subject to the lien which in the meantime the bank had acquired on the property,” citing with approval, among other cases, the Trumbull case, supra.

In the Horton case, supra, which is in its facts very similar to the case at bar, where an assignment for the benefit of creditors was made by the president of the company and afterward ratified by the directors, the court held, citing many authorities, that the assignee took subject to the lien of an attachment which was levied after the making of the deed, but prior to its ratification by the directors. We are of opinion that the lien acquired under appellants’ judgment should be preferred to the title of the assignee.

It is claimed for appellees that the judgment note on which appellants’ judgment is based, was invalid because it was not authorized by the board of directors. The record does not sustain the contention. The note was executed by M. H.Vehon as secretary, and had the corporate seal of the company attached. It was, besides, expressly authorized by resolution at a meeting of the board of directors of the company. A majority of the directors was present at the meeting, one of whom was M. H. Vehon, the secretary, treasurer and general financial manager of the corporation, who executed the note. We think there is no question as to its validity. Atwater v. Am. Ex. Bk., 152 Ill. 605-19; Chicago, etc., Co. v. Chicago Nat. Bank, 176 Ill. 224.

It is further claimed by appellees’ counsel that appellants have waived any objection to the binding force of the assignment, and that they are estopped from questioning its validity by a previous adjudication of the County Court on a motion to vacate. We think there is no merit in either of the contentions. Appellants do not contest the validity of the assignment, except in so far as it would deprive them of their lien, which had accrued prior to the ratification of the assignment by the board of directors.

The cases cited by counsel are not, in our opinion, applicable to the facts of this case. To review them would unnecessarily extend this opinion.

The order and judgment of the County Court are reversed and the cause remanded for further proceedings in accordance with the views herein expressed. Reversed and remanded.